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https://www.courtlistener.com/api/rest/v3/opinions/704000/ | 65 F.3d 1189
DEHUE COAL COMPANY, Petitioner,v.Laymond BALLARD; Director, Office of Workers' CompensationPrograms, United States Department of Labor, Respondents.
No. 94-2369.
United States Court of Appeals,Fourth Circuit.
Argued June 9, 1995.Decided Sept. 25, 1995.
ARGUED: John Payne Scherer, Sr., File, Payne, Scherer & File, Beckley, WV, for petitioner. Edward Lee Bullman, Shaffer & Shaffer, Madison, WV, for respondent Ballard; Barry H. Joyner, United States Department of Labor, Washington, DC, for respondent Director. ON BRIEF: Anthony J. Cicconi, Shaffer & Shaffer, Charleston, WV, for respondent Ballard; Thomas S. Williamson, Jr., Solicitor of Labor, Donald S. Shire, Associate Solicitor, Christian P. Barber, Counsel for Appellate Litigation, United States Department of Labor, Washington, DC, for respondent Director.
Before LUTTIG and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Reversed and remanded by published opinion. Judge WILLIAMS wrote the majority opinion, in which Judge LUTTIG joined. Senior Judge BUTZNER wrote a dissenting opinion.
OPINION
WILLIAMS, Circuit Judge:
1
In this appeal we consider whether a coal miner, affected by simple pneumoconiosis1 but disabled by an unrelated respiratory condition, is "totally disabled due to pneumoconiosis" within the meaning of 30 U.S.C. Sec. 901(a) (1988). An administrative law judge (ALJ) determined that Laymond Ballard suffered from a totally disabling respiratory condition, but denied him black lung benefits because the ALJ credited several medical opinions that Ballard's disability was not due to his coal mine employment. The Benefits Review Board (BRB) reversed and awarded benefits to Ballard on the ground that the medical opinions relied upon by the ALJ lacked probative value. Dehue Coal Company (Dehue) petitions for review of the BRB's decision and order. After careful consideration of the record before the ALJ and the BRB, we reverse the decision of the BRB and remand for entry of an appropriate order denying benefits to Ballard.
I.
2
Ballard was born on November 13, 1938, and completed schooling through the eleventh grade. He was a coal miner for approximately sixteen years, working for Dehue from 1970 to 1985. In his last position, Ballard worked as an electric repairman, troubleshooter, and general underground laborer. On or about May 27, 1990, he left the coal mines shortly after the removal of his left lung due to cancer.
3
Prior to the lung surgery, Ballard had never missed work due to breathing problems, although he had smoked approximately one pack of cigarettes per day for more than thirty years. It was not until the period immediately preceding his lung surgery that Ballard noticed any breathing difficulties. On May 8, 1990, Ballard underwent a routine physical examination by his family physician, Dr. Harry Fortner. At this initial office visit, Ballard complained of a recent twenty-pound weight loss and pain in his chest and left arm of about one-month duration, but denied any shortness of breath. Dr. Fortner ordered a chest x-ray which revealed a mass in the upper lobe of Ballard's left lung. He then referred Ballard to Dr. George Zaldivar, a pulmonologist who evaluated him, administered pulmonary function tests, and sent him to Dr. Sampath, who performed a pneumonectomy on Ballard.2
4
On July 17, 1990, Ballard applied for benefits pursuant to the Black Lung Benefits Act, 30 U.S.C. Secs. 901-945 (the Act). During the administrative consideration of Ballard's claim, the Department of Labor identified Dehue as the responsible operator liable for payment of benefits under the Act.3 Dehue disputed Ballard's claim and requested a hearing before an ALJ.
5
After conducting a hearing on the matter, the ALJ denied Ballard's claim for benefits on May 10, 1993. Based upon his review of the opinions of at least ten physicians and his review of x-ray, biopsy, and pulmonary function evidence, the ALJ concluded that Ballard suffered from simple pneumoconiosis and that he had a totally disabling respiratory condition. The ALJ further accorded Ballard the rebuttable presumption, as provided in 20 C.F.R. Sec. 718.203(b) (1994), that his pneumoconiosis arose out of his coal mine employment. Nevertheless, the ALJ found Ballard ineligible for benefits because the record did not support the conclusion that his total disability was due to the pneumoconiosis. See 20 C.F.R. Sec. 718.204. In particular, the ALJ observed:
6
I find the medical evidence, taken as a whole, establishes that although Claimant may have minimal, simple pneumoconiosis, it caused little, if any, respiratory impairment.... Furthermore, even if pneumoconiosis might have played a minimal role in Claimant's non-disabling respiratory condition, it is wholly unrelated to Claimant's totally disabling condition, which was caused by the pneumonectomy necessitated by Claimant's cigarette-induced lung cancer. These conclusions are not only supported by the better reasoned medical opinions, but are buttressed by the precipitous drop recorded on the pulmonary function studies, Claimant's work history, as well as Claimant's testimony.
7
(J.A. 51.) The ALJ, therefore, concluded that pneumoconiosis was not a contributing factor in Ballard's total disability and denied his request for benefits.
8
Ballard appealed to the BRB, which reversed the ALJ's decision on September 28, 1994, and awarded benefits to Ballard. Relying upon our decision in Grigg v. Director, OWCP, the BRB concluded that the ALJ erred in lending any credence to the opinions of physicians who failed to diagnose pneumoconiosis. See Grigg v. Director, OWCP, 28 F.3d 416, 419-20 (4th Cir.1994) (observing that interim presumption that pneumoconiosis caused disability cannot be rebutted by medical report finding "no respiratory or pulmonary impairment" if physician erroneously assumed miner had no pneumoconiosis). Discounting the credibility of the physicians' opinions relied upon by the ALJ, the BRB focused on the remaining medical opinions in holding that Ballard's pneumoconiosis was a contributing cause of his total disability. See Hobbs v. Clinchfield Coal Co., 917 F.2d 790 (4th Cir.1990) (Hobbs I ); Robinson v. Pickands Mather & Co., 914 F.2d 35 (4th Cir.1990) (holding claimant must show by preponderance of evidence that pneumoconiosis was contributing cause of totally disabling respiratory impairment). The BRB therefore reversed the ALJ's decision and ordered entry of an award of benefits.
9
Dehue asserts that the ALJ's determination that pneumoconiosis was not a contributing cause of Ballard's disability was supported by substantial evidence in the record and was in accordance with law. Dehue therefore contends that the BRB erred in awarding Ballard black lung benefits. We agree.
II.
10
The BRB reviews the ALJ's findings of fact to determine if they are supported by substantial evidence in the record. Doss v. Director, OWCP, 53 F.3d 654, 658 (4th Cir.1995). We review the BRB's decision for errors of law and to ensure the BRB's decision adhered to its statutory standard of review. Id. To that end, we undertake an independent review of the record, as in the place of the BRB, to determine whether the ALJ's factual findings were based upon substantial evidence in the record. Toler v. Eastern Associated Coal Co., 43 F.3d 109, 114 (4th Cir.1995). We review the BRB's legal conclusions de novo, considering first the BRB's reading of our precedent in Grigg. Scott v. Mason Coal Co., 60 F.3d 1138, 1140 (4th Cir.1995).
A.
11
Ballard urges us to affirm the BRB's reasoning that our decision in Grigg compelled it to discount the probative value of the opinions of those physicians who did not diagnose pneumoconiosis in Ballard. The BRB, however, construed our decision in Grigg without the benefit of our most recent decision in Hobbs v. Clinchfield Coal Co., 45 F.3d 819 (4th Cir.1995) (Hobbs II ). Evaluating Ballard's claim in the light of Hobbs II, we must reject his arguments because the physicians' opinions regarding the cause of Ballard's undisputed pulmonary impairment were probative evidence warranting due consideration by the ALJ.
12
Unlike Hobbs or Ballard, Grigg enjoyed an interim presumption under Part 727 of the regulations that he was "totally disabled due to pneumoconiosis." Grigg, 28 F.3d at 418 (noting invocation of presumption under 20 C.F.R. Sec. 727.203(a)(1) based on x-ray evidence). To rebut the presumption, medical reports were submitted stating that Grigg had "no respiratory or pulmonary impairment." In Grigg, we observed that when a physician premises such an opinion on the assumption that the miner has no pneumoconiosis, it is "not worthy of much, if any, weight." Id. at 419. In that instance, the physician's opinion simply contradicts the established presumption that the miner is disabled without offering rebuttal evidence regarding the cause of the miner's disability. See also Warth v. Southern Ohio Coal Co., 60 F.3d 173, 175 (4th Cir.1995) (vacating order denying benefits where ALJ improperly credited physicians' opinions of no pneumoconiosis based on erroneous assumptions).
13
In Hobbs II, we confronted a slightly different context than that in Grigg. Whereas Grigg enjoyed a presumption, Hobbs bore the burden of establishing that pneumoconiosis caused his total disability. 20 C.F.R. Sec. 718.204. We held in Hobbs II that once an ALJ has found that a miner suffers from some form of pneumoconiosis, a physician's opinion premised on an understanding that the miner does not suffer from coal workers ' pneumoconiosis may hold probative value. 45 F.3d at 821. To begin, the physician's finding that the miner does not have coal workers' pneumoconiosis is not necessarily inconsistent with the ALJ's decision that the miner suffers from pneumoconiosis as it is defined in 20 C.F.R. Sec. 718.201. Both conclusions may be accurate because "the legal definition of pneumoconiosis contained in Sec. 718.201 is significantly broader than the medical definition of coal workers' pneumoconiosis." Id. Moreover, a medical opinion that acknowledges the miner's respiratory or pulmonary impairment, but nevertheless concludes that an ailment other than pneumoconiosis caused the miner's total disability, is relevant because it directly rebuts the miner's evidence that pneumoconiosis contributed to his disability. See id. (noting physicians acknowledged that miner suffered respiratory impairment attributable to coal dust, but concluded that skeletal problems, obesity, and arthritis caused miner's total disability); cf. Grigg, 28 F.3d at 419 (medical reports refuting existence of impairment hold little probative value on issue of causation).
14
Here the physicians' opinions that Ballard's pneumonectomy, necessitated by smoking-induced lung cancer, caused his total disability were highly relevant to the question of whether pneumoconiosis was a contributing cause of Ballard's total disability. None of the physicians' opinions refuted the ALJ's finding that Ballard suffered from a disabling respiratory condition following his pneumonectomy. Rather, Drs. Zaldivar, Fino, Hansbarger, Caffrey, and Crisalli simply concluded that Ballard's coal mine employment was not causally related to his disability. Drs. Sampath and Chang merely reported on the characteristics of Ballard's carcinoma, without offering an opinion as to causation.4 Consistent with both Grigg and Hobbs II, these opinions are probative and warranted the close attention the ALJ accorded to them.
15
Dr. Zaldivar, a board-certified pulmonary specialist who examined Ballard and administered pulmonary function tests before the pneumonectomy, stated that Ballard was not disabled prior to the surgery, an opinion completely in accord with the ALJ, who found "minimal, if any, respiratory or pulmonary impairment" prior to the surgery. (J.A. 44.) Moreover, Dr. Zaldivar did not evaluate Ballard for pneumoconiosis and thus drew no conclusions contrary to the ALJ's further finding that, after the surgery, Ballard suffered from a totally disabling respiratory condition. Because Dr. Zaldivar's express assumptions were consistent with the ALJ's findings, the ALJ properly credited Dr. Zaldivar's opinion that Ballard's lung cancer, caused by smoking, was wholly unrelated to coal mine employment.
16
In their reports, Drs. Fino, Hansbarger, Caffrey, and Crisalli recognized that Ballard had respiratory or pulmonary impairment, concluded that coal workers ' pneumoconiosis did not cause it, and determined that the pneumonectomy necessitated by smoking-induced lung cancer was the cause of Ballard's total disability. Their opinions are not inconsistent with the ALJ's dual findings that Ballard is totally disabled and has simple pneumoconiosis. Dr. Fino, board-certified in internal medicine with a subspecialty in pulmonary disease, acknowledged that Ballard developed a pulmonary disability due to his pneumonectomy, but concluded that coal workers' pneumoconiosis played no role in the cancer that necessitated the pneumonectomy. Similarly, Dr. Hansbarger, a board-certified pathologist who reviewed all of the materials in Ballard's file, found no evidence of coal workers' pneumoconiosis and attributed Ballard's disability entirely to the pneumonectomy necessitated by lung cancer. Dr. Hansbarger found that "[a]ny respiratory difficulty, or pulmonary impairment in [Ballard] cannot be ascribed to ... his coal mine employment." (J.A. 194.) Likewise, Dr. Caffrey, a board-certified pathologist, identified mild chronic bronchitis, centrilobular emphysema, and carcinoma, but associated them with cigarette smoking rather than pneumoconiosis. Finally, Dr. Crisalli, a board-certified internist who examined Ballard and reviewed his history, also testified that Ballard's postoperative pulmonary impairment was related to his smoking rather than coal dust exposure.5
17
Thus, the opinions of Drs. Fino, Hansbarger, Caffrey, and Crisalli were not inconsistent with the ALJ's finding that Ballard suffered from a "totally disabling respiratory condition." (J.A. 44.) Whereas the physicians in Grigg denied the miner's respiratory impairment, Drs. Fino, Hansbarger, Caffrey, and Crisalli acknowledged Ballard's impairment but attributed it to his pneumonectomy rather than pneumoconiosis. Cf. Hobbs II, 45 F.3d at 821 (noting that although physicians found that miner "suffers from respiratory problems arising out of coal mine employment, they both concluded that his total disability was caused by obesity and arthritis, but not by pneumoconiosis").
18
Moreover, the four physicians' diagnoses that Ballard did not suffer from coal workers' pneumoconiosis did not contradict the ALJ's conclusion that Ballard had simple pneumoconiosis within the meaning of 20 C.F.R. Sec. 718.201.6 We emphasized in Hobbs II that "a medical diagnosis finding no coal workers' pneumoconiosis is not equivalent to a legal finding of no pneumoconiosis" because the legal definition is significantly broader than the medical definition. 45 F.3d at 821. Drs. Fino, Hansbarger, Caffrey, and Crisalli simply stated that they found no evidence of coal workers' pneumoconiosis, one of many ailments that would satisfy the legal definition of pneumoconiosis. In fact, Drs. Hansbarger and Caffrey expressly observed that Ballard exhibited symptoms pertaining to anthracosis, another of several ailments subsumed under the legal definition of pneumoconiosis. Dr. Hansbarger diagnosed anthracosilicosis of bronchial lymph nodes. Similarly, Dr. Caffrey discerned "black pigment which is morphologically consistent with coal dust," "a mild amount of anthracotic pigment," and a "[m]oderate amount of anthracotic pigment identified within lung tissue and hilar lymph node tissue." (J.A. 202.)
19
Because the physicians here did not premise their opinions on an "erroneous finding" contrary to the ALJ's conclusion, as in Grigg, 28 F.3d at 419, the ALJ correctly credited their unanimous opinion that Ballard's disability was due to the pneumonectomy rather than pneumoconiosis. Accordingly, we hold that the BRB erred as a matter of law in discounting the physicians' opinions.
B.
20
Having determined that the ALJ did not err in according weight to the opinions of Drs. Zaldivar, Fino, Sampath, Chang, Hansbarger, Caffrey, and Crisalli, we now review the ALJ's finding that pneumoconiosis was not a contributing cause of Ballard's total disability. In so doing, we "adhere carefully to the principle that we must affirm the ALJ's factual findings and weighing of the medical evidence where these conclusions of the ALJ are supported by substantial evidence." Hobbs II, 45 F.3d at 820. Finding that the physicians' opinions provided substantial evidence that the pneumonectomy, rather than pneumoconiosis, caused Ballard's total disability, we affirm the ALJ's decision to deny benefits.7
21
To receive black lung benefits, a claimant must prove by a preponderance of the evidence that he is "totally disabled due to pneumoconiosis." 30 U.S.C. Sec. 901(a); 20 C.F.R. Sec. 718.204(a). Specifically, the claimant must show "that his pneumoconiosis was at least a contributing cause of his totally disabling respiratory impairment." Robinson, 914 F.2d at 38; Hobbs I, 917 F.2d at 791-92 (same). Accordingly, we ask whether
22
the claimant's coal mining [was] a necessary condition of his disability. If the claimant would have been disabled to the same degree and by the same time in his life if he had never been a miner, then benefits should not be awarded.
23
Robinson, 914 F.2d at 38 (emphasis added) (citing Shelton v. Director, OWCP, 899 F.2d 690, 693 (7th Cir.1990) ("A miner is not entitled to benefits if by reason of his heavy smoking or some other activity or condition of his that is not itself mining, he would have become totally disabled ...."));8 see Freeman United Coal Mining Co. v. Foster, 30 F.3d 834, 838-39 (7th Cir.1994) (rejecting use of a disability unrelated to extant simple pneumoconiosis to support an award of black lung benefits), cert. denied, --- U.S. ---, 115 S. Ct. 1399, 131 L. Ed. 2d 287 (1995).
24
Thus, if the record before the ALJ contains substantial evidence to support the conclusion that Ballard's cigarette smoking and resulting lung cancer would have disabled him to the same degree by the same time in his life had he never been a miner, he is not entitled to black lung benefits. Based upon our review of the record, the ALJ's careful consideration of the pulmonary function and blood gas tests, Ballard's work history and testimony, and the professional opinions of ten physicians, we conclude that substantial evidence in the record supports the ALJ's determination that Ballard failed to establish that pneumoconiosis was a contributing factor in his total disability.
25
We look first to the pulmonary function studies administered prior to the pneumonectomy and note that they reflect minimal, if any, respiratory impairment, as the ALJ so found. Not surprisingly, following the left pneumonectomy performed by Dr. Sampath on June 8, 1990, Ballard's tests revealed a precipitous drop in pulmonary function. This data supports the ALJ's conclusion that the disability demonstrated by Ballard's reduced pulmonary function was due to the pneumonectomy and not to his simple pneumoconiosis.
26
Ballard's own testimony further supports the ALJ's conclusion that he had suffered no impairment prior to the pneumonectomy. Ballard testified that prior to his pneumonectomy he never missed a day of work because of breathing problems. However, he testified that he did miss work because of breathing problems after the pneumonectomy.
27
The ALJ further recognized the extensive hospital reports and medical notes regarding Ballard's deteriorated condition post-surgery. He reviewed the written reports and depositions of Drs. Ranavaya, Zaldivar, Cinco, Ahmed, Hansbarger, Caffrey, Chang, Sampath, Crisalli, and Fino to detect any evidence of a causal connection between pneumoconiosis and Ballard's total disability. Three of these physicians, Drs. Ranavaya, Cinco, and Ahmed, diagnosed pneumoconiosis. Dr. Ranavaya, who performed pulmonary function studies on Ballard shortly after his surgery and on July 17, 1992, following Ballard's application for black lung benefits, attributed Ballard's impairment primarily to the pneumonectomy, but suggested perhaps that pneumoconiosis had affected Ballard's remaining lung.9 Dr. Cinco, a consulting pathologist, diagnosed coal workers' pneumoconiosis, but articulated no causal connection between pneumoconiosis and Ballard's postoperative total disability.10 Finally, Dr. Ahmed, another consulting pathologist, who discerned evidence of simple pneumoconiosis in two of the fifteen slide samples he reviewed, was critical of the "grossly insufficient" amount of lung tissue sampled for the purpose of determining the presence or absence of the disease. (J.A. 437.) Relying on the same samples, he nevertheless stated that Ballard "suffered significant pulmonary impairment that was certainly aggravated by coal mine dust exposure." (J.A. 437.)
28
Five of the remaining physicians expressly concluded that Ballard's disability was caused by the pneumonectomy. In particular, Dr. Zaldivar, one of Ballard's initial examining physicians who also performed pulmonary function studies, stated that Ballard was not disabled prior to the surgery and that the lung cancer, caused by smoking, was wholly unrelated to coal mine employment. Similarly, Dr. Hansbarger, following his review of all the materials in Ballard's file, concluded that Ballard's pulmonary impairment was due to the carcinoma that necessitated the pneumonectomy. Dr. Caffrey's opinion was also unequivocal:
29
It is my opinion that the patient does not show the necessary findings to make a diagnosis of coal workers' pneumoconiosis or any other occupational pneumoconiosis. The findings from this left pneumonectomy specimen, in my opinion, show a large mucoepidermoid carcinoma which has definitely no cause and [effect] relationship with coal mine work. [Ballard's] centrilobular emphysema and mild chronic bronchitis are due to his long history of smoking cigarettes, in my opinion.
30
(J.A. 203.) In like manner, Dr. Crisalli concluded that "Ballard has significant impairment because of his left pneumonectomy necessitated by his cancer of the lung. The lung cancer was not in any way contributed to or caused by his coal dust exposure." (J.A. 219.) Finally, Dr. Fino similarly concluded that pneumoconiosis did not cause Ballard's total disability:
31
Prior to this man's lung surgery he had no pulmonary disability.
32
... Subsequent to his lung surgery he developed a pulmonary disability because the lung was removed. The lung was removed due to lung cancer, and the lung cancer was from cigarette smoking. Simple coal workers' pneumoconiosis or coal mine dust inhalation played no role in his cancer and subsequent removal of the left lung.
33
... It is my opinion that this man would be as disabled as I find him now had he never stepped foot in the coal mines.
34
(J.A. 108.) (emphasis added).
35
The clearly articulated opinions of both examining and consulting physicians support the ALJ's conclusion that "pneumoconiosis ... is wholly unrelated to [Ballard's] totally disabling condition, which was caused by the pneumonectomy necessitated by [Ballard's] cigarette-induced lung cancer." (J.A. 51.) The otherwise inexplicable sharp drop in Ballard's pulmonary function results and non-qualifying blood gas studies, as well as Ballard's work history and testimony, also bolster the ALJ's conclusion. We therefore conclude that the ALJ's decision to deny Ballard black lung benefits is supported by substantial evidence in the record and is in accordance with the law.
III.
36
Based upon our review of the record, we conclude that the ALJ did not err in according weight to the opinions of Drs. Zaldivar, Fino, Sampath, Chang, Hansbarger, Caffrey, and Crisalli and that the ALJ's decision finding that pneumoconiosis was not a contributing cause of Ballard's disability is supported by substantial evidence. We therefore reverse the decision of the BRB and remand for entry of an order consistent with this opinion.
37
REVERSED AND REMANDED.
BUTZNER, Senior Circuit Judge, dissenting:
38
At the time of the administrative hearing the evidence firmly established that Laymond Ballard was totally disabled because of a respiratory or pulmonary impairment, that he had pneumoconiosis arising from his coal mining employment, and that his exposure to coal dust did not cause his cancer. The only remaining issue is whether his pneumoconiosis contributed to his disability.
39
To establish that Ballard's pneumoconiosis did not contribute to his disability, the ALJ relied heavily on the fact that before Ballard had his left lung removed he was able to work in the mines. Several of the doctors based their opinions about causation on the same reasoning.
40
Both the Board, which reversed the ALJ, and the Director, who supports Ballard, point out that the ALJ's reasoning is contrary to law. The relevant inquiry for determining whether a coal miner is disabled is his condition on the date of his hearing before the ALJ. Cooley v. Island Creek Coal Co., 845 F.2d 622, 624 (6th Cir.1988); Coffey v. Director, OWCP, 5 BLR 1-404, 1-407 (BRB 1982). The statute and the regulations are silent regarding the relevant time for assessing a miner's disability, and we owe no deference to the Board's views on this subject. See Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268, 278 n.18, 101 S. Ct. 509, 515 n.18, 66 L. Ed. 2d 446 (1980). Nevertheless, we are not left without guidance. The Director's reasonable interpretation of the statute and regulations is entitled to substantial judicial deference. See Pauley v. BethEnergy Mines, 501 U.S. 680, 696-97, 111 S. Ct. 2524, 2533-34, 115 L. Ed. 2d 604 (1991); See v. Washington Met. Area Transit Authority, 36 F.3d 375, 383 (4th Cir.1994).
41
Apparently convinced by Cooley, 845 F.2d at 624, the Director has taken the position that the relevant time for assessment of disability is the date of the hearing. I believe we should accept this view. The fact that Ballard could work in the mines before his operation, but not afterwards, does not preclude benefits. Whether his pneumoconiosis contributed to his disability must be assessed at the time of the hearing.
42
The ALJ relied in part on the opinions of Drs. Zaldivar, Chang, and Sampath. The doctors offered little, if any, information on the sole issue in this case. They all concluded that since the claimant's cancer was caused by smoking, it did not arise from coal mine employment. But that is not an issue. Ballard does not claim that his cancer arose from his coal mining employment.
43
Other sources of the ALJ's denial of benefits are the opinions of Drs. Fino and Crisalli. Neither of these doctors, however, found that Ballard had pneumoconiosis. Their failure to diagnose pneumoconiosis is contrary to both the substantial evidence that he has pneumoconiosis and the explicit finding of the ALJ, which was confirmed by the Board. Their opinions, therefore, have little or no value on the critical issue in this case--whether pneumoconiosis contributed to Ballard's disability. In words quoted from the Director's brief supporting Ballard, "it seems an inescapable conclusion that such an opinion can have no probative value, since a doctor who begins from the erroneous assumption that a miner does not have pneumoconiosis must necessarily conclude that pneumoconiosis was not a cause of disability."
44
Caution innate to the judiciary counsels us never to say "no probative value," but it is unlikely that such opinions can rise to the dignity of substantial evidence. In this circuit we have phrased this sound evidentiary rule by holding that "such opinions are not worthy of much, if any, weight." Grigg v. Director, OWCP, 28 F.3d 416, 419-20 (4th Cir.1994); accord Toler v. E. Associated Coal Co., 43 F.3d 109, 115-16 (4th Cir.1995). Though expressed in different ways in the application of different black lung regulations, this principle apparently has universal support in those circuits that have considered it. See, e.g., Skukan v. Consolidation Coal Co., 993 F.2d 1228, 1233 (6th Cir.1993), vacated on other grounds, --- U.S. ----, 114 S. Ct. 2732, 129 L. Ed. 2d 854 (1994); Peabody Coal Co. v. Shonk, 906 F.2d 264, 271 (7th Cir.1990); Garcia v. Director, OWCP, 869 F.2d 1413, 1417 (10th Cir.1989). In fairness to the ALJ, it should be noted that he did not have Grigg to guide him on the issue of causation, because we decided Grigg after the ALJ wrote his opinion.
45
I cannot subscribe to the notion that Hobbs v. Clinchfield Coal Co., 45 F.3d 819 (4th Cir.1995), modifies or in any other way encroaches on the logical, common sense, evidentiary rule of Grigg. Hobbs II can best be understood by taking into account that the ALJ and the Board decided it before our opinion in Grigg.
46
In Hobbs II, two of the doctors stated that Hobbs did not have "coal workers' pneumoconiosis," although he did have bronchitis and a chronic productive cough resulting from exposure to coal dust. They concluded that his respiratory impairment did not contribute to his total disability which was caused by obesity and arthritis. 45 F.3d at 820. The ALJ found that Hobbs did have pneumoconiosis, but he did not find that he had a total respiratory disability. Nevertheless, the ALJ credited the opinions of the doctors that pneumoconiosis did not contribute to Hobbs' disability and denied benefits. The Board affirmed. We decided Grigg pending Hobbs' petition for review of the Board's adverse decision.
47
In his petition for review, Hobbs, relying on Grigg, asserted that the Board erred in crediting the doctors' opinions on causation. The court rejected Hobbs' argument because the doctors' attribution of Hobbs' respiratory impairment to coal dust satisfied the legal definition of pneumoconiosis. Citing Grigg, the court held that the doctors were qualified to express an opinion on causation. However, far from detracting from Grigg 's authority, the Hobbs II court recognized the validity of the evidentiary principle that undergirds Grigg.
48
There is another aspect of Hobbs II that distinguishes it from the Board's decision that we are now reviewing. In Hobbs II, neither the ALJ nor the Board found that Hobbs had a totally disabling respiratory impairment. The Board wrote: "[The] Administrative Law Judge ... determined that [the evidence] was insufficient to establish that claimant suffered from a totally disabling respiratory impairment." Hobbs v. Clinchfield Coal Co., BRB No. 92-1161 BLA at 2 (Sept. 1, 1993) (unpublished). It was, therefore, impossible to say that his pneumoconiosis contributed to his total disability. See Jewell Smokeless Coal Corp. v. Street, 42 F.3d 241, 243-45 (4th Cir.1994). This is in sharp contrast to the situation we are presently reviewing, for it is uncontested that Ballard has a totally disabling respiratory impairment.
49
The Board stated that the doctors whom the ALJ credited failed to diagnose Ballard's pneumoconiosis although the ALJ found its existence established. These opinions, therefore, were of little probative value on the issue of causation. See Grigg, 28 F.3d at 419-20.
50
The Board also pointed out that Dr. Ranavaya diagnosed pneumoconiosis in Ballard's remaining lung. The doctor found that this lung is less than normal, reflecting a mild pulmonary impairment of approximately 20 percent disability, which he concluded was due to exposure to coal dust. A pathologist, Dr. Ahmed, concluded that Ballard's significant pulmonary impairment was aggravated by coal dust exposure and that pneumoconiosis would prevent Ballard from performing his usual work in the mines. The Board determined that Ballard's total respiratory disability is due in part to pneumoconiosis. In this respect, the Board relied on Robinson v. Pickands Mather & Co., 914 F.2d 35, 38 (4th Cir.1990), in which we held: "To be entitled to benefits, a claimant must prove by a preponderance of the evidence that his pneumoconiosis was at least a contributing cause of his totally disabling respiratory impairment."
51
Hobbs II has added a wrinkle to our consideration of causation. It held that a doctor who diagnosed legal pneumoconiosis is qualified to give an opinion on whether the pneumoconiosis contributed to total disability even though the doctor detected no medical pneumoconiosis. Because Drs. Hansbarger and Caffrey diagnosed conditions that arguably fall within the definition of legal pneumoconiosis, they may be qualified to give an opinion on whether Ballard's legal pneumoconiosis contributed to his total respiratory disability.
52
Dr. Crisalli, one of the company's witnesses, insisted that Ballard's mild impairment to his remaining lung was caused by smoking-induced bronchitis, not pneumoconiosis. Nevertheless, he acknowledged that the removal of Ballard's right lung was not the sole cause of his total respiratory or pulmonary disability. He explained that there were two causes of Ballard's impairment, chronic bronchitis and the effect of the lung surgery. He added that Ballard "cannot undertake the heavy manual labor in the mines because of his pulmonary function impairment which is related to his chronic bronchitis and his pneumonectomy for lung cancer." Even the company's own witness recognized that the impairment of Ballard's left lung--which he called chronic bronchitis and others called pneumoconiosis--contributed to Ballard's total pulmonary disability.
53
Unfortunately, the ALJ did not have the benefit of Grigg and Hobbs when he evaluated the evidence to determine the sole question in this case, causation. In my opinion these cases are essential to understanding the complexities that have encrusted this issue.
54
Dissenting, I would not reverse the Board and deny benefits. Instead, I would vacate the Board's opinion and remand the claim to the ALJ with instructions to re-evaluate the evidence at the time of the hearing in light of Grigg and Hobbs II.
1
Pneumoconiosis is classified as "simple" or "complicated". Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 7, 96 S. Ct. 2882, 2888, 49 L. Ed. 2d 752 (1976). Simple pneumoconiosis is "generally regarded by physicians as seldom productive of significant respiratory impairment." Id. Complicated pneumoconiosis, however, involves progressive "massive fibrosis as a complex reaction to dust and other factors" and "usually produces significant pulmonary impairment and marked respiratory disability." Id
2
Pneumonectomy refers to the excision of lung tissue, especially of an entire lung. Dorland's Illustrated Medical Dictionary 1316 (28th ed.1994). Here, Ballard's left lung was removed in its entirety
3
Although Ballard had worked for other coal mine operators, Dehue was Ballard's most recent coal mine employer of not less than one year. Therefore it is the responsible operator for purposes of the Act
4
The record discloses no indication that either Dr. Sampath or Dr. Chang premised an opinion on the absence of pneumoconiosis. Furthermore, their observations were consistent with the ALJ's findings. Dr. Sampath performed Ballard's pneumonectomy and reported that Ballard's preoperative physical examination, including arterial blood gases and pulmonary function test, was normal. In Ballard's discharge report, Dr. Sampath simply noted the patient's carcinoma in the left lung without surmising the cause of Ballard's condition. In the same vein, Dr. Chang, the pathologist who biopsied Ballard's lung tissue following the pneumonectomy, observed "large mucoepidermal carcinoma" as well as "moderated depositions of the anthracotic pigments" in the lung parenchyma (J.A. 192), without suggesting a cause or implying that Ballard was not impaired or did not suffer from pneumoconiosis. Therefore, the ALJ appropriately relied on the evidence of causation gleaned from their medical reports
5
Dr. Crisalli stated in his report:
[Ballard] does have chronic bronchitis which is secondary to his smoking history. Based on the pre-operative pulmonary function studies, Mr. Ballard retains the pulmonary functional capacity to perform his previous job in the coal mines. Post left pneumonectomy, Mr. Ballard has a moderate pulmonary function impairment.
Lastly, Mr. Ballard has significant impairment because of his left pneumonectomy necessitated by his cancer of the lung. The lung cancer was not in any way contributed to or caused by his coal dust exposure.
(J.A. 219.)
6
Section 718.201 provides that
[f]or the purpose of the Act, pneumoconiosis means a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment. This definition includes, but is not limited to, coal workers' pneumoconiosis, anthracosilicosis, anthracosis, anthrosilicosis, massive pulmonary fibrosis, progressive massive fibrosis, silicosis or silicotuberculosis, arising out of coal mine employment.
7
Section 921(c)(1) of the Act and its interpretive regulations, 20 C.F.R. Sec. 718.203(b), allow a petitioner a presumption that his pneumoconiosis arose out of coal mine employment if the claimant was employed for ten or more years in one or more coal mines. 30 U.S.C. Sec. 921(c)(1). It is undisputed that Ballard was employed for ten years or more in one or more coal mines; therefore he enjoyed the presumption that his pneumoconiosis arose out of coal mine employment. 20 C.F.R. Sec. 718.203(b)
8
By adopting the "necessary condition" analysis of the Seventh Circuit in Robinson, we addressed those claims, such as the one before us today, in which pneumoconiosis has played only a de minimis part. Robinson, 914 F.2d at 38 n.5
9
The first time Dr. Ranavaya examined Ballard was more than two months after the removal of his left lung. Although he noted the presence of pneumoconiosis, he specified that "[o]bviously, the largest part of pulmonary impairment is due to the pneumonectomy that was performed for the lung cancer." Nevertheless he observed that "the remaining lung is less than normal in that the FEV1/FVC ratio is 67%, which reflects a mild pulmonary impairment." (J.A. 433.) Dr. Ranavaya concluded, "[i]t is therefore medically reasonable to conclude that Mr. Ballard has an occupational pneumoconiosis most likely due to his occupational exposure to dust in the coal mining and that he has pulmonary insufficiency as described." (J.A. 433.)
10
In his report, Dr. Cinco "found evidence of pulmonary anthracosis with macular lesions, sufficient to warrant a diagnosis of coal workers' pneumoconiosis of the dust reticulation type." (J.A. 423.) He made no connection, however, between his diagnosis and any disability suffered by Ballard. Moreover, Dr. Cinco concluded that "the tumor in this case was not related to the coal workers' pneumoconiosis." (J.A. 423.) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1555673/ | 36 So.3d 655 (2010)
BLACK
v.
KELSEY.
No. SC10-819.
Supreme Court of Florida.
May 4, 2010.
Decision Without Published Opinion Review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555676/ | 36 So.3d 517 (2009)
ADVANTAGE SALES OF ALABAMA, INC.
v.
Carol S. CLEMONS.
PMA Insurance Group
v.
Carol S. Clemons.
Liberty Mutual Insurance Company
v.
Carol S. Clemons.
2070113, 2070160 and 2070199.
Court of Civil Appeals of Alabama.
August 1, 2008.
Rehearing Applications Denied January 23, 2009.
Certiorari Denied November 13, 2009 Alabama Supreme Court 1080544.
*519 Joseph H. Driver and Donald B. Kirkpatrick II of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant Advantage Sales of Alabama, Inc.
Matthew C. Williams and W. Walker Moss of Estes, Sanders & Williams, LLC, Birmingham, for appellant PMA Insurance Group.
J. Wesley Hughes of The Law Office of Earl H. Lawson, Jr., Birmingham, for appellant Liberty Mutual Insurance Company.
Kenneth D. Haynes of Haynes & Haynes, P.C., Birmingham, for appellee.
PER CURIAM.
Advantage Sales of Alabama, Inc. ("Advantage"), PMA Insurance Group ("PMA"), and Liberty Mutual Insurance Company ("Liberty") appeal from a judgment of the Jefferson Circuit Court finding Carol S. Clemons to be permanently and totally disabled as a result of injuries she sustained in the line and scope of her employment and apportioning liability for the payment of benefits as a result of those injuries. This is the second time that this case has been before this court. See Advantage Sales of Alabama, Inc. v. Clemons, 979 So.2d 114 (Ala.Civ.App.2007)("Clemons I"). In Clemons I, we set forth the following relevant procedural history:
"Carol S. Clemons sued her former employer, Advantage Sales of Alabama, Inc. (`Advantage), seeking to recover workers' compensation benefits based on alleged work-related injuries that she sustained on June 20, 2000, February 23, 2001, and March 26, 2002, while she was employed by Advantage. Clemons claimed that she had injured her right shoulder on June 20, 2000, that she had developed carpal tunnel syndrome in her right arm and wrist on February 23, 2001, and that she had sustained injuries to her elbows on March 26, 2002. Advantage answered and denied liability.
"At the time of the June 20, 2000, and the February 23, 2001, injuries, Advantage was insured by Legion Insurance Company (`Legion'). On March 28, 2002, Legion was ordered into rehabilitation by a Pennsylvania trial court. On July 28, 2003, the Pennsylvania trial court declared Legion insolvent and entered *520 an order of liquidation. As a result of Legion's insolvency, the Alabama Insurance Guaranty Association (`AIGA') assumed Legion's obligations with respect to Clemons's June 20, 2000, and February 23, 2001, claims against Advantage. See § 27-42-8(a)(2), Ala. Code 1975. On February 23, 2004, Clemons and Advantage entered into a consent order settling all workers' compensation claims related to Clemons's June 20, 2000, injury to her shoulder and Clemons's February 23, 2001, injury to her right arm and wrist. The order left the issue of future medical benefits open.
"On March 21, 2005, Clemons filed her first amended complaint in which she alleged that in or about July 2004 she developed carpal tunnel syndrome in both of her hands and wrists. Clemons named Liberty Mutual Insurance (`Liberty') and The PMA Insurance Group (`PMA') as defendants and asked the court to determine which carrier was responsible for the payment of Clemons's workers' compensation claims.1 Both Liberty and PMA were workers' compensation insurance carriers for Advantage during the time Clemons allegedly suffered her injuries. On June 1, 2005, Clemons amended her complaint a second time to add AIGA as a defendant because, she asserted, she was uncertain whether the carpal tunnel syndrome she alleged had developed in or about July 2004 was a recurrence of her February 2001 injury or was a new injury.
"On August 23, 2005, AIGA filed a motion for a summary judgment, and on October 12, 2005, PMA filed a motion for a summary judgment. On January 24, 2006, the trial court entered a summary judgment in favor of AIGA; the trial court did not rule on PMA's summary-judgment motion. Following the presentation of ore tenus evidence, the trial court entered a detailed final judgment on May 24, 2006, in which it found Clemons to be permanently and totally disabled as the result of her work-related injuries. The trial court apportioned the payment of compensation benefits equally between Liberty and PMA. On June 14, 2006, Advantage appealed.
"On June 21, 2006, PMA filed a postjudgment motion in which it argued that the trial court had erred in apportioning liability between successive insurance carriers in violation of the `last injurious exposure' rule. On August 1, 2006, the trial court entered an amended final judgment in which it granted PMA's postjudgment motion, found Clemons's July 2004 injury to be a new injury or condition that occurred during Liberty's policy coverage, and reapportioned liability to hold Liberty responsible for payment of Clemons's medical bills related to the July 2004 injury. PMA and Liberty timely appealed. This court granted a joint motion filed by Advantage, PMA, and Liberty to consolidate the three appeals.
"1 The record indicates that PMA insured Advantage at the time of Clemons's March 2002 injury and that Liberty became Advantage's workers' compensation insurance carrier in July 2004."
Clemons I, 979 So.2d at 115-17 (one footnote omitted).
In Clemons I, the trial court relied on evidence indicating that Clemons suffered from depression when it found Clemons to be permanently and totally disabled. The issue whether Clemons's depression was a compensable psychological injury was not raised in the pleadings or expressly or impliedly tried by the parties. Therefore, this court reversed the judgment of the trial court based on the trial court's consideration of evidence of a psychological injury. We remanded the case for the *521 trial court to make a disability determination without considering Clemons's claim of depression. 979 So.2d at 119.
On remand, the trial court entered an order on October 16, 2007, in which it found Clemons to be permanently and totally disabled as the result of her work-related injuries. In its October 16, 2007, judgment on remand, the trial court noted that, in making its judgment, it had reconsidered the ore tenus evidence with the exception of the evidence pertaining to Clemons's depression. The trial court's allocation of liability between PMA and Liberty for the payment of benefits remained unchanged. Advantage, PMA, and Liberty timely appealed. We have consolidated the appeals.
The evidence presented to the trial court reveals the following pertinent facts. At the time of the final hearing, Clemons was 52 years old and had a high school education. In or about May 1986, Clemons began working for Advantage as a retail sales representative. Clemons explained that as a retail sales representative she distributed new items to grocery stores and made sure that those items were properly placed on the grocery-store shelves. Clemons explained that the physical demands of her job required her to lift products on and off of store shelves. Clemons testified that she handled a wide range of items that included peanut butter, margarine, and large bags of dog food.
In 1992 Clemons was promoted to a supervisor position. Clemons testified that as a supervisor she continued to perform many of the same duties but also supervised the work of others in Alabama, Georgia, and Mississippi. After working nine years as a supervisor, Clemons returned to her job as a retail sales representative due to restructuring within the company. Clemons worked as a retail sales representative until February 8, 2005.
Over the course of her employment with Advantage, Clemons sustained several work-related injuries. Clemons testified that in June 2000 she hurt her right shoulder while re-shelving pet food in a grocery store. Clemons was eventually released to return to work with limited restrictions. Clemons's claim for workers' compensation benefits for her June 2000 shoulder injury was resolved by a February 23, 2004, consent judgment that left open future medical expenses associated with Clemons's shoulder injury. In February 2006, Dr. Jeffery Davis performed surgery on Clemons's shoulder. Clemons was released to return to work from that surgery approximately one week before the trial in this matter.
Clemons testified that after she injured her right shoulder she experienced consistent pain in both of her arms. Clemons went to Dr. Tracy Ray for treatment of the pain in her arms. Dr. Ray referred Clemons to Dr. Marcus Carter to conduct tests to determine if Clemons had carpal tunnel syndrome. In or around March 2001, after conducting tests on her arms, Dr. Carter diagnosed Clemons with bilateral carpal tunnel syndrome. Clemons testified that Dr. Carter decided that Clemons's right hand needed immediate surgery. Dr. Joseph Sherrill performed surgery in May 2001 on Clemons's right wrist and gave her a splint to wear on her left hand. Clemons testified that she later returned to work performing her same job duties. Clemons's claim for workers' compensation benefits as a result of her carpal tunnel syndrome was resolved by a February 23, 2004, consent judgment.
Clemons testified that on March 26, 2002, while performing her job duties, she hit her right elbow on a wooden pallet. That same day, Clemons notified her supervisor *522 of the injury and sought treatment at a hospital emergency room. Clemons received treatment for the injury to her elbow from Dr. Cherie Miner, who treated Clemons conservatively. Clemons explained that she later developed pain in her left elbow as the result of overcompensating for her injured right elbow. Clemons described the pain in her elbows as severe and testified that she was unable to sleep as a result of the pain. Clemons stated that she continued to work during this time.
Dr. Miner referred Clemons to Dr. Samuel Goldstein, an orthopedic surgeon, when it appeared that conservative treatment would no longer work. Clemons testified that Dr. Goldstein performed surgery on her right elbow in July 2002 and later performed surgery on her left elbow in October 2002. On April 8, 2003, Dr. Goldstein concluded that Clemons had reached maximum medical improvement ("MMI") with regard to her elbow injuries.
A functional-capacity evaluation ("FCE") performed on Clemons by Dr. Roland Rivard on March 20, 2003, was admitted into evidence at trial. The FCE recommended work restrictions that included lifting no more than 36 pounds and lifting no more than 25 pounds on a frequent basis. Further, the FCE stated that Clemons was not able to perform "handling" in a continuous repetitive fashion but that she could handle items for two-thirds of an eight-hour shift.[1] Clemons testified that the restrictions set forth in the FCE remained in place at the time of trial.
Clemons testified that she returned to work as a retail sales representative on September 22, 2003, after she recovered from the surgeries to her elbows. According to Clemons, she worked six-hour days when she returned to work. Clemons stated that it was difficult to perform her job duties when she returned to work.
In July 2004, Clemons returned to Dr. Goldstein, complaining of pain in her arms. Dr. Goldstein diagnosed Clemons with mild bilateral carpal tunnel syndrome. Clemons testified that she underwent conservative treatment, and on February 8, 2005, Dr. Goldstein ordered her to stop working. On January 25, 2006, Dr. Goldstein concluded that Clemons had reached MMI.
Clemons testified that she experiences pain in her arms and hands daily and that she is no longer capable of cleaning her home or working in the yard. Clemons explained that she experiences numbness in her arms if she holds a telephone for an extended period of time or if she sleeps on her arms the wrong way. Clemons testified that her hands cramp and her arms hurt when she grips the steering wheel of her vehicle. Clemons explained that she has trouble sleeping at night because of the pain in her arms and hands. Clemons estimated that she sleeps less than four hours a night. Clemons testified that she has managed the pain by taking Bextra, an anti-inflammatory prescription medication, and ibuprofen, a pain reliever, and by applying a topical cream to her elbows. Clemons also uses slings, hand braces, and a transcutaneous electrical nerve stimulation ("TENS") unit to manage her pain. The record indicates that Clemons had been prescribed Percocet for pain related to her shoulder injury.
Clemons testified that the pain in her arms and hands at the time of trial was greater than the pain she experienced in *523 2003, when Dr. Rivard conducted the FCE. At the time of trial, no other FCE had been conducted. Clemons testified that she did not believe that she could return to work performing the same job duties as she did in September 2003. Clemons stated that she spoke to Advantage on April 7, 2006, regarding job availability and that Advantage had no jobs available that she could physically perform.
Julia Bailey, a retail sales merchandiser employed by Advantage, testified that she worked with Clemons from September 2003 to February 2005. Bailey testified that during that time she observed that it was difficult for Clemons to reach over her head and lift heavy objects. Bailey testified that Clemons found it difficult to move shelves and products. Bailey stated that Clemons asked for her assistance moving shelves and heavier items. Bailey described the job she and Clemons performed as strenuous. Clemons explained that it required lifting items as light as 3 pounds and as heavy as 50 or 60 pounds.
Dr. Goldstein testified by deposition that he first met with Clemons on June 24, 2002, to evaluate Clemons's right and left elbows. According to Dr. Goldstein, his physical examination of Clemons revealed lateral epicondylitis, also known as tennis elbow, in her right and left elbows. On July 10, 2002, Dr. Goldstein performed surgery on Clemons's right elbow, and on October 31, 2002, he performed surgery on Clemons's left elbow. Dr. Goldstein testified that at a March 31, 2003, postoperation visit he recommended that Clemons lift no more than 36 pounds and that she lift no more than 25 pounds frequently. Dr. Goldstein also advised Clemons not to perform continuous, repetitive activities. Dr. Goldstein assigned a 3% impairment rating to the body as a whole based on Clemons's injury to her elbows.
On July 20, 2004, Dr. Goldstein treated Clemons, who, at that time, complained of bilateral wrist and arm pain. Dr. Goldstein testified that his examination of Clemons at that time revealed symptoms consistent with carpal tunnel syndrome. Dr. Goldstein diagnosed Clemons with carpal tunnel syndrome and prescribed Celebrex. Dr. Goldstein testified that Clemons continued to complain of bilateral arm and wrist pain at her August 17, 2004, follow-up appointment. According to Dr. Goldstein, his physical examination of Clemons during the follow-up appointment revealed that her right wrist remained unchanged with regard to her carpal tunnel syndrome and that her left wrist had improved. Dr. Goldstein replaced Clemons's prescription for Celebrex with a prescription for Bextra.
Dr. Goldstein testified that at a September 28, 2004, appointment, Clemons reported that the pain in her right wrist was less severe while the pain in her left wrist was more severe. According to Dr. Goldstein, compression tests on Clemons's right and left wrists were positive for carpal tunnel syndrome. Dr. Goldstein opined that Clemons continued to suffer from bilateral carpal tunnel syndrome. Clemons returned to see Dr. Goldstein on March 8, 2005, and continued to complain of severe wrist pain. Following an electromyogram and nerve-conduction studies, Clemons met with Dr. Goldstein on April 5, 2005. Dr. Goldstein testified that the results of the electromyogram and nerve-conduction studies were consistent with mild carpal tunnel syndrome. Dr. Goldstein explained that he did not recommend surgery based on Clemons's mild case of carpal tunnel syndrome.
According to Dr. Goldstein, the work activities that Clemons was exposed to after her May 2001 surgery, which was intended to relieve the carpal tunnel syndrome *524 in her right wrist, contributed to her condition when she sought treatment for bilateral wrist pain in 2004. Dr. Goldstein testified that he believed that Clemons's 2004 complaint of pain in her right and left wrists was "a recurrent problem, which was an exacerbation of a prior problem."
Dr. Goldstein testified that Clemons's 2002 elbow injuries were separate and distinct from her carpal tunnel syndrome. Dr. Goldstein explained that the pain Clemons experiences from the lateral epicondylitis in her elbows and the pain Clemons feels from the bilateral carpal tunnel syndrome are "very different."
Dr. Goldstein testified that given the requirements of Clemons's job at Advantage and her history of carpal tunnel syndrome and epicondylitis, it was not advisable for Clemons to continue performing the same type of work. Dr. Goldstein testified that if Clemons were to seek employment, she should seek employment in a vocation that does not require repetitive work. According to Dr. Goldstein, any repetitive activity could exacerbate Clemons's carpal tunnel syndrome.
Jo Spradling, a vocational consultant hired by Clemons, testified by deposition. Spradling met with Clemons on July 30, 2004, and on December 20, 2004. Spradling opined that Clemons could perform work at a sedentary level. However, based on the results of academic achievement tests administered to Clemons, Clemons's employment history, Clemons's medical history, Clemons's age, and the March 20, 2003, FCE, Spradling opined that Clemons was 100% vocationally disabled. According to Spradling, there were no jobs for which Clemons was qualified in a competitive labor market given her age, her educational background, her below-average scores on the academic achievement tests, her inability to perform repetitive-type activities, and her chronic pain. Spradling testified that she did not believe that Clemons could be vocationally retrained.
Advantage submitted as evidence a report by Russ Gurley, a vocational consultant, who conducted a vocational evaluation of Clemons on October 22, 2004, at Advantage's request. Citing the March 20, 2003, FCE, Clemons's medical records, and Clemons's employment history, Gurley concluded that Clemons sustained a 10% to 20% vocational loss as a result of her injuries. In addition to the report, Advantage submitted a copy of a March 27, 2006, letter from Gurley to Advantage regarding a second meeting Gurley had with Clemons on March 14, 2006. In his March 27, 2006, letter, Gurley opined that Clemons continued to have a 10% to 20% vocational disability "based on her ability to work within the restrictions recommended by the FCE that limited Ms. Clemons's handling activities."
In its October 16, 2007, judgment on remand, the trial court, noting this court's mandate not to consider Clemons's claim seeking workers' compensation benefits based, in part, on her depression, made the following pertinent findings of fact:
"50. The evidence is undisputed that, before [Clemons's] work-related injuries with [Advantage], she was an active woman who has worked her entire life and the Court finds credible [Clemons's] testimony that if she could work she would prefer to work.
"51. Since her work-related injuries, [Clemons] has progressively become saddled with pain and an inability to perform some of the simple tasks that basic living requires.
"52. The Court is especially impressed with the credibility of [Clemons]. Her physical appearance at trial, personal demeanor, voice inflection, *525 forthrightness of response on the witness stand, sincerity of expression, congeniality, and modesty were observed carefully by the Court in connection with the content of her testimony.
"53. In addition to what already has been set forth hereinabove, [Clemons] gave testimony that the Court found compelling, to the end that she is totally disabled from gainful employment and permanently in that condition.
"54. By stipulation, the Court received into evidence the reports of each party's vocational expert and the deposition testimony of [Clemons's] expert. [Clemons's] expert, Jo Spradling, who reviewed all of [Clemons's] pertinent medical records, opined that [Clemons] was permanently and totally disabled from any competitive employment, and that she is not able to maintain the persistence, pace of work and attendance necessary for any type of competitive employment. The Court finds Ms. Spradling's opinion to be most consistent with the medical testimony and other current evidence of [Clemons's] inability to work in gainful employment.
"55. On the issue of the relative degree of [Clemons's] disability from engaging in reasonably gainful employment, the Court is persuaded in finding that the disability is total, and that the disability is permanent. During the trial, the Court availed itself of the opportunity to observe the demeanor of [Clemons], to observe the movements and mannerisms of [Clemons], and to listen to the inflection and tone of her voice. ...
"56. The Court finds that Defendant PMA Insurance Group was the workers' compensation insurance carrier for [Advantage] from May 1, 2001, until June 30, 2004.
"57. The Court finds that Defendant Liberty Mutual was the workers' compensation insurance carrier for [Advantage] beginning June 30, 2004, until June 30, 2005.
"58. The Court finds that [Clemons's] bi-lateral carpal tunnel condition, diagnosed on July 20, 2004, is a new injury or an aggravation, rather than a reoccurrence of the February 23, 2001, and/or March 26, 2002, work related injuries.
"59. The Court finds that [Clemons's] carpal tunnel condition contributes to [her] overall disability."
Our standard of review in workers' compensation cases is as follows:
"When this court reviews a trial court's factual findings in a workers' compensation case, those findings will not be reversed if they are supported by substantial evidence. § 25-5-81(e)(2), Ala.Code 1975. Substantial evidence is `evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Further, this court reviews the facts `in the light most favorable to the findings of the trial court.' Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala. Civ.App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996). This court has also concluded: `The [1992 Workers' Compensation] Act did not alter the rule that this court does not weigh the evidence before the trial court.' Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995). However, our review as to purely legal issues is without a presumption of correctness. See Holy Family Catholic School v. Boley, *526 847 So.2d 371, 374 (Ala.Civ.App.2002) (citing § 25-5-81(e)(1), Ala.Code 1975)."
Reeves Rubber, Inc. v. Wallace, 912 So.2d 274, 279 (Ala.Civ.App.2005).
On appeal, Advantage contends that the trial court erred by awarding benefits outside of the schedule of benefits listed in § 25-5-57(a)(3), Ala.Code 1975, of the Workers' Compensation Act, § 25-5-1 et seq., Ala.Code 1975, and that even if the trial court properly awarded benefits outside of the schedule, the evidence presented to the trial court does not support a finding that Clemons suffered a permanent and total disability as a result of her March 26, 2002, injury to her elbows and her July 20, 2004, diagnosis of carpal tunnel syndrome.
Section 25-5-57(a)(3) provides, in pertinent part:
"a. Amount and Duration of Compensation. For permanent partial disability, the compensation shall be based upon the extent of the disability. In cases included in the following schedule, the compensation shall be 662/3 percent of the average weekly earnings, during the number of weeks set out in the following schedule:
". . . .
"24. For the loss of two arms, other than at the shoulder, 400 weeks.
"25. For the loss of two hands, 400 weeks.
". . . .
"c. Concurrent Disabilities. If an employee sustains concurrent injuries resulting in concurrent disabilities, he or she shall receive compensation only for the injury which entitled him or her to the largest amount of compensation, but this paragraph shall not affect liability for the concurrent loss of more than one member for which members compensation is provided in the specific schedule.
"d. Loss of Use of Member. The permanent and total loss of the use of a member shall be considered as equivalent to the loss of that member, but in such cases the compensation specified in the schedule for such injury shall be in lieu of all other compensation, except as otherwise provided herein. For permanent disability due to injury to a member resulting in less than total loss of use of the member not otherwise compensated in the schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member which the extent of the injury to the member bears to its total loss."
In Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), our supreme court addressed the application of § 25-5-57(a)(3), stating:
"In Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), this Court established an exception that removes certain injuries from the workers' compensation schedule. This Court held in Bell:
"`[A]lthough the injury itself is to only one part or member of the body, if the effect of such injury extends to other parts of the body, and produces a greater or more prolonged incapacity than that which naturally results from the specific injury, or the injury causes an abnormal and unusual incapacity with respect to the member, then the employee is not limited in his recovery under the [Workers'] Compensation Law to the amount allowed under the schedule for injury to the one member.'
"282 Ala. at 646, 213 So.2d at 811. ...
". . . .
"... Specifically, the Bell test permitted an injury to a scheduled member to be compensated outside the schedule if *527 the effect of the injury extends to other parts of the body and produces a greater or more prolonged incapacity than that which naturally results from the injury to the specific member."
837 So.2d at 833-34.
After quoting the exception set forth in Bell, the court in Ex parte Drummond renewed its commitment to the policy underlying the Bell test. 837 So.2d at 834. Quoting 4 Lex K. Larson, Workers' Compensation Law § 87.02 (2001), the supreme court concluded:
"`The great majority of modern decisions agree that, if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.'
"(Footnote omitted.) This language remains unchanged from the edition of the Larson treatise on which this Court relied in Bell. Because of the confusion that has developed surrounding the Bell test, we today adopt the language recited above from Larson, Workers' Compensation Law § 87.02, as the test for determining whether an injury to a scheduled member should be treated as unscheduled; therefore, we overrule Bell insofar as it established a different test ...."
Ex parte Drummond, 837 So.2d at 834-35 (footnote omitted).
In Ex parte Drummond, our supreme court recognized that its holding in Drummond was consistent with its 1969 decision in Leach Manufacturing Co. v. Puckett, 284 Ala. 209, 224 So.2d 242 (1969), wherein the court held:
"[W]here there is an injury resulting in the loss of a member, or the loss of the use of a member, so as to invoke payment of compensation as provided [by the Workers' Compensation Act], and where this is not accompanied by other physical disability (of the body), the payment of the specified sum is intended to fully compensate the injured employee for the injury sustained."
Puckett, 284 Ala. at 214, 224 So.2d at 247.
In its October 16, 2007, judgment, the trial court concluded that Clemons was permanently and totally disabled. Based on that conclusion, the trial court, citing dicta in Werner Co. v. Williams, 871 So.2d 845 (Ala.Civ.App.2003), found that it did not have to determine whether the injury was scheduled or nonscheduled because, it reasoned, § 25-5-57(a)(3)a. only applies to permanent partial disabilities. The trial court concluded that Clemons was permanently and totally disabled without regard for whether the Drummond test had been satisfied.
The trial court's reliance on dicta in Werner Co. v. Williams, supra, is misplaced. Our supreme court's decisions in Puckett and Drummond dictate that the trial court must first determine whether the permanent injury to the scheduled member extends to and interferes with other nonscheduled parts of the employee's body. If the injury to the scheduled member does not extend to other parts of the employee's body, then the injury is classified as a matter of law as a permanent partial disability and the schedule set forth in § 25-5-57(a)(3) governs the amount of compensation due the employee without consideration of any vocational disability. Swift Lumber, Inc. v. Ramer, 875 So.2d 1200, 1205 (Ala.Civ.App.2003). If the evidence does meet the Drummond exception, the employee may present evidence of a vocational disability so as to recover benefits under either § 25-5-57(a)(3)(g)(governing compensation for nonscheduled permanent partial disability) *528 or § 25-5-57(a)(4)a. (governing compensation for permanent total disability).
In Alabama Workmen's Compensation Self-Insurers Guaranty Association, Inc. v. Wilson, 993 So.2d 451 (Ala.Civ.App. 2006), the employer appealed the trial court's judgment finding the employee permanently and totally disabled. In Wilson, the employee sustained injuries to his right and left wrists when a ladder on which he was working gave way and fell onto a concrete floor. As a result of his injuries, the employee required surgery on his right wrist and his left wrist was placed in a cast. Following his first surgery, the employee underwent a second surgery to his right wrist and underwent treatment on his left hand and wrist. The employee's primary treating physician testified by deposition that the employee's injuries and symptoms were limited to his two "`upper extremities' and `do not extend to or include any other part of the body.'" Wilson, 993 So.2d at 454. The employee testified that he felt pain that extended to his hands and wrists and that he relieved that pain with several prescription medications as well as over-the-counter analgesic and anti-inflammatory medications. The employee testified that his nightly sleep had been reduced from seven or eight hours to three or four hours. Vocational experts hired by the employee and the employer testified that the employee's disabilities were limited to his arms from the elbow down and that no evidence indicated that the employee's injuries extended to or impaired some other part of the employee's body. Wilson, 993 So.2d at 455.
In its judgment finding the employee permanently and totally disabled, the trial court determined that "`the effects of injuries to [the employee's] wrists extend to other parts of his body ... and interfere with their efficiency.'" Wilson, 993 So.2d at 452. On appeal, this court reversed the judgment of the trial court and concluded that the injuries sustained by the employee were to scheduled members and that, therefore, the employee was entitled to benefits based upon a permanent partial disability to scheduled members, i.e., two arms. Wilson, 993 So.2d at 455. In so holding, this court, citing Stone & Webster Construction, Inc. v. Lanier, 914 So.2d 869 (Ala.Civ.App.2005), noted that "[a]ny interference with the function of both of the employee's arms is of no legal import given that a loss of both arms is itself a scheduled injury." 993 So.2d at 455. This court also recognized that more than a partial incidental sleep loss would be required to take an injury to a scheduled member outside the scope of the scheduled compensation. 993 So.2d at 455.
In Shoney's, Inc. v. Rigsby, 971 So.2d 722 (Ala.Civ.App.2007), the employer appealed an award of workers' compensation benefits to the employee based on a finding of a permanent and total disability arising from carpal tunnel syndrome. In Rigsby, the employee had worked for the employer for almost 30 years as a kitchen "prep" worker and a "kitchen manager." 971 So.2d at 724. The employee's job duties required the constant use of her hands and required her to lift as much as 50 pounds. Complaining of pain and numbness in her hands, the employee sought medical treatment and was diagnosed as having "trigger thumb" that caused her left thumb to pop and lock up, carpal tunnel syndrome in her right wrist, and tendinitis in her left wrist. Id. The employee received cortisone shots and later underwent carpal-tunnel-release surgery on her right wrist. The employee returned to work but continued to experience pain and numbness in her hands and wrists. The employee subsequently quit her job with the employer as a result of the pain in her hands and wrists. The *529 employee testified that she could do some housework, drive on occasion, and shop for groceries but that her hands hurt if she did too much. The employee further testified that she took pain medication because of the pain in her hands and wrists.
On appeal, the employer contended, among other things, that the trial court had erred by finding the employee permanently and totally disabled when the employee's injury was solely to her right hand and/or right arm, both scheduled members under § 25-5-57(a)(3). Citing the test set forth in Ex parte Drummond, this court agreed with the employer that the trial court had erred by treating the employee's injury as an unscheduled injury to the body as a whole rather than as a scheduled injury. In so holding, this court concluded that "the record ... does not reveal substantial evidence indicating that pain from [the employee's] injuries `extends to other parts of [her] body and interferes with their efficiency' so as to warrant a recovery of benefits outside the schedule." 971 So.2d at 727. Further, we noted that the employee's pain was largely precipitated by the use or overuse of the scheduled member and "`[i]n such a case, the worker, by refraining from the use of that member, may largely avoid the pain in question with the result being that the worker is in no worse a position due to [her] inability to use the affected member than if the member had been completely lost.'" Rigsby, 971 So.2d at 726-27 (quoting Masterbrand Cabinets, Inc. v. Johnson, 984 So.2d 1136, 1144 (Ala.Civ.App. 2005)).
In the instant case, Clemons, who was diagnosed with lateral epicondylitis and mild carpal tunnel syndrome, testified that she experiences pain in her arms and hands daily and that the pain in her arms and hands has adversely effected her everyday activities. Clemons further testified that her sleeping habits had changed and that she slept only four hours a night. Clemons explained that she managed her pain by taking both prescription medication and over-the-counter medication. Clemons stated that she also used slings, hand braces, and a TENS unit to manage her pain.
Clemons offered limited testimony at the final hearing regarding how the pain in her arms and hands extended to other parts of her body and interfered with their efficiency. Clemons testified that her injuries had adversely affected her sleep; however, as noted by this court in Wilson, supra, more than a partial incidental sleep loss is necessary to take an injury to a scheduled member outside the scope of the scheduled compensation. Clemons also presented lengthy testimony regarding depression she claimed to have suffered as a result of her physical injuries. However, this court previously held in Clemons I that the trial court had erred when it considered evidence of Clemons's depression, and in Clemons I we instructed the trial court to make a disability determination without considering Clemons's claim of depression. 979 So.2d at 121.
Based on the foregoing and the authority of Shoney's, Inc. v. Rigsby, supra, we conclude that the trial court erred by awarding Clemons benefits based on an injury to the body as a whole rather than by awarding benefits based on the loss of use of a scheduled member. The judgment of the trial court, insofar as it awards Clemons permanent-total-disability benefits outside the schedule set out in § 25-5-57(a)(3), is reversed, and the case is remanded for the trial court to enter an appropriate award of permanent-partial-disability benefits pursuant to the schedule.
In their appeals, PMA and Liberty both contend that the trial court erred in its *530 application of the "last injurious exposure" rule. In its October 16, 2007, judgment, the trial court found as follows regarding the application of the "last injurious exposure" rule:
"Because [Clemons] suffered multiple and distinct injuries during her employment with [Advantage] and because [Advantage] changed workers' compensation insurance carriers periodically, this Court finds it necessary to apply the last injurious exposure rule in resolving which insurance carrier is now responsible for paying workers' compensation benefits to [Clemons].
"Because this Court has concluded that [Clemons's] carpal tunnel condition [diagnosed on July 20, 2004,] is a new or aggravated condition and occurred during Liberty Mutual's policy period, [Liberty] is liable for [Clemons's] medical bills related to that condition and all disability payments [Clemons] is entitled to from July 20, 2004."
The trial court ordered PMA, Advantage's insurer at the time of Clemons's March 26, 2002, injury to her elbows, to pay Clemons temporary-total-disability benefits that had accrued from April 13, 2003, to September 23, 2003. The trial court further ordered PMA to pay Clemons temporary-partial-disability benefits that had accrued from September 23, 2003, to July 20, 2004, at which time Clemons was diagnosed with bilateral carpal tunnel syndrome. The trial court ordered Liberty, Advantage's insurer at the time Clemons was diagnosed with bilateral carpal tunnel syndrome, to pay Clemons temporary-partial-disability benefits from July 20, 2004, when Clemons was diagnosed with bilateral carpal tunnel syndrome, to February 8, 2005. The trial court further ordered Liberty, as Advantage's insurance carrier at the time of Clemons's last injury, to pay all of Clemons's permanent-total-disability benefits dating from January 24, 2006. The trial court also ordered PMA to cover all the medical benefits relating to Clemons's treatment of her elbow injuries and ordered Liberty to cover all the medical benefits relating to Clemons's treatment of her carpal tunnel syndrome.
In North River Insurance Co. v. Purser, 608 So.2d 1379 (Ala.Civ.App.1992), this court adopted the "last injurious exposure" rule when determining the liability of insurance carriers in "successive injury" cases.
"Under the `last injurious exposure' rule, `liability falls upon the carrier covering [the] risk at the time of the most recent injury bearing a causal relation to the disability.' North River Insurance Co. v. Purser, 608 So.2d 1379, 1382 (Ala. Civ.App.1992). The trial court must determine whether the second injury is `a new injury, an aggravation of a prior injury, or a recurrence of an old injury; this determination resolves the issue of which insurer is liable.' Id.
"A court finds a recurrence when `the second [injury] does not contribute even slightly to the causation of the [disability].' 4 A. Larson, The Law of Workmen's Compensation, § 95.23 at 17-142 (1989). `[T]his group also includes the kind of case in which a worker has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists, and culminating in a second period of disability precipitated by some lift or exertion.' 4 A. Larson, § 95.23 at 17-152. A court finds an `aggravation of an injury' when the `second [injury] contributed independently to the final disability.' 4 A. Larson, § 95.22 at 17-141. If the second injury is characterized as a recurrence of the first injury, then the first insurer is responsible for the medical bills; however, if the injury is considered *531 an aggravation of the first injury, then it is considered a new injury and the employer at the time of the aggravating injury is liable for the medical bills and disability payments. North River, supra."
United States Fid. & Guar. Co. v. Stepp, 642 So.2d 712, 715 (Ala.Civ.App.1994).
PMA contends that the trial court properly invoked the "last injurious exposure" rule but erroneously applied the rule by holding it responsible for "past owed temporary total disability benefits [and] temporary partial disability benefits" instead of assigning liability exclusively to Liberty. In its judgment, the trial court ordered PMA to pay temporary-total-disability benefits that had accrued from April 13, 2003, to September 23, 2003, and temporary-partial-disability benefits that had accrued from September 23, 2003, to July 20, 2004. The trial court further ordered Liberty to pay temporary-partial-disability benefits and permanent-total-disability benefits that had accrued after July 20, 2004.
The trial court found that Clemons sustained a bilateral carpal-tunnel-syndrome injury on July 20, 2004. Therefore, any disability occurring before July 20, 2004, could not possibly be attributable to Clemons's carpal tunnel syndrome, but must be attributable solely to Clemons's elbow injuries. Because PMA was Advantage's insurance carrier on the risk at the time of the last injury relating to the disability periods for which the trial court held PMA responsible, the trial court correctly assigned the responsibility for payment of any compensation for those periods to PMA. In light of the foregoing, we cannot say that the trial court erred in holding PMA responsible for the "past owed temporary total disability benefits [and] temporary partial disability benefits."
PMA further contends that the trial court erred by ordering it to pay all Clemons's medical bills relating to her elbow injuries. PMA contends that the trial court should have assigned liability for Clemons's workers' compensation benefits exclusively to Liberty. In its October 16, 2007, judgment, the trial court found that Clemons's July 20, 2004, carpal tunnel syndrome "is a new injury or an aggravation, rather than a reoccurrence of the February 23, 2001, and/or March 26, 2002, work-related injuries." The evidence relating to that finding shows that Clemons first developed bilateral carpal tunnel syndrome on February 23, 2001. The left-sided carpal tunnel syndrome did not require surgery, but Clemons underwent surgery on her right wrist in May 2001. Dr. Goldstein testified at length regarding the relationship between the 2001 carpal tunnel syndrome and the 2004 carpal tunnel syndrome. His testimony indicated that the right-sided carpal tunnel syndrome diagnosed in 2004 was a new injury and that the left-sided carpal tunnel syndrome diagnosed in 2004 was an aggravation of the 2001 condition. Dr. Goldstein's testimony supports the trial court's finding that the July 20, 2004, bilateral carpal tunnel syndrome was either a new injury or an aggravation of the February 23, 2001, carpal tunnel syndrome.
Regarding the trial court's finding that Clemons's July 20, 2004, carpal tunnel syndrome was a new injury or an aggravation of her March 26, 2002, elbow injuries, the evidence presented to the trial court indicated that there was no causal relationship between Clemons's 2004 carpal tunnel syndrome and her 2002 elbow injuries. Dr. Goldstein characterized Clemons's lateral epicondylitis and carpal tunnel syndrome as "separate and distinct injuries." Dr. Goldstein explained that the pain from carpal tunnel syndrome was *532 "very different" from the pain from lateral epicondylitis. The record does not contain substantial evidence indicating that Clemons's carpal tunnel syndrome contributed even slightly to the problems with her elbows. The record does not support the trial court's conclusion that the 2004 carpal tunnel syndrome aggravated the 2002 elbow injuries. Given the undisputed evidence indicating that the March 23, 2002, injury is the only injury bearing a causal relationship to Clemons's elbow problems, the trial court did not err in ordering PMA to pay the employee's medical bills for the treatment of her elbow injuries.
In support of its argument, PMA cites Health-Tex, Inc. v. Humphrey, 747 So.2d 901 (Ala.Civ.App. 1999). In Health-Tex, Inc. v. Humphrey, supra, the employee developed bilateral carpal tunnel syndrome while working for her first employer. After leaving her employment with the first employer and going to work for a second employer, the employee's carpal tunnel syndrome returned. The employee sued both employers, seeking workers' compensation benefits and alleging that she had sustained injuries in the line and scope of her employment with both employers. Following an ore tenus hearing, the trial court found that the employee had suffered an aggravation of her initial injuries while working for the second employer, and it ordered each employer to pay certain compensation benefits and certain medical expenses to the employee. 747 So.2d at 903. On appeal, the employers contended that the trial court had erred in its application of the "last injurious exposure" rule when it found that the employee suffered an aggravation to her condition during her employment with the second employer yet apportioned liability between the two employers. This court agreed and reversed the judgment of the trial court, holding that "[b]ecause the record supports the trial court's finding that the worker suffered an aggravation, the trial court should have ordered the second company to be solely liable for the worker's compensation benefits." Humphrey, 747 So.2d at 905.
Health-Tex, Inc. v. Humphrey, supra, is distinguishable from the case at bar. In Humphrey, the employee aggravated her preexisting bilateral carpal tunnel syndrome; the initial injury and the successive injury were identical. The aggravation to the employee's bilateral carpal tunnel syndrome in Humphrey resulted in a single injury. In the instant case, the question of liability between insurance carriers is based on Clemons's 2004 bilateral carpal tunnel syndromea cumulative stress injuryand her 2002 elbow injuriesan accidental injury. Both of the injuries at issue in this case are separate and distinct injuries.
Liberty contends on appeal that the trial court erred in ordering it to be responsible for Clemons's permanent-total-disability benefits. Given our holding that Clemons's injuries fall within the schedule, and, therefore, that she is not entitled to permanent-total-disability benefits, we need not address Liberty's contention on appeal. The trial court's judgment ordering Liberty to pay permanent-total-disability benefits is reversed.
In conclusion, we affirm the trial court's judgment insofar as it orders PMA to cover Clemons's medical bills for her elbow injuries and to cover the temporary-total-disability benefits awarded for the period from April 13, 2003, to September 23, 2003, and the temporary-partial-disability benefits awarded for the period from September 23, 2003, to July 20, 2004. We also affirm the trial court's judgment ordering Liberty to pay Clemons's medical bills relating to the treatment of her bilateral carpal tunnel syndrome and ordering Liberty *533 to pay temporary-partial-disability benefits for the period from July 20, 2004, to February 8, 2005. Because we are reversing the trial court's award of permanent-total-disability benefits, that portion of the trial court's judgment ordering Liberty to pay those benefits is due to be reversed.
2070113 REVERSED AND REMANDED WITH INSTRUCTIONS.
2070160 AFFIRMED.
2070199 AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
All the judges concur.
NOTES
[1] "Handling," as referred to in the FCE, included seizing, holding, grasping, and turning objects. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555688/ | 171 F.Supp. 92 (1959)
Patsy Jane LEMONS, by and through Carlos Lemons, Plaintiff,
v.
STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, Defendant.
No. 885.
United States District Court E. D. Kentucky, Covington Division.
February 6, 1959.
*93 Frank G. Gilliam, Robert L. Milby, Lexington, Ky., for plaintiff.
Stoll, Keenon & Park, Lexington, Ky., for defendant.
SWINFORD, District Judge.
This case is before the court on the defendant's motion to strike Paragraph 12 from the complaint. The motion should be sustained unless this paragraph of the complaint states a good cause of action. Conversely, if Paragraph 12, taken in the light of the whole pleading, states a good cause of action the motion should be overruled. The allegations of the complaint, for the purposes of this motion, are considered as true.
The plaintiff was a guest riding in the car of William Moore, Jr., who was the owner of the policy of automobile liability insurance filed with the record. It is alleged in the complaint that while the insurance was in full force and effect the plaintiff was injured through the negligence of the policyholder. The plaintiff obtained a judgment in the Harrison County (Kentucky) Circuit Court in the amount of $27,659.03, no part of which has been paid. She now brings this action against the defendant to recover the face value of the policy in the sum of $5,500 and for an additional amount of $22,159.03, which represents the balance of the judgment she received in the state court. The basis of her claim for the sum over and above the face of the policy is set out in Paragraph 12 of her complaint which reads as follows:
"The Plaintiff states that the failure of the Defendant to defend the action in this Court by this Plaintiff against William Moore, Jr., was a failure to exercise good faith or an action in bad faith by the Defendant herein sufficient to create liability on the part of the Defendant herein for the entire judgment irrespective of the policy limits."
I am of the opinion that the language quoted states a cause of action and the motion to strike should be overruled.
A cursory examination of the complaint might indicate that the recovery, if any, must be limited to the face of the policy or the sum of $5,500. Since the jurisdiction of this court cannot be invoked for the recovery of any sum under $10,000, exclusive of interest and cost, there must be shown by a proper pleading that the plaintiff is asserting a sum in addition to the limitation of the policy. There is a well settled rule governing dismissal for want of jurisdiction that the sum claimed by the plaintiff controls if the claim is apparently made in good faith. If from the face of the pleadings it is apparent to a legal certainty that there could be no recovery of the amount claimed or if the court is satisfied from the whole record to a like certainty that the plaintiff's *94 claim is colorable only then the complaint should be dismissed for want of jurisdiction. Fireman's Fund Ins. Co. v. Railway Express Agency, 6 Cir., 253 F.2d 780. That is not the case here as the plaintiff has set forth by her pleading a valid claim in law to the additional sum over and above the face of the policy.
The insurer is under a legal requirement to act in good faith in carrying out its commitments to the insured as expressed by the terms of the written contract or policy of insurance. If it acts in bad faith or fails to exercise good faith there is created a liability on the part of the insurer for the excess of the policy limit. American Surety Co. of New York v. J. F. Schneider & Son, Ky., 307 S.W.2d 192; Georgia Casualty Co. v. Mann, 242 Ky. 447, 46 S.W.2d 777.
In Kentucky, the insured, or one claiming through him, in order to recover a sum in excess of the provisions of the policy, is held to a high degree of proof to show fraud or bad faith on the part of the insurance company, but he does, nevertheless, have the right to make the claim and to his day in court on that issue. Georgia Casualty Co. v. Mann, supra; Ballard v. Citizens Cas. Co. of New York, 7 Cir., 196 F.2d 96.
"An insurance contract is no longer a secret, private, confidential arrangement between the insurance carrier and the individual but it is an agreement that embraces those whose person or property may be injured by the negligent act of the insured." Maddox v. Grauman, Ky., 265 S.W.2d 939, 942, 41 A.L.R.2d 964. See also Seaboard Mut. Casualty Co. v. Profit, 4 Cir., 108 F.2d 597, 126 A.L.R. 1105; 29 Am.Jur. 1083, p. 813; Seaton v. Pickens, 126 Tex. 271, 87 S.W.2d 709, 106 A.L.R. 512; Hynding v. Home Acci. Ins. Co., 214 Cal. 743, 7 P.2d 999, 85 A.L.R. 13, Annotation at page 39.
An order overruling the motion to strike in conformity with this memorandum is this day entered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555720/ | 36 So.3d 674 (2010)
BLANCO
v.
BLANCO.
No. 3D08-2619.
District Court of Appeal of Florida, Third District.
May 12, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555761/ | 36 So.3d 114 (2010)
TOBIE
v.
STATE.
No. 5D10-1221.
District Court of Appeal of Florida, Fifth District.
May 18, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555762/ | 171 F.Supp. 281 (1959)
John J. BAILEY
v.
UNITED STATES.
No. 242-58.
United States Court of Claims.
January 14, 1959.
*282 Alex Akerman, Jr., Washington, D. C., for plaintiff. Shipley, Akerman & Pickett, Washington, D. C., were on the brief.
Norman Hyman, Washington, D. C., with whom was Asst. Atty. Gen. George Cochran Doub, for defendant.
BASTIAN, Circuit Judge, sitting by designation.
Plaintiff filed this suit on May 29, 1958, for back pay, claiming alleged violation of § 14 of the Veterans' Preference Act, 5 U.S.C.A. § 863. From the record, it appears that on December 11, 1952, plaintiff, a veterans' preference eligible and an employee of the Federal Housing Administration, was given notice that it was proposed to remove him from his position. He contends that he filed an answer to the charges and requested a hearing, which he says was denied him. On February 3, 1953, he was removed from his position. Thereafter, he appealed the decision of the agency to the Eighth Civil Service Region, which affirmed the decision of the agency, after which he appealed to the Board of Appeals and Review of the Civil Service Commission, which, on December 18, 1953, affirmed the decision. Plaintiff alleges that his removal as outlined was arbitrary and capricious and in violation of his rights under § 14, supra. In answer to the petition, the defendant entered a general denial of the material allegations of the petition and, by amended answer, pleaded laches on the part of plaintiff.
The questions before us on cross motions for summary judgment are: whether plaintiff's claim was barred by laches; whether he received the procedural rights to which he was legally entitled; and whether plaintiff could complain of the alleged procedural error in the agency's action for the first time in this court, it appearing that his alleged denial of a hearing was never brought to the attention of the Civil Service tribunal.
We think the decision in this case may be determined on the issue of laches. A discharged employee is bound to assert his rights with diligence. The reason for this is obvious: The Government has the right to have its services disturbed as little as possible, and the Government should not be obliged to pay the salaries of two persons for a single service[1] due to delay over a long period of time. The Supreme Court and this court have consistently, and in a large number of cases, applied the bar of laches; among those cases, Dion v. United States, 137 Ct.Cl. 166; Baskin v. United States, 95 Ct.Cl. 455, certiorari denied, 1942, 316 U.S. 675, 62 S.Ct. 1043, 86 L.Ed. 1749; Nicholas v. United States, 1921, 257 U.S. 71, 42 S.Ct. 7, 66 L.Ed. 133; United States ex rel. Arant v. Lane, 1919, 249 U.S. 367, 39 S.Ct. 293, 63 L.Ed. 650.[2]
*283 As the Supreme Court stated in Arant, supra 249 U.S. at page 372, 39 S.Ct. at page 294:
"Under circumstances which rendered his return to the service impossible, except under the order of a court, the relator did nothing to effectively assert his claim for reinstatement to office for almost two years. Such a long delay must necessarily result in changes in the branch of the service to which he was attached and in such an accumulation of unearned salary that, when unexplained, the manifest inequity which would result from reinstating him renders the application of the doctrine of laches to his case peculiarly appropriate in the interests of justice and sound public policy."
Plaintiff urges that the delay in this case was excusable, it deriving primarily from the fact that at the time of his removal he was continually contacting the agency for re-employment. However, defendant's administrative remedies were exhausted when on December 18, 1953, the Board of Appeals and Review of the Civil Service Commission finally affirmed his discharge. The efforts which plaintiff made in contacting the agency to seek reemployment had nothing to do with his legal rights, if any he had. The fact is that it was not until four years and five months after the Board of Appeals and Review had affirmed his discharge that this suit was filed. We think he waited too long.
Plaintiff also contends that another factor which should be taken into consideration is the fact that until this court finally settled the question on January 16, 1957, in Washington v. United States, 147 F.Supp. 284, 137 Ct.Cl. 344, there was great confusion as to what rights, if any, an employee had when a hearing was requested and denied. This position is likewise untenable. Plaintiff never pursued his right to a hearing, and he had no right to wait until some diligent litigant raised the point about which plaintiff here complains and had it promptly determined.
The motion for summary judgment on behalf of plaintiff will be denied and that of defendant granted. Plaintiff's petition will be dismissed.
It is so ordered.
JONES, Chief Judge, and LARAMORE, MADDEN and WHITAKER, Judges, concur.
NOTES
[1] In this case the Government hired a replacement for plaintiff, and has paid for the service of that employee.
[2] Cf. Elchibegoff v. Dulles, 1955, 95 U.S. App.D.C. 362, 363, 222 F.2d 53, where that court said: "Appellant was dismissed from his employment in the State Department on June 25, 1947. On February 18, 1948, the Civil Service Commission's Board of Appeals and Review affirmed the Department's action. This suit for reinstatement, filed March 4, 1954, is barred by laches." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/235235/ | 217 F.2d 469
Robert J. NELSON, Appellant,v.UNITED STATES of America, Appellee.
No. 14344.
United States Court of Appeals Ninth Circuit.
November 2, 1954.
Robert J. Nelson, in pro. per.
Laughlin E. Waters, U. S. Atty., Manley J. Bowler, Angus D. McEachen, Louis Lee Abbott, Hiram W. Kwan, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before FEE and CHAMBERS, Circuit Judges, and WALSH, District Judge.
JAMES ALGER FEE, Circuit Judge.
1
Nelson and Ramsey were jointly indicted on a charge of robbing "a person having lawful charge, control, and custody of mail matter and money of the United States." Title 18 U.S.C. § 2114. The case was tried with a jury, and each defendant was represented by a separate lawyer. Both defendants were convicted. Nelson alone appeals in his own person without counsel.
2
The defendant Nelson was positively identified in court by a postal clerk, who testified this defendant held up the substation and took government money from her. It was proved she had previously picked him out of a police line-up. She further testified that Nelson was armed at the time of the occurrence. Ramsey, who was found to be his confederate, was identified by a different witness as present in another part of the building, apparently to create a diversion while the hold-up was going on. Neither Ramsey nor Nelson took the stand. The defense consisted of evidence for the purpose of establishing an alibi for each Nelson and Ramsey. This testimony was given by Ann Lopez for Nelson and by Sylvia Ruiz for Ramsey. All four, both defendants and the two women witnesses, were shown by the testimony of one of the latter to have been together at certain times on the night of the robbery. The jury found each defendant guilty nevertheless.
3
The trial was fair and was not unduly hastened. The trial judge asked an occasional question of some witnesses, but he had a right to do that. A federal judge is not an automation and has a right to control the course of the trial. The trial judge did not indicate by his questions he thought defendant guilty. If he had done so, it would not have been error prejudicial or otherwise, because proof of guilt was here conclusive. There are only two matters which will be dealt with specifically. First, a police officer related the admissions of Ramsey, which identified Nelson as the one who actually did the robbery. But the trial judge definitely and positively instructed that this testimony was binding on Ramsey alone and should not be considered in reference to Nelson. This is sufficient. No objection or exception was taken to the course of the trial judge in this regard. Counsel for Nelson stated this admonition was sufficient. No objections or exceptions were taken to the final charge of the judge to the jury.
4
One of the witnesses for the government testified that the defendant Nelson was armed. He now claims surprise at this testimony. But no motion or objection was made at the time. The testimony that Nelson was armed was given by the person held up. Defendant was not charged by the indictment with putting the custodian's "life in jeopardy," which would carry a much higher penalty. The circumstance was related as one of the details of the robbery. The sentence was imposed within the limits of the portion of the statute under which the indictment was drawn. There was no prejudice.
5
The evidence was overwhelming and clearly sufficient to sustain the verdict. The motion for acquittal was correctly denied. There was no error.
6
Affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1644854/ | 4 So.3d 598 (2007)
EX PARTE WESLEY MEAD.
No. CR-06-0939.
Court of Criminal Appeals of Alabama.
March 27, 2007.
Decision of the alabama court of criminal appeals without opinion. Mand. pet. dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1644860/ | 994 So.2d 1105 (2008)
R.A.V.D.
v.
STATE.
No. SC08-1964.
Supreme Court of Florida.
October 20, 2008.
Decision without published opinion. Rev.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2453442/ | 509 F.Supp.2d 1117 (2006)
Philip J. STODDARD, Plaintiff,
v.
The FLORIDA BOARD OF BAR EXAMINERS et al., Defendants.
No. 4:06cv414-RH/WCS.
United States District Court, N.D. Florida, Tallahassee. Division.
December 22, 2006.
*1118 Jeffrey Hugh Northcutt, Jeffrey H. Northcutt, Jacksonville, FL, for Plaintiff.
James Joseph Dean, Messer Caparello & Self PA, Stephanie Allison Daniel, Tallahassee FL, for Defendants.
ORDER OF DISMISSAL
ROBERT L. HINKLE, Chief Judge.
The Florida Board of Bar Examiners filed charges against plaintiff challenging his fitness to practice law in Florida. While those charges were pending, plaintiff filed this action, asserting the Board was proceeding in violation of the United States Constitution and the Americans with Disabilities Act. Plaintiff seeks both injunctive relief and damages. Defendants have moved to dismiss.
In Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), the Supreme Court held that a federal action seeking injunctive relief from ongoing bar disciplinary proceedings was barred by the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Finding Middlesex controlling, I dismissed an earlier action for injunctive relief brought by another applicant to the Florida Bar, *1119 and the Eleventh Circuit affirmed. See Lawrence v. Schwiep, No. 4:05cv14-RH, 2005 WL 2491564 (N.D.Fla. Oct. 7, 2005) (unpublished order of dismissal), aff'd sub nom. Lawrence v. Rigsby, 196 Fed.Appx. 858 (11th" Cir.2006).[1] For the same reasons, I now dismiss the claims for injunctive relief in the case at bar.
I also dismiss plaintiff's damages claims. Those claims fail based on a combination of Eleventh Amendment immunity (available to the Board of Bar Examiners and official capacity defendants with respect to all claims other than, perhaps, those arising under the ADA), qualified immunity (available to the individual defendants), and failure to state a claim on which relief may be granted (with respect to any claims arising under the ADA that are not barred by the Eleventh Amendment or qualified immunity).
I.
Background: The Bar Admission Process
Lawrence v. Schwiep described the Florida Bar admission process as follows:
Under Florida law, an applicant who passes the bar examination is entitled to admission to the Bar if and only if he meets the state's "character and fitness" requirements. "The purpose of the character and fitness screening before admission to The Florida Bar is to protect the public and safeguard the judicial system." Fla. Bar Admiss. R. 1-14.1. The Florida Board of Bar Examiners, an arm of the Florida Supreme Court, reviews an applicant's background, may conduct an informal hearing (see Fla. Bar Admiss. R. 3-22), and determines either that the applicant has met the character and fitness requirements or that "specifications" should be filed "charging the applicant or registrant with matters which if proven would preclude a favorable finding by the Board." Fla. Bar Admiss. R. 3-22.5. An applicant who contests the specifications is entitled to a formal evidentiary hearing. Fla. Bar Admiss. R. 3-23.2.
Following the formal hearing, the Board again determines, now based on the evidence presented at the hearing, whether the applicant has established his or her character and fitness to practice law. If the Board concludes that the applicant has not established his or her character and fitness, the Board must enter findings of fact and conclusions of law. Fla. Bar Admiss. R. 3-23.7. An unsuccessful applicant has a right of review by the Florida Supreme Court, which may independently review the record, see Florida Bd. of Bar Examiners Re: L.K.D., 397 So.2d 673 (1981), and address all challenges to the Board's determination, including those based on the United States Constitution. Absent review by the Florida Supreme Court, the findings of the Board become final. Fla. Bar Admiss. R. 3-23.7.
Lawrence v. Schwiep, 2005 WL 2491564 at *1.
II.
Background: The Case at Bar
Plaintiff Philip Stoddard applied for admission to the Florida Bar in November 1999. He passed the bar examination. The Florida Board of Bar Examiners undertook a character and fitness review.
On November 26, 2001, the Board filed specifications charging Mr. Stoddard with conduct purportedly demonstrating his unfitness *1120 to practice law. Proceedings on the specifications were put on hold at Mr. Stoddard's request while he pursued litigation against the Board and others in this court (before a different district judge) and on appeal to the Eleventh Circuit. The Eleventh Circuit ultimately upheld dismissal of that case for lack of ripeness and standing (because Mr. Stoddard was not then pursuing his application). See Stoddard v. Supreme Court, No. 03-11662, 87 Fed.Appx. 713 (table) (11th Cir. Oct. 24, 2003) (unpublished opinion) (included in record at document 15 attachment 3). In setting forth the background of the case, the Eleventh Circuit said:
Stoddard admitted that his bar application showed a 25-plus-year history of physical and mental illness, a complete financial collapse in 1979, a bitter divorce, three hospitalizations for acute psychosis in 1978-80, and a 1996 bankruptcy involving 20 years of financial instability and sporadic employment. Stoddard claimed that, while the application process was pending, he was diagnosed with bipolar disorder, which was, at the time of the complaint, controlled with medication rendering him symptom free. Stoddard asserted that his bar application, taken as, a whole, showed moral fitness through a lengthy, diligently pursued and successful recovery in the face of severe hardship. He claimed that he had successfully managed his finances for more than five years, never been convicted of a felony or contempt of court, and never been accused of conduct involving moral turpitude.
Id. at 2-3.
The Board filed supplemental specifications on July 26, 2005. A formal hearing on the specifications was held on September 15, 2006. After the hearing, the Board voted to deny Mr. Stoddard's application and to recommend that no further application be entertained for five years. The Board issued a letter informally notifying Mr. Stoddard of the decision, but (at least so far as shown by this record) the Board has not yet issued its formal findings of fact and conclusions of law. According to the notice provided to Mr. Stoddard, the Board's recommendation will be due within 60 days after the filing of a transcript of the hearing.
Meanwhile, on September 8, 2006 a week before the hearing Mr. Stoddard filed this action, naming as defendants the Board, the Board's chairman, executive director, general counsel, and at least one member, and the Chief Justice of the Florida Supreme Court, identified as the Supreme Court liaison to the Board. Mr. Stoddard asserts the Board has violated both the' United States Constitution and the Americans with Disabilities Act by inquiring into his mental health and circulating information to Board members involved in reviewing his application, all with the effect of delaying his application and damaging his reputation. Mr. Stoddard alleges he has a disability within the meaning of the ADA, at least in part because he is regarded as disabled by the defendants.
Defendants have moved to dismiss on various grounds. I conclude in section III of this order that the claims for injunctive relief must be dismissed under Middlesex and Younger precisely the same result reached both in this court and in the Eleventh Circuit in Lawrence. I conclude in section IV that the damages claims must be dismissed based on the Eleventh Amendment, qualified immunity, or, with respect to the ADA, failure to state a claim. I do not reach the other grounds asserted in the motions.
III.
Injunctive Relief
Lawrence v. Schwiep addressed the governing legal standards in language equally applicable in the case at bar:
*1121 In Younger [v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)], the Court held that the defendant in a state criminal proceeding ordinarily may not bring a federal lawsuit challenging the constitutionality of the pending state proceeding. The defendant must, instead, present his or her federal constitutional defenses in the state proceeding. In Middlesex [County Ethics Comm. v. Garden State Bar Assoc., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)], the Court extended Younger to state bar disciplinary proceedings, which the Court characterized as judicial in character. Younger and Middlesex (and other cases in the same line) are based on the interest in avoiding federal interference with ongoing state judicial proceedings seeking to vindicate important state interests and the recognition that federal defenses can be fully and fairly adjudicated in state proceedings of this type. A long line of cases applies these principles. See, e.g., 31 Foster Children v. Bush, 329 F.3d 1255, 1274-75 (11th Cir.2003).
Under these cases, whether a federal court should abstain in deference to state proceedings turns on three questions: "first, do [the proceedings] constitute an ongoing state judicial proceeding; second, do the proceedings implicate important state interests; and third, is there an adequate opportunity in the state proceedings to raise constitutional challenges." 31 Foster Children, 329 F.3d at 1274 (alterations by Eleventh Circuit), quoting Middlesex, 457 U.S. at 432, 102 S.Ct. 2515.
In the case at bar, precisely as in Middlesex, the answer to each of these questions is yes. Florida bar admission proceedings, like the New Jersey attorney disciplinary proceedings at issue in Middlesex, are judicial in nature. See Fla. Bar Admiss. R. 1-11 ("admission of attorneys to the practice of the profession of law is a judicial function."); cf. Dale v. Moore, 121 F.3d 624 (11th Cir. 1997) (holding admission decision of Florida Supreme Court "judicial" for purposes of Rooker-Feldman doctrine). Florida's interest in attorney admission is as strong as the interest in attorney discipline involved in Middlesex. And the Florida system afforded Mr. Lawrence a full and fair opportunity to raise constitutional challenges in the Florida Supreme Court an opportunity as adequate as that provided in Middlesex or in any other case involving Younger abstention.
Lawrence v. Schwiep, 2005 WL 2491564 at **2-3. In a footnote, the order added:
Moreover, if the ability to raise constitutional issues in the Florida Supreme Court were unclear which it is not any doubt on this score would properly be resolved in favor of abstention. See Butler v. Alabama Judicial Inquiry Commission, 261 F.3d 1154, 1159 n. 6 (11th Cir.2001).
Lawrence v. Schwiep, 2005 WL 2491564 at *2 n. 1. This same statement is true not only of constitutional issues, but also of issues arising under the Americans with Disabilities Act.
To be sure, there is a difference between Middlesex, on the one hand, and both Lawrence and the case at bar, on the other. The difference is that Middlesex dealt with charges against an existing member of a state bar, whereas Lawrence and the case at bar involve charges against applicants for admission. Lawrence v. Schwiep explained why this difference does not call for a different result:
[U]nder the Florida system, an applicant to the bar who passes the examination is entitled to admission unless his or her character and fitness are found lacking. In order to block admission on the ground of character and fitness, the *1122 Board must file "specifications" setting forth the basis for its action. Specifications against an applicant are, for present purposes, no different from charges against an existing member of the Bar. In either case, a person who wishes to practice law in Florida is subjected to specific charges that, if sustained, would preclude the person from doing so. In either case, the final decision resides with the Florida Supreme Court based on evidence presented in a formal hearing before an agency that is an arm of the court. In either case, federal constitutional defenses may be presented fully and fairly for determination by the Florida Supreme Court, with federal review available only in the United States Supreme Court by petition for writ of certiorari. And in either case, interference by a federal court with the ongoing proceedings would be equally disruptive. When an applicant is entitled to admission unless pending charges are sustained; those pending charges are, for purposes of Younger and Middlesex, no different from charges against an existing member of the Bar. Middlesex remains controlling.
Lawrence v. Schwiep, 2005 WL 2491564 at *4.
Mr. Stoddard asserts that Younger recognized a bad-faith exception to the rule requiring federal courts not to interfere in ongoing state proceedings of the type at issue, and Mr. Stoddard invokes the bad faith exception here. The analysis of this issue in Lawrence v. Schwiep is again fully applicable:
Mr. Lawrence seeks to invoke the bad-faith exception to Younger. Whatever the precise contours of that exception, it is assuredly narrow. Mr. Lawrence has alleged no facts that would support its application in the case at bar. To the contrary, if the allegations of the case at bar were sufficient to invoke the [bad] faith exception, then the exception would swallow the rule, and there would be little left of Younger.
Lawrence v. Schwiep, 2005 WL 2491564 at *4. Mr. Stoddard, like Mr. Lawrence, has alleged no facts that would support application of the bad-faith exception.
To this point in the analysis, then, Lawrence is identical to the case at bar. Mr. Stoddard deals with Lawrence by saying the case was wrongly decided, but I disagree, as did the Eleventh Circuit panel that affirmed the decision and thought the issue not close enough to warrant a published opinion. It is true, of course, that neither my decision in Lawrence nor the Eleventh Circuit's unpublished affirmance is technically binding.[2] I follow those decisions in the case at bar not because they are binding but because they are right.
There is, however, a difference between Lawrence and the case at, bar. Mr. Lawrence's federal claims all arose under the Constitution. Mr. Stoddard, in contrast, asserts not only federal constitutional claims, but also claims arising under the Americans with Disabilities Act. I conclude, however, that this does not affect the analysis under Younger. The point of Younger is that a federal court ought not interfere in an ongoing state enforcement proceeding of the type at issue, and that federal defenses can and must be presented in the state proceeding, not in an independent federal lawsuit. The same reasoning applies to federal defenses whether arising solely under the Constitution (as in Younger itself, Middlesex, and Lawrence) or also partly under a federal statute (as in the case at bar).
*1123 In sum, Mr. Stoddard's claims for injunctive relief are not meaningfully distinguishable from those in Lawrence. Here, as there, the claims for injunctive relief will be dismissed.
IV.
Damages
Mr. Stoddard also seeks an award of damages. Claims for injunctive relief properly may be dismissed based on Younger, but under the law of this circuit, damages claims in analogous circumstances should be stayed, not dismissed. See Prather v. Norman, 901 F.2d 915, 919 (11th Cir.1990) (citing Deakins v. Monaghan, 484 U.S. 193, 202, 108 S.Ct. 523, 529, 98 L.Ed.2d 529 (1988)). A stay will not be entered here, however, because Mr. Stoddard's damages claims properly should be dismissed on other grounds.
A.
Eleventh Amendment
With the possible exception of claims arising under the ADA, the Eleventh Amendment bars all of Mr. Stoddard's damages claims against the Florida Board of Bar Examiners and any official-capacity defendant. See, e.g., Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (holding retrospective relief under § 1983 that would be payable from state treasury barred by Eleventh Amendment); United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006) (holding that Title II of the ADA validly abrogates Eleventh Amendment immunity when the conduct at issue also violates the Fourteenth Amendment and leaving open the issue of whether the abrogation validly extends further). Mr. Stoddard's non-ADA damages claims against these defendants will be dismissed based on Eleventh Amendment immunity.
B.
Qualified Immunity
Defendants sued in their individual capacities do not have Eleventh Amendment immunity, but they do have qualified immunity. Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986); see generally Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
Mr. Stoddard has not alleged any respect in which any individual defendant has violated clearly established law. Based on his own admissions as recounted in his earlier case in the Eleventh Circuit, Mr. Stoddard was hospitalized three times for acute psychosis, had a 25-plus-year history of physical and mental illness, suffered one complete financial collapse and went through a separate bankruptcy proceeding almost 20 years later, had sporadic employment over a long period, and, after submitting his application to the Bar, was diagnosed with bipolar disorder, which was controlled only with medication. This background might or might not disqualify Mr. Stoddard from bar membership, but there was no clearly established law at the times at issue (and there is none now) suggesting that a state's bar examiners could not at least make a full inquiry into such a background.
Mr. Stoddard's claims against defendants in their individual capacities will be dismissed based on qualified immunity.
C.
ADA Claims for Damages
What remain are, at most, claims for damages under the ADA. Those claims properly can go forward on the merits only *1124 against the Board of Bar Examiners. This is so because any claims against other defendants in their official capacities are redundant to claims against the Board and properly should be dismissed on that basis, see Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir.1991) (approving dismissal of official capacity defendants whose presence was merely redundant to naming of institutional defendant), and any ADA claims against other defendants in their individual capacities are barred by qualified immunity and in any event are unfounded because the ADA allows recovery only against the entity engaged in the violation, not against individual employees or agents of the entity. See, e.g., Badillo v. Thorpe, 158 Fed.Appx. 208, 211 (11th Cir.2005) ("there is no individual capacity liability under Title II of the ADA" (citing Garcia v. S.U.N.Y. Health Scis. Ctr., 280 F.3d 98, 107 (2d Cir.2001) (collecting cases))).
Mr. Stoddard claims that the same conduct that violated the ADA also violated the Fourteenth Amendment. If that were so, the ADA claims would not be barred by the Eleventh Amendment. See United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006) (holding that Title II of the ADA validly abrogates Eleventh Amendment immunity when the conduct at issue also violates the Fourteenth Amendment). I thus address the ADA claims on the merits.
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Mr. Stoddard has alleged, and for purposes of the instant motion I accept as true, that he is a qualified individual with a disability (either because he has a real impairment covered by the Act, or because he is regarded by the Board as having such an impairment). I assume further that the Board of Bar Examiners is a public entity covered by the Act, and that both membership in the Bar, on the one hand, and the process by which applicants are evaluated, on the other hand, are covered activities.
This does not mean, however, that the Board could not properly inquire into Mr. Stoddard's background, including his mental health. It may be, as he says, that neither his mental health nor anything in his background should preclude his entry into the Florida Bar. And it may be that in some circumstances the mere act of inquiring about or investigating a real or perceived physical or mental impairment constitutes discrimination in violation of the ADA. But Mr. Stoddard's own description of his background, as recounted by the Eleventh Circuit on Mr. Stoddard's earlier appeal, rendered his an application rife with red flags. That an applicant has bipolar disorder or any of a variety of other mental health conditions does not, without more, preclude his admission to the Florida Bar, but neither does such a mental health condition insulate the applicant from a full inquiry into his background and fitness to practice law. The Board thus could properly make the same thorough investigation of Mr. Stoddard's background as it made of every other applicant. And this inquiry could properly include both mental health issues and other apparently unrelated indicia of fitness, such as any history of financial irresponsibility or unprofessional conduct. Finally, the Board of course was entitled to distribute information it obtained on these matters to members of the Board who were involved in the decision making process. Mr. Stoddard has not alleged that the Board did anything more than this.
In sum, to the extent Mr. Stoddard's ADA claims against the Board are not *1125 barred by Younger or Eleventh Amendment immunity, he has failed to state a claim on which relief may be granted. The claims will be dismissed on this basis.
V.
Conclusion
Mr. Stoddard has been afforded (and will continue to be afforded) a full opportunity to present his federal issues in the ongoing proceedings before the Board of Bar Examiners. Mr. Stoddard will be entitled to do so again on review in the Florida Supreme Court and, if dissatisfied with the result there, by filing a petition for certiorari in the United States Supreme Court. Mr. Stoddard may not obtain injunctive relief here and thus interfere with the state's attempt to enforce its laws.
Mr. Stoddard's claims for damages are barred by the Eleventh Amendment or qualified immunity, except, perhaps, to the extent based on the ADA. He has failed to state an ADA damages claim on which relief may be granted.
For these reasons,
IT IS ORDERED:
Defendants' motions to dismiss (documents 16 and 28) are GRANTED. The clerk shall enter judgment stating, "The complaint is dismissed. The dismissal of claims against the defendant Florida Board of Bar Examiners for damages under the Americans with Disabilities Act is with prejudice. The dismissal of claims for damages against other defendants in their individual capacities is with prejudice. In all other respects the dismissal is without prejudice." The clerk shall close the file.
SO ORDERED.
NOTES
[1] For the convenience of the parties, copies of the Lawrence opinions will be attached to this order.*
[* Editors note: Entered separately for WEST-LAW and publication purposes at 2005 WL 2491564 and at 196 Fed.Appx. 858.]
[2] District court decisions are not binding precedent, nor are unpublished Eleventh Circuit opinions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1531672/ | 236 B.R. 145 (1999)
In re Adeyemi O. JAIYESIMI and Olufunke E. Jaiyesimi, Debtors.
In re Sharlene De Ann Taylor, Debtor.
Bankruptcy Nos. 98-B-45592(CB), 98-44293(CB).
United States Bankruptcy Court, S.D. New York.
July 8, 1999.
*146 Albert H. Barkey, New York City, for debtors Adeyemi and Olufunke Jaiyesimi.
DC 37 Municipal Employees by Sheldon Barasch, New York City, for debtor Sharlene De Ann Taylor.
Law Offices of Jeffrey L. Sapir by Jody Kava, White Plains, New York, Chapter 13 Trustee.
New York Housing Authority by Glenda Fussa, New York City.
New York City Law Department, Office of Corporation Counsel by M. Diane Jasinski, Magda M. Deconinck, New York City.
DECISION RE: PENSION LOAN REPAYMENTS AND PENSION CONTRIBUTIONS
CORNELIUS BLACKSHEAR, Bankruptcy Judge.
This matter is before the Court by way of the Standing Chapter 13 Trustee for the Southern District of New York's ("Trustee") objections to confirmation of two Chapter 13 Debtors' reorganization plans and support of the Debtors' motions directing the Debtors' employers to discontinue pension contributions and pension loan repayments. In the observance of administrative efficiency, these two cases have been joined since the Debtors involved are employed by New York City administrative agencies and the Debtors have similarly voluntarily submitted their petitions for bankruptcy relief under Chapter 13 of the Bankruptcy Code. The Trustee believes the amounts in question are part of the Debtors' "disposable income" and should be included as property of the estate. The New York City Employees' Retirement System ("NYCERS") represented in these actions by Corporation Counsel of the City of New York ("Corporation Counsel"), opposes the motions in the belief that the Debtors' contributions and deductions are mandatory and not elective. This decision results from a hearing held on February 4, 1999, and the supporting motions, memoranda of law and transcript submitted to this Court.
ISSUE
At issue is whether or not the Debtors' pension loan repayments and pension contributions are "disposable income" within the meaning of the Bankruptcy Code 11 U.S.C. § 1325(b).
STATEMENT OF FACTS
I. Jaiyesimi
Adeyemi O. Jaiyesimi and his wife Olufunke E. Jaiyesimi ("Jaiyesimi") filed a joint voluntary Chapter 13 petition on August 5, 1998. At the time of filing for bankruptcy relief, Mr. Jaiyesimi worked as a billing manager at Harlem Hospital in New York City receiving an annual salary of approximately $47,000. The proposed Jaiyesimi bankruptcy plan called for monthly payments to the Trustee of $675.00 for 60 months. Upon the Trustee's conducting of the Jaiyesimi's § 341(a) examination on September 17, 1998, the Debtors were advised that the Trustee would object to the confirmation of the plan. The Trustee posited that all of the Debtors' disposable income was not submitted because although the Debtors' Schedule ICurrent Income of Individual Debtorfailed to indicate that the Debtors were making monthly pension contributions of $54.19 and repayments of a pension loan in the additional amount of $65.42, the Debtors' paystubs outlined the above deductions.
Before the formal objections to the plan's confirmation were filed by the *147 Trustee, the Debtors moved on October 19, 1998, to have the pension deductions cease. In opposition to the motion, Corporation Counsel, filed an objection that the pension contributions and pension loan deductions were not "disposable income," but were by statute mandatory payments.
II. Taylor
Sharlene De Ann Taylor filed a voluntary Chapter 13 petition on June 15, 1998. At the time of filing, Ms. Taylor ("Taylor") was employed by the New York City Housing Authority as a secretary receiving an annual salary of $22,790.00. The proposed Taylor bankruptcy plan called for monthly payments of $250.00 for 36 months.
The Trustee at the § 341(a) examination on July 23, 1998, informed the Debtor that the plan's confirmation would be objected to on the basis that all of the Debtor's disposable income was not submitted. The Debtor's Schedule 1 Current Income of Individual Debtor specified that the Debtor was paying $134.20 per month as a pension contribution and $43.55 as repayment of a pension loan. Before the Trustee was able to file formal objections to the plan's confirmation, the Debtor moved to have the pension contributions ceased. In opposition, Corporation Counsel filed an objection that the pension contributions and pension loan deductions were not disposable income, but were statutorily mandatory payments.
DISCUSSION
A. The Pension Loan Repayments
Generally under 11 U.S.C. § 1325(b)(1)(B), Debtors are obligated under their reorganization plans to fund to the property of the estate all of their disposable income. Under 11 U.S.C. § 1325(b)(1)(A) and (B), the Trustee in objecting to a plan's confirmation, enables the Court to approve the plan only if as of the effective date of the plan:
(A) the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim; or
(B) the plan provides that all of the debtor's projected disposable income to be received in the three-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan.
Where the Debtors are not engaged in business (as in these cases), the Code defines "disposable income" as income "which is not reasonably necessary to be expended" (11 U.S.C. § 1325(b)(2)): "(A) for the maintenance or support of the debtor or a dependent of the debtor. . . .". In both cases at bar, the Trustee has concluded that the contributions the Debtors are making to their pension plans and to repay their pension plan debt, fall within the statutory definition of disposable income.
Corporation Counsel posits, however, that the annual wage deductions from the Debtors' payrolls for the pension contributions are mandatory payments. Corporation Counsel relies on the language of § 613(a) N.Y. Retire. & Soc. Sec. Law (McKinney Supp.1996) which states:
Members shall contribute three percent of annual wages to the retirement system in which they have membership. The head of each retirement system shall promulgate such regulations as may be necessary and appropriate with respect to the deduction of such contribution from members' wages and for the maintenance of any special fund or funds with respect to amounts so contributed.
The use of the mandatory "shall" within the language of § 613(a), appears to be drafted within the considered context of ongoing employment. The statute itself does not directly address the issue of continued or discontinued payments in the event of a worker filing for bankruptcy relief.
However, it is through relevant case law that direction is found for the interpretation of "disposable income" and the issue *148 of pension loan repayments. The Trustee points to the courts' decisions in such cases as In re Harshbarger, 66 F.3d 775 (6th Cir.1995), which nearly mirror the facts of this case. In Harshbarger, the Chapter 13 debtor continued to make payments to an ERISA retirement plan. The trustee objected to the bankruptcy plan on the same grounds as the case at bar. The court asserted that the contributions "may represent prudent financial planning, but it is not necessary for the "maintenance or support" of the debtors." Id. at 777 citing In re Scott, 142 B.R. 126, 133 (Bankr.E.D.Va. 1992). As a result, the funds were treated as disposable income.
Citing In re Jones, 138 B.R. 536, 539 (Bankr.S.D.Ohio 1991), the Harshbarger court illustrated further the equitable reasoning of this conclusion:
In these circumstances, "it would be unfair to the creditors to allow the Debtors in the present case to commit part of their earnings to the payment of their own retirement fund while at the same time paying their creditors less than a 100% dividend."[1]
The Trustee further relies on the court's analysis within In re Goewey, 185 B.R. 444 (Bankr.N.D.N.Y.1995). In that case, the Debtor was employed by the State of New York and filed for Chapter 13 bankruptcy relief. The Debtors were having monthly sums from their paychecks deducted to repay their retirement loan. The debate centered around the statutory interpretation of subsection (c) of § 517-C of the New York Retirement and Social Security Law. The statute applied the word "shall" in dictating the procedures to be followed in relation to member loans. It is interesting to note that the language in this section is parallel to the language of § 613b(b) as used by Corporation Counsel in the issue at bar. However in Goewey, the court noted that, "the statute would appear to permit discontinuance of the Debtor's payroll deduction." Id. This is derived from the language of both § 517-C(c) and § 613-b(b) and (c) of the New York Retirement and Social Security Law which provided that payment can be made "by the borrower directly to the retirement board or through regular payroll deduction."
The Second Circuit has determined in the case of In re Villarie, 648 F.2d 810 (2d Cir.1981), that "the debtor's obligation to repay their retirement loan is not a `debt' which gives rise to payment." Further, the Goewey court found that "By operation of law, the retirement board does not possess an allowable `claim' based upon the unpaid amount of the debtors' retirement loan. As a result, it is not entitled to a distribution through the debtors' plan." In re Goewey at p. 447
The court in In re Delnero, 191 B.R. 539, 543 (Bankr.N.D.N.Y.1996), also held that pension loan repayments are to be considered disposable income to be included in the plan. The court, when faced with a letter from the debtor's employer which indicated that the repayment was mandatory, took the time to distinguish between "mandatory" and "a condition of employment." The court emphasized that "the letter does not indicate that repayment is a condition of A. Delnero's employment" Id. In the case at bar, although Corporation Counsel repeatedly mentions to this Court that repayment of a pension loan is mandatory, they have failed to demonstrated to this Court that repayment is a condition of employment.
In lieu of basing their arguments on case law, Corporation Counsel instead relies heavily in basing their argument in the fact that there may be tax consequence for failure of the debtors to continue their pension loan repayments. However, Corporation Counsel fails to provide specific documentation as to how the debtors in the case at bar would be affected, if any. The debtors in both cases at bar have not alleged any potential tax consequences which would adversely affect the plan to *149 the detriment of the unsecured creditors. In fact, the debtors' tax returns indicate that in both cases the debtors have received tax refunds from both the Federal and State governments for the last two years. Further, this Court finds that tax consequences are fact sensitive and therefore, should be analyzed on a case by case basis.[2] This Court echoes the sentiments of the court in In re Jones, 138 B.R. at 539 (Bankr.S.D.Ohio 1991), which concluded that the repayment of pension loans must be considered disposable income and that `to hold otherwise would be to convey a message to debtors contemplating bankruptcy that they may borrow against their retirement funds pre-petition and then insulate the repayment of those monies from their creditors post-petition.'
B. The Pension Contribution
Corporation Counsel concedes that the majority of case law involving voluntary pension contributions to retirement funds where the creditors are receiving less than a 100% dividend hold that the contributions are disposable income. See, In re Delnero, 191 B.R. 539, 542 (Bankr. N.D.N.Y.1996); In re Cornelius, 195 B.R. 831, 835 (Bankr.N.D.N.Y.1995); In re Moore, 188 B.R. 671, 675 (Bankr.D.Idaho 1995); In re Cavanaugh, 175 B.R. 369, 373 (Bankr.D.Idaho 1994); In re Ward, 129 B.R. 664, 668 (Bankr.W.D.Oklahoma 1991).
The use of the mandatory language "shall" is Corporation Counsel's strongest argument in defense of why the contributions to the retirement funds should continue. However, as acknowledged by Corporation Counsel, if the Debtors ceased contributing to the retirement funds the debtors would not be forced to resign from their jobs. Trial Transcript of 02/04/99 ("Tr. Transcript") pp. 13 and Corporation Counsel's Memorandum of law p. 5. In fact, not only will the Debtors not lose their jobs but they will continue to enjoy the benefit of receiving service credit for the duration of their Chapter 13 reorganizations. However, Corporation Counsel argues that there would be a deficit in the Debtors' contributions so that their pensions would be actuarially reduced. (Trial Tr. at pp. 13). While that may be the case, since the Debtors' can elect to buy back that time period when they are out of chapter 13, at a small percentage of interest, it is an option that should be weighed by debtors when contemplating bankruptcy. Based on the facts in the case at bar, this Court finds that the pension contributions are not conditions of employment and they can be discontinued. Therefore, the pension contributions are not mandatory.
CONCLUSION
For the foregoing reasons this Court finds that pension loan repayments must be considered disposable income within the meaning of 11 U.S.C. § 1325 of the Bankruptcy Code which need to be included in the Debtors' plans. The Debtors should not be able to repay themselves while paying their unsecured creditors less than 100%. Further, repayment of pension loans in this Circuit is not a "debt" which gives rise to a right of repayment. Therefore, the pension loan deductions in both cases should be discontinued. Additionally, based on the facts in the case at bar, this Court finds that the pension contributions of these Debtors are not a condition of their employment and should be discontinued.
The Trustee shall settle an order on five (5) days notice reflecting the decision of this Court.
NOTES
[1] In re Harshbarger, 66 F.3d 775, 778 (6th Cir.1995).
[2] If the tax consequence, however, outweighs the benefit to the creditors, then some weight should be given to the tax consequence argument. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/388350/ | 644 F.2d 357
UNITED STATES of America, Plaintiff-Appellee,v.John Jay ELSOFFER, Defendant-Appellant.
No. 80-7236
Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Unit B
April 27, 1981.
Bruce E. Pashley, Atlanta, Ga., for defendant-appellant.
Richard B. Russell, Richard W. Hendrix, Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before TJOFLAT, VANCE and THOMAS A. CLARK, Circuit Judges.
PER CURIAM:
1
Defendant John Jay Elsoffer was found guilty of knowingly possessing with intent to distribute approximately three hundred grams of cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1). The defendant, who was apprehended at Atlanta's Hartsfield Airport by Drug Enforcement Administration Agents Terry Mathewson, Gerald Chapman, and Paul Markonni, moved to suppress the evidence pursuant to 28 U.S.C. § 636(b), and an evidentiary hearing was held on the motion on November 1, 1979, before a United States Magistrate. On December 21, 1979, the magistrate filed his report and recommendation with the district court recommending that the defendant's motion be denied, and on February 1, 1980, the magistrate's report was adopted as the opinion and order of the district court. Defendant Elsoffer then waived a jury trial and was found guilty by the court based upon a stipulation of facts. From this conviction, Elsoffer now appeals. We retain jurisdiction of the appeal and remand.
2
The sole issue which we consider on appeal, is whether the record must reflect with certainty that a trial judge actually read the transcript of the hearing before a magistrate on a motion to suppress, before adopting the magistrate's recommendation. We hold that it must.
3
In the Fifth Circuit, it is now settled that a defendant's due process rights are not violated when a district judge refers a motion to suppress to a magistrate, reviews the record of the hearing before the magistrate, and adopts the magistrate's recommendations. In United States v. Marshall, 609 F.2d 152 (5th Cir. 1980), this court considered the question of whether a district court had erred in denying a motion to suppress after a magistrate had conducted a hearing and recommended granting the motion, without consulting the transcript of the hearing. Judge Hill, writing for this court, concluded:
4
In this circuit a district judge who reviews the record of the hearing before the magistrate and adopts the magistrate's recommendations need not conduct a new hearing....
5
(Nevertheless,) the district judge err(s) in rejecting the recommendation of the magistrate without at least consulting the transcript of the hearing before the magistrate.
6
Id. at 155.
7
Without reaching the merits of the constitutional issues raised by appellant regarding an alleged illegal search and use of the "Drug Courier Profile," we are disturbed by the uncertainty reflected in the record as to whether the trial court actually read the transcript of the hearing before the magistrate.
8
In Mathews v. Weber, 423 U.S. 261, 96 S. Ct. 549, 46 L. Ed. 2d 483 (1976), one of the earliest Supreme Court cases interpreting § 636(b) of the United States Magistrates Act, 28 U.S.C. §§ 631-639, the Supreme Court discussed the abuses which could arise under a system of referral to judges not appointed pursuant to Article III of the Constitution. The committee reports indicated that Congress had considered and dealt with the problem in two ways, first by limiting referral to cases "not inconsistent with the Constitution," and second by limiting the magistrate's authority in cases referred pursuant to § 636(b). During one of the hearings Senator Tydings testified, "(a) district judge would retain ultimate responsibility for decision making in every instance in which a magistrate might exercise additional duties jurisdiction." (House Hearing 573). From these discussions, the Supreme Court concluded:
9
The magistrate may do no more than propose a recommendation, and neither § 636(b) nor the General Order gives such recommendation presumptive weight.... The authority and the responsibility to make an informed, final determination, we emphasize, remains with the judge.
10
Mathews v. Weber, 423 U.S. at 270-71, 96 S.Ct. at 554.
11
In the instant case, we have considered the record on appeal in light of Mathews, and are left with uncertainty as to whether the district court read the transcript of the hearing on the motion to suppress. The constitutional safeguards, as established by Congress and interpreted by the courts, are such that an appellate court must be satisfied that a district judge has exercised his non-delegable authority by considering the actual testimony, and not merely by reviewing the magistrate's report and recommendations.
12
In the instant case, the trial court's order denying the motion to suppress nowhere states that a reading of the transcript informed its decision.1 More to the point is a conversation which occurred between defense counsel and the district court during a February 4, 1980, proceeding in which the parties stipulated facts. Although the hearing on the motion to suppress was held November 1, 1979, and docketed December 21, 1979, the following dialogue occurred:
THE COURT:
13
Well, what we better do, then has the record of the magistrate been typed anyway, hasn't it?
DEFENSE COUNSEL:
Yes, it has, Your Honor.2
14
Appellant now argues that this conversation suggests that the trial court failed to consider the transcript of the hearing before the magistrate, and therefore the trial court unconstitutionally relied upon the magistrate's findings and recommendation. While we cannot agree that the conversation is dispositive of the factual question as to whether the transcript was properly considered, we do agree that the remarks are sufficiently ambiguous to cause us to remand in order to be certain that the testimony was considered.
15
The authority to grant or deny a motion to suppress must be retained by a judge appointed pursuant to Article III of the Constitution. As the Supreme Court in Mathews put it, "the magistrate acts 'under the supervision of the district judges' when he accepts a referral, and that authority for making final decisions remains at all times with the district judge."3 When the record does not disclose that the judge exercised that supervision and authority, adherence to the rule laid down in Mathews is an open question which must be resolved.
16
We retain jurisdiction of the appeal and remand to the district court for the limited purpose of considering defendant's motion to suppress and advising this court within thirty days, if possible, the ruling on the motion.
17
REMANDED.
1
Record, vol. I, at 130 reads:
After having carefully reviewed the Magistrate's Report and Recommendation on Motion to Suppress in this case, it is received with approval and adopted as the opinion and order of the Court.
2
Record, vol. III, at 330
3
Mathews v. Weber, 423 U.S. at 270, 96 S.Ct. at 554 (1976) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/491929/ | 824 F.2d 977
Unpublished dispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Zell E. HUDSON, Petitioner,v.DEPARTMENT OF the NAVY, Respondent.
Appeal No. 87-3039.
United States Court of Appeals, Federal Circuit.
April 27, 1987.
Before FRIEDMAN, NEWMAN and ARCHER, Circuit Judges.
ARCHER, Circuit Judge.
DECISION
1
The decision of the Merit Systems Protection Board (MSPB or board) sustaining the removal of petitioner from his position as a packer at the Naval Supply Center, Norfolk, Virginia, is affirmed.
OPINION
2
Petitioner was removed from his position due to his physical inability to perform his job. The Department of Navy (agency), in lieu of removal, offered him a restructured position to accommodate his physical (back) condition which he refused. Representing himself, petitioner appealed to the MSPB, where the presiding official upheld the agency's removal. He then filed a petition for review to the full board claiming that his mental state rendered him incapable of deciding correctly on the reassignment offered by the agency or of adequately representing himself. The full board declined review on the basis that petitioner did not present medical documentation of his mental incapacity.
3
Petitioner then obtained counsel and appealed to this court claiming again that his mental condition caused him to decline the offer of reassignment, to his prejudice, and rendered him incapable of pro se representation. We held that the evidence gave rise to a substantial doubt that petitioner was capable of rational decisionmaking and remanded the case to the MPSB with instructions to hold a hearing at which petitioner, represented by counsel, would have the opportunity to establish whether he was mentally disabled. See Hudson v. Department of the Navy, No. 85-960 (Fed.Cir. August 15, 1985).
4
On remand, the presiding official concluded that petitioner failed to establish that he suffered from a mental disability which would have rendered him incapable of making a rational decision regarding the offer of reassignment. In denying the petition for review of this decision, the full board concluded that the presiding official correctly gave petitioner's psychiatric report1 little probative value because it was based upon only one interview, did not indicate that it relied on any testing of petitioner, and found that petitioner did not appear to be grossly disturbed. The board also noted the 1980 Board of Veterans Appeals report, submitted by petitioner, stated that he did not exhibit signs of inappropriate or psychotic behavior and that he did not have an impairment in perception or thought process. Further, it said that the 1984 Western Tidewater Mental Health Center report indicated that petitioner displayed adequate decisionmaking and problem solving skills.
5
In this appeal, petitioner contends that the evidence presented below was sufficient to satisfy his burden of establishing mental disability by a preponderance of the evidence. This court's scope of review of the MSPB's decision, however, is defined and limited by statute. The decision must be affirmed unless it is found to be:
6
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
7
(2) obtained without procedures required by law, rule, or regulation having been followed; or
8
(3) unsupported by substantial evidence....
9
5 U.S.C. Sec. 7703(c). See Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984). Under this standard of review, this court will not overturn an MSPB decision if it is supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Brewer v. United States Postal Service, 647 F.2d 1093, 1096 (Ct.Cl.1981), cert. denied, 454 U.S. 1144 (1982) (quoting Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229 (1938)).
10
We conclude that the decision of the MSPB is supported by substantial evidence and affirm on the basis of the opinions of the presiding official and the full board.
1
The board did not err in refusing to consider Dr. Mostek's letter, which was written more than four months after the presiding official's remand decision. See 5 C.F.R. Sec. 1201.114 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/988794/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5896
OLAWALE AKERE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CR-94-174-A)
Argued: February 1, 1996
Decided: March 29, 1996
Before WIDENER and MURNAGHAN, Circuit Judges, and
DOUMAR, United States District Judge for the Eastern District of
Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Thomas Durbin Hughes, IV, WADE, HUGHES, &
SMIRCINA, P.C., Alexandria, Virginia, for Appellant. Bernard James
Apperson, III, Assistant United States Attorney, Alexandria, Virginia,
for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,
Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Olawale Akere was convicted by a jury of one count of conspiracy
to possess with intent to distribute heroin, in violation of 21 U.S.C.
§ 846. On appeal, he challenges the district court's finding that he
voluntarily absented himself from a portion of the trial, and the drug
quantity attributed to him for sentencing purposes. We affirm both the
conviction and the sentence.
I.
Akere was involved in a conspiracy in which he supplied heroin
over a period of years to Dwayne Jackson, a heroin distributor in the
Washington, D.C. metropolitan area, including Northern Virginia.
Akere was based in New York City, and traveled to Washington on
a regular basis to supply Jackson in the late 1980s and early 1990s.
Jackson, who was named in the same indictment as Akere, and a mid-
dleman, Bobby Smith, pled guilty to various charges, and then testi-
fied against Akere at trial.
After three days of testimony, a jury returned a conviction on Sep-
tember 1, 1994. At sentencing, the district judge determined that
Akere was accountable for 14.4 kilograms of heroin pursuant to the
drug quantity table in United States Sentencing Commission,
Guidelines Manual (USSG), § 2D1.1 (Nov. 1994). The resulting
Guideline range determined by the court was 188 to 235 months. The
district court sentenced Akere at the low end of the range, 188
months, followed by five years of supervised release. The court also
ordered him to pay a mandatory special assessment of $50. Akere
timely filed an appeal on November 22, 1994, challenging both his
conviction and his sentence.
2
II.
A.
On August 31, 1994, while the jury was deliberating and without
permission of the court, defendant left the courthouse. It is now indi-
cated that he may have left for the purpose of going to a nearby phar-
macy to obtain medication for his children. While on this errand,
defendant allegedly was struck by a car and then taken to a local
hospital.1
Not knowing defendant's whereabouts, that evening counsel
appeared in chambers before Chief District Judge James Cacheris,
who ordered defendant's bond revoked and issued a warrant for his
arrest. The next day, September 1, 1994, the jury requested a re-
instruction on the elements of conspiracy. Defendant was then at the
hospital, and agents were there with him. Counsel and the court dis-
cussed what would be said to the jury about defendant's absence.
During this discussion, the court said:
He had no permission to leave here for an errand. I didn't
excuse anyone to leave while this Court was in session . . .
I find that [his absence was voluntary]. I did not excuse him,
and he was expected to be here. He voluntarily went off on
some mission of his own . . . you [defense counsel] haven't
represented any legitimate reason [for defendant's depar-
ture], but he didn't seek any excuse from me to leave. The
trial was going on, and I will make that finding and have
made that finding. Now the only question is, what do you
want me to tell this jury?
Joint Appendix 667-68 (hereafter "J.A.").
_________________________________________________________________
1 There is no evidence in the record that defendant Akere was in fact
struck by a car. Nor does the record contain the hospital records that
would reflect the injury allegedly suffered by defendant. Counsel for the
United States suggested at oral argument that the claim that Akere was
struck by a car was "dubious." We need not resolve this dispute, because
it does not affect the analysis.
3
Defense counsel objected to the characterization that defendant's
absence was voluntary, and then requested that, given the alternatives,
the jury be "informed that [defendant] has waived his presence for the
purpose of this question." (J.A. 668). That was the statement made to
the jury by the Court:
The defendant, Mr. Akere, has waived his presence for the
purpose of this question that you have.
(J.A. 669.) Although the original jury instructions are not contained
in the record before this court, counsel for defendant conceded at oral
argument that the district court delivered the same instruction it had
originally given to the jury regarding the elements of conspiracy.
Defendant did not miss any other portion of the trial. Counsel for
defendant argued in his brief that defendant was also absent for the
rendering of the jury verdict. This contention is contradicted by the
record. When the jury returned, the Clerk asked the jury whether it
had reached a verdict. While the Court examined the verdict, the
Clerk stated "Will Defendant Akere please rise." (J.A. 674). Moments
later, the Court stated: "You are in the custody of the Marshal, Mr.
Akere." (J.A. 677). Thus, both the presiding judge and the clerk, indi-
vidually, addressed the defendant on the record. Quite obviously, they
would not have done so unless he had been present at that time.
B.
A trial court's decision to proceed without a defendant is reviewed
under an abuse of discretion standard, and its factual finding that
defendant was voluntarily absent will not be disturbed unless clearly
erroneous. United States v. Camacho, 955 F.2d 950, 953 (4th Cir.
1992). An erroneous finding that defendant was voluntarily absent is
subject to harmless error analysis. United States v. Harris, 814 F.2d
155, 157 (4th Cir. 1987).
C.
A criminal defendant has a right to be present at all stages of the
trial. This right is based in both the Constitution and the Federal
4
Rules. The Sixth Amendment requires the defendant's presence when
testimony is presented against him, and the right has also been
extended under the Due Process Clause to be present"at all stages of
the trial where his absence might frustrate the fairness of the proceed-
ings." Faretta v. California, 422 U.S. 806, 819 n.15 (1975).
Federal Rule of Criminal Procedure 43 also gives a defendant an
explicit right to be present. It provides, in pertinent part, as follows:2
(a) Presence Required. The defendant shall be present at
the arraignment, at the time of the plea, at every stage of the
trial including the impaneling of the jury and the return of
the verdict, and at the imposition of sentence, except as oth-
erwise provided by this rule.
(b) Continued Presence Not Required. The further prog-
ress of the trial to and including the return of the verdict
shall not be prevented and the defendant shall be considered
to have waived the right to be present whenever a defendant,
initially present,
(1) is voluntarily absent after the trial has
commenced (whether or not the defendant has been
informed by the court of the obligation to remain
during trial).
(emphasis added). At its writing, Rule 43 was intended to be a "re-
statement of existing law." Fed. R. Crim. P. 43, 1944 advisory com-
mittee's notes, ¶ 1. It "has traditionally been understood to codify
both a defendant's constitutional right and his common law right to
presence." United States v. Camacho, 955 F.2d 950, 953 (4th Cir.
1992). Rule 43 is clear that a defendant may not be tried in absentia
if he is missing at the beginning of trial, Crosby v. United States, 113
S.Ct. 748, 753 (1993), but once trial commences, the court may pro-
ceed without defendant if he leaves voluntarily.
_________________________________________________________________
2 The rule is set forth as it stood at the time of trial. It has since been
amended. The amendment has no effect on this case.
5
The right to be present at trial cannot be deemed to have been
waived merely because the defendant is not present when he should
have been. A court should inquire as to a defendant's whereabouts.
"The Court should try to find out where the defendant is and why he
is absent, and should consider the likelihood the trial could soon pro-
ceed with the defendant, the difficulty of rescheduling, and the burden
on the government." United States v. Rogers , 853 F.2d 249, 252 (4th
Cir.), cert. denied, 488 U.S. 946 (1988).
We cannot say that the trial court's finding regarding the voluntary
nature of defendant's absence was clearly erroneous. 3 Regardless of
whether defendant was informed of his obligation to remain -- Rule
43 expressly provides that such notice is not relevant -- the critical
question is whether defendant chose to absent himself.
To be sure, once Akere left the courthouse, he presumably did not
"choose" to be hit by a car and hospitalized (assuming this did in fact
occur). But the assessment of whether a defendant is"voluntarily"
absent cannot turn on the ill fate that befalls a defendant once he
chooses to leave. Rather, the determination of "voluntariness" must
depend on the circumstances surrounding defendant's decision to
leave in the first instance. The record is uncontradicted that defendant
walked out of the courthouse, and absented himself from trial while
the jury was sitting. There is no suggestion that defendant was
coerced into making that choice.
Nor can we say that the court's decision to proceed without the
defendant was improper. Although the court below did not mechani-
cally apply all the factors set forth in Rogers , it did inquire about
defendant's absence, and determined that he was then in the hospital.
Obviously, at that stage in the proceedings, with the jury already
retired, the court had to weigh the interests of interrupting the jury
deliberations against the defendant's right to be present at the jury
_________________________________________________________________
3 There is some dispute in the factual presentation by the parties about
whether the Court was in recess for lunch, see Def. Br. at 4, or merely
in the midst of jury deliberations. See Govt. Br. at 3. The district judge
stated that the court was "in session" at the time defendant left the court-
house. (J.A. 668). That statement of the court resolves the dispute.
6
reinstruction. We cannot say that the court's conclusion was an abuse
of discretion.
Moreover, any possible error was harmless. Defendant was absent
for one jury question. The district judge responded by giving the same
instruction on the elements of conspiracy that he had previously
given. (J.A. 670-73). The jury was told that defendant had waived his
right to be present, and, significantly, was not told that he was volun-
tarily absent. We are convinced that defendant's absence from this
brief proceeding, in which the district judge reiterated what he had
previously told the jury in the defendant's presence, was harmless.
See United States v. Rogers, 853 F.2d 249, 251-52 (4th Cir.), cert.
denied, 488 U.S. 946 (1988) (harmless error where defendant absent
for trial testimony in light of curative measures taken by district
court); United States v. Arriagada, 451 F.2d 487, 489 (4th Cir. 1971),
cert. denied, 405 U.S. 1018 (1972) (harmless error where court
responded to jury query about instructions with a written response --
without advising counsel or defendant in advance-- that conformed
to prior instructions).
III.
Akere also challenges the trial court's finding that 14.4 kilograms
of heroin should be attributed to defendant for sentencing purposes.
The drug quantity is a factor in determining the offense level under
the Guidelines. It bears emphasis that the offense level determined
here (level 36) is triggered by at least 10 kilograms of heroin. USSG
§ 2D1.1(c)(2). We review this finding for clear error. 18 U.S.C.
§ 3742(e); United States v. Williams, 977 F.2d 866, 869 (4th Cir.
1992).
Thus, the determination here is whether the trial court erred in find-
ing that there was at least 10 kilograms of heroin attributable to defen-
dant.
A.
The trial court's finding was based largely on the testimony of
Bobby Smith, a cooperating witness in the case to whom defendant
7
supplied heroin (Smith then supplied it to Dwayne Jackson, a distrib-
utor in the Washington, D.C. area). Smith testified at trial that defen-
dant Akere supplied him with 200 grams of heroin two or three times
per month, during a period from early 1988 through May, 1991. (J.A.
58-59, 62-63). In the Presentence Report, the Probation Officer gave
the defendant the benefit of the doubt, by conservatively calculating
the drug quantity based on deliveries of twice a month over a period
of 36 months. This yielded a total of 14.4 kilograms,4 resulting in a
base offense level of 36 under the Guidelines.
B.
The Sentencing Guidelines provide that in conspiracy cases, as this
is, "all reasonably foreseeable acts and omissions of others in further-
ance of the jointly undertaken criminal activity" shall be imputed to
defendant. USSG § 1B1.3(a)(1)(B); United States v. Vinson, 886 F.2d
740, 742 (4th Cir. 1989). The focus is on activities that are "reason-
ably foreseeable in connection with the criminal activity the defen-
dant agreed to undertake." USSG § 1B1.3, comment. (n.2); United
States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993).
We have carefully reviewed the record, and find that there is ample
evidence to support the district court's finding that there was at least
10 kilograms of heroin attributable to the defendant. There was con-
siderable testimony, both by Bobby Smith and Dwayne Jackson,
about the numerous instances in which Akere supplied heroin to his
co-conspirators. Even if Akere supplied Smith on a monthly basis for
just 24 months -- the defendant disputed the duration of these supply
missions -- that would be sufficient for a finding of 9,600 grams, or
9.6 kilograms. Combined with other testimony of specific instances,
see J.A. 51-53 (200 grams), 55-56 (1.5 kilograms), 243-245 (500
grams), the quantity attributable to Akere easily exceeds 10 kilograms
of heroin. In addition, Dwayne Jackson, who distributed the heroin,
testified that Akere was frequently bringing "500 grams or more" on
his regular visits to Smith's apartment. (J.A. 247-48). Finally, there
was evidence that defendant was aware that Jackson was "cutting" the
heroin and mixing it with other substances -- thus increasing the
_________________________________________________________________
4 The calculation is as follows: 400 grams x 36 = 14,400 grams or 14.4
kilograms.
8
weight of the drugs. (J.A. 59). Under the Sentencing Guidelines, the
weight of the drugs includes the "entire weight of any mixture."
USSG § 2D1.1 (Notes to Drug Quantity Table, Guidelines Manual at
85).
We cannot say that the district court's finding was clearly errone-
ous. We therefore affirm the sentence imposed.
IV.
Because we find no reversible error, we affirm both the conviction
and the sentence of defendant Akere.
AFFIRMED
9 | 01-03-2023 | 07-03-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/988821/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5416
ANTOINE LAMONTE MOBLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
William L. Osteen, Sr., District Judge.
(CR-95-30)
Submitted: November 28, 1995
Decided: March 28, 1996
Before HALL and NIEMEYER, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Clifton T. Barrett, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Antoine Lamonte Mobley appeals his conviction and
sentence pursuant to his guilty plea to being a felon in possession of
a firearm which moved in interstate commerce. 18 U.S.C. § 922(g)(1)
(1988 & Supp. V). The Appellant raises two issues on appeal. First,
Appellant suggests that § 922(g) is unconstitutional in light of the
Supreme Court's recent opinion in United States v. Lopez, ___ U.S.
___, 63 U.S.L.W. 4343 (U.S. Apr. 26, 1995) (No. 93-1260). Second,
he asserts that the term of supervised release announced at the sen-
tencing hearing controls over the inconsistent term found in the writ-
ten formal judgment. Because we find that § 922(g) withstands
constitutional scrutiny, we affirm his conviction. However, we vacate
Mobley's sentence and remand for the sole purpose of correcting the
clerical error concerning the term of supervised release in the written
judgment.
Appellant argues that the Supreme Court's decision in United
States v. Lopez mandates reversal of his conviction. We disagree.
Although we have not addressed the impact of Lopez on a § 922(g)
conviction, two other circuits have considered and rejected similar
constitutional challenges. See United States v. Mosby, 60 F.3d 454,
456 (8th Cir. 1995); United States v. Hanna, 55 F.3d 1456, 1462 (9th
Cir. 1995).
We find the logic of the Eighth and Ninth Circuit decisions persua-
sive. The Eighth Circuit quoted the "in or affecting commerce" lan-
guage of § 922(g) to find that the section logically belonged in a
category of activity that Congress may regulate. Mosby, 60 F.3d at
456 n.3; see Lopez, 63 U.S.L.W. at 4346. Similarly, the Ninth Circuit
determined that § 922(g) possessed the jurisdictional element which
the provision at issue in Lopez lacked. Hanna, 55 F.3d at 1462 n.2
The Hanna court found that the requirement that the firearm at some
2
time been involved in interstate commerce to be sufficient to establish
its constitutionality under the Commerce Clause. Id.
Provisions criminalizing possession of firearms under the Com-
merce Clause have continuously been upheld. A minimal connection
with interstate commerce is sufficient to allow Congress to assert its
broad regulatory powers in the area of firearm possession. See
Scarborough v. United States, 431 U.S. 563, 575 (1977). When
addressing a number of federal firearm provisions, including
§ 922(g), this court held that "[t]he federal statute criminalizing the
possession of a firearm by a felon [18 U.S.C.A.§ 924(e) (West Supp.
1995)] does not violate the Commerce Clause because sufficient
nexus exists between the harm of firearms and interstate concerns."
United States v. Presley, 52 F.3d 64, 67 (4th Cir. 1995). We find that
Congress properly enacted § 922(g). Accordingly, we affirm Mob-
ley's conviction.
Mobley and the Government agree that the controlling term of
supervised release should be the three-year term announced at the
sentencing hearing and not the five-year term stated in the formal
written judgment. If there is any conflict between the written order
and oral sentence, the oral sentence is controlling. United States v.
Morse, 344 F.2d 27, 29 n.1 (4th Cir. 1965). If a sentence is imposed
in violation of the law, the proper remedy is to remand the case so
that the district court may correct the written judgment so it conforms
with the oral pronouncement at the sentencing hearing. See Fed. R.
Crim. P. 35(a). We therefore vacate the portion of the sentence in the
written judgment dictating the term of supervised release. We remand
for the solitary purpose of allowing the district court to correct the
written judgment to conform with the three-year supervised release
period announced at the sentencing hearing.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
3 | 01-03-2023 | 07-03-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555764/ | 36 So.3d 132 (2010)
James Earl JACKSON, Appellant,
v.
STATE of Florida, Appellee.
No. 5D09-1380.
District Court of Appeal of Florida, Fifth District.
April 30, 2010.
Rehearing Denied June 4, 2010.
*133 James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
TORPY, J.
The sole issue framed for our review is whether the trial court erred in concluding that there existed an objectively reasonable basis to stop the vehicle in which Appellant was a passenger. Our disposition of this issue turns on whether police officers had "reasonable suspicion" to believe that the car contained a person who was the subject of outstanding arrest warrants, justifying the detention. Concluding that reasonable suspicion did support the stop, we affirm.
In early July 2008, Donald Evans, who had numerous outstanding arrest warrants, eluded Marion County deputies following a high speed pursuit. A week later, the Marion County Sheriff's Office received an anonymous tip through "crime stoppers" that Evans was staying at a house near Vanguard High School. Sheriff's Deputy Collins then contacted Courtney Wilson, Evans' bail bondsman, who Collins knew also desired to apprehend Evans. Wilson related that he had driven by the same house earlier in the day and "thought he had seen [Evans] out in front of the house." Wilson agreed to meet officers in the area of the house to assist them in attempting to find Evans. Once Wilson arrived in the area, it was agreed that he would watch the house and notify officers if he saw Evans.
Around midnight, Wilson saw a car pull up and stop at the house. Several people congregated around the car, then got in it and hurriedly drove away. Deputy Collins testified that Wilson informed him that Evans was a passenger in the car. Wilson denied telling Deputy Collins that Evans was in the car, but acknowledged that he informed Sheriff's deputies that the car was leaving at an accelerated rate of speed and that they should stop the car. In any event, the deputies stopped the car and ordered the occupants out at gunpoint. Evans was not among the occupants.[1] Appellant was one of the occupants in the car. During the stop, deputies located a gun beneath Appellant's seat and arrested him for possession of a firearm by a convicted felon.[2] The trial court did not specifically resolve the apparent conflict in the testimony regarding what Wilson had told the deputies. It did find, however, that the *134 stop was not the product of "whim, caprice or desire to harass all drivers leaving Evans' house." It concluded that, under the totality of the circumstances, the police officers acted reasonably in stopping the vehicle. We agree.
Reasonable suspicion is an amorphous legal concept. Ornelas v. United States, 517 U.S. 690, 695-96, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The courts define it not by what it is, but by what it isn't. It's something more than a "mere hunch," but "considerably less" than a preponderance of the evidence. Wallace v. State, 8 So.3d 492, 494-95 (Fla. 5th DCA 2009) (quoting Ornelas, 517 U.S. at 695-96, 116 S.Ct. 1657). A "mere hunch" is a suspicion based on bare intuition alone without supporting facts. Id.
Whether Wilson had a reasonable belief that Evans was in the car is not the question here. The question is whether the deputies had a reasonable belief that Evans was in the car. Under these circumstances, we conclude that they did. The deputies were looking for Evans, a wanted felon. They believed he might be found at a particular house, based on information supplied by both an anonymous tip and Wilson. They set up surveillance for the express purpose of locating him. Wilson, who was familiar with Evans, agreed to watch for him and notify the deputies of Evans' presence. When Wilson advised them to stop a particular car that was leaving the area hurriedly, it was reasonable for the deputies to believe that Evans was in the car, whether Wilson actually saw Evans or not.
AFFIRMED.
EVANDER, J., concurs.
COHEN, J., dissents with opinion.
COHEN, J., dissenting.
I would reverse the trial court's order denying Appellant's dispositive motion to suppress because the deputies lacked a well-founded suspicion of criminal activity to justify the stop.
The difficulty with this case stems from the trial court's failure to make a finding as to whose testimony it found believable. What we are left with are the findings made in the written order denying the motion to dismiss, which reflect that while Courtney Wilson might have seen Donald Evans at the home earlier in the day, he did not see him at the home while he conducted surveillance. Wilson merely observed a small red sedan stop at the home where Evans was believed to be staying. There was no evidence Evans was in the sedan as it approached the home, and although he observed people congregate around the sedan, Wilson "could not tell if anyone got in the vehicle but did see the vehicle leave the residence at a high rate of speed." Based upon this scant amount of information, Wilson communicated with waiting deputies to stop the sedan.
Rather than address the conflicting testimony of Deputy Collins and Wilson, the trial court relied upon the fact that law enforcement had received an anonymous tip that placed Evans in the area, he had recently eluded the deputies, had outstanding arrest warrants, and a car was seen leaving the house at a high rate of speed.[1] The majority believes this sufficient to justify the stop of the vehicle. I disagree.
The trial court relied upon State v. Lopez, 923 So.2d 584 (Fla. 5th DCA 2006), to justify the stop of the vehicle. When reviewing a trial court's ruling on a motion to suppress, this court employs a mixed standard of review. The trial court's findings *135 of historical fact are accorded a presumption of correctness, unless they are not supported by competent, substantial evidence. Connor v. State, 803 So.2d 598, 608 (Fla.2001); McMaster v. State, 780 So.2d 1026, 1028 (Fla. 5th DCA 2001). However, the trial court's application of the law or its ruling on issues of mixed questions of law and fact are reviewed de novo. Id. An officer's mere suspicion or hunch that criminal activity is afoot is insufficient to uphold an investigatory stop. Lopez, 923 So.2d at 584. Rather, the police must have a well-founded suspicion that the person committed, was committing, or was about to commit a crime. Id. at 586. This suspicion must be rooted in the factual circumstances observed by the officer and interpreted in light of the officer's knowledge. Id. at 587; McMaster, 780 So.2d at 1029. It is the circumstances, viewed in their totality, that determine whether an investigatory stop passes constitutional muster. Lopez, 923 So.2d at 587.
In Lopez, an officer received an email from Lopez's probation officer that Lopez was violating his community control by driving. The probation officer gave the officer Lopez's address and advised that Lopez was a painter who left for work early in the morning. After verifying that Lopez's license was suspended and obtaining Lopez's photograph, the officer drove by the residence and observed a Jeep, with a ladder attached, in the driveway. The Jeep was registered to a woman with the same address as Lopez. Although the officer did not see who got into the Jeep, he observed it leave the house and stop at an intersection with the turn signal activated. Despite having the opportunity to turn, the Jeep remained at the intersection, allowing the officer to drive by and observe a man driving. Upon seeing the police car, the driver of the Jeep abruptly turned and sped back to Lopez's address. The Jeep was subsequently stopped and Lopez was confirmed to be the driver.
The trial court granted Lopez's motion to suppress, finding that the officer did not have a reasonable suspicion to stop the Jeep because it was registered to a woman, he did not see who was driving, and no traffic laws were violated. This court reversed, finding that the totality of the circumstances provided reasonable suspicion that Lopez was driving the Jeep, thereby violating his community control.
In the case at bar, the house was not Evans' known or listed address. Evans was not seen at the house prior to the car pulling up and stopping. There were no distinguishing characteristics of the car that associated it with Evans, unlike Lopez where the truck was consistent with Lopez's occupation as a painter. Neither Evans, nor anyone matching his description, was seen entering or exiting the car. In fact, the deputies had no information regarding the driver or passengers in the car. The lack of any information corroborating the anonymous tip, facts linking Evans with the house or the car, or observations of criminal activity distinguishes this case from Lopez.
At best, the deputies stopped the car based on an unsubstantiated hunch, similar to the officers in Tinson v. State, 650 So.2d 189 (Fla. 2d DCA 1995). Accordingly, I would reverse.
NOTES
[1] Evans was arrested later that evening at the residence in question.
[2] After the stop, Appellant told deputies that he had a gun. The use of this statement and the retrieval of the gun based on the admission is not an issue on appeal.
[1] No traffic violation was asserted as a basis for the stop. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556171/ | 798 F. Supp. 77 (1992)
Pedro L. RODRIGUEZ PINTO, Plaintiff,
v.
Cirilo TIRADO DELGADO, etc., et al., Defendants.
Civ. No. 86-0918 GG.
United States District Court, D. Puerto Rico.
April 2, 1992.
*78 Héctor Urgell Cuebas, San Juan, P.R., for plaintiff.
Mayra Maldonado Colón, Federal Litigation Div., Dept. of Justice, San Juan, P.R., for defendants.
OPINION AND ORDER
GIERBOLINI, Chief Judge.
This case arises from the transfer of plaintiff, a career employee of the State Insurance Fund (SIF), from his position as Chief of the Finance Division of the Treasury Area, to his current position as Assistant Chief of the Collections and Attachment Division. Plaintiff is a member of the Partido Nuevo Progresista (PNP) who has brought a cause of action alleging that he was demoted and constructively discharged from his prior position because of his PNP political affiliation. Plaintiff claims his transfer was in violation of the First and Fourteenth Amendments to the U.S. Constitution; 42 U.S.C. § 1983; 28 U.S.C. §§ 2201, 2202; Section I, Article II of the Commonwealth of Puerto Rico's Constitution; and 3 L.P.R.A. § 1312 et seq. Plaintiff seeks declaratory and injunctive relief, back pay, damages, reinstatement, and other relief.
Defendants claim that plaintiff's transfer from his former position to his current one as Assistant Chief of the Collections and *79 Attachment Division was pursuant to a reorganization plan implemented by the SIF Administrator, Cirilo Tirado Delgado, shortly after taking office. Defendants state that neither plaintiff's salary nor his job classification were affected by such reorganization. Defendants further claim that plaintiff has failed to allege facts sufficient to constitute a violation of either the First or Fourteenth Amendments. Defendants' final contention is that even if a violation of plaintiff's First Amendment right to freedom of association could be established; defendants are still entitled to qualified immunity, since the law regarding the First Amendment's application to cases of political discrimination in personnel actions short of dismissal, was not clearly established at the time of their alleged discriminatory actions.
SUMMARY JUDGMENT
The decision whether or not to grant summary judgment rests on a determination as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986).
Summary judgment is an appropriate remedy "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Brennan v. Hendrigan, 888 F.2d 189, 191 (1st Cir. 1989). Not all conflicts of fact will bar summary judgment, "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment, the requirement is that there be no genuine issue of material fact." Liberty Lobby, 477 U.S. at 247, 248, 106 S.Ct. at 2510 (emphasis in original); see also Medina Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 7-8 (1st Cir.1990). A fact is material only if it affects the outcome of the suit. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510.
The nonmoving party bears the burden of production of showing that summary judgment is not appropriate by coming forward with specific facts showing that there is a genuine issue for trial, it is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 586, 587, 106 S. Ct. 1348, 1356, 1356, 89 L. Ed. 2d 538 (1986); R.J. Reynolds, 896 F.2d at 8.
In deciding whether summary judgment is proper, the court must view the record in the light most favorable to the party opposing such motion, and indulge all inferences favorable to that party. Celotex Corp. v. Catrett, 477 U.S. 317, 324-325, 106 S. Ct. 2548, 2553-2554, 91 L. Ed. 2d 265 (1986); Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970); and Amsden v. Moran, 904 F.2d 748, 752 (1st Cir.1990). A nonmoving party's evidence cannot be merely colorable, but must be significantly probative to show differing versions of the facts which justify a trial, R.J. Reynolds, 896 F.2d at 8, 10. "Even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." R.J. Reynolds, 896 F.2d at 8.
FACTS
Plaintiff alleges that after the Partido Popular Democrático (PPD) won the 1984 gubernatorial race, Governor Rafael Hernández Colón appointed Cirilo Tirado Delgado as Administrator, and Rafael Rivera González as Director of Personnel of the SIF, both appointees being members of the PPD.[1] Plaintiff claims that shortly after *80 Tirado Delgado was appointed SIF Administrator, plaintiff was removed and demoted from his prior position and defendants assigned plaintiff's former duties first to Rosa Iris Martinez, and then to Luis R. Ambert, both active PPD party members. Plaintiff claims that upon his transfer he became the assistant to someone he had previously supervised, and he was also denied the following rights and benefits he had previously enjoyed: personal secretary, parking space, telephone, supervisory functions, not allowed to "intervene with the records and documents pertaining to this office", and his "office was assigned to other persons." Plaintiff's sworn declaration, paragraph 10.
Plaintiff alleges that from his removal in July 1985 to December 1985 he was not allowed to "carry out the duties and functions" of his position, and "no duties or functions were given or assigned" to him, Plaintiff's sworn declaration, paragraph 6; and thereafter no functions or duties corresponding to his current position have been assigned him, only "nominal tasks" corresponding to a "much lower hierarchy position." Plaintiff's sworn declaration, paragraph 6. Plaintiff claims that all the tasks assigned him take no more than ten (10) minutes to perform out of his seven and a half (7½) hour shift. He also alleges that the removal from his prior position led to a reduction in salary of $289 a month, since he is now in a different salary scale. Plaintiff states that he is subject to daily ridicule and ostracism, which along with all the other circumstances of his demotion, cause him to feel that he was actually discharged from his career position.
Plaintiff alleges that defendants' claim that plaintiff's former position was eliminated pursuant to a "valid reorganization", is not true, and that such "reorganization" was in reality a "sham" designed to demote employees identified with the PNP political party, and promote PPD affiliated workers to those same positions which had previously been held by PNP affiliated employees.
FIRST AMENDMENT
Plaintiff claims that his transfer to the current position he occupies, was an act of political discrimination against him because of his affiliation as a member of the PNP. Our Circuit made clear in Agosto-deFeliciano that "at least some politically motivated actions short of discharge", violate a public employee's First Amendment right to political belief and association. Agosto-de-Feliciano, 889 F.2d at 1215.
The Agosto-de-Feliciano court recognized that there were conflicting First Amendment interests at stake when determining what kind of politically motivated government acts of discrimination against public workers, short of actual dismissal, should warrant constitutional protection. On one side is the government interest in assuring that newly elected administrations be allowed to effectively implement their policies, which the electorate has apparently sanctioned, despite their adverse effect on certain public employees; versus an individual public worker's right to pursue his First Amendment rights of free association and belief, free of government harassment. Id.
Our Circuit in Agosto-de-Feliciano, adopted a "severity of harm" threshold, and held that politically motivated employer actions which fail to reach that threshold, should not be considered a significant enough burden on employee's First Amendment rights of political association to enjoy constitutional protection. Id., 889 F.2d at 1216. The threshold is reached only when the employer's challenged actions, "result in a work situation `unreasonably inferior' to the norm for the position." Id., 889 F.2d at 1218. The "severity of harm" adopted by our Circuit has two components to it:
1) the substantive standard that the work situation be "unreasonably inferior" to the norm;
2) the procedural requirement that plaintiff must establish a change in work conditions *81 "sufficiently severe" to meet this substantive standard by producing "clear and convincing evidence." Id., 889 F.2d at 1220.
Plaintiff here has failed to meet his burden of establishing by clear and convincing evidence that the alleged discriminatory acts taken against him, satisfy the severity of harm standard. To summarize plaintiff's claims in a thumbnail sketch, plaintiff asserts that after his transfer:
1) he was denied various rights and benefits he previously had;
2) he had either no duties or functions, or else none corresponding to his current position;
3) he had some reduction in salary through smaller raises in his new pay scale;
4) he suffered daily ridicule and ostracism; and
5) that the so-called reorganization was a fraudulent pretext for demoting the members of the PNP, and promoting supporters of the PPD.
Plaintiff's opposition to defendant's summary judgment relies on the allegations contained in the verified complaint, and plaintiff's sworn declaration. There is no other factual support in the evidentiary record to support plaintiff's conclusory allegations. It is clear that more is required by plaintiff to satisfy his burden of showing that "they reach the threshold for severity of harm" required under Agosto-deFeliciano.
This court found similar claims insufficient in a post Agosto-de-Feliciano case, "Plaintiff Bonilla does allege in the complaint and in a later affidavit that she `was sent to the construction area without any assignment, duties or supervision.' This bare allegation, however, is nowhere supported factually in the record, ... Since this allegation remains as a bare, unsupported pleading, we do not believe that plaintiff has succeeded in generating a genuine factual dispute with regard to her day-to-day duties during the hiatus to the construction area. She has not produced `any significant probative evidence tending to support the complaint' with respect to this allegation." Zayas Rodríguez v. Hernández, 748 F. Supp. 47, 50-51 (D.P.R.1990) (internal footnote omitted); citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S. Ct. 1575, 1593, 20 L. Ed. 2d 569 (1968).
There is no way for this court to compare plaintiff's former position with his current one to determine whether it is "unreasonably inferior", without any more detailed description of the two positions.[2] Plaintiff has failed to produce enough evidence even to satisfy a preponderance of evidence standard, much less the clear and convincing evidence required by Agosto-de-Feliciano. See Zayas Rodríguez, 748 F.Supp. at 50. ("We note that since the burden of proof as to the severity of the change in conditions for political discrimination cases has been set by the First Circuit as `clear and convincing' evidence, Agosto, 889 F.2d at 1220, we must be guided by that higher proof burden standard in determining whether a factual dispute requiring trial exists. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14. For the summary judgment motion to be defeated, we would have to find that plaintiffs have produced sufficient facts as to all material elements, including severity in change of job circumstances, so that a reasonable trier of fact could find for them by `clear and convincing' evidence. Id.")
Implicit in our finding that plaintiff has failed to meet the severity of harm threshold under Agosto-de-Feliciano, is a finding that plaintiff has not been constructively discharged, since plaintiff has failed to meet the lesser burden of showing a First Amendment violation for politically motivated employer action short of dismissal. See Núñez-Soto v. Alvarado, 918 F.2d 1029, 1030-1031 (1st Cir.1990); Agosto-de-Feliciano, 889 F.2d at 1217-1218; Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561-563 (1st Cir.1986); and Alicea-Rosado *82 v. Garcia-Santiago, 562 F.2d 114, 119-120 (1st Cir.1977).
Our Circuit has noted the necessity of sufficient specificity in pleadings when alleging discrimination in a civil rights action, to prevent abuse of the process by plaintiffs, "A civil rights complaint must `outline facts sufficient to convey specific instances of unlawful discrimination.' Dartmouth Review [v. Dartmouth College], 889 F.2d [13] at 16 [1st Cir. (1989)]. Put another way, a plaintiff may not prevail simply by asserting an inequity and tacking on the self-serving conclusion that the defendant was motivated by a discriminatory animus. The alleged facts must specifically identify the particular instance(s) of discriminatory treatment and as a logical exercise, adequately support the thesis that the discrimination was unlawful." Correa-Martínez v. Arrillaga-Beléndez, 903 F.2d 49 (1st Cir.1990). Since plaintiff failed to show by clear and convincing evidence that the alleged harm he suffered was severe enough to meet the threshold, we need not go to the next step, where plaintiff would have to show by a preponderance of the evidence that the diminution in his duties was motivated by discrimination on the basis of political affiliation.
Plaintiff would likewise fail to meet his burden here, of showing that the alleged discriminatory act of defendants, was motivated by an intent to discriminate against plaintiff, because of his political affiliation. Plaintiff asserts that the reorganization which led to his transfer was a sham, a mere pretext to mask defendants' true discriminatory motives. Plaintiff produces no other factual data to back up such assertions.
Defendants have asserted that they are entitled to a changeover defense, and have provided a facially legitimate neutral reason for the reorganization to improve the efficiency in distribution of compensation benefits, and reduce the backlog of claims. Plaintiff has failed to show by a preponderance of the evidence that defendants' true motivation was discriminatory animus, based on plaintiff's political affiliation.
We thus find that plaintiff has failed to establish that any alleged diminution in his responsibilities after his transfer meets the severity of the harm threshold necessary to assert a First Amendment claim for political discrimination; and that plaintiff has also failed to show that any actions defendants took where motivated by a discriminatory animus against him because of his PNP affiliation. Summary judgment is hereby GRANTED defendants on the First Amendment political discrimination issue.
Since we find plaintiff has failed to offer sufficient proof as to such essential elements of his case, as "severity of harm", and "political animus", we need not decide the issue of qualified immunity. Yet even if plaintiff had made out a legitimate case for political discrimination short of dismissal under the Agosto-de-Feliciano standard, we would still grant defendants summary judgment on the issue of qualified immunity. The doctrine of qualified immunity is designed to protect government employees who exercise discretionary authority, from civil liability, "insofar as their conduct does not abridge clearly established rights, statutory or constitutional, about which a reasonably prudent official should have been aware." Roque-Rodríguez, 926 F.2d at 107; citing Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987); and Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982).
Although it was settled law that firing of public employees for partisan reasons violates the First Amendment, unless political affiliation was an appropriate requirement, see Roque-Rodríguez, 926 F.2d at 108, citing Branti v. Finkel, 445 U.S. 507, 516-517, 100 S. Ct. 1287, 1293-1294, 63 L. Ed. 2d 574 (1980); and Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2689, 49 L. Ed. 2d 547 (1976); lower courts were in considerable turmoil, as to what, if any, acts of political discrimination against public employees short of discharge were unconstitutional. The Supreme Court finally resolved this issue in Rutan v. Republican Party of Illinois, where it held that First Amendment protections extend to promotion, *83 transfer, recall, or hiring decisions involving public employment positions for which party affiliation is not an appropriate requirement. Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990); see also Agosto-de-Feliciano, 889 F.2d at 1214 (surveying the divergent approaches various federal circuits had taken to claims of political discrimination short of dismissal).
Our Circuit has explicitly held that, "It seems to us fairly obvious that, as of 1985, the law did not clearly state that a politically motivated demotion violated the federal Constitution. The Supreme Court, of course had made clear that the Constitution forbids discharge of public employees for reasons of political affiliation ... But, the law was unclear about the extent to which the Constitution protected career personnel against politically motivated adverse personnel actions that did not rise to the level of a discharge." Núñez-Soto, 918 F.2d at 1030; see also Roque-Rodríguez, 926 F.2d at 108-109; and Agosto-de-Feliciano, 889 F.2d at 1214-1216.
Plaintiff claims that his transfer in July of 1985 was unconstitutional political discrimination under the First Amendment, because of his political affiliation. Since the First Circuit has unambiguously stated that the law regarding political discrimination short of discharge was not clearly established in our circuit until December of 1989, when Agosto-de-Feliciano came down, defendants would be entitled to qualified immunity. Although the law regarding constructive discharges was clearly established prior to 1985, see Alicea-Rosado, 562 F.2d at 119-120, we have already found above that the alleged discriminatory transfer does not constitute a constructive discharge. Thus defendants would be entitled to qualified immunity for their transfer of plaintiff in 1985, even if, arguendo, such transfer would be found to violate the First Amendment today in the post Agosto-deFeliciano era.
DUE PROCESS
The complaint alleges that plaintiff's property rights are being adversely affected by defendants' actions in violation of the Fourteenth Amendment. The due process clauses of the U.S. Constitution provide that a person cannot be deprived of life, liberty or property without constitutionally adequate procedures. Pietri Bonilla v. Alvarado, 762 F. Supp. 451, 460 (D.P.R.1991); citing Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). The law is well settled that property interests protected under the Fourteenth Amendment's due process clause are not created by the Constitution itself, "but rather `are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'" Ruiz-Roche v. Lausell, 848 F.2d 5, 7 (1st Cir.1988); quoting Loudermill, 470 U.S. at 538, 105 S.Ct. at 1491; quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972).
Employees classified as "career employees" under Puerto Rico law have a property right in continued employment and may be fired only for good cause. Kauffman v. Puerto Rico Telephone Co., 841 F.2d 1169 (1st Cir.1988); and Zayas Rodríguez, 748 F.Supp. at 55.
The problem plaintiff encounters with his due process argument is that he has not been fired, so he has not lost his property interest. Pietri Bonilla, 762 F.Supp. at 459. Plaintiff points to no substantive rule which gives him a cognizable interest in continued employment as Chief of the Finance Division, rather than as Assistant to the Chief of Collections within the SIF. Plaintiff was merely transferred to another position, either with the same rank and salary according to defendants; or with some reduction in potential pay raises if we credit plaintiff's version. No evidentiary documentation was submitted on this issue by either side to back up their assertions.
Plaintiff fails to meet his burden of showing he had a continued property right in the same position, or that deprivation of potential salary increases is a protected property right. We have already held that plaintiff has failed to prove that his transfer was a constructive discharge. It is *84 likewise clear in our Circuit that the mere fact that a plaintiff's ability to receive future pay raises is adversely affected by a transfer does not mean that such transfer is a constructive discharge. See Núñez-Soto, 918 F.2d at 1031. (No constructive discharge found where plaintiff had no direct salary cut, but on at least one occasion did not receive as large a salary increase as she would have in prior position).
We find that plaintiff had no property right to continued employment as Chief of the Finance Division, or a position with the exact same potential for salary increases as his prior one. See Pietri Bonilla, 762 F.Supp. at 461; and Zayas Rodríguez, 748 F.Supp. at 55, 56. Summary judgment for defendants on plaintiff's due process claim is hereby GRANTED.
We have disposed of all federal questions contained within plaintiff's complaint. The complaint also alleges pendent claims under Section I, Article II of the Puerto Rico Constitution; and 3 L.P.R.A. § 1312. We decline to exercise pendent jurisdiction over the remaining claims arising under the laws and Constitution of Puerto Rico. See United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966); and Correa-Martínez, 903 F.2d at 58, ("In the absence of a cognizable federal question, a federal court cannot intrude upon another sovereign's civil service system and declare itself a court of last resort to hear personnel appeals addressed to the wisdom, or even the good faith, of staffing decisions reached by the government actors.")
This court finds that there are no material issues of fact remaining, such that a trial would be necessary. Accordingly, we GRANT defendants' motion for summary judgment on both the First Amendment and due process issues. Plaintiff's cause of action is hereby DISMISSED and judgment shall be entered accordingly.
SO ORDERED.
NOTES
[1] This court can take judicial notice of the fact that the PNP and PPD are the two major political parties in Puerto Rico. Gierbolini-Colón v. Aponte-Roque, 848 F.2d 331, 332, n. 1 (1st Cir. 1988). This case is not the first one by public employees alleging political discrimination arising out of the change in political administrations following the defeat of incumbent PNP governor, Carlos Romero Barceló, by PPD gubernatorial candidate Hernández Colón in November of 1984. See Roque-Rodríguez v. LemaMoya, 926 F.2d 103, 104 (1st Cir.1991); and Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1212, n. 1 (1st Cir.1989) (listing representative cases).
[2] Our Circuit has specifically approved the use of employee description forms in political discrimination cases, to help determine the nature of the jobs being examined. Zayas Rodríguez, 748 F.Supp. at 50, n. 5. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556185/ | STATE OF LOUISIANA
v.
DAVID STAPLETON
No. 09-0891.
Court of Appeals of Louisiana, Third Circuit.
February 3, 2010.
NOT DESIGNATED FOR PUBLICATION
JAMES D. WHITE, Assistant District Attorney, Counsel for Appellee. State of Louisiana
MARK O. FOSTER, Louisiana Appellate Project Counsel for Defendant/Appellant: David Stapleton
DAVID L. STAPLETON, Pro Se.
Court composed of DECUIR, PETERS, and CHATELAIN,[*] Judges.
PETERS, J.
The defendant, David Stapleton, appeals the sentence imposed for his conviction for driving while intoxicated, fourth offense, in violation of La.R.S. 14:98. After his conviction by a jury, the trial court sentenced him to serve thirty years at hard labor and to pay a fine of $5,000.00.[1] For the following reasons, we affirm the sentence in all respects.
The defendant has asserted two assignments of error through his counsel, as well as three pro se assignments of error. Through his counsel, the defendant asserts that:
1. The trial court erred in sentencing Mr. Stapleton to the maximum sentence of 30 years imprisonment, without complying with the requirements of La.C.Cr.P. Art. 894.1.
2. The maximum, 30-year sentence imposed by the trial court was cruel, unusual and excessive, in violation of Article I, § 20 of the Louisiana Constitution of 1974.
In his pro se brief, the defendant asserts that: 1) the state did not offer the defendant a plea bargain and recommended that he receive the maximum sentence; 2) the minutes inaccurately reflect the judge presiding over the matter; and 3) the conviction from 1993 cannot be used as a predicate offense.
Assignment of Error Filed by the Defendant's Counsel
The incarceration sentencing range for driving while intoxicated, fourth offense, is ten to thirty years at hard labor.[2] La.R.S. 14:98(E). The defendant asserts in his first assignment of error that the trial court erred in sentencing him to the maximum incarceration period without complying with the requirements of La.Code Crim.P. art. 894.1. In his second assignment of error, he asserts that the sentence imposed is cruel, unusual, and excessive. We will consider both of these assignments of error together.
In rejecting both of these assignments of error, we first note that the defendant did not object to the sentence at the time it was imposed or file a motion to reconsider the sentence imposed. That being the case, we find that the defendant has waived his right to have this court review the claim of excessiveness of sentence. See State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So. 2d 908, writ denied, 02-578 (La. 1/31/03), 836 So. 2d 59, and State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So. 2d 356. Therefore, we find no merit in these assignments of error.
Pro Se Assignments of Error
In his pro se brief, the defendant complains that prior to his conviction the State of Louisiana (state) had offered him a ten-year sentence in exchange for a guilty plea, but, after his conviction, had recommended to the trial court that he receive the maximum sentence for the offense. He also asserts that the court minutes are inaccurate in that they reflect that Judge Peyton Cunningham presided from April 13, 2007, through January 3, 2008, when, in fact, Judge Allen Krake presided until the last six months of 2008. Finally, he asserts that it was error to use a 1993 conviction for driving while intoxicated, fourth offense.
In considering these arguments, we note that the defendant submits no legal argument to suggest that somehow the state is precluded from recommending a different sentence after conviction from that offered in plea negotiations or that he was somehow prejudiced by the inaccurate court minutes. Furthermore, in the previous unpublished opinion, this court specifically addressed the issue of the 1993 conviction and found no merit in the defendant's argument on this point. Thus, we find no merit in these assignments of error.
DISPOSITION
For the foregoing reasons, we affirm the sentence imposed on the defendant, David Stapleton, in all respects.
AFFIRMED.
NOTES
[*] Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.
[1] This is actually the second time the matter is before us on appeal. In State v. Stapleton, 08-685 (La.App. 3 Cir. 12/10/08), this court, in an unpublished opinion, vacated the defendant's original sentence and remanded the matter to the trial court for resentencing because the defendant was not represented by counsel at the time of sentencing.
[2] The defendant does not contest the imposition of the $5,000.00 fine. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556186/ | 798 F. Supp. 1199 (1992)
I. Beverly LAKE, Jr., John Thomas Edlen, and Pieter Witteveen, on behalf of themselves and others similarly situated, Plaintiffs,
v.
The STATE BOARD OF ELECTIONS OF NORTH CAROLINA; M.H. Hood Ellis, in his capacity as Chairman of said State Board; William A. Marsh, in his capacity as Member of said State Board; Ruth Turner, in her capacity as Member of said State Board; Gregg O. Allen, in his capacity as Member of said State Board; June K. Youngblood, in her capacity as Member of said State Board; Alex K. Brock, in his capacity as Executive Secretary-Director of said State Board; James G. Martin, in his official capacity as Governor of the State of North Carolina; and Rufus Edmisten, in his capacity as Secretary of State for the State of North Carolina; and The Board of Elections of Durham County, North Carolina; Jo Overman, in her capacity as Chairman of said County Board; Ronald Gregory, in his capacity as Member of said County Board; and Edward Pope, in his capacity as Member of said County Board; and The Board of Elections of Guilford County, North Carolina; Betty J. Pearce, in her capacity as Chairman of said County Board; James S. Pfaff, in his capacity as Member of said County Board; and Robert W. Newsom, III, in his capacity as Member of said County Board, Defendants.
Civ. No. 2:91CV00254.
United States District Court, M.D. North Carolina, Greensboro Division.
March 31, 1992.
*1200 *1201 Robert Neal Hunter, Jr., Marshall Hurley, Patton, Boggs & Blow, Greensboro, N.C., I. Beverly Lake, Sr. (Retired Justice, N.C. Supreme Court), Wake Forest, N.C., for plaintiffs.
James M. Wallace, Jr., Edwin M. Speas, Jr., Charles M. Hensey, Tiare B. Smiley, N.C. Dept. of Justice, Atty. General's Office, Raleigh, N.C., for defendants.
Before PHILLIPS, Circuit Judge, BULLOCK, District Judge, and TILLEY, District Judge.
MEMORANDUM OPINION
PER CURIAM:
Plaintiffs have brought this suit alleging violations of § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1988), of the Due Process and Equal Protection Clauses of the Fourteenth Amendment actionable under 42 U.S.C. § 1983, and of state laws governing the electoral process. The action arises out of alleged irregularities surrounding the conduct of the November 6, 1990, general election in Durham and Guilford Counties, North Carolina, and the remedial efforts of state judges in those counties. Plaintiffs are I. Beverly Lake, Jr., the Republican candidate for the position of Associate Justice of the North Carolina Supreme Court, and two voters, one each from Durham and Guilford Counties. Defendants are the State Board of Elections of North Carolina, the Boards of Elections of Durham and Guilford Counties, the members of each of the three Boards in their official capacities, and the Governor and Secretary of State of North Carolina. Plaintiffs have pursued their claims through the administrative process, culminating with a decision by the State Board of Elections which did not provide the relief sought.[1] Plaintiffs seek to enjoin Defendants *1202 from certifying the results of the election for Associate Justice of the North Carolina Supreme Court, a declaration that the November 6 election is void, and an order requiring a new election. Defendants have filed motions to dismiss and for partial summary judgment; Plaintiffs have also moved for partial summary judgment.
I.
The November 6, 1990, election in North Carolina included a contest for one of the state's seats in the United States Senate. The high profile nature of that contest, coupled with other congressional, statewide, and local races, resulted in a high voter turnout and associated problems. Among the other races was the race for Associate Justice of the North Carolina Supreme Court between John Webb and I. Beverly Lake, Jr., which is the subject of this litigation. The parties do not disagree that the facts are as found by the county and state Boards of Elections.
This court was convened under 42 U.S.C. § 1973c and 28 U.S.C. § 2284. Once convened, a three-judge court has pendent jurisdiction over and may dispose of all claims that are substantially related to the claim that required convening of the three-judge court. United States v. Georgia Pub. Serv. Comm'n, 371 U.S. 285, 287-88, 83 S. Ct. 397, 398-99, 9 L. Ed. 2d 317 (1963); Weintraub v. Hanrahan, 435 F.2d 461, 463 (7th Cir.1970); see also Clayton v. North Carolina State Bd. of Elections, 317 F. Supp. 915, 919-20 (E.D.N.C.1970). Plaintiffs' § 1983 and state election law claims come under our pendent jurisdiction as substantially related claims and will be considered by the three-judge court on that basis.
A.
Early on election day, voting machines in Durham County began experiencing problems and breaking down in some precincts, resulting in lines requiring a wait of over two hours to vote. The long lines were caused by the high voter turnout, an inadequate number of voting machines, malfunctioning of some machines, and the length and complexity of the ballot. Malfunctioning machines were taken out of service, exacerbating the problems associated with an already inadequate number of machines at each precinct. As a result of the problems, the Durham County Board of Elections met at approximately 1:00 p.m. and voted to extend voting hours from 7:30 p.m. to 8:30 p.m. as allowed by North Carolina General Statute § 163-2 (1987). Thereafter, some time after 2:30 p.m., counsel for the county Democratic Party presented approximately thirty affidavits and a motion to extend the voting hours until 10:00 p.m. and to authorize the use of paper ballots to a superior court judge at the Durham County Courthouse. The judge granted the motion.
Conditions at the precincts did not improve significantly, and the court order created additional problems. Precincts began to use the paper ballots for all voters even though they were statutorily authorized only for curbside balloting by those unable to enter the voting area. N.C.Gen.Stat. § 163-162 (1987). As a result, there was an insufficient number of curbside ballots for the elderly and handicapped. Additionally, in one precinct, photocopied paper ballots were used. These ballots were administered by volunteers under protest by precinct officials and were collected both in the official ballot box and in an unsecured trash bag. Election officials at precincts also made errors. State law requires officials to compile a list of voters who are in line at the time set by statute for closing the polls. N.C.Gen.Stat. § 163-168 (1987). Only those persons are allowed to vote after the polls close. As many as 1,998 persons allegedly entered the line to vote after 8:30 p.m. and were allowed to vote. The Durham County Board of Elections concluded that there was substantial evidence to believe that the irregularities which occurred might have affected the outcome of the election, and recommended *1203 to the State Board of Elections that a new election be conducted in Durham County for the office of Associate Justice of the North Carolina Supreme Court.
B.
In Guilford County, at approximately 10:30 a.m., the chairperson of the county Democratic Party filed a request with the Board of Elections that the polls remain open past the statutory closing time of 7:30 p.m. because of voting machine malfunctions, an inadequate number of registration books, and high voter turnout. A second request was filed at approximately 3:00 p.m. After an independent investigation, the county Board of Elections met at 5:00 p.m. to consider the request. A motion was made to extend the voting time to 8:30 p.m. pursuant to North Carolina General Statute § 163-2, but failed for lack of a second.
Following the Board's failure to extend voting hours, representatives of the county Democratic Party presented affidavits and a complaint and motion to a superior court judge to extend the voting hours to 8:30 p.m. At 7:20 p.m., ten minutes before the polls were to close, the judge entered an order requiring the polls to remain open until 8:30 p.m. Due to the lateness of the order, not all polls were notified in time, and some closed at 7:30 p.m. Some persons who tried to vote at precincts after 7:30 were not allowed to do so. Some were able to vote at open precincts between 7:30 and 8:30 p.m.; however, the number of persons actually voting after 7:30 p.m. is not clear because election officials did not make a list of voters who voted after the normal 7:30 p.m. closing. The Guilford County Board of Elections determined that the irregularities and violations of election law were sufficiently serious and pervasive to cast doubt on the correctness of the results and recommended to the State Board of Elections that a new election be held in Guilford County for the office of Associate Justice of the North Carolina Supreme Court.
II.
Plaintiffs complain of the irregularities in both counties. In Durham County, they allege specifically: (1) failure of the Durham County Board of Elections to provide voting machines in working order in twenty-four precincts and in the precinct transfer station; (2) failure of the Durham County Board of Elections to prepare and maintain properly the voting machines in twenty-four precincts and in the precinct transfer station; (3) failure of the Durham County Board of Elections to prevent extremely long lines in numerous precincts, thereby preventing voters from voting after a reasonable wait; (4) failure of the Durham County Board of Elections to distribute voting machines among the voting places as required by North Carolina General Statute § 163-161; (5) failure of the Durham County Board of Elections to provide proper curbside and paper ballots and ballot boxes with adequate security in numbers sufficient to accommodate voters in precincts with voting machine failures; (6) failure of the Durham County Board of Elections to distribute and collect paper ballots in the manner prescribed by North Carolina General Statute § 163-171; (7) failure of the Durham County Board of Elections to prevent individuals from voting after 8:30 p.m. in violation of North Carolina General Statute § 163-2 or to record the names and number of voters who voted after 8:30 p.m. as required by North Carolina General Statute § 163-168; (8) the invalidity of the order of the superior court judge directing that Durham County polls remain open until 10:00 p.m. when North Carolina General Statute § 163-2 vests authority with the county Board of Elections to extend polling hours and then only to 8:30 p.m., and allowing the use of paper ballots.
In Guilford County, Plaintiffs allege specifically: (1) failure of the Guilford County Board of Elections to provide voting machines in working order in six precincts; (2) failure of the Guilford County Board of Elections to provide proper duplicate registration books in seven precincts; (3) failure of the Guilford County Board of Elections to prevent extremely long lines in three *1204 precincts, thereby preventing voters from voting after a reasonable wait; (4) failure of the Guilford County Board of Elections to record the names and number of voters who voted after 7:30 p.m. as required by North Carolina General Statute § 163-168; (5) the invalidity of the order of the superior court judge directing that Guilford County polls remain open until 8:30 p.m. when North Carolina General Statute § 163-2 vests authority with the Guilford County Board of Elections to extend polling hours.
Plaintiffs allege violations of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1988), in that both judges ordered the polls to remain open in their counties beyond the statutorily prescribed closing time, which constituted changes that were not precleared under the Voting Rights Act. Plaintiffs also allege under 42 U.S.C. § 1983 that the irregularities in Durham and Guilford Counties constituted state action that deprived them of constitutional rights secured by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Finally, Plaintiffs request that this court review the State Board of Elections decision in lieu of the review provided in the Superior Court of Wake County by North Carolina General Statute § 163-181.
III.
Plaintiffs allege that § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1988),[2] was violated because the orders of the superior court judges were "changes" under § 5 which were not precleared by the United States Attorney General. A state or political subdivision must be a covered jurisdiction under the Voting Rights Act for the preclearance requirements of § 5 to apply. Defendants dispute the alleged coverage of the order entered in Durham County because it is not a covered jurisdiction. Defendants also dispute the necessity of preclearing the order in Guilford County, which is a covered jurisdiction. See 28 C.F.R. pt. 51 App. (1990).
It is undisputed that Durham County is not one of the forty counties in North Carolina covered by the Voting Rights Act. However, Plaintiffs contend that because the change in Durham County affects a statewide election it must be precleared. According to Plaintiffs, a law that is effective statewide requires preclearance due to its impact on the forty covered counties, and thus a change in Durham County that could affect the ultimate result of balloting in those covered counties must also be precleared. We find this argument unpersuasive and will dismiss the claim as it relates to Durham County.
If Plaintiffs' theory is adopted it would eliminate the significance of limiting the Voting Rights Act to covered jurisdictions. In several states, including North Carolina, only specific counties or towns are covered. Under Plaintiffs' theory, in any state with at least one covered jurisdiction any alteration in voting procedures in non-covered portions of the state would have to be precleared because the change could affect a statewide election and thus the covered jurisdiction. Such an extension is not supported by the language of the statute. Preclearance is required only for changes in covered jurisdictions, and Durham County is not covered. Therefore, the order of *1205 the Superior Court of Durham County was not required to be precleared.
Guilford County is a covered jurisdiction under the Voting Rights Act and subject to preclearance of changes under § 5. Therefore, we must consider the question of preclearance of the order of the Superior Court of Guilford County to extend voting hours from 7:30 p.m. to 8:30 p.m.
In a case involving § 5 of the Voting Rights Act, the inquiry of a three-judge district court is limited to whether "`a state requirement is covered by § 5, but has not been subjected to the required federal scrutiny'" of preclearance. Perkins v. Matthews, 400 U.S. 379, 383, 91 S. Ct. 431, 434, 27 L. Ed. 2d 476 (1971) (quoting Allen v. State Bd. of Elections, 393 U.S. 544, 561, 89 S. Ct. 817, 829, 22 L. Ed. 2d 1 (1969)). Section 5 is to be given a "broad scope" in that any alteration, regardless of how minor, is subject to scrutiny. NAACP v. Hampton County Election Comm'n, 470 U.S. 166, 176, 105 S. Ct. 1128, 1134, 84 L. Ed. 2d 124 (1985). See 28 C.F.R. § 51.12 (1990) (minor or indirect changes are covered). In determining § 5 issues, a court must consider: (1) whether there was an enactment or administration, Allen, 393 U.S. at 566, 89 S.Ct. at 832; (2) of a "voting qualification or prerequisite to voting or standard, practice or procedure with respect to voting" that is different from pre-1964 or the most recently precleared law, Perkins, 400 U.S. at 384, 91 S.Ct. at 435 (quoting oral opinion of district judge in same case); 42 U.S.C. § 1973c; and (3) "whether the challenged alteration has the potential for discrimination."[3]Hampton County, 470 U.S. at 181, 105 S.Ct. at 1137 (citing Dougherty County Bd. of Educ. v. White, 439 U.S. 32, 42, 99 S. Ct. 368, 374, 58 L. Ed. 2d 269 (1978); Georgia v. United States, 411 U.S. 526, 534, 93 S. Ct. 1702, 1707, 36 L. Ed. 2d 472 (1973)).
A.
Plaintiffs must show that the Guilford County Superior Court order was a change from the existing law or from the procedures in effect at the time. This the Plaintiffs cannot do. The order effected no change, but merely mirrored a previously precleared statute, doing no more than North Carolina General Statute § 163-2 allows the county boards to do.[4] It extended the hours for the same length of time allowed by statute and imposed no additional restrictions. See Woods v. Hamilton, 473 F. Supp. 641 (D.S.C.1979) (ordinances merely implementing precleared statute not a change within the Voting Rights Act); Webber v. White, 422 F. Supp. 416 (N.D.Tex.1976) (Texas Supreme Court's order enforcing a previously precleared statute was no change).
When the Attorney General reviews a new procedure or practice to determine if it would have the effect of impairing the right to vote, he compares it with the practice or procedure in effect at the time of the submission. See 28 C.F.R. § 51.54(b) (1990). Because North Carolina General Statute § 163-2 was validly in effect on November 6, 1990, the court order, if submitted, would be compared with a statute identical in substance and content. There would be no change from the previous law. It is irrelevant that it was a judge who ordered the polls to stay open because there was no difference in the qualifications, standards or procedures from those already in effect. It is the content of the change and not the form which determines whether or not it is within the scope of § 5. See Hampton County, 470 U.S. at 178, 105 S.Ct. at 1135.
*1206 B.
Defendants contend that because the state court's order was remedial in nature and was entered in response to the exigent circumstances surrounding the election it falls within the court-order exception initially recognized by the Supreme Court in Connor v. Johnson, 402 U.S. 690, 91 S. Ct. 1760, 29 L. Ed. 2d 268 (1971), and codified at 28 C.F.R. § 51.18 (1990). While the exception had its genesis in federal court-fashioned reapportionment plans, it has been considered in other circumstances. See Hathorn v. Lovorn, 457 U.S. 255, 102 S. Ct. 2421, 72 L. Ed. 2d 824 (1982) (state supreme court ordered officials to enforce a statute which had been judicially altered). We believe the exception is equally applicable here.
As the legislative history of the 1975 extension of the Voting Rights Act points out, there is an exception to § 5 review when a court acts in response to exigent circumstances. See McDaniel v. Sanchez, 452 U.S. 130, 148-49, 101 S. Ct. 2224, 2235-36, 68 L. Ed. 2d 724 (1981) (quoting S.Rep. No. 295, 94th Cong., 1st Sess. 19 (1975), reprinted in 1975 U.S.C.C.A.N. 774, 785).
This is not a case in which a covered jurisdiction sought to administer a new voting practice. The difficulties surrounding the election in Guilford County created an emergency when qualified voters were unable to vote or delayed for unacceptably long periods of time. The court merely invoked its equitable powers to order remedial measures designed to alleviate the problems.
C.
Even if the court order constituted a change and was not otherwise exempt from § 5 review, it had no potential for discrimination on the basis of race or color. Extending the voting hours was a neutral action. All voters regardless of race had an equal opportunity to vote until 8:30 p.m. The extension did not hinder black voters, see Hampton County, 470 U.S. at 177, 105 S.Ct. at 1134; did not intimidate black voters, see Perkins, 400 U.S. at 388, 91 S.Ct. at 436; and did not dilute the votes of black voters. See Hawthorne v. Baker, 750 F. Supp. 1090 (M.D.Ala.1990) (citing Perkins, 400 U.S. at 379, 91 S.Ct. at 431). If anything, the extension of voting hours had the potential to enhance the right to vote, allowing persons of all races to vote who otherwise may have been unable to do so. As noted, the substance of the order has already been precleared. In preclearing a change, the United States Attorney General determines whether the change has "the purpose ... [or] the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c; see 28 C.F.R. § 51.52. When North Carolina General Statute § 163-2 was precleared, the Attorney General determined that extending polling hours from 7:30 p.m. to 8:30 p.m. upon the vote of a partisan body had no purpose or effect of impairing the right to vote on account of race. Likewise, an extension of voting hours from 7:30 p.m. to 8:30 p.m. by order of a judge does not have the potential for discrimination.
The order of the Guilford County Superior Court extending the polling hours did not violate § 5 of the Voting Rights Act.
IV.
Plaintiffs' claim under 42 U.S.C. § 1983 is based on allegations that various legal irregularities that affected the voting process in Durham and Guilford Counties constituted state action that deprived them of constitutional rights secured by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Seemingly, they identify as unconstitutional state action both the original mechanical malfunctionings of the voting machines and then the state court orders which in both counties extended the voting periods in efforts to rectify the effects of the malfunctioning.
Specifically, Plaintiffs' claim is that the effects of the legal irregularities growing out of the original mechanical malfunctionings (which are nowhere alleged to have been purposefully caused) violated the undeniable federal constitutional "right of all qualified citizens to vote ... and to have their votes counted ..."; a right that "can neither be denied outright ... nor destroyed *1207 by alteration of ballots ... nor diluted...." Reynolds v. Sims, 377 U.S. 533, 554-55, 84 S. Ct. 1362, 1377-78, 12 L. Ed. 2d 506 (1964) (citations omitted). They claim that what happened in the two counties had the effect of an outright denial of the right to vote of some would-be voters (those deterred by the malfunctioning machines) and of diluting that of others who did vote (by illegally allowing some to vote after legal hours who would not otherwise have voted). The effect of these in combination, they allege, was significant enough probably to affect the election result, thereby entitling them to a decree invalidating the voting in the two counties.
To support their claim that such a denial and dilution did actually occur, they rely on the official records of the two County Boards of Election and the State Board of Elections. These, they contend, preclusively show that the effects did occur and that they resulted from violations of state election laws. And they further rely on the orders of the two state judges which, they contend, found that unconstitutional denials of the right to vote had occurred that required extensions of the voting periods.
Plaintiffs and Defendants have filed cross-motions for summary judgment on this § 1983 claim. We agree with Defendants that the claim must be dismissed.
The basis is a simple one that does not require extensive discussion: Plaintiffs' claim is not one cognizable under 42 U.S.C. § 1983. As alleged in their complaint and supported by the other materials filed and relied upon, it fails to demonstrate violation of the general federal constitutional right invoked.
While the right of all qualified voters to vote and to have their votes counted and not diluted in state elections is ultimately insured by the Constitution of the United States, specifically the Equal Protection Clause, see Reynolds, 377 U.S. at 544, 84 S.Ct. at 1372, the federal right thereby secured is not an absolute one. The same constitution which creates it as an ultimate safeguard against state action imposes structural limitations upon it by delegating to the states the primary power and responsibility to conduct, and to police, their own elections. U.S. Const. art. I, § 4, cl. 1; Oregon v. Mitchell, 400 U.S. 112, 124-29, 91 S. Ct. 260, 264-67, 27 L. Ed. 2d 272 (1970); Hutchinson v. Miller, 797 F.2d 1279, 1282-85 (4th Cir.1986); Gamza v. Aguirre, 619 F.2d 449, 452 (5th Cir.1980). North Carolina, like all states, has accepted and acted upon the power thus conferred by enacting a detailed set of laws governing the state's electoral process and providing for administrative and judicial supervision to correct irregularities occurring in the process. N.C.Gen.Stat. §§ 163-1 et seq.
Responding to this structural limitation whose exact dimensions are not spelled out in the Constitutionthe courts uniformly have recognized that whether particular state action impinges upon the ultimate federal right of suffrage is in all cases a matter of degree. Here, as in other contexts, see Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979), whether particular conduct amounts to a constitutional deprivation remediable under 42 U.S.C. § 1983, or a lesser legal wrong remediable only under state law, depends on the nature of the alleged wrong. The determinants are whether the harm sustained
was inflicted intentionally or accidentally, whether it is [a] part of [a] pattern that erodes the democratic process or ... is more akin to a negligent failure ... to carry out the state ordained electoral process and whether state officials have succumbed to "temptations to control ... elections by violence and by corruption."
Gamza, 619 F.2d at 453 (quoting Ex parte Yarbrough, 110 U.S. 651, 666, 4 S. Ct. 152, 159, 28 L. Ed. 274 (1884)).
Such a constitutional injury might theoretically be found in the aberrant conduct of particular elections as well as in general laws and executive orders impinging on the right of suffrage, but only in extreme cases of intentional state action literally corrupting the process. See, e.g., Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973) (placing sham candidate's name on ballot). In such a case, a cognizable § 1983 *1208 claim might therefore be recognized, and a remedial decree affecting a completed election found warranted. See id. at 1102. It is not, therefore, proper to say that a § 1983 claim can never be grounded in irregularities in completed elections.
Ordinarily, however, state action amounting to a constitutional deprivation cognizable under § 1983 is only found in general state laws inflicting harms that are remediable by prospective decrees that do not intrude on the state's conduct and corrective supervision of completed elections. See, e.g., Reynolds, 377 U.S. 533, 84 S. Ct. 1362 (challenge to legislative reapportionment violative of one-person-one-vote principle); Cromer v. State of South Carolina, 917 F.2d 819 (4th Cir.1990) (challenge to legislatively imposed filing deadline for independent candidacies). In recognition of this constitutionally grounded structural limitation on the federal right, the Fourth Circuit, along with federal courts in general, has been reluctant to entertain § 1983 claims for relief with respect to completed elections. See Hendon v. North Carolina State Bd. of Elections, 710 F.2d 177, 182 (4th Cir.1983) (although general state law found violative of federal right, remedy confined to prospective injunctive decree in deference to state's primary authority to remedy particular election results); Hutchinson, 797 F.2d at 1287-88 (court declines to entertain § 1983 claim for monetary relief by losers in an election who alleged flagrant election law violations that caused their loss).
We are satisfied that, under the precedents, the injury alleged hereassuming that injury in fact resulted from the irregularities allegedfalls in the category of a "lesser legal wrong" rather than of a violation of the federal constitutional right. Assuming that every irregularity claimed did occur as alleged (without regard to whether it was specifically found by either the state administrative agencies or the two state judges), none is claimed or could be claimed to have resulted from intentional, systematic conduct aimed at corrupting the state's electoral process. The original malfunctioning was purely fortuitous. The efforts by the two judges to rectify the situation were, even if somehow legally erroneous, no more than that. They were not intended to pervert the process, but to salvage it. At least there is no claim of other purpose. Such irregularities are the classic concern of the states under the constitutional framework. Federal intervention to attempt to rectify any injury done here would require the undoing of a completed election, a remedy properly reserved to the State of North Carolina and available under its election laws.
Plaintiffs attempt to elevate the irregularities they allege to the level of constitutional violation by pointing out that they were not merely "garden variety," but involved plain violations of plain state lawparticularly the court-ordered extensions of voting hours. Laying aside the point that "irregularity" in this context inevitably implies "illegality," it is settled that a § 1983 action does not lie to force a state to comply with its own laws. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 106, 104 S. Ct. 900, 911, 79 L. Ed. 2d 67 (1984). Under the constitutional allocation of powers for enforcing the federal right of suffrage, that power here lay exclusively with the courts and administrative agencies of North Carolina, and not with the federal courts.
V.
In Plaintiffs' final claim for relief, they seek to invoke this court's supplemental jurisdiction, asking that we review the State Board of Elections' decision in lieu of the review provided in the Superior Court of Wake County under North Carolina General Statute § 163-181. Since the dismissal of Plaintiffs' claims under the Voting Rights Act and § 1983 will leave no other federal claim before the court, Plaintiffs' state law claims will also be dismissed. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966); Brandenburg v. Seidel, 859 F.2d 1179, 1190 (4th Cir.1988). See 28 U.S.C. § 1367(c)(3). Such dismissal does not foreclose Plaintiffs' pursuit of any remedies *1209 that may still be available to them under state law.
NOTES
[1] After a recount, incumbent John Webb had a 15,405 vote margin in Durham County and a 2,641 vote margin in Guilford County. In the remaining ninety-eight counties Lake had a margin of 16,169 votes over Webb. The State Board concluded by a vote of 3-2 that irregularities in Durham County could have affected the state-wide results and that a new election should be held in that county. The Board voted unanimously that the irregularities in Guilford County could not have affected the state-wide results and that the results in that county be certified. The Board then voted 3-2 to certify the results as counted in all 100 counties. Under North Carolina General Statute § 163-22.1 four members of the five-member State Board must vote for a new election before one can be held. Therefore, the Board's 3-2 conclusion concerning Durham County did not result in a new election in that county.
[2] Section 5 states, in relevant part:
Whenever a State or political subdivision [that is covered] ... shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect ... such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, ... and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted ... to the Attorney General and the Attorney General has not interposed an objection....
42 U.S.C. § 1973c (1988).
[3] We recognize that § 5 by its terms is not limited to changes that have a potential for discrimination. See Dougherty County Bd. of Educ. v. White, 439 U.S. 32, 49-50, 99 S. Ct. 368, 377-378, 58 L. Ed. 2d 269 (1978) (Powell, J., dissenting). We perceive this inquiry to be one usually made by a court once it has determined that there has been a change or alteration, thus avoiding unwarranted submissions. Obviously an alteration that has no potential for discrimination could not be found by the Attorney General or District Court of the District of Columbia to have a discriminatory purpose or effect.
[4] This statute was precleared under § 5 in 1971 and again in 1973 when other provisions of the election laws were rewritten. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555803/ | 36 So.3d 114 (2010)
TINGHINO
v.
STATE.
No. 5D08-2557.
District Court of Appeal of Florida, Fifth District.
May 25, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555809/ | 171 F.Supp. 661 (1959)
Rita GOTTESMAN, Maria Mattiello, Arlyne Zucker and Paul J. Peyser, Plaintiffs,
v.
GENERAL MOTORS CORPORATION and E. I. du Pont de Nemours & Company, Defendants.
United States District Court S. D. New York.
March 23, 1959.
*662 Netter & Netter, New York City, Gen. Counsel for plaintiffs, Henry L. Bayles, Edward A. Rothenberg, New York City, of counsel.
Henry M. Hogan, George A. Brooks, New York City, for defendant General Motors Corp., Edward B. Wallace, New York City, of counsel.
Charles A. Horsky, Washington, D. C., Frank H. Gordon, New York City, for defendant, E. I. du Pont de Nemours & Co., Covington & Burling, Washington, D. C., of counsel.
SUGARMAN, District Judge.
Shortly after the Supreme Court decided United States v. E. I. du Pont de Nemours & Co., 1957, 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057, three actions by stockholders of General Motors were commenced in this court against General Motors and du Pont. They were consolidated and an amended consolidated complaint was filed.
It states eleven claims. The first six seek triple damages against du Pont in *663 behalf of General Motors under the antitrust laws. The next four seek simple damages against du Pont in behalf of General Motors. The eleventh seeks injunctive relief. The complaint relies heavily upon the aforesaid decision of the Supreme Court.
Defendants move "(1) for an order dismissing the consolidated amended complaint and action herein upon the ground that said complaint fails to state a claim upon which relief can be granted, in that the allegations of the complaint are insufficient to excuse the failure of the plaintiffs to make demand on the stockholders of General Motors Corporation to bring this action, as is required by Federal Rule of Civil Procedure 23(b); * * *"
On a motion of this nature the defendants admit the existence and validity of the claim asserted but challenge the plaintiffs' right to relief. The allegations of the complaint must be viewed in a light most favorable to the plaintiffs, admitting and accepting as true, all facts well pleaded.[1]
Defendants' attack is confined solely to the alleged failure of plaintiffs to comply with that part of F.R.Civ.P. 23(b), 28 U.S.C. which requires a showing in a stockholders' secondary action complaint of what efforts the plaintiffs made to secure from the shareholders the corporate action sought by the plaintiffs and their reasons for failing to obtain it or for not making the effort.
The first rule from which F.R.Civ.P. 23(b) evolved was Equity Rule 94 adopted in 1882, 104 U.S. IX. It came into being during the term at which Hawes v. City of Oakland, 104 U.S. 450, 26 L.Ed. 827, was decided. It did not contain the requirement that a stockholder's bill state the reasons for not making an effort to secure the action sought from the stockholders. That addition was made to the rule when it became Equity Rule 27 at the 1912 term of the Court, 226 U.S. 656. The change was made three years after the Delaware decision, infra. The added language was continued into F.R. Civ.P. 23(b).
This being a motion under F.R. Civ.P. 12(b) (6) its determination is confined solely to the notice of motion and the complaint. Defendants do not challenge the 20th paragraph of the complaint which alleges the reasons for the futility of a demand upon the directors of General Motors. The only point raised is the sufficiency of the allegations explaining the failure of the plaintiffs to make an effort to secure from the stockholders the action sought.
The pertinent paragraphs of the complaint read:
"7. At all times since June 30, 1949, and for some time prior thereto, defendant du Pont owned at least approximately 23% of the total outstanding common stock of General Motors. In addition, the officers and directors of du Pont, their relatives and associates, directly and indirectly owned or controlled shares of the common stock of said corporation in amounts which are presently unknown to the plaintiffs herein. The balance of said corporation's outstanding common stock was divided between several hundreds of thousands of other stockholders who resided in widespread parts of the world, none of whom individually owned as much as 10% of the corporation's outstanding stock and nearly all of whom owned relatively small amounts of shares of said stock. For example, in 1957, out of approximately 667,000 stockholders other than du Pont, approximately 500,000 owned no more than 200 shares each and approximately 159,000 owned no more than 25 shares each. By reason of the foregoing du Pont's stock interest in General Motors exerted a potent influence on the affairs of General Motors, promoted the acts and transactions herein alleged, and induced General Motors to participate therein. Furthermore, *664 by reason of the facts herein alleged, defendant du Pont had working control (sometimes hereinafter referred to as `control') over General Motors, which permitted it to nominate and elect and/or dominate and control the majority of the Board of Directors and/or officers of said corporation, and to select and/or dominate and control a large part of the personnel of said corporation concerned with the acts and transactions herein alleged, to determine a large part of said corporation's policies including those relating to said acts and transactions, and to cause General Motors to participate in said acts and transactions."
"21. No demand has been made by plaintiffs on the body of stockholders of General Motors to obtain such action as they desire, because:
* * * * * *
"B. Such demand would have been futile for any or all of the following reasons:
"(1) If the majority of stockholders had demanded that suit be brought, such demand would not have been honored by General Motors' Board of Directors and/or officers by reason of the facts hereinbefore alleged.
"(2) The practical effect of any such demand would have been to involve the plaintiffs in a proxy contest to prevent ratification (if the body of stockholders of General Motors had the power to ratify the wrongful acts of the defendant du Pont) and/or to oust the existing Board of Directors of General Motors and to supplant it with a new Board which would have exercised independent and unbiased judgment in determining whether suit should have been instituted by said corporation against du Pont; and such a proxy contest would have required clearance of proxy material by the Securities and Exchange Commission and the circulation of said material to all stockholders of General Motors, all at considerable and prohibitive personal expense to plaintiffs. Such proxy contest would have been waged with du Pont and/or the management of General Motors, who also owned substantial blocks of the common stock of General Motors and had control over said corporation's proxy solicitation machinery. The latter's proxy solicitation would have been undertaken at the corporation's expense. By reason of the facts hereinbefore alleged, and the inertia and indifference of most of the widespread and relatively small stockholders, and their reluctance to oust management during a period of prosperity, for all practical purposes it would have been impossible for plaintiffs to have emerged the victor in such a proxy contest."
Accepting the allegations of paragraphs 7 and 21B of the complaint as true, the complaint, contrary to defendants' assertion, states a claim upon which relief can be granted because those allegations adequately set forth reasons for not making the effort to obtain from the shareholders the action by General Motors now sought against du Pont.
In small corporations, the holding of less than a majority of the stock would not amount to control; in large corporations, with stock widely distributed among many shareholders, a compact united ownership of a substantial block of stock, although less than a majority, could be ample to control the operations of the corporation.[2]
When the Court, in 1912, by the addition in Equity Rule 27, accorded to plaintiffs in derivative stockholders' suits the privilege of setting forth in their complaints the reasons for not seeking redress from the shareholders of the corporate *665 beneficiary of the suit, it is obvious that it intended to cover a situation ruled upon by it but three years earlier.[3]
There is a marked similarity between the certified facts in the Delaware case (which, as above noted, was decided after the promulgation of Equity Rule 94 in 1882 and before the promulgation of Equity Rule 27 in 1912 which added the requirement now being discussed) and the case at bar. If anything, the defendants' position in the Delaware case was more formidable than is the position of the defendants here. In the Delaware case the complainants and the allied protective committee controlled a percentage of issued stock of Susquehanna almost equal to the 25 per cent controlled by the Delaware Company and the directors. Further, the amount of stock involved and the diversification of its ownership was far less than is here presented.
The facts here presented are governed by the ruling in the Delaware case and hence the first branch of defendants' motion is denied.[4]
The notice of motion asks "(2) in the alternative, for an order staying this action and directing that the plaintiffs seek approval for bringing this suit from the stockholders of General Motors Corporation at their next annual meeting to be held on May 22, 1959, and dismissing this action in the event they do not secure such approval * * *"[5] Granting of the alternative relief sought, that plaintiffs be stayed until they poll the stockholders of defendant General Motors, would negative the holding on the first branch of the motion that the complaint states a claim upon which relief can be granted in so far as it states reasons for not consulting the shareholders. Hence, the second branch of defendants' motion is denied.
Recognizing that this decision enables a relatively small stockholder interest to plunge two large corporations into inevitably long and expensive litigation which, should this determination be erroneous, would result in a futile waste of time and money by both the plaintiffs and the defendants, this court will, if it is timely made, grant a certificate pursuant to 28 U.S.C. § 1292(b).
The defendants' motion is in all respects denied.
This is the court's order[6] and no further order is necessary.
NOTES
[1] 1 Barron & Holtzoff 618; 2 Moore's Fed.Prac. (2d ed.) 2244.
[2] United States v. Union Pacific Railroad Company, 1912, 226 U.S. 61, 95, 33 S.Ct. 53, 57 L.Ed. 124.
[3] Delaware & Hudson Co. v. Albany & Susquehanna R. Co., 1909, 213 U.S. 435, 29 S.Ct. 540, 53 L.Ed. 862.
[4] Cf. Berg v. Cincinnati, Newport & Covington Ry. Co., D.C.E.D.Ky.1944, 56 F. Supp. 842, 845; Pergament v. Frazer, D.C.E.D.Mich.1949, 93 F.Supp. 9, 13.
[5] Defendant du Pont has offered not to vote its stock on the question at the meeting and defendant General Motors has agreed to abide by the court's directive as to procedures to be used in connection with its proxy machinery to insure a fair presentation of plaintiffs' position to the stockholders.
[6] General Rule 10(a) for the Southern and Eastern Districts of New York. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2453520/ | 509 F.Supp.2d 156 (2007)
James H. REYELT, Plaintiff,
v.
William B. DANZELL and Louise Beenker Danzell, Defendants.
C.A. No. 06-57L.
United States District Court, D. Rhode Island.
September 20, 2007.
*157 Gordon P. Cleary, Esq., Vetter & White, Providence, RI, for Plaintiff.
Marc DeSisto, Esq., Kathleen M. Daniels, Esq., DeSisto Law, Providence, RI, for Defendant.
DECISION
RONALD R. LAGUEUX, Senior District Judge.
This is a contract dispute between the seller and the buyers of real property located at 10-12 Payne Road, in Barrington, Rhode Island. After negotiating a purchase price for the property, the parties entered into a purchase and sale agreement, with an incorporated promissory note and a rider, labeled Rider "A." Rider "A" (hereinafter designated as "the Rider") contained certain terms which provide the focus of the parties' disagreement in this case and will be explained at length below. The closing on the property took place on October 30, 2003. The ensuing dispute culminated in a federal lawsuit, based on diversity jurisdiction, filed in February 2006. The case was litigated during a two-day bench trial before this Court in May 2007 and the parties then submitted post-trial briefs. After a review of the trial testimony, the exhibits and the parties' post-trial submissions, this Court *158 now renders a decision for Defendants on the main issue presented in this case. In short, Defendants are liable to pay only $100,000.00 plus interest pursuant to the Rider and promissory note, rather than the $200,000.00 plus interest claimed by Plaintiff.
Findings of Fact
For many years, Plaintiff James H. Reyelt lived with his family at the property located at 10-12 Payne Road. The lot is approximately 100 feet by 350 feet, running from Payne Road on the north down to Barrington Beach on the south. There are two houses on the lot: 12 Payne Road, an older, smaller home sited near the road, which Plaintiff rented to tenants; and 10 Payne Road, Plaintiff's former residence, a newer, larger home sited to take advantage of the water view. Because there are two houses on one lot, the property is classified by the Town of Barrington as a legal but "non-conforming" use.
In 2003, after the death of his wife, Plaintiff decided to list his property for sale through a local realty agency. He retained his cousin's husband, Harold Jacobi, an attorney based in Boston, to represent him during the negotiations and sale of the property, and granted Jacobi power of attorney to act on his behalf as necessary. In July 2003, Plaintiff accepted an offer to sell the property to Defendants for $1,425,000. Soon after making their down-payment, Defendants discovered that, because of the property's non-conforming status, approval from the Town's Zoning Board would be required to make changes to either of the houses. On. July 23, Defendants placed a stop order on their down-payment check and retracted their offer.
The new deal
On August 18, 2003, Defendants renewed their offer of $1,425,000, subject to an addendum: Defendants would pay $1,225,000 at the closing and provide Plaintiff with a one-year promissory note for $200,000. If Defendants received a variance to construct a new house or add on to one of the existing houses by the end of the year, they would pay the note in full. If a variance was denied, Defendants would pay only half the promissory note's amount, and the purchase price would be adjusted accordingly.
On August 28 and September 3, 2003, the parties entered into this agreement in writing, executing a purchase and sale agreement with the Rider. Because of its importance to the dispute, the entirety of the Rider is set forth below:
The parties hereby agree to the following:
1. The Buyers agree to execute a promissory note as part of the purchase price at the time of the closing in the amount of $200,000 ® 5% interest due and payable one year from the closing date, or any written extension signed by the parties.
2. The Buyers intend to file for a Variance with the Town of Barrington seeking to remove the present house, building a new house and/or reconstructing the house with a new configuration. The Buyers agree that they will file for a Variance within three months of the date of the closing date[1] and the Seller agrees that if the Variance is filed prior to the closing, that he will sign the Variance as the owner of the property and *159 cooperate with the Buyers as long as he is the owner.
3. In the event that the Variance is granted within one year of the date of application, then the Buyers shall forthwith pay the promissory note of $200,000 in full with interest thereon ® 5% per annum in arrears, meaning from the date of closing to the date of payment to the Seller.
4. In the event that the Variance is not granted within one year after application and the Buyers have been diligent and used good faith in their processing of said application for a Variance, or if the Variance has been denied and any appeal period has expired, then the Buyers shall pay over to the Seller $100,000 and 5% per annum interest on the full value of the note of $200,000 at the time of the denial or at the expiration of any appeal that is processed, together with the interest thereon. The price of the house will be reduced if this provision comes into existence to $1,325,000 plus interest on the face value of the note and all other obligations of the parties shall cease.
As agreed, Defendants executed the promissory note at the closing on October 30, 2003. Defendants were represented at the closing by Attorney Matthew Slepkow. Jacobi attended the closing on behalf of Plaintiff.
Preparation of the zoning application
The calendar year drew to a close with no further activity on the zoning application. Defendant William Danzell testified that he was under the impression that his closing attorney would prepare the application. However when he contacted Slepkow, possibly in December, he learned that this was not the case, and he was referred to Attorney Anthony DeSisto[2] for this service. In the meantime, Jacobi wrote to Slepkow, and to Defendants inquiring about the progress of the zoning application.
On January 29, 2004, Jacobi received a letter from DeSisto indicating that he was representing Defendants, and requesting a copy of the purchase and sale agreement. Jacobi complied, calling DeSisto's attention to the portion of the Rider specifying that the zoning application was to be filed within three months of the closing. He received no response and wrote again. On April 20, 2004, Jacobi received an apologetic reply from DeSisto. DeSisto explained that he had been unable to work due to an injury, but that some "preliminary work" had been done and he hoped a hearing on the request would take place in June.
The preliminary work presumably consisted of Defendant William Danzell meeting with architect Jay Litman of Newport Collaborative Architects, which took place at the end of March or beginning of April. Litman testified at trial that he told Danzell that," you know, the most obvious way to deal with this is you're going to have to tear down one of the houses and extend the other house so you only have one primary residence on the property." Nevertheless, based on a letter of engagement from Litman to the Danzells, dated April 6, 2004, which recaps their discussions and outlines their plan, it appears that instead they decided, to tear down the waterfront house' (10 Payne Road)[3] and rebuild a "substantially larger" new house *160 on the same site. The letter also states, "Ultimately the plan is to renovate House "A" as a guest cottage and connect an addition to House "B" to create a new 8,000 SF family compound together with the Guest Cottage and a 2-car, 500 SF garage."
Litman's letter outlines a proposed fee structure, including 1) $3,200 for "As-Built Existing House Plans and Elevations;" 2) $1,500 for "1st Phase Zoning Package;" and 3) $24,000 for "Schematic Design" of the new house. Five weeks later, on May 14, Danzell faxed a copy of Litman's letter back to him. Danzell checked off as accepted the fees for as-built housing plans and the zoning package, but wrote "Wait" with his initials next to the schematic design line. Danzell also attached a handwritten note, which stated in part, "Jay We still do not know if we are going to build the $1.6 million addition. So, if possible, we want to limit our expense to the 1st phase + As Built."
In August, DeSisto wrote to Jacobi again, explaining that he had "encountered some significant problems that have led to the delay in obtaining the necessary permits and approvals regarding Mr. Danzell's plans . . ." DeSisto offered further that the Town of Barrington's Zoning Ordinance prohibited two single-family residences on one lot, and that, consequently, Defendants' application would be for a "special use permit," not the `variance' referenced in the Rider. Lastly, DeSisto notified Jacobi that the hearing was scheduled for October 21, 2004.
The zoning application
The Barrington Zoning Code specifies four general standards for special use permits under § 185-73,[4] and four additional standards for non-conforming uses under § 185-74.[5] In order for a permit to be approved, four of the five-member Board has to vote in favor of approval, a so-called super-majority. According to Providence lawyer Jeffrey Brenner, who testified at the trial in his capacity as chairman of the Barrington Zoning Board, Defendants' application was not reviewed by the Zoning Board prior to the hearing, except that it was reviewed and accepted as to form by *161 the Town's Building Official when it was filed.
The application, Number 3226, dated August 18, 2004, consisted of a two-page form, with four attached pages of architectural drawings prepared by Litman's firm. The information on the form provides that the 12 Payne Road house is 1,140 square feet, with a 540 square foot garage, and that the 10 Payne Road house is 1,220 square feet. The proposed alterations are: "Applicant proposes to renovate and add an addition to 10 Payne Road as shown on the attached plans. The proposed addition is 1,550 sq. ft. The size of 10 Payne Road will be increased 2,590 sq. ft." The form also noted that there would be six parking spaces on the lot. The attached diagrams included: 1) a map showing the abutters within a 200 foot radius of the lot; 2) an aerial view showing the existing houses and garage, with the proposed addition, indicated by cross-hatching, superimposed on top of 10 Payne Road; 3) a side or back view of 10 Payne Road, showing the 17' 4" existing house, with an 11' 8" crosshatched section marked `renovation' and a 30' 5" crosshatched section marked `addition;' and 4) the opposite side, again showing the existing portion of the house and 42' + crosshatched section identified as part addition and part renovation. Pictures 3 and 4 were labeled as "massing elevations" and contained little detail as to the visual appearance of the proposed new construction; instead, they demonstrated only the footprint of the proposed addition and how it would be sited on the property.
The hearing
DeSisto and Litman both appeared at the zoning hearing on Defendants' behalf. DeSisto testified at trial that he had previously appeared before the Barrington Zoning Board over 100 times. Litman had appeared before the Board two or three times. A transcript of the hearing, with notations and corrections made by Brenner,[6] was admitted as evidence at the trial.
The transcript shows that the Board members initially spent considerable time discussing the proximity of the proposed house to the beach and whether or not the project required approval from the Rhode Island Conservation Commission, or Coastal Resource Management Council. The Board members clearly were not familiar with the property, and thought, mistakenly, that there was a road and/or a parking lot between the property and Barrington Beach. Prior to the hearing, the Conservation Commission had sent a letter to the Board requesting that they refrain from acting on Defendants' application until the Commission had an opportunity to review the proposed project. However, DeSisto argued that this issue would be addressed later at the building permit stage, and was not within the jurisdiction of the Zoning Board. This issue was not resolved, but the members nonetheless decided to proceed with the hearing.
DeSisto then introduced Litman, who passed out some photographs of the site, and explained the project as follows:
And you'll note in the application that we really don't show any articulation of the actual facade to the building. The purpose is because we're looking strictly at the zoning issue upon the owners' request to look at expanding as Mr. DeSisto had said for the south principal structure on the property. And we have two options here, obviously. One is to try to pursue expanding one of the houses in a non-conforming lot that has two *162 principal structures. Should this be denied, the second option is to try to take the historic home at the front of Payne Road and somehow build an addition on to that and create one principal structure, perhaps taking down the structure closest to the beach. And so the purpose of this application really is to just explore whether we can, in fact, expand one of the principal structures, obviously the one closer to the beach because that would be the more preferable one. I can't speak a lot about exactly how it's going to look yet because that's sort of Phase 2 for our services. What we have done in the package you have is basically document what is on the property right now, so we have a starting point. They really don't want to go beyond this stage until we know what direction we want to move in. And obviously we're looking to the Zoning Board for some kind of direction and recommendation on that.
The next speaker was Darren Corrente, a lawyer and son-in-law of the next-door neighbors, Arthur and Joanne Coia of 20 Payne Road. Corrente urged the Board to reject the project, stressing that there were already three structures on the property, counting the garage, and that the proposal called for more than doubling the size of one of the existing structures, bringing the new construction to within 14 feet of his in-laws' property line. He went on, "If you look at, if you look at what the Zoning Ordinance says in allowing this application under 185-74, the general visual appearance of the non-conforming use shall not be altered in any way so as to heighten or make more apparent its nonconformity. Well, adding 1,500 square feet to a non-conforming use does nothing but heighten the non-conformity, and clearly the appearance is going to be, it's going to be much greater, this appearance of this non-conformity." A second neighbor then spoke and expressed her concern over the continued use of 12 Payne Road as a rental property and the additional traffic generated.
Later in the evening, the Board discussed and then voted on Defendants' application. Moving that the application be denied, Board member Tom Kraig stated, ". . . In this case, the proposal is to more than double the size of this particular dwelling unit upon the property. I think by definition that increases the general visual appearance of the non-conforming use to make it, or to heighten its nonconformity. It's more obvious particularly since it is going so close to that one side line, much closer than the existing house is." Board member Neal Personeus sec onded the motion.
Board member Paul Ryan concurred with Kraig and Personeus: "Beyond that, this is the only non-single family unit in the entire area. You want to put that on the record. The entire rest of the area is single family homes with one house on the lot."
Personeus complained that there "was no detail as to what this structure was going to look like" because the application lacked architectural plans. Kraig responded, "Well, I wouldn't attach too much weight to that, you know, because I think that was intended simply to give a sense of the mass without any architectural details." But Brenner added that the project was "crying out for specific plans as to what you're going to do."
Kraig concluded the discussion by asserting that the standards for a special use permit had not been met because there was no showing that public welfare would be substantially served; no showing that the project would be in harmony with the general purpose of the Town's comprehensive plan; no showing that the project *163 would not result in conditions inimical to the general welfare of the community, including safety; and no showing that the project would not substantially harm the appropriate use of the surrounding property. The application was then voted down unanimously.
Later that week, DeSisto wrote to Jacobi notifying him of the Board's action. According to DeSisto's uncontradicted trial testimony, he called Jacobi in December 2004 or January 2005 and offered to send the payment of $100, 00 plus interest, which was being held in an escrow account. Jacobi refused to accept the payment, and this lawsuit ensued.
Analysis and Conclusions of Law
Plaintiff alleges that Defendants had a duty to use their best efforts to obtain the special use permit and that they failed to do so; and that, moreover, their failure to apply for the permit within the three-month time period designated in the Rider represents a breach of the contract. Consequently, Plaintiff argues that he is entitled to the total amount of the promissory note, $200,000 plus interest.
Three-month deadline for filing zoning application
Plaintiff asserts correctly that Defendants failed to comply with the three-month time period specified in paragraph 2 of the Rider: "The Buyers agree that they will file for a Variance within three months of the date of the closing date." Pursuant to this section, Defendants should have filed the application by the end of January 2004. However, their application was not filed until mid-August 2004. Plaintiff argues that this represents a breach of an essential element of the contract.
Defendants counter that the one-year time period for the variance to be granted (or not) was the significant time period for performance of the contract. The three-month time frame for Defendants to file the application was included to ensure that the Zoning Board would have an opportunity to act on the application before the one-year anniversary of the closing. Furthermore, Defendants point out that Plaintiff knew at the end of January that they had not filed their application and did not object until after the application had been denied. This inaction, Defendants argue, constitutes a implied waiver of the contract term.
The Court concurs with Defendants' construction of the three-month contract term. Many years ago, the Rhode Island Supreme Court wrote that, "A contract is not to be construed like a railway timetable." Furlong v. Barnes, 8 R.I. 226, 229 (1865). Rather,". the contract is to receive a reasonable construction, having regard to its character and objects, and to the apparent meaning of the parties in view of the circumstances under which it was made." Id. at 229; see also Safeway System v. Manuel Bros., 102 R.I. 136, 145-146, 228 A.2d 851 (1967); Fracassa v. Doris, 814 A.2d 357, 362-363 (R.I.2003). In the case of this contract, the Court concludes that the three-month time period was inserted for two reasons. One was to put Defendants on notice of the possible time involved in processing a zoning application and to encourage them to get the process going. The second purpose of the three-month time limit was to serve as a benchmark to evaluate Defendants' diligence in the event that they had filed their application, but it had not been acted, upon by the Zoning Board at the time of the anniversary of the closing. As it happened, while Defendants were indeed dilatory (within the framework of the Rider) in submitting their zoning application, they did manage to get in under the wire, receiving the ruling on the application a week before the anniversary date of the *164 closing, as contemplated by the terms of the Rider.
The implied duty of `best efforts'
Plaintiff argues that Defendants had an implied duty to fulfill the contract terms (that is, apply for and obtain a zoning variance) in good faith, using diligence and their best efforts. Defendants argue that the duties of good faith and diligence, being expressly included in paragraph 4 of the Rider, were intentionally omitted in the other three paragraphs and cannot then be implied. In this particular dispute, the Court sides with Plaintiff.
Judge Cardozo of the New York Court of Appeals is credited with originating the concept of an implied duty to use `best efforts' in order to impose mutuality of obligations in a contract which otherwise lacked an explicit quid pro quo. In Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118 N.E. 214 (1917), Lady Duff-Gordon made an arrangement with Wood to market her fashion designs. His right to market her fashions was to be exclusive, and they were to share the profits. However, Lady Duff-Gordon marketed her fashions outside of the arrangement with Wood, and withheld the profits. She argued that there was no contract because Wood had not bound himself to anything. Judge Cardozo wrote,
It is true that he does not promise in so many words that he will use reasonable efforts to place the defendant's indorsements and market her designs. We think, however, that such a promise is fairly to be implied.
118 N.E. at 214. The Rhode Island Supreme Court has recognized the implied duty to use best efforts, and cited it recently in Bradford Dyeing v. J. Stog Tech GmbH, 765 A.2d 1226, 1237 (R.I.2001), when it wrote,
It is both elementary as well as fundamental law that where parties contract and make performance conditional upon the happening of an occurrence of a particular matter, the contract imposes upon the party required to bring about the happening of that occurrence an implied promise to use good faith, diligence and best efforts to bring about that happening.
In the present case, this Court holds that the duty to use best efforts, as well as good faith and diligence, permeates the Rider in its entirety. Plaintiff agreed to forgo the receipt of the $200,000 balance of the property's purchase price for one year, and Defendants agreed that during that year they would diligently pursue permission to build the kind of residence on the property that they desired. According to the clear meaning of the Rider, if Defendants ultimately decided against moving to Rhode Island, or decided that the property was habitable in its current state, their obligation to pay $200,000, plus interest, on the anniversary of the closing would remain in force. Defendants could only be released from the full $200,000 payment if they applied for zoning relief, diligently, in good faith and using their best efforts, and such relief was denied within a year of the closing. In that eventuality, they would only owe Plaintiff $100,000.
Defendants' efforts: good, better, best?
Plaintiff does not argue that Defendants acted in bad faith, or even that their efforts lacked diligence. Instead, Plaintiff argues that Defendants did not use their best efforts that they could have done more to obtain the variance or special use permit, and that the application that they made was not reasonably designed to garner the approval of the Barrington Zoning Board. Before the Court evaluates the quality of Defendants' exertions, it is necessary to come up with a workable standard by which to measure `best efforts.'
*165 In the Bradford Dyeing case, cited above, Bradford Dyeing agreed to obtain a permit from the state Department of Environmental Management prior to completing the purchase of a wastewater treatment system from a German manufacturer. In characterizing the nature of Bradford's duty, the Rhode Island Supreme Court wrote, "That obligation imposed upon Bradford its implied promise to Stog that Bradford would in good faith take all reasonable steps and make all reasonable effort to obtain the DEM order of approval." Bradford Dyeing, 765 A.2d at 1235.
The Sixth Circuit likewise indicated its preference for a standard based on reasonableness in Permanence Corp. v. Kennametal, Inc.,
While the phrase "best efforts" is often used to describe the extent of the implied undertaking, this has properly been termed an "extravagant" phrase. A more accurate description of the obligation owed would be the exercise of "due diligence" or "reasonable efforts."
908 F.2d 98, 100, n. 2 (6th Cir.1990)(cites omitted).
In Macksey v. Egan, 36 Mass.App.Ct. 463, 633 N.E.2d 408, 413, n. 16 (1994), the Appeals Court quoted the trial judge's jury instructions approvingly in a breach of contract case:
The judge instructed: "`Best efforts' is what is reasonable under the circumstances. What constitutes best efforts my be determined by the parties' intentions. Best efforts does not require unreasonable, unwarranted or impractical efforts and expenditures of time and money out of all proportion to economic reality. Best efforts is equal to a good faith effort to meet one's obligations. The defendants are allowed to give reasonable consideration to their own interest. The defendants were required to do what was contemplated and what was reasonable under all of the circumstances, and to perform their activities with a good faith effort to the extent of their capabilities . . . "
The First Circuit stated in Triple-A Baseball Club v. Northeastern, Baseball, 832 F.2d 214, 225 (1st Cir.1987), that "the `best efforts' standard has been held to be equivalent to that of good faith," and that the Court was unable to find a case in which a court had held that a party had acted in good faith, but had not employed its best efforts.
In light of these precedents, the Court is comfortable in concluding that a party's diligent, reasonable, good faith effort to fulfill the obligations imposed by the contract is good enough to qualify as `best.'
With this standard in mind, the Court now reviews Defendants' efforts to obtain zoning relief on their Barrington property, with particular attention to the shortcomings cited by Plaintiff.
The nature of the zoning application
Plaintiff argues that the concept proposed to the Zoning Board was not one that was likely to be approved. In support of his argument, Plaintiff cites trial testimony of Danzell and his architect, Litman. Danzell's family had remained in South Carolina while he commuted back and forth to Providence during the time period in question. At trial, Danzell revealed that his family was ambivalent about the move to Barrington. He also indicated that the renovation plan that most appealed to him was to tear down the waterfront house and rebuild a new house on that site. Litman, who said various equivocal and contradictory things about the renovations, expressed that tearing down one house and adding on to the other house was probably the plan most likely to be approved by the Zoning Board. However, for reasons that *166 were not fully developed at trial, neither of these concepts was ultimately presented to the Zoning Board. Instead, the Zoning Board was presented with a proposal to leave one house as is, and add new construction to the other house to more than double its size. Moreover, the proposal was characterized by Litman as a "conceptual planning study with just footprint and massing" geared to "get approval on principle." [Trial transcript, May 2, 2007, p. 77, ll. 20-22].
The language of the Rider indicated that Defendants would seek permission from, the Town to "remove the present house, building a new house and/or reconstructing the house with a new configuration." Whether the "house" referenced is number 10 or number 12 is not specified. Defendants were not bound by the Rider to favor one renovation option over another, and they were not bound to choose the option most likely to garner approval from the Zoning Board. The Rider provided them with flexibility to seek permission to proceed in any manner they chose. As long as the proposal presented to the Board was made in good faith, and was not purposefully designed to fail (as Plaintiff hints at but stops just short of making this argument), and as long as the proposal involves the type of renovations contemplated by the language of the Rider, then it reasonably fulfills Defendants' contractual obligations.
The quality of the zoning application
Plaintiff also argues that Defendants did not use best efforts in preparing the zoning application; that, basically, the application presented to the Board was `half-baked.' Plaintiff focuses specifically on Defendants' decision not to hire Litman's firm to prepare complete schematic designs of the proposed new construction prior to the zoning hearing. Plaintiff finds support for his argument in some of the comments made by the Zoning Board members at the time of the vote.
Litman outlined a proposed fee structure to Danzell in his letter of April 9, 2004. The fees included $3,200 for "As-Built Existing House Plans and Elevations," $1,500 for "1st Phase Zoning Package," and $24,000 for "Schematic Design." Danzell authorized the first two items but instructed Litman to hold off on the schematic designs. Accordingly, the proposal presented to the Zoning Board included only four sketches or diagrams indicating the footprints and general outlines of the existing buildings and the proposed new construction. The proposal, characterized by Plaintiff in his post-trial memorandum as "an inexpensive shot in the dark," was insufficient to demonstrate to the Zoning Board that Defendants met the standards of the ordinance for nonconforming uses, and, therefore, were entitled to relief. Plaintiff attaches particular importance to the section of the ordinance that requires a showing that "the general visual appearance of the nonconforming use shall not be altered in a way so as to heighten or make more apparent its nonconformity . . ." Barrington Code, Article XIV, § 185-74(B).
The transcript of the Zoning Board hearing reflects that Plaintiff's reactions to the omission of complete schematic designs were shared by some of the Board members. Neal Personeus stated, ". . . in this case the plans that were presented were, made it look like they were building an auditorium. We have no windows. There was no detail as to what this structure was going to look like. So as far as making the nonconformance worse than what it was, that would definitely be the case with the application presented." Chairman Brenner concurred, stating that when the proposal is to expand a non-conforming use, "[T]hat is crying out for specific plans as *167 to what you're going to do. And without those specific plans I don't think that any application should be granted."
It is undeniable that the inclusion of full schematic designs (involving an additional expenditure of $24,000 for Defendants) would have made for a more thorough presentation to the Zoning Board. However, the Court concludes that Defendants' failure to include those designs did not represent a breach of the contract because it was reasonable for them to proceed as they did. In support of this conclusion, the Court notes the following facts from the trial record.
The Chairman of the Zoning Board, Jeffrey Brenner, testified that all zoning applications, including Defendants', were reviewed by the Town's Building Official at the time of submission. Applications that are insufficient as to form and format are not accepted for review. The fact that Defendants' application passed through this first hurdle indicates that it was not inadequate per se.
To prepare their zoning submission, Defendants hired Jay Litman, a Newport architect with thirty years of experience. Litman testified that he had appeared before the Barrington Zoning Board two or three times, previously. He described Defendants' application as "a conceptual planning study with just footprint and massing," and said he had had similar submissions approved in the past and that he expected Defendants' application would be approved.
In addition, Defendants hired Anthony DeSisto, an attorney with a practice concentration in zoning law. DeSisto testified that he had appeared in front of the Barrington Zoning Board in connection with applications for special use permits or other relief over 100 times. He believed that Defendants' application was sufficient because it met the Board's requirements and because it was similar to previous submissions he had made which were approved by the Board.
Finally, the official reasons cited by the Board for its decision do not include the insufficiency of the application. Instead, those reasons parrot the language of the ordinance: "A) that the public convenience and welfare will not be substantially served; B) that it will not be in harmony with the general purpose of this ordinance and with the Comprehensive Community Plan; C) that it will not result in or create conditions that will be inimical to the public health, safety, morals and general welfare of the community; and D) that it will substantially or permanently injure the appropriate use of the property in the surrounding area or district."
Looking beyond this boilerplate language to the reasons expressed by the Board members during their discussions, it seems clear that their main objection to the proposal was that it was too big. The proposal would not only retain the two buildings, thereby perpetuating the nonconformity, but it was to more than double the size of one of the buildings. No detailed architectural drawings were required to determine that this plan would alter "the general visual appearance of the nonconforming use . . . so as to heighten or make more apparent its nonconformity." The so-called `conceptual planning study with footprint and massing' was more than adequate to illustrate the "general visual appearance" of the proposed new structure. Finally, it is worth noting that there is no evidence to indicate that the inclusion of full schematic designs, and Defendants' additional expenditure of $24,000, would have resulted in approval of the application by the Zoning Board.
Tender and the terms of the promissory note
While the Court holds that Defendants exercised diligence and good faith and *168 used reasonable efforts to fulfill their obligations under the Rider, the Court holds further that Defendants remain obligated to pay Plaintiff the portion of the purchase price that was not contingent on the variance application. According to paragraph 4 of the Rider, Defendants were to pay Plaintiff "$100,000 and 5% per annum interest on the full value of the note of $200,000 at the time of the denial." Consequently, Defendants owe $100,000 plus interest, calculated at the rate of 5% per annum on $200,000 from the closing, October 30, 2003, to the date of the denial of the variance, October 21, 2004.
Moreover, Defendants' failure to make payment at the time of the denial of the variance places them in default of the terms of the promissory note, according to its sixth paragraph, which specifies that interest will be calculated on the unpaid balance, at the time of default, at 12% per annum. Accordingly, the Court orders payment of interest on the unpaid balance of $100,000 from October 22, 2004 through January 31, 2005.
The Court has fixed January 31, 2005, as the termination point for the accrual of interest because it finds that Defendants made an attempt to tender payment at that time, and that this attempt was rejected by Plaintiff. Although the telephone conversation between DeSisto and Jacobi did not include the literal `counting out' of cash required in a formal tender offer, the Court finds that it was sufficient and adequate tender to stop the running of the interest clock. The fact that the money was in an escrow account indicated that Defendants were ready, willing and able to make the payment at that time. Moreover, because the law does not require one to perform a useless act, "formal tender is never required where by act or word the other party has shown that if made it would not be accepted." Stras-bourger v. Leerburger, 233 N.Y. 55, 134 N.E. 834, 836 (N.Y.1922); see also Hills v. National Albany Exchange Bank, 105 U.S. 319, 26 L.Ed. 1052 (1882); Guthrie v. Curnutt, 417 F.2d 764 (10th Cir.1969).
Because the burden is on the Defendants to establish tender, and DeSisto recalls only that the telephone call took place sometime in December 2004 or January 2005, the Court concludes that January 31, 2005, is an appropriate date to use as the time of tender.
Conclusion
For the reasons stated above, the Court decides this case in favor of Defendants on the issue presented. Defendants owe Plaintiff $100,000 plus interest, rather than $200,000 plus interest. The Clerk shall enter judgment for Plaintiff in accordance with the terms of the Rider and note as follows: The judgment will be in the amount of $100,000.00, plus 5% interest per annum on the full value of the note, $200,000, calculated from the time of the closing, October 30, 2003, through October 21, 2004; plus interest of 12% per annum on $100,000 from October 22, 2004 through January 31, 2005. The Clerk shall make those calculations and enter judgment for Plaintiff against Defendants in that total amount.
It is so ordered.
NOTES
[1] Attorney Jacobi testified at trial that he suggested the three-month time limit for the variance application. When the Rider was executed, Defendants extended the time limit from three months from the execution of the purchase and sale agreement to three months from the closing.
[2] This being Rhode Island, Defendants were represented by Anthony DeSisto at the zoning hearing, and by his brother, Marc DeSisto, at the trial. References to DeSisto in this decision refer to Anthony DeSisto, who was a witness at the trial.
[3] The waterfront house was called House "B" by the architect.
[4] § 185-73. General standards. A use requiring a special use permit in Article IV and elsewhere in this chapter may be permitted by the Zoning Board of Review following a public hearing only if, in the opinion of the Board, such proposed use and its location on the site meets each of the following requirements:
A. The public convenience and welfare will be substantially served.
B. It will be in harmony with the general purpose of this chapter, and with the Comprehensive Community Plan.
C. It will not result in or create conditions that will be inimical to the public health, safety, morals and general welfare of the community.
D. It will not substantially or permanently injure the appropriate use of the property in the surrounding area or district.
[5] § 185-74. Standards relating to nonconforming uses. In addition to the standards of § 185-73, when reviewing a special use permit application for the change in a nonconforming use to another nonconforming use, or for the extension, addition to or enlargement of a nonconforming use, the Zoning Board of Review shall require that the applicant demonstrate each of the following:
A. That it will not result in the creation of or increase in any undesirable impacts related to the use, such as excessive noise, traffic and waste generation.
B. That the general visual appearance of the nonconforming use shall not be altered in a way so as to heighten or make more apparent its nonconformity and, where possible, shall be improved so as to be more consistent with the surrounding area.
C. That it will not have a negative impact on the natural environment or on any historic or cultural resource.
D. That the resulting nonconforming use will be a beneficial use to the community.
[6] Brenner testified that, prior to the trial, he listened to a tape recording of the hearing and noted his corrections on the transcript. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555812/ | 171 F.Supp. 145 (1959)
ARKANSAS VALLEY FEED MILLS, INC., Plaintiff,
v.
FOX DE LUXE FOODS, INC., Defendant, Harold Snyder, Third-Party Defendant.
Civ. A. No. 1392.
United States District Court W. D. Arkansas, Fort Smith Division.
March 3, 1959.
*146 *147 Williams & Gardner, Russellville, Ark., for plaintiff and third-party defendant.
Crouch, Jones & Blair, Springdale, Ark., James L. Fox, Chicago, Ill., for defendant.
JOHN E. MILLER, Chief Judge.
The plaintiff filed its complaint on December 31, 1957, which is set out more fully in D.C., 163 F.Supp. 759. The complaint alleged in essence that on December 14, 1953, the plaintiff entered into a written contract with the defendant effective January 4, 1954, for a period of one year, under which the defendant agreed to purchase from the plaintiff 50,000 chickens each week. The plaintiff further alleged that the defendant defaulted in part until July 24, 1954, and thereafter wholly refused to perform any part of the contract.
On February 8, 1958, the defendant filed its answer in which it admitted the execution of the contract sued upon, but alleged that said contract was canceled by a written agreement dated August 2, 1954, signed by Harold Snyder, president of the plaintiff, Arkansas Valley Feed Mills, Inc., and alleged that the agreement was effective to cancel all obligations under the contract of December 14, 1953.
Following the filing of the deposition of Harold Snyder, president of the plaintiff corporation, the defendant on May 27, 1958, moved for a summary judgment, basing its motion upon the cancellation *148 agreement. On June 18, 1958, the plaintiff filed its response to the motion for summary judgment, and attached affidavits thereto. In its response the plaintiff alleged that the cancellation agreement was executed without consideration, and further that the consideration for that agreement, if any, had failed.
The plaintiff also alleged in its response to the motion for summary judgment that Harold Snyder, as president of the Arkansas Valley Feed Mills, Inc., had no authority to execute the cancellation agreement, and that said agreement was not ratified by the corporation.
On July 14 the court, after considering the pleadings, depositions, affidavits, and briefs of the parties, concluded that there was a genuine issue of fact as to the authority of Harold Snyder to execute the cancellation agreement or whether the plaintiff had ratified the alleged cancellation agreement. Accordingly the motion for summary judgment was denied. D.C., 163 F.Supp. 759.
On the same day the court advised the parties that in the interest of economy of time and money the case should be tried first upon the issue of the validity and effect of the cancellation agreement, and if the court concluded that the said agreement was executed without authority of the plaintiff and had not been ratified by plaintiff, an additional hearing would be held to determine the amount of damages to which the plaintiff was entitled, if any.
On December 13, 1958, the defendant moved for leave to amend its answer and to file a third-party complaint against Harold Snyder, president of the plaintiff corporation, as an individual. On December 15 the court granted the motion, and on the same day the defendant filed its amended answer and third-party complaint. In essence the third-party complaint alleged that if in fact Harold Snyder was without authority to execute the cancellation agreement, he had fraudulently and willfully induced the defendant by false representations to execute that agreement. Consequently, the third-party complaint prayed that in the event the plaintiff recovered a judgment against the defendant, that the defendant have judgment over against Harold Snyder.
The amended answer alleged that in fact Harold Snyder had authority to execute the cancellation agreement of August 2, 1954, but that, in any event, the plaintiff corporation was estopped from denying such authority because it had held out Harold Snyder as having authority to execute contracts in its behalf both to the public generally and specifically to the defendant. The defendant also alleged that the plaintiff corporation ratified the acts of Snyder in executing the cancellation agreement by accepting the adjustments set forth in that agreement.
The answer of the third-party defendant, Harold Snyder, denied that he represented to the defendant that he had authority to act on behalf of the Arkansas Valley Feed Mills, Inc.
On January 19 and 20, 1959, the case was tried to the court without a jury on the sole issue of whether the cancellation agreement of August 2, 1954, was valid and effective. At the conclusion of the trial, the case was submitted and taken under consideration, and the attorneys were directed to file briefs in support of their contentions. The briefs of the parties have been received and considered along with the pleadings, depositions, ore tenus testimony and all exhibits, and the court now makes and files its formal findings of fact and conclusions of law.
Findings of Fact
1.
The plaintiff is a corporation organized and existing under the laws of Arkansas with its principal place of business at Dardanelle, Arkansas. The defendant is a corporation organized under the laws of Illinois and authorized to do business in Arkansas, where it maintains a place of business at Dardanelle, Arkansas. This suit was filed on December 31, 1957, and the amount in controversy is in excess of $3,000.
*149 2.
The plaintiff corporation, Arkansas Valley Feed Mills, Inc., was incorporated in 1946 by Harold Snyder, W. H. McClure and F. S. Meek. The corporation (hereinafter referred to as the Mills) was originally formed to operate a dehydrating plant, but later expanded its activities to include the manufacture of feed and the sale of chickens. In 1952 the Mills entered into a contract with the defendant, Fox De Luxe Foods, Inc. (hereinafter referred to as Fox), for the sale of chickens at a specified rate to Fox, and subsequently an amendatory contract between those parties was entered into for an increased rate of sale.
After these dealings between the parties, negotiations began in the latter part of 1953 for a similar contract which was to be operative during the calendar year of 1954. A written memorandum of this agreement was executed by the parties on October 8, 1953.[1]
A more formal contract embodying the terms set forth in the memorandum agreement was executed on December 14, 1953, and was to be operative beginning January 4, 1954, for a period of 52 consecutive weeks. The contract of December 14 is the contract sued upon herein by the plaintiff, and is hereinafter referred to as the marketing contract.[2]
3.
The parties embarked upon the performance of this contract, but after several months of operation thereunder a dispute arose as to some of the procedures being used by the defendant in its *150 performance. Paragraph 2 of the contract, as set forth in footnote No. 2, provided standards of weight and quality for the chickens to be bought by Fox, and paragraph 4 provided for a penalty to be imposed upon the seller in the event that the chickens furnished failed to meet the specifications of the contract.
In the spring of 1954 the defendant, apparently relying upon these provisions, began refusing to accept all of the 50,000 chickens per week which it was obligated under the contract to purchase, basing its refusal upon claims that the chickens furnished did not meet the standards prescribed by the contract. In order to determine whether the chickens were of the quality prescribed, Fox would grade the flocks of chickens offered and refuse or accept the chickens at contract prices as they met or failed to meet the standards of quality required under Fox' interpretation of the contract.
The plaintiff corporation contended that the quality was as prescribed in the contract and that, in any event, Fox was not entitled under the provisions of the contract to invoke the penalty clause. This contention was based upon the plaintiff's interpretation of the contract to the effect that the penalty could be effective against it only in the event it failed to offer 50,000 chickens each week of the required weight and that the penalty clause did not become operative because of a failure in quality of the chickens.
In July of 1954 Fox nevertheless invoked the penalty clause embodied in paragraph 4 of the marketing contract on the ground that the quality requirements of paragraph 2 were not complied with by the chickens which the plaintiff was offering.
The plaintiff was unable to persuade Fox to alter this procedure, and on August 2, 1954, in order to obtain a new contract or to cancel the existing marketing contract, the plaintiff's president and general manager, Harold Snyder, went to Chicago to meet with Fox representatives at their home office. The meeting was attended by Mr. Harold Williams, Mr. C. P. Dodd, and Mr. Roland N. Gergin, all representatives of the defendant Fox.
As the meeting progressed, it became apparent that Snyder and the Fox representatives could reach no general agreement as to the performance required by the marketing contract. Mr. *151 Gergin, a vice president of the defendant, then advised Snyder, as president and general manager of the plaintiff Mills, that it would be necessary to invoke the penalty provision of the marketing contract each week unless the chickens met with the quality requirements as interpreted by Fox. Snyder then suggested that the marketing contract be canceled with a view in mind that Fox would continue to purchase from the plaintiff Mills, but without a contractual agreement. In other words, if the marketing contract were to be canceled, Fox would not break off its relations with the plaintiff but would continue to purchase chickens on the open market to the extent that it might find desirable or necessary. A general agreement was reached between the Fox representatives and Harold Snyder that a cancellation should be made.
When this oral understanding had been reached, the meeting was adjourned to the office of Mr. Mike Fox, who is since deceased, but who at that time was president of the defendant, Fox De Luxe Foods, Inc. Mr. Fox agreed that the contract should be canceled but insisted that a cancellation agreement be signed before Snyder returned to Arkansas. Snyder agreed to sign the instrument which was prepared by Fox' attorneys at their office, where Snyder signed it on his way to the airport. The agreement in its entirety reads as follows:
"Cancellation Agreement
"Whereas, under date of December 14, 1953, a written agreement was entered into between Fox De Luxe Foods, Inc. of Chicago, Illinois, and Arkansas Valley Feed Mills, Inc. of Dardanelle, Arkansas, wherein and whereby said Fox De Luxe Foods, Inc. agreed to buy from Arkansas Valley Feed Mills, Inc. and the latter agreed to sell 50,000 head of chickens each week commencing January 4, 1954, for a period of fifty-two consecutive weeks thereafter on the stipulations, covenants and agreements in said agreement contained; and
"Whereas, the parties hereto have agreed to cancel said contract effective the day and date hereof.
"Now, Therefore, the parties hereto agree to and do hereby so cancel said agreement dated December 14, 1953, and in pursuance of this agreement of cancellation and of One Dollar in hand paid, one to the other, receipt whereof is hereby acknowledged, the said parties each do hereby release the other, their successors and assigns, from all sums of money, accounts, actions, claims and demands up to the date and execution of these presents, excepting an indebtedness now owed by said Arkansas Valley Feed Mills, Inc. to said Fox De Luxe Foods, Inc., by reason of adjustments of the paying prices specified in said agreement of December 14, 1953, in an amount to be ascertained and adjusted by the parties hereto. It is understood, however, that this cancellation shall be in full force and effect from the date hereof regardless of said adjustment.
"Witness our hands and seals the 2nd day of August, 1954.
"Fox De Luxe Foods, Inc.
"By /s/ R. N. Gergin V. Pres.
"Arkansas Valley Feed Mills, Inc.
"By /s/ Harold Snyder (Pres.)"
No other agreements, written or oral, were entered into between the parties during Snyder's visit to Chicago, and no conditions were imposed precedent to the operation of the cancellation agreement.
4.
Prior to 1946 Harold Snyder, who is now president and general manager of the plaintiff, had had no business experience, and up until the time of the organization of the plaintiff corporation had taught school. In 1946, however, Snyder, along with W. H. McClure and F. S. Meek, organized Arkansas Valley Feed Mills, Inc. At that time Snyder owned apparently 50 percent of the original stock although shortly thereafter additional stock was issued. Snyder was *152 made Secretary-Treasurer of the corporation. In 1948 the Mills began operating in the poultry and feed business.
In the intervening years, between Snyder's first venture into business in 1946 and the present time, he acquired interests in numerous other business enterprises. At least as early as 1950 or 1951 he was president of Dardanelle Industrial Foundation, and was still president of that organization at the time of trial. He is the largest stockholder in the Valley Poultry Company, a corporation which appears to be wholly unrelated to the plaintiff in this suit. That company is engaged in the processing of poultry, and can process birds at the rate of 125,000 for each 8-hour shift. Snyder also presently owns 40 percent of another concern, The Arkansas Valley Hatchery, and an interest in Arkansas Egg Company. He is now in the process of organizing a bank.
In 1952 Mr. Meek, who had been president of the plaintiff Mills, died, and Snyder became president. Mr. W. H. McClure at that time became Chairman of the Board of Directors, and Mr. S. D. Mitchell became secretary of the corporation and was also given the title general manager. During this period from 1952 to 1953, both Mitchell and Snyder devoted full time to the operation of the business of the Mills. However, although Mitchell was termed "general manager," he regarded Snyder as "his immediate superior" and the operations of the business were primarily directed by Snyder. No other stockholder engaged directly in the management of the business or devoted any significant time to its operation except that a secretarial and bookkeeping employee, Gretchen Goodier, was a nominal stockholder with a very small portion of the stock.
At no time during this period or afterward did the Board of Directors of the corporation meet regularly. Although the stockholders and employees of the plaintiff Mills testified that minutes of meetings of stockholders and the Board of Directors were regularly and meticulously kept by Mr. S. D. Mitchell as secretary, only several copies of such minutes and resolutions could be found. All of the papers reflecting corporate affairs from the incorporation in 1946 until the date of the trial in January 1959 comprise less than 25 documents, most of which are items of little or no significance, such as financial statements and insurance schedules of the corporation. None of the several minutes or resolutions reflect any limitation upon the authority of the president and general manager. The charter and bylaws of the corporation which were also introduced in evidence likewise impose no limitation upon that authority.
No verbal limitation upon the authority of Harold Snyder as president and general manager was imposed upon him by the Board of Directors of the corporation or by any stockholder except that upon one occasion the Board of Directors suggested to Snyder that he had allowed too many accounts receivable to accumulate. Even this suggestion, however, does not appear to be an explicit direction to Snyder as to any business policy.
Apparently because the Board of Directors of the corporation had confidence in Snyder's business ability, he was allowed a free hand in operating the corporation. He executed contracts and did all the major work of the corporation. He executed corporate warranty deeds, mortgages, and leases in the ordinary course of business without either the prior or subsequent approval of the Board of Directors. Although some resolutions apparently were passed by the Board to authorize the corporation to borrow substantial sums of money, those resolutions do not show on their face that they were made by the Board of Directors, and were signed only by Harold Snyder. It was customary for the Board to approve whatever action Snyder had taken since the preceding meeting, and never at any time was Snyder advised of any limitation upon him in the operation of the business.
5.
In 1951 Snyder, in the capacity of president of the Dardanelle Industrial Foundation, became acquainted with various *153 officers and employees of the defendant Fox, and Fox agreed to and did construct a large poultry processing plant at Dardanelle. Beginning in 1952 the plaintiff Mills, through Snyder, negotiated and entered into several written contracts with Fox for the sale of chickens. The procedure followed in these arrangements involved negotiations by Snyder with representatives of Fox, and when an understanding had been reached, Snyder and Fox representatives would draw up memorandum agreements, which Snyder referred to as "layman's contracts." These memorandum agreements would be signed and Snyder would then apprise the Board of Directors of the Mills of the negotiation and the resulting contract. The memorandum agreements would be shown to the attorneys for the Mills who might suggest changes, and a more formal contract would then be prepared and signed by representatives of the parties. At no time did the plaintiff's Board of Directors advise Snyder that he was exceeding his authority in negotiating the contracts or in executing the memorandum agreements which embodied all of the essential terms which were later formalized. As set out above, the marketing contract sued upon here by the plaintiff was negotiated and prepared in the same manner. It was the third such contract between the parties, all of which had been negotiated and executed by Snyder.
6.
In January of 1954, during which time the marketing contract was in operation, the plaintiff Mills had expanded its business to produce feed for General Mills. It was decided at that time to create a separate corporation to handle the retail feed business which had previously been handled by the Mills with the end in mind that the Mills would manufacture the feed and sell it wholesale to various feed dealers. Prior to that time the plaintiff Mills had contracts with various growers of chickens, the purport of which apparently was a minimum guarantee for sales of chickens which were fed with the products of the Mills. It was contemplated that these and other obligations would be fulfilled by the new corporation which was duly formed under the name of the Valley Feed Company, Inc. (hereinafter referred to as the Feed Company). The Feed Company offices were set up and maintained in the same building and adjacent to those of the plaintiff, and upon its formation in January of 1954 Mr. S. D. Mitchell left the Mills and became manager of the Feed Company. At the same time, Miss Gretchen Goodier, an employee of the Mills, also went to work at the Feed Company. Although her employment was solely with the Feed Company, she continued to do a substantial amount of work for the Mills.
On April 20 and 21, 1954, the plaintiff Mills and the Feed Company entered into various contracts under which the Feed Company undertook to carry out various obligations of the Mills, including one in which the Feed Company obligated itself to carry out the marketing contract with the defendant Fox, and also any agreements the Mills had with the local growers.[3]
The marketing contract was thereafter wholly carried out through the Feed Company rather than through the plaintiff Mills. The Feed Company is not a *154 party to this suit. The contract between the Feed Company and the Mills whereby the Feed Company was to carry out the Fox Marketing contract was not signed by Fox, and apparently Fox treated the Feed Company as the agent of the Mills since it was notified to handle its business through the Feed Company rather than the Mills, and all accounts and payments were made by and to the Feed Company rather than the plaintiff.
The original incorporators of the Feed Company were Harold Snyder, Gretchen Goodier and S. D. Mitchell. Snyder's stock was thereafter transferred to his wife, but the minutes of the various stockholders' meetings of the Feed Company continued to reflect ownership in Harold Snyder of a large portion of the capital stock. Snyder also took an active part in the meetings of the Feed Company even though he was not at that time a stockholder. In addition, the Feed Company relied largely upon Snyder for advice in its operations, and the two companies operated in such a manner that they were virtually one business unit.
7.
After the formation of the Feed Company in January 1954, Snyder was designated general manager and continued as president of the plaintiff Mills. He carried on its business and negotiated its contracts. In this respect his duties and activities were not substantially different from the duties and activities he had carried on while S. D. Mitchell was the nominal manager of the Mills. In the spring of 1954 Snyder began acquiring substantial portions of the stock held by others in the plaintiff Mills. In purchasing such stock he paid substantially in excess of the original purchase price to the various stock owners. Some of the stock was purchased without immediate payment therefor, but the parties to the transactions considered Snyder to be the owner of the stock sold. By August 2, 1954, the date on which the cancellation agreement was executed by Snyder, he owned 710 shares of the 1,000 outstanding shares of capital stock in the plaintiff Mills. Subsequently he acquired additional shares.
The bylaws were never fully complied with, and at no time material herein were there seven Directors of the corporation as required by those bylaws. There is some confusion as to who may have been members of the Board of Directors on August 2. Answering an interrogatory, the plaintiff stated that the Board of Directors at such time was composed of Harold Snyder, Mrs. Lee Meek, Bob McClure, Charles Boyce, and Gretchen Goodier. However, Bob McClure testified that he was doubtful whether or not he was a member of the Board of Directors at that time, and the court finds that in any event he was not taking part in the management of the corporation or the activities of the Board on that date or thereafter. Donald Barger, a banker at Russellville, Arkansas, who eventually sold his stock to Snyder, was a member of the Board of Directors at that time and for at least one month thereafter.
There is no testimony revealing the activities of Mrs. Lee Meek on the Board. The other board members, Charles Boyce and Gretchen Goodier, were both employees of the plaintiff Mills. Boyce is a brother-in-law of Harold Snyder, and Gretchen Goodier is a minor stockholder employed in a secretarial capacity. The plaintiff's answer to the defendant's interrogatory showed Boyce as a member of the Board on August 2, 1954. Testimony revealed, however, that Boyce was not elected to that position until September 1954. The court finds under the answer to the defendant's interrogatory and the ore tenus testimony that the Board of Directors on August 2, 1954, was composed of Harold Snyder, Gretchen Goodier, Mrs. Lee Meek, and Donald Barger.
8.
As set out above, the dispute between the Mills and the defendant Fox was such that no resolution seemed feasible when Snyder went to Chicago to effect a compromise or a cancellation of the marketing contract. Prior to his trip *155 to Chicago, the Directors of the plaintiff Mills were informally advised of the proposed trip but no instructions or limitations upon Snyder's authority were imposed upon him by any of the Directors or stockholders. The Directors did not initiate the proposed trip to Chicago although they were aware that Snyder intended to engage in negotiations there, and they neither approved nor disapproved Snyder's action in making the trip.
After executing the cancellation agreement in Chicago, as outlined above, Snyder returned to Arkansas and advised the Board of Directors that the cancellation agreement had been signed, although he did not at that time exhibit a copy of the agreement. No action was taken by the Board of Directors at any time either approving or disapproving the cancellation.
The marketing contract had necessitated the use of "Weekly Adjustment Sheets" which were furnished by Fox to the Feed Company to indicate the adjustments over or under the "base price." After August 2, 1954, no Weekly Adjustment Sheets were furnished by Fox because the purchases by Fox were made on the open market and not under the contract. Neither the plaintiff Mills nor the Feed Company made any objection to this change of procedure, and for a short time after the execution of the cancellation agreement the plaintiff's business relations with Fox were satisfactory to the plaintiff. However, within a short time Fox again found the quality of the plaintiff's chickens to be unsatisfactory and refused to buy at top market prices. Instead Fox offered to buy and did buy according to the grade of chickens as determined by Fox. At this time Fox was not purchasing under the contract but on the open market, and the plaintiff had no obligation to sell. In other words, the dealings between the parties were simply such as they might agree upon for each flock of chickens.
The defendant sought to introduce testimony relating to market prices, the purpose of which was apparently to show that Snyder anticipated a rising market at the time of the cancellation agreement, but that, in fact, the market fell shortly thereafter so that the contract price would have been more profitable for the plaintiff than the sales on the open market. This testimony was excluded by the court, and although the defendant makes some argument predicated upon considerations of this kind, the court finds it unnecessary to make findings of fact thereon. The court does find, however, that the cancellation agreement was made in the ordinary course of the business of the plaintiff Mills, and was necessary and desirable to the operation thereof. Furthermore, it was executed by Harold Snyder, who was the only person representing the Mills with whom the defendant had previously dealt, and the cancellation was negotiated and executed in the same manner that previous contracts between the two companies had been handled.
The cancellation agreement provided for the adjustment of a debt owed by the plaintiff Mills to Fox. On October 1, 1954, Fox issued its check to the Feed Company in the sum of $2,545.90 in payment for certain purchases. All of its checks in payment for the purchases of chickens under the contract had been issued to the Feed Company rather than to the Mills since the Feed Company had taken over the retail business. The check issued by Fox represented the purchase price of certain flocks of chickens less the adjustment of $1,315.63 called for in the cancellation agreement. Accompanying this check was a voucher indicating the deduction and the reason therefor. The check was accepted and deposited by the Feed Company after a consultation with Snyder.
9.
From August 2, 1954, when the cancellation agreement was executed by Snyder until October 20, 1954, the plaintiff acquiesced in the action of defendant in treating the contract of December 14, 1953, as canceled. No action was taken by the plaintiff corporation or any *156 of its agents to enforce the original contract or to indicate any effort to rescind the cancellation agreement. On the latter date Snyder addressed the following letter to Mr. Earl Wise, manager of the defendant's plant at Dardanelle, Arkansas:
"Dear Mr. Wise:
"Please accept this as notice that we expect you to comply with all provisions of our agreement.
"If this is not done we regret very much to say that we will be forced to turn the whole matter over to our Attorney.
"Sincerely yours,
"Arkansas Valley Feed
Mills, Inc.
"Harold Snyder
"President"
(Plaintiff's Exhibit No. 7)
Although this letter was answered by a letter from the defendant's attorneys, dated October 27, 1954, in which Snyder was told that the defendant was relying upon the cancellation agreement of August 2, 1954, there was no further correspondence between the parties, and neither Snyder nor the Board of the plaintiff corporation in any way notified the defendant of their contention that the cancellation agreement was void, and no further action was taken to claim under the orginal contract until this suit was filed on December 31, 1957, more than three years after the defendant advised the plaintiff that it was relying upon the cancellation agreement.
Discussion
By the pleadings and briefs the parties have raised five questions which go to the issue of whether or not the cancellation agreement, executed by Harold Snyder on August 2, 1954, at any time became effective:
1. Did Harold Snyder as president and general manager of the plaintiff corporation have actual authority to execute the cancellation agreement?
2. Did Snyder have apparent authority to execute the agreement?
3. Did the corporation ratify the cancellation agreement?
4. If the cancellation agreement was otherwise effective, was there an oral condition precedent to be complied with before the cancellation agreement became effective?
5. Was the cancellation agreement an accord and satisfaction which were never consummated?
(1) As the court pointed out in disposing of the motion for summary judgment herein, D.C., 163 F.Supp. 759, the mere fact that one is an officer of a corporation does not in and of itself confer upon that person actual authority to operate the business of the corporation or to bind it in any particular. See, City Electric Street Ry. Co. v. First National Exchange Bank, 62 Ark. 33, 34 S.W. 89, 31 L.R.A. 535.
On the other hand, of course, a corporation is bound by the acts of its agents, if they act within the scope of their authority, whether or not those agents are officers of the corporation.
The testimony in this case makes it clear that Harold Snyder was throughout the existence of the plaintiff Mills the driving force in the successful operation of the corporate business. He acted both as president and general manager. Whether or not he was granted specific authority to execute the cancellation agreement is not material. Briefly stated, the rule followed by the Supreme Court of Arkansas is that even absent specific authority contracts made on behalf of a corporation are binding upon that corporation when (a) executed by a general manager, and (b) deal with matters in the ordinary conduct of the corporate business. In Browne-Brun Wholesale Grocery Co. v. Hinton, 1929, 179 Ark. 831, at pages 833-834, 18 S.W. 2d 369, at page 370, the court said:
"It is claimed that this instruction is inherently wrong because the president was not authorized to make contracts for the corporation unless given such power under the by-laws. We do not agree with appellant *157 in this contention. Browne was president and general manager of appellant. This gave him authority to execute contracts which were necessary to the conduct of the business of appellant. The release was a contract which was necessary to carry on the business, and Browne had the authority to execute it. Wales-Riggs Plantations v. Caston, 105 Ark. 641, 152 S.W. 282, C. L. Kraft Co. v. Grubbs, 116 Ark. 520, 174 S.W. 245, and Southern Bauxite Co. v. Brown-Pearson Cash Feed Store, 172 Ark. 117, 288 S.W. 377."
Thus, under the law of Arkansas, when a general manager acts in the ordinary or necessary course of business of the corporation, he acts with actual authority. It may be that this rule would not be conclusive if proof were made showing specific limitations upon his actual authority. Probably such proof would render the issue on his authority a question of fact. The rule seems to have been so regarded in Marquette Cement Mfg. Co. v. Campbell Construction Co., 6 Cir., 1950, 184 F.2d 352 (construing Arkansas law). Accepting the view that the Browne-Brun rule is in the nature of a rebuttable presumption rather than an absolute rule of law, it is nevertheless determinative here, because there is no proof that either the charter, bylaws or board of directors of the plaintiff corporation imposed any limitations upon the authority of the general manager. On the contrary, the evidence is convincing that the directors had the highest confidence in the abilities of Snyder to manage the corporation in every respect.
Aside from the rule announced in this decision, that a general manager has authority to do all acts necessary to the conduct of the corporate business, however, the evidence affirmatively shows that Snyder had actual authority to make contracts for the plaintiff.
Actual authority, of course, may exist because of express authority, either oral or written, delegated by the principal, in this case the corporation, or actual authority may derive from implication in the principal's words or deeds. See, Rest., Agency, Sec. 8d; cf. St. Louis, I. M. & S. R. v. Jones, 96 Ark. 558, 132 S.W. 636, 37 L.R.A.,N.S., 418. Implied authority in this sense is a species of actual authority; and unlike apparent authority does not rest upon any concepts of estoppel, but upon the fact that authority is actually granted even though by implication. Thus, implied authority, although it may rest upon similar facts, is distinguished from apparent authority in that it is authority actually granted by the principal.
The evidence makes it abundantly clear that Snyder had the actual authority to operate all phases of the corporate business. The only concrete limitation upon Snyder which the testimony reveals is that upon one occasion the corporate Board of Directors advised him that there were too many accounts receivable and that he should collect them as soon as possible. Even on this occasion the Directors, so far as the testimony reveals, did not impose any policy limiting the amount of credit to be extended. It seems probable from the testimony that from time to time the Directors reviewed the business of the corporation, but there is no evidence whatever to suggest that the Board of Directors set any policies of the business. On the contrary, the evidence is that the Directors never at any time disapproved any of Snyder's acts, and it appears that they acquiesced in every step that he took in the management of the business. It was Snyder's practice in making contracts with the defendant and apparently with others to make what he called "memorandum" agreements. From the copy in evidence of the memorandum agreement which preceded the final integrated marketing contract of December 14, 1953, on which the plaintiff sues here, it appears that these "memorandum" agreements were binding contracts although, in all probability, all of the details agreed upon were not included. Nevertheless they included all the necessary terms for the enforcement of the agreement. The Board of *158 Directors never at any time even suggested to Snyder that he desist in his practice of making such agreements without prior approval of the Board. It may be that the Board of Directors did not view these contracts as binding upon the corporation. But, as the defendant points out, even if the Directors misinterpreted the legal effect of these agreements, they permitted Snyder regularly to sign such agreements in the name of the corporation. Furthermore, the evidence reveals that Snyder executed a number of documents dealing with real property, including deeds, leases and mortgages, none of which have ever been repudiated by the Board of Directors. Neither has the Board at any time indicated to Snyder that he was acting outside his authority in executing such documents. It is apparently true, as Snyder testified, that these instruments did not concern any substantial amount of money. However, it is their character rather than their consequence which is the controlling factor, and the fact remains that Snyder assumed and the Directors never questioned his authority to execute various legal instruments of the corporation.
The court concludes that whether or not the mere position as president and general manager would confer actual authority as indicated in the Browne-Brun case, supra, the Board of Directors of the plaintiff corporation did confer authority by implication by relying on Snyder to do all acts necessary to the operation of the business and in acquiescing to all of his acts.
The plaintiff in its brief argues that Snyder's authority was limited by the bylaws and charter of the corporation. It is, of course, true that any limitation imposed by the charter or bylaws would be effective to limit Snyder's actual authority. Article VI, Section 2, of the bylaws of the plaintiff provides:
"The president shall preside at all Stockholders meetings, shall have general supervision of the affairs of the corporation, and over the other officers; shall sign all stock certificates, and shall perform all such other duties as are incident to his office."
Given the fullest effect possible, this section of the bylaws does not purport to limit the authority of a general manager nor does it purport even to limit definitively the authority of the president. On the contrary, this section of the bylaws specifies some of the affirmatives duties of the president, but even if regarded as limiting his authority to those duties, it further provides that "he shall perform all such other duties as are incident to his office." This section, therefore, merely raises the same question which is before the courtthat is, whether Snyder, acting as president and general manager, was authorized to execute the cancellation agreement.
The plaintiff also argues in its brief that inasmuch as the management of the corporation is vested in the Board of Directors, both by statute and the bylaws, the president of the corporation would have no authority to manage the business. It has always been true that the ultimate responsibility for the management of a corporation rests upon the Board of Directors, but it has never been assumed that the Directors must actively participate in the operation of the business or even in every decision of policy. If such were the rule, this plaintiff could never be held to its contracts since it appears that the Directors almost wholly abdicated all responsibility and depended upon Snyder to conduct the business. Under decisions of the Supreme Court of Arkansas, the Board of Directors, notwithstanding their ultimate responsibility for the management of the corporation, may delegate such authority as they may deem necessary to an officer or to a general manager who is not an officer. See, Browne-Brun Wholesale Gro. Co. v. Hinton, supra, and cases cited.
Finally, on the issue of actual authority the plaintiff argues that whatever authority Snyder might have had, he was certainly not authorized "to give away a claim of the value of $72,349.41." *159 As already indicated, however, it is the character of the acts done which determine whether or not they are within the authority granted and not the consequence of those acts in terms of loss or gain to the corporation. Even assuming, as the plaintiff does, that the value of the contract before the cancellation agreement was executed was in the amount stated, it may have resulted in a benefit to the plaintiff by giving it an opportunity to sell its chickens on the open market. Certainly the plaintiff and Snyder as its general manager so thought at the time. The fact remains, regardless of what benefit may or may not have accrued to the plaintiff under the contract sued upon, that the sale of chickens was an ordinary part of the business of the plaintiff, and contracts in respect thereto were treated by the Board of Directors as being within Snyder's actual authority. That being the case, the amount involved is not material, absent any indication that the Board imposed or implied a limitation upon the dollar value of contracts negotiated and executed by Snyder. Since the cancellation agreement was well within the area of the authority granted to Snyder, the amount involved cannot be determinative of this issue.
(2) Although the issue as to Snyder's authority is determined by the court's conclusion that he had actual authority to execute the cancellation agreement, many of the decisions of the Supreme Court of Arkansas, while recognizing the existence of actual authority, have rested upon the proposition that there was also apparent authority on the part of the corporation officer involved. For that reason the court is following that practice and considering whether the facts justify a holding that Snyder had apparent authority to execute the cancellation agreement.
It appears to be settled that regardless of any actual limitations imposed upon a corporate officer or agent, that if he had apparent authority to transact the business, the corporation will be bound by those transactions. In McMillan v. Marathon Oil Co., 1934, 188 Ark. 937, at page 940, 68 S.W.2d 473, at page 474, the court said:
"Springer, Sheets and Nix were all employees of appellee. They assumed to act for it in the premises and we think were acting within the apparent scope of their authority. Springer, being the general manager for sales in this statethe others acting under himhad the apparent authority of transacting any business for his principal that would further, or tend to further, the business of his principal of which he is the general manager. It is well known that oil companies market their products through filling stations or service stations, either owned by them in fee, or operated by them under a lease, or through dealers handling their brands of merchandise. Such being the case, Springer, no doubt, had the express authority to negotiate for leases on property for filling station purposes, and bind his principal by contracts of this nature. At least, he had the apparent authority so to do. Moreover, both Sheets and Springer were admitted agents, and we have many times held that one dealing with an admitted agent had the right to presume, in the absence of notice to the contrary, that he is a general agent, clothed with authority coextensive with its apparent scope. Hal H. Peel & Co. v. Hawkins, 175 Ark. 806, 300 S.W. 420, and cases there cited. Also it is true that Springer is the general agent, and we have many times further held that generally the principal is bound by all acts of a general agent which are within the apparent scope of his authority, whether they have been authorized or not. Oil City Iron Works v. Bradley, 171 Ark. 45, 283 S.W. 362; A. J. Chestnut Co. v. Hargrave, 177 Ark. 683, 7 S.W.2d 800."
The court is not unaware that the rule above quoted, to the effect that one dealing with an admitted agent could *160 presume him to be a general agent, apparently no longer obtains in Arkansas, at least in suits upon insurance policies. However, the general rule set forth that acts of a general manager which further or tend to further the business of the principal are binding upon the corporation has not been impaired by more recent decisions. In Southern Electrical Corp., Inc., v. Ashley-Chicot Elec. Co-Op. Inc., 1952, 220 Ark. 940, at pages 943-944, 251 S.W.2d 813, at page 815, 252 S.W.2d 411, the court:
"As we view the record there is no evidence to show that Pentecost was not acting `within the apparent scope of his authority' when he agreed, on behalf of appellee, to the change in price, but there is abundant evidence to show he was so acting. Without encumbering this opinion by detailing the evidence, it is deemed sufficient to point out: that Pentecost had been the manager for several years, clothed with full apparent authority to transact business of this same character for appellee; he had formerly made similar purchases from appellant; he wrote checks on his company and none was turned down; and his transactions were only supervised by the board of directors meeting for an hour or two each month, at which time they scarcely, if ever, made any objections or even checked over his records."
In Wales-Riggs Plantations v. Caston, 1912, 105 Ark. 641, at pages 645-646, 152 S.W. 282, at page 283, the court said:
"The acts of a president done in the management of the business and within the scope of his authority are held to be the acts of the corporation itself. 2 Thompson on Corporations, (2d Ed.), § 1465, page 515; Ib. § 1493. The same author, in section 1491, says: `Third persons and strangers dealing with the president of a corporation under ordinary circumstances, and especially where he has the management and control of the business, are protected. The law shields such persons in so many different ways as to make it comparatively, if not absolutely, safe to deal with the president of a corporation under such circumstances. In the first place, where a corporation qualifies the president with the power of the general management of the corporate affairs, or where it permits him to act as general manager for a length of time, it is estopped from denying in such instances that its president has the powers with which it has qualified him, or which it has customarily permitted him to exercise. Hence, in any conflict between such third persons and the corporation, it is sufficient to prove the president's authority in the usual way of proving the authority of other agents, either that he was especially appointed to conduct the business, or that the corporation held him out to the public as possessing the powers which he actually exercised.'"
This court in J. H. Phipps Lumber Co. v. Omaha Hardwood Lumber Co., D.C. W.D.Ark.1941, 40 F.Supp. 723, reversed on other grounds in 8 Cir., 135 F.2d 3, in construing the Arkansas law on this question, said at page 727 of 40 F.Supp.:
"The fact that Clark occupied the position of general manager was sufficient to bind the plaintiff on anything pertaining to the ordinary business of the corporation, but did not bind the corporation if the act done or the agreement entered into by him was without the apparent scope of the business actually carried on by the plaintiff and entrusted to his management."
See also, Co-Op Stores v. Marianna Hotel Co., 1917, 128 Ark. 196, 193 S.W. 529.
The rule followed by the Arkansas courts, therefore, is that when a general manager acts in the ordinary business of his corporation, his acts are at the very least within his apparent authority. These cases do not make it *161 clear whether or not such a conclusion could be rebutted by contrary evidence or even whether the other elements of apparent authority must be shown before the corporation is bound. Assuming, however, that an act of a general manager in the ordinary course of corporate business would not be irrebuttable proof of apparent authority, there is no proof to suggest that Snyder was not acting within the apparent scope of his authority. On the contrary, the evidence abundantly shows that the corporation held him out and permitted him to hold himself out as the general manager without limit on his authority to execute contracts. He had previously executed two so-called memorandum agreements with this defendant without prior approval of the Board, and although both memorandum agreements were subsequently reduced to formal written contracts, the Board of Directors at no time indicated to the defendant that it did not regard the memorandum agreements as binding, nor did it advise the defendant that Snyder had no authority to make final negotiations. In view of Snyder's negotiation and execution of these contracts, the defendant would certainly be justified in relying upon Snyder's authority to execute such contracts. Furthermore, Snyder was the only person with whom the defendant and its agent dealt in negotiating and executing the contracts, and the only person with whom the defendant dealt in the dispute which led to the cancellation agreement. Thus, even aside from the fact that Snyder was both president and general manager, and aside from the fact that he was acting in the ordinary course of business in making the cancellation agreement, there is no doubt that Snyder held himself out and was held out by the corporation as having authority to execute its contracts. There is evidence, as indicated previously, that Snyder executed other instruments as well, but since there is no showing that the defendant was aware of Snyder's execution of title instruments, the court does not consider the execution of these documents as bearing on the issue of apparent authority.
It is also clear that the defendant acted in reliance upon the authority or apparent authority of Snyder to execute the cancellation agreement. Not only did it immediately cease operations under the original contract, but it affirmatively advised the plaintiff that it was relying upon the cancellation agreement in its letter of October 27, 1954. In the case of the cancellation agreement the defendant did not, as it had previously, draw a more formal written agreement. These facts establish that the defendant was relying upon the agreement and the apparent authority of Snyder to execute that agreement. Therefore, even if the position as president and general manager of a corporation is not enough to give such officer apparent authority to execute contracts in the ordinary course of the corporate business as indicated by the above-cited cases, the ordinary elements of apparent authority exist in this case. See, Central Surety & Ins. Corp. v. O. & S. Wholesale Co., Inc., 193 Ark. 523, 101 S.W.2d 167. Thus, giving the decisions the most favorable interpretation possible to the plaintiff, the court must still conclude that Snyder had apparent authority to execute the cancellation agreement even if he had not had the actual authority to do so.
(3) Even aside from Snyder's actual and apparent authority to execute the cancellation agreement, the corporation ratified its execution.
The defendant, in arguing this point, asserts that the Feed Company, having taken over the performance of the marketing contract with the defendant, was in fact the agent of the plaintiff Mills corporation. From this the defendant argues that the Feed Company ratified the cancellation agreement by accepting the defendant's check of October 1, 1954, from which was deducted the indebtedness mentioned in the cancellation agreement. The plaintiff, on the other hand, asserts that the Feed Company was not its agent notwithstanding that the Feed Company admittedly performed the marketing *162 contract with the defendant, and notwithstanding the evidence that the Feed Company was very largely dominated in the performance of that contract by Snyder's operation of the Mills. If the Feed Company was not acting as agent for the plaintiff in the performance of the marketing contract with the defendant, then the only conclusion available is that it was acting wholly independently and as assignee of the marketing contract. If that is the case, then the real party in interest and the proper party plaintiff would be the Feed Company and not the Mills which is the only plaintiff in this suit.
Be that as it may, the acceptance of the check which was done only after securing Snyder's permission is an equivocal act, and was as consistent with non-ratification as it is with ratification of the cancellation agreement because, regardless of the cancellation agreement, the amount deducted from the check was a debt admittedly due to the defendant, Fox De Luxe Foods, Inc. It is true that the voucher accompanying the check was marked to indicate that the deduction was made under the cancellation agreement. That marking was ambiguous. While a fact question may be presented as to whether the cancellation agreement was ratified by the acceptance of the defendant's check of October 1, the court prefers to rest the issue of ratification on grounds which are more certain.
The evidence established that the plaintiff corporation acquiesced in the cancellation agreement, and under the facts and circumstances of the case that acquiescence must be taken as an intentional ratification. The plaintiff points out that ratification is the adoption and confirmation of an agent's unauthorized act, and that no ratification can be found, with possible exceptions not relevant here, unless the principal has full knowledge of the material facts surrounding the agent's unauthorized transaction. Grady v. Dierks Lbr. & Coal Co., 154 Ark. 255, 242 S.W. 548; Emco Mills v. Isbrandtsen Co., 8 Cir., 1954, 210 F.2d 319, and cases cited. Furthermore, the doctrine of ratification is not based upon the carelessness or negligence of the principal, and even though ordinary care might dictate that he inquire as to the material facts surrounding the unauthorized transaction, the transaction is not ratified without actual knowledge on the part of the principal. Runyan v. Community Fund, 182 Ark. 441, 31 S.W.2d 743.
Relying upon these rules, the plaintiff contends that it did not ratify the cancellation agreement executed by Snyder because it had no knowledge of the agreement until after the time when performance under the original marketing contract would have been completed. The facts do not support this argument. It is true that Snyder did not exhibit a copy of the cancellation agreement, and that agreement was not seen by the Board of Directors until after the expiration date of the marketing contract with the defendant. However, it seems equally certain that the Board of Directors was aware that a cancellation of the marketing contract had been made. Donald Barger was a member of the Board for at least some time after the cancellation agreement was entered into, and attended at least one meeting of the Board of Directors after that time. He was informed of the cancellation agreement. Snyder himself, of course, was also a member of the Board of Directors. Charles Boyce, who was made a member of the Board in September 1954, is a brother-in-law to Harold Snyder, but did not recall what business was discussed at the meeting of the Directors in September 1954; yet he had been a full-time employee of the Mills since 1953 and worked together with Snyder. Gretchen Goodier, a secretarial and bookkeeping employee of the Mills, who also owned a small portion of the stock, was a member of the Board, and while she testified that she did not remember when she first knew of the cancellation agreement, she was apprised of the general terms of the cancellation within a very short time because the bookkeeping system was necessarily changed following the cancellation. *163 Prior to the cancellation it had been necessary while the defendant was buying chickens under the contract to make accountings on "Weekly Adjustment Sheets." When the marketing contract was terminated by the cancellation agreement, the birds were bought on the market and the adjustments in price called for in the marketing contract became unnecessary. After August 2, 1954, no Weekly Adjustment Sheets were made or used in figuring the prices on the sales and purchases between the plaintiff and defendant. The only conclusion the court can reach is that the Directors of the plaintiff corporation had a substantial understanding of the material facts involved in the cancellation of the Fox contract unless the court concludes that Snyder was deliberately and fraudulently withholding from his Directors this information. As indicated in finding number 8, the court has found that the Directors were advised of the cancellation.
In addition to the acquiescence of the corporation between August 2 and October 20, 1954, no notice was ever furnished the defendant or any of its agents after that time that Snyder had no authority to execute the contracts of the corporation. This is true in spite of the fact that the defendant specifically advised the plaintiff by its letter of October 27, 1954, that it was relying upon the cancellation agreement.
The plaintiff then asserts that any ratification here would be implied rather than express ratification, and that before such ratification could be found, it would be necessary for the defendant to show the acceptance of the benefit under the cancellation agreement which benefit accrued to the plaintiff.
This contention cannot be sustained under the law of Arkansas. In St. Louis-San Francisco Railway Co. v. Lee Wilson & Co., 1947, 212 Ark. 474, at page 481, 206 S.W.2d 175, at page 178, the court said:
"The testimony shows that defendant ratified the unauthorized acts of Regenold in signing bills of lading for shipment of alfalfa meal. It is well settled that when a principal has knowledge of the unauthorized acts of his agent and remains silent when he should speak, or accepts the benefits of such acts, he cannot thereafter be heard to deny the agency, but will be held to have ratified said agent's unauthorized acts. Coffin v. Planters' Cotton Company, 124 Ark. 360, 187 S.W. 309, and cases there cited; Kirkpatrick Finance Co. v. Stotts, 185 Ark. 1089, 51 S.W.2d 512; Restatement of the Law of Agency, Vol. 1, Sec. 94."
Under the rule announced in the above decision, a ratification may be implied where the principal either remains silent when he should speak, or accepts the benefits of his agent's unauthorized acts. In Emco Mills v. Isbrandtsen Co., supra, the defendant had orally agreed with a broker to sell 10,000 bushels of soybeans to the plaintiff. When the broker completed the confirmation slip, he erroneously showed the sale to be 50,000 rather than 10,000 bushels. The defendant noted the error but regarded the confirmation as merely a memorandum rather than a final contract, and did not at that time call the error to the attention of either the broker or the buyer. When he failed to fulfill the contract for 50,000 bushels, the plaintiff buyer was required to buy it at a higher price on the open market. It was the plaintiff's contention that the defendant ratified any error which might have existed by failing to advise either the broker or the plaintiff that the confirmation was erroneous. Speaking of the defendant, the Court of Appeals said at page 325 of 210 F.2d:
"No inference may be drawn from his testimony that he did not know of the terms of the commitment. He says that he received it and treated it as a memorandum needing no acknowledgment. Under the law it needed no acknowledgment only in the event it was correct. Lack of knowledge of the legal effect of defendant's nonaction will not avoid *164 ratification. Defendant owed the legal duty under the circumstances to correct its agent's commitment within a reasonable time or be bound by it. We cannot relieve it of that duty. In the absence of an applicable established practice or custom, or an agreement between the parties fixing the time within which notice should be given of an improper act of an agent, the timeliness of such action will be determined by the facts and circumstances in each case. It may well be that under some circumstances the question will be one for a jury. But under the undisputed facts of this case, notice was not given within a reasonable time and if the jury had found to the contrary it would have been the duty of the court to set such finding aside. The legal effect of defendant's nonaction was ratification, insofar as plaintiff's rights were concerned."
It is difficult to imagine a situation which would more clearly impose upon the principal a duty to speak than the instant case. The plaintiff corporation had dealt with the defendant solely through Snyder on several previous occasions, and Snyder had executed what on its face appeared to be a valid contract of cancellation. As soon as that contract of cancellation had been executed, the defendant proceeded to act accordingly by purchasing chickens at the market rather than at the contract price. There was no reason for the defendant to have the slightest suspicion that the plaintiff corporation would repudiate Snyder's agreement even after Snyder wrote his letter of October 20 to the defendant's Dardanelle manager in which he advised that he expected the defendant to comply with "the" contract. The defendant had no reason to regard this letter signed only by Snyder as being within any more authority than the cancellation agreement signed by Snyder. In other words, this letter was not notice from the corporation itself or its Board of Directors, or if it was, it carried no more weight than the execution of a contract by Snyder. The defendant's attorneys immediately thereafter called Snyder's attention to the cancellation agreement of October 27, 1954. The fact that the plaintiff corporation remained silent for over three years under the circumstances of this case is significant. The plaintiff corporation and its Directors must have understood prior to the defendant's letter of October 27 that the defendant was acting and relying upon the cancellation agreement. Certainly after they were so notified by the letter of October 27 from the defendant's attorneys, they could not in good conscience permit the defendant to rely any further upon the cancellation agreement if it was in fact executed without authority. Under those circumstances it must be concluded that it was incumbent upon the plaintiff to speak its contentions, and having failed to speak, they ratified the cancellation agreement even if it had been executed without authority.
(4) The plaintiff contends that in the event the court finds that Snyder had authority to bind the Mills by the cancellation agreement, that the agreement was nevertheless ineffective. This contention is based upon the theory that there was an oral condition precedent imposed upon the written cancellation agreement and that this condition, having never been performed, prevented the cancellation agreement from taking effect. To support this theory the plaintiff relies upon Southern Wooden Box, Inc., v. Ozark Hardwood Mfg. Co., 1956, 226 Ark. 899, at page 902, 294 S.W.2d 761, at page 763, where the court said:
"Even in the case of a written contract duly executed by both parties, this court has repeatedly held that parol evidence is admissible to prove that it was not to be a complete and binding agreement until certain conditions precedent have been fulfilled. Barr Cash & [Package Carrier] Co. v. Brooks-Ozan Mer. Co., 82 Ark. 219, 101 S.W. 408; American Sales Book Co. v. Whitaker, 100 Ark. 360, 366, 140 S.W. 132, *165 37 L.R.A.,N.S., 91; Worthen v. Stewart, 116 Ark. 294, 172 S.W. 855; Reynolds v. Ashabranner, 212 Ark. 718, 207 S.W.2d 304, 307. In the Reynolds case we said: `The situation here is not that of a waiver of a condition precedent stated in the written contract; rather, it is the waiving of a condition precedent to the coming into existence of the contract. See 17 C.J.S. Contracts § 338, p. 792, on "Conditions Precedent." In 13 C.J. 791, in discussing the waiver of a condition precedent in actions concerning contracts, the general rule is stated: "The question as to whether a condition precedent has been performed is purely one of fact to be determined by the jury under the evidence. And the same has been held to be true of the question as to whether the performance of such condition has been waived, but the jury should be properly instructed as to the law." See also 17 C.J.S. Contracts, § 630 [p. 1297].'"
Under the authority of this case, the court allowed Snyder to testify as to an alleged parol condition precedent. The testimony reflected that this alleged condition precedent was made prior to the time the cancellation agreement was reduced to writing and executed. The testimony was admitted conditionally because unless it shows that a condition precedent was made, the testimony would be inadmissible under the parol evidence rule.
Snyder testified in essence that in the negotiations in Chicago, which resulted in the cancellation agreement, that he insisted that if the cancellation was to be made, that the defendant would stop "buying on grade," meaning apparently that the defendant would not pay a reduced price for chickens which did not meet the top standards. There is conflicting testimony to the effect that no such agreement was made. It is apparent that if the contract was to be cancelled, no contract would exist between the parties, and the defendant accordingly would be free to purchase chickens at whatever price it might negotiate or to purchase no chickens whatever. By the same token, the plaintiff would be entitled to offer chickens for sale at whatever price it might negotiate with defendant or refuse to sell to the defendant altogether. The alleged condition precedent that the defendant would stop grading the chickens seems hopelessly at odds with the expressed intention of the cancellation agreement. If such a condition precedent were imposed, the net effect would be that the defendant would be obliged to purchase chickens from the plaintiff sight unseen or not to purchase them at all. The alleged condition precedent is so inconsistent not only with ordinary business practices but with the terms of the cancellation agreement itself, that it cannot be accepted and harmonized with the cancellation agreement. The effect of the alleged condition precedent would be to nullify the cancellation agreement which was subsequently executed.
But aside from ordinary business practices and considerations of this kind, the court has found in Finding of Fact No. 3 that no agreements of any kind were made during Snyder's visit to Chicago, except those which are reflected in the cancellation agreement. Since there was no condition precedent to the operation of the cancellation agreement, it was effective to bar any claim under the orginal marketing contract.
(5) Finally, the plaintiff argues that the cancellation agreement was an accord, but that there was no satisfaction. It concludes, therefore, that no satisfaction having been made of the accord, it was free to sue upon the original marketing contract. The plaintiff's argument, briefly stated, is as follows:
Snyder, prior to the execution of the written cancellation agreement, made an alleged oral agreement with defendant that if the cancellation agreement was signed, defendant would stop "buying on grade." This oral agreement was the "real consideration" for the cancellation and that being so, it is admissible in evidence, *166 since the real consideration for a contract may always be shown. From this position it is then deducible that the cancellation agreement was merely an "accord" and that the "satisfaction" thereof would be performance of the alleged oral agreement to "stop buying on grade."
It is familiar law that an accord without a satisfaction does not bar suit upon the original obligation. See Lyle v. Federal Union Insurance Co., 1944, 206 Ark. 1123, 178 S.W.2d 651 and cases cited; De Maio, "Recent Developments in the Law of Contracts," 3 Ark.L. Rev. 81 at 86-90.
Although ordinarily the issue of accord must be pleaded, the parties argue the merits of this issue.
An accord is simply an agreement between the parties which is substituted for a prior agreement and whereby one party agrees to accept the performance called for by the accord in lieu of that called for by the original agreement. The court in Arkansas Farmers Ass'n, Inc., v. Yohe, 1957, 227 Ark. 670, 300 S.W.2d 589, and Jewell v. General Air Conditioning Corp., 1956, 226 Ark. 304, 289 S.W.2d 881, quoted with approval the more extended definition in 1 C.J.S. Accord and Satisfaction § 1:
"An `accord' is an agreement whereby one of the parties undertakes to give or perform, and the other to accept, in satisfaction of a claim, liquidated or in dispute, and arising either from contract or from tort, something other than or different from what he is, or considers himself, entitled to; and a `satisfaction' is the execution or performance, of such an agreement."
Passing for a moment the factual questions inherent in the plaintiff's argument and going to the issue earnestly argued by the parties, does Snyder's version of the transaction constitute, if true, an accord? If so, there is admittedly no satisfaction, and the plaintiff would in that event be free to sue upon the original marketing contract.
While the plaintiff insists that the cancellation was merely an accord which could not have been satisfied until the alleged oral agreement was performed, the defendant is equally insistent that the agreement constitutes a "compromise." A compromise, the defendant argues, is a new contract and performance is not necessary to its validity. See, 11 Am.Jur., "Compromise and Settlement," Sec. 2.
Just as the character of pleadings is not determined by the name appended by the parties, the nature of a transaction is not determined by the terms the parties apply to it, and the court concludes that neither "accord" nor "compromise" is fairly descriptive. A similar problem was raised in Jewell v. General Air Conditioning Corp., supra. In that case the plaintiff brought suit to restate an alleged account stated, alleging mutual mistake or fraud. The defendant contended that the transaction involved was not an account stated but an accord and satisfaction. Finding that there was no dispute over the amounts owed by the parties, the court held that there could be no accord and satisfaction, notwithstanding the defendant's characterization of the transaction as such.
Here, the court concludes that there was neither compromise nor accord, but merely a discharge or rescission of the original marketing contract by mutual agreement. As stated in 2 Rest., Contracts, Sec. 406:
"Except in the case of contracts for the benefit of third persons an agreement by the parties to a contract to rescind their contractual duties, or duties to make compensation, discharges such duties if the agreement is under seal, or is based on sufficient consideration * * *."
There is nothing in evidence to suggest that either of the parties intended to execute *167 either a "compromise" in which a dispute was settled by a new agreement or an accord in which a dispute was to be settled by a new and different performance. While an accord may be by written contract, it is usually oral, whereas here the cancellation agreement was a written and integrated instrument. Ordinarily, the issue of accord arises where there is a debt or performance due from one side to the other. Usually there is little dispute that such performance is owed in some amount or to some extent, and the dispute exists as to what amount or extent performance is owed. Although here there was certainly some dispute, it related to the way in which the contract was being performed, i.e., by grading plaintiff's chickens. There was no dispute as to amounts involved except insofar as it related to the grading of the chickens, it being the plaintiff's contention that the grading was unauthorized or at least that it was unfairly pursued. In this situation, the only accord conceivable is that some other performance of the contract be accepted. Yet the cancellation agreement does not call for other and less performance, even if the alleged oral agreement is considered a part of that agreement. It calls instead for no performance at all, by either party. For the same reason it cannot be fairly called a compromise. One party did not give more than the other or accept less performance than called for. Both parties simply agreed that the original contract was to be considered discharged. This is nothing more nor less than a mutual agreement to rescind.
Even if the transactions concerning the cancellation agreement could be treated as an accord, it is clear that the accord itself, that is, the promise of new and different performance, can be the satisfaction. Once the transaction between the parties is treated as an accord rather than a compromise or a rescission, there must be "clear evidence" that the accord was intended as the satisfaction to rebut the presumption that actual performance is the only satisfaction. In Arkansas Farmers Ass'n, Inc., v. Yohe, supra, at page 674 of 227 Ark., at page 592 of 300 S.W.2d, the court said:
"Williston On Contracts, Revised Edition, Vol. 6, § 1847, has this pertinent statement relative to accord and satisfaction:
"`It is often extremely difficult to determine as a matter of fact whether the parties agreed that the new promise should be itself the satisfaction of the original cause of action, or whether they contemplated the performance of the accord as the satisfaction. Unless there is clear evidence that the former was intended, the latter kind of agreement must be presumed * * *.'"
See also, Lyle v. Federal Union Insurance Co., supra; Whipple v. Baker, 1908, 85 Ark. 439, 108 S.W. 830; Annotation 10 A.L.R., at 236 ff and cases cited.
Even treated as an accord, therefore, the alleged promise may itself be the "satisfaction" required. The convincing evidence that the promise itself should be treated as satisfaction is found in the cancellation agreement. That agreement recognizes a debt due from the plaintiff to the defendant and calls for payment of that debt, but the agreement also specifically provides that notwithstanding that debt the agreement to cancel was immediately effective. In other words, the failure of the plaintiff to perform by paying the debt was not to render the cancellation ineffective. Yet the plaintiff contends, as to the alleged oral agreement not included in the written cancellation, that failure to perform would render the cancellation ineffective. The court cannot accept this argument. If such an oral agreement had been made, and if the cancellation transaction could be treated as an accord rather than as simply a rescission, nevertheless the parties did not at any time contemplate that performance of the alleged oral agreement was necessary to *168 effectuate the cancellation. In other words, the alleged promise on the part of the defendant, if it existed, would have been itself the "satisfaction."
But there is an additional reason why the court cannot find an accord. The court has found as a fact that no such promise was made on the part of the defendant or its representatives. There was, no doubt, discussion about the defendant's grading of the plaintiff's chickens. That was the issue between the plaintiff and defendant and the purpose of Snyder's visit to Chicago. But the alleged promise to stop grading is so inconsistent with the subsequent written cancellation agreement that the court must accept the testimony of the defendant's representatives and former representatives that no such oral promise was made.
Under the facts the court has concluded that Snyder had actual and apparent authority to execute the cancellation agreement, and that, in any event, it was ratified by the plaintiff corporation. The evidence also convinces the court that no oral agreement was made between Snyder and the defendant's representatives other than as set forth in the cancellation agreement. Since, as a matter of law, the testimony as to an oral agreement was not sufficient to show an accord or a condition precedent, the testimony provisionally admitted on this issue was not admissible under the parol evidence rule.
The cancellation agreement barred any and all of the plaintiff's claims.
Since plaintiff is not entitled to recover from the defendant, the third-party complaint of defendant against Harold Snyder should be dismissed.
Conclusions of Law
1.
The court has jurisdiction of the parties and of the subject matter of this action.
2.
Harold Snyder as president and general manager of the plaintiff corporation was invested with actual authority to execute the cancellation agreement of August 2, 1954, on behalf of the plaintiff, and acted within the scope of his authority in executing that agreement.
3.
Even if no actual authority had been vested in Harold Snyder, he had apparent authority to execute the cancellation and the defendant relied upon such apparent authority.
4.
The plaintiff corporation was obligated to advise the defendant within a reasonable time of learning that the cancellation had been executed that Snyder was without authority, if that were the case. Having remained silent under such conditions, the plaintiff corporation's conduct amounted to ratification of the cancellation, even if Snyder had not had authority to execute the same.
5.
The cancellation agreement did not constitute an accord which was unsatisfied, and the plaintiff did not, therefore, have any right to recover upon the original agreement. There was no condition precedent to the operation of the cancellation agreement.
6.
The cancellation agreement was therefore valid and effective and barred all claims which the plaintiff might at any time have had against the defendant.
7.
The complaint of the plaintiff against the defendant and the third-party complaint of defendant against the third-party defendant, Harold Snyder, should be dismissed, and the defendant, Fox De Luxe Foods, Inc., should have and recover of and from plaintiff its costs, and a judgment in accordance therewith is being entered today.
NOTES
[1] 8, 1953
"Chicken Growing deal between Fox DeLuxe Foods, Inc. and Arkansas Valley Feed Mills, Inc.
"Time: January 4, 1954 for 52 weeks.
"General provisions of contract of June 27, 1952 to apply except:
"1. Size of chickens to be 2.75 lbs. to 3.00 lbs.
"2. Base price on live chickens 25½¢ to 27½¢ follow the market within this range
"(a) Below 25½¢ Payment to be N.W.Ark. market plus 50% of difference.
"(b) Above 27½¢ Payment to be N.W.Ark. market minus 50% of difference.
"3. Base adjustment
"Live paying price to vary 30¢ cwt. for every 10¢ (weighted average corn 2/3 soybean meal 1/3 ). Price of nearest option to apply. Use weekly average.
"Price to apply against following weeks purchases of chickens.
"Base price of corn and soybean meal to be nearest option, average price w. e. October 9, 1953.
"4. Number of Head 50,000 per week.
"5. Penalty to be 1¢ per lb.
"/s/ H. M. (?)
"/s/ Robert J. Fox"
(Plaintiff's Exhibit No. 3)
[2] Agreement made this 14th day of December 1953, by and between Fox De Luxe Foods, Inc., of Chicago, Illinois, hereinafter known as the `Buyer', and Arkansas Valley Feed Mills, Inc., of Dardanelle, Arkansas, hereinafter known as the `Seller', for and in consideration of the mutual agreements and covenants herein contained:
"1. The Buyer agrees to buy from the Seller, and the Seller agrees to sell to the Buyer, fifty thousand (50,000) head of chickens each week, commencing January 4, 1954, for a period of fifty-two (52) consecutive weeks thereafter.
"2. These chickens shall have an average weight of from 2.75 to 3.00 pounds per head, and shall be well fleshed, well feathered, healthy and No. 1, as based on current average quality.
"3. The base price of said chickens shall be the Northwest Arkansas Mostly market price between the low of 25½¢ per pound and the high of 27½¢ per pound f.o.b. the farm. This base price shall be adjusted as follows:
"For every 10¢ per cwt variation up or down, in the weighted average of corn and soy bean meal from October 9, 1953 nearest option quotation of the Chicago Board of Trade (using 2/3 for corn and 1/3 for soy bean meal) the said base price shall be adjusted 30¢ per cwt up or down in like manner.
"The actual prices to be paid under the terms of this agreement as distinguished from the base price and the adjusted base price as above set out, shall be the adjusted base price if it is not lower than 25½¢ per pound nor higher than 27½¢ per pound. If, however, the adjusted base price is less than 25½¢ per pound or more than 27½¢ per pound, then the actual paying price shall be the adjusted base price plus or minus 50% of the difference between the Northwest Arkansas Mostly market and the adjusted base price.
"4. In the event that the Buyer fails to buy from the Seller, or the Seller fails to sell and have available for the Buyer said 50,000 head of chickens weekly, the one so failing shall pay to the other weekly, fifty per cent (50%) of the difference between the adjusted contract price and the weekly average price of the Mostly Market of live chickens as reported by the Federal State Market News Service, Fayetteville, Arkansas, for the Northwest Arkansas Area, plus 1¢ per pound on the difference in weight at the rate of 2.85 pounds per chicken on the number of chickens less than the required 50,000 purchased by the Buyer or furnished by the Seller. In the event that the Mostly price is not quoted, then an average is to be determined from the daily spread for the week in question. In figuring the total amount due under the terms of this paragraph, all chickens shall be conclusively presumed to weigh 2.85 pounds per head.
"5. It is further understood and agreed by and between the parties hereto that the Buyer shall have the right to pickup up to twenty per cent (20%) of the required fifty-thousand (50,000) head of chickens in either the week ahead or the week following any given week without penalty.
"Witness our hands and seals this 14th day of December, 1953.
"Fox De Luxe Foods, Inc.,
"by: /s/ M. E. Fox Pres.
"Attest:
Secretary
"Arkansas Valley Feed Mills,
Inc.,
"by: /s/ Harold Snyder (Pres.)
"Attest:
"/s/ S. D. Mitchell
"Secretary "
(Plaintiff's Exhibit No. 4)
[3] That contract in its entirety reads as follows:
"Dardanelle, Arkansas
"April 21, 1954
"Agreement
"This agreement is between the Arkansas Valley Feed Mill, Inc., and the Valley Feed Company, for carrying out terms of the Fox DeLuxe marketing contract.
"For the consideration of $1.00, the payment of which is hereby acknowleged, and other valuable considerations, the Valley Feed Company assumes responsibility for that part of the Fox DeLuxe contract with their local growers.
"Signed,
"/s/ Harold Snyder
"Arkansas Valley Feed Mills,
Inc.
"/s/ S. D. Mitchell
"Valley Feed Company" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561632/ | 66 S.W.3d 351 (2001)
Carolyn ALLEN, Appellant,
v.
INTERCAPITAL LODGE LIMITED PARTNERSHIP, Appellee.
No. 14-00-00211-CV.
Court of Appeals of Texas, Houston (14th Dist.).
July 26, 2001.
Rehearing Overruled February 14, 2002.
*352 Sidney Farr, Houston, for appellant.
Nathan M. Rymer, Marvin C. Moos, David P. O'Neal, Houston, for appellee.
Panel consists of Justices EDELMAN, FROST, and MURPHY.[*]
OPINION
EDELMAN, Justice.
Carolyn Allen appeals a summary judgment entered in favor of Intercapital Lodge Limited Partnership ("Intercapital") on the ground that the evidence *353 raised fact issues as to whether the statute of limitations was tolled. We reverse and remand.
Background
On October 27, 1997, Allen filed suit (the "first lawsuit") in a Harris County Civil Court at Law (the "county court") against Intercapital for conversion and negligence. On November 10, a return of citation was filed by Deputy Constable Chip Littler stating that service had been effected on Intercapital on November 6. A written order dismissing the case for want of subject matter jurisdiction was signed on March 10, 1998.[1]
On May 4, 1998, Allen filed the current suit (the "second lawsuit") against Intercapital in Harris County District Court (the "district court") alleging conversion and negligence. Intercapital filed a motion for summary judgment alleging that Allen's causes of action were barred by the statute of limitations, and the trial court granted the motion.
Standard of Review
A summary judgment may be granted if the motion and summary judgment evidence show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or response. TEX.R. CIV. P. 166a(c). When summary judgment is sought on the basis that limitations have expired, it is the movant's burden to conclusively establish the bar of limitations. Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex.1996). If the nonmovant asserts that a tolling provision applies, the movant must conclusively negate the tolling provision's application to show his entitlement to summary judgment. Id. In reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and indulge all reasonable inferences in the nonmovant's favor. KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999).
Statute of Limitations
Section 16.064 of the Texas Civil Practices and Remedies Code states, in part:
The period between the date of filing an action in a trial court and the date of a second filing of the same action in a different court suspends the running of the applicable statute of limitations for the period if: (1) because of lack of jurisdiction in the trial court where the action was first filed, the action is dismissed...; and (2) not later than the 60th day after the date the dismissal ... becomes final, the action is commenced in a court of proper jurisdiction.
TEX. CIV. PRAC. & REM.CODE ANN. § 16.064 (Vernon 1997).
It is undisputed in this case that the first and second lawsuits are the "same action" for purposes of section 16.064, that the first lawsuit was dismissed for lack of jurisdiction, and that the second lawsuit was filed within sixty days of the date that dismissal became final. However, Intercapital argues that section 16.064 does not apply to toll limitations because citation was never served in the first suit on anyone who was authorized to receive service of process on behalf of the partnership.
Allen's third issue[2] contends that the mere filing of the first lawsuit, even *354 without effecting service, satisfied section 16.064 because its language refers only to filing the first action in a trial court, i.e., not to bringing or commencing it, which would also include serving citation. However, the mere filing of a suit will not interrupt or toll the running of limitations unless a plaintiff exercises due diligence[3] in the issuance and service of citation. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex.1990); Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex. 1970).[4] Therefore, we read the first clause of section 16.064, referring to filing of the first action, as describing only the period in which limitations is tolled, if at all, not the requirements necessary to achieve the tolling. Because we thus conclude that the filing of the first lawsuit could only toll limitations if service was also effected (which we address below), Allen's third issue is overruled.
Allen's first two issues contend that a fact issue exists whether limitations were tolled under section 16.064, particularly with regard to the irregularities concerning the return of citation. The citation in this case directed service to be made on Intercapital by serving its registered agent, Paul Austin. However, the return of citation has the name "Paul Crutcher, V.P." handwritten in the space labeled "NAME" and is dated November 6, 1997. In response to Intercapital's allegation that it was never served in the first lawsuit, Allen attached to her supplemental summary judgment response the affidavit of Deputy Littler, which states that "[he] served Paul Austin, the registered agent of [Intercapital] on November 6, 1997 ..."[5] If Deputy Littler's affidavit is taken as true, as we must for summary judgment purposes, it would be evidence of proper service on Intercapital and thus compliance with section 16.064. Because a fact issue therefore exists regarding service in the first lawsuit which, in turn, affects whether limitations were tolled under section 16.064, we sustain Allen's first two issues, reverse the trial court's judgment, and remand this case for further proceedings.
NOTES
[*] Senior Chief Justice Paul C. Murphy sitting by assignment.
[1] According to the affidavit of Allen's trial counsel, the county court suit was dismissed for want of jurisdiction because the amount in controversy exceeded the jurisdictional limits of the court.
[2] We address the third issue first to facilitate an orderly presentation of the issues.
[3] Ordinarily, due diligence becomes an issue where issuance or service of citation is delayed but eventually accomplished properly. In this case, there was no delay in issuance or service, but only an issue whether service was ever effected at all, i.e., on a person who was authorized to receive it.
[4] Moreover, if as Allen contends, limitations could be tolled by the mere filing of suit without service, limitations could be tolled indefinitely by a plaintiff without a defendant's knowledge. We are unaware of any authority or rationale for a tolling provision operating in that manner.
[5] It is the fact of service, not the accuracy of the return form, which gives the court jurisdiction over the defendant. Walker v. Brodhead, 828 S.W.2d 278, 282 (Tex.App.-Austin 1992, writ denied). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561635/ | 66 S.W.3d 323 (2001)
Steven Dale FINCH, Appellant,
v.
The STATE of Texas, State.
Nos. 2-00-414-CR, 2-00-415-CR, 2-00-416-CR.
Court of Appeals of Texas, Fort Worth.
March 15, 2001.
Brown & Gonzalez, P.C., Ruben Gonzalez, Fort Worth, for appellant.
Tim Curry, Crim. Dist. Atty., Charles M. Mallin, Asst. Dist. Atty. and Chief of Appellate Section, for state.
Panel D: CAYCE, C.J.; DAY and LIVINGSTON, JJ.
OPINION
CAYCE, Chief Justice.
Steven Dale Finch appeals three convictions for robbery by threats. After considering whether appellant's notice of appeal invoked the jurisdiction of this court, we conclude our jurisdiction was properly invoked.
*324 BACKGROUND
On September 18, 2000, pursuant to plea bargain agreements, appellant pleaded guilty to three charges of robbery by threats, and the trial court assessed punishment at 45 years' confinement in each case. Following the plea proceeding, appellant filed a general notice of appeal.
Upon receipt of the clerk's record, we informed appellant's counsel by letter that his notice of appeal failed to conform to the mandatory requirements of Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure, in that it does not specify the appeal is for a jurisdictional defect; that the substance of the appeal was raised by written motion and ruled on before trial; or, that the trial court granted permission to appeal. Tex.R.App. P. 25.2(b)(3). We, therefore, requested appellant's counsel to identify any issues that may be raised on appeal and explain why those issues warranted continuation of the appeal.
In response to our request, counsel filed a letter brief alleging that the clerk's record in each case reflects that appellant raised by written motion certain pretrial matters that were ruled on before trial and that, based on appellant's agreement with the State, the trial court granted appellant permission to appeal those rulings. He proposes that this is sufficient to invoke our jurisdiction to review his complaints in these appeals.
DISCUSSION
The jurisdiction of this court to hear and determine the appeal of a criminal case is invoked by giving notice of appeal. Lemmons v. State, 818 S.W.2d 58, 60 (Tex.Crim.App.1991). The notice of appeal must be timely, in writing, and substantively correct. State v. Riewe, 13 S.W.3d 408, 410-13 (Tex.Crim.App.2000); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim.App.1996); State v. Muller, 829 S.W.2d 805, 812 (Tex.Crim.App.1992).
Rule 25.2 of the rules of appellate procedure states the substantive written requirements for notices of appeal in all criminal cases. This rule provides, in relevant part, as follows:
25.2 Criminal Cases.
(a) Perfection of Appeal. In a criminal case, appeal is perfected by timely filing a notice of appeal. In a death-penalty case, however, it is unnecessary to file a notice of appeal.
(b) Form and Sufficiency of Notice.
(1) Notice must be given in writing and filed with the trial court clerk.
(2) Notice is sufficient if it shows the party's desire to appeal from the judgment or other appealable order, and, if the State is the appellant, the notice complies with Code of Criminal Procedure article 44.01.
(3) But if the appeal is from a judgment rendered on the defendant's plea of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice must:
(A) specify that the appeal is for a jurisdictional defect;
(B) specify that the substance of the appeal was raised by written motion and ruled on before trial; or
(C) state that the trial court granted permission to appeal.
TEX.R.APP. P. 25.2 (emphasis supplied). A notice that substantially complies with these written requirements is sufficient to invoke our jurisdiction over an appeal. Riley v. State, 825 S.W.2d 699, 701 (Tex. Crim.App.1992); Ramirez v. State, 63 S.W.2d 471, 474 (Tex.App.-Fort Worth 2001, pet. filed) (op. on PDR). The question *325 we must decide here is whether a notice substantially complies with Rule 25.2 when the information required to be specified in the notice is contained elsewhere in the clerk's record. We hold that it does.
In Riley v. State, the court of criminal appeals granted the State's petition for discretionary review to decide whether a general notice of appeal was sufficient to invoke the jurisdiction of the court of appeals to consider a complaint regarding the trial court's pretrial ruling on a motion to suppress. Riley, 825 S.W.2d at 700. After the motion was denied, the defendant pleaded guilty to unlawful possession of cocaine and unlawful possession of amphetamine and the trial judge assessed punishment in accordance with a plea bargain. Id. at 699-700. The court of appeals reversed the convictions and ordered acquittals after determining that the police had lacked probable cause to arrest appellant. Id.
In its petition for discretionary review, the State argued that the court of appeals lacked jurisdiction because appellant's notice did not contain a statement that the trial court granted permission to appeal, or that the matters appealed were raised by written motion and ruled on before trial as required by former Rule 40(b)(1).[1]Id. at 700. However, included in the record was an order signed by the trial judge entitled "Order Limiting Defendant's Appeal." Id. at 701. The order recited that appellant was assessed punishment in accordance with a plea bargain, that the trial court allowed appeal pursuant to article 44.02, and that a motion to suppress challenging the legality of the arrest was raised before trial. Id. Under these facts, the court of criminal appeals held:
[W]hen all the information required by Rule 40(b)(1) is contained in an order by the trial court and the order is in the appellate record along with a timely filed notice of appeal, the Court of Appeals has jurisdiction to address jurisdictional and also those non-jurisdictional defects recited in the order.
Appellant's notice of appeal coupled with the court's order substantially complied with Rule 40(b)(1) to permit review of properly preserved non-jurisdictional issues.
Id.
In Ramirez v. State, the appellant challenged the subject matter jurisdiction of the criminal district court on the grounds that he was under the exclusive original jurisdiction of juvenile court. Ramirez, 63 S.W.3d at 473. Although he had entered into a plea bargain, appellant filed a notice of appeal that did not specify "that the appeal is for a jurisdictional defect." Tex. R.App. P. 25.2(b)(3)(A). Appellant, however, did attach his birth certificate to the notice which indicated a birth date for appellant that would place him under the jurisdiction of the juvenile courts. Relying on the court of criminal appeals' decision in Riley, we held that appellant's notice coupled with the attached birth certificate substantially complied with the substantive written requirements of Rule 25.2(b)(3) and, therefore, was sufficient to invoke our jurisdiction to consider the jurisdictional issue. Ramirez, 63 S.W.3d at 474.
*326 In the instant case, the written plea admonishments in the clerk's record expressly state that "[t]he State and Defense stipulate and agree the Defendant shall have all rights to appeal as taken from pretrial motions heard before this court, Judge Young presiding," and that "the Defendant does not waive any pre-trial motions filed in this case or associated cases." Under the section entitled "Attorneys Approval, Judicial Findings and Judicial Notices," the parties also included a handwritten proviso that "[t]he State and Defense stipulates and agrees that any and all pretrial motions urged shall not be waived and are expressly preserved for appeal." The trial court and counsel for both the State and appellant indicated their approval of this proviso by affixing their initials immediately beneath it. In addition to these statements in the written plea admonishments, the plea bargain agreement states that "[t]he Defendant shall retain all rights to appeal pre-trial motions"; the trial court's "Certificate of Proceedings" indicates a "RT TO APPEAL PT MOTIONS"; and the trial court's judgment shows the terms of the plea agreement included appellant's "RT TO APPEAL PRETRIAL MOTIONS." We hold that appellant's notice of appeal combined with these written statements in the clerk's record substantially complies with Rule 25.2(b)(3). Riley, 825 S.W.2d at 701; Ramirez, 63 S.W.3d at 474; see also Happ v. State, 958 S.W.2d 474, 475 (Tex. App.-Fort Worth 1997, no pet.) (holding general notice of appeal insufficient where there was no document in the clerk's record containing the extra-notice requirements of Rule 25.2(b)(3)).
CONCLUSION
Appellant's notice of appeal substantially complies with Rule 25.2(b)(3) and, therefore, invokes our jurisdiction over these appeals. Because our jurisdiction was properly invoked, appellant is permitted to amend his notice of appeal without leave of court before appellant's brief is filed. See Tex.R.App. P. 25.2(d).[2]
NOTES
[1] TEX.R.APP. P. 40(b)(1) (Vernon Pamph.1997, revised 1997) (707-708 S.W.2d LII-III (Texas Cases)).
[2] Appellant's conviction for a fourth robbery by threat offense is also pending on appeal with this court in cause no. 02-00-399-CR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2466217/ | 10 F. Supp. 2d 261 (1998)
Luis ROSALES, Plaintiff,
v.
Thomas A. COUGHLIN, et al., Defendants.
No. 94-CV-6009L.
United States District Court, W.D. New York.
June 11, 1998.
*262 *263 Luis Rosales, Elmira, NY, pro se.
James L. Gelormini, Mary H. Doyle, New York State Attorney General's Office, Rochester, NY, for Defendants.
DECISION AND ORDER
LARIMER, Chief Judge.
Plaintiff, Luis Rosales, appearing pro se, commenced this action pursuant to 42 U.S.C. § 1983. Plaintiff, who is an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that defendants, who include various DOCS employees and officials, deliberately failed to provide plaintiff with adequate medical care for back and leg problems stemming from a work-related accident in 1986, prior to plaintiff's incarceration. Plaintiff alleges that defendants have violated his rights under the Eighth Amendment to the United States Constitution. Both sides have moved for summary judgment.
FACTUAL BACKGROUND
There is no dispute that plaintiff was injured in 1986, and that at the time that he entered DOCS' custody in 1991, he had some ongoing problems with his back and his left leg. The complaint contains some fifteen pages of factual allegations concerning defendants' actions, but in general plaintiff alleges that he frequently complained about back pain and other medical problems, and that defendants either did nothing or provided him with inadequate care and treatment.
Defendants, and their alleged roles in connection with this action, are as follows. Thomas A. Coughlin was the Commissioner of DOCS at the time of the relevant events. Defendants Lee, Shah, and MGee [sic] are all physicians who were employed at correctional facilities where plaintiff was housed. Defendant John Mitchell was at the relevant times a nurse administrator at Clinton Correctional Facility, and plaintiff has also named as a defendant a nurse administrator at Southport Correctional Facility, who, according to defendants, is B.J. Obremski. Defendant Robert Greifinger was the Chief Medical Officer of DOCS. Defendants Jimmie Harris and Joan Rosado were both DOCS Regional Health Services Administrators. Defendants Kelly and Donnelly were respectively the Superintendent and the Deputy Superintendent of Security at Attica Correctional Facility while plaintiff was incarcerated there. Defendants Sticktch and Monin were sergeants at Attica, and defendant Witowski was a corrections officer there.
The gist of plaintiff's allegations is that the medical treatment he received was inadequate, that he complained about these matters to DOCS officials, and that nothing was done in response. Plaintiff admits that he was seen by physicians and other medical personnel on many occasions, but he claims that their treatment was not sufficient. About the only allegations that do not fall within this broad characterization are plaintiff's claims that on several occasions Witowski seized from him a cane that had been prescribed by a physician. Plaintiff alleges that on October 30, 1993, Witowski took plaintiff's cane and refused to return it. Plaintiff alleges that on November 3, 1993, while attempting to walk to the shower without his cane, he collapsed, suffering a concussion and severe back pain as a result.
In a supplemental complaint filed on May 27, 1994, plaintiff also alleges that in late 1993 he complained to Kelly about Witowski's continued harassment of him and that Kelly did nothing in response. He also alleges that on January 27, 1994, Witowski again took his cane. Plaintiff alleges that he complained to defendants Monin, Kelly, and Coughlin, but none of them made any serious effort to investigate the matter.
In response, defendants contend that the treatment plaintiff has received while in DOCS' custody has been fully adequate and that plaintiff's allegations amount to nothing more than a difference of opinion between him and his health care providers about the nature and extent of the treatment that he requires. Defendants also contend that they are all entitled to qualified immunity because none of their alleged actions or inactions violated any of plaintiff's clearly established rights.
*264 DISCUSSION
I. General Standards
To show that prison medical treatment was so inadequate as to amount to "cruel or unusual punishment" prohibited by the Eighth Amendment, plaintiff must prove that defendants' actions or omissions amounted to "deliberate indifference to a serious medical need." Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998). As the Supreme Court explained in Wilson v. Seiter, 501 U.S. 294, 298-99, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991), this standard includes both an objective and a subjective component. With respect to the objective component, the court must ask whether there has been a sufficiently serious deprivation of the prisoner's constitutional rights. With respect to the subjective component, the court must consider whether the deprivation was brought about by defendants in wanton disregard of those rights. Id. To establish deliberate indifference, therefore, plaintiff must prove that the defendants had a culpable state of mind and intended wantonly to inflict pain. See Wilson, 501 U.S. at 299, 111 S. Ct. 2321; DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir.1991); Steading v. Thompson, 941 F.2d 498, 500 (7th Cir.1991), cert. denied, 502 U.S. 1108, 112 S. Ct. 1206, 117 L. Ed. 2d 445 (1992); Ross v. Kelly, 784 F. Supp. 35, 44 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.), cert. denied, 506 U.S. 1040, 113 S. Ct. 828, 121 L. Ed. 2d 698 (1992).
The Court in Estelle, however, also cautioned that mere negligence is not actionable. "A [prisoner's] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106, 97 S. Ct. 285. Rather, the plaintiff must allege conduct that is "repugnant to the conscience of mankind" or "incompatible with the evolving standards of decency that mark the progress of a maturing society." Id. at 102, 105-06, 97 S. Ct. 285.
It is clear, then, that allegations of malpractice do not state a constitutional claim. Estelle, 429 U.S. at 106 and n. 14, 97 S. Ct. 285; Chance, 143 F.3d at 703-04; Ross, 784 F.Supp. at 44. Likewise, an inmate's "mere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation." Chance, 143 F.3d at 703; see also Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir.1977) ("The courts will not intervene upon allegations of mere negligence, mistake or difference of opinion"); Massey v. Hutto, 545 F.2d 45, 46 (8th Cir. 1976) (affirming dismissal of inmate's Eighth Amendment claim where evidence showed that "[t]o the extent that [the plaintiff] is not receiving the treatment he desires, his complaint reflects a mere disagreement over proper medical care"); United States ex rel. Hyde v. McGinnis, 429 F.2d 864 (2d Cir. 1970) (affirming dismissal of an inmate's complaint alleging Eighth Amendment violations, because entire basis of his claim was his disagreement with the prison doctor's professional judgment).
Prison officials also have broad discretion in determining the type and extent of medical treatment given to inmates. Thomas v. Pate, 493 F.2d 151, 157 (7th Cir.1974), cert. denied, 423 U.S. 877, 96 S. Ct. 149, 46 L. Ed. 2d 110 (1975). Moreover, courts have repeatedly held that a prisoner does not have an absolute right to the treatment of his choice. See Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir.1986); see also Jackson v. Fair, 846 F.2d 811, 817-18 (1st Cir.1988) (no claim of deliberate indifference to serious medical needs when prisoner was transferred from high-security psychiatric hospital to general prison population of another institution, because treatment at new facility was adequate and prisoner did not have right to treatment of his choice).
Nor can the same standards of medical care be imposed upon a prison as those expected of a hospital. In Dean, the Second Circuit stated that a "correctional facility is not a health spa, but a prison in which convicted felons are incarcerated." 804 F.2d at *265 215; see also Ruiz v. Estelle, 679 F.2d 1115, 1149 (5th Cir.) ("The Constitution does not command that inmates be given the kind of medical attention that judges would wish to have for themselves"), vacated in part as moot, 688 F.2d 266 (5th Cir.1982), cert. denied, 460 U.S. 1042, 103 S. Ct. 1438, 75 L. Ed. 2d 795 (1983).
II. Plaintiff's Claims
Applying these standards to the case at bar, it is clear that plaintiff's claims against defendants Lee, Shah, MGee, Mitchell, and the nurse administrator at Southport (collectively "the medical defendants") must be dismissed. Even accepting the allegations of the complaint as true, all that plaintiff can show with respect to these defendants is that he disagreed with them concerning the medical care plaintiff needed.
Plaintiff's own allegations show that he received extensive care and treatment. For instance, he states that in April 1991, shortly after he entered into custody, he was seen by an orthopedic specialist at Elmira Correctional Facility. Complaint ¶ 21. The specialist determined that plaintiff did not need a back brace. Complaint Ex. D-1. Plaintiff disagreed with that conclusion.
In August 1992, after he had been transferred to Clinton, plaintiff was seen by defendant Dr. Lee. Dr. Lee allegedly told plaintiff that plaintiff did not need a back brace that plaintiff had requested. Complaint ¶ 24. In September 1992, plaintiff was provided with a rib supporter. He insisted that he needed a back brace instead, but defendants did not provide him one. Complaint ¶ 26.
Defendant Mitchell told plaintiff in September 1992 that plaintiff would be put on a waiting list for examination by an orthopedic specialist at Helen Hayes Hospital. Complaint ¶ 25. In November 1992, plaintiff was temporarily transferred to Downstate Correctional Facility so that he could be taken to Helen Hayes Hospital. Complaint ¶ 28. Plaintiff was dissatisfied with his treatment, however, because he was only examined with respect to his knee problems and not his back pain. Apparently the reason for this was that the person at Clinton who arranged for this examination had determined that plaintiff's back problems had been adequately addressed at Clinton. Complaint Ex. N.
In November 1992, prior to his transfer to Downstate, a physician at Clinton examined plaintiff after plaintiff complained of back pain. The physician provided plaintiff with a cane. Complaint ¶ 27. Although Witowski allegedly later seized this cane, none of the medical defendants were involved in that episode.
Plaintiff's other allegations with respect to the medical defendants are in the same vein, and will not be repeated here. What these allegations show, however, is that plaintiff was provided with medical care to address his back and leg problems. He merely disagrees with defendants' conclusions about the type and amount of treatment that his condition warranted. As the preceding discussion of the legal standards in this area makes clear, that is not enough to state an Eighth Amendment claim. Plaintiff makes the conclusory allegation that the medical defendants were indifferent to his medical needs, but his factual allegations belie that assertion. The fact is that plaintiff was treated, and this court will not second-guess physicians' professional opinions about plaintiff's needs based solely on plaintiff's unsubstantiated claims. See Ross, 784 F.Supp. at 46 ("[c]ourts will not attempt to second-guess licensed physicians as to the propriety of a particular course of medical treatment for a given prisoner-patient") (quoting Thomas, 493 F.2d at 158).
Plaintiff's claims against defendants Coughlin, Greifinger, Harris, Rosado, Kelly and Donnelly must also be dismissed. The record does not show any factual issues about whether these defendants violated plaintiff's rights.
In short, plaintiff's claims against these defendants are that he complained to them about various matters, generally the perceived inadequacy of his treatment or acts or harassment by defendant Witowski, and that they did little or nothing in response. The record directly contradicts those allegations, however.
*266 For example, plaintiff alleges that on March 28, 1993, he complained to defendants Greifinger and Coughlin that he was not receiving adequate medical care, and that they did nothing in response. The record shows, however, that plaintiff's letter to Greifinger was referred to Jimmie Harris, the DOCS Regional Health Services Administrator. Harris responded to plaintiff in a letter dated May 10, 1993. Harris stated that he had contacted the health care staff at Clinton, who informed him that plaintiff had been scheduled to be admitted to a hospital for surgery on February 2, 1993, but that plaintiff had refused to go. Harris stated that "[a]rrangements are in the works to have you re-evaluated for another possible admission." Complaint Ex. P. He also stated that he had been informed that a physician had ordered certain tests with respect to plaintiff's back pain, and that "[d]epending on the results of those tests, you will be referred to a local back specialist." Id.
Coughlin also responded to plaintiff's letter. In a letter to plaintiff dated May 17, 1993, Coughlin stated that he had "been informed that Helen Hayes Hospital is arranging a clinic visit or a new surgery date," that "[o]n May 3, 1993, you were seen for your back complaint and tests, including an MRI, were ordered," and that plaintiff would be informed of the results. Complaint Ex. Q.
In a letter dated July 30, 1993, and addressed to Southport Superintendent McCallen, plaintiff stated that while he was in Clinton, his cane had been confiscated and never returned to him. He asked McCallen to look into the matter and to ensure that plaintiff received adequate care. Copies of the letter were sent to Coughlin and Greifinger. In a letter dated August 26, 1993, Coughlin stated that the DOCS Division of Health Services had investigated the matter and found that plaintiff had been seen by Dr. Shah on August 16, that plaintiff had been given instructions in back exercises to relieve his discomfort, and that approval for a cane had been "submitted to security for their appropriate action." Complaint Ex. DD.
Defendant Rosado responded to the letter sent to Greifinger on September 21, 1993. Rosado stated that the Division of Health Services had investigated plaintiff's complaint, that Rosado had learned that plaintiff had since been transferred to Attica, and that plaintiff should address any further concerns to the health staff at Attica. Complaint Ex. EE.
In addition, in a memorandum to plaintiff dated August 9, 1993, Southport First Deputy Superintendent M.L. Hollins informed plaintiff that Hollins had reviewed plaintiff's misbehavior report for an incident on May 17, 1993. That report, which apparently had been the basis for the confiscation of plaintiff's cane, stated that plaintiff had been seen by a corrections officer assaulting another inmate with a six-inch-long weapon, which, after several orders from one of the officers on the scene, plaintiff handed to an officer. Hollins stated that it did not appear that the weapon was a cane, and that therefore "the Facility Medical Director is to determine if the indicated cane should remain in your cell possession for medical reasons. If so, and it is available in your property, it will be returned to you." He added that "[i]f the cane brought from Clinton is no longer available and a cane is required for legitimate medical reasons, a suitable substitute will be obtained for you." Complaint Ex. FF.
Plaintiff further alleges that during October and November 1993, defendant Witowski verbally harassed him and several times took plaintiff's cane away from him. He alleges that he informed defendants Kelly, Donnelly and Coughlin, but that they did nothing in response. The record, however, shows that in a letter dated November 29, 1993, Coughlin informed plaintiff that Kelly had investigated plaintiff's complaints and was told by Dr. O'Connell, the Director of Facility Health Services, that there was no documented medical need for plaintiff to possess the cane. Kelly also found that at a later date, when plaintiff alleges he collapsed, plaintiff was promptly seen by medical staff and was allowed to use a cane. Kelly also reported that, contrary to plaintiff's claim that the water in his cell had been turned off, the plumbing was in good working order. Kelly concluded that the evidence did not support plaintiff's claim of harassment. Complaint Ex. 00.
*267 In his supplemental complaint, plaintiff makes similar allegations. He alleges that in late 1993 and early 1994, he complained to Kelly and Coughlin about Witowski's alleged continued harassment, but that they did not respond to his complaints. In a letter dated February 24, 1994, however, Coughlin informed plaintiff that Kelly had investigated his allegations and found no evidence to support plaintiff's claims. Kelly also found that plaintiff had "passed the cane to another inmate," but that "a cane was personally delivered to [plaintiff] on February 2, 1994" by a corrections officer. Supplemental Complaint ("Supp.Comp.") Ex. H.
"[I]t is well settled that to state a civil rights claim under § 1983, a complaint must contain specific allegations of fact which indicate a deprivation of constitutional rights ..." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir.1987). In this Circuit, personal involvement of a defendant in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282, 55 L. Ed. 2d 792 (1978).
Under the law of this Circuit, a plaintiff may establish personal involvement in one of several ways. First, the plaintiff may show the defendant's direct participation in the event. Second, the proof may show that the defendant learned of the wrong and failed to correct it. Third, a supervisor may be liable for creating a policy or custom under which unlawful practices occur, or for allowing such a policy or custom of which he is aware to continue. Finally, a plaintiff may prove that the supervisor acted with "gross negligence" in managing the subordinates personally involved in the unlawful conduct. Wright, 21 F.3d at 501; Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986).
Plaintiff has not adduced evidence that creates a triable issue of fact as to these defendants' personal involvement in the events at issue under any of these approaches. At most, the evidence shows that when plaintiff complained to these defendants, they took appropriate, reasonable steps to investigate his complaints and remedy any problems that they found. As the preceding examples demonstrate, the record refutes plaintiff's allegations that these defendants failed to investigate his complaints. There is no evidence that defendants' investigations were in any way flawed or biased, or that they would have had any reason to doubt the accuracy of the conclusions in any of those investigations. The complaint must therefore be dismissed as to these defendants. See Sprau v. Coughlin, 997 F. Supp. 390, 393-94 (W.D.N.Y.1998) (no basis for liability where there was no evidence that defendants' investigations were flawed); Brown v. Coughlin, 965 F. Supp. 401, 407 (W.D.N.Y. 1997) (same).
As to the remaining defendants Sticktch, Monin and Witowski I find that genuine issues of material fact exist that preclude summary judgment. Plaintiff's allegations, if true, might support a finding that Witowski was deliberately indifferent to plaintiff's serious medical needs, and that Sticktch and Monin knew of Witowski's actions but deliberately refused to intervene.
Plaintiff alleges that in October 1993, Witowski verbally harassed him, turned his cell water off, and took plaintiff's cane by reaching in through plaintiff's cell bars while plaintiff was lying down. He alleges that he complained about this to Sergeant Monin and that Monin simply laughed. Complaint ¶ 48.
Plaintiff also alleges that on October 30, 1993, Witowski again took plaintiff's cane, stating that the medical department had ordered him to. Plaintiff alleges that on October 31, plaintiff told Sergeant Sticktch what had happened, and also told him that plaintiff's cell water had been turned off since October 20. He also alleges that he showed Sticktch Coughlin's August 26, 1993 letter to plaintiff stating that "[a]pproval for a cane was submitted to security for their appropriate action." Complaint ¶ 51, Ex. DD. Sticktch allegedly did nothing about the cane or the water.
Plaintiff further alleges that on November 2, 1993, he asked Witowski to have someone assist him in walking because it was painful for plaintiff to walk without his cane. He *268 alleges that Witowski replied that "if plaintiff couln't [sic] come to the front of the gallery for sick-call he was dead." Complaint ¶ 52. He alleges that on the following day, November 3, plaintiff collapsed as he was walking to the shower. Witowski, who witnessed this, allegedly laughed and applauded. Complaint ¶ 53. Plaintiff had to be taken to the infirmary on a stretcher. He alleges that he suffered a concussion, swelling, bruises, headaches and severe pain as a result of this occurrence.
Plaintiff was discharged from the infirmary with a cane on November 4. He alleges that on January 27, 1994, Witowski again reached into plaintiff's cell and took his cane, and made several threatening remarks. Supp. Comp. ¶ 9. The next day, plaintiff told Monin about this incident, but Monin's response was that he was "tired of [plaintiff's] continues [sic] complaint about his officer, If [plaintiff] do[es]nt leave him or his officers' alone he will assure his officers' beat [plaintiff] up while he watch and, that [plaintiff] better watch [his] meals." Supp. Comp. Ex. C.
Plaintiff has also submitted some evidence in support of these allegations, in the form of statements by other inmates who allegedly witnessed some of these events. Plaintiff has submitted an affidavit of one Manuel Diaz, an inmate at Attica. Diaz states that on one occasion, he saw Witowski direct plaintiff to walk alone to a certain area. Because of his medical condition, plaintiff had to walk slowly, and Witowski allegedly told plaintiff that "he was dead for taking his time." Complaint Ex. JJ at 1. Diaz also states that he saw plaintiff walking, "holding himself [up] with the bars to make it all the way to 34 cell" because Witowski "had taken his cane ..." Id. Diaz states that Witowski said that he was authorized to take plaintiff's cane, and was "just laughing like it was a joke." Id. at 2. Diaz further states that on October 31, 1993, he saw defendant Sticktch walk past plaintiff's cell, at which time plaintiff told him that Witowski had wrongfully taken his cane, and that Sticktch refused to look into the matter.
Diaz also states that on November 1, 1993, plaintiff was unable to get out of his bed to take a shower. On November 2, plaintiff asked to go on sick call, but again could not get out of bed. Diaz states, "since he could not get up from bed we all yell for the nurse to come up, but C.O. Watowski [sic] yell down for Luis Rosales to close he [sic] gate that he was dead on sick-call." Id.
Diaz also states that he witnessed the incident in which plaintiff collapsed. He states that when it was plaintiff's turn to take a shower,
he force himself out of bed he had stated the day before that his legs felt numb and his back hurt all the way up to his neck when he was between cell 32 and 31 he fell down and hit his head with the bars of my cell 31 ... at this time we started yelling down for help, when I put my mirror I could see C.O. Watowski laughing but would not come up to help him, it took about five minutes for some one to come up, about half hour later they took him to the hospitol [sic] ...
Id.
Plaintiff has also submitted an affidavit from another Attica inmate, Frank Ellis. Ellis states that on October 20, 1993, he saw Witowski take plaintiff's cane away as plaintiff was going to the yard for recreation. Ellis states that when plaintiff returned from the yard, "he was in a lot of pain. Officer Witowski was up front watching & making obscene remarks towards prisoner Rosales." Complaint Ex. KK at 1.
Like Diaz, Ellis states that on November 1, 1993, plaintiff was unable to get out of bed to take a shower. On November 2, plaintiff put his name down for sick call, but "when prisoner Rosales did not come out of his cell when Officer Witowski opened it, he was told to close his cell door and that he was dead on sick call." Id. at 2. The following day, as plaintiff was walking toward the shower, "he was in a lot of pain. When he reached 31 cell he collapsed and hit his head on the cell bars & he blacked out for about two or three seconds." Id.
With his supplemental complaint, plaintiff *269 has also submitted an unsworn statement[1] by Ellis. He states that on January 27, 1994, he heard Witowski curse at plaintiff, who was in the cell next to Ellis's. Later that day, he heard plaintiff ask Witowski why Witowski was taking his cane. Ellis states that he then went to the front of his cell and put his mirror through the bars, and saw Witowski "walking and laughing with the cane." Supp. Comp. Ex. B. Ellis also states that the following morning, he heard plaintiff tell defendant Monin that Witowski had taken his cane, and Monin responded "in a very low tone of voice." Id.
To make out an Eighth Amendment claim, plaintiff must show that he has "serious medical needs" and that defendants were deliberately indifferent to those needs. Estelle, 429 U.S. at 106, 97 S. Ct. 285. In determining whether a plaintiff has a serious medical need or condition, courts have considered a variety of factors, including "[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Chance, 143 F.3d at 702 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.1992)). Taking those factors into account here, I find that plaintiff has at least raised issues of fact in this regard.
Although defendants deny that plaintiff's condition is as severe as he claims, it bears repeating that on this motion for summary judgment, the court must view the record in the light most favorable to the plaintiff, and draw all inferences in his favor. Plaintiff alleges that without a cane, he is sometimes in such severe pain that he cannot get out of bed, and that on one occasion, he fell because he did not have his cane. He alleges that he struck his head when he fell, and experienced excruciating pain. Accepting those allegations as true, a factfinder could conclude that plaintiff's condition significantly affects his daily activities, and that he suffers chronic and substantial pain.
I also find that there are issues of fact as to whether these three defendants were deliberately indifferent to plaintiff's serious medical needs. To demonstrate deliberate indifference, plaintiff must show that defendants acted with a sufficiently culpable state of mind. Wilson, 501 U.S. at 298-99, 111 S. Ct. 2321. To put it another way, plaintiff must show that defendants acted "wantonly." Branham v. Meachum, 77 F.3d 626, 630 (2d Cir.1996); Sprau, 997 F.Supp. at 394.
Courts in similar cases have held that a deliberate interference with medical treatment, such as seizing a prescribed cane or other medical equipment, can give rise to an Eighth Amendment violation under these standards. For example, in Covington v. Westchester County Jail, No. 96 Civ. 7551, 1997 WL 580697 (S.D.N.Y. Sept.18, 1997), the inmate plaintiff alleged that he fell inside a jail, and that when he fell he felt tremendous pain in his ankle and heard it snap. One of the defendant corrections officers refused the plaintiff's request to he see a doctor immediately, and would only agree to let other inmates carry the plaintiff to the jail clinic, which had no doctor. A nurse applied an ice pack, wrapped the plaintiff's ankle with an elastic bandage, and prescribed aspirin. She also denied the plaintiff's request to see a doctor or have an x-ray examination.
During the two weeks following the plaintiff's injury, two other corrections officers required him to work in the jail law library. During that time, the plaintiff had neither crutches nor a cane. After repeated requests for two months to see a doctor, the plaintiff was at last treated by a physician, who prescribed crutches. The plaintiff was later diagnosed as having a fractured ankle.
The plaintiff sued, claiming a violation of his Eighth Amendment rights. Three weeks after the suit was filed, a corrections officer confiscated his crutches. A few days later, a physician prescribed a cane, but a corrections officer seized it the same day.
The defendants moved to dismiss the complaint for failure to state a claim. The district court denied the motion, stating that, based on the plaintiff's allegations, the defendants *270 "intentionally interfered with his prescribed medical treatment by confiscating his crutches and cane without cause, thereby subjecting Covington to needless pain and suffering." 1997 WL 580697 *3 (footnote omitted). The court concluded that, "[t]aking these allegations as true, a reasonable trier of fact could conclude that the defendants knowingly disregarded an excessive risk to Covington's health." Id.
In Gleash v. Hardiman, No. 88 C 5949, 1993 WL 92436 (N.D.Ill. Mar.26, 1993), the plaintiff inmate alleged that just prior to his incarceration, he had been shoved into a cell at a police department precinct, causing him to bang his right knee on an iron bunk bed. This aggravated an existing knee injury, and during his incarceration the pain and swelling in his knee were so severe that he was unable to walk without bracing himself against a wall or furniture.
On the defendants' motion for summary judgment, the district court denied the motion with respect to a defendant who had allegedly interfered with the plaintiff's medical treatment. The court stated that defendant, a corrections officer, allegedly "repeatedly ordered that Gleash's cane and crutches be taken away, thus denying Gleash prescribed medical treatment." 1993 WL 92436 *11. The court noted that "[t]he intentional interference with treatment once prescribed can constitute deliberate indifference." Id. at *8 (citing Brown v. Hughes, 894 F.2d 1533 (11th Cir.1990)).
In Jones v. Fairman, No. 89 C 7586, 1991 WL 148156 (N.D.Ill. July 25, 1991), the inmate plaintiff alleged that he had injured his left ankle while incarcerated, and was given a cane by prison doctors to help him walk. The next day, a defendant corrections officer, without provocation, forcibly took the plaintiff's cane away from him. He then ordered the plaintiff to walk up two flights of stairs without the cane, stating that if the plaintiff refused, the defendant would "beat [his] brains out." 1991 WL 148156 *1.
Denying the defendant's motion for summary judgment, the court stated that the plaintiff's allegation that the defendant "deliberately interfered with his medical treatment by forcibly taking his cane away from him and forcing him to walk up two flights of metal stairs ... [wa]s sufficient to withstand a motion for summary judgment." Id. at *3 (citing Martinez v. Mancusi, 443 F.2d 921, 924 (2d Cir.1970) (cruel and unusual punishment where guards forced inmate to walk from hospital after leg surgery contrary to physician's orders), cert. denied, 401 U.S. 983, 91 S. Ct. 1202, 28 L. Ed. 2d 335 (1971)).
Plaintiff has submitted some evidence that Witowski repeatedly took plaintiff's cane from him, thereby interfering with his prescribed course of treatment and causing plaintiff to suffer pain. If this had been a single, isolated occurrence, it might not support an Eighth Amendment claim. Cf. Funchess v. Doe, No. 96 C 4767, 1997 WL 12785 (N.D.Ill. Jan.10, 1997) (plaintiff's allegation that unnamed officer confiscated his cane, and that cane was returned when plaintiff displayed prescription for cane, did not allege deprivation of constitutional proportions). Because Witowski allegedly did this on a number of occasions, however, I believe that there are genuine issues of material fact as to whether he acted with sufficient wantonness to have violated plaintiff's rights under the Eighth Amendment.
Plaintiff has also proffered some evidence that Monin and Sticktch had direct knowledge of Witowski's behavior and refused to do anything about it. Although the evidence concerning these two defendants particularly Sticktch is thin, defendants have not responded to plaintiff's allegations by affidavit or otherwise. The only evidence submitted by defendants consists of plaintiff's medical records, copies of correspondence, and other documentary evidence. Given plaintiff's allegations that he complained directly to Monin and Sticktch about Witowski's actions, and that they essentially laughed it off or even threatened plaintiff in response, I believe that there are also genuine issues of material fact that preclude summary judgment in favor of these two defendants as well.
I also find that these same issues of material fact preclude summary judgment in plaintiff's favor. Although he has proffered some evidence that his Eighth Amendment rights were violated, the evidence is not so *271 clear-cut that no rational finder of fact could reasonably find in defendants' favor. Plaintiff's motion for summary judgment is therefore denied as well.
CONCLUSION
Defendants' motion for summary judgment (Item 75) is granted in part and denied in part. Defendants' motion is granted with respect to plaintiff's claims against defendants Thomas A. Coughlin, Lee, Shah, MGee, John Mitchell, Southport Correctional Facility Nurse Administrator, Robert Greifinger, Jimmie Harris, Joan Rosado, Kelly and Donnelly, and the complaint is dismissed as to those defendants. In all other respects, defendants' motion is denied.
Plaintiff's cross-motion for summary judgment (Item 79) is denied.
IT IS SO ORDERED.
NOTES
[1] The statement states, "Notary is not available so I declare under the penalty of perjury that the fore going is true and correct." Supp. Comp. Ex. B. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555835/ | 36 So.3d 5 (2009)
STONEMOR ALABAMA, LLC, and StoneMor Alabama Supply Subsidiary, Inc.
v.
Michelle SUMMERS.
1080443.
Supreme Court of Alabama.
October 16, 2009.
*6 C. Lee Reeves and Anthony R. Smith of Sirote & Permutt, P.C., Birmingham, for appellants.
Richard E. Flowers, Columbus, Georgia; and Richard L. Cross, Jr., of Cross Law Firm, LLC, Phenix City, for appellee.
STUART, Justice.
Michelle Summers sued StoneMor Alabama, LLC, and StoneMor Alabama Supply Subsidiary, Inc. (hereinafter referred to collectively as "StoneMor"), affiliated companies that jointly own and operate Lakeview Memory Gardens, a cemetery in Phenix City, alleging conversion, negligence, and the tort of outrage after StoneMor removed a stone memorial bench Summers had had installed on the grave of her deceased husband. StoneMor thereafter moved the trial court to compel Summers to pursue her claims in arbitration pursuant to an arbitration clause in a burial contract she had entered into with StoneMor. The trial court denied that motion, and StoneMor appeals. We reverse and remand.
I.
On July 20, 2007, one day after her husband Jerry died in an automobile accident, Summers entered into a contract with StoneMor pursuant to which she purchased two burial plots at Lakeview Memory Gardens, along with perpetual care for those plots and funeral services for Jerry, for $3,490. That contract contained the following arbitration clause:
"Arbitration: If there is any dispute, concerning this agreement or any other matters relating to goods or services purchased from seller, purchaser or seller may elect to have the dispute resolved by arbitration according to the rules of the American Arbitration Association (`AAA') then in effect, unless otherwise restricted by law. If purchaser wishes to obtain a copy of these rules, purchaser may contact the AAA at 1-800-778-7879 or www.adr.org. If arbitration is chosen, neither purchaser nor seller will have the right to litigate the claim(s) in court or have a trial before a judge or jury. The arbitration will be *7 conducted on an individual basis, and not as part of a common or class action. If the appointed arbitrator or panel of arbitrators should award any damages, those damages will be limited to actual and direct damages only and will not include consequential, punitive, exemplary, or treble damages.
"Purchaser and/or seller may hire legal counsel, but legal counsel is not required. Purchaser and seller must each pay the fees and costs of their own counsel, except as otherwise awarded by arbitrator. All expenses of the arbitration, including the arbitrator's fees, will be shared equally by purchaser and seller, except as otherwise awarded by the arbitrator.
"Any award ordered by the arbitrator will be final, binding, nonappealable and judgement may be entered on it in any court having jurisdiction. This agreement is made in connection with a transaction in interstate commerce, and the provisions of this section are made under the Federal Arbitration Act, 9 U.S.C. §§ 1-16. The arbitrator will have no power to vary or modify any provisions of this arbitration agreement."
(Emphasis in original.)
At the time Summers purchased the plots at Lakeview Memory Gardens, she declined to purchase from StoneMor a stone marker or stone memorial bench for her husband's grave site; instead, Summers purchased those items from a third party. Summers alleges that that third party then paid StoneMor the appropriate fees and had those items installed on the grave site on her behalf. Shortly after the installation of the bench and the marker, and without giving notice to Summers, StoneMor apparently removed the stone memorial bench from the grave site.
On July 29, 2008, Summers sued StoneMor, alleging that StoneMor had converted the stone memorial bench, that StoneMor was negligent in removing the stone memorial bench, and that StoneMor's conduct in this case was outrageous and had caused her severe emotional distress. On August 28, 2008, StoneMor moved the trial court to compel arbitration in the case, submitting evidence that the contract Summers had entered into with StoneMor contained an arbitration clause and that the transaction between the parties affected interstate commerce. On November 25, 2008, the trial court denied StoneMor's motion. StoneMor then filed this appeal.
II.
Our standard of review of a ruling denying a motion to compel arbitration is well settled:
"`This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce. Id. "[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question." Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala. 1995) (opinion on application for rehearing).'"
Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 313, 315 (Ala.2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000)).
III.
In conjunction with its August 28, 2008, motion to compel arbitration, StoneMor *8 submitted to the trial court a copy of the contract signed by Summers containing an arbitration clause, quoted supra, as well as evidence indicating that the transaction that was the subject of the contract affected interstate commerce in at least the following two ways: (1) a portion of the money Summers paid StoneMor was designated for perpetual care of the two cemetery plots she purchased and had been placed in a trust fund managed by a company in Tennessee, and (2) the cemetery grounds are maintained using equipment manufactured and purchased outside Alabama. This evidence of the existence of "a contract calling for arbitration and [proof] that the contract evidences a transaction affecting interstate commerce" therefore shifted the burden to Summers to present some evidence indicating that the arbitration clause is not valid or that it does not apply to the dispute in question. Elizabeth Homes, 882 So.2d at 315. On appeal, Summers does not dispute the validity of the arbitration clause; rather, she argues that her dispute with StoneMor is outside the scope of that clause.[1] We disagree.
The crux of this dispute is whether StoneMor was authorized to remove the stone memorial bench Summers had installed on her deceased husband's grave site. Summers maintains that the stone memorial bench was installed in compliance with StoneMor's rules and regulations and that, accordingly, StoneMor was not authorized to remove it, while StoneMor argues that it properly removed the bench because, it says, Summers breached their contract by having the stone memorial bench installed in a manner that violated the rules and regulations of the cemetery, which, StoneMor says, were incorporated into that contract by reference.
The arbitration clause in the contract between Summers and StoneMor states that it applies to "any dispute[ ] concerning this agreement or any other matters relating to goods or services purchased from seller ...." In Serra Chevrolet, Inc. v. Hock, 891 So.2d 844, 847 (Ala.2004), we noted that "[t]his Court has repeatedly stated `"that the words `relating to' in the arbitration context are given a broad construction."'" (Quoting AmSouth Bank v. Dees, 847 So.2d 923, 932 (Ala.2002), quoting in turn Karl Storz Endoscopy-America, Inc. v. Integrated Med. Sys., Inc., 808 So.2d 999, 1013 (Ala.2001) (emphasis omitted).) Among the goods and services purchased by Summers from StoneMor was perpetual care of the two burial plots she purchased. StoneMor has argued that the stone memorial bench in question was installed improperly, without the required permission and fees, and on the property of others; accordingly, StoneMor argues, the bench was removed pursuant to its rules and regulations regarding the care and maintenance of the cemetery. We conclude, therefore, that the dispute regarding the removal of the stone memorial bench relates to goods and services that *9 were the subject of the contract between Summers and StoneMor and that that dispute accordingly falls squarely within the scope of the arbitration clause contained in that contract.
IV.
StoneMor submitted evidence to the trial court showing that Summers had signed a contract containing language stating that "[i]f there is any dispute, concerning this agreement or any other matters relating to goods or services purchased from seller, purchaser or seller may elect to have the dispute resolved by arbitration," as well as evidence indicating that the transaction between them affected interstate commerce. Summers failed to refute that showing with evidence indicating that the arbitration clause in the contract was invalid or that it did not apply to the dispute that did in fact subsequently arise. Accordingly, the trial court erred by denying StoneMor's motion to compel arbitration, and its November 25, 2008, order is hereby reversed and the cause remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
COBB, C.J., and LYONS, BOLIN, and MURDOCK, JJ., concur.
NOTES
[1] Summers also argues that we should dismiss StoneMor's appeal for procedural reasons; first, because, she says, StoneMor failed to specifically reserve the right to appeal in its answer, and, second, because this appeal is moot because, she claims, she will be entitled to a default judgment when this case is remanded to the trial court. Summers cites no authority in support of these arguments, however, and what authority exists appears to refute them. Rule 4(d), Ala. R.App. P., explicitly recognizes that "[a]n order granting or denying a motion to compel arbitration is appealable as a matter of right," and, should StoneMor's appeal be successful, on remand the trial court's duty will be limited to compelling arbitration, not considering a motion for a default judgment. See Ex parte Queen, 959 So.2d 620, 621 (Ala.2006) (stating that, after a case is remanded, the trial court may enter no judgment other than the judgment directed by the reviewing court). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1644857/ | 994 So.2d 484 (2008)
James BEEBE, Appellant,
v.
Lillie R. ROMAN f/k/a Lillie R. Beebe, Appellee.
No. 5D08-441.
District Court of Appeal of Florida, Fifth District.
November 7, 2008.
Linda D. Schoonover, of Linda D. Schoonover, P.A., Lake Mary, for Appellant.
Paul Kwilecki, Jr., Daytona Beach, for Appellee.
EVANDER, J.
James Beebe timely appeals from a final judgment dissolving his marriage to Lillie R. Roman, f/k/a Lillie R. Beebe. He contends that the trial court's award of permanent periodic alimony to Lillie was based on an improper intent to "automatically" equalize the parties' net income. We disagree with James' characterization of the trial court's actions.
The parties were married for approximately 15½ years. At the time of the trial, James was 78 and Lillie was 74 years old. Both parties were retired. James' retirement income was less than $1,900 net/month. Lillie's only source of income was her social security benefits $459 net/month.
After equitably dividing the parties' limited assets, the trial court determined that Lillie was entitled to an award of permanent periodic alimony. This determination was made only after the trial court had made detailed findings as to the factors required to be considered, pursuant to sections 61.08(1) and (2), Florida Statutes (2007), prior to the award or denial of alimony. The trial court correctly rejected James' suggestion that Lillie did not need alimony because of the assistance she was temporarily receiving from her son.
In determining the alimony amount, the trial court observed that both parties had suffered "a substantial and dramatic reduction *485 in their standard of living as a result of the marital breakup" and that an equalization of their net incomes would place both parties "in an equal miserable situation of not having enough money to sustain the lifestyle that they both enjoyed during the course of the marital relationship."
An award of alimony that results in the equalization of income is not per se improper. See, e.g., Sonnenfeld v. Sonnenfeld, 954 So.2d 1279 (Fla. 5th DCA 2007); Naugle v. Naugle, 632 So.2d 1146 (Fla. 5th DCA 1994). An alimony award made after appropriately considering all of the factors set forth in section 61.08(2) will generally be upheld if the amount awarded is not arbitrary, fanciful, or unreasonable. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980); see also Matajek v. Skowronska, 927 So.2d 981, 986 (Fla. 5th DCA 2006). Contrary to James' assertions, this is not a case where the trial court appeared to erroneously believe that the purpose of alimony was to equalize individuals and their different earning capacities. See, e.g., Pirino v. Pirino, 549 So.2d 219 (Fla. 5th DCA 1989). Nor is this a case where the trial court appeared to consider only one or two of the statutory factors. See, e.g., Kennedy v. Kennedy, 622 So.2d 1033 (Fla. 5th DCA 1993). Rather, the record reflects that the trial court determined that an alimony amount that would result in the equalization of the parties' income was appropriate only after considering all of the factors set forth in section 61.08(2). Furthermore, we cannot conclude that the alimony amount awarded by the trial court constituted an abuse of discretion.
We do agree, however, with James' contention that the trial court made a mathematical error in determining James' net income. Correction of the error would result in an alimony award of $699.85/month, not $727.90/month. On remand, the trial court is directed to correct this error. The final judgment is otherwise affirmed.
AFFIRMED in part; REVERSED in part; REMANDED.
GRIFFIN and SAWAYA, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/988835/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5414
MARK CHRISTOPHER POE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, District Judge.
(CR-93-144)
Submitted: December 29, 1995
Decided: March 26, 1996
Before WIDENER, HAMILTON, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
William Houck Swan, III, SADLER & SWAN, Norfolk, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, Charles D. Grif-
fith, Jr., Special Assistant United States Attorney, Norfolk, Virginia,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Mark Christopher Poe appeals his conviction, after a jury trial, of
first-degree murder within the special maritime and territorial juris-
diction of the United States in violation of 18 U.S.C. §§ 7(3) & 1111
(1988). Poe contends that the district court erred when it allowed the
Government to present rebuttal evidence and that the scope of the
rebuttal evidence permitted was overly broad. Poe also contends that
the district court erred by denying his proffered jury instruction and
his motions for a continuance, change of venue, and for a bill of par-
ticulars. Poe does not challenge the sufficiency of the evidence pres-
ented against him at trial, but only these specific technical rulings
made by the district court. Finding no error, we affirm.
The facts of this case are especially brutal because the victim was
both dismembered and decapitated. Two witnesses observed Poe
throwing an Army-green duffle bag from a bridge into a lake. Fisher-
men later discovered the torso of the victim floating in the lake. The
local police searched the lake and recovered a green duffle bag with
the name of the victim's husband stenciled on the side. The victim's
head and arms were found later in another lake and several ditches.
At trial, the victim's husband identified the duffle bag as his.
Fibers recovered from the duffle bag were consistent with fibers
removed from the trunk of Poe's car, which, when tested, revealed the
presence of blood. A search of Poe's home revealed, among other
things, a knife that both the victim's husband and father identified as
belonging to the victim, and a strand of hair consistent with that of
the victim's within Poe's underwear.
Prior to trial, Poe submitted a newspaper clipping and a copy of an
investigative report conducted by the United States Navy, which he
contended amounted to recent, widespread and highly damaging pub-
licity in the local media and moved for a change of venue. Poe's
motion came before the potential jurors were subjected to voir dire
examination. On appeal, Poe contends that he established a reason-
able likelihood that the pretrial publicity would prevent his receiving
a fair trial without asserting that he was denied a fair trial as a result
2
of the pretrial publicity or of the denial of his motion for a change of
venue.
When a defendant seeks a change of venue, the trial court should
first resort to voir dire, absent extreme circumstances. United States
v. Bakker, 925 F.2d 728, 732 (4th Cir. 1991). In the most extreme
cases of prejudicial publicity, such as the publication of a confession
or if the publicity appears "inherently prejudicial," the court need not
await demonstration of actual prejudice and may grant a change of
venue without resorting to voir dire. Bakker, 925 F.2d at 732. The evi-
dence presented by Poe did not rise to the level of an extreme circum-
stance. We therefore find that the district court did not abuse its
discretion by denying Poe's motion for a change of venue and that
Poe did not thereby suffer a violation of due process.
Poe next asserts that the grand jury indictment was not framed with
sufficient specificity to enable him to prepare a proper defense or to
minimize the possibility of surprise at trial because his counsel had
to expend time and resources in order to ascertain the exact date and
time that Poe was alleged to have killed the victim. An indictment
must advise the defendant of the "nature and cause of the accusation
in order that he may meet it and prepare for trial and, after judgment,
be able to plead the record and judgment in bar of a further prosecu-
tion for the same offense." Wong Tai v. United States, 273 U.S. 77,
80-81 (1927); see United States v. American Waste Fibers Co., 809
F.2d 1044, 1046 (4th Cir. 1987). The district court denied Poe's
motion for a bill of particulars and held that Poe was on sufficient
notice to prepare a proper defense.
A motion for a bill of particulars functions to supply any essential
detail which may have been omitted from the indictment. United
States v. Anderson, 481 F.2d 685, 690 (4th Cir. 1973), aff'd, 417 U.S.
211 (1974). The disposition of a motion for a bill of particulars is left
to the sound discretion of the trial court; absent an abuse of that dis-
cretion, its ruling will not be disturbed on appeal. Id. However, a
defendant may show such an abuse of discretion by proving that he
suffered an unfair surprise during the trial. United States v. Jackson,
757 F.2d 1486, 1491 (4th Cir.), cert. denied, 474 U.S. 994 (1985); see
also United States v. West, 877 F.2d 281, 293 (4th Cir.) (absent sur-
prise there is no abuse of discretion in trial court's denial of a motion
3
for particulars), cert. denied, 493 U.S. 869, and 493 U.S. 959 (1989),
and 493 U.S. 1070 (1990).
Even though the indictment did not provide the exact time of day
or the precise location on the naval base that the offense occurred, it
did provide sufficient notice to prepare a proper defense, and was of
sufficient specificity to be used as proof to bar a subsequent prosecu-
tion for the same offense. Further, because there is no support for a
claim of unfair surprise and because Poe was fairly and adequately
apprised of the nature and the cause of the charges against him, the
district court did not abuse its discretion in denying Poe's motion for
a bill of particulars.
The district court also denied Poe's motion for a continuance. On
appeal, Poe asserts that the denial of this motion deprived him of the
opportunity to engage forensic experts and to have expert assistance
with his defense. This assertion is directly refuted by the record. At
least one month before trial the district court granted Poe's motion for
the appointment of a forensic expert. But five days before the trial
was expected to commence, Poe requested a continuance for the pur-
pose of locating an expert forensic odontologist to rebut evidence
anticipated to be presented by the Government.
Although the district court provided Poe with the names and loca-
tions of experts in the field of odontology to counter any potential sur-
prise to Poe, the Government did not introduce any odontological
evidence. Therefore, any error that may have resulted by failing to
grant Poe's motion for a continuance was harmless. Fed. R. Crim. P.
52(a).
Poe also alleges that the district court erred when it allowed the
Government to present rebuttal evidence describing the large number
of knives found within his residence. He contends that because these
weapons were not connected to the murder for which he was charged,
that the Government was merely attempting to depict him as a violent
person. The Government argued that the defense put the thoroughness
of the search into question by presenting testimony that a second
knife, identical to the one identified as belonging to the victim, was
within the residence and not recovered by the investigators.
4
The admission of rebuttal evidence is well within the sound discre-
tion of the trial court and is not reviewable on appeal absent an abuse
of that discretion. See Hospital Bldg. Co. v. Trustees of Rex Hosp.,
791 F.2d 288, 294 (4th Cir. 1986); Williams v. United States, 151
F.2d 736 (4th Cir. 1945). However, Poe does not allege, nor does the
record support, a finding that the trial court abused its discretion. We
find that the rebuttal evidence was properly admitted. The district
court did not abuse its discretion by permitting the jury to hear the
additional details of the precision of the search and by allowing them
to determine the persuasiveness and veracity of the testifying wit-
nesses.
Poe next claims that the district court erred by refusing his prof-
fered jury instruction on weaker or less satisfactory evidence. He con-
tends that the Government failed to present any direct evidence of his
involvement in the murder. The decision to give or not to give certain
jury instructions, and the contents of the given instruction, are
reviewed for abuse of discretion. United States v. Russell, 971 F.2d
1098, 1107 (4th Cir. 1992), cert. denied, 61 U.S.L.W. 3479 (U.S.
1993). We have found none. The jury was instructed at trial that they
were the sole judges of the weight of the presented evidence and the
instructions as a whole were proper.
As a final note, Poe submitted a pro se letter expressing concern
regarding the issues his counsel raised in this appeal. He contends that
his best interests are not his counsel's top priority. But, absent a
showing that the record conclusively demonstrates incompetence,
which is not shown here, any claims for ineffective assistance of
counsel can only be raised in a 28 U.S.C. § 2255 (1988) motion, and
not in a direct appeal. See United States v. DeFusco, 949 F.2d 114,
120 (4th Cir. 1991), cert. denied, 503 U.S. 997 (1992).
Finding no reversible error, we hereby affirm Poe's conviction for
first-degree murder. We dispense with oral argument because the
5
facts and legal contentions are adequately presented in the materials
before the Court and argument would not aid the decisional process.
AFFIRMED
6 | 01-03-2023 | 07-03-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/235591/ | 218 F.2d 692
55-1 USTC P 9206
The JEWEL SHOP OF ABBEVILLE, SOUTH CAROLINA, Appellant,v.R. C. PITTS, Acting Collector of Internal Revenue, Appellee.
No. 6910.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 11, 1955.Decided Feb. 3, 1955.
J. Alex Neely, Jr., Anderson, S.C. (H. B. Moorhead, Anderson, S.C., on brief), for appellant.
Carolyn R. Just, Sp. Asst. to Atty. Gen., Washington, D.C. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack and A. F. Prescott, Sp. Assts. to Atty. Gen., Washington, D.C., Joseph E. Hines, U.S. Atty., Spartanburg, S.C., and W. A. Bull, Asst. U.S. Atty., Greenville, S.C., on brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
1
This suit was brought by the Jewel Shop of Abbeville, a South Carolina corporation, to secure an injunction prohibiting the Collector of Internal Revenue for the South Carolina District of the United States from collecting by distraint or otherwise, excise taxes on the sale of goods, with fraud penalties and interest, for the years ending on June 30 in 1947, 1948 and 1949 respectively, as assessed by the Commissioner of Internal Revenue. The taxpayer also prayed that the court determine the amount of the excise tax, income tax, penalties and interest, if any, due by the taxpayer to the United States, and that the court appoint a receiver to take over the assets and operate the business of the taxpayer pendente lite. A proceeding involving the taxpayer's income tax liability for the three taxable years was then pending in the Tax Court and was continued pending the outcome of the instant suit.
2
The prayer for injunction was based on allegations of the complaint that the taxpayer owed no excise taxes for the years in question and had not defrauded the United States, and that the proposed assessment of taxes by the Collector would deny the taxpayer the opportunity to contest the taxes since the taxpayer was unable to give bond for a stay, and that the enforcement of the assessment would result in the destruction of the good will and the sacrifice of the physical assets of the corporation.
3
The Collector filed a motion to dismiss the suit on the ground that the court was without jurisdiction to enjoin the collection of the taxes because it is provided by statute, 26 U.S.C. § 3653(a), that with certain exceptions not here relevant, no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court; but the court denied the motion, issued an injunction pendente lite and appointed a receiver with power to preserve the property and collect the accounts receivable of the corporation, but without power to operate the business.
4
The receiver was also appointed as special master with power to hear all questions of law and fact, and to determine all equities and taxes, penalties and interest due by and between the parties. The special master held hearings and took testimony at which witnesses on both sides were introduced and it was brought out that the books and records of the taxpayer were inadequate; that there were discrepancies between the taxpayer's bank accounts and its records of sale; that there were numerous alterations in the books as to the cost of goods which could not be satisfactorily explained, and that shipments of merchandise without payment of tax were made from the taxpayer's Abbeville store to jewelry stores in other cities owned by corporations in which stockholders of the taxpayer corporation were interested, and that the most active official in charge of the taxpayer's business had misappropriated a large sum of money on unreported sales from one of said stores.
5
From all the testimony and evidence in the case the special master found that the books and records of the taxpayer were inadequate for the purpose of preparing accurate returns and did not correctly reflect the sales of the business. He further held that the method used by the Commissioner in computing the sales and excise tax was reasonably proper and appropriate; and that the sales were understated on the taxpayer's returns so that the taxpayer was guilty of fraud, with intent to evade the taxes.
6
The special master reached the conclusions of law that the court was without jurisdiction to adjudicate the income tax liabilities of the plaintiff, that the assessment of the deficiency of excise tax and penalties was proper, and that the order restraining the Collector from collecting the taxes, penalties and interest should be set aside and that the complaint should be dismissed. The District Court by order adopted the findings of fact and conclusions of law of the special master. The taxpayer has appealed from this order, and also from a subsequent order denying the taxpayer's motion to require the receiver to pay the expenses of the appeal.
7
We think that the procedure of the District Court cannot be sustained for the reason that the court was without power to issue the injunction or to determine the amount of either the excise taxes or income tax under the circumstances of the case. In a number of decisions we have had occasion to discuss the underlying philosophy of the federal statutes which deny to the courts the power to restrain the assessment or collection of federal taxes and provide a complete system of corrective justice in regard to all taxes imposed by the federal government. See Milliken v. Gill, 4 Cir.,211 F.2d 869; Shelton v. Gill, 4 Cir., 202 F.2d 503; Yoke v. Mazzello, 4 Cir., 202 F.2d 508. The statute prohibiting interference by the courts in tax matters may be relaxed in particular cases under extraordinary and entirely exceptional circumstances, but as we have held, a claim on the part of the taxpayer that he does not owe a tax, or that it has been illegally and improperly assessed, or that the collection of the tax will result in hardship, does not constitute ground for the issuance of an injunction. If it were not so, the whole scheme of federal tax enforcement would be frustrated. This is demonstrated in the pending case by the conclusion of the court based on the testimony that the taxpayer had suffered no wrong at the hands of the government.
8
The court in the pending case had the power to entertain the suit of the taxpayer for an injunction in order to determine whether there were extraordinary circumstances justifying the relief, but under the allegations of the complaint he should have granted the motion of the Collector to dismiss. The final orders of the District Court setting aside the injunction restraining the collector from proceeding with the collection of the excise tax and refusing to order the receiver to pay the expenses of this appeal were correct. The conclusion of the court that it was without power to adjudicate the income tax liability of the taxpayer was also correct; but the order of the court must be reversed insofar as it relates to the appointment of the receiver and purports to determine the amount of the excise and income taxes due. The case will be remanded to the District Court with direction to revoke the appointment of the receiver after an accounting, and to dismiss the complaint without prejudice to the right of the taxpayer to litigate its tax obligations in a proper forum.
9
Modified. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/235154/ | 217 F.2d 187
103 U.S.P.Q. 289
Dr. Nicholas C. STREY,v.DEVINE'S, Inc.
No. 11117.
United States Court of Appeals, Seventh Circuit.
Nov. 5, 1954.Rehearing Denied Dec. 18, 1954.
Nicholas C. Strey, R. W. Marrow, Chicago, Ill., for appellant.
Henry Junge, James McKeag, Chicago, Ill., Richard G. Bodenstab, Chicago, Ill., for defendant-appellee.
Before DUFFY, Chief Judge, and MAJOR and SWAIM, Circuit Judges.
DUFFY, Chief Judge.
1
This is an action for trade-mark infringement and unfair competition. The trial court found the issues favorable to the defendant and judgment was entered dismissing the complaint.
2
Plaintiff's complaint alleged that for many years last past he has been engaged in the manufacture, sale and distribution of various creams for relief in treating sore, tired and perspiring feet, and also, for eczema or ringworm, insect bites and other related ailments; that for the purpose of identifying said products as having their origin with plaintiff, about March, 1931, he adopted and commenced the use of the trade-mark 'Kule-Fut' in connection with a pictorial illustration of a human foot on top of a cake of ice.
3
In March, 1951, plaintiff applied to the United States Patent Office for registration of his trade-mark but on November 2, 1951, the Examiner rejected said application for the Principal Register because the trade-mark was dominated by unregisterable material.1 Thereafter, plaintiff requested that his application be modified and he applied for registration upon the Supplemental Register which was granted September 9, 1952, and the product was listed in Class 18-- Medicines and pharmaceutical appliances.
4
Since 1947 the defendant has produced and distributed in interstate commerce a cream under the trade name 'Devine's Kool-Foot Cream'. However, for a period from 1941 to about 1951 the defendant did offer a foot cream product through a retail outlet in Detroit, Michigan, under the name of 'Kule-Fut'. Defendant claimed, and the trial court so found, that during said period it had no knowledge of plaintiff's trade-mark or the use of the words 'Kule-Fut' by plaintiff to designate his product, and that defendant sold its product only through one retail outlet in the Detroit area where the plaintiff did not operate. The District Court found, as a fact, that there was no competition between the plaintiff and defendant in the Detroit area.
5
The jars in which plaintiff's and defendant's products are respectively marketed are not similar in appearance. Plaintiff's jar is of a larger diameter and of lesser height, and black is the prevailing color. Most of the printed words on the label are in white lettering. However, the words 'Kule-Fut' appearing on a representation of a block of ice are in blue letters. In defendant's jar the prevailing colors are light blue and white, but the words 'Devine's Kool-Foot' appear prominently in red letters on the jar label and on the cover of the jar. The only similarity is that the words 'Kule-Fut' and 'Kool-Foot' have identical pronounciations.
6
At the trial defendant's counsel contended that the issue of unfair competition could not be considered by the court because there was no diversity of citizenship between the parties to this action. This contention is too broadly stated. Title 28 U.S.C.A. § 1338(b) provides: the 'district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent or trade-mark laws.'
7
Thus, the District Court's jurisdiction of plaintiff's claim of unfair competition existed to the limited extent that it is 'related' to his claim of trade-mark infringement. Federal jurisdiction was only obtained in this case by reason of the registration of plaintiff's trade-mark. The principle involved is well stated in Landstrom v. Thorpe, 8 Cir., 189 F.2d 46, 51, 26 A.L.R.2d 1170, certiorari denied 342 U.S. 819, 72 S.Ct. 37, 96 L.Ed. 620: '* * * For such a claim to be 'related' to a case arising under the trade-mark law within the meaning of the statute 'it must appear that both federal and nonfederal causes (of action) rest upon substantially identical facts.' French Renovating Co. v. Ray Renovating Co., 6 Cir., 170 F.2d 945, 947; Hurn v. Oursler, 289 U.S. 238, 248, 53 S.Ct. 586, 77 L.Ed. 1148; Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 325, 59 S.Ct. 191, 83 L.Ed. 195; Kaplan v. Helenhart Novelty Corporation, 2 Cir., 182 F.2d 311; Hanson v. Triangle Publications, Inc., 8 Cir., 163 F.2d 74, certiorari denied, 332 U.S. 855, 68 S.Ct. 387, 92 L.Ed. 424.
8
'Damages resulting from the wrongful registration of the trade-mark and for unfair competition must necessarily be proven by the same evidence.' It follows that the District Court did have jurisdiction as to any acts of the defendant which may have constituted unfair competition providing that same occurred on or after September 9, 1952, the date of the registration of plaintiff's trade-mark.
9
One of the reasons that the District Court denied relief to plaintiff was that he came into court with unclean hands. Plaintiff was not a licensed physician. Although he was licensed as a chiropodist and a chiropractor he was not authorized, under Illinois law, to use the designation 'Dr.' (doctor) as a part of his title. The court found that the plaintiff represented the cream manufactured by him to be a treatment for various bodily ailments other than those of the feet, thus constituting said cream a drug and that he led purchasers to believe that an application of the cream is a treatment prescribed by a physician. The District Court held that the misrepresentation on the labels used on the jars of cream sold by him, both in using the title 'Dr.' and in prescribing his Kule-Fut cream as treatment for the ailments specified, were material in character.
10
An important element under the trade-mark law and the law of unfair competition is that the public should be protected from fraud and deceit. This court stated in Stahly, Inc. v. M. H. Jacobs Co., 183 F.2d 914, 917: 'It must be remembered that the trade-mark laws and the law of unfair competition are concerned not alone with the protection of a property right existing in an individual, but also with the protection of the public from fraud and deceit, Stork Restaurant, Inc. v. Sahati, 9 Cir., 166 F.2d 348, 354; Rosenberg Bros. & Co v. Elliott, 3 Cir., 7 F.2d 962, 965, 966; General Baking Co. v. Gorman, 1 Cir., 3 F.2d 891, 893; Goldwyn Pictures Corp. v. Goldwyn, 2 Cir., 296 F. 391, 401, and it is obvious that the right of the public to be so protected is a right which transcends the rights of the individual trade-mark owner and is beyond his power to waive.'
11
It is well established that a court of equity may deny relief for infringement of a trade-mark where plaintiff misrepresents the nature of his product. This principle is well stated in Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 494, 62 S.Ct. 402, 406, 86 L.Ed. 363, where the court said: '* * * equity will deny relief for infringement of a trademark where the plaintiff is misrepresenting to the public the nature of his product either by the trademark itself or by his label. Manhattan Medicine Co. v. Wood, 108 U.S. 218, 2 S.Ct. 436, 27 L.Ed. 706; Worden & Co. v. California Fig Syrup Co., 187 U.S. 516, 23 S.Ct. 161, 47 L.Ed. 282; Leather Cloth Co. v. American Leather Cloth Co., 11 H.L.Cas. 522, 541-45; * * *. The patentee, like those other holders of an exclusive privilege granted in the furtherance of a public policy, may not claim protection of his grant by the courts where it is being used to subvert that policy.'
12
The District Court also found that although plaintiff's product contained more than two ingredients the label used by plaintiff did not list same as required by sec. 201(g) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 321(g). It seems clear that plaintiff's Kule-Fut cream constituted a 'drug' under the Act since it was an article 'intended for use inthe diagnosis, cure, mitigation, treatment, or prevention of disease in man * * *.' The 'high purpose' of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq., is to protect consumers. Kordel v. United States, 335 U.S. 345, 349, 69 S.Ct. 106, 93 L.Ed. 52; United States v. Sullivan, 332 U.S. 689, 696, 68 S.Ct. 331, 92 L.Ed. 297. The protection of the public under the Act involves the public interest in a high degree.
13
We hold the misrepresentations made by plaintiff in the use of his trade-mark and the misbranding of his cream in violation of the Federal Food, Drug, and Cosmetic Act were sufficient reasons for the District Court to deny him any relief.
14
We also hold that the District Court was correct in finding that there was no evidence of unfair competition after September 9, 1952. If follows that the complaint was properly dismissed.
15
Affirmed.
1
'Registration on the Principal Register is refused for the reason that the mark is dominated by unregisterable material, namely, the possessive form of the surname 'Strey'; the descriptive elements 'Kule-Fut', the phonetical equivalent of 'cool-foot'; the generic word 'cream' and the representation of the foot, the latter two features already having been disclaimed.' | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/235622/ | 218 F.2d 806
Freddie BRANT, Appellant,v.UNITED STATES of America, Appellee.
No. 14959.
United States Court of Appeals, Fifth Circuit.
Jan. 25, 1955.
Freddie Brant, in pro. per.
Richard C. Baldwin, Asst. U.S. Atty., New Orleans, La., George R. Blue, U.S. Atty., New Orleans, La., for appellee.
Before HUTCHESON, Chief Judge, BORAH, Circuit Judge, and DAWKINS, District Judge.
PER CURIAM.
1
By his motion to vacate sentence and by this appeal from an order denying the motion, appellant seeks in part the relief he sought and whch was denied him by the district judge on November 4, 1952, and by this court on appeal in No. 145711 on the docket of this court, to obtain a new trial on the ground of newly discovered evidence. In addition he seeks to set the sentence aside on these grounds: (1) that he was deprived of his constitutional right to counsel by being required to plead to an indictment without the assistance of counsel of his own choosing or appointed by the court; (2) that he did not intelligently waive counsel; (3) that he did not understand the nature and effect of his plea; and (4) that he was ill when required and permitted to plead.
2
The district judge denied2 petitioner's motion, and petitioner, appealing from that order, is here urging upon us, in the face of his and his co-defendant Redmon's written confession and the minute entry of their arraignment and plea of guilty3 showing that each signed a written waiver of counsel and entered a plea of guilty to each count of the indictment after each count had been read, that this was not a case, as found by the district judge, where the files and records conclusively show that the appellant is not entitled to the relief asked.
3
We cannot agree with this view. On the contrary, we are in no doubt, upon the basis of the record that the district judge was right in not permitting defendant, after he had served his sentence in the state court and was serving, or about to enter upon the service of, his federal sentence, in effect to withdraw his plea of guilty and enter a plea of not guilty merely because, more than four years after defendant had pleaded guilty, he comes in with a motion in which he now denies what he formerly affirmed.
4
The ordered was right. It is affirmed.
1
Brant v. U.S. 210 F.2d 470
2
The order read as follows:
'This matter is before the Court on the prisoner's motion to vacate sentence, motion to produce petitioner in court, motion to be a witness in his own behalf, motion for leave to subpoena witnesses, and motion for speedy trial.
'The motion to vacate sentence and the files and records of the case, conclusively show that the prisoner is entitled to no relief, and said motion is denied.
'The motion to vacate sentence being denied, the remaining motions are, also, denied.
'This prisoner previously filed a motion for leave to withdraw his plea of guilty and enter a plea of not guilty, and a motion for new trial based on newly discovered evidence. Those motions, were, on Nov. 48 1952, denied by this court for reasons fully set forth by the Court at that time. The prisoner appealed from the rulings on those motions, and the matter is now pending before the Court of Appeals for this Circuit.'
3
Arraignment:
'Mr. Schulingkamp: What is your name?
'Defendant Brant: Freddie Brant.
'Mr. Schulingkamp: Are you Don Redmon?
'Defendant Redmon: Yes, sir.
'Mr. Schulingkamp: Are you represented by an attorney today in Court?
'Defendant Redmon: No, sir.
'Mr. Schulingkamp: It is my duty to advise you, under the Constitution and laws of the United States every defendant who is charged with a federal offense is entitled to be represented by a lawyer. If you don't have the money to employ an attorney to represent you the Court, on a proper showing to that effect, will appoint counsel for you. However, this is not necessary and you may handle your own case if you so wish. What are your wishes in the matter?
'Defendant Brant: I wish to handle my own case.
'Defendant Redmon: I wish to waive it.
'Mr. Schulingkamp: Waive counsel?
'Defendant Redmon: Yes.
'Mr. Schulingkamp: Would you read and sign this Waiver?'
(Both defendants read and sign Waiver of assistance of Counsel.)
'Mr. Schulingkamp: You are charged jointly in an indictment in two counts as follows: (Count one was then read to them in full) To Count 1, Brant, how do you plead?
'Defendant Brant: Guilty.
'Mr. Schulingkamp: Redmon, how do you plead?
'Defendant Redmon: Guilty, sir.
'Mr. Schulingkamp: You are charged in Count 2 of the same indictment, as follows: (Count two was then read) To count 2, Brant, how do you plead? Guilty or Not Guilty?
'Defendant Brant: Sir, I plead 'Guilty' on that count with an explanation.
'The Court: All right. You will have a chance to make a statement.
'Mr. Schulingkamp: Redmon, how do you plead to that count?
'Defendant Redmon: 'Guilty'.' | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/694620/ | 53 F.3d 43
1995 A.M.C. 1904
Sherri D. WHITE, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
No. 94-2286.
United States Court of Appeals,Fourth Circuit.
Argued March 6, 1995.Decided May 9, 1995.
ARGUED: Alan Patrick Owens, Norfolk, VA, for appellant. Timothy Ross Lord, Trial Atty., Admiralty Section, Civ. Div., U.S. Dept. of Justice, Washington, DC, for appellee. ON BRIEF: Frank W. Hunger, Asst. Atty. Gen., Helen F. Fahey, U.S. Atty., David V. Hutchinson, Asst. Director, Admiralty Section, Civ. Div., U.S. Dept. of Justice, Washington, DC, for appellee.
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
Reversed and remanded by published opinion. Judge WILLIAMS wrote the opinion, in which Judge MICHAEL and Judge MOTZ joined.
OPINION
WILLIAMS, Circuit Judge:
1
Appellant Sherri D. White appeals the dismissal of her suit for lack of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. White asserts that the district court was properly vested with admiralty jurisdiction pursuant to 28 U.S.C. Sec. 1333 (1988) and the Extension of Admiralty Jurisdiction Act, 46 U.S.C.App. Sec. 740 (1988) (Extension Act). Specifically, White contends that she properly pled district court jurisdiction under Sec. 1333 because the injury for which she seeks damages occurred within the navigable waters of the United States. White further contends that she perfected the jurisdiction of the district court under the Extension Act by submitting a Freedom of Information Act (FOIA) request to the captain of the USNS Henry J. Kaiser (Kaiser) prior to filing suit. The district court found that jurisdiction was proper only under the Extension Act, but because White had failed to file a claim as required by the Act, she was not entitled to bring suit. The court, therefore, dismissed White's claim for lack of subject matter jurisdiction. Because the district court erred in declining jurisdiction under traditional admiralty law, we reverse and remand for further proceedings.
I.
2
When reviewing a district court's grant of a Rule 12(b)(1) motion to dismiss, we must assume the truth of the material facts as alleged in the complaint. Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 325, 111 S. Ct. 1842, 1844-45, 114 L. Ed. 2d 366 (1991). On March 7, 1992, the USNS Henry J. Kaiser, a public vessel of the United States, was docked alongside a pier while undergoing repairs at the naval base in Norfolk, Virginia, pursuant to a contract between the United States Navy and Marine Hydraulics International, Inc. (MHI). White was a security guard employed by J & S Security, a subcontractor hired by MHI to provide security for the vessel. Later that day, pursuant to her employment as a security guard, White disembarked the vessel. Upon stepping onto a small wooden platform at the end of the gangway, she lost her balance, stumbled, and ultimately collided face first with equipment stored near a building on the pier. White sustained numerous injuries including a fractured nose.
3
By letter dated March 15, 1993, White's attorney, Alan Owens, forwarded a FOIA request to the Captain of the Kaiser. In the letter, Owens requested "documents and records pursuant to the provisions of the Freedom of Information Act, 5 U.S.C. Sec. 552 et seq." (J.A. 38.) Although Owens did not indicate any intention to file a claim based on White's accident, he did state:
4
As attorney for Sherri D. White, a Security guard, who was injured aboard the USNS HENRY KAISER on March 7, 1992 while the vessel was docked at Norfolk, Virginia. [sic] I am requesting documents and records relating to her injury sustained aboard the vessel on that date. I am advised that she fell while descending the gangway because of the defective condition of the gangway.
5
Id. The request was forwarded to the Office of Counsel for the Military Sealift Command, Atlantic (MSC), which responded by letter dated March 29, 1993. This letter enclosed a copy of the handwritten ship's log entry describing the incident:
6
0011 Offgoing J & S security guard White, Sheri[sic] slipped on the bottom step of the gangway (wooden step) in the rain. She then continued to slip across the pier and finally hit her nose against the gangway ( [illegible] which is against the shed on the pier (ie: not the ship's gangway). The cut on her nose was about 1/2 inch across the crook.
7
(J.A. 43.) Other than the FOIA request and the MSC response, the record reflects no other correspondence prior to the filing of the complaint.
8
On February 2, 1994, White filed a complaint against the United States in federal district court to which the United States filed an answer on April 6, 1994. Shortly thereafter, the United States moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1). Following briefing on the jurisdictional questions, the district court dismissed White's case for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). White timely appeals.
II.
9
We review de novo the district court's dismissal of a complaint for failure to establish subject matter jurisdiction. Ahmed v. United States, 30 F.3d 514, 516 (4th Cir.1994).
10
The authority of federal courts to hear cases in admiralty stems directly from the Constitution, which extends federal judicial power "to all Cases of admiralty and maritime Jurisdiction." U.S. Const. art. III, Sec. 2; Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., --- U.S. ----, ----, 115 S. Ct. 1043, 1047, 130 L. Ed. 2d 1024 (1995). Congress has codified this power, vesting in the federal district courts original and exclusive jurisdiction over "[a]ny civil case of admiralty or maritime jurisdiction." 28 U.S.C. Sec. 1333(1).
11
With respect to torts involving vessels, admiralty jurisdiction is confined to actions that satisfy conditions both of location and connection with maritime activity. Grubart, --- U.S. at ----, 115 S. Ct. at 1048; Sisson v. Ruby, 497 U.S. 358, 362, 110 S. Ct. 2892, 2895-96, 111 L. Ed. 2d 292 (1990); David Wright Charter Serv., Inc. v. Wright, 925 F.2d 783, 784 (4th Cir.1991); Foster v. Peddicord, 826 F.2d 1370, 1374 (4th Cir.1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988). Thus, as most recently articulated by the Supreme Court, to satisfy the location test, the tort must occur on navigable waters, or, if suffered on land, at least be caused by a vessel on navigable water. Grubart, --- U.S. at ----, 115 S. Ct. at 1048 (citing Sisson, 497 U.S. at 362, 110 S.Ct. at 2895).1 Additionally, in order to meet the requisite connection test, the facts giving rise to the wrong must bear a sufficient connection to maritime activity. Id. This inquiry requires that the court first determine whether "the general features of the type of incident involved" have "a potentially disruptive impact on maritime commerce," and second, "whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity." Id. (quoting Sisson, 497 U.S. at 365, 364 n. 2, 110 S. Ct. at 2897, 2896 n. 2) (quotation marks omitted). The district court did not reach the connection test, however, because it found no jurisdiction solely on the basis of its location analysis.
III.
12
The first issue we confront is whether, applying the traditional locality test for admiralty tort jurisdiction, the district court properly dismissed White's complaint because her actual injury was not sustained on navigable waters. Urging affirmance of the district court's dismissal, the Government argues that White's injury occurred on the pier because she was injured only after she stepped onto the platform placed at the end of the gangway, lost her balance, and struck her nose on equipment stored on the pier. The pier, the government argues, is an extension of the land. Thus, the tort in the instant case did not occur on navigable waters and fails the locality test. White, however, contends that the jurisdictional facts of this case are governed by the Supreme Court's decision in The Admiral Peoples, 295 U.S. 649, 55 S. Ct. 885, 79 L. Ed. 1633 (1935).2 In support of her position, White characterizes the instant appeal as another factual permutation of the many gangway cases we have considered since Admiral Peoples, both prior to and following the enactment of the Admiralty Extension Act of 1948. We agree.3
13
It is well established that traditional maritime law encompasses the gangway. The Admiral Peoples, 295 U.S. 649, 55 S. Ct. 885, 79 L. Ed. 1633; Russell v. City Ice & Fuel Co., 539 F.2d 1318, 1320 (4th Cir.1976); Florida Fuels, Inc. v. Citgo Petroleum Corp., 6 F.3d 330, 332 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S. Ct. 1400, 128 L. Ed. 2d 73 (1994); Tullis v. Fidelity & Casualty Co., 397 F.2d 22 (5th Cir.1968); O'Keeffe v. Atlantic Stevedoring Co., 354 F.2d 48, 50 (5th Cir.1965). In The Admiral Peoples, the Supreme Court confronted facts substantially identical to those in the instant case. There, a disembarking passenger was injured by falling from a gangplank leading from the vessel to the dock. 295 U.S. at 650, 55 S.Ct. at 886. The level of the plank at the shore end was about six inches above the level of the dock, creating a step from which plaintiff fell, suffering serious injury. Id. at 650-51, 55 S.Ct. at 886. The only notable difference distinguishing our facts from those in The Admiral Peoples is the presence of a wooden platform to bridge the gap between the gangplank and the dock. This record reflects that upon stepping from the gangway to the wooden platform, White lost her balance and collided face first with equipment stored near a building on the pier.
14
Federal admiralty jurisdiction extends to the means of ingress and egress, including but not limited to the gangway of a vessel in navigable waters. Russell, 539 F.2d at 1320. As part of the means of ingress and egress, the platform upon which White stepped from the gangway to the dock falls within the navigable waters of the United States for the purpose of determining the location of the tort in question. Id. Furthermore, for jurisdictional purposes, we look to the place where the accident which ultimately gave rise to the cause of action was "initiated." Whittington v. Sewer Const. Co., 541 F.2d 427, 432 (4th Cir.1976); Higgins v. Leland, 839 F. Supp. 374, 375 (D.S.C.1993). The mere fortuitous circumstance that White's injuries were suffered on the pier rather than on the gangplank platform does not remove the incident from navigable waters. Cf. Whittington, 541 F.2d at 432-33. Thus, the district court erred in determining that the events giving rise to White's injury did not satisfy the locality test.
IV.
15
Because the district court found that White's injury did not satisfy the locality test, it failed to proceed to the next step and consider whether White satisfied the connection test as articulated by the Supreme Court in Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 268, 93 S. Ct. 493, 504, 34 L. Ed. 2d 454 (1972), and recently restated in Grubart, --- U.S. at ----, 115 S. Ct. at 1048. Given the jurisdictional facts in the record and the applicable de novo standard of review, Ahmed, 30 F.3d at 516, we now examine whether White has shown the requisite maritime connection.
A.
16
The first issue we confront is whether the incident giving rise to this appeal has the potential to disrupt maritime commerce. Grubart, --- U.S. at ----, 115 S. Ct. at 1050. In characterizing the facts of this case, we must, like the Supreme Court in Grubart, describe the incident at an intermediate level of generality. Id. at ----, 115 S.Ct. at 1051. Thus, we look to the general features of White's mishap and inquire whether it falls "within a class of incidents that pose[ ] more than a fanciful risk to commercial shipping." Id. The facts reflect that the Kaiser, a public vessel of the United States, was docked alongside a pier at the naval base in Norfolk, Virginia, while undergoing repairs pursuant to a contract between the United States Navy and MHI. White, a security guard, disembarked the vessel and upon stepping onto a small wooden platform at the end of the gangway, lost her balance and collided with equipment stored near a building on the pier.
17
The general features of this incident may be described as injury to a person disembarking from a vessel in navigable water. Viewed in this light, it is apparent that an inability safely to avail oneself of the gangway and its appurtenances would greatly inhibit a variety of activities essential to commercial shipping, more specifically loading, resupply, and the coming and going of crew and contractors. Although these particular facts involved a guard contracted to secure the vessel during repairs, we believe that an unsafe means of egress poses a more than fanciful risk to a variety of activities essential to maritime commerce.
B.
18
The second factor we must examine is "whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity." Grubart, --- U.S. at ----, 115 S. Ct. at 1051. The Supreme Court has confronted the substantial relationship issue on several occasions. The court has held that swimming or crashing an airplane in navigable waters presented too attenuated a relationship to traditional maritime activity. Executive Jet, 409 U.S. at 258, 93 S.Ct. at 499. On the other hand, repair or maintenance work performed from a vessel on a navigable waterway, Grubart, --- U.S. at ----, 115 S. Ct. at 1051, navigation of noncommercial vessels within navigable waters, Foremost Ins. Co v. Richardson, 457 U.S. 668, 675, 102 S. Ct. 2654, 2658, 73 L. Ed. 2d 300 (1982), and storage and maintenance of a vessel at a marina within navigable waters, Sisson, 497 U.S. at 366-67, 110 S.Ct. at 2898, each bear a substantial relationship to traditional maritime activity. Grubart, --- U.S. at ----, 115 S. Ct. at 1051. Although none of these cases involves providing security to vessels in port, the storage and repair of a vessel at a marina on navigable waters is "a common, if not indispensable, maritime activity." See Sisson, 497 U.S. at 367, 110 S.Ct. at 2898. Similarly, it is reasonable to conclude that the on-board security attending the storage and repair of a vessel in port is a common, if not indispensable, feature of maritime activity. Here, the Kaiser was docked alongside a pier at the naval base while undergoing repairs. White had been retained to guard the vessel while in port. Her presence on the Kaiser, while adding a novel factual component to the events giving rise to this appeal, does not diminish the substantial relationship established by the vessel's presence in port for repairs.
C.
19
Given the importance of a safe means of ingress and egress for any vessel in port, the general features of White's gangway mishap have a potentially disruptive impact on maritime commerce. Furthermore, the general character of the security services provided to the ship during repairs demonstrates a substantial relationship to traditional maritime activity. We, therefore, conclude that White's guarding of the Kaiser during its repairs in port provides yet another example of conduct sufficiently connected to traditional maritime activity to confer jurisdiction on the federal courts.
V.
20
In conclusion, we find that the district court erroneously dismissed White's complaint for lack of subject matter jurisdiction. Furthermore, upon review of the record, we conclude as a matter of law that not only was the locality test for traditional admiralty jurisdiction satisfied, but the facts giving rise to the wrong bear a sufficient connection to maritime activity. Thus, the district court is properly vested with admiralty jurisdiction to reach the merits of White's claim. Accordingly, we reverse and remand for further proceedings consistent with this opinion.4
21
REVERSED AND REMANDED.
1
The second clause of this sentence reflects the incorporation by the Supreme Court of the Extension Act, 46 U.S.C.App. Sec. 740. Although discussed together with traditional admiralty jurisdiction in Grubart, the Extension Act requires a plaintiff to submit written notice to the federal agency operating the vessel causing the injury or damages six months prior to filing suit against the United States. Claims arising from a "tort occur[ing] on navigable water" under traditional admiralty jurisdiction are not subject to this notice requirement. Grubart, --- U.S. at ----, 115 S. Ct. at 1048
2
The district court, rather than looking to the rule of Admiral Peoples and its numerous progeny in both the Supreme Court and various circuit courts, relied on a footnote in a case from the Ninth Circuit Court of Appeals. (J.A. 48 (citing Roberts v. United States, 498 F.2d 520, 523 n. 3 (9th Cir), cert. denied, 419 U.S. 1070, 95 S. Ct. 656, 42 L. Ed. 2d 665 (1974))). Aside from its lack of authority in this circuit, the facts of Roberts are clearly distinguishable from those before us today. Roberts was a wrongful death action arising from the crash of a cargo plane in navigable waters short of the runway at Naha Airbase, Okinawa. Id. at 522. Furthermore, the Ninth Circuit clearly limited its holding to defining "a 'maritime tort' in the aviation context," a recurring issue in admiralty jurisdiction but not a question before us today. Id. at 523
3
Thus, we lay to rest any notion that the rule of The Admiral Peoples extending admiralty jurisdiction to the gangplank is no longer good law following the enactment of the Extension Act in 1949. See Russell v. City Ice & Fuel Co., 539 F.2d 1318, 1320 & n. 2 (4th Cir.1976) ("[t]his warranty of means of ingress and egress includes a gangway by whomever owned or controlled when supplied for such a purpose"); Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303, 1306 (9th Cir.1970) (admiralty tort jurisdiction traditionally "bounded by locality" now expanded by Extension Act); Florida Fuels, Inc. v. Citgo Petroleum Corp., 6 F.3d 330, 332 (5th Cir.1993) (traditional maritime law encompasses the gangway), cert. denied, --- U.S. ----, 114 S. Ct. 1400, 128 L. Ed. 2d 73 (1994); Romero Reyes v. Marine Enters., 494 F.2d 866, 869-70 (1st Cir.1974) (shipowner's duty of care extends to gangway); Tullis v. Fidelity & Casualty Co., 397 F.2d 22, 24 (5th Cir.1968) (citing The Admiral Peoples for the proposition that a "gangplank is considered a part of the ship so that injuries which occur thereon are within admiralty jurisdiction")
4
Because we find that the district court was properly vested with jurisdiction under traditional admiralty principles, we need not determine whether the district court properly rejected Extension Act jurisdiction by finding that a FOIA request does not satisfy the notice requirement of the Extension Act | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/583633/ | 964 F.2d 478
PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE CO.,Plaintiff-Appellant, Cross-Appellee,v.KITTY HAWK AIRWAYS, INC., and Jeffrey Thomason Pollard,Defendants-Appellees, Cross-Appellants.
No. 91-1123.
United States Court of Appeals,Fifth Circuit.
June 30, 1992.Rehearing and Rehearing En BancDenied Aug. 3, 1992.
Brent Cooper, Michael W. Huddleston, and Scott Whisler, Cowles and Thompson, Dallas, Tex., for plaintiff-appellant, cross-appellee.
Ralph C. Jones and B. Scott Kruka, Carter Jones Magee Rudberg & Mayes, Dallas, Tex., for Jeffrey T. Pollard.
Arthur K. Smith and Mark Alan Calhoun, Calhoun Gump Spillman & Stacy, Dallas, Tex., for Kitty Hawk Airways, Inc.
Appeals from the United States District Court for the Northern District of Texas.
Before DAVIS, JONES, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
1
Insurer Pennsylvania National Mutual Casualty Insurance Co. ("Pennsylvania National") appeals a grant of summary judgment in favor of its insured--Kitty Hawk Airways, Inc. ("Kitty Hawk")--and Kitty Hawk's former employee, Jeffrey Thomason Pollard. The district court granted Kitty Hawk's motion for summary judgment on the grounds that Pennsylvania National is estopped from raising a defense of non-coverage by its assumption and continuation of Kitty Hawk's defense for more than one year before raising a reservation of its rights. Finding that the doctrines of estoppel and waiver do not apply, we reverse the portion of the district court's judgment holding that Pennsylvania National is estopped from denying coverage and render judgment in favor of Pennsylvania National on its non-coverage claim.
2
* Kitty Hawk is the named insured of a policy issued by Pennsylvania National providing personal injury liability coverage--including coverage for any liability resulting from defamatory statements made in the course of Kitty Hawk's business.1 However, "Exclusion (c)" of that policy explicitly excludes "personal injury sustained by any person as a result of an offense directly or indirectly related to the employment of such person by the named insured...." Id. (emphasis in original).
3
Pursuant to this policy, Pennsylvania National retained attorneys to provide Kitty Hawk and F. Ken Dunn--the vice-president and co-owner of Kitty Hawk--with an unqualified defense in a Texas defamation lawsuit brought by Pollard in May 1984.2 In July 1985--a month after Pollard amended his suit to assert that Kitty Hawk's defamatory statements related to Pollard's severance from employment--Pennsylvania National sent Kitty Hawk a reservation of rights letter explaining that Exclusion (c) might bar coverage.
4
In February 1987, Kitty Hawk's general counsel demanded that Pennsylvania National provide an unqualified defense, but Pennsylvania National refused to withdraw its reservation. A few months later, Kitty Hawk again made a demand for an unqualified defense but noted that the defense provided by Pennsylvania National had been "able and competent."3 Pennsylvania National rejected this demand and continued Kitty Hawk's defense subject to its reservation.
5
In October 1987, a jury found that Kitty Hawk had defamed Pollard. Pennsylvania National refused to satisfy the judgment and filed this action in federal court, seeking a declaration that it was not obligated to provide coverage under the policy. Kitty Hawk and Pollard filed counterclaims, seeking a declaration that Pennsylvania National owed coverage and asserting claims under the Texas Insurance Code.
6
All three parties filed motions for summary judgment. The district court held that Exclusion (c) is unambiguous and that Pollard's claim falls within that exclusion. The district court concluded, however, that Pennsylvania National is estopped from denying coverage because its year delay in conveying a reservation prejudiced Kitty Hawk. The court also found that, under Texas law, Pollard's damages are limited to the amount of his policy--that is, Pollard cannot recover the double damages he seeks pursuant to section 16 of article 21.21 of the Texas Insurance Code.
II
7
Based upon the plain language of the Pennsylvania National-Kitty Hawk policy, we agree with the district court--Exclusion (c) is unambiguous and Pollard's claim falls within this exclusion.4 Therefore, we focus on Kitty Hawk's contention that Pennsylvania National is precluded from raising the defense of non-coverage by the doctrine of estoppel.5
8
We are a federal court applying Texas law,6 and it is well-settled Texas law that "the doctrines of waiver and estoppel cannot be used to create insurance coverage where none exists under the terms of the policy."7 Williams, 791 S.W.2d at 550;8 Yancey v. Floyd West & Co., 755 S.W.2d 914, 922 (Tex.App.--Fort Worth 1988, no writ) (applying this general rule to hold that doctrine of estoppel did not entitle insurance agent claiming that he was prejudiced by reliance on insurer's statements to liability coverage). However, there is a well-established exception--the "Wilkinson exception"9--to this general rule: "[I]f an insurer assumes an insured's defense without declaring a reservation of rights or obtaining a non-waiver agreement, and with knowledge of facts indicating non-coverage, all policy defenses, including those of non-coverage, are waived, or the insurer may be estopped from raising them." Williams, 791 S.W.2d at 550 (emphasis in original), citing Wilkinson, 601 S.W.2d at 520.10 Our inquiry as to whether the Wilkinson exception applies is guided by recent Texas cases holding that this exception trumps the general no-expanded-coverage rule where an insured shows: (1) that the insurer had sufficient knowledge of the facts or circumstances indicating non-coverage but (2) assumed or continued to defend its insured without obtaining an effective reservation of rights or non-waiver agreement and, as a result, (3) the insured suffered some type of harm.11 See Texas Farmers Ins. Co. v. McGuire, 744 S.W.2d 601, 603 n. 1 (Tex.1988);12 Williams, 791 S.W.2d at 552-53 (drawing deductions from survey of relevant Texas case law).
9
We find that Pennsylvania National, the drafter of Exception (c), had sufficient knowledge to challenge its coverage of Kitty Hawk but assumed and continued Kitty Hawk's defense for more than a year before obtaining an effective reservation of rights--thereby satisfying the first two requirements for applying the Wilkinson exception.13 That leads us to the third requirement--that is, determining whether Pennsylvania National's delay in reserving its rights harmed Kitty Hawk. Specifically, we must determine what constitutes a sufficient showing of harm and apply that standard to the case before us.
10
Williams provides the most recent expression of what constitutes sufficient proof of harm under the Wilkinson exception. In Williams, State Farm provided a defense for the insured's estate in the underlying suit without reserving its right to assert non-coverage in the future. State Farm then denied coverage and refused to respond to the judgment rendered against the property of the insured's estate. Although State Farm's policy did not cover the estate's liability, the court remanded the case for further proceedings to determine if State Farm had waived its right to deny, or should be estopped from denying, coverage. Addressing the third prong of the Wilkinson exception, the court held that, unless the insured suffers a "clear and unmistakable" harm from its insurer's defense, "the insured must show how he was harmed." Williams, 791 S.W.2d at 553. Because the record contained scant information on the conduct and quality of State Farm's defense of the estate, the court concluded that it could not presume that State Farm's defense had harmed the estate.
11
The intermediate Texas courts have not unanimously adopted the Williams test for harm.14 We are nevertheless persuaded that the Texas Supreme Court would adopt this test at least in cases where counsel provided to the insured by its insurer has no opportunity to manipulate facts relating to the insurer's non-coverage defense. In this limited circumstance, our decision in Pacific Indemnity15 does not control.
12
Our review of the record convinces us that the facts of this case do not support a conclusion that Pennsylvania National's defense of Kitty Hawk resulted in a "clear and unmistakable" conflict of interest or harm, or that Kitty Hawk has demonstrated that it suffered actual harm or prejudice. Kitty Hawk has produced no evidence that the attorneys provided by Pennsylvania National acted in any manner, during the course of the defense, that was prejudicial to Kitty Hawk. Kitty Hawk points to no evidence that Pennsylvania National in its defense of Kitty Hawk manipulated the defense of its insured to better its future claim of non-coverage. Indeed, Pennsylvania National does not base its non-coverage defense on an issue that was material to the underlying suit: Exclusion (c), on which Pennsylvania National premises its non-coverage defense, withdraws coverage for defamatory statements that relate directly or indirectly to the employment of the defamed person, and this issue of employment relatedness was not contested in the underlying suit. In fact, the defamatory letter specifically refers to Pollard's employment-related conduct. Kitty Hawk points to no evidence reflecting that Pennsylvania Mutual had an opportunity to manipulate the facts on this point to bolster its non-coverage defense.16
13
In addition, Kitty Hawk had over two years to retain new counsel after Pennsylvania National notified Kitty Hawk that Exclusion (c) might bar coverage. Nevertheless, Kitty Hawk chose to continue on with Pennsylvania National's representation. In fact, in a letter demanding that Pennsylvania National provide an unqualified defense, Kitty Hawk admitted that it did not "have any complaints whatsoever with the able and competent manner in which the defense ha[d] been handled to date."17 Therefore, the fact that Kitty Hawk may have voluntarily relinquished rights associated with the control of its defense does not establish that it suffered any harm. Accordingly, we hold that, when, as in this case, the facts do not suggest that counsel provided by an insurer to defend its insured has acted to prejudice (or even had an opportunity to prejudice) the insured's claim of policy coverage, no inference of harm to the insured arises.18
III
14
For the foregoing reasons, we REVERSE that portion of the district court's judgment holding that Pennsylvania National is estopped from denying coverage and RENDER judgment in favor of Pennsylvania National on its non-coverage claim.
1
Specifically, the policy provides that:
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury (herein called "personal injury") sustained by any person or organization and arising out of one or more of the following offenses committed in the conduct of the named insured's business:
Group B--the publication or utterance of a libel or slander or of other defamatory or disparaging material, or a publication or utterance in violation of an individual's right of privacy, except publications or utterances in the course of or related to advertising, broadcasting or telecasting activities conducted by or on behalf of the named insured....
Record Excerpts of Appellee Kitty Hawk Airways, Inc. at tab 1, p. 055, Pennsylvania Nat'l Mutual Casualty Ins. Co. v. Kitty Hawk Airways, Inc. and Jeffrey Thomason Pollard, No. 91-1123 (5th Cir. filed Aug. 14, 1991) (emphasis in original).
2
Pollard was employed by Northwest Airlines in December of 1983, and Northwest terminated that employment in January or February of 1984--soon after receiving Kitty Hawk's response to a routine employment inquiry. Pollard's suit alleged that Kitty Hawk and Dunn published libelous and slanderous statements about Pollard, which resulted in his being terminated by Northwest. Specifically, Kitty Hawk stated in its response that Pollard--an employee of Kitty Hawk from February through June of 1979--was admonished in April 1979 for drinking alcohol at a time when he was supposed to be available for flight duty. This incident was documented in an April 24, 1979 warning letter from the president of Kitty Hawk to Pollard
3
See infra note 17 and accompanying text
4
See Pennsylvania Nat'l Mutual Casualty Ins. Co. v. Kitty Hawk Airways, Inc. and Jeffrey Thomason Pollard, No. CA 3-87-3033-R, slip op. at 3-5 (N.D.Tex.1990) (Memorandum Opinion and Order)
5
The doctrines of waiver and estoppel, although used somewhat interchangeably by the district court, are distinct and separate doctrines: waiver requires the voluntary surrender of a known right (for example, if the insurer knows that it can raise a non-coverage defense but chooses not to), while estoppel requires a showing that the insured was prejudiced by the insurer's conduct. See State Farm Lloyds, Inc. v. Williams, 791 S.W.2d 542, 552 (Tex.App.--Dallas 1990, no writ); see also Union Nat'l Bank of Little Rock v. Moriarity, 746 S.W.2d 249, 252 n. 3 (Tex.App.--Texarkana 1987, no writ). We use the term "estoppel" in our discussion since Kitty Hawk's primary claim is that it relied on Pennsylvania National for its defense against Pollard's suit and was prejudiced by a conflict of interest. However, see infra note 11
6
This case is a diversity action brought pursuant to 28 U.S.C. § 1332. See Salve Regina College v. Russell, --- U.S. ----, 111 S. Ct. 1217, 1221, 113 L. Ed. 2d 190 (1991) (Where plaintiff filed diversity action, concluding "that a court of appeals should review de novo a district court's determination of state law.") (italics omitted)
7
One of the policy girders buttressing this rule is the potential for conflicts--that is, the potential for an insurer representing an insured in a lawsuit to, fearful that the defense it provides may fail and result in a judgment against the insured and indemnity claim against the insurer, simultaneously prepare a non-coverage defense against the insured. See Williams, 791 S.W.2d at 551. "Another related reason is the harm potentially or inherently suffered by an insured who lacks the right to completely control his defense." Id. at 552
8
Citing Texas Farmers Ins. Co. v. McGuire, 744 S.W.2d 601, 602-03 (Tex.1988); Republic Ins. Co. v. Silverton Elevators, Inc., 493 S.W.2d 748, 751 (Tex.1973); Minnesota Mut. Life Ins. Co. v. Morse, 487 S.W.2d 317, 320 (Tex.1972); Annotation, Doctrine of Estoppel or Waiver as Available to Bring Within Coverage of Insurance Policy Risks Not Covered by Its Terms or Expressly Excluded Therefrom, 1 A.L.R. 3d 1139, 1144-50 (1965); 3 R. LONG & M. RHODES, THE LAW OF LIABILITY INSURANCE § 17.16, at 17-59, 17-65 (1988)
9
See Farmers Texas County Mut. Ins. Co. v. Wilkinson, 601 S.W.2d 520, 522 (Tex.Civ.App.--Austin 1980, writ ref'd n.r.e.)
10
Also citing Pacific Indem. Co. v. Acel Delivery Serv., Inc., 485 F.2d 1169, 1173 (5th Cir.1973) (applying Texas law), cert. denied, 415 U.S. 921, 94 S. Ct. 1422, 39 L. Ed. 2d 476 (1974); Annotation, Liability Insurance: Insurer's Assumption of or Continuation in Defense of Action Brought Against the Insured as Waiver or Estoppel as Regards Defense of Non-coverage or Other Defense Existing at Time of Accident, 38 A.L.R. 2d 1148, 1150-55 (1954); 7C J. APPLEMAN & W. BERDAL, INSURANCE LAW AND PRACTICE § 4692, at 289-95 (1979); 3 R. LONG & M. RHODES, THE LAW OF LIABILITY INSURANCE § 17.16, at 17-67 (1988); A. WINDT, INSURANCE CLAIMS AND DISPUTES § 2.06, at 32-33 (1988)
11
Regardless of whether the insured relies upon the doctrine of estoppel or the doctrine of waiver to challenge the non-coverage defense of its insurer, courts generally require a showing that the insurer's assumption of its insured's defense without reserving its rights harmed the insured. Williams, 791 S.W.2d at 552 (citations omitted)
12
Specifically, the Texas Supreme Court, summarizing the Texas Court of Appeals holding in Farmers Texas County Mutual Ins. Co. v. Wilkinson, 601 S.W.2d 520 (Tex.Civ.App.--Austin 1980, writ ref'd n.r.e.), noted that: "If an insurer, with knowledge of facts indicating non-coverage, assumes or continues the defense of its insured without obtaining a non-waiver agreement or a reservation of rights, it waives all policy defenses, including those of non-coverage, or it may be estopped from raising them." McGuire, 744 S.W.2d at 603 n. 1
13
Pennsylvania National argues that it could not have notified Kitty Hawk any earlier because it was unaware of its non-coverage defense until Pollard amended his suit in June 1985 to assert that Kitty Hawk's defamatory statements involved Pollard's severance from employment. As the district court found, however, even Pollard's original Texas state court petition contained facts sufficient to predicate this defense: The original petition stated that Kitty Hawk employed Pollard from February through June 1979, that the Kitty Hawk letter forming the basis for Pollard's claim was dated April 24, 1979, and that Kitty Hawk had defamed Pollard in this letter. At the very least, this information was sufficient to require Pennsylvania National to investigate the facts thoroughly enough to make an informed decision about coverage. See Pacific Indem. Co. v. Acel Delivery Serv., Inc., 485 F.2d 1169, 1174 (5th Cir.1973), cert. denied, 415 U.S. 921, 94 S. Ct. 1422, 39 L. Ed. 2d 476 (1974)
14
See, e.g., Wilkinson, 601 S.W.2d at 521-22; Automobile Underwriters' Ins. Co. v. Murrah, 40 S.W.2d 233, 235 (Tex.Civ.App.--Dallas 1931, writ ref'd)
15
Pacific Indem. Co. v. Acel Delivery Serv., Inc., 485 F.2d 1169 (5th Cir.1973), cert. denied, 415 U.S. 921, 94 S. Ct. 1422, 39 L. Ed. 2d 476 (1974)
16
Compare Pacific Indemnity, 485 F.2d at 1175-76 (recognizing prejudice when insurer's defense deprived its insured of an opportunity to investigate the facts while in close proximity to their occurrence and to conduct timely discovery and the insurer's failure to answer interrogatories adequately resulted in sanctions against the insured) and Employers Casualty Co. v. Tilley, 496 S.W.2d 552, 560-61 (Tex.1973) (holding conflict of interest created when attorney, acting on behalf of the insurer in defending claim against an insured, simultaneously prepared a defense against the insured for the insurer) with Ideal Mut. Ins. Co. v. Myers, 789 F.2d 1196, 1202 (5th Cir.1986) (no conflict of interest arose where insurer provided a reservation of rights notice and attorney did not work against the insured on the conflicting coverage question)
17
Second Supplemental Record on Appeal, vol. II, at 289-99, Pennsylvania Nat'l Mutual Casualty Ins. Co. v. Kitty Hawk Airways, Inc., and Jeffrey Pollard, No. 91-1123 (5th Cir. filed Aug. 26, 1991)
18
Our holding that Pennsylvania National's non-coverage defense bars damages arising from Kitty Hawk's defamation of Pollard makes it unnecessary for us to address whether Pollard may recover double damages from Pennsylvania National pursuant to section 16 of article 21.21 of the Texas Insurance Code | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1538499/ | 69 B.R. 545 (1987)
In re Paul E. VAN GORDON, Sarah L. Van Gordon, Debtors.
Bankruptcy No. 86-20401.
United States Bankruptcy Court, D. Montana.
January 27, 1987.
Donald MacDonald, IV, Missoula, Mont., for debtor.
Harold Dye, Missoula, Mont., trustee.
M.O. Wordal, Great Falls, Mont., for FBS.
ORDER
JOHN L. PETERSON, Bankruptcy Judge.
In this Chapter 13 case, the Debtors propose to pay $1,609.00 per month to FBS Mortgage Corp., a secured creditor, to cure past arrearages and decelerate the home mortgage, pay First Bank Western outside the Plan, and pay $200.00 a month to the Trustee for payment in full of unsecured creditors. FBS filed objections to the Plan stating it was not feasible and there was no provision for payment of interest on the arrearages. The monthly installment due FBS is $1,209.00, and the Debtors propose to pay the arrearages at the rate of $400.00 per month for 36 months, at which time they will make a final balloon payment of the unpaid arrearage. According to FBS, the amount of arrearage is $20,553.00. At $400.00 per month, the Debtors' payments would equal $14,400.00. The Trust Indenture and Note executed in favor of FBS by the Debtors provides for monthly payments of $1,097.77 until September 1, 1998, at 11% interest per annum. According to the Proof of Claim of FBS, at the date of bankruptcy, the outstanding debt totaled $106,046.50, based on the following items:
Principal - $90,685.05
Interest to 7/10/86 - 12,735.69
Late charges - 553.63
Budget deficit - 1,163.22
Foreclosure expenses - 908.91
Title report 100.00
Publication 258.91
Atty fees 550.00
*546 The bankruptcy petition was filed on July 10, 1986, before the foreclosure by FBS had gone to non-judicial sale.
In re Taddeo, 685 F.2d 24 (2nd Cir.1982), apply § 1322(b)(3) and (b)(5), holds that a Chapter 13 debtor may cure a default of home mortgage under a Chapter 13 Plan by payment of arrearages, decelerate the delinquent note and mortgage and reinstate the monthly payment due under the note. Five circuits have decided along with In re Taddeo that a Chapter 13 debtor may cure the default by paying arrearages under the Plan and making the regular note payment so long as there has been no final judgment or sale on foreclosure. Grubbs v. Houston First American S. & L. Ass'n, 730 F.2d 236 (5th Cir.1984); Federal Land Bank of Louisville v. Glenn, 760 F.2d 1428 (6th Cir.1985); Goldberg v. Tynan, 773 F.2d 177 (7th Cir.1985); In re Clark, 738 F.2d 869 (7th Cir.1984) (Deceleration is "not a form of modification banned by (b)(2)" but rather is permissible and necessary concomitant of the power to cure default); Foster Mortgage Corp. v. Terry, 764 F.2d 1558 (11th Cir.1985) (arguably dicta). In the Ninth Circuit, the court has not yet been confronted with a similar issue, but has held that a Chapter 13 Plan cannot modify payments on a home mortgage which by its terms had matured before the filing of the bankruptcy petition. In re Seidel, 752 F.2d 1382 (9th Cir.1985). The Ninth Circuit specifically did not reach the issue decided in In re Taddeo, Grubbs, and Clark. Id. 1386, Ftn. 1. See also In re Harlan, 783 F.2d 839 (9th Cir.1986).[1] I also note that under the Deed of Trust, as provided by Montana law, the defaulted mortgagor may cure the default at any time before sale, and thus reinstate the mortgage, Section 71-1-312, MCA, although the issue in this case is governed by federal law.
However, the case law is also fully developed that the curing of a default under a Chapter 13 Plan is permissive, not mandatory, and must be accomplished within a reasonable time. In re Peterson, 53 B.R. 339 (Bankr.Oreg.1985); Central Federal Savings & Loan v. King; 23 B.R. 779, 9 B.C.D. 976 (BAP 9th Cir.1982). In the present case, I find three years to cure the default is a reasonable time. See Philadelphia Savings Fund Society v. Stewart, 16 B.R. 460 (Bankr.E.D.Pa.1981) (40 months reasonable); In re La Crue, 33 B.R. 569 (Bankr.Colo.1983) (33 months reasonable); Central Federal Sav. & Loan Assn. v. King, 23 B.R. 779 (BAP 9th Cir.1982) (31 months reasonable). But see, In re Miller, 53 B.R. 100 (Bankr.S.D.Ohio 1985) (60 months unreasonable). Obviously no specific trend has developed as to what is a reasonable time, and the Court is left to confirm or reject this aspect of the Plan on a case-by-case basis.
The Debtors' value the residence at $115,000.00, but with a small equity, FBS claims a foreclosure sale, with attendant real estate sale costs, would probably not leave any equity in the collateral. The issue raised by FBS is that it is entitled to payment on interest on the arrearages, while the Debtors' Plan makes no provision for payment of interest. The case authorities are split on the issue. One of the latest case which summarizes the respective authorities is In re Nesmith, 57 B.R. 348, 349 (Bankr.E.D.Pa.1986), which states:
"We hold interest must be paid on the arrearges as mandated by § 1325(a)(5). Cardinal Federal Savings & Loan Assoc. v. Colegrove (In Re Colegrove), 771 F.2d 119 (6th Cir.1985). * * * Our conclusion is supported by the United States Court of Appeals for the Sixth Circuit in Colegrove, 771 F.2d 119, while debtor's contra position is bolstered by the Eleventh Circuit in Foster Mortgage Corp. v. Terry (In Re Terry), 764 F.2d 1558 (11th Cir.1985).[2]
*547 Our decision also draws succor from that line of cases which hold that the size of a secured lender's debt, including the debt owed to home mortgage lender, includes interest on arrearages, for purposes of deciding motion on relief from the automatic stay. Grundy National Bank v. Tandem Mining Corp., 754 F.2d 1436 (4th Cir.1985); In Re American Mariner Industries, Inc., 734 F.2d 426 (9th Cir. 1984). Today's decision is likewise in accord with prior decisions from this court, and with numerous decisions from our brethern on the bankruptcy bench. See e.g. In Re Evans, 20 B.R. 175 (Bankr.E.D.Pa.1982); In Re Einspahr, 30 B.R. 356 (Bankr.E.D.Pa.1983); In Re Frey, 34 B.R. 607 (Bankr.M.D.Pa.1983)."
The Nesmith decision also finds support from In re Spader, 66 B.R. 618 (D.C.W.D. Mo.1986); Matter of Venech, 67 B.R. 56 (Bankr.M.D.Fla.1986); In re Thorne, 34 B.R. 428 (Bankr.E.D.Tenn.1983); In re Stratton, 30 B.R. 44 (Bankr.W.D.Mich. 1983); In re Wilkinson, 33 B.R. 933 (Bankr.S.D.N.Y.1983); In re Webb, 29 B.R. 280 (Bankr.E.D.N.Y.1983); In Re Fontaine, 27 B.R. 614 (BAP 9th Cir.1982); In re Hibbert, 14 B.R. 891 (Bankr.E.D.N.Y. 1981). The rationale for each decision allowing interest on arrearages is that Section 506(b) of the Code allows an oversecured creditor interest on such claim, and any reasonable fees, costs or charges provided under the agreement, and Section 1325(a)(5)(B) (the cram-down provision) provides that a plan may be confirmed only where the secured creditor will receive the present value of its claim.
"Under the cram-down statute, the court determines the amount of the creditor's `allowed secured claim' according to the value of the collateral. The plan must provide for interest on the allowed secured claim at a rate that will make the total paid over time equal to the `present value' of the allowed secured claim. The contract does not control. The court sets the interest rate according to the prevailing market rates." In re Thorne, 34 B.R. at 431.
In re Colegrove, supra, also concluded that the most equitable rate to establish in this type of case under Chapter 13 is the prevailing market rate on similar type of loans at the time of allowance of the creditor's claim and the confirmation of the Plan with a maximum limitation on such rate to be the contract rate. Id. at 123.
I conclude the better reasoned cases allow the payment of interest on arrearage where the secured creditor is oversecured, and the rate of interest should be fixed at the prevailing market rate. Since the Debtors' Plan does not provide for payment of interest, and there is no evidence in the record on present market rate of interest, the Plan must be rejected on condition the Debtors may amend the Plan to provide for payment of interest at the present market rate.
On the other issue, feasibility, the evidence of the Debtor is that his employment prospects after termination of his present job are good, and will provide him with the same level of income he has received in the past. Further, the Debtor receives additional income from a business venture on a part-time basis which indicates he can satisfy the provisions of Section 1325(a)(6) of the Code, namely, "the Debtor will be able to make all payments under the Plan and to comply with the Plan". I note the amount of unsecured proofs of claim filed in this cause show only two creditors, totaling $346.07. The bar date for filing proofs of claim expired on November 25, 1986, (Bankruptcy Rule 3002), and therefore the payments of $200.00 per month for Trustee fees and payments to unsecured creditors will have been made in less than three months, thereby providing additional funds for the Plan. See In re Street, 55 B.R. 763, 766 (BAP 9th Cir.1985).
IT IS ORDERED the Debtors' Chapter 13 Plan is rejected upon condition the Debtors shall be allowed 15 days to amend the Plan to provide for payment of interest on the arrearages due FBS at the prevailing market rate of interest.
NOTES
[1] The holdings of Seidel and Harlan have been criticized and rejected in In re Spader, 66 B.R. 618, 622 (D.C.W.D.Mo.1986).
[2] The Terry case has been withdrawn from the permanent volume 764 F.2d on the basis that the decision is subject to a petition to reconsider. It is reported in 780 F.2d 894, 13 C.B.C.2d 121. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1538518/ | 142 N.J. Super. 546 (1976)
362 A.2d 78
68TH STREET APTS., INC., A NEW JERSEY CORPORATION, ET AL., PLAINTIFFS,
v.
CASIMIRO LAURICELLA, D/B/A CASS ELECTRIC CO., DEFENDANT. CASIMIRO LAURICELLA, D/B/A CASS ELECTRIC CO., PLAINTIFF,
v.
INTROCASO CONSTRUCTION CO., INC. AND RALPH L. INTROCASO, DEFENDANTS.
Superior Court of New Jersey, Law Division.
Decided May 13, 1976.
*549 Messrs. Gigante & Aslanian, attorneys for Casimiro Lauricella, d/b/a Cass Electric Co. (Mr. Antranig Aslanian, Jr., appearing).
Messrs. Platoff, Heftler, Harker & Nashel, attorneys for Introcaso Construction Co., Inc. and Ralph L. Introcaso (Mr. Howard M. Nashel appearing).
GAULKIN, J.S.C.
These consolidated actions arise out of a complex of business relationships entered into by Casimiro Lauricella and Ralph L. Introcaso with respect to two properties known as 6818 Park Avenue and 138-142 68th Street, both in Guttenberg, New Jersey.
I. 6818 Park Avenue
In early 1972 Lauricella, an electrical contractor, learned that 6818 Park Avenue was available for purchase and contacted Introcaso, a building contractor known to him from other projects, who expressed interest in their jointly purchasing and developing the property. After determining that an apartment building of approximately 30 units could be accommodated on the site, Lauricella and Introcaso negotiated with the then owner and reached agreement on a purchase at $70,000.
Lauricella and Introcaso then orally agreed that they would participate equally in the purchase and ownership; that they would use Mario M. Polcari, Esq. as their attorney; that they would hold the property in corporate form; that Introcaso's company, Introcaso Construction Co., Inc. (ICC) would be the general contractor for the contemplated construction, and that Lauricella, who was a major stockholder of certain banks, would arrange the necessary financing.
*550 Pursuant to that agreement Lauricella and Introcaso formed 6818 Park Avenue Corporation (6818), a New Jersey corporation; each was issued five shares of common capital stock, the only corporate stock then or thereafter issued. The minutes of the initial corporate meeting recite that Lauricella was elected president and Introcaso secretary and treasurer; they do not indicate any election of directors, and neither the by-laws nor the certificate of incorporation fix the number of directors authorized. Lauricella contributed $35,000 to the capital of the corporation and Introcaso contributed $34,134, which funds were used for the purchase of the title.
Construction commenced in October 1972 but, as more fully discussed below, the project aborted and on April 16, 1973 Introcaso filed an action in the Chancery Division (Docket C-2943-72) to dissolve 6818 under N.J.S.A. 14A:12-7 by reason of deadlock. By order there entered on August 31, 1973, 6818 was dissolved; Thomas M. Venino, Esq. was appointed as receiver; and the process of making distribution to creditors and winding up the corporate affairs was initiated. Following extensive hearings conducted by him pursuant to N.J.S. 14A:14-16, the receiver filed his findings concerning the creditors' claims. His determinations were upheld by order entered September 19, 1975. In light of those findings in the Chancery Division action (which was consolidated with this proceeding until its disposition), this court determined, by order entered December 19, 1975, that the parties here are collaterally estopped from litigating the following factual determinations:
1. That there was a verbal agreement between ICC and 6818, the terms of which are set forth in the opinion of the receiver dated November 1, 1974;
2. That 6818 breached that agreement;
3. That as a result of that breach, ICC sustained damages of $88,494.41.
The terms of the agreement between 6818 and ICC incorporated by reference in the December 19, 1975 order *551 and thus deemed to be a finding of fact herein, were found in the Chancery Division to be as follows:
They [i.e., Introcaso and Lauricella] further agreed, orally, that ICC would act as the general contractor and would deliver to the owner corporation a "turnkey" 30 family apartment building at cost plus 8% for ICC's services and efforts. ICC was to have the option of performing any of the sub trades at cost plus 15% overhead plus 10% profit so long as that gross cost did not exceed a competitive price. Similarly, [Lauricella], an experienced electricial contractor, could elect to perform the electrical work on the project at cost plus 15% overhead plus 10% profit so long as that gross cost did not exceed a competitive price. I find that the parties understood that so long as the costs were reasonable and competitive, ICC would perform the masonry portion of the project since it was an experienced mason contractor and that [Lauricella] would perform the electrical portion for the same reason. Although there was a conflict as to whether ICC would be entitled to an 8% overwrite on the masonry work performed by it or on the electrical work performed by [Lauricella], I find from all the evidence that the intention of the parties was to compensate ICC at the rate of 8% on subcontracted work for its services as general contractor, and also on the work it performed as masonry contractor and on the electrical portion of the project whether performed by [Lauricella] or others.
In winding up the corporate affairs the receiver sold the real estate for $110,000 and, after deducting fees and expenses of the receivership, paid out all of the corporate funds to creditors, each creditor receiving approximately 84.51 cents on each dollar of claim. The major claimant was ICC, which received $74,785.90 on its allowed claim of $88,494.41. No return of capital was therefore available to Lauricella or Introcaso as stockholders.
The parties now assert the following claims:
1. Introcaso claims that Lauricella wrongfully and maliciously caused 6818 to breach its contract with ICC and thereby caused the project to abort. He seeks recovery for his losses as a stockholder and claims, derivatively, on behalf of 6818, the losses sustained by the corporation.
2. Lauricella contends that it was Introcaso himself who caused the breach of the ICC contract and the failure *552 of the project; he claims against Introcaso the same losses as are urged by Introcaso.
3. ICC claims against Lauricella for wrongful and malicious interference with the contract between ICC and 6818; it claims compensatory damages arising therefrom in the sum of $13,708.51, being the difference between the damages for the breach of that contract as found by the receiver and the sum received by it in the liquidation.
Both claimants also seek punitive damages, interest and costs and, in connection with the derivative claims on behalf of 6818, the award of counsel fees.
A. Findings of Fact
After taking title in March 1972, 6818 prepared plans and demolished the buildings then on the site. Lauricella arranged for construction and permanent financing through United Jersey Mortgage Company, which issued its $360,000 mortgage commitment on August 16, 1972; Lauricella and Introcaso accepted the commitment on behalf of 6818 on September 21, 1972. Introcaso, acting for ICC, solicited bids from and entered into oral agreements with subcontractors, and in late October 1972 commenced construction with excavation, placement of footings and foundations, and installation of sewer, water and electrical connections. The foundation was then backfilled and levelled in preparation for the pouring of the concrete slab.
To this point the only significant difficulty encountered was that, because of an error in the plans which ICC failed to note, certain anchor bolts had been wrongly placed. Although there was testimony from the plumbing subcontractor that this error necessitated breaking up and relocating footings, the greater weight of the evidence is that no on-site correction was required; rather, ICC instructed the structural steel subcontractor to revise in relatively minor ways the structural steel which had been fabricated and *553 was awaiting delivery to the job site. There was some dispute at trial as to when that instruction was given; I find that the instruction was given before December 19, 1972, but that the precise date is not material because the error delayed the completion of the structural steel by only one to two weeks at most, and in any event the job never progressed to the point that delivery of the steel to the job site was required.
Other minor disputes aired at trial as to the adequacy of the excavation or backfill are similarly without significance. In short, up to the time of the pour of the concrete slab on December 19, 1972 the construction had gone substantially according to its anticipated course; both Lauricella and Introcaso acknowledged that no difficulties or disputes had arisen between them to that time.
At the pour of the slab on December 19, 1972 ICC concededly deviated from the plan and specifications in at least two respects. It failed to cover the underlying ground with a polyurethane sheet, known as Visqueen, intended to prevent permeation of the slab by ground moisture; and it failed to use steel reinforcing rods in the slab. Although not claimed to be in violation of specific plan requirements, ICC concededly used sand rather than crushed stone as a base, and failed to provide expansion joints in the concrete. And, while the outside temperature on the day of the pour was disputed, I find, as contended by Lauricella and confirmed by the building inspectors present, that the ground was frozen to some degree.
Although Introcaso testified that Lauricella had authorized him to deviate from plans in order to economize during construction, that general authorization is not inconsistent with Lauricella's testimony that he was disturbed about the slab. The undisputed fact is that at the pour both the local and the state building inspectors advised Introcaso that Visqueen and reinforcing rods ought to be used; although they did not formally order work to stop, issuance of a certificate of occupancy could be imperiled by *554 failing to honor their recommendations. Introcaso acknowledged that in response he merely sought to assure the inspectors that ground and construction conditions made neither Visqueen nor reinforcing rods necessary. That undisputed testimony supports the further testimony of the state inspector that he called his office and was instructed to advise Introcaso that the State would accept the deviations from plans if the project engineer would certify that the slab met all performance requirements. No such certificate was ever obtained, and when the property was finally to be sold by the receiver the engineer indicated that certain corrective work would be required before a certificate would issue. That corrective work was relatively minor, however; it did not include removal of the slab but did include the cutting of expansion joints.
For these reasons I find that Lauricella was genuinely concerned about the performance of ICC in the pour. However, as already noted, the parties are foreclosed from relitigating the finding of the Chancery Division that 6818 breached its contract with ICC. The underpinning of that conclusion was the determination of the receiver, subsequently confirmed by the court, "that the work performed by ICC was done in a substantial, good and workmanlike manner." That essential finding is also binding here. See Mazzilli v. Accident & Cas. Ins. Co., 26 N.J. 307 (1958).
The principals offered widely divergent versions of the events which ensued between the December 19 pour and the March 17 meeting at which the corporate deadlock was formalized. Lauricella testified, in substance, that a variety of other problems arose, including complaints of neighbors, fence maintenance, snow removal, insurance premiums and the like; that he constantly inquired of Introcaso as to the resolution of these problems and the correction of the pour; that Introcaso's responses were vague and his actions ineffectual; that at all times he, Lauricella, urged Introcaso to continue with the project, but that Introcaso simply failed or refused to do so; that ultimately Introcaso said *555 that ICC was having difficulties on other jobs and that another contractor should be used, and that work thus came to a halt.
Introcaso acknowledged that Lauricella complained of the pour and such matters as insurance bills, snow removal and the like; but he testified, in substance, that Lauricella then said that he would not continue with the arrangement under which ICC was to supervise construction and that the project would proceed only if he and Introcaso jointly supervised construction without fee; that Introcaso rejected that proposal as being unfeasible and in violation of the original undertakings; that in response Lauricella said that if his demands were not met the project would never proceed, that he could afford to outwait Introcaso because he was a millionaire, that he would drag out the dispute so that Introcaso would never see his money and that he would never sell his interest to Introcaso; that Lauricella refused to arrange any construction mortgage drawdowns, and that he, Introcaso, proceeded toward corporate dissolution because Lauricella was thus preventing the completion of the project.
The record offers nothing in support of the Lauricella account, but rather corroborates that of Introcaso. The problems of which Lauricella concededly made much, both at their occurrence and at trial, were relatively unsubstantial and of a nature that must be anticipated in a project of this kind; certainly they cannot fairly be said to have represented serious threats to the success of the project or any material deviation by Introcaso or ICC from the obligations they had undertaken. The hypercritical approach taken by Lauricella thus tends to support Introcaso's testimony that it was Lauricella who refused to proceed.
Introcaso in fact had every reason to want 6818 and ICC to continue this cost-plus job. But although much work was done by ICC and substantial monies committed by 6818 up to the pour, Lauricella concededly never performed his obligation of arranging for the necessary drawdown of construction *556 mortgage monies, although Introcaso asked him to do so. Indeed, neither ICC nor any other 6818 creditor was paid at all until the receiver sold the real estate. Lauricella can hardly be said to have desired or permitted the survival of the project while thus failing to perform his own obligation to finance it. It is far more reasonable to believe that Introcaso sought the dissolution of the corporation, as he testified, because of Lauricella's refusal to proceed according to the original agreement.
In sum, I find that Lauricella alone was responsible for the cessation of the work and for the ultimate demise of the project; that Introcaso substantially performed all of his obligations as a principal of 6818 and ICC, and that he was at all times, ready, willing and able to continue with the project as originally agreed.[1] Although I also credit Introcaso's testimony as to Lauricella's threats, neither those words nor the acts they accompanied fairly evidence a malicious intention to do harm to Introcaso; they merely indicate Lauricella's fixed determination not to continue what he perceived to be a relationship no longer in his interest.
B. Conclusions of Law
1. Claims of Introcaso and Lauricella
As described above, Introcaso and Lauricella charge each other with having caused 6818 to fail, and each seeks to recover from the other his individual loss as a stockholder and, derivatively for 6818, the losses sustained by it.
Analysis of these claims by application of traditional corporate law principles is difficult and unsatisfying. Those principles derive from the view of the corporate entity *557 as separate and distinct from its shareholders, Jackson v. Hooper, 76 N.J. Eq. 592, 599 (E & A. 1910), whose business is conducted not by its principals but by elected directors, N.J.S.A. 14A:6-1, who have fiduciary obligations to the corporate entity and the stockholders, N.J.S.A. 14A:6-14; Hill Dredging Corp. v. Risley, 18 N.J. 501, 530-31 (1955). Accordingly under accepted rules of corporate law, a stockholder may recover derivatively on behalf of the corporation for losses sustained by the corporation caused by acts of directors in breach of their fiduciary obligations, Pomeroy v. Simon, 17 N.J. 59, 64 (1954), but may not recover derivatively if the losses result from directors' good faith business judgments N.J.S.A. 14A:6-14; Casson v. Bosman, 137 N.J. Eq. 532, 535 (E. & A. 1946); Mimnaugh v. Atlantic City Elec. Co., 7 N.J. Super. 310, 316 (Ch. 1950). The corollary is that a stockholder has no individual claim for loss in value of his investment resulting from acts of a director in breach of his fiduciary obligation Slutzker v. Rieber, 132 N.J. Eq. 412 (Ch. 1942).
That these concepts do not easily fit 6818 is apparent. This corporation was not separate and distinct from its principals in its operation, and even the formalities of the corporate form were largely disregarded. Its business was not managed by a board of directors, but by the two principals themselves; indeed the principals did not elect or even fix the number of directors. It would thus be vain to attempt to distinguish acts done as shareholders from those done as directors, or to distinguish a principal's duty to serve the corporation as director from his right to protect his personal interest as stockholder. 6818 was, in short, a classic "close corporation," which has been defined as "a corporation where management and ownership are substantially identical to the extent that the independent judgment of directors is, in fact, a fiction." Israels, The Sacred Cow of Corporate Existence: Problems of Deadlock and Dissolution, 19 U. Chi, L. Rev. 778 (1952); 1 O'Neal, Close Corporations § 1.02 (1971).
*558 The difficulties which unavoidably arise in attempting to apply corporate norms to the close corporation have led to the development of substantial authority permitting departure from these norms and recognition instead of the real relationships of the principals. New Jersey law has thus long accepted the view, as stated in Whitfield v. Kern, 122 N.J. Eq. 332 (E. & A. 1937), that
* * * the conception of a legal entity distinct from the persons composing the corporation is to be disregarded, in equity, in cases not within the reason and policy of this legal fiction, e.g., to adjust equities among members of the corporation internally where the rights of the public or third persons are in no wise involved. [at 347]
The principle thus stated has frequently been applied, though in varying terms. Some cases speak of the corporation as a statutory partnership see, e.g., Fountain v. Fountain, 9 N.J. 558, 568 (1952); Breslin v. Fries-Breslin Co., 70 N.J.L. 274, 282 (E. & A. 1904); Sternberg v. Wolff, 56 N.J. Eq. 389, 394 (E. & A. 1898); others describe the corporation as a mere association of individuals, Rippel v. Kaplus, 124 N.J. Eq. 303, 304 (Ch. 1938); Newark Ladder, etc., Co. v. Furniture Workers &c., 125 N.J. Eq. 99, 102 (Ch. 1939); Perkins v. Trinity Realty Co., 69 N.J. Eq. 723, 731 (Ch. 1905); aff'd 71 N.J. Eq. 304 (E. & A. 1906); and still others talk in terms of the intent of the corporate principals, Fortugno v. Hudson Manure Co., 51 N.J. Super. 482, 500 (App. Div. 1958), or simply the propriety of piercing the corporate veil to avoid inequity, Schmid v. First Camden Nat'l. Bank Co., 130 N.J. Eq. 254, 261 (Ch. 1941). The New Jersey cases are consistent with developing law of other jurisdictions and all academic commentary. See, e.g., Conway, "The New York Fiduciary Concept in Incorporated Partnerships and Joint Ventures," 33 Fordham L. Rev. (1961); Hornstein, "Judicial Tolerance of the Incorporated Partnership," 18 Law and Contemporary Problems, 435 (1953); Hornstein, "Stockholders' Agreements in the Closely Held Corporation," 59 Yale L.J. 1040 (1950); *559 Israels, "The Sacred Cow of Corporate Existence: Problems of Deadlock and Dissolution," supra, 19 U. Chi. L. Rev. 778 (1952); O'Neal, "Close Corporation Legislation: A Survey and an Evaluation," 1972 Duke L.J. 867 (1972); Winer, "Proposing a New York `Close Corporation Law,'" 28 Cornell L.Q. 313 (1943); Comment, "Deadlock in a Close Corporation: A Suggestion for Protecting a Dissident, Co-Equal Shareholder," 1972 Duke L.J. 653; Note, "A Plea For Separate Statutory Treatment of the Close Corporation," 33 N.Y.U.L. Rev. 700 (1958).
The authorities also consistently recognize that, once corporate technisms are thus overcome, the relationship of the principals can be seen to be that of partners or coventurers.[2] As stated by Judge (now Chief Justice) Burger in Helms v. Duckworth, 101 U.S. App. D.C. 390, 249 F.2d 482 (D.C. Cir.1957):
In an intimate business venture such as this, stockholders of a close corporation occupy a position similar to that of joint adventurers and partners. While courts have sometimes declared stockholders "do not bear toward each other that same relation of trust and confidence which prevails in partnerships," this view ignores the practical realities of the organization and functioning of a small "two man" corporation organized to carry on a small business enterprise in which the stockholders, directors and managers are the same persons. A distinguishing characteristic of such a corporation is the absence of a division between the stockholders-owners and the director-managers, for the former either personally manage and direct the business or so dominate the directors as to render the latter agents. [at 486-487]
See also, Arditi v. Dubitzsky, 354 F.2d 483, 486-87 (2 Cir.1965); Kruger v. Gerth, 16 N.Y.2d 802, 263 N.Y.S.2d 1, 210 N.E.2d 355 (Ct. App. 1965) (dissent); Hornstein, supra, at 1040; Israels, supra, at 778; Comment, supra, at 653; and Note, supra, at 700.
*560 Denominating the principals as partners or coventurers not only provides an accurate functional description but also appropriately recognizes the mutual rights and obligations which should characterize their relationship. The propriety of thus applying partnership or joint venture principles to members of the close corporation was well stated by Chief Justice Tauro in Donahue v. Rodd Electrotype Co. of New England, Inc., ___ Mass. ___, 328 N.E.2d 505 (1975):
Because of the fundamental resemblance of the close corporation to the partnership, the trust and confidence which are essential to this scale and manner of enterprise, and the inherent danger to minority interests in the close corporation, we hold that stockholders in the close corporation owe one another substantially the same fiduciary duty in the operation of the enterprise that partners owe to one another. In our previous decisions, we have defined the standard of duty owed by partners to one another as the "utmost good faith and loyalty." Cardullo v. Landau, 329 Mass. 5, 8, 105 N.E.2d 843 (1952); DeCotis v. D'Antona, 350 Mass. 165, 168, 214 N.E.2d 21 (1966). Stockholders in close corporations must discharge their management and stockholder responsibilities in conformity with this strict good faith standard. They may not act out of avarice, expediency or self-interest in derogation of their duty of loyalty to the other stockholders and to the corporation. [328 N.E.2d at 515]
In Sternberg v. Wolff, supra 56 N.J. Eq. at 394, our Court of Errors and Appeals early suggested the same view:
Corporations such as the one now before us are mere trading companies, with a corporate organization for the convenience of conducting the business for which they were incorporated. Such a corporation has not the qualities of corporations created for public purposes. No reason appears why, in the matter of the control and conduct of its business, the corporation and its officers should not be within the control of the court of chancery to an extent corresponding with the control of that court over the business of a mere partnership.
See also, Jolin v. Oster, 55 Wis.2d 199, 198 N.W.2d 639, 647-48 (Sup. Ct. 1972); McDonald v. McDonald, 53 Wis.2d 371, 192 N.W.2d 903, 908-10 (Sup. Ct. 1972); Tilley v. Shippee, 12 Ill.2d, 616, 147 N.E.2d 347, 352 (Sup. Ct. 1958); Green v. National Advertising & Amusement Co., *561 137 Minn. 65, 162 N.W. 1056, 1058 (Sup. Ct. 1917); Winer, supra at 321; Conway supra, at 306; O'Neal, supra, 1972 Duke L.J. at 892.
Under partnership principles[3] Lauricella must be said to have acted wrongfully in refusing to abide by his original undertakings. Although in the absence of some contrary showing a partnership is deemed to be at will and any partner may withdraw at any time without incurring liability N.J.S.A. 42:1-31(1)(b); Sarner v. Sarner, 62 N.J. Super. 41, 55 (App. Div. 1960), aff'd 38 N.J. 463 (1962); Karrick v. Hannaman, 168 U.S. 328, 335, 18 S.Ct. 135, 42 L.Ed. 484 (1897), such a withdrawal is wrongful if it is in violation of an express or implied agreement that the relationship would continue for a definite term or until a particular undertaking is completed N.J.S.A. 42:1-31; Karrick v. Hannaman, supra; Crane and Bromberg on Partnership, § 75 at 426-30 (1968).
Whether the relationship is at will or for a fixed term or until the accomplishment of a particular undertaking is a question of fact, Crane and Bromberg, supra, § 74 at 423; Sarner v. Sarner, supra; Ruta v. Werner, 1 N.J. Super. 455, 459 (Ch. Div. 1948). Here the nature of the project was such that substantial investments of money, time and energy would be required from which no return would be forthcoming unless and until the building was completed. The only commonsense view is, as testified by Introcaso, that the principals intended their relationship not to be one from which either could withdraw at will before completion of the project, but one rather to which each committed himself until the building was completed. The inferences arising *562 in such circumstances were succinctly stated in Hardin v. Robinson, 178 App. Div. 724, 162 N.Y.S. 531 (App. Div. 1916), aff'd 223 N.Y. 651, 119 N.E. 1047 (Ct. App. 1918):
It is true that where a partnership is not limited as to time, and there is nothing to show the intention of the parties as to its duration, it will be held to be a partnership at will. But where a partnership has for its object the completion of a specified piece of work, or the effecting of a specified result, it will be presumed that the parties intended the relation to continue until the object has been accomplished. There is, then, a term fixed by the copartnership agreement, and until that time arrives one partner cannot terminate the partnership and continue the enterprise for his own benefit. [162 N.Y.S. at 534-535]
In keeping with this analysis, a number of cases have found agreements to develop real estate to be partnership or joint venture obligations which are to continue until the undertaking is accomplished. See, e.g., Zimmerman v. Harding, 227 U.S. 489, 33 S.Ct. 387, 57 L.Ed. 608 (1913); Williams v. Terebinski, 52 Ohio Op.2d 114, 261 N.E.2d 920 (C.P. 1970); Pemberton v. Ladue Realty & Const. Co., 237 Mo. App. 971, 180 S.W.2d 766 (Ct. App. 1944); Hardin v. Robinson, supra; cf. Turtur v. Isserman, 2 N.J. Misc. 1084 (Ch. 1924); Drummond v. Batson, 162 Ark. 407, 258 S.W. 616 (Sup. Ct. 1924); Tankersley v. Norton, 142 Ark. 339, 218 S.W. 660 (Sup. Ct. 1920).
It is of no moment that the premature dissolution of 6818 was ordered on Introcaso's application to the Chancery Division and over Lauricella's objection That relief, available to Introcaso as a stockholder by statute, N.J.S.A. 14A:12-7, and common law, Stark v. Reingold, 18 N.J. 251, 265-266 (1955), was essentially comparable to the remedy available to a partner where the actions of a copartner prejudicially affect the carrying on of the business or make it not reasonably practical to carry on the business with him. N.J.S.A. 42:1-32; Stark v. Reingold, supra at 263. See also Annotation "Misconduct of or dissensions among partners or joint adventurers as ground *563 for dissolution by court," 118 A.L.R. 1421 (1939). Although Introcaso took the initiative, it was Lauricella whose acts precipitated that move. Lauricella's refusal to abide by his original agreement was not justified by any fault of Introcaso or any breach by him of his correlative obligations cf. Stark v. Reingold, supra; Turtur v. Isserman, supra; Kurtzon v. Kurtzon, 339 Ill. App. 431, 90 N.E.2d 245 (Ct. App. 1950); nor was it justified by the alleged breach of contract by ICC, which issue was decided adversely to Lauricella by the Chancery Division; nor can it be justified by any suggestion that the project was impracticable or not reasonably likely to succeed cf. Sieghortner v. Weissenborn, 20 N.J. Eq. 172 (Ch.), mod. 21 N.J. Eq. 483 (E. & A. 1869); Warwick v. Stockton, 55 N.J. Eq. 61 (Ch. 1896)). Having wrongfully caused the termination of the relationship in violation of the agreement, Lauricella is thus liable for the resulting losses to Introcaso. See N.J.S.A. 42:1-38, subd. 2(a); Zeibak v. Nasser, 12 Cal.2d 1, 82 P. 2d 375 (D. Ct. App. 1938); Crane and Bromberg, supra, § 75(d), fn. 87; A.J. Richey Corp. v. Garvey, 132 Fla. 602, 182 So. 216 (Sup. Ct. 1938). See generally, Annotation "Actions at Law between partners and partnerships," 21 A.L.R. 21 (1922) supplemented 58 A.L.R. 621 (1929) supplemented 168 A.L.R. 1088 (1947).
As to damages, Introcaso made no offer to prove any loss of anticipated profits, but rather claims his loss should be measured by the wasted expenditures of 6818 in preparation and part performance of the undertaking. See Holt v. United Security Life Ins. Co., 76 N.J.L. 585 (E. & A. 1909); Restatement, Contracts, § 333 (1932); 11 Williston on Contracts (3d ed. 1968), § 1363A; 5 Corbin on Contracts, § 1031 (1964). All of the 6818 expenditures were made by the receiver as reported in his final account approved in the Chancery Division proceeding; the question presented here is how the burden of those expenditures should be allocated between the principals.
*564 The property was purchased at $70,000, of which essentially $35,000 was paid by each of the principals, and was ultimately sold by the receiver on April 3, 1975 for $110,000. As shown in the receiver's report, $41,599.85 had been expended in on-site work ($33,256.95 by ICC, $6,000 by the plumbing subcontractor and $2,342.90 by Lauricella as the electrical subcontractor). Clearly, any expenditures which enhanced the value cannot be considered as losses sustained by 6818. Although it may be inferred that the value of the land was not enhanced to the full extent of the cost of the work done, the record offers no basis for determining how much of the $40,000 difference between the purchase and sales prices can be attributed to the work done as against inflation or other such causes; in the absence of such showing, it is appropriate to conclude that $40,000 of the $41,599.85 expended in on-site work was recaptured upon the sale by the receiver, and only $1,599.85 was a loss attributable to Lauricella. See Brenneman v. Auto-Teria, Inc., 260 Or. 513, 491 P.2d 992 (Sup. Ct. 1971); 11 Williston on Contracts, (3d ed. 1968), § 1363A.
A second group of obligations allowed to ICC in the receivership, totalling $43,267, clearly yielded no benefit to the corporation: $33,104 awarded to ICC for lost future profits on the uncompleted balance of the job, and $10,163 for structural steel fabricated but never used. Those costs are properly regarded as losses caused by Lauricella. See Holt v. United Security Life Ins. Co., supra.
A third group of expenses paid by the receiver, totalling $10,515.44, includes a variety of items not directly related to construction: real estate taxes and interest ($6,805.09); legal fees and expenses for the incorporation ($2,550.35); architect fees ($1070), and surveyors fee ($90). Under the circumstances presented such expenditures made in preparation for and in support of the project are also appropriately considered as losses which arise upon the aborting of the project. See Restatement, Contracts, § 333 (1932); Lefkowitz v. Cohn, 126 N.J.L. 377 (Sup. Ct. 1941); Feldman v. Jacob Branfman *565 & Son, Inc., 111 N.J.L. 37 (E. & A. 1933); National Sand & Co. v. R.H. Beaumont Co., 9 N.J. Misc. 1026, 156 A. 441 (Sup. Ct. 1931); Annotation, "Right to recover, in action for breach of contract, expenditures incurred in preparation for performance, 17 A.L.R.2d 1300 (1951).
The remaining expenses incurred by 6818, totalling $25,899.43, all arise out of the receivership proceeding: the receiver's allowance ($15,000); his expenses and disbursements, including transcripts of extensive hearings on claims ($4,299.43), and the broker's commission on the sale of the real estate ($6,6000). Whether such costs should be awarded to the prevailing party was discussed in Cusano v. Cusano, 19 N.J. Super. 255 (App. Div.), certif. den. 10 N.J. 310 (1952), where a partner who successfully defended against a dissolution application appealed the action of the trial court in charging the custodial receiver's allowance against the partnership. In affirming the trial court, Judge (later Justice) Francis said that although "[a] completely wrongful and unjustified receivership action undoubtedly would provide a basis for assessment of costs against the instigators rather than the victim of the litigation", yet
In any event, dismissal of receivership proceedings, of itself, would not require or justify assessment of allowances against the persons who initiated the action. If any reasonable grounds for the belief by the plaintiffs that such action was justified are shown by the record, then assessment of incidental costs may be made properly against the business, even though the belief, when subjected to the impact of all the facts and circumstances, turned out to be erroneous. In appraising the reasonableness of the belief, consideration must be given to the persons involved, their business capacity and the situation in which they found themselves at the time when they acted. [19 N.J. Super. at 272]
Cf. Greenbaum v. Lafayette & Broad Realty Corp., 97 N.J. Eq. 536 (E. & A. 1925).
Although the factual setting is different here, like considerations are applicable. The 6818 receivership resulted from acts of Lauricella which have been found to be without justification; but although Lauricella's judgment was erroneous, *566 it cannot be said that his concern about the performance by ICC and Introcaso or for the future of the project was without some reasonable grounds. Consonant with Cusano and the general principle that every litigant should bear his own expenses (see Grober v. Kahn, 47 N.J. 135 (1966)), the costs of the receivership are not to be considered as damages or otherwise visited solely upon Lauricella.
Accordingly, the total dollar amount of the losses to 6818 which can be said to flow from Lauricella's breach is $55,382.29: however, the claims (other than the real estate taxes and interest) were satisfied only to the extent of 84.51 cents on the dollar, and the actual loss must be considered as being only $47,857.68; Introcaso as a 50% stockholder sustained half that loss and thus is entitled to be reimbursed $23,928.84. Cf. Atkinson v. Marquart, 112 Ariz. 304, 541 P.2d 556 (Sup. Ct. 1975); Elsbach v. Mulligan, 58 Cal. App.2d 354, 136 P.2d 651 (D. Ct. App. 1943). See also, McCartin v. Traphagen, 43 N.J. Eq. 323, 335 (Ch. 1887), aff'd sub nom. McCartin v. McCartin, 45 N.J. Eq. 265 (E. & A. 1889).
The alternate theory of damages advanced by Introcaso, i.e., that he is entitled to be recompensed the full amount of his capital investment, is unsupported by authority and unsound: the losses which can be traced to the breach simply do not match the original investment. It is appropriate to note, however, that the damages allowed, together with Introcaso's proportionate share of the disallowed receivership expenses, approximate Introcaso's capital contribution.
In view of the finding that Lauricella did not act maliciously, the demand for punitive damages must be denied. See Security Corp. v. Lehman Associates, Inc., 108 N.J. Super. 137 (App. Div. 1970). And, inasmuch as the real nature of the case has been found to be a dispute between the two principals rather than a derivative action on behalf of the corporate entity, the application for counsel fees must also be denied. See Grober v. Kahn, supra; Sarner v. Sarner, 38 N.J. 463 (1962).
*567 The demand for interest is denied as well. See Jardine Estates v. Donna Brook Corp., 42 N.J. Super. 332 (App. Div. 1956). The claims of Lauricella are dismissed with prejudice.
2. Claim of ICC
ICC seeks judgment against Lauricella in the sum of $13,708.51, representing the difference between its $88,494.41 breach of contract claim found by the Chancery Division and the $74,785.90 which it collected from the receiver. The claim was based on the allegation that Lauricella maliciously caused 6818 to breach the contract; in view of the factual finding that Lauricella did not act maliciously, that theory of recovery must fail.
Nor would it be otherwise appropriate to ignore the corporate entities in this phase of the case. In this aspect of their dealings Lauricella and Introcaso undertook to arrange a contract between their two corporate entities; in so doing, they accepted the benefits and assumed the burdens of the limitation on their respective personal liabilities. Nothing has been shown to warrant disregarding the corporate form to permit further recovery by ICC. The claim of ICC is therefore dismissed with prejudice. Cf. White v. Evans, 117 N.J. Eq. 1 (E. & A. 1934).
II. 138-142 68th Street
[The court here resolved claims among Lauricella, Introcaso, ICC and 68th Street Apartments, Inc., a New Jersey corporation wholly owned by Introcaso, arising out of a separate building project at 138-142 68th Street, Guttenberg, New Jersey.]
NOTES
[1] The receiver similarly concluded that "the failure of the project to go forward was not the fault of Mr. Introcaso" and that "the project failed to proceed to completion because of the fault of Mr. Lauricella"; those collateral findings were previously determined not to be controlling in this proceeding. See Mazzilli v. Accident & Cas. Ins. Co., supra.
[2] The rules of law which apply to partners apply also to joint venturers. See Jackson v. Hooper, 76 N.J. Eq. 185, 198 (Ch. 1909), rev'd on other grounds, 76 N.J. Eq. 592; Wittner v. Metzger, 72 N.J. Super. 438 (App. Div.), certif. den. 37 N.J. 228 (1962).
[3] The partnership or joint venture theory was not advanced in the pleadings or pretrial order; it was fully aired at trial, however, and in post-trial briefs and is therefore properly resorted to in determining the issues. R. 4:9-2; Fluoro Electric Corp. v. Smith Transport Ltd., 58 N.J. Super. 287, 294 (App. Div. 1959) aff'd 32 N.J. 277 (1960). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/842974/ | 731 N.W.2d 85 (2007)
PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
James John GIOVANNINI, Defendant-Appellee.
Docket No. 131631. COA No. 261017.
Supreme Court of Michigan.
May 18, 2007.
On order of the Court, the application for leave to appeal the June 20, 2006 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
CORRIGAN, J., dissents and states as follows:
I dissent from the majority's decision to deny leave to appeal. The Court of Appeals misapplied our rules of statutory construction in a published opinion and relied on rejected canons of statutory construction to hold that an offender convicted of more than one criminal offense may be eligible for youthful trainee status under the Holmes Youthful Trainee Act (HYTA), MCL 762.11. Because the Court of Appeals analysis is flawed and the result may be incorrect, I would grant leave to appeal.
The Court of Appeals analysis contains three flaws. First, the Court of Appeals erred in holding that MCL 762.11 is ambiguous. At the time defendant sought trainee status under the HYTA, the statute provided, in pertinent part:
If an individual pleads guilty to a charge of a criminal offense, other than a felony for which the maximum punishment is life imprisonment, a major controlled substance offense, or a traffic offense, committed on or after the individual's seventeenth birthday but before his or her twenty-first birthday, the court of record having jurisdiction of the criminal offense may, without entering a judgment of conviction and with the consent of that individual, consider and assign that individual to the status of youthful trainee. [MCL 762.11 (emphasis added).]
"[A] provision of the law is ambiguous only if it `irreconcilably conflict[s]' with another provision or when it is equally susceptible to more than a single meaning." Lansing Mayor v. Public Service Comm., 470 Mich. 154, 166, 680 N.W.2d 840 (2004) (internal citation omitted; emphasis in original). "[A] finding of ambiguity is to be reached only after `all other conventional means of [] interpretation' have been applied and found wanting." Id. at 165, 680 N.W.2d 840, quoting Klapp v. United Ins. Group Agency, Inc., 468 Mich. 459, 474, 663 N.W.2d 447 (2003). The meaning of MCL 762.11 can be determined from its text and by using conventional means of statutory construction, including the use of MCL 8.3b.[1] Nothing in MCL 762.11 conflicts or makes it equally susceptible to more than one meaning.
*86 Second, the Court of Appeals improperly held that the HYTA should be liberally construed because it is a remedial statute.
We do not apply preferential rules of statutory interpretation . . . without first discovering an ambiguity and attempting to discern the legislative intent underlying the ambiguous words. Crowe v. Detroit, 465 Mich. 1, 13, 631 N.W.2d 293 (2001). Only if that inquiry is fruitless, or produces no clear demonstration of intent, do we resort to a preferential or "dice-loading" rule. [Koontz v. Ameritech Services, Inc., 466 Mich. 304, 319, 645 N.W.2d 34 (2002).]
See also DeRose v. DeRose, 469 Mich. 320, 353, 666 N.W.2d 636 (2003) (Kelly, J., dissenting). Because MCL 762.11 is unambiguous, the Court of Appeals should not have resorted to preferential "dice-loading" rules of statutory construction.
Third, the Court of Appeals erred in relying on the legislative acquiescence doctrine. This Court has made clear that the legislative acquiescence doctrine is disfavored. See, e.g., People v. Anstey, 476 Mich. 436, 445 n. 7, 719 N.W.2d 579 (2006). It never applies to an unambiguous statute. Id. Because the Court of Appeals analysis is flawed in these three respects, I would grant leave to appeal to analyze MCL 762.11 using the proper rules of statutory construction.
YOUNG, J., joins the statement of CORRIGAN, J.
NOTES
[1] MCL 8.3b provides, in part, that "[e]very word importing the singular number only may extend to and embrace the plural number, and every word importing the plural number may be applied and limited to the singular number." | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1538486/ | 69 B.R. 321 (1987)
In re ATLANTIC MORTGAGE CORPORATION, Debtor.
James V. McTEVIA, Operating Trustee, Atlantic Mortgage Corporation, a Michigan corporation, Plaintiffs,
v.
Marie ADAMO, et al., Defendants.
Bankruptcy No. 84-01814-R, Adv. No. 85-1184-R.
United States Bankruptcy Court, E.D. Michigan, S.D.
January 13, 1987.
*322 Peter Nathan, Detroit, Mich., for plaintiff.
ORDER GRANTING IN PART AND DENYING IN PART TRUSTEE'S MOTION FOR SUMMARY JUDGMENT
STEVEN W. RHODES, Bankruptcy Judge.
This adversary proceeding is before the Court on the trustee's motion for summary judgment on his complaint to avoid the real estate liens claimed by the debtor's investors. The trustee contends that as a matter of law, his strong arm powers under 11 U.S.C. § 544(a)(1) defeat the investors' claims arising from mortgages and underlying promissory notes that the debtor had assigned to them.
The trustee has no objection to a summary judgment in favor of any investor who has possession of an original underlying promissory note. The Court denies the trustee's motion for summary judgment as to nine defendants who have demonstrated the existence of genuine issues of material fact under Bankruptcy Rule 7056. However, the Court grants summary judgment in favor of the trustee as to the remaining defendants.
I. The Facts
The debtor, Atlantic Mortgage Corporation, was a mortgage lender. Atlantic's business is summarized in the affidavit of Michael Anspach, the former president of Atlantic. Anspach indicated that Atlantic lent money to borrowers in exchange for promissory notes (hereinafter "underlying notes") secured by first, second, or wraparound mortgages on real estate. For operating funds, Atlantic borrowed from investors, some 200 of whom are the defendants in this case.
In a transaction with an investor, Atlantic generally assigned a mortgage and an underlying note, which were intended as security for the loan. In some cases, the value of the underlying note and mortgage equalled the amount of the loan from the investor to Atlantic; in other cases, the value of the collateral did not equal the loan amount. Some investors also received personal guarantees from Anspach or other principals of Atlantic. It was generally intended that Atlantic would make monthly payments to an investor regardless of whether it had collected from the underlying borrower.
To document the transaction, Atlantic generally delivered to an investor its own promissory note and an assignment document, assigning its interest in a specific mortgage and its interest in the mortgagor's underlying note. Many investors recorded these documents in the appropriate real estate filing offices.
In addition, Anspach stated in his affidavit that "with respect to certain investors, *323 Atlantic . . . intended to deliver the underlying borrower's note." Atlantic did not follow any regular practice in effectuating this intent, however. The original underlying note was delivered in some cases, but not in others; some investors received a copy of the underlying note. A few investors received a duplicate original of the underlying note.
II. The Parties' Contentions
The trustee argues that his "strong-arm" power under 11 U.S.C. § 544(a)(1) defeats an investor's unperfected security interest in the underlying promissory note. The trustee's power to avoid liens is set forth in 11 U.S.C. § 544:
(a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by
(1) a creditor that extends credit to the debtor at the time of the commencement of the case, and that obtains, at such time and with respect to such credit, a judicial lien on all property on which a creditor on a simple contract could have obtained such a judicial lien, whether or not such a creditor exists.
The trustee contends that the security interest of an investor who does not have actual possession of an underlying note remains unperfected, because a security interest in a negotiable note is perfected only by possession under M.C.L.A. § 440.9304(1):
A security interest in chattel paper or negotiable documents may be perfected by filing. A security interest in instruments (other than instruments which constitute part of chattel paper) can be perfected only by the secured party's taking possession, except as provided in subsections (4) and (5).[1]
The investors respond with several alternative arguments. First, they contend that a pledge of a promissory note together with a mortgage is a real estate transaction; therefore the investors perfected their security interests by the appropriate real estate filings. This contention is discussed in Part III, below.
Second, the investors contend that circumstances of misrepresentation, mistake, fraud, and the like make Atlantic a constructive trustee of the promissory notes for them; therefore this property is not included in the bankruptcy estate, and the investors' claims are prior to the trustee's. This argument is discussed in Part IV of this opinion.
Third, the investors contend that certain transactions involved sales, not assignments for security; therefore Atlantic had no equitable title to pass to the bankruptcy estate. This argument is discussed in Part V of this opinion.
III. The Investors' Security Interests
A. The Uniform Commercial Code Provisions
The investors argue that real estate law, not the Uniform Commercial Code, applies to these transactions. In support, the investors cite M.C.L.A. § 440.9104(j), which provides:
This article does not apply:
* * * * * *
(j) except to the extent that provision is made for fixtures in section 9313, to the creation or transfer of an interest in or lien on real estate, including a lease or rents thereunder.
In response, the trustee contends that a security interest in an underlying note is governed by Article 9 of the Uniform Commercial Code, regardless of its relationship to real estate collateral. The trustee cites M.C.L.A. § 440.9102(3), which provides:
The application of this article [Article 9] to a security interest in a secured obligation is not affected by the fact that the obligation is itself secured by a transaction or interest to which this article does not apply.
Thus, M.C.L.A. §§ 440.9102(3) and 440.9104(j) present an apparent conflict in their application to these facts.
*324 B. The Maryville Case
In Peoples Bank of Polk County v. McDonald, (In re Maryville Savings & Loan Corp.), 743 F.2d 413 (6th Cir.1984), supplemented, 760 F.2d 119 (6th Cir.1985), the court addressed this issue. There, the Maryville Savings & Loan had assigned, as collateral for a loan from Peoples Bank, certain promissory notes secured by deeds of trust encumbering real property. Peoples Bank recorded the assignment in the appropriate real estate filing office, but did not take possession of the underlying promissory notes. After Maryville filed for bankruptcy, the trustee asserted that the bank's security interest was unperfected, because the bank had not taken possession of the underlying notes.
The court held that choosing between either real estate law or the Uniform Commercial Code,
fail[ed] to give meaningful scope, depending on the result reached, either to § 9-102 or § 9-104(j). . . . We are persuaded that §§ 9-102(3) and 9-104(j) may be reconciled by holding in this case that article nine be applied in regard to the promissory notes but not in regard to the deeds of trust. 743 F.2d at 415-16.[2]
The court concluded from Official Comment 4 to § 9-102 that the security interest in the underlying notes should be analyzed separately from the interest in the deeds of trust:
The owner of Blackacre borrows $10,000 from his neighbor, and secures his note by a mortgage of Blackacre. This Article [Chapter] is not applicable to the creation of the real estate mortgage. However, when the mortgagee in turn pledges this note and mortgage to secure his own obligation to X, this Article [Chapter] is applicable to the security interest thus created in the note and the mortgage. Whether the transfer of the collateral for the note, i.e., the mortgagee's interest in Blackacre requires further action (such as recording an assignment of the mortgagee's interest) is left to real estate law. See Section 9-104(j).
Tenn.Code Ann. § 47-9-102 comment 4 (emphasis added).
Id. at 415.
Due to a 1966 amendment, Official Comment 4 as adopted in Michigan law differs from the Tennessee version on which the court relied in Maryville. The Michigan amended version, however, supports the result reached in Maryville even more clearly. It provides:
4. An illustration of subsection (3) is as follows:
The owner of Blackacre borrows $10,000 from his neighbor, and secures his note by a mortgage on Blackacre. This Article is not applicable to the creation of the real estate mortgage. Nor is it applicable to a sale of the note by the mortgagee, even though the mortgage continues to secure the note. However, when the mortgagee pledges the note to secure his own obligation to X, this Article applies to the security interest thus created, which is a security interest in an instrument even though the instrument is secured by a real estate mortgage. This Article leaves to other law the question of the effect on rights under the mortgage of delivery or non-delivery of the mortgage or of recording or non-recording of an assignment of the mortgagee's interest. See Section 9-104(j). But under Section 3-304(5) recording of the assignment does not of itself prevent X from holding the note in due course. MCLA § 440.9102, Comment 4.
See also Maryville, 743 F.2d at 416, n. 1.
Accordingly, the Court concludes that an investor's interest in a mortgage assigned to him must be analyzed separately from that investor's interest in the corresponding underlying note.
C. An Investor's Security Interest in an Underlying Note
Because the Uniform Commercial Code requirements for perfecting a security *325 interest apply to such a note, an investor without possession of the underlying note holds a mere unperfected security interest. M.C.L.A. § 440.9304(1). The trustee's rights under 11 U.S.C. § 544(a)(1), equivalent to those of a judgment lien creditor, defeat the unperfected security interest. M.C.L.A. § 440.9301(1)(b).
D. An Investor's Interest in an Assigned Mortgage
In analyzing an investor's interest in an assigned mortgage, the question becomes whether the assigned mortgage gives the investor any rights independent of the rights given to the investor by the underlying note. In a supplemental opinion in Maryville, the court applied state law to this issue. 760 F.2d 119 (6th Cir.1985) The court concluded that under Tennessee law, a deed of trust by itself does not carry a right to the non-foreclosure proceeds of the corresponding promissory note. The court did not decide whether a deed of trust still carries a right to foreclosure proceeds, but it intimated that the result might be different. Id. at 421.
In Michigan law, a mortgage which has been severed from the corresponding promissory note does not entitle the mortgage holder to collect the indebtedness or to take possession of the real property. The Michigan Supreme Court has held:
In natural justice and equity, the principal right of the mortgagee is to the money when due, and his right to the land is only as security for the payment of the money, the debt being merely collaterally secured by the mortgage on real estate.
Dougherty v. Randall, 3 Mich. 581, 587 (1855), (citing Matthews v. Wallwyn, 4 Ves. 128, and Dudley v. Caldwell, 18 Conn. 218.)
More recently, that court has held:
[T]he mortgage instrument, without any debt, liability or obligation secured by it, can have no present legal effect as a mortgage or an incumbrance upon the land.
Ginsberg v. Capitol City Wrecking Co., 300 Mich. 712, 717, 2 N.W.2d 892 (1942), quoting Ladue v. Detroit & Milwaukee Railroad Co., 13 Mich. 380 (1865).
Thus, if an investor's interest in the underlying debt is subordinate to the trustee's, the investor's superior interest in the mortgage does not give the investor any right to collect the debt. With the possible exception of those transactions involving sales of notes, rather than assignments for security, there is no evidence of any debt owed directly from an original mortgagor to an investor. The mortgage and assignment demonstrate that two distinct debts were intended the mortgagor's debt to Atlantic and Atlantic's debt to the investor.
Consequently, the Court concludes that an investor without possession of the underlying note retains no rights incident to either the note or the mortgage. Any resulting lien on the real estate must be set aside in favor of the trustee, as the investor is merely an unsecured creditor of Atlantic.[3]
IV. Equitable Relief for Certain Investors
A. The Investors' Invocation of a Constructive Trust
1.
Although the investors invoke various equitable doctrines, the Court concludes *326 that these arguments can most appropriately be addressed in the context of constructive trust doctrine. Some investors have submitted affidavits alleging facts, which if proven at trial, might justify relief under this doctrine. Accordingly, the Court finds that summary judgment is inappropriate as to these investors.
In deciding the trustee's motion for summary judgment, the Court inquires whether a genuine issue of material fact exists, Felix v. Young, 536 F.2d 1126 (6th Cir. 1976), viewing the evidence in the light most favorable to the defendants, who oppose the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.1979).
A party cannot, however, defeat an opponent's motion for summary judgment with mere allegations. Federal Rule of Civil Procedure 56(e), incorporated in Bankruptcy Rule 7056, provides:
When a motion for summary judgment is made and supported [by an affidavit] as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
2.
Whether or to what extent a constructive trust will be imposed upon a particular asset, even by a federal court upon assets of a debtor in bankruptcy, is a matter of state law. Jaffke v. Dunham, 352 U.S. 280, 77 S.Ct. 307, 1 L.Ed.2d 314 (1957). See also Clemens v. Clemens, 472 F.2d 939, 942 (6th Cir.1972). Under Michigan law, a constructive trust can be imposed in circumstances of misrepresentation, concealment, mistake, undue influence, breach of fiduciary or confidential relationship, or fraud, among others. Potter v. Lindsay, 337 Mich. 404, 411, 60 N.W.2d 133 (1953); Grasman v. Jelsema, 70 Mich.App. 745, 752, 246 N.W.2d 322 (1976); Chapman v. Chapman, 31 Mich.App. 576, 580, 188 N.W.2d 21 (1971). Potter also refers to constructive fraud, duress, taking advantage of weakness, questionable means, and accident, 337 Mich. at 410-12, 60 N.W.2d 133.
This remedy transfers equitable rights in property that is wrongfully acquired or unconscionably withheld, or that unjustly enriches a third party. E.g. Omaha National Bank v. T & T Parts Warehouse, 39 B.R. 399, 401-02 (Bankr.W.D. Mich.1984); Kent v. Klein, 352 Mich. 652, 656-58, 91 N.W.2d 11 (1958); Nelson v. Woodworth, 363 Mich. 244, 250, 109 N.W.2d 861 (1961); Grasman, 70 Mich. App. at 752, 246 N.W.2d 322; Chapman, 31 Mich.App. at 579, 188 N.W.2d 21.
A constructive trust is only appropriate, however, where there are no intervening rights of bona fide purchasers, Potter, 377 Mich. at 411, 60 N.W.2d 133, and where it would be inequitable not to impose a constructive trust. Havens v. Schoen, 108 Mich.App. 758, 762, 310 N.W.2d 870 (1981); Arndt v. Vos, 83 Mich.App. 484, 487, 268 N.W.2d 693 (1978).
3.
The trustee has supported his motion by an affidavit of Michael Anspach, the former president of Atlantic, describing these transactions. As a result, the Court must find that an investor has not adequately disputed Anspach's statements, thereby demonstrating genuine issues of fact, unless the investor has stated such facts in an affidavit as required by the rule.[4]See: First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968). *327 Accordingly, as to all investors except those in possession of an underlying note, as discussed above, and the nine investors listed below who have submitted sufficient affidavits, summary judgment shall be granted in favor of the trustee.
The following nine investors filed affidavits demonstrating genuine issues of material fact in accordance with Federal Rule of Civil Procedure 56(e): Ethel Benjamin,[5] Mildred Fritz, Kathleen Kamish, Ethel Pliskow, individually, Ethel Pliskow as trustee for Harold Pliskow, M.D., P.C., Profit Sharing Trust, Ethel Pliskow as trustee for Harold Pliskow, M.D., P.C., Pension Plan, Ghulam Qadir as trustee for Ghulam Qadir, P.C., Pension Plan, Ghulam Qadir as trustee for Ghulam Qadir, P.C., Profit Sharing Plan, and Carl Varadian.
Defendant Ghulam Qadir stated in his affidavit that Atlantic's agents showed him specific properties, inviting him to invest directly in the properties. Qadir alleged that Atlantic's agents said his investment would be secured by specific mortgages which Atlantic would service. These agents allegedly said Atlantic would retain no other interest in the properties, other than as Qadir's servicing agent. Qadir further alleged reliance on these representations in making his investments.
Some defendants have stated in their affidavits that their mortgages were discharged without their authorization. Ethel Pliskow, individually and as trustee of two employee benefit plans, alleges that Atlantic refinanced one mortgage and discharged another, both without authorization. She further states that Atlantic collected the indebtedness in full on both mortgages without remitting the proceeds, contrary to her agreement with Atlantic. Ethel Pliskow additionally states that she relied on Atlantic's president, Michael Anspach, to assign a perfected lien because he concurrently acted as the attorney for the professional corporation for whose benefit plans Pliskow is now trustee.
Carl Varadian's affidavit states that a discharge of a mortgage purporting to bear his signature, but which he did not sign or authorize anyone to sign for him, was recorded on a different liber and page of Macomb County records than his mortgage.
Some defendants state in their affidavits that Atlantic misrepresented that the documents conveyed a properly perfected security interest. Mildred Fritz's affidavit states that a vice president of Atlantic assured her "we will always send you all of the necessary documents," and "your investments will be as safe as possible." She further stated that she invested in several Atlantic mortgages in reliance on these representations, although Atlantic delivered only a copy of the underlying note.
Ethel Benjamin similarly states in her affidavit that she was informed and believed that she had a fully perfected assignment of the underlying note as a result of Atlantic's delivery of the copy of the underlying note.
Kathleen Kamish states in her affidavit that she received a folder purporting to contain the documents listed in Atlantic's "Offering Circular." In reliance on the Offering Circular, she did not examine the documents until after the petition in bankruptcy was filed; at that time, she discovered only a copy of the underlying note. A copy of an Atlantic Securities Corporation Offering Circular, submitted with the trustee's brief (Exhibit A, Pleading 141), lists on page 5 the "Executed mortgage note, endorsed to investor" among other documents investors were to receive as part of *328 their transactions.[6] Kamish further alleged that the mortgage was for less than half the amount she invested.
When amplified by appropriate proofs and tested by trial, these allegations may meet the applicable standard for imposition of a constructive trust. Accordingly, the Court finds that the existence of genuine disputes as to these facts precludes summary judgment in these cases.
B. The Effects of a Constructive Trust
1.
The facts in dispute are clearly material facts under Federal Rule of Civil Procedure 56. If an investor is successful in claiming a constructive trust, his rights in the mortgage and underlying promissory note will be superior to the trustee's rights. A constructive trust is not a trust at all, but a remedial device by which a beneficial interest is transferred. Kent v. Klein, 352 Mich. 652, 656, 91 N.W.2d 11 (1958). The equitable owner, who would have had legal title but for the mistake, fraud, etc., which warranted the imposition of the trust, receives it. The constructive trustee, who would be unjustly enriched if he were permitted to retain property which equitably belongs to another, is duty-bound to convey it. See McCreary v. Shields, 333 Mich. 290, 294, 52 N.W.2d 853 (1952).
Accordingly, if an investor proves at trial that a constructive trust should be imposed, that investor will be deemed to have had possession of the underlying promissory note, held for the investor by Atlantic; thus, that investor will be deemed to have perfected his security interest.
2.
The Court finds that such a constructive trust would commence at the time of Atlantic's actions that justify the imposition of the constructive trust. The Michigan Supreme Court similarly allowed a constructive trust to relate back in Soo Sand & Gravel Co. v. M. Sullivan Dredging Co., 259 Mich. 489, 494-95, 244 N.W. 138 (1932). The result in that case was the retroactive transfer of the ownership of property, and a right of action brought there under, from the president of a corporation to the corporation, due to a mistake. See also United States v. Fontana, 528 F.Supp. 137, 146 (D.C.S.D.N.Y.1981); Central Trust Co. v. Shepard, 29 B.R. 928, 932 (Bankr.M.D.Fla. 1983).
Allowing a constructive trust to relate back is consistent with Michigan doctrine. A constructive trust is not a technical trust. "A court of equity, in decreeing a constructive trust, is bound by no unyielding formula as the equity of the transaction must shape the measure of relief." Olitkowski v. St. Casimir's Saving & Loan Assoc., 302 Mich. 303, 309, 4 N.W.2d 664 (1942). "Constructive trusts have been said to arise through the application of the doctrine of equitable estoppel, or under the broad doctrine that equity regards and treats as done what in good conscience ought to be done." Haack v. Burmeister, 289 Mich. 418, 425, 286 N.W. 666 (1939).
In the instant case, if an investor shows that Atlantic improperly withheld possession of an underlying promissory note, then the Court will regard possession as having been transferred when Atlantic first improperly withheld possession.
3.
A constructive trust will have a different effect in the case of an investor who proves that his transaction with Atlantic was an outright sale. In those cases, the constructive trust will effectively convey ownership of the documents, not mere possession. (See part V of this opinion.)
4.
The Court further holds that a constructive trust can be imposed only on either the property which should have been conveyed, or on proceeds traceable from that property. Toys "R" Us v. Esgro, Inc., *329 645 F.2d 794, 797-98 (9th Cir.1981); Wisconsin v. Reese, (In the Matter of Kennedy & Cohen, Inc.), 612 F.2d 963, 966-67 (5th Cir.1980), (Order of the District Court, appended to opinion). Cf. In re Datair Systems Corp., 42 B.R. 241 (Bankr.N.D.Ill. 1984).
The investors urge the Court to waive the necessity of tracing proceeds, citing Heyman v. Kemp, (In re Teltronics, Ltd.), 649 F.2d 1236, 1240-41 (7th Cir.1981). The Teltronics exception to the tracing rule of Cunningham v. Brown, 265 U.S. 1, 44 S.Ct. 424, 68 L.Ed. 873 (1924), does not apply here. The Teltronics exception, taken from dicta in Cunningham, 265 U.S. at 11, 44 S.Ct. at 426, applies where "abandoning the rule result[s] in equal treatment of the defrauded customers." 649 F.2d at 1240.
In the present case however, Atlantic's many investors, including the defendants here, find themselves in a variety of positions as a result of Atlantic's irregular treatment of their transactions and as a result of the course of litigation. There is no opportunity for the many investors to recover pro rata from a common pool, and hence, defendants must identify specific property in which they have rights.
Bankruptcy Courts must be especially careful in imposing constructive trusts on what would otherwise be property of the bankruptcy estate, since imposing such constructive trusts amounts to giving the beneficiary a non-statutory priority over other creditors in distribution of estate assets.
Bistate Oil Co. v. Heston Oil Co., 63 B.R. 711, 714 (Bankr.N.D.Okl.1986), paraphrasing U.S. v. Randall, 401 U.S. 513, 91 S.Ct. 991, 28 L.Ed.2d 273 (1971) (concerning a tax trust). Although this advice begs the question whether the assets equitably belong to the bankruptcy estate or to a third party, it is particularly apt with respect to the issue of tracing. Imposing a constructive trust on the assets of the estate which have not been traced to a specific constructive trust res disrupts the policy of the Bankruptcy Code which establishes the priority of certain creditors, and treats all others equally pro rata. See the extensive discussion of tracing in constructive trusts in bankruptcy in Merrill v. Abbott, (In re Independent Clearing House Co.), 41 B.R. 985, 1000-04 (Bankr.D.Utah 1984), aff'd in part, rev'd in part, 62 B.R. 118 (D.Utah 1986).
Accordingly, the Court concludes that a constructive trust cannot be enforced in bankruptcy unless it attaches traceable proceeds.
5.
In the present case where the underlying note and mortgage are still effective, a constructive trust on possession of an underlying note would not necessitate tracing. However, an investor whose underlying note is extinguished would not benefit from a constructive trust on the note. Such an investor must point to property traceable from proceeds of the note.
Ethel Benjamin, for example, entered into a stipulation with the trustee to transfer her interest in a mortgage to its proceeds, to be held pending the outcome of this proceeding, because the mortgagors paid the debt in full.[7]
For further example, Ethel Pliskow states in her affidavit that the mortgage assigned to her for 26330 Normandy, Franklin, Michigan was re-financed. If a new mortgage or note is demonstrated to be proceeds through re-financing, a constructive trust may attach that property.
C. The Trustee's Arguments Against Imposition of a Constructive Trust
The trustee contends that the policies embodied in the Bankruptcy Code override any state law doctrine concerning constructive trusts. While this assertion has merit to the extent of a conflict, it does not preclude the imposition of a constructive *330 trust where it would not frustrate the policies of the Bankruptcy Code.
The trustee compares a constructive trust to an equitable lien, contending that a trustee's rights under 11 U.S.C. § 544(a)(1) are superior to those of an equitable lien holder because an equitable lien is treated under the Uniform Commercial Code as an unperfected security interest. Starr v. Bruce Farley Corp., 612 F.2d 1197 (9th Cir.1980); Hassett v. Revlon, Inc., (In re OPM Leasing Services, Inc.), 23 B.R. 104, 120 (Bankr.S.D.N.Y.1982). The argument lacks merit. These cases apply only to equitable liens and do not extend to constructive trusts or to equitable remedies in general.
Constructive trusts are enforced in bankruptcy, albeit with caution. E.g., Wisconsin v. Reese, (In re Kennedy & Cohen, Inc.), 612 F.2d 963 (5th Cir.1980), cert. denied, 449 U.S. 833, 101 S.Ct. 103, 66 L.Ed.2d 38 (1980); McAllester v. Aldridge, (In re Anderson), 30 B.R. 995 (M.D.Tenn. 1983); In re American Intern. Airways, 44 B.R. 143 (Bankr.E.D.Pa.1984); Kagan v. Martin, (In re Tufts Electronics, Inc.), 34 B.R. 455 (Bankr.D.Mass.1983); Travelers Insurance Co. v. Angus, 9 B.R. 769 (Bankr.D.Or.1981).[8]
Moreover, the imposition of a constructive trust means that the property is excluded from the bankruptcy estate. Under 11 U.S.C. § 541(d), such property becomes property of the estate only to the extent of the debtor's legal title and not to the extent of any equitable interest which the debtor does not hold. Thus, the imposition of a constructive trust limits the debtor's equitable interest in property which can be passed on to the trustee. Lambert v. Flight Transportation Corp., (In re Flight Trans. Corp. Securities Litigation), 730 F.2d 1128, 1136-37 (8th Cir. 1984), cert. denied sub nom., Reavis McGrath v. Antinore, 469 U.S. 1207, 105 S.Ct. 1169, 84 L.Ed.2d 320 (1985); In re Kennedy & Cohen, Inc., 612 F.2d at 966, (Order of District Court, appended to opinion); Cook v. United States Commodity Credit Corp., (In re Earl Roggenbuck Farms), 51 B.R. 913 (E.D.Mich.1985).
The trustee argues that his strong-arm powers under § 544 supersede the limitations on property of the estate in § 541. Specifically, the trustee contends that through § 544, he can bring into the bankruptcy estate those assets that are subject to a constructive trust that attaches after the bankruptcy petition is filed.
The difficulty with this argument is that the constructive trusts arose, if at all, pre-petition. As noted above, a constructive trust arises when the events which result in the constructive trust occur. Thus in this case, the constructive trusts arose when the investors were defrauded either in the initial transactions or later when Atlantic disposed of collateral. In any case these events occurred before the filing of the bankruptcy petition.
As a general rule, it must be held that section 541(d) prevails over the trustee's strong-arm powers. Although those powers allow a trustee to assert rights that the debtor itself could not claim to property, Congress did not mean to authorize a bankruptcy estate to benefit from property that the debtor did not own. Where state law impresses property that a debtor holds with a constructive trust in favor of another, and the trust attaches prior to the petition date, the trust beneficiary normally may recover its equitable interest in the property through bankruptcy court proceedings.
Vineyard v. McKenzie, (In the Matter of Quality Holstein Leasing), 752 F.2d 1009, *331 1013-1014 (5th Cir.1985). See also Flight Trans. Corp. at 1136-37.
The Court also rejects the trustee's argument that constructive possession cannot be used to perfect a security interest. Unquestionably, a debtor is not ordinarily an agent in possession for its secured creditor. Official Comment 2 to M.C.L.A. § 440.9305; Starr v. Bruce Farley Corp., 612 F.2d 1197 (9th Cir.1980); Huffman v. Wikle, (In re Staff Mortgage and Investment Corp.), 550 F.2d 1228 (9th Cir.1977); In re North American Builders, 320 F.Supp. 1229 (D.Neb.1970). These authorities, however, do not address cases in which the additional equitable considerations warrant the imposition of a constructive trust.
A constructive trust is particularly appropriate to perfect the investor's security interest if the trust arises from the very actions which prevented the investor from perfecting his own position. In such circumstances it is disingenuous to assert that the investor should have protected himself by taking possession which Atlantic denied him. This reasoning was approved by the court in dicta in Bruce Farley Corp.:
Finally, appellee argues that even if a constructive trust might otherwise be available, the policy of the Bankruptcy Act is adverse to the recognition of such a claim in bankruptcy where the party making such a claim failed to comply with available procedures for perfecting a legal lien. [Citations omitted.] Whatever the validity of this argument in other contexts, it cannot apply when the party was prevented from taking possession and thus perfecting his legal lien by the very wrongful detention which is the grounds for the claim for relief based upon constructive trust. To hold otherwise would leave the parties in appellants' position no way to protect themselves short of filing an action to recover possession of the instruments. 612 F.2d at 1201.
Similarly, in Craig v. Union County Bank, (In re Crabtree), 48 B.R. 528, 532 (Bankr.E.D.Tenn.1985), a bank mistakenly retained possession of property securing a note when it assigned the note to an assignee. The court imposed a constructive bailment and held that the bank was a constructive bailee for the assignee.
In conclusion, the Court rejects the trustee's legal arguments against the imposition of a constructive trust in these circumstances.[9]
V. The Transactions Involving Sales of the Underlying Promissory Notes
Some investors have alleged in affidavits that their transactions with Atlantic involved sales of the underlying promissory notes, not assignments for security. For example, Kathleen Kamish alleges that she purchased the underlying note, relying upon Atlantic's "Offering Circular." This circular, a copy of which was submitted with the pleadings, advertises securities for sale. (Exhibit A, pleading 141) The trustee, however, contends that Atlantic's transaction with Kamish was a secured loan, not a sale, citing Kamish's statement that she received a note executed by Atlantic as obligor, guaranteed by Michael Anspach, as part of the transaction.
Ghulam Qadir also alleges reliance upon Atlantic's representations that Atlantic would act only as servicing agent on the mortgages and would have no other interest in the real estate.
Whether these transactions constitute a sale, and if so, whether the securities advertised for sale were Atlantic's notes or the underlying promissory notes, are questions of fact.
The question whether the underlying promissory notes were sold is material. 11 U.S.C. § 541(d) excludes certain property from the bankruptcy estate, specifically exemplified by equitable interests in secondary mortgage market transactions.
*332 (d) Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest, such as a mortgage secured by real property, or an interest in such a mortgage, sold by the debtor but as to which the debtor retains legal title to service or supervise the servicing of such mortgage or interest, becomes property of the estate under subsection (a)(1) or (2) of this section only to the extent of the debtor's legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold. [Emphasis added.]
In enacting this provision, Congress anticipated disputes about whether such transactions are sales or secured loans.
The purpose of section 541(d) as applied to the secondary mortgage market is therefore to make certain that secondary mortgage market sales as they are currently structured are not subject to challenge by bankruptcy trustees and that purchasers of mortgages will be able to obtain the mortgages or interests in mortgages which they have purchased from trustees without the trustees asserting that a sale of mortgages is a loan from the purchaser to the seller.
124 Cong.Rec. S 17,413 (Oct. 6, 1978). See also 124 Cong.Rec. H 11,096 (Sept. 28, 1978).
The legislative history was interpreted in In re Columbia Pacific Mortgage, Inc., 20 B.R. 259, 262 (Bankr.W.D.Wash.1981) to embody an "express purpose of Congress. . . . to exempt secondary mortgage market transactions from compliance with state recording statutes and Article 9 of the Uniform Commercial Code. . . ."
In Colin v. Fidelity Standard Mortgage Corp., 36 B.R. 496, 500 (Bankr.S.D.Fla. 1983), the court reviewed the factors to be considered in determining whether § 541(d) would apply to protect a sale in these circumstances:
If the investor and debtors agreed on what specific mortgage interest was to be assigned to the investor, with the debtors' assent being evidenced by any writing which links the investor and the specific mortgage interest; if the investor paid in full for the mortgage interest; and if that mortgage was in existence (having been funded and not repaid or foreclosed); then the plaintiffs' interests in the various mortgages should be protected under § 541(d). If, on the other hand, the particular facts represent a transaction in progress, with no sale complete, or if the documentation instead represents an attempt by the debtors to defraud investors or has some other basis than the necessities of the secondary mortgage market, it will not be protected by § 541(d).
See also In re Mortgage Funding, Inc., 48 B.R. 152, 155 (Bankr.D.Nev.1985).
As noted in Fidelity Standard, a purpose of § 541(d) is to protect secondary mortgage market transactions from being reformed in bankruptcy, but not to protect or remedy fraud. After reviewing the mortgage lender's "unorthodox" business practices, 36 B.R. at 497, and noting that the sufficiency of recordation and delivery varied among transactions, the court created a presumption that the transactions were handled irregularly in order to facilitate the transfer and servicing of mortgages.
Although there were slight suggestions of fraud and ignorance of the mortgage business or of good business practice generally, there was insufficient evidence that any of these was the reason for the debtors' failure to execute or record assignments of mortgages. Therefore the presumption stands and the debtors' operations generally will be deemed to be sanctioned by § 541(d). Id. at 500.[10]
*333 These authorities indicate that whether these transactions involved sales or secured loans involve substantial questions of fact not suitable for resolution at this time. Accordingly, the Court finds that there are genuine issues of material fact concerning the application of 11 U.S.C. § 541(d) to these transactions. For this additional reason, the Court denies the motion for summary judgment as to defendants Kamish and Qadir.
VI. Conclusion
Accordingly, IT IS HEREBY ORDERED that the trustee's motion for summary judgment be denied as to any defendant who has demonstrated possession of an underlying promissory note. Declaratory judgment will be entered to the effect that such an investor has a valid perfected security interest in the underlying promissory note and mortgage, and that such interest is superior to any rights of the trustee.
IT IS FURTHER ORDERED that the trustee's motion for summary judgment be denied as to nine defendants who have filed affidavits stating facts which may entitle them to equitable relief. Those defendants are: Ethel Benjamin, Mildred Fritz, Kathleen Kamish, Ethel Pliskow, individually, Ethel Pliskow, as trustee for Harold Pliskow, M.D., P.C., Profit Sharing Trust, Ethel Pliskow, as trustee for Harold Pliskow, M.D., P.C., Pension Plan, Ghulam Qadir as trustee for Ghulam Qadir, P.C., Pension Plan, Ghulam Qadir, as trustee for Ghulam Qadir, P.C., Profit Sharing Plan, and Carl Varadian.
IT IS FURTHER ORDERED that the trustee's motion for summary judgment be granted as to any other defendant who has not demonstrated possession of an underlying promissory note, who has not filed an affidavit alleging facts which may give rise to equitable relief, and who has not executed a settlement with the trustee. Declaratory judgment will be entered to the effect that such an investor has an unsecured claim only, and that such an investor's legal rights in an underlying promissory note and mortgage are inferior to the trustee's legal rights.
An appropriate order may be submitted pursuant to Local Bankruptcy Rule 120.
NOTES
[1] Subsections (4) and (5) do not apply here.
[2] Sections 9-102 and 9-104(j) of the Uniform Commercial Code are replicated in Tenn.Code Ann. §§ 47-9-102 and 47-9-104, on which the court relied in Maryville, and in Michigan law, M.C.L.A. §§ 440.9102 and 440.9104.
[3] Although an investor may have thought he had a secured investment, a creditor may not ordinarily rely on its debtor to perfect the creditor's own security interest. Associates Commercial Corp. v. Trim-Lean Meat Products, 5 B.R. 190, 191 (Bankr.D.Del.1980), aff'd, 10 B.R. 333 (D.C.Del.1981). The Court will not embellish or strain the provisions of the Uniform Commercial Code to adjust the rights of the parties. "[A] fundamental purpose of Article 9 is . . . to create commercial certainty and predictability by allowing third party creditors to rely on the specific perfection and priority rules that govern collateral within the scope of Article 9." Carlson v. Tandy Computer Leasing, 803 F.2d 391, 394 (8th Cir.1986). Where equitable relief is otherwise available to the parties, however, the Uniform Commercial Code does not proscribe its application.
[4] Edward Goodman, as trustee for Moe and Rose Goodman, filed an affidavit, but it did not state any facts which could entitle him to equitable relief. It merely recited his former belief that he held a perfected security interest, without stating any reliance on Atlantic's actions in forming that belief. Consequently, summary judgment must be granted against Edward Goodman, trustee.
[5] Ethel Benjamin's affidavit concerns her interest in two properties known as 15171 Paris Avenue, Allen Park, Michigan, and 25377 Palomino in Macomb County. These two properties were not included in her settlement with the trustee concerning another property filed on November 18, 1986.
Other investor defendants have settled with the trustee during the pendency of this adversary proceeding; obviously, this decision does not affect those investors or those settlements.
[6] Atlantic Mortgage Corporation's former president, Michael Anspach, states in his affidavit that Atlantic Securities Corporation was a wholly independent corporation from Atlantic Mortgage Corporation. He was 100% shareholder of Atlantic Securities Corporation. There is thus a question of what circular Kamish relied on, and the reasonableness of that reliance.
[7] This stipulation concerns the property known as 15171 Paris Avenue, Allen Park, Michigan, but not the property known as 25377 Palomino in Macomb County, in which Benjamin also claims an interest.
[8] Cf. Torres v. Eastlick, (In re North American Coin & Currency, Ltd.), 767 F.2d 1573, 1575 (9th Cir.1985), amended, 774 F.2d 1390 (9th Cir. 1985), where the court would not impose a constructive trust under circumstances in which state law would permit it, but which did not rise to the level of fraud, when such a trust would allow recovery for one group of the debtor's customers, but not others, when no equitable principle distinguished the two groups.
In the instant case, the nine investors have alleged facts which on equitable grounds may distinguish them from other defendants.
[9] The trustee has raised several other arguments which the Court has considered but found not worthy of further discussion.
[10] Cf. Beutel v. Joanis, (In re Investment Sales Diversified, Inc.), 38 B.R. 446, 449-50 (Bankr.D. Minn.1984), in which the court found the § 541(d) exception for secondary mortgage market transactions inapplicable where the mortgages had been retained through inadvertence, rather than for servicing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555869/ | 36 So. 3d 221 (2010)
STATE ex rel. Theodore RATCLIFF
v.
STATE of Louisiana.
No. 2009-KH-1298.
Supreme Court of Louisiana.
May 21, 2010.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555865/ | 17 F. Supp. 151 (1936)
AMERICAN GAS & ELECTRIC CO. et al.
v.
UNITED STATES.
No. 42074.
Court of Claims.
December 7, 1936.
*152 *153 *154 *155 Thomas G. Haight, of Jersey City, N. J. (Robert H. Montgomery and J. Marvin Haynes, both of Washington, D. C., on the briefs), for plaintiffs.
James A. Cosgrove, of Washington, D. C., and Robert H. Jackson, Asst. Atty. Gen., for the United States.
Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
GREEN, Judge.
The plaintiff claims to have overpaid its tax for the years 1926 and 1927, and by reason thereof asks judgment in its petition for $1,699,264.88, with interest.
The Virginian Power Company was organized in 1912 and was part of a chain of operating companies controlled by the plaintiff. In 1924 the plaintiff organized the Appalachian Securities Corporation, and in 1925 that corporation acquired all of the assets and assumed all of the liabilities, including bonds, of the Virginian Company in exchange for 82,000 shares of its preferred stock. In the same year, and somewhat later, the Appalachian Power & Light Company, which had been organized by the plaintiff, acquired all of the assets and assumed all of the liabilities, including bonds, of the Virginian Company which had been previously assumed by the Appalachian Securities Corporation. In exchange for this property, the Appalachian Power & Light Company issued and gave 1,000,000 shares of its common stock. Following this transaction, the Appalachian Securities Corporation and the American Gas & Electric Company were consolidated under the laws of the state of New York to form the American Gas & Electric Company. All of these transactions occurred in 1925.
By November 16, 1925, the American Gas & Electric Company had acquired more than 95 per cent. of all classes of stock in the Appalachian Power Company *156 which had absorbed the operations of the Virginian Power Company. In 1926 the Appalachian Power & Light Company and the Appalachian Power Company were merged into one corporation forming the Appalachian Electric Power Company.
Both the Virginian Power Company and the Appalachian Power Company were originally subsidiaries of the plaintiff, but the various reorganizations recited above left in their place only one subsidiary, the Appalachian Electric Power Company, manufacturing and selling electricity in West Virginia.
When the Virginian Power Company transferred all of its assets and liabilities, including bonds, to the Appalachian Securities Corporation, both corporations treated the transaction as a nontaxable reorganization under sections 203 and 204 of the Revenue Acts of 1924 and 1926 (43 Stat. 256, 258, 44 Stat. 12, 14), and neither corporation reported a profit or loss therefrom in its 1925 federal income tax return. The Commissioner of Internal Revenue, after examination, approved the returns. When the Securities Corporation caused the assets and liabilities which it had acquired from the Virginian Company to be transferred to the Appalachian Power & Light Company, both companies treated the transaction as a nontaxable reorganization, and neither corporation reported a profit or loss on its 1925 federal income tax return. The Commissioner approved the returns. Neither the Securities Corporation nor the Appalachian Power & Light Company increased or decreased any values on its books on account of the assets and liabilities acquired from the Virginian Company. In computing depreciation for federal income tax purposes on the assets acquired and the profit or loss on any sale subsequent to the date of reorganization, each corporation has used the cost to the Virginian Power Company. The Commissioner of Internal Revenue, in passing upon these matters, computed the depreciation deduction on the same basis.
Both the Virginian Power Company and the Appalachian Power Company had issued and sold bonds at a discount, all of which had been issued prior to the reorganizations described above. The Appalachian Electric Power Company placed upon its books as prepaid interest the balances which had not been charged to expenses by either the Virginian Power Company, the Appalachian Power & Light Company, or the Appalachian Power Company. The Appalachian Electric Power Company, from the date it assumed the bonds, paid the interest on the bonds of the Virginian Power Company and those of the Appalachian Power Company. It also amortized the balances of the discount and expenses on the various issues of both companies in the same manner as had been followed by the Virginian Power Company and the Appalachian Power Company.
The parties have stipulated that, if the court decides that the Appalachian Electric Power Company is entitled to continue to make the deduction for unamortized bond discount and expenses which it took over when it assumed the various bond issues of the Virginian Power Company and the Appalachian Power Company, the amounts of $151,192.49 and $178,536.32 should be deducted for the years 1926 and 1927, respectively. The Commissioner refused to make any deduction for unamortized bond discount and expenses in the case of either company and computed the plaintiff's tax without giving it the benefit of any such allowance. The petition originally presented the question of the right of plaintiff to additional depreciation, but this issue has been settled by agreement in the Bureau of Internal Revenue and is no longer in controversy. Besides this, the petition sets out a claim based on the fact that the Ohio Power Company, a subsidiary of plaintiff, sold bonds at a discount which it subsequently redeemed at the callable price which was above par. The Commissioner refused to allow any deduction on account of this transaction, but it is now conceded by defendant that his action in this respect was erroneous. The only questions left to be determined arise out of the transactions involving the bonds issued by the Virginian Power Company and the Appalachian Power Company.
It will be observed that the case involves several reorganizations and mergers. Prior to these reorganizations, both the Virginian Power Company and the Appalachian Power Company had issued and sold bonds at a discount. In the course of the reorganization proceedings, these bonds were assumed by the companies that absorbed the prior organization, and the question involved in the case is whether the plaintiff, under the facts in the case, is entitled to amortize the bond discount and expenses of a predecessor corporation and take a discount therefor in its income tax *157 returns for 1926 and 1927. In this connection it will be observed that the circumstances with respect to the bonds and also as to the bond discount are different as to the bonds issued by the Virginian Power Company from those issued by the Appalachian Power Company. In both instances, however, the bonds came to the plaintiff through nontaxable reorganizations as contemplated by sections 203 and 204 of the Revenue Acts of 1924 and 1926.
The bonds of the Virginian Power Company were issued at a discount long prior to the various reorganizations, consolidations, and mergers involved in the case, and, had the Virginian Company continued in existence as it was originally organized, it would have been entitled to amortize the bond discount and take a deduction each year from gross income on account of such discount. Helvering v. Union Pacific Co., 293 U.S. 282, 55 S. Ct. 165, 79 L. Ed. 363. The question is whether under all of the circumstances in the case the plaintiff stands in the shoes of the Virginian Power Company so as to be entitled to this deduction.
The Virginian Power Company was not affiliated with plaintiff, but plaintiff owned approximately 81 per cent. of its stock, and, while that condition existed, caused the Appalachian Securities Corporation to be organized and have its stock issued to the Virginian Power Company for all of its assets, at the same time assuming all of its liabilities including the bonds in question. The Virginian Company continued in existence until some two years later, when it was dissolved. There was another reorganization and merger before the bonds were finally assumed by the Appalachian Electric Power Company, but these intermediate transactions were in the nature of consolidations or mergers and raise no additional issues. The distinguishing feature with reference to the bonds issued originally by the Virginian Power Company is that they did not become a liability of the Appalachian Electric Power Company by reason of a merger or consolidation with the issuing corporation but through a transaction in which the corporation issuing the bonds received stock for its property and as a part of the transaction the company taking over the property assumed the liability for the bonds. In other words, there was a transfer of the property of the Virginian Power Company, and in consideration of this transfer the Appalachian Securities Corporation agreed to pay the bonds. Subsequently, the property was taken over in succession by the Appalachian Power & Light Company and the Appalachian Electric Power Company. The last corporation in the chain had no right to the deductions now claimed unless each of its predecessors in liability on the bonds had a similar right.
It is contended that, if amortization is not allowed with respect to the bonds of the Virginian Company, there will be a loss by reason of discount and expenses connected with the issuance of these bonds for which no one will be allowed a deduction. It is true there was a loss, but it does not follow that the Appalachian Electric Power Company is entitled to a deduction by reason thereof. The weight of authority seems to be that in such cases where there has been a merger or consolidation of the corporation which originally issued the bonds with the corporation which subsequently assumes and becomes liable for them, the latter is entitled to a deduction for the loss sustained by reason of this liability; but, where there has been a sale or transfer of the property of the issuing corporation without a merger or consolidation with the corporation which assumes the payment of the bonds, then the successor corporation is not entitled to a deduction on account of the loss sustained by reason of the liability assumed.
The identical question now being considered was determined adversely to plaintiff in American Gas & Electric Co. v. Commissioner, 33 B.T.A. 471, 475, largely upon the authority of Turner-Farber-Love Co. v. Helvering, Commissioner, 62 App.D. C. 369, 68 F.(2d) 416, in which the facts were parallel to those in the case at bar.
It is urged on behalf of plaintiff that in the case last cited it was held that there was a sale and that in the instant case there could have been no sale in the transaction between the Virginian Company and the Securities Corporation because no gain or loss was recognized either by the parties or by the Commissioner. But, whether or not there was what might be technically called a sale, there certainly was a transfer. When the case of the American Gas & Electric Co. v. Commissioner, referred to above, was taken on appeal to the United States Circuit Court of Appeals for the Second Circuit, that court held with reference to the transaction that "under section 203 (b) (4) of the Revenue Acts of *158 1924 and 1926, no gain or loss is to be recognized upon the transfer," and it said further in its opinion, 85 F.(2d) 527, 530:
"Consequently, where there has been only a partial amortization of discount and expenses and a transfer in reorganization occurs, no further loss will be recognized, and that part of the loss which could not be taken prior to the transfer cannot be taken thereafter. While it might be more satisfactory to carry forward through the successor corporation actual unamortized losses incurred by the predecessor, we can find no warrant for this in the statute, regulations, or decisions of the courts" citing Turner-Farber-Love Co. v. Helvering, supra; New Colonial Ice Co. v. Helvering, 292 U.S. 435, 54 S. Ct. 788, 78 L. Ed. 1348; and Athol Mfg. Co. v. Commissioner (C.C. A.) 54 F.(2d) 230.
Counsel for plaintiff cites some cases which may appear to hold to the contrary but which are distinguished in the opinion from which the quotation above is taken.
It seems to be assumed by plaintiff that the right to a deduction on account of the bond discount was an asset which was transferred to the successor corporations. If it was an asset, it must have been such by reason of being a liability on the part of the government, which clearly it was not. It was merely a contingent right of which under certain circumstances the corporation which issued the bonds could avail itself. But such a right cannot be transferred to another by the party possessing it, although it may continue to exist in cases where one corporation is merged with another. The bonds were sold at a discount, but at maturity the full face value would have to be paid, and money in excess of that originally received must be made available therefor. The practice arose in bookkeeping of setting up bond discount as an asset and writing it off over a period of years by setting aside from income enough for each year so that, when the bonds reached maturity, the face value could be paid. But although set up as an asset it was more in the nature of an offset to the charge made on account of income set aside to meet the future payment of the bonds. As a matter of form in bookkeeping there may be no objection to the method used, but the manner in which the corporation kept its books has no bearing upon the question at issue. Plaintiff treats bond discount as an asset much the same as the value of plant or machinery and, as the value of plant or machinery is carried forward in a nontaxable reorganization on the same basis to the successor corporation as existed in the case of the predecessor corporation, it is contended on behalf of the plaintiff that a like rule should apply to bond discount. What we have said above shows that bond discount and plant and machinery are not assets in the same sense of the word. Whatever may be the name applied to the transaction, the Securities Corporation acquired the assets of the Virginian Company by the payment of a definite consideration, and we think it is a fair presumption that the price so paid was adjusted to meet the fact that the corporation would have to pay the bonds in full.
Our conclusion is that both the weight of authority and the better reasoning are against the allowance of a deduction on account of the discount on the Virginian bonds, and the claim of the plaintiff in this respect is therefore denied.
The Commissioner also refused to allow any deduction on account of the discount on the bonds of the Appalachian Power Company. On the same facts, the Circuit Court of Appeals in American Gas & Electric Co. v. Commissioner, supra, held that there was a merger of the Appalachian Power Company in the Appalachian Electric Power Company which essentially preserved the identity of the transferor, citing several Virginia authorities in support of its conclusion as to the merger. Basing its final judgment upon the conclusion that there was a merger, the Circuit Court further held that the deduction should be allowed as to the bonds of the Appalachian Power Company. We concur in the opinion so rendered and follow it in holding in favor of the plaintiff on this point.
There remains one other issue between the parties to be determined. This arises out of the fact that on April 1, 1926, there was outstanding $5,000,000 of 6½ per cent. bonds which had been issued at a discount by the Virginian Power Company. The Appalachian Electric Power Company, which, as shown above, had assumed these bonds, redeemed them on the date last named at 105 per cent. of par, and, in accordance with the terms of the mortgage and deed of trust, a premium of $250,000 was paid in connection with the redemption of these bonds. The plaintiff, through its affiliate the Appalachian Electric Power Company, seeks to deduct as a loss the difference *159 between par and callable price at which the Virginian Power Company bonds were redeemed. This deduction the Commissioner refused to allow. The defendant insists that the right to deduct this loss belonged to the corporation which issued the bonds, and argues that this right does not extend to a successor corporation which had acquired the property of the issuing corporation and assumed its liabilities. In other words, the defendant assumes that the question now under consideration is the same as that arising by reason of the Virginian Company having sold its bonds at a discount. With this we do not agree, but think an entirely different issue is presented.
The right to a deduction on account of its bonds having been sold at a discount originated with the Virginian Company itself. It came into existence when the bonds were sold, but we have held that this right did not pass to a successor company which acquired the property of the first corporation by purchase or transfer and assumed its liabilities. On the other hand, the right to the deduction by reason of having redeemed the bonds at a premium was not brought into existence by the Virginian Company. The right to call the bonds at a specified price was one that ran with the bonds and belonged to any party who assumed their payment. It was an entirely different right from that which arose by reason of having issued the bonds at a discount.
The right to claim a deduction on account of having redeemed the bonds at a price above par did not come into existence until the bonds were so redeemed and, as we think, belonged to the corporation making the payment. Clearly it was this corporation that sustained the loss.
That there was a right to deduction on account of such a loss we think has been settled by the Supreme Court. In Helvering v. American Chicle Co., 291 U.S. 426, 54 S. Ct. 460, 78 L. Ed. 891, a corporation which had acquired all the assets and assumed the liabilities of another, and thereafter purchased in the open market some of the latter's bonds at less than their face value, was held to have realized a taxable gain in the difference between the face value of the bonds and the amount it paid for them. If, under such circumstances, the profit made is held to be that of the redeeming corporation, it is not only fair and just but logical to say that if, as in the case at bar, a loss resulted from the redemption, the loss must also be the loss of the corporation taking up the bonds, and it is entitled to a deduction by reason thereof. The defendant concedes that the Ohio Company is entitled to a deduction on account of having redeemed bonds which it had issued at a price above par. When the Appalachian Electric Power Company assumed the obligation of the bonds, it also acquired the right to avail itself of the provision with reference to their redemption. We are unable to see that it was in any different position that it would have been had it issued the bonds in the first place, and consequently it has the same right to a deduction for the loss incurred as did the Ohio Company.
The Commissioner having erred in computing plaintiff's taxes by reason of failing to make the proper deduction on account of the discount on the bonds of the Appalachian Power Company, for the loss sustained by the Ohio Power Company in redeeming its bonds, and also for the loss sustained by the Appalachian Electric Power Company in taking up at a premium the bonds issued by the Virginian Company, it follows that plaintiff's taxes should be recomputed in accordance with this opinion, and judgment rendered in its favor for the amount found to be overpaid. If counsel for the respective parties can agree on the amount of the overpayment judgment will be entered in accordance with such agreement; otherwise the court will have the computation made and judgment entered for the amount found to be due. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/376737/ | 618 F.2d 603
FIRST STATE BANK OF NORTHERN CALIFORNIA et al., Plaintiffs-Appellants,v.BANK OF AMERICA, N.T. & S.A., et al., Defendants-Appellees.FIRST STATE BANK OF NORTHERN CALIFORNIA et al., Plaintiff-Appellants,v.BANK OF AMERICA, N.T. & S.A., et al., Defendants-Appellees.
Nos. 78-1664, 77-3486.
United States Court of Appeals,Ninth Circuit.
May 12, 1980.
Thomas R. Fahrner, Furth, Fahrner & Wong, San Francisco, Cal., for First State Bank.
Tyler B. Pon, San Francisco, Cal., argued for defendants-appellees; George A. Cumming, San Francisco, Cal., Everett B. Clary, Los Angeles, Cal., Jeffrey W. Shopoff, Randall P. Borcherding, San Francisco, Cal.
Appeal from the United States District Court for the Northern District of California.
Before BROWNING, TRASK and GOODWIN, Circuit Judges.
PER CURIAM.
1
First State Bank of Northern California (FSB) appeals the district court's dismissal of its action based upon antitrust, constitutional, and pendent state law claims against the California Superintendent of Banking and eight banks. The district court held that FSB, then in receivership, had no standing to bring the action. We affirm.
2
On May 21, 1976, Carl Schmitt, the California Superintendent of Banking, acting pursuant to California law, Cal.Fin.Code § 3100, took possession of the property and business of FSB. The superintendent ordered liquidation and appointed the Federal Deposit Insurance Company (FDIC) as receiver, pursuant to Cal.Fin.Code § 3221, 12 U.S.C. § 1821(e). The FDIC, after calling for bids, sold certain assets of FSB to Lloyd's Bank. The FDIC sold the remaining assets to itself, as authorized by Cal.Fin.Code § 3225. The Superior Court of Alameda County approved the FDIC's transactions that day, and that judgment was later affirmed by the California district court of appeal in an unpublished opinion.
3
Under California law, the receiver (first Schmitt then the FDIC) became the real party in interest, entitled to enforce any causes of action of the bank in receivership. The broad powers and responsibilities which the Financial Code delegates to the receiver make this clear. See, e. g., §§ 3104, 3109-3113. Cf. Isaac v. Marcus, 258 N.Y. 257, 179 N.E. 487 (1932). (Similar New York statute gives liquidator paramount right to sue.) See Vol. 2, Clark, Law of Receivers, p. 944, § 579 (3d ed. 1959). FSB could have contested the receivership but failed to do so, and thereby waived its objection to the liquidation of its affairs. State Savings Bank v. Anderson, 165 Cal. 437, 132 P. 755 (1913), aff'd mem., 238 U.S. 611, 35 S. Ct. 792, 59 L. Ed. 1488 (1914).
4
FDIC, under the purchase agreement approved by the California courts under state law, Cal.Fin.Code §§ 3108, 3110, 3110.1, 3223, now owns the choses in action which belonged to FSB before its liquidation. FSB is not the real party in interest, and has no standing to bring this claim. See F.R.C.P. 17(a).
5
Affirmed.
6
B, acting pursuant to Cal.Fin.Code § 3101, sought in the superior court to enjoin the superintendent from proceeding with the liquidation, but later voluntarily dismissed that action.
7
B argues that it acquired standing because although not naming the FDIC as a defendant, the complaint alleged that the FDIC conspired with the defendant banks to put FSB out of business. FSB attempts an analogy to the standing of stockholders to bring derivative suits when the stockholders challenge transactions in which they allege complicity of the board of directors. Assuming arguendo that the analogy has relevance, it fails because FSB's allegations of conspiracy it claims FDIC conspired to insure a closed bid and to insure the acceptance of Lloyd's bid are general and conclusory and find no support in the record. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1296897/ | 562 S.E.2d 800 (2002)
254 Ga. App. 417
LEE
v.
The STATE.
No. A01A2121.
Court of Appeals of Georgia.
March 25, 2002.
*801 Robert M. Goldberg, Atlanta, James C. Bonner, Jr., Decatur, for appellant.
Richard G. Milam, Dist. Atty., Paul E. Hemmann, Asst. Dist. Atty., for appellee.
BLACKBURN, Chief Judge.
Domenic Lee appeals his convictions of trafficking in cocaine, possession of marijuana with intent to distribute it, and driving without a license, contending that: (1) he was denied due process and the assistance of counsel during a critical stage of the proceedings by not having counsel at his arraignment and (2) he was denied due process and the effective assistance of counsel by the trial court's refusal to grant a continuance of the trial. Finding no error, we affirm.
Lee was arrested on April 24, 2000. The same day, he indicated on the standard form[1] headed "Application for Appointment of Counsel and Certificate of Financial Resources" that he could afford a lawyer and did not want the court to provide one. Sometime later that month, he was released on bond. On June 6, 2000, an accusation was filed, and, on July 20, 2000, Lee waived indictment and pled not guilty. Lee appeared without an attorney on the latter date.[2] The record before us, however, is devoid of other indications about what may have occurred on July 20, 2000, except that the order denying Lee's motion for a new trial states that, on that date, Lee "refused court appointed counsel" and "[the] case was set for trial on Monday, September 18, 2000."
Lee's trial attorney, Michael Edmunds, testified at the hearing on Lee's motion for a new trial that Lee hired him on the previous Fridayi.e., September 15. Edmunds further testified that he appeared in court on Monday, and he was given until the following Thursday, September 21, to prepare for trial. On September 21, Edmunds filed a written motion for continuance, but at the conclusion of a bench conference it was denied. The only thing in the motion that relates at all to Lee's contentions on appeal with respect to his arraignment is a statement that "Mr. Lee was unable to retain counsel until September 17, 2000, due to the fact he did not have *802 ample funds to retain an attorney." We find no indication in the record that Lee or his attorney raised any issue regarding the arraignment procedures prior to Lee's conviction, and Lee does not claim that he did. Cf. Spear v. State[3] ("any error in the lack of arraignment was waived by Spear's failure to raise the issue prior to verdict"). Thereafter, the court proceeded to hear (and deny) a motion to suppress and then tried the case. It appears that this motion had not been filed at or before arraignment as required by Uniform Superior Court Rule 31.1, as Lee's trial attorney testified on Lee's motion for a new trial that no motions were filed at arraignment, and the State does not dispute this assertion. In any event, the prosecution made no objection to consideration of the motion.
1. As noted above, Lee contends that he was denied due process and the assistance of counsel during a critical stage of the proceedings by not having counsel at his arraignment (or without having properly waived his right to counsel). In Ledford v. State,[4] we stated that "[a]rraignment is a critical stage in a criminal prosecution."
Here, Lee does not challenge the sufficiency of the evidence on appeal. Bache v. State.[5] We emphasized the need for a showing of harm in cases such as this:
"[R]eversal is by no means automatic for absence of counsel [at arraignment]. The harmfulness of counsel's absence must appear...." Further, "an appellate court, using the appropriate standard, may find in a particular case that error committed by the trial court was constitutionally harmless, without remanding the case for further proceedings." In the case sub judice, defendant argues that "(i)f (he) had been represented by counsel at Arraignment he would not have signed a waiver of his right to trial by jury, and he would have filed appropriate motions, demurrers, and pleas, which could have been beneficial to his defense." However, defendant fails to explain what "motions, demurrers, and pleas" would have enhanced his defense and he does not challenge the sufficiency of the evidence on appeal.... [T]he record indicates, beyond a reasonable doubt, that no harm resulted in accepting defendant's plea of not guilty in the absence of defense counsel.
(Citation omitted; emphasis in original.) Id. at 592(1), (2), 431 S.E.2d 412.
Here, the record does not indicate what harm resulted from any error in proceeding in the absence of counsel. As noted above, the order denying Lee's motion for a new trial states that at the arraignment, "Defendant refused court appointed counsel." The law requires that "[t]he harmfulness of counsel's absence must appear." Bache, supra at 592(1), 431 S.E.2d 412. See Babb v. State,[6] where we remanded the case upon a finding of prejudice to the defendant. Lee "fails to explain what [actions by counsel at arraignment] would have enhanced his defense." Bache, supra. This enumeration lacks merit under the facts of this case.
2. Lee also argues that he was denied due process and the effective assistance of counsel by the trial court's refusal to grant a continuance of the trial. It is a rule of criminal procedure, however, that "[i]n all cases, the party making an application for a continuance must show that he has used due diligence." OCGA § 17-8-20. See Foote v. State[7] ("[w]here it affirmatively appears that the possible time for investigation and preparation of the defense is short, and the defendant has not been dilatory in obtaining counsel, the discretion of the court on motions for postponement should be liberally exercised in favor of a fair trial") (emphasis *803 supplied); Patterson v. State[8] (finding no error in denial of continuance; after quoting OCGA § 17-8-20, we wrote, "[t]he defendants... proffered no evidence that they had exercised ... due diligence, nor did they explain their delay in hiring counsel"); Marion v. State[9] (no error in denial of continuance requested because of recent retention as counsel; OCGA § 17-8-20 quoted and Patterson, supra, cited); accord Turner v. State.[10]
Lee failed to show such due diligence. Lee, who had refused counsel, failed to make arrangements for representation until the eve of trial, nearly two months after arraignment and five months after arrest. "[W]here defendant negligently failed to employ counsel promptly ..., the burden of convincing the court that due diligence has been exercised is that of the movant.... OCGA § 17-8-20." (Punctuation omitted.) Tinker v. State.[11] In this connection, it should be noted that the only thing in Lee's motion for a continuance bearing on diligence is a statement that he was "unable to retain counsel until September 17, 2000, due to the fact he did not have ample funds to retain an attorney." Moreover, generally, "[w]hether a defendant has exercised due diligence in hiring counsel is a factual question, and the trial court's grant or denial of a continuance on this basis will not be disturbed absent an abuse of discretion." Id.
Additionally, "[a]ll applications for continuances are addressed to the sound legal discretion of the court." OCGA § 17-8-22. In particular, "[a] motion for continuance based on counsel's claim of insufficient time to prepare for trial is addressed to the sound legal discretion of the trial court." (Punctuation omitted.) Patterson, supra at 441(1), 414 S.E.2d 895. See also Marion, supra at 414, 480 S.E.2d 869; Foote, supra. Moreover, "[t]he refusal of a motion to continue will not be reversed unless it is manifest that there has been an abuse of discretion on the part of the trial judge." (Punctuation omitted.) Patterson, supra. See also Marion, supra. On the facts presented by this record, we find no abuse of discretion.
Judgment affirmed.
POPE, P.J., and MIKELL, J., concur.
NOTES
[1] See Uniform Superior Court Rule 29.3(D).
[2] The waiver and plea are signed only by the district attorney (or his representative) and Lee, the line labeled "Defendant's Attorney" being blank. The attorney who represented Lee at trial testified at the hearing on Lee's motion for a new trial that Lee was not represented at his arraignment, and the State does not dispute this assertion.
[3] Spear v. State, 270 Ga. 628, 632(5), 513 S.E.2d 489 (1999).
[4] Ledford v. State, 247 Ga.App. 885, 887, 545 S.E.2d 396 (2001).
[5] Bache v. State, 208 Ga.App. 591, 431 S.E.2d 412 (1993).
[6] Babb v. State, 252 Ga.App. 518, 520-521(6), 556 S.E.2d 562 (2001).
[7] Foote v. State, 136 Ga.App. 301(1), 220 S.E.2d 786 (1975).
[8] Patterson v. State, 202 Ga.App. 440(1), 414 S.E.2d 895 (1992).
[9] Marion v. State, 224 Ga.App. 413, 414-416(1), 480 S.E.2d 869 (1997).
[10] Turner v. State, 247 Ga.App. 775, 780(5), 544 S.E.2d 765 (2001).
[11] Tinker v. State, 218 Ga.App. 792, 794(1)(b), 463 S.E.2d 368 (1995). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1644866/ | 994 So.2d 306 (2008)
THOMAS
v.
FLORIDA DEPT. OF FINANCIAL SERVICES.
No. SC08-1822.
Supreme Court of Florida.
September 25, 2008.
Decision without published opinion. App.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3037061/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3010
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska
James Toelle, *
* [UNPUBLISHED]
Defendant - Appellant. *
___________
Submitted: February 15, 2005
Filed: March 16, 2005 (Corrected March 17, 2005)
___________
Before MELLOY, HEANEY, and FAGG, Circuit Judges.
___________
PER CURIAM.
The defendant in this case was sentenced prior to the United States Supreme
Court decision in United States v. Booker, 125 S. Ct. 738 (2005). The defendant
raised and preserved error as to the constitutionality of the federal sentencing
guidelines at the time of sentencing. The defendant was also sentenced to the
minimum possible sentence under the applicable federal sentencing guidelines.
Accordingly, we cannot say that the error in this case was harmless. We therefore
vacate the sentence and remand for resentencing pursuant to United States v. Booker,
125 S. Ct. 738 (2005). See, United States v. Haidley, No. 04-3312 (filed March 16,
2005).
___________________________ | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1555939/ | 36 So. 3d 1113 (2010)
Carol POWERS
v.
ACE TRANSPORTATION, INC., et al.
No. 10-365.
Court of Appeal of Louisiana, Third Circuit.
May 5, 2010.
*1114 Mark T. Garber, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Carol Powers.
Bryan D. Scofield, Scofield & Rivera, L.L.C., Lafayette, LA, for Defendants/Appellees, Ace Transportation, Inc. Zurich American Insurance Co.
Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
GENOVESE, Judge.
This court issued a rule for the plaintiff/appellant, Carol Powers, to show cause, by brief only, why the appeal in this case should not be dismissed as premature. For the reasons assigned below, we dismiss the appeal.
The appellant filed a claim with the Office of Workers' Compensation against Ace Transportation, Inc. and Zurich American Insurance Company seeking a variety of benefits including increased payment of average weekly wages, future benefits, medical reimbursement, medical mileage, and penalties and attorney fees. Both sides filed a motion for summary judgment. The trial court granted, in part, the motion for summary judgment filed by the defendants/appellees.
The appellant filed a motion for appeal from this ruling, and the trial court granted the order of appeal. Upon the lodging of the record in this case, this court, on its own motion, issued a rule for the appellant to show cause, by brief only, why the appeal should not be dismissed as premature pursuant to Rhodes v. Lewis, 01-1989 (La.5/14/02), 817 So. 2d 64.
The appellant responded by brief to this court's order arguing that the instant issues on appeal are distinguishable from that of Rhodes, 817 So. 2d 64. The appellant notes that the judgment appealed granted the appellees' motion for summary judgment on the issues of the appellant's average wage and whether the appellant was required to receive approval before accepting medical payment reimbursement coverage from her own liability insurer. The appellant argues that the above-described issues are not dispositive and, therefore, contends that the policy issues referenced in Rhodes are not applicable. Finally, the appellant argues that the public policy goals of the workers' compensation system are better served by allowing the appellant's appeal to proceed.
As mentioned above, the rule to show cause issued by this court in this matter cited the appellant to Rhodes, 817 So. 2d 64. In Rhodes, two of three defendants were dismissed from the action. Despite the fact that dismissal of that appeal resulted in trial being conducted against only one defendant, which created a risk that a new trial would have to be held in the event that a later appeal resulted in a finding that the dismissal of the first two defendants was incorrect, the supreme court held that La.Code Civ.P. art. 1915(A)(1) and (5) were inapplicable to workers' compensation suits.
In Evergreen Presbyterian Minist. v. Wallace, 05-1343 (La.App. 3 Cir. 4/5/06), 926 So. 2d 759, this court ordered the dismissal of appeals filed by both sides. The rulings at issue in that appeal were that the claimant was entitled to supplemental earnings benefits, but that the claimant was not temporarily and totally disabled nor totally and permanently disabled, as well as other rulings deciding other issues in the case. This court stated therein:
The law is clear, and we are bound to follow the supreme court's dictates, that a piecemeal appeal is not permissible in a workers' compensation case. The judgment of the Office of Workers' Compensation clearly establishes that issue of penalties and attorney fees is yet to be decided by it. As the second circuit noted in Gajeske v. Integrated Electrical *1115 Services, Inc., 37,777 (La.App. 2 Cir. 10/29/03), 859 So. 2d 896, in footnote four (citing Rhodes, 817 So. 2d 64), a piecemeal appeal is not permissible when there are still issues involving penalties and attorney fees yet to determined. Until all issues have been decided in this case, this appeal is premature.
Evergreen Presbyterian Minist., 926 So.2d at 763.
The appellant presents public policy arguments for maintaining the instant appeal; however, the appellant does not address the fact that the judgment of which the appellant seeks review is not a complete adjudication of the action. The appellees' answer to the appeal clearly indicates that there are issues remaining outside the scope of this appeal, including, but not limited to, the issue of the appellant's right to future benefits. Accordingly, we hereby dismiss the instant appeal at appellant's cost.
APPEAL DISMISSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556368/ | 30 So. 3d 629 (2010)
Stephen J. GARDNER, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-6198.
District Court of Appeal of Florida, Second District.
March 17, 2010.
*630 Noel H. Flasterstein of Law Offices of Noel H. Flasterstein, P.A., Tampa, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
CASANUEVA, Chief Judge.
Stephen J. Gardner appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because we reverse for resentencing on his claim that his sentencing violated double jeopardy principles, Mr. Gardner's other claims are rendered moot.
Mr. Gardner, a minor in 2003 and 2004 at the time of the crimes for which he was charged, was prosecuted as an adult pursuant to section 985.227, Florida Statutes (2003). He alleges that the sentencing court violated the principles of double jeopardy by initially sentencing him to multiple, concurrent eight-year terms of incarceration for various felonies but laterafter returning from a lunch break by resentencing him to concurrent ten-year minimum mandatory sentences on those same charges. Double jeopardy may be raised for the first time in a 3.850 motion even if not raised at trial or on direct appeal. See Plowman v. State, 586 So. 2d 454, 455 (Fla. 2d DCA 1991) ("Just as a prisoner does not waive a double jeopardy violation for failing to raise the issue at trial, we hold that a prisoner does not waive a double jeopardy violation for failing to raise the issue on direct appeal from the judgment and sentence."); see also Fla. R.Crim. P. 3.850(a)(1), (3). Because jeopardy attached at the conclusion of the hearing at which the court originally pronounced the sentences, see Ashley v. State, 850 So. 2d 1265, 1269 (Fla.2003) (Pariente, J., concurring), the sentencing court had no authority to call Mr. Gardner back for resentencing. The postconviction court should have granted Mr. Gardner's motion to vacate his sentences and reimposed the original terms.
The relevant proceedings ended after the trial court sentenced Mr. Gardner to a combination of sentences for his various charges amounting to eight years' imprisonment followed by two years' community control and thirteen years' drug offender probation, ordered restitution be paid, and imposed several other conditions on probation. The trial court found sufficient grounds for a downward departure from the Criminal Punishment Code Sentencing Guidelines after concluding that Mr. Gardner required specialized treatment for a mental disorder unrelated to substance abuse or addiction, that he was amenable to treatment, and that the need for payment of restitution outweighed the need for a lengthy prison sentence.[1] After clarifying the provisions of conditional release and probation, the sentencing court asked, "Is there anything else, State, other than your objection to my departure that I failed to do?" The State responded that it needed to put its objection to the departure on the record, asserting only that "there [were] insufficient grounds to establish specialized treatment and restitution."
The court noted the objection, clarified the remaining terms of the various sentences, and concluded the proceedings:
*631 THE COURT: Any misdemeanors, time served.
MR. BODIFORD: Of course, that's it.
THE COURT: Thank you.
MR. BODIFORD: Judge, thank you for your indulgence.
THE COURT: Thank you everyone.
MR. ROSARIO: Thank you, Your Honor.
THE COURT: Have a good day. All right, let's take a 10-minute lunch break.
THE COURT: One more thing, Mr. Gardner, I don't know what excuse it is that you gave me before or someone gave me before for those [tattoo] teardrops, but my recollection of those teardrops is that they are indeed gang-related.
You're to have no association upon your release from custody with any known gangs or anyone that is known to be affiliated with a gang; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Thank you.
Mr. Gardner was taken from the room, and the court then took the announced lunch break. Notably, there is no discussion in the record up to this point of the possible application of a minimum mandatory sentence.
The same attorneys were before the court again following the lunch break. Returning to Mr. Gardner's case, the prosecutor announced that he had forgotten to place on the record his objection to the court's having sentenced Gardner to a term below the minimum mandatory sentence for his offenses.[2] At defense counsel's suggestion that the State would have to appeal or file a motion, the court replied, "I won't be doing that. You have to bring him back in ... I think we have to resentence him." The court directed counsel to find Mr. Gardner's family and ordered Mr. Gardner be returned to the courtroom.
The court continued the discussion with counsel and Mr. Gardner's family before Mr. Gardner returned to the courtroom. Upon Mr. Gardner's return, the court referred to the proceeding held before the break and the discussion with counsel after lunch, declared that a ten-year minimum mandatory sentence applied to his case, and imposed the longer sentence. At the conclusion of the second hearing, Mr. Gardner's sentence was increased from eight years' incarceration on the armed burglary charges to ten-year minimum mandatory sentences; the other terms remained unchanged.
Critical to the court's belief that resentencing was necessary seems to be its conclusion that failure to sentence Mr. Gardner to the ten-year minimum mandatory sentence would result in an automatic reversal on appeal by the State. That conclusion is well-supported. See § 775.087(2)(b), (d), Fla. Stat. (2003) (prohibiting imposition of a lesser sentence than otherwise required by law and clarifying the legislative intent that "the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted"); State v. Calzada-Padron, 708 So. 2d 287, 287 (Fla. 2d DCA 1996) ("Section 775.087(2) contains no provision permitting the trial court to exercise its discretion in imposing a ... minimum *632 mandatory prison sentence once a defendant has been convicted of certain enumerated felonies.").
Nevertheless, the court had no authority to reopen the proceedings once the hearing had concluded and double jeopardy had attached. "Florida law generally accords a level of finality to a sentence once it has been orally pronounced and the defendant has begun to serve the sentence." Delemos v. State, 969 So. 2d 544, 548 (Fla. 2d DCA 2007). While "there appears to be no dispute that a defendant begins serving his sentence at least upon his transfer into the custody of the Department of Corrections," id. at 548 n. 6, the length of time between the end of one proceeding and the start of another has little effect upon double jeopardy considerations. See Figueroa v. State, 3 So. 3d 428, 429 (Fla. 2d DCA 2009) (reversing a minimum mandatory sentence imposed during a proceeding held one day after the initial sentencing); Brown v. State, 965 So. 2d 1234, 1238 (Fla. 5th DCA 2007) (reversing a sentencing "correction" made at an undefined point after a hearing had concluded); Obara v. State, 958 So. 2d 1019, 1021 (Fla. 5th DCA 2007) (reversing a sentence imposed on a defendant recalled to the courtroom following sentencing but before he was transferred from the court's custody); Shepard v. State, 940 So. 2d 545, 548 (Fla. 5th DCA 2006) (reversing a sentence imposed after the defendant was called back fifty minutes after the proceeding had ended).
Absent a proper appeal, double jeopardy considerations bar increasing even an illegal sentence:
Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles. Ashley v. State, 850 So. 2d 1265, 1267 (Fla.2003). This is true even if the original sentence was illegal or otherwise erroneous and the correction conforms to applicable law or to the court's and parties' intentions at sentencing.
Pate v. State, 908 So. 2d 613, 614 (Fla. 2d DCA 2005) (emphasis added). This court has further clarified Pate in holding:
[E]ven if the sentence ... were illegal for failing to include the minimum mandatory term, this court has previously held that double jeopardy bars an increase in a sentence once it is imposed and the defendant begins serving it, at least in the absence of a proper appeal.... Under those circumstances, the State is compelled to object and appeal the sentence or the sentence stands as originally imposed.
Delemos, 969 So.2d at 550 (emphasis added); see also Figueroa, 3 So.3d at 429 (reversing imposition of a twenty-five-year minimum mandatory sentence and directing reimposition of the original twenty-year sentence).
Although it may appear to serve the interests of judicial economy to permit a trial court to fix an apparently erroneous sentence without requiring a motion or proper appeal, there are clear procedures for correcting such errors on appeal if properly preserved. See Delemos, 969 So.2d at 549-50 (cataloging the proper procedures for increasing a sentence even after the conclusion of a sentencing hearing). In this case, however, those procedures were not followed and the constitutional prohibition against increasing Mr. Gardner's sentence after jeopardy attached was violated.
Accordingly, we are compelled to reverse the denial of Mr. Gardner's motion for postconviction relief on this ground and remand with directions that the trial court reimpose the original eight-year sentences *633 for those offenses. Mr. Gardner need not be present for resentencing.
Reversed and remanded.
WALLACE, J., Concurs.
ALTENBERND, J., Dissents with opinion.
ALTENBERND, Judge, Dissenting.
I dissent. I am not certain whether we are holding that Mr. Gardner is entitled to the eight-year term of imprisonment, even though it is illegal, or that he is entitled to receive this sentence subject to the State's right to have that sentence reversed in a subsequent appeal.
Although I dissent, I recognize the possibility that my disagreement is actually a disagreement with either the holding in Ashley v. State, 850 So. 2d 1265 (Fla.2003), or the case law applying it. Ashley holds that "[o]nce a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles." Id. at 1267. The courts of Florida have interpreted this holding very strictly. Once the sound waves from the judge's oral pronouncement have reached the court reporter's ears or the microphone of the digital recording device, we seem to think that the defendant has begun to serve the sentence. At a minimum, once the defendant's sentencing hearing has concluded, we rule that he is serving the sentence even when the oral pronouncement has not been rendered by a written sentence. I am not convinced that a defendant who sits in the courthouse during the lunchtime between an initial illegal sentencing and a resentencing has begun to serve the illegal sentence for purposes of a constitutional double jeopardy analysis.
Mr. Gardner went to a sentencing hearing having agreed to a maximum prison sentence of ten years' imprisonment.[3] As explained by the majority opinion, the trial court initially imposed a sentence that did not include the mandatory term, and after a short lunch break, the trial court corrected this error. Mr. Gardner filed a motion for rehearing, but when he received no relief, he did not appeal. Instead, almost two years later, Mr. Gardner filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.
Legally, the trial court was required to sentence the defendant pursuant to the express terms of the statute to the ten-year minimum term. The original sentence, which included a downward departure rather than the minimum mandatory term, was an erroneous sentence. See State v. Calzada-Padron, 708 So. 2d 287 (Fla. 2d DCA 1996); see also Beard v. State, 819 So. 2d 987 (Fla. 2d DCA 2002) (affirming imposition of the minimum mandatory portion of a life sentence, as automatic, upon resentencing after remand of direct appeal); Van Buren v. State, 500 So. 2d 732 (Fla. 2d DCA 1987) (holding that efforts to correct unlawfully lenient sentences are not per se violative of double jeopardy proscriptions and that double jeopardy arises only when efforts are undertaken to increase a sentence that was legal when originally imposed). Both the First and Fifth Districts have held that resentencing to impose minimum mandatory terms is required where the original sentences fail to include the nondiscretionary terms. See State v. Vanderhoff, 14 So. 3d 1185 (Fla. 5th DCA 2009); State v. Couch, 896 So. 2d 799 (Fla. 1st DCA 2005). Thus, unless the State has forever waived the right to obtain the mandated sentence *634 by failing to note this error before the hearing concluded, the original sentence was subject to reversal on appeal by the State and may also be subject to reversal when imposed on remand from this appeal.
In Delemos v. State, 969 So. 2d 544 (Fla. 2d DCA 2007), I suggested that the Florida law on the issue of when a sentence becomes final for purposes of double jeopardy may be overly restrictive and that the U.S. Constitution may permit a longer window of time in which courts could correct errors made during oral pronouncement. I continue to believe that our case law does not reflect the extent to which simple human error is inevitable in oral pronouncements and that the constitutional doctrine of double jeopardy was never intended to make sentencing a game in which mental errors by judges and attorneys are irreparable even when the error is discovered minutes later. See United States v. DiFrancesco, 449 U.S. 117, 135, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980) (quoting Bozza v. United States, 330 U.S. 160, 166-67, 67 S. Ct. 645, 91 L. Ed. 818 (1947), for the principle that "[t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner").
In other jurisdictions, the defendant's being taken into custody by the Department of Corrections or, at a minimum, the transfer of custody from the judiciary to the executive, is the point at which the defendant begins to serve the sentence, and the trial court loses its authority to resentence. See People v. Mendoza, 171 Cal. App. 4th 1142, 90 Cal. Rptr. 3d 315, 320-21 (2009) (holding that upon receipt of the judgment by the sheriff, the execution of the judgment is in progress); State v. Carr, 167 Ohio App. 3d 223, 854 N.E.2d 571, 573 (2006) (holding that the execution of a sentence begins when the defendant is delivered to the institution where the sentence is to be served); State v. Jacobs, 200 Or.App. 665, 117 P.3d 290, 296 (2005) (holding a prison sentence is not executed until the defendant is delivered to the custody of the Department of Corrections); Maher v. State, 991 P.2d 1248, 1249 (Wyo. 1999) (holding that the relevant inquiry in deciding whether a defendant has begun serving a sentence is whether the defendant has been delivered to executive custody for that purpose); Francis v. United States, 715 A.2d 894, 898 n. 12 (D.C.1998) ("[T]he Double Jeopardy Clause is inapplicable absent a transfer of a convicted individual from the judiciary, which pronounced sentence, to the executive, which administers it.").
So long as a trial judge is not exercising his or her discretion to increase the severity of the overall sentence that the trial judge intended to impose at the oral pronouncement, I believe we could and should have a procedural mechanism by which trial judges are allowed to correct misstatements and confusions in sentences and to impose mandated sentencing conditions that were overlooked at oral pronouncement. When a judge inadvertently imposes a fifteen-year sentence on a third-degree felony and a five-year sentence on a second-degree felony, for example, I do not understand why constitutional double jeopardy should bar the judge from imposing the intended fifteen-year sentence for the second-degree felony even a few days after the mistake in the oral pronouncement.
A defendant has a right to a legal sentence. This defendant is about to receive the benefit of an illegal sentence, in all likelihood because a judge and several lawyers were anxious to go to lunch. Somehow, Florida's technical approach to double jeopardy allows inadvertent mistakes to give defendants the right not to legal *635 sentences, but to sentences that are often more like half jeopardy.
NOTES
[1] See § 921.0026(2)(d), Fla. Stat. (2003). We note that the eight-year sentence is consistent with what Mr. Gardner apparently believed to be successful, restitution-focused plea negotiations with the State and court at the change-of-plea hearing despite the ultimately open nature of his plea.
[2] In its answer brief, the State accepts Mr. Gardner's statement of the case and statement of facts. While the State suggests that the objection to the downward departure and sentencing below the minimum mandatory occurred only moments after the start of the morning sentencing hearing, both Mr. Gardner's statement of the case and facts and the record reflect that this discussion occurred shortly after the court returned from lunch.
[3] There may have been ineffective assistance of counsel in this case because it does not appear that Mr. Gardner understood that the trial court had no discretion and was compelled to impose a ten-year sentence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555984/ | 36 So. 3d 107 (2010)
MEDINA
v.
FLORIDA UNEMPLOYMENT APPEALS COM'N.
No. 3D10-151.
District Court of Appeal of Florida, Third District.
June 2, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555964/ | 17 F. Supp. 650 (1936)
SOVEREIGN CAMP, W. O. W.
v.
MURPHY, Commissioner of Insurance of State of Iowa, et al.
No. 4607.
District Court, S. D. Iowa, Central Division.
December 2, 1936.
*651 Eugene D. Perry, of Des Moines, Iowa, John T. Harding and David A. Murphy, both of Kansas City, Mo., and Rainey T. Wells, of Omaha, Neb., for plaintiff.
Edward L. O'Connor, Atty. Gen., and Lehan T. Ryan, Asst. Atty. Gen., for defendants.
Before WOODROUGH, Circuit Judge, and DEWEY and NORDBYE, District Judges.
WOODROUGH, Circuit Judge.
On application for interlocutory injunction before three-judge court:
Iowa requires foreign insurance companies to pay as taxes a percentage of premiums received from their insurance business done in the state but exempts fraternal beneficiary associations. The statute (Code of Iowa 1935, § 7022) reads:
"7022. Foreign companiestax on gross premiums. Every insurance company incorporated under the laws of any state of the United States other than the state of Iowa, not including associations operating under the provisions of chapter 400, or fraternal beneficiary associations doing business in the United States, shall, at the time of making the annual statements as required by law, pay into the state treasury as taxes two and one-half per cent of the gross amount of premiums received by it for business done in this state, including all insurance upon property situated in this state and upon the lives of persons resident in this state during the preceding year."
The plaintiff, Sovereign Camp of the Woodmen of the World, is organized under the laws of Nebraska as a fraternal beneficiary association and has year after year, for many years, applied for and received a license to carry on business as such in the state of Iowa. It has built up a very substantial business in some forty states of the Union and in the year 1935 had 145 camps, as its lodges are designated, all duly organized and functioning within the state of Iowa, and it had not less than 5,600 members within the state. Its reports to the commissioner of insurance always revealed clearly the nature of the business it was transacting in Iowa, and it has always claimed to be exempt from, and was never called on to pay, the premium tax mentioned in the above section until early in 1936 the Iowa commissioner of insurance refused to issue a license for 1936 unless, as a condition precedent, the plaintiff would pay the statutory 2½ per cent. tax on the insurance premiums received on business done by the plaintiff in the state during 1935, the amount demanded being $4,555.52.
The commissioner's claim was that such changes had taken place in the plaintiff's structure and business that the corporation was no longer being carried on as a fraternal beneficiary association entitled to the exemption of the statute, but was being carried on as "an insurance company incorporated under the laws of a state other than Iowa," within the meaning of the first lines of the statute above quoted, and was subject to the tax.
This suit is brought against the proper state officers and seeks, among other things, to enjoin them from attempting to collect the tax so demanded from the plaintiff. It is alleged that there are domestic insurance companies organized and domiciled within the state of Iowa and that Iowa does not impose the 2½ per cent. tax on premiums received by such domestic insurance companies but only taxes such companies one per cent. upon their gross premiums, less numerous deductions (section 7025, Code of Iowa, 1935), and the plaintiff claims that, if the quoted tax statute is applied to the plaintiff, a violation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States will result.
The defendants deny that application of the statute and the 2½ per cent. tax to the plaintiff will cause unlawful discrimination in favor of domestic insurance companies. They admit that there is a difference in the modes of taxing domestic and foreign insurance companies, but assert that a substantial equality of the tax burden upon each kind of insurance company is brought about by reason of the levy of real and personal property taxes upon the domestic companies which the foreign companies are not required to pay because the foreign companies do not have much of that kind of property in the state.
The issues thus joined present a controversy between parties of diverse citizenship involving more than $3,000 in which *652 the relief sought is an interlocutory injunction against the enforcement by state officers of a state statute claimed to be unconstitutional if applied to the plaintiff as the state officers are attempting to apply it.
The federal statute prohibits any justice of the Supreme Court, any district court or judge thereof, or any circuit judge acting as a district judge from granting any interlocutory injunction in such a case and requires that the case "shall be heard and determined by three judges." 28 U.S.C.A. § 380. This case, therefore, is cognizable only by this court of three judges assembled as provided for in the same statute.
The plaintiff also claims that it is and always has been a fraternal beneficiary association and that, as such it is expressly exempt from having to pay any part of the 2½ per cent. premium tax applied to foreign companies in general by the quoted statute. The claim being controverted by the defendants an issue is presented which does not involve the constitutionality of the state statute, but merely its interpretation and application to the facts presented in the evidence. If the issue stood alone as the only one in the case, it could be tried by a district court presided over by one judge. But the duty imposed on the three-judge court by the federal statute to hear and determine the plaintiff's suit for injunction against the attempted application to it of the alleged unconstitutional state tax statute carries with it the duty on the part of the same three-judge-court to try the whole case. The parties cannot be relegated to piecemeal trials of the several issues joined by them in their case. Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 29 S. Ct. 451, 53 L. Ed. 753; Louisville & N. R. Co. v. Garrett, 231 U.S. 298, 34 S. Ct. 48, 58 L. Ed. 229; Van Dyke v. Geary, 244 U.S. 39, 37 S. Ct. 483, 61 L. Ed. 973; Sterling v. Constantin, 287 U.S. 378, 53 S. Ct. 190, 77 L. Ed. 375; Modern Woodmen of America v. Casados (D.C.) 15 F. Supp. 483.
We think the allegations in the bill and the proof made in support sustain the plaintiff's allegation that it is without adequate remedy at law. No statute of Iowa is pointed out authorizing suit against the state to recover the tax in question if it were paid under protest, and the threat of the insurance commissioner is to revoke the plaintiff's license to do business in the state unless the exactions are met. The injury to long-established business and penalties to which the plaintiff and its officers would be subject on failure to comply with the defendants' demands would amount to irreparable injury. Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714, 13 L.R.A. (N.S.) 932, 14 Ann.Cas. 764; Marrs v. City of Oxford (D.C.) 24 F.(2d) 541, affirmed (C.C.A.) 32 F.(2d) 134, 67 A.L.R. 1336; Oklahoma City, Okl., v. Dolese (C.C.A.10) 48 F.(2d) 734; Modern Woodmen of America v. Casados (D.C.) 15 F. Supp. 483, 486.
On the issue as to whether the plaintiff is and has been a fraternal beneficiary association, section 8777, Code of Iowa 1935, provides:
"8777. Definition. A fraternal beneficiary association is hereby declared to be a corporation, society, or voluntary association, formed or organized and carried on for the sole benefit of its members and their beneficiaries, and not for profit, and having a lodge system, with ritualistic form of work and representative form of government."
It is clear that the plaintiff came within the letter and spirit of this definition at the time it was organized and for many years thereafter. But defendants rely upon the changes that have gradually taken place in the plaintiff's practices and business and contend in substance that in 1935, (1) the plaintiff's lodge system with ritualistic form of work had ceased to have real vitality; (2) that no representative government functioned but in fact a few officers perpetuated themselves in control of the company; (3) that the corporation was not carried on for the sole benefit of its members; (4) that it was carried on for profit; (5) that it issued substantially the same insurance contracts as old line insurance companies do; (6) that some of the insurance contracts so issued go beyond the powers granted by the Iowa statutes to fraternal beneficiary associations. For these reasons the character of the plaintiff as a fraternal beneficiary association is said to have been lost so that it was no longer entitled to the exemption from the tax.
1. The evidence is that the lodge system of the plaintiff is constantly maintained and ritualistic work is carried on as prescribed in the constitution and by-laws. Solicitation for new members and new insurance business is carried on by agents who work for commissions very similar to those paid to insurance agents generally. But the process is different in that the new members are initiated into camps with ritual, and the *653 fraternal, patriotic and charitable features are always kept prominently alive.
2. The principal officers are maintained in office over long periods and large salaries are paid, but the corporation has always maintained its representative form of government.
3, 4. The claims that the corporation was not carried on for the sole benefit of its members and that it was carried on for profit are not based on the payment of the large salaries to the officers, but such claims are rested principally upon the manner and extent to which the corporation has departed from its original "post loss" methods of assessing members to pay death benefits and now builds up and maintains funds and reserves to carry out its contracts. The amounts of the dues which the members are required to pay and the amounts of the benefits and paid-up protection granted to them are arrived at by actuarial computations made mathematically from mortality tables and interest assumptions and loading for expenses and contingencies. Such computations are made as to each kind of insurance contract issued and the resources of the corporation are behind the contracts. But, in the bookkeeping accounts, reserves are set up which total very large figures at the present time. It is contended for the defendants that the reserves are built up by payments from the members but that they are not intended to be and are not disbursed to the members who made the payments which produced the excess over benefits represented by the reserves. So it is said that to that extent the corporation was not carried on for the sole benefit of its members, but was carried on for profit. We find no merit in the contention, but are convinced that in so far as the reserves are anything more than mere bookkeeping entries they are intended to and do inure to the benefit of every member by providing stability and solvency to the corporation. The evidence is that, whenever the financial condition warrants it, the governing body orders the passing or waiving of one or more monthly payments from the members, or it orders the making of disbursements to the members, diminishing to that extent the cost of their insurance. The testimony of the actuary makes it clear, however, that such passing of monthly payments and disbursements and the reserves from which the disbursements are drawn constitute in no proper sense a profit. The corporation follows a sensible and prudent course in the matter of building up and maintaining reserve accounts, but its action presents no ground to question the right of the plaintiff to the tax exemption claimed.
Especial exception is taken to an item appearing on the books of the plaintiff called "contingency reserve" amounting to more than $1,000,000. It is contended that such "contingency reserve" is not the reserve permitted by the statute, but is an additional reserve in excess of the legal reserve, and that the retention thereof by the society without apportioning it among the members stamps it as a profit-making insurance organization. The evidence satisfies us that the legal reserve could not be computed with such exactness as to be completely sufficient for all emergencies or contingencies and that the so-called "contingency reserve" was properly set up for the very purpose that its name indicates. The contingency reserve is small in the financial structure and not out of line with the general practice of insurance companies, old line and fraternal.
In the case of Fowler v. Sovereign Camp, W. O. W., 106 Neb. 192, 183 N.W. 550, in the Supreme Court of Nebraska, it was contended that changes made in the plaintiff's methods of carrying on its insurance business had resulted in fundamentally changing its fraternal character. The court gave the question full consideration and overruled the contention. We are in accord with the decision. See also, Jenkins et al. v. Talbot et al., 338 Ill. 441, 170 N.E. 735, 80 A.L.R. 638.
5. All of the different forms of benefit certificates which have been issued by the plaintiff have been received in evidence and those claimed to be unauthorized by the Iowa fraternal insurance statute have been analyzed and explained by the experts. They contain benefit options to the member almost as varied as those contained in the policies issued by old line companies, including double indemnity for accidental death, twenty payment life, and endowment options and annuity options. The Iowa statutes specifically prescribe the mortality tables and interest assumptions by which the fraternal beneficiary associations are compelled to make adequate provision to meet the benefits granted in the certificates they issue, and it is not claimed that the plaintiff fails in that regard. On the contrary, the evidence shows that a very great advance in safety has been made from the unscientific and insecure insurance of the early days of *654 fraternal insurance. But the question is whether Iowa has given such associations as the plaintiff the authority to issue insurance contracts such as described. The controlling section (8782, Code of Iowa 1935) is in very broad terms and reads:
"8782. Benefits. Any such society may grant to its members extended and paid-up protection or such withdrawal equities as its constitution and laws may permit, provided that such grants shall in no case exceed in value the portion of the reserve to the credit of the members to whom they are made."
We do not have judicial interpretation of the "withdrawal equities" which fraternals are thus authorized to grant to their members but no reason has been suggested why the expression should not be deemed to cover all of the options to which the defendants have taken exception. The legislative intent reflected in the whole section is not to put a limit upon the benefits or extended and paid-up protection which the fraternals might provide in their constitution and by-laws and grant to their members. It appears to be the legislative intent to permit any payments to be contracted for and granted to members pursuant to the constitution and by-laws of the association, provided that the value of the reserves to the credit of the member should not be exceeded. It is said that pure endowment is not provided for in the Iowa statute covering fraternals, and that options, in the nature of such pure endowments, are included in certain of plaintiff's certificates and, therefore, the plaintiff should be deemed to have lost its right to be exempted from the tax in question. But the weight of the actuarial evidence produced would indicate that all of the several amounts which the options of the certificates permitted the member to receive were "withdrawal equities" within the meaning of the statute (8782 supra) and were authorized. The actuary for the plaintiff prepared the different forms of benefit certificates and caused the computations to be made with particular regard to the Iowa, as well as the Nebraska, statute and conformably thereto.
We are satisfied that the contracts shown to have been issued in Iowa were drawn in the honest belief that they were authorized by the Iowa statute and that they contain no options which were expressly prohibited. They come generally within the broad provisions for "extended benefits," "paid up benefits" and "withdrawal equities" mentioned in the Iowa statute and their issuance did not deprive the plaintiff of its fraternal character.
6. Counsel for the defendants have painstakingly compiled a bill of particulars specifying some forty-five instances in which the insurance contracts now made by the plaintiff depart from the fraternal benefits originally granted to members and are now assimilated to old line insurance contracts. It is demonstrated that the plaintiff has largely abandoned unscientific insurance and now makes its contracts in safer conformity to experience. But such a course is required by the Iowa statutes. They compel the use of mortality tables and the exaction of premiums based thereon and adequate for the fulfillment of the contracts. They also make it necessary for the plaintiff to build up and maintain reserves expressly (section 8842-b3) and by necessary implication (sections 8778, 8782, 8784, 8825, 8829, 8833). It is contended that it is the intent of the Iowa statute that particular reserve funds should be segregated physically from general funds in order to cover particular benefit options and that the plaintiff has failed to comply. We do not find that the plaintiff has offended in the matter of keeping its reserves and certainly has done nothing in this regard to lose its character as a fraternal beneficiary association.
The testimony presented for defendants convinces that many of the reasons which originally justified exempting fraternals from taxation no longer apply to such great financial institutions as the plaintiff has grown to be. But such considerations are for the Legislature. The Legislature has sanctioned the changes in the methods of the fraternals which have made their growth possible but has kept intact and without change their classification as exempt corporations.
The plaintiff's insurance contracts continue to be open contracts subject to be changed at any time after issue, pursuant to its constitution and by-laws. Re-rating has taken place several times and may be lawfully resorted to again if necessity arises. The plaintiff's form of government and ritual conform to the Iowa statute and it was not carried on for profit in the tax year in question.
The plaintiff has prayed for a declaratory judgment adjudicating its status as a fraternal beneficiary association and though we are of opinion that upon final *655 hearing it would be entitled thereto, we do not so adjudicate because this hearing was upon application for interlocutory injunction only.
Findings of fact and conclusions of law are made herewith and exceptions to our findings and conclusions are allowed to the defendants.
Temporary injunction as prayed should issue against the defendants. Plaintiff's bond fixed at $5,000.
The court finds it unnecessary to pass upon the constitutionality of the statute attacked herein as sought to be applied to the plaintiff. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555982/ | 17 F. Supp. 865 (1937)
COHN
v.
UNITED AIR LINES TRANSPORT CORPORATION.
No. 2529.
District Court, D. Wyoming.
February 8, 1937.
E. C. Raymond, of Newcastle, Wyo., and Edward T. Lazear, of Cheyenne, Wyo., for plaintiff.
Wilfred O'Leary, of Cheyenne, Wyo., and Smith, Brock, Akolt & Campbell and J. H. Shepherd, all of Denver, Colo., for defendant.
KENNEDY, District Judge.
In the above-entitled cause the plaintiff, as administratrix, seeks to recover damages on account of the death of the intestate Hanley G. Cohn, growing out of the alleged negligence of the defendant in connection with an airplane accident on October 30, 1935, near Cheyenne, Wyo. Omitting reference to the formal allegations of the petition, that portion pertinent to the present inquiry is contained in paragraph 4, reading as follows:
"That on or about the 30th day of October, 1935, at Cheyenne, Wyoming, the Plaintiff's intestate, Hanley G. Cohn, at the request of the Defendant, United Air Lines, boarded a Boeing plane belonging to the said United Air Lines; that one Marion T. Arnold, now deceased, and an employee of the said United Air Lines was the pilot on said plane, and E. E. Yantis and H. R. Kauffman, both now deceased, and employees of the United Air Lines were in the said plane, said Yantis and Kauffman being instrument mechanics in the employ of the said United Air Lines; that at about the hour of 7:00 o'clock P. M. on said day, the Boeing plane before mentioned took off from the ground for a test flight, with the said Arnold, Yantis, Kauffman and with the Plaintiff's intestate, Hanley G. Cohn, aboard; that during said test flight the said plane was under the sole control and management of the Defendant's employees; that at about the hour of 7:40 o'clock P. M. on said date, and at a point about five miles south of the City of Cheyenne, and during said test flight, said plane crashed, causing the death of the said Hanley G. Cohn and the other three men heretofore mentioned; that said crash was due to the negligence of the Defendant, United Air Lines; that the death of the said Hanley G. Cohn was the direct result of the negligence of the Defendant, United Air Lines; and that his death occurred at a time when said plane was under the sole control and management of the Defendant, United Air Lines, and without fault or negligence on the part of the said Hanley G. Cohn."
In addition, the petition discloses that plaintiff's intestate was himself an air pilot employed by a different air transportation company.
The defendant first interposed a motion to make more definite and certain, in response to which upon the argument it was stated by counsel in plaintiff's behalf that no further or better statement of the cause of accident could be made and that reliance was made wholly upon the application of the doctrine of "res ipsa loquitur," to sustain the cause of action. Under these circumstances the court deemed it to be a useless and futile matter to grant the motion, but suggested that the point might be adequately tested by a demurrer to the petition. Such demurrer was accordingly filed, and the cause is now before the court for consideration upon trial briefs submitted. It seems to be obvious that the foregoing procedure involved the only practical method available. Inasmuch as the petition alleged no *866 specific acts of negligence, which plaintiff admitted could not be supplied, it became a case to be decided by a consideration of the allegations of the petition as to whether or not in the light of those allegations the doctrine of res ipsa loquitur should be applied. If it should be so applied, it would mean that a cause of action had been stated, or if not, that the demurrer should be sustained and the cause dismissed.
From the early English cases down to the present time, this doctrine has been given much consideration, as revealed by the energy of counsel in their briefs submitted for the enlightment of the court. It would require a treatise upon the subject out of harmony with a trial court memorandum to attempt to review, discuss, or cite even a small number of the decisions and text discussions upon the subject. A few authorities announcing the general principle underlying the doctrine may be helpful in applying it to the facts set forth in the petition.
In 45 C.J. p. 1193, it is said: "Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care. This statement of the rule of res ipsa loquitur, based on the expression in an early English case, which has been widely quoted with approval, has been in substance most frequently adopted and applied in subsequent decisions so that the occurrence of an injury under the circumstances therein set forth raises a presumption or permits an inference that the party charged was guilty of negligence."
Again at p. 1196: "The phrase `res ipsa loquitur,' which literally means `the thing speaks for itself,' is a term used in a limited class of negligence cases referring to the method of proof of general negligence as distinct from proof of specific negligence. This doctrine, which is considered in various connections at other places in this work, is a rule of evidence peculiar to the law of negligence and is an exception, or perhaps more accurately a qualification of the general rule that negligence is not to be presumed but must be affirmatively proved. Thus, while negligence of defendant, as previously stated, cannot be inferred or presumed from the mere happening of an accident, the law by virtue of the doctrine recognizes that an injury may occur under such circumstances that it may be sufficient to establish prima facie the fact of negligence without further or direct proof thereof. This rule, however, when applicable to the facts and circumstances of a particular case is not intended to and does not dispense with proof of culpable negligence on the part of the party charged, but on the contrary, being a substitute for specific proof of acts of omissions constituting negligence, it merely prescribes one method by which plaintiff may prove the negligence charged against defendant and determines or regulates what shall be prima facie evidence thereof."
The following statement is made upon the subject in San Juan Light & Transit Co. v. Requena, 224 U.S. 89, at page 98, 32 S. Ct. 399, 401, 56 L. Ed. 680, by Mr. Justice Van Devanter in speaking for the Court: "When so read it rightly declared and applied the doctrine of res ipsa loquitur, which is, when a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as, in the ordinary course of things, does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant's want of care. Inland & Sea-Board Coasting Co. v. Tolson, 139 U.S. 551, 554, 11 S. Ct. 653, 35 L. Ed. 270, 271; East End Oil Co. v. Pennsylvania Torpedo Co., 190 Pa. 350, 42 A. 707; Alexander v. Nanticoke Light Co., 209 Pa. 571, 58 A. 1068, 67 L.R.A. 475; Trenton Passenger Railway Co. v. Cooper, 60 N.J.Law, 219, 37 A. 730, 38 L.R.A. 637, 64 Am. St. Rep. 592; Newark Electric Light & Power Co. v. Ruddy, 62 N.J.Law, 505, 41 A. 712, 57 L.R.A. 624; 2 Cooley, Torts (3d Ed.) 1424; 4 Wigmore, Ev. § 2509."
A limitation upon the rule of application is found in Patton v. Texas & Pacific Railway Co., 179 U.S. 658, at page 663, 21 S. Ct. 275, 277, 45 L. Ed. 361, as indicated: "And where the testimony leaves the matter uncertain and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to *867 guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion."
It is likewise narrowed by the language of Judge John F. Phillips of the Circuit Court of Appeals Eighth Circuit in Minneapolis General Electric Co. v. Cronon, 166 F. 651, at page 659, 20 L.R.A.(N.S.) 816, in which he says: "The doctrine of res ipsa loquitur, invoked in argument, has no place under the facts of this case. At best it is uncertain, if not dangerous, in practice, and should not be applied, `except when it not only supports the conclusion contended for, but also reasonably excludes all others.' Peirce v. Kile, 80 F. 865, 26 C.C.A. 201; Chicago & N. W. Ry. Co. v. O'Brien, 132 F. 593, 67 C.C.A. 421; Northern Pacific Ry. Co. v. Dixon, 139 F. 737, 71 C.C. A. 555."
Justice Riner, in speaking for the Wyoming Supreme Court in Stanolind Oil & Gas Co. v. Bunce, 62 P.(2d) 1297, at pages 1307, 1308, adopts the language of another court in his opinion: "It may be observed additionally, that as suggested by the Massachusetts court in Wilson v. Colonial Air Transport, supra [278 Mass. 420, 180 N.E. 212, 83 A.L.R. 329], that the doctrine of res ipsa loquitur should not be applied `if there is any other reasonable or probable cause from which it might be inferred there was no negligence at all.' The testimony referred to in the preceding paragraph was such as to authorize the jury to find that there was no negligence on defendants' part."
It will thus be seen that, generally speaking, the doctrine has a somewhat limited application, making it, as it were, a sort of refuge of last resort for the relief of injured persons where specific acts of negligence are incapable of being alleged and proved by the ordinary methods.
It will be noted by the above-quoted portion of the petition that there was a crash of an airplane in which all the occupants were killed; that the airplane at the time was in charge of a pilot who was accompanied by two mechanics all of whom were in the employ of the defendant; that the plaintiff's intestate was requested to board the plane, which under the circumstances may be reasonably construed as equivalent to an invitation; and that at the time the accident occurred the plane took off for a test flight. Under these circumstances it is apparent that the plaintiff's intestate was not a passenger for hire to whom the defendant was charged with the highest degree of care. The inference is also imperative that plaintiff's intestate, being invited to participate in a "test" flight, must have known that such a flight was for the purpose of ascertaining the capabilities of the plane for regular service, which were by such flight to be determined. Being himself a pilot, he was thoroughly aware of the danger of the undertaking. Necessarily this situation would imply that it was not then known to any one whether or not the plane was in such condition that it would respond to its expected functions. The plane was in charge of a pilot who was accompanied by two mechanics, and from this the natural inference would be that at least for a test flight it was properly and adequately manned. It would be the ordinary duty and function of a trained pilot and trained mechanics to ascertain the defects, if any, in an airplane through a test flight. The last word in the tragedy is that in the crash all the occupants were killed, so that no one will ever definitely know what actually caused the plane to fall.
Our daily newspapers are replete with airplane accidents, the solution of which will never be known, as in the case at bar. The Department of Commerce, through its Bureau of Air Commerce, has published documents purporting to deal with accidents in the air and their causes. In publications of July and August, 1935, the causes of accidents attributable to carelessness or negligence are but a small percentage of all the causes which are known in this young but growing enterprise. It is definitely known that the presence of air-pockets, cross-currents, clouds, fog, mists, and a variety of climatic conditions bring about disaster for which no one is responsible, except it might be said that he who assumes to fly must look well to his own fate. Stalling motors frequently bring about failures to negotiate the air. Experience teaches us that this is still common in the automobile motor, which has the same method of propulsion as that of the airplane, but with a much longer period of experimentation and development. Of course, when the motor in an auto stalls it generally causes nothing more serious than disappointment, inconvenience, and vexation to the driver and occupants; but *868 when the motor of an airplane stalls when in the air it is very likely to mean death to the occupants. Only a few of the ordinarily recognized natural hazards of flying which have not yet been definitely overcome, have been mentioned. How can the court legitimately say under all the circumstances that a fall of an airplane upon a test flight was through an exclusion of all other causes, attributable to the negligence of the ones engaged in the operation? And in the face of this, the law tells us that the doctrine of res ipsa loquitur shall not be applied if there is any other reasonable or probable cause from which it might be inferred that there was no negligence at all. It seems impracticable, if not impossible in the case at bar, to reasonably apply the doctrine to the pleaded facts and thereby save the petition.
The facts here seem to me to be much out of line with those in the old English cases out of which the doctrine arose, as in Byrne v. Boadle, 2 H. & C. 722, 159 English Rep. 299, where a barrel of flour fell upon the pedestrian from an upper window; or in Scott v. London Dock Company, 3 H. & C. 596, 159 English Rep. 665, where goods fell upon the Custom House officer from a crane fixed over the doorway; or in Kearney v. London Brighton Railway Company, 4 Ex. 885, 154 English Rep. 1476, where a brick fell upon a person underneath from a bridge structure over which a train was passing; or in Skinner v. London Brighton Railway Company, 5 Ex. 787, 155 English Rep. 345, where one train struck against another train standing at a station and injuring a passenger, both trains being operated by the same company; or, as in the old familiar illustration of a case clearly within the doctrine, of two trains operated by the same agency in collision on the same track going in opposite directions. In these and similar cases all theories of the cause of the accident other than that of negligence are logically excluded by the facts themselves, while in the case at bar there are a variety of causes other than negligence which may have brought about the disaster.
Among the more recent cases dealing with the point is Herndon v. Gregory, 190 Ark. 702, 81 S.W.(2d) 849, 82 S.W.(2d) 244, which was a case involving an airplane accident in which all the occupants of the plane were killed, as in the case at bar. It was pleaded there that the plane was caused to be manned by an unskilled pilot and yet the court held that the petition could not be sustained against demurrer. It was the theory of the court that unless it could be pleaded and proved that the action of the unskilled pilot was the direct cause of the accident, which the petition did not allege and which of course could not be proved, the petition should not be sustained and that otherwise upon the facts the doctrine should not be applied. The court summarizes its conclusions in 190 Ark. 702, 81 S.W.(2d) 849, at page 852, 82 S.W.(2d) 244, 245, in the following language: "We are therefore of the opinion that the res ipsa loquitur doctrine is not applicable in this case, and that no presumption of negligence arises `from the mere fact of injury, when that fact is as consistent with the presumption that it was unavoidable as it is with negligence.' This accident may have been caused by one or more of a number of reasons over which the owner and operator of the airplane had no control; `and therefore, if it be left in doubt what the cause of the accident was or if it may as well be attributable to the act of God or unknown causes as to negligence, there is no such presumption.' If the complaint had alleged some particular act of negligence or some unusual or out of the ordinary occurrence, from which negligence might be presumed, such as cranking the engine without blocks in front of the wheels as in the Genero Case, supra [Genero v. Ewing, 178 Wash. 78, 28 P.(2d) 116], or attempting to land at too low and unsafe a speed or at a dangerous or unsafe place as in the Seaman [Seaman v. Curtiss Flying Service, Inc., 231 A.D. 867, 247 N.Y.S. 251] and Stoll Cases [Stoll v. Curtiss Flying Service, Inc., 1930 U.S. Aviation Rep. 148], supra, or had a collision occurred with another airplane as in the Smith Case, supra [Smith v. O'Donnell, 215 Cal. 714, 12 P.(2d) 933], or had he in a careless and negligent manner piloted his plane into a tree as in the McCusker Case, supra [McCusker v. Curtiss-Wright Flying Service, Inc., 269 Ill.App. 502], then it would have alleged a fact over which human conduct had control which might give rise to the application of the doctrine of res ipsa loquitur. Not having done so, we are of the opinion that the complaint did not state a cause of action, and that the trial court correctly sustained the general demurrer thereto."
*869 The last-cited case was decided by a four-three decision of the Supreme Court of Arkansas, and a dissenting opinion is found under the same title in 82 S.W.(2d) 244. The gist of the dissenting opinion, however, revolves around the contention that the allegation in the petition that the plane was placed in the hands of an unskilled pilot was sufficient to sustain it against demurrer. With some of the general language of this dissenting opinion, however, I do not find myself in accord, as for example, that found on page 245 of 82 S.W.(2d), as follows: "But if there were nothing stated in the complaint except that the plane fell and the parties were injured, this, under the rule of res ipsa loquitur, would state a cause of action. It seems clear that the plane would not have crashed and fallen unless the person operating it had been guilty of some negligence."
But even should the contention of the minority opinion of that court be accepted here, it could not rule this case, for the reason that the petitioner here pleads that the plane was in charge of a regularly employed pilot of the defendant company who must be presumed under such pleading to be one skilled in his calling.
Another case involving an airplane accident in which the doctrine here invoked was held not to be applicable, was decided by the Supreme Judicial Court of Massachusetts in Wilson v. Colonial Transport Co., 278 Mass. 420, 180 N.E. 212, 83 A.L.R. 329. The case apparently involved the irregular performance of one of the motors when the plane was about to take off. After reiterating the substance of the doctrine as previously herein set out, the court concludes its opinion with the following significant language, 278 Mass. 420, 180 N.E. 212, at page 214, 83 A.L.R. 329: "We are not as yet, in respect to the operation, care and characteristics of aircraft, in a position where the doctrine of cases like Ware v. Gay, 11 Pick. [Mass.] 106, as to a stagecoach; O'Neil v. Toomey, 218 Mass. 242, 105 N.E. 974, as to the qualities of ice; or Gilchrist v. Boston Elevated Railway Co., 272 Mass. 346, 172 N.E. 349, as to trolley cars or steam railroad trains, can be applied. The decision of cases of that nature rests upon facts constituting a part of a widespread fund of information. No ruling of that character could be made upon the meager facts here shown."
It may be that in the not too distant future in the evolution and development of the wonderful and enchanting science of aviation, a sufficient fund of information and knowledge may be afforded to make a safe basis in compensating for injuries sustained, the application of the doctrine here invoked; but it seems to me quite clear that that time has not yet arrived. Man has made rapid strides within a very small cycle in his endeavor to become master of the air, of which the bird until recently has been exclusively king in his own right, but with the exceedingly large number of unexplained and inexplicable catastrophies it is evident that he has not yet become such master. It will not do to discourage the pioneer by making him assume undue hazards in a monetary way. In the meantime it is quite evident that those who choose air-ways for transportation must in many instances be held to have themselves assumed the risk.
An order may be entered sustaining the demurrer; and it being evident that the plaintiff cannot plead further, judgment will be for the defendant in a dismissal of plaintiff's petition with costs and reserving to her all proper exceptions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556114/ | 66 F.Supp. 55 (1946)
EUSTICE
v.
FEDERAL CARTRIDGE CORPORATION.
Civ. No. 843.
District Court, D. Minnesota, Third Division.
June 13, 1946.
*56 Daniel S. Feidt, of Minneapolis, Minn. (Dwain M. Ewing and Fred A. Ossanna, both of Minneapolis, Minn., on the brief), for plaintiff.
Victor E. Anderson, U. S. Atty., and Linus J. Hammond, Asst. U. S. Atty., both of St. Paul, Minn., and Henry F. Simons, of Minneapolis, Minn., for defendant.
DONOVAN, District Judge.
Plaintiff commenced this action in behalf of himself and some 59 other persons similarly situated, to recover from defendant unpaid wages, overtime compensation, liquidated damages, and attorneys' fees, under the provisions of the Fair Labor Standards Act of 1938. 52 Stat. 1060, 29 U.S.C.A. § 201 et seq. Plaintiff and said persons similarly situated will be referred to hereinafter as "plaintiffs" for convenience.
Plaintiffs claim there is due them as "unpaid wages and overtime" the aggregate sum of $140,157, and to this they ask that a like sum be added as liquidated damages, together with costs and a reasonable attorneys' fee.
Defendant's answer puts in issue all the allegations of the complaint. The case was submitted to the Court on an agreed statement of facts and oral testimony. By stipulation of counsel, the only issue for decision in the case at bar at this time is this: What hours, if any, were hours worked by plaintiffs within the meaning of the Act, and for which plaintiffs were not compensated as provided by the Act?
Plaintiffs were employed by defendant in its fire department (privately owned and operated) at the Twin Cities Ordnance Plant at or near New Brighton, Minnesota.
*57 Defendant, a Minnesota corporation, was engaged, during all times herein, in manufacturing small arms ammunition at said plant. Production commenced there on March 9, 1942, and from that time on it is undisputed that the parties to this preceeding were engaged in interstate commerce, or in the production of goods for interstate commerce, and were subject to and entitled to the benefits and protection of said Act.
The Twin Cities Ordnance Plant comprised an area of 2,425 acres, lying north of the cities of St. Paul and Minneapolis. As a part of defendant's plant and operations connected therewith it maintained a fire-fighting unit or department, made up of two fire stations and a personnel of approximately one hundred fire-fighters, all of which was manned and equipped in the same manner as the ordinary municipally-operated fire department.
Defendant operated said plant as a cost-plus-a-fixed-fee contractor with the United States government, manufacturing ordnance for the United States Army, and in this process large amounts of high explosive powder were used.
Prior to March 19, 1944, plaintiffs worked for defendant in shifts of eight hours or more per day, forty-eight or more hours per week, and defendant maintained said fire-fighting service and facilities twenty-four hours per day, seven days per week, employing three alternate shifts per day of approximately eight hours each.
Commencing March 19, 1944, a two-platoon system was established at defendant's plant, and from the last-named date on, plaintiffs worked for and were paid by defendant on that basis.
The nearest well-equipped fire unit was at the nearby city of Minneapolis, sufficiently remote to warrant the maintaining of the two fire stations on the premises of defendant at New Brighton. Station No. 1 was of brick construction, and Station No. 2 was constructed of wood. Sleeping quarters for firemen, of the dormitory type, were provided by defendant in each of the stations.
By petition dated July 7, 1943, ninety-two members of defendant's fire department (among whom were forty-five of the present plaintiffs) requested the installation "of the so-called two-platoon system". The plan was submitted to the United States Department of Labor, and defendant was told by the Acting Regional Director in a letter dated August 31, 1943, that defendant's proposal was "a `reasonable computation of working hours' within the meaning of section 7 of * * * Interpretative Bulletin Number 13 * * *".
The employees affected were represented by Federal Labor Union No. 23328, A.F. of L., and on January 11, 1944, entered into a contract with defendant governing proposed hours of employment, rates of pay and working conditions, and which, among other things, provided:
"Section 1. This article covers Fire Captains, Lieutenants, Fire Motor Operators, and Firemen.
"Section 2. Under a two-platoon system, Fire Captains, Lieutenants, Fire Motor Operators and Firemen will be stationed at the fire stations for intervals of twenty-four (24) consecutive hours during `on station' periods, beginning at the same time as production or officer workers. The `on duty' hours worked will be sixteen (16) hours out of the twenty-four (24) hour period.
"Section 4. During the `on station' period, Lieutenants, Fire Motor Operators and Firemen will not be paid unless called to `duty'. If called to `duty' during the `on station' period, they will be paid time and one-half for all hours in excess of forty (40) hours per week.
"Section 5. Fire Captains, Lieutenants, Fire Motor Operators, and Firemen will be alternately `on station' twenty-four (24) hours and off twenty-four (24) hours. However, the days off on each platoon will be scheduled that each member will work three (3) sixteen-hour `on duty' periods each week."
Three of the plaintiffs to this action signed for the employees, and one William F. Wright signed for the Union.
Following the execution of the last-named contract, and on February 11, 1944, Honorable William R. McComb, Deputy Administrator, by letter advised Lieutenant Colonel William J. Brennan, Jr., Chief, *58 Labor Section, Office of the Chief of Ordnance, War Department, that he had examined the proposed plan of the two-platoon system and approved it, saying: "The operation of this plan appears to be unobjectionable under the Fair Labor Standards Act, and you may so advise the contractor-operator."
The two-platoon system had been in vogue in nearby municipalities for years prior to its adoption here. It is conceded that it improved the morale and eliminated possibility of suspension of members of the fire unit. All of the employees connected with defendant's fire department voted in favor of the change to the two-platoon system and complied with it in all respects without complaint, up to the time of the commencement of this action.
Under the two-platoon system the plaintiffs normally worked three sixteen-hour on duty shifts, and three eight-hour on call shifts, each week. For the three sixteen-hour shifts they were paid straight time for all hours up to forty, and time and one-half for all hours over forty hours per week. Captains and Assistant Fire Chiefs were not included, however, as they were paid weekly salaries regardless of hours worked. With a thought to keeping the time worked so as not to exceed forty-eight hours per week, the fire department employees were given three consecutive days off every second week. Except when expressly permitted to be off the premises the plaintiffs were required to remain in and about the fire stations, on inspection of different parts of the plant or within call, at all times.
Plaintiffs were required to punch the time clock at 7:48 a.m. and to answer roll call at 7:55 a.m., and to remain on the premises continuously for a twenty-four hour period. This gave defendant a like period of fire protection, added efficiency, and required less personnel. It is undisputed that defendant operated its plant on a twenty-four hour day, made up on a three-shift basis, and that under the two-platoon system plaintiffs furnished defendant's plant with fire protection on a twenty-four hour day basis.
The sixteen-hour, on-duty shifts were spent in the performance of different tasks in and about the fire station, and in activities of plaintiffs' own choosing, restricted, however, to the premises. It is undisputed that less than half of the time from 7:55 a.m. to 9:55 p.m. was devoted to active duty. The balance of the time, made up of inactive hours, could be spent by plaintiffs in reading, playing cards, engaging in games of volley ball, pitching horse shoes, and preparing food in the kitchen of the fire station. The active duties were made up primarily of checking equipment, making up the beds in the station dormitories, drilling, and in general clean-up work in the morning. In addition to this, at different times, two of the plaintiffs would be assigned to inspection work.
Plaintiffs received no compensation for the eight hours of sleeping time, unless called to attend a fire, perform ambulance service, or serve as relief dispatcher. These "on call" hours were from midnight until 8:00 a.m., and were not remunerated for as hours worked unless plaintiffs actually performed work between midnight and 8:00 a.m. on emergency calls or as relief dispatchers. They were paid for such extra work.
During the eight "on call" sleeping hours spent by plaintiffs in the fire stations, the only duty required of them was to be present and available to answer fire calls. If a fire call did come in plaintiffs had no choice but to respond if the particular rig to which they were assigned was dispatched. In other words, if their truck was dispatched, plaintiffs were required to answer the fire alarm. If their truck was not dispatched, the only work plaintiffs would have to do would be to close the doors, whereupon they would retire to their beds and be in readiness to respond to the next alarm. No compensation was paid the plaintiffs who got up, dressed and reported for action, unless their truck was dispatched to the fire and they actually accompanied it, or the ambulance.
Plaintiffs contend they should recover overtime for (a) the eight "on call" sleeping hours between midnight and 8:00 a.m., *59 and (b) the time devoted to answering roll call before the start of each shift.
It is conceded that the present case is covered by the Fair Labor Standards Act of 1938. Plaintiffs claim that the eight hours "sleeping time" in defendant's fire stations was essential to the protection of defendant's plant and hence was "time worked" for which they should be compensated, chiefly for the reason that the eight hours sleeping time was interrupted and disturbed to such an extent that they were deprived of rest and relaxation.
Decisions of other courts, while helpful, cannot be relied upon as proof-positive yard sticks in attempting to evaluate the facts of the present case, or in applying the law here applicable. This is emphasized by the Court in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 164, 89 L.Ed. 124, in words pertinent, pungent and epigrammatic, i.e.: "Each case must stand on its own facts."
It is my opinion that the eight hours between midnight and 8:00 a.m., which plaintiffs were required to spend as "sleeping time" in defendant's fire station dormitories, did not constitute "time worked" within the purview of the Fair Labor Standards Act, except on those occasions when plaintiffs responded to fire alarms or ambulance duty, and were actually dispatched and required to perform such work. Plaintiffs who accompanied rigs, trucks or an ambulance on such duty between the hours of midnight and 8:00 a.m. should, in my opinion, receive compensation for the full eight hours, as there would be no continuity of sleeping time spent by them in that period. A minimum of one-half hour overtime should also be paid those plaintiffs who, during said "sleeping time" and upon the occasions of such fire alarms or calls, arose from their beds, prepared to respond to such calls to duty if needed, and were only required to open and close the fire station doors for the vehicles dispatched in response to the call. This may appear trivial, and perhaps was infrequent, but nevertheless constitutes "time worked" by plaintiffs, during the period of time that they normally could have been sleeping.
While not at all controlling, the facts leading to and surrounding the creation of the two-platoon system in the present case may be worth while adverting to. In the first place, some forty-five of the sixty plaintiffs petitioned defendant "for the installation * * * of the so-called two-platoon system". Following this, plaintiffs' part-time bargaining agent, Federal Labor Union No. 23328, A. F. of L., entered into an agreement with defendant providing, among other things, that plaintiffs' "`on duty' hours worked will be sixteen (16) hours out of the twenty-four (24) hour period. * * * Lieutenants, Fire Motor Operators and Firemen will not be paid unless called to `duty'. * * * each member will work three (3) sixteen hour `on duty' periods each week".
While it is true that plaintiffs are not bound by said petition and agreement in any manner, if inconsistent with the terms and requirements of the Act (Martino v. Michigan Window Cleaning Co., 66 S.Ct. 379; D. A. Schulte, Inc., v. Gangi, 66 S.Ct. 925; Johnson et al. v. Dierks Lumber & Coal Co., 8 Cir., 130 F.2d 115, 120), the conduct here exemplified suggests a course of action on the part of plaintiffs on those occasions in keeping with the conclusion reached by the Court in the present case.
In the case of Johnson et al. v. Dierks Lumber & Coal Co., supra, Judge Kimbrough Stone, in a concurring opinion, suggests a desirable compass for cases such as the one at bar. Judge Stone said: "My view is that the time when these plaintiffs could be sleeping is not to be treated as hours of employment in the factual situation shown in this present record. I do not mean that, in every case nor under all circumstances, sleeping hours should be excluded from employment hours. Whether they should or not must depend upon the factual situation of each case as it appears. That such hours may be excluded under certain fact situations is not a novel idea (see Muldowney v. Seaberg Elevator Co., D.C., 39 F.Supp. 275, 282, and Interpretative Bulletin No. 13, Department of Labor, Wage and Hour Division, paragraphs, 1, 2, 6 and 7). Nor do I mean to exclude the time when plaintiffs might be aroused at *60 night to care for the property. I cover solely the time when they were or could have been sleeping at night."
The Court in the instant case followed the course channeled by the opinions of Mr. Justice Jackson in the cases of Armour & Co. v. Wantock et al., 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118, and Skidmore v. Swift & Co., supra.
In Muldowney v. Seaberg Elevator Co., Inc., 39 F.Supp. 275, the District Court of the Eastern District of New York, confronted with "sleeping time" in a situation not unlike the principle we are here dealing with, said, on page 282 of 39 F.Supp.: "In computing the hours of overtime I will be guided by Interpretative Bulletin No. 13, Paragraphs 6 and 7, United States Department of Labor Wage and Hour Division, Office of Administrator, November, 1940, from which it is clearly apparent that where the employee stays at the employer's place of business at night, as in the case at bar, and in the ordinary course of events has a normal night's sleep, and ample time for meals, and time for relaxation, and entirely private pursuits, such time must be excluded as this seems to me to be clearly the intent of the law."
In the case of Bridgeman et al. v. Ford, Bacon & Davis, Inc., 64 F.Supp. 1006, decided February 25, 1946, by the District Court, Eastern District of Arkansas, Western Division, and very similar to the case at bar, the Court held that "sleeping time" was not compensable under the Act, saying, on page 1010 of 64 F.Supp.:
"On the main issue in this case, namely, whether the plaintiffs are entitled to recover for the entire eight-hour rest period provided for under the two platoon system, their contention, as we understand it, is two-fold: First, that since it is admitted that the men were required to remain at their fire stations and away from their homes during the entire rest period, as a protection to the plant, they were at all times `employed' within the meaning of the statute, and are entitled to recover as a matter of law; and secondly, if such is not the law, that they are still entitled to recover on the facts, which they insist disclose that the rest period was interrupted to such an extent as to deprive them of the enjoyment thereof and of a normal night's sleep.
"We cannot agree with the plaintiffs in either of these contentions."
See also Harris v. Crossett Lumber Co., D.C.W.D.Ark., 62 F.Supp. 856, 858.
Counsel for plaintiffs cite the case of Bell et al. v. Porter et al., 66 F.Supp. 49. This is a decision by the United States District Court for the Northern District of Illinois. In many respects it is very similar in its facts to the present case, with one important exception, i.e., the plaintiffs in that case had been subjected to considerable employer pressure, with reference to which Judge Barnes said: "* * * the firemen, before voting, were given to understand that if they wanted to retain their jobs as firemen they would be required to vote for the plan, and, if they did not vote for the plan, they would be transferred to another department in the plant or discharged."
In the present case the record is devoid of anything suggesting that the defendant adopted high pressure methods for the purpose of influencing plaintiffs to go along with it in establishing the two-platoon system.
In the case of Bowers et al. v. Remington Rand, Inc., 64 F.Supp. 620, the United States District Court for the Southern District of Illinois, under facts not unlike those in the case of Bell v. Porter, supra, arrived at a result contrary to that reached in the case last cited.
Plaintiffs in the present case place particular emphasis on the claim that the eight-hour period of "sleeping time" was interrupted to such an extent as to deprive them of a normal night's rest. It must be admitted that many of the comforts and refinements of home were lacking in the dormitories of the defendant, but one can, without too much difficulty, become adapted to such change of conditions, as do firemen employed by many municipalities.
The two-platoon system, except for the requirement that plaintiffs sleep in the dormitories at the fire stations, did not differ materially from the old system. In many ways there was an improvement over the *61 old, although from the standpoint of the comfort of the firemen, there was room for improvement. All of this, of course, does not affect plaintiffs' rights under the Act.
Plaintiffs' counsel rely on the cases of Armour & Co. v. Wantock, supra, and Skidmore v. Swift & Co., supra. In the Armour case, [323 U.S. 126, 65 S.Ct. 166] the respondent fire fighters "* * * were required to stay in the fire hall, to respond to any alarms, * * *. They were not * * * at liberty to leave the premises except that, by permission of the watchman, they might go to a nearby restaurant for their evening meal.
* * * * * *
"The District Court held that the employees in such service were covered by the Act. But it declined to go to either extreme demanded by the parties as to working time. Usual hours for sleep and for eating it ruled would not be counted, but the remaining hours should. * * * The Court of Appeals affirmed." (Italics supplied.)
The appellant, Armour & Company, there argued that even if the fire fighters "* * * were within the Act, time spent in sleeping * * * cannot be counted as working time." (Italics supplied.)
Indicative of the correctness of the conclusion reached in the present case, is the affirmance by the Supreme Court of the United States.
In the Skidmore case, supra, it appears that the Supreme Court reversed the case because the trial court had applied a theory that was not countenanced by the Act, in stating generally that time required of employees on the employer's premises devoted to "pursuing such pleasurable occupations or performing such personal chores does not constitute work." In other words, if the facts of the particular case permit, "waiting time" may well be "working time" for which the employee should be paid. No hard and fast rule of law decisive of the case at bar is available to the trial court. This is pointed out by Mr. Justice Jackson in the Skidmore opinion, 323 U.S. at page 136, 65 S.Ct. at page 163, 89 L.Ed. 124, in these words: "We have not attempted to, and we cannot, lay down a legal formula to resolve cases so varied in their facts as are the many situations in which employment involves waiting time."
In the present case I am of the opinion that the plaintiffs have not carried the burden required of them to establish "sleeping time" to be "time worked", within the purview of the Fair Labor Standards Act, with the exception of the occasions when plaintiffs were actually dispatched in response to calls or fire alarms, between midnight and 8 o'clock a. m. or in response to ambulance calls during the same period of time. For such service actually performed during the hours between midnight and 8 o'clock a. m. plaintiffs should be paid the overtime required by the Act, not only for the actual time devoted to such fire or ambulance calls, but for the full eight-hour period, because this deprived them of their enjoyment of an entire normal night's sleep.
Plaintiffs should also be paid minimum overtime of one-half hour for all occasions that they were aroused, between midnight and 8 o'clock a. m., and required to open and close doors for vehicles dispatched in response to fire alarms or ambulance calls.
The Court is further of the opinion that, where not already compensated, plaintiffs should be paid the overtime required by the Act, for answering roll call, acting in relief capacities, or performing similar tasks and duties necessary in connection with their employment.
Findings of Fact and Conclusions of Law may be drawn and submitted.
Exceptions are allowed all parties. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556115/ | 30 So.3d 474 (2008)
C.L.W.
v.
A.J.W.
No. 2071032.
Court of Civil Appeals of Alabama.
August 18, 2008.
Decision of the Alabama Court of Civil Appeal Without Published Opinion Transferred to the Morgan Cir. Ct. for trial de novo, pursuant to Rule 28(D), Ala.R.Juv.P. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/516068/ | 864 F.2d 28
Jackman S. VODREY: Evelyn S. Vodrey, individually,Plaintiffs-Appellees,v.Carolista Fletcher GOLDEN, and husband, Leonard GlennGolden, Defendants-Appellants.Jackman S. VODREY, Trustee for Evelyn S. Vodrey Trust, and;Jackman S. Vodrey, individually, Plaintiffs-Appellees,v.Carolista Fletcher GOLDEN, and husband; Leonard GlennGolden, Defendants-Appellants.
Nos. 87-2214, 88-2042.
United States Court of Appeals,Fourth Circuit.
Argued Oct. 4, 1988.Decided Dec. 21, 1988.
W. Mark Spence and Betsy Butler, Aycock, Spence & Graham, Nags Head, N.C. for defendants-appellants.
John G. Trimpi and C. Everett Thompson, II, Trimpi, Thompson & Nash, Elizabeth City, N.C., for plaintiffs-appellees.
Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, WINTER, Chief Circuit Judge, and MURNAGHAN, Circuit Judge.
POWELL, Associate Justice:
1
Appellants in this diversity case from North Carolina challenge the sufficiency of the evidence supporting a jury verdict finding them liable for the tort of abuse of process. We must also consider whether the district court abused its discretion in imposing a discovery sanction against appellants. We think the evidence supported the abuse of process verdict, and also think the sanction was within the district court's discretion. We therefore affirm.
I.
2
Appellee Jackman S. Vodrey, a resident of Ohio, was trustee for the Evelyn Vodrey Trust, which owned property in Nags Head, North Carolina. In July 1984, Vodrey became concerned about a sign that he believed was located on the property. The sign carried an advertisement for a neighboring jewelry shop. Vodrey feared that continued acquiescence in the location of the sign might lead to loss of the property through adverse possession. Vodrey called the sign's owners, appellants Carolista and Leonard Golden, asking them to acknowledge that their sign was on Vodrey property. Vodrey proposed that the Goldens "lease" the property for one dollar a month. The Goldens refused.
3
In July 1985, Vodrey went to the property with a Mr. Jones. Mr. Golden cursed Vodrey, and threatened him with arrest if he did not leave. Early that afternoon, Mrs. Golden went to a magistrate in Manteo and swore out warrants charging Vodrey and Jones with criminal trespass. Later in the afternoon, Vodrey returned to the property to take pictures of the sign and relevant boundary markings. That evening, a deputy arrived at Vodrey's vacation home. The deputy arrested Vodrey in the presence of his wife and daughter, and took him to the police station. Trial was set for July 12, and on that date Vodrey was served with another criminal trespass warrant based on his presence on the property when he took the photographs.
4
The state voluntarily dismissed the charges against both Jones and Vodrey. Vodrey subsequently filed this civil action in the Eastern District of North Carolina on December 6, 1985, alleging malicious prosecution and seeking to quiet title to the property. The Goldens filed an answer and discovery began. On June 18, 1986, during a recess in Mrs. Golden's deposition, she caused a second set of criminal trespass warrants to be issued. The warrants were based on the same alleged trespass in July 1985 as the first set of warrants issued almost a year earlier. On July 11, 1986, the Goldens moved the district court to stay Vodrey's malicious prosecution suit pending the disposition of the new trespass charges. The Goldens argued that Vodrey's suit for damages could not go forward before disposition of the second set of criminal trespass charges. Further, they contended that should Vodrey be convicted on the charges in the second set of warrants, probable cause would be established, and Vodrey's claim of malicious prosecution based on the earlier warrants would fail.1 The district court denied the stay motion, and held on the basis of Jones v. Gwynne, 312 N.C. 393, 323 S.E.2d 9 (1984), that the disposition of the second set of trespass charges was not material to Vodrey's suit.
5
On April 7, 1987, after a trial in Dare County District Court, Vodrey was found not guilty of criminal trespass. Vodrey then amended his complaint in federal court to allege two additional counts of malicious prosecution and two counts of abuse of process. (App. 60) The Goldens generally denied the allegations in the supplement to Vodrey's complaint and moved for dismissal of the abuse of process claims under Fed.R.Civ.P. 12(b)(6). The Goldens contended that the supplemental complaint had failed to allege the second element of an abuse of process claim, a willful act committed after issuance of the process in order to gain advantage in some collateral matter. The district court denied the motion, holding that this element was satisfied by the following allegation in the complaint:
6
Defendants have perverted the use of process by filing criminal charges against the plaintiff, Jackman S. Vodrey, to terminate or delay the Federal proceedings, the issuance of said criminal warrants being entirely collateral to this action but designed to gain advantage to defendants.
7
(App. 73-74).
8
Prior to trial, the Goldens stipulated that the sign had been on Vodrey property all along. The case was tried to a jury in October 1987. The Goldens moved for a directed verdict at the close of Vodrey's evidence and at the close of all the evidence. These motions were denied. The jury found Mrs. Golden, but not Mr. Golden, liable for malicious prosecution as to the July 8 and July 12, 1985 warrants. It found both Goldens liable for malicious prosecution as to the June 18, 1986 warrants. Finally, the jury found both Goldens liable for abuse of process as to the June 18, 1986 warrants. The district court denied the Goldens' motion for judgment notwithstanding the verdict. In this appeal, the Goldens challenge only the abuse of process verdicts, on which the jury awarded a total of $36,000 in compensatory and punitive damages.
II.
9
Abuse of process is "the misuse of legal process for an ulterior purpose" or the "perversion of a legally issued process whereby a result not lawfully or properly obtainable under it is [intended] to be secured." E.g., Stanback v. Stanback, 297 N.C. 181, 200, 254 S.E.2d 611, 624 (1979) (citing cases). North Carolina cases describe abuse of process as consisting of two elements, an "ulterior motive" and an "act." E.g., Id. at 201, 254 S.E.2d at 624. The ulterior motive requirement is satisfied where the prior action was initiated "to achieve a collateral purpose not within the normal scope of the process used." Id. The act requirement is satisfied where the defendant "committed some wilful act whereby he sought to use the existence of the proceeding to gain advantage of the plaintiff in respect to some collateral matter." Id.
10
Appellants' actions in this case included the use of legal process in a manner and for a purpose that clearly was an abuse. As the Goldens themselves testified, the second set of warrants was not issued for any purpose that trespass proceedings are intended to achieve. Rather, appellants procured the issuance of the warrants in response to Vodrey's action for malicious prosecution. (Rec.Vol. V, p. 286). The Goldens hoped that by causing a successful prosecution on the second set of warrants, they could establish "probable cause" for the first set of warrants, and thus defeat Vodrey's suit against them.2 (Rec.Vol. VI, p. 539). Appellants do not deny that they attempted to use the criminal proceedings for their own purposes. Rather, they base their challenge to the verdict on the formal definition of abuse of process. Admitting their ulterior motives, appellants challenge only the sufficiency of the evidence to support the jury's finding of an "act."3
11
We think that evidence sufficient to support the jury's finding is present at several places in the record.4 The Goldens actively participated in the trespass prosecution that followed the issuance of the second set of warrants. They conferred with the district attorney prosecuting Vodrey, and Mr. Golden voluntarily testified at the criminal trespass trial. (App. 162). The prosecuting attorney testified that the Goldens' attorney told him of the pending civil suit, encouraged him to press the criminal prosecution, and "indicated it was important to have the criminal offenses or alleged criminal offenses tried." (App. 165). The record also discloses that appellants procured the second set of warrants when Vodrey traveled from Ohio to Nags Head for Mrs. Golden's deposition. (Rec. Vol. IV, pp. 112, 191). From this the jury could infer that appellants made use of the warrants for the collateral purpose of discouraging Vodrey's discovery effort.5 We think all of these instances were acts by which appellants attempted to use for their own personal ends a criminal process they initiated by filing the second set of warrants.
12
Appellants, however, argue that "acts" such as these cannot suffice. They point to language from several North Carolina cases to the effect that abuse of process requires an act "not proper in the regular prosecution of the proceeding." E.g., Stanback, 297 N.C. at 201, 254 S.E.2d at 624; Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223 (1955); Ellis v. Wellons, 224 N.C. 269, 29 S.E.2d 884 (1944); see also Fox v. Barrett, 90 N.C.App. 135, 367 S.E.2d 412 (1988). Appellants contend that they did nothing improper or irregular in the course of the second trespass proceedings, and that the "act" requirement therefore could not have been met. They emphasize that the district attorney who tried the trespass charges testified that in his opinion the Goldens took no improper actions during the prosecution. (App. 162).
13
We think appellants' argument misapprehends the nature of the tort. The action for abuse of process is aimed not at insuring the regularity of legal proceedings, but at preventing use of legal process for collateral purposes. This distinguishes it from malicious prosecution. In actions for abuse of process it is "immaterial that the process used was properly issued, that it was obtained in the course of proceedings that were brought with probable cause and for a proper purpose, or even that the proceedings terminated in favor of the person instituting or initiating them."6 Restatement (Second) of Torts Sec. 682, comment a (1977). Abuse of process occurs where "the process has been used to accomplish some end which is without the regular purview of the process." E.g., Finance Corp. v. Lane, 221 N.C. 189, 196, 19 S.E.2d 849, 853 (1942); Petrou v. Hale, 43 N.C.App. 655, 659, 260 S.E.2d 130, 133 (1979).
14
On its facts this case is somewhat unusual. But the principles are clear. In the paradigm case, there may be an "act" entirely separate from any legal proceedings. For example, where a defendant has criminal warrants issued against plaintiff, then makes a separate offer to have the warrants dismissed in return for payment of an unrelated debt, abuse of process has occurred. See Ellis, 224 N.C. at 272, 29 S.E.2d at 885. Here, however, Vodrey's suit for malicious prosecution was in progress before the issuance of the second set of warrants. The collateral advantage the Goldens thought they could achieve--defeat of Vodrey's cause of action for malicious prosecution--would therefore have followed from prosecution of the trespass warrants alone. No further acts were needed. Where the acts taken in the initial proceeding suffice to achieve the illicit collateral effect, North Carolina courts have found abuse of process. See Hewes v. Wolfe, 74 N.C.App. 610, 330 S.E.2d 16 (1985).
15
None of the cases relied upon by appellants addresses the situation of parallel litigation presented here. We are therefore unpersuaded by appellants' reliance on language from cases decided on dissimilar facts. As one commentator has observed with respect to abuse of process, "the details that help explain one case should not become the loopholes that make an absurdity of the next." Harper, James & Gray, The Law of Torts 499 (2d ed. 1986). Appellants purposely subverted the criminal justice system in an attempt to frustrate Vodrey's civil suit. This is exactly the evil at which the tort of abuse of process is aimed.III.
16
Appellants also challenge a discovery sanction imposed by the district court. The district court awarded Vodrey his fees and costs incurred in connection with a motion to compel discovery. This motion was necessitated by Mrs. Golden's refusal to cooperate in her deposition. Appellants object to several items in the affidavit of fees and costs filed by Vodrey's attorney, claiming that the costs were not related to the motion to compel and that the supporting affidavit was too vague.
17
The district court's discretion with respect to discovery matters is broad. E.g., Ardrey v. United Parcel Service, 798 F.2d 679, 682 (4th Cir.1986). The district court in this case reviewed the same objections to appellee's claim for fees that are before us on appeal. The court nonetheless specifically found that appellee's counsel had "expended at least fifteen hours in connection with the motion to compel discovery." (App. 58). Given the appropriate standard of review, we are not prepared to disturb this finding.
IV.
18
The district court's judgment awarding damages for abuse of process is hereby
19
AFFIRMED.
1
Malicious prosecution is a tort closely related to abuse of process. To establish malicious prosecution, a plaintiff must prove that (i) defendant initiated the earlier proceedings (ii) with malice and (iii) without probable cause, and that (iv) the prior proceeding terminated in the plaintiff's favor. See Jones v. Gwynne, 312 N.C. 393, 323 S.E.2d 9 (1984)
2
Appellants apparently did not know that under the rule of Jones v. Gwynne, supra, the reissuance of the warrants could have no effect on the malicious prosecution action that was already underway
3
In this case there is no question that the jurors' verdict represented their finding that an act was shown. The district court specifically instructed the jury that it must find an act committed after the issuance of the second set of warrants on June 18, 1986 before it could impose liability for abuse of process. (Rec.Vol. VII, p. 185). The jury in fact returned for clarification concerning the "time frame" of the act requirement after retiring for deliberations. The district court again stated that the jury must find an act committed after the second set of warrants issued. (Rec.Vol. VIII, p. 200)
4
We review appellants' challenge under the familiar standard of review applicable to the verdict of a properly instructed jury. The jury's verdict must stand if, taking the evidence in the light most favorable to the plaintiff, there was "any substantial evidence" to support it. E.g., Evington v. Forbes, 742 F.2d 834, 835 (4th Cir.1984)
5
As noted above, on July 11, 1986 the Goldens filed a motion to stay Vodrey's civil suit pending the outcome of the criminal case initiated by their filing of the second set of warrants. The purpose clearly was to obtain a collateral advantage. This motion was a subsequent act. But it does not appear that Vodrey placed evidence of the stay motion before the jury. We therefore do not rely on it in support of our decision
6
Of course, none of this was true of the Goldens' criminal trespass warrants. As the malicious prosecution verdicts showed, the criminal trespass action was commenced without probable cause, with malice, and it terminated in Vodrey's favor. See supra note 1. We doubt whether actions taken in the course of a malicious prosecution could qualify as "proper in the regular course of the proceeding." | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2453563/ | 257 P.3d 882 (2011)
STATE
v.
DAVIS.
No. 105116.
Court of Appeals of Kansas.
August 19, 2011.
Decision Without Published Opinion
Affirmed in part, reversed in part, and remanded with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556341/ | 30 So. 3d 919 (2009)
STATE of Louisiana
v.
Mark KELLER.
No. 09-KA-403.
Court of Appeal of Louisiana, Fifth Circuit.
December 29, 2009.
*922 Thomas F. Daley, District Attorney, Rodney A Brignac, Assistant District Attorney, Edgard, LA, for Plaintiff/Appellee.
Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS and MARC E. JOHNSON.
MARC E. JOHNSON, Judge.
The Defendant, Mark Keller, appeals his conviction of second degree murder, a violation of La. R.S. 14:30.1.[1] We affirm.
*923 On June 2, 2005, the Defendant was indicted for the first degree murder of Natasha Butler, a violation of La. R.S. 14:30. The Defendant was arraigned and pled not guilty.[2] He subsequently filed two motions to suppress his statement made to the police, seeking to prevent the introduction of any of his confessions or taped statements. Both motions were denied.
After a three-day jury trial, the Defendant was found guilty as charged. Thereafter, he was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.
The body of the victim was discovered when her friend, Kerry Coleman, went to the victim's house after several unsuccessful attempts to reach her. Coleman arrived there around 9:00 a.m. on September 20, 2004. While checking the outside, he noticed that the back door was blackened. Because all the doors were locked, he kicked in the door to gain entry. Coleman searched for the victim throughout the house, eventually finding her lying dead in the bathroom. Coleman then left the house, asked a neighbor to call 911 and waited for the police. Coleman testified that he did not know the Defendant.
Terrell St. Martin, formerly a Detective Sergeant with the Criminal Investigation Division of the St. John the Baptist Sheriffs Office,[3] testified that the office received a call that day about a structural fire at a house where the body of a white female was found. He stated that the victim's mouth, arms and legs were secured with duct tape. The victim was lying on her side in the bathtub of the master bathroom.
Sergeant Jim Brouwer, with the Crime Scene Division for St. John the Parish Sheriffs Office, testified that there was a lot of black ash soot in the interior of the residence, and that the items inside the residence were in disarray.
Glenn Fontenot with the Louisiana State Fire Marshall's Office assisted in the fire investigation. He said that there were two separate origins of the fire, but that there was no connection between them. He stated that the lack of oxygen from one fire caused a slow smoldering fire that produced soot that spread throughout the house, including the rear bathroom where Butler was found. Fontenot testified that neither fire started accidentally.
Dr. Karen Ross with the Jefferson Parish Coroner's Office performed the autopsy. She found early changes with decomposition indicating some time had lapsed since the death. The doctor stated that the victim's airway contained a frothy fluid consistent with any type of asphyxia, and could indicate drowning, suffocation or strangulation. Although there was no water in the bathtub at the time the victim's body discovered, it had been some time between the victim's death and when the body was found. Dr. Ross stated that the water could have evaporated or drained out. She classified the cause of death as homicidal violence with asphyxia.
Dr. Ross also noted that the victim's face and body were covered with soot that *924 was consistent with the fire. Her airway and lungs, however, were clear of soot which indicates that she was not breathing when the fire started.
Major Robert Hay, Chief of Detectives for the Sheriffs Office, obtained the names of the Defendant and the two co-defendants during the investigation of the homicide. After their investigation implicated the Defendant, he was arrested by Detective Will Stelly.
Detective St. Martin interviewed the Defendant following the arrest. He testified that he advised the Defendant of his constitutional rights before the interview, and that the Defendant waived his right to an attorney on two occasions. Detective St. Martin stated that the Defendant initially denied any involvement with the murder, but later confessed to being at the scene. Detective St. Martin did not recall if the Defendant admitted that he harmed anyone, or if he had the intention of harming anyone, but the Defendant did accuse Bryan Stewart of harming the victim and tying her up.[4]
Detective St. Martin testified that he eventually obtained an audio-taped statement from the Defendant that was related to the homicide and burglary. He also talked to co-defendant, Lawrence Anthony Babin, who was being held in the Investigation Division while Detective St. Martin was interviewing the Defendant.
Babin testified that he was interrogated by Detective Stelly, Fire Marshall Carter, Detective St. Martin, and Major Hay on March 11, 2005. Questioning began around 6:00 a.m. when Babin was arrested, and ended at approximately 1:30 p.m. or 1:40 p.m. when Babin gave his statement. Babin stated that he gave a free, voluntary, and truthful audio-taped statement to Detective Stelly concerning the events leading to the victim's death.
Babin testified that, on September 20, 2004, he and the Defendant, who is his second cousin, went to the victim's home with Stewart, and that he and the Defendant only intended to burglarize the house. After knocking on the door and receiving no answer, Stewart went around to the back and entered the house from the back door. Stewart then let Babin and the Defendant in through the front door.
While the men were looking around, the victim entered the room. Babin stated that Stewart immediately struck the victim, and then "it was like fighting and all, he had got something to put in her throat and then tied up her ankles and put [expletive] around her neck." The victim's body was moved to the bathtub, but Babin stated that no one turned on the water in the tub while he was there. Babin and the Defendant then left the scene, leaving Stewart alone in the house.
Babin claimed that the victim was still alive when he and the Defendant left the scene. He insisted that neither he nor the Defendant killed the victim, but further stated that there was no doubt in his mind that he, the Defendant, and Stewart committed the crime. When asked what crime he was referring to, Babin responded, "My testimony is that we all broke into the house and the result of it was the murder of Natasha Butler." Babin confirmed his earlier statement made to the police that he never implicated himself or the Defendant in "laying hands on" the victim in order to hurt her, and that neither he nor the Defendant turned on the water in the tub, struck the victim, tied her up, or stuck a sock in her mouth. He further asserted that the Defendant did not tape the victim's *925 ankles, and did not contribute to the harm suffered by the victim. Babin admitted that he pled guilty to conspiracy to commit aggravated burglary of the victim's home, and was currently imprisoned on the fifteen-year sentence imposed for that crime.
ASSIGNMENTS OF ERROR
In the appeal, the Defendant first asserts that the trial judge erred in denying the motion to suppress the confession. Second, he contends that the trial judge erred in denying the motion for mistrial premised on the improper opinion testimony of Detective Stelly. Third, he assigns all patent errors.
1) Motion to Suppress the Confession
The Defendant claims that his police statement should have been suppressed because the State failed to prove that his police statement was not coerced and that the police did not ignore his request for counsel.
The State claims that the Defendant was advised of his rights after his arrest using the Advice of Rights Form that he initialed and signed, and again before giving his recorded statement. The State notes that the Defendant admits he agreed to talk to the officers. The State further asserts that the trial court was in the best position to judge the credibility of the Defendant's self-serving testimony.
In reviewing the trial court's ruling on a motion to suppress, the appellate court may consider the evidence presented at trial in addition to the evidence presented at the hearing on the motion to suppress. State v. Imbraguglio, 08-64, p. 10 (La.App. 5 Cir. 5/27/08), 987 So. 2d 257, 263; State v. Mollette, 08-138, p. 10 (La. App. 5 Cir. 11/25/08), 2 So. 3d 461, 467.
The Defendant testified that he was arrested by six or seven officers at his home, taken to the Detective Bureau, and put in the interrogation room with Detective St. Martin, Fire Marshall Carter, Detective Hymel, and Major Hays. Major Hays, Detective St. Martin and Fire Marshall Carter came and went several times from the room. The Defendant denied that he willingly signed the Advice of Rights form. He contended that he told the detective that he did not want to answer questions and did not want to talk to the police as he did not have anything to say. He also claims that he told them he wanted a lawyer, but the officers told him he could not get a lawyer as he was just there for questioning. The Defendant asserts that, despite his unwillingness to talk and his requests for a lawyer, Detectives Hymel and Major Hay kept questioning him. The Defendant stated he refused to answer questions for a long time, but the officers persisted.
The Defendant testified that Detective Hymel kept grabbing him by the back of his neck and trying to get him to talk, even though he told him that he did not want to talk or answer any questions. He said that another officer was in the interrogation room at the time. The Defendant further claims that Major Hay took out his gun, pointed the gun sideways, and then put it down on the table. The Defendant asserts that Major Hay said, "I know you know something about it," and then Major Hay told him that he was going to jail for the rest of his life and that he would never see his family again if he did not talk. The Defendant insisted he was afraid because the gun was on the table pointing at him.
In the Defendant's account of the events, Detective St. Martin kept asking him the same questions, had him listen to Stewart's recorded statement, and told him that he had to make a statement similar to Stewart's. The Defendant claims that Detective St. Martin provided information that the Defendant was to use *926 in his statement to make it similar to Stewart's, and that he did not know those facts until he listened to Stewart's statement. The Defendant also said that, during the recording of his statement, the officer stopped recording when the Defendant told the officer he did not want to talk.
At one point in the testimony, the Defendant admitted that he waived his rights accorded a defendant under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and that he signed the "Advice of Rights" form. He later claimed he did not recall waiving his rights, or indicating that no threats were made against him. The Defendant admitted that he said on the tape that no physical force or threats were made against him, but again claimed he made that declaration because he was threatened with harm if he said anything about the gun that was placed in front of him on the table. He also noted that he was never allowed to talk to an attorney between the time he was arrested and when he was brought to jail.
At the preliminary examination and suppression hearing, Major Hay testified that he was present in the Sheriffs Office when the Defendant and his co-defendants were arrested. Major Hay denied talking to any of the defendants when they were at the Detective Bureau, and stated he was never in the interrogation room with the Defendant. When asked if the Defendant would be incorrect in testifying that Major Hay came into the interrogation room and laid his gun on the table, Major Hay responded, "[the defendant] would be an absolute liar." Major Hay testified that many years ago he implemented a procedure for officers to store their weapons prior to entering an interview room, both for safety and to prevent such accusations against investigators. The process requires any officer, regardless of the law enforcement agency he is affiliated with, to be unarmed when entering an interrogation room.
Detective Feldon Carney testified that he advised the Defendant of his rights at approximately 6:50 a.m. on the morning of March 11, 2005. He testified that the Defendant never told him that he did not want to speak to anyone until he had a lawyer.
Detective St. Martin testified that he interviewed the Defendant after he was read his rights by Detective Carney and signed a waiver of rights form. Detective St. Martin stated that he believed that the Defendant understood his rights and was willing to answer questions without an attorney present. Detective St. Martin also read the Defendant his rights from the form as part of his audio-taped statement, and testified that the Defendant indicated that he understood his rights, was waiving them, and was willing to answer questions without the presence of an attorney. He further stated the Defendant never told him that he did not want to talk to him without his lawyer present, or that he wanted an attorney.
Detective St. Martin said that he did not tell the Defendant that his statement had to coincide with Stewart's statement, and did not recall if the Defendant actually listened to Stewart's statement. Detective St. Martin also did not recall if he stopped the tape during the recording of the Defendant's confession.
At the preliminary examination and suppression hearing, Babin testified that he gave his statement under duress because he was afraid that Major Hay would kill him, and claimed the Major struck him. However, he recanted that testimony during the Defendant's trial. At trial, Babin explained that, after talking with the Defendant, he made false statements during the suppression hearing in order to get *927 both of their statements suppressed. Babin agreed that as part of his plea to conspiracy to commit aggravated burglary of Butler's home he was required to offer truthful testimonial evidence regarding the incident.
a) Right to counsel
The Fifth Amendment gives a criminal suspect subject to a custodial interrogation the right to consult an attorney during questioning. Miranda; Imbraguglio, 08-64 at 10, 987 So.2d at 263; Law enforcement officers are required to explain the right to an attorney to a criminal suspect before beginning the custodial interrogation initiated by law enforcement officers after the suspect has been taken into custody or otherwise deprived of their freedom of action in any significant way. Imbraguglio, 08-64 at 10, 987 So.2d at 263. The safeguards regarding the criminal suspect's Miranda right to an attorney are triggered by both the custodial setting and an official interrogation. Id.
Once the criminal suspect knowingly and voluntarily waives his Miranda rights, law enforcement may continue to question a suspect unless or until he clearly requests an attorney. Imbraguglio, 08-64 at 11, 987 So.2d at 263. A criminal suspect's invocation of his right to an attorney during a custodial interrogation "requires, at minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." Imbraguglio, 08-64 at 11, 987 So.2d at 263-64. (Citation omitted). Once a criminal suspect makes a request to have an attorney present, the suspect is not subject to any further interrogation by law enforcement officers until an attorney has been made available to the suspect, unless the suspect initiates further communication, exchanges or conversations with law enforcement. Imbraguglio, 08-64 at 11, 987 So.2d at 264.
In Imbraguglio, the defendant claimed that his statements should be suppressed because he was denied his right to counsel. At the suppression hearing, the defendant testified that the officer told him that he was not under arrest and refused to let him call a lawyer. The defendant claimed that when he again asked to a call a lawyer, he was told that he did not need one. According to the defendant, the officers also continued to ask him questions after he told them that he was not going to say anything.
The police officer who conducted all of the defendant's interviews testified that the defendant never asked for an attorney, and that he verbally acknowledged his rights and appeared to understand them. The defendant also placed his initials by each right on the form and signed it. The defendant's signature indicated that he had read his rights, waived them, voluntarily answered questions, and gave a statement.
The trial judge found the officers' testimony more credible than the defendant, and denied the motion to suppress. Based on the testimony and evidence, we found that the trial judge did not abuse his discretion in his credibility determination and factual findings. Imbraguglio, 08-64 at 12, 987 So.2d at 264.
In reviewing a trial court's ruling as to the admissibility of a confession, the court's conclusions on the credibility of witnesses are entitled to the respect due those made by one who saw the witnesses and heard them testify. State v. Barton, 02-163, p. 14 (La.App. 5 Cir. 9/30/03), 857 So. 2d 1189, 1199-1200, writ denied, 03-3012 (La.2/20/04), 866 So. 2d 817. A trial court's ruling will not be overturned on appeal unless it is unsupported by the evidence. Barton, 02-163 at 14, 857 So.2d at 1200.
*928 In this case, the police officers testified that the Defendant was advised of his Miranda rights, and that the Defendant did not at any time ask for an attorney, or indicate that he did not want to talk to the officers. The credibility of witnesses at a suppression hearing is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Imbraguglio, 08-64 at 12, 987 So.2d at 264. Based on the evidence, we cannot find that the trial court abused its discretion in finding the police officers' testimonies more credible in this respect.
b) Right to remain silent and voluntariness of statement
Law enforcement officers are required to explain the special procedural safeguards in Miranda to the suspect before initiating a custodial interrogation that deprives the suspect of his freedom of action. Mollette, 08-138 at 10, 2 So.3d at 467. Miranda does not require that a defendant exercise his right to remain silent by any particular phrasing. State v. Taylor, 01-1638, p. 6 (La.1/14/03), 838 So. 2d 729, 739, cert, denied, 540 U.S. 1103, 124 S. Ct. 1036, 157 L. Ed. 2d 886 (2004). However, an interrogation must cease if a criminal suspect indicates in any manner prior to or during questioning that he wishes to remain silent. Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1612; Mollette, 08-138 at 9, 2 So.3d at 461. Nevertheless, law enforcement officers are not barred from reinitiating contact with the suspect. Taylor, 01-1638 at 7, 838 So.2d at 739.
In State v. Robertson, 97-177 (La.3/4/98), 712 So. 2d 8, cert, denied, 525 U.S. 882, 119 S. Ct. 190, 142 L. Ed. 2d 155 (1998), the defendant, who was convicted of first degree murder, claimed the trial court erred in admitting his confession because it was the result of police coercion after he had invoked his right to remain silent. The defendant argued that he invoked his fifth amendment right to remain silent when he responded "uh uh" to questioning about whether he wanted to say anything more about what happened. The Louisiana Supreme Court found that the defendant's indication he had nothing further to say about the crimes did not reasonably suggest a desire to end all questioning or to remain silent. Rather, the defendant's negative reply, "uh uh," could not plausibly be understood as an invocation, ambiguous or otherwise, to cut off police questioning in all respects. Instead, the defendant's willingness to talk to authorities even after the "uh, uh" response was indicated by his continuing to respond to questions and to assert his innocence. The Court noted that the defendant never indicated he did not want to speak to the police at all, only that he had nothing to say about the murders. The fact that the defendant continued to speak to police reflected an intent to continue the exchange. Robertson, 97-177 at 27, 712 So.2d at 31.
In the present case, the Defendant's statement to the officers that he knew nothing about the murder was not equivalent to an exercise of his right to remain silent. Furthermore, he continued to answer the officers' questions, which reflects intent to continue the exchange. That intent satisfies the fundamental purpose of Miranda, which is to "assure that the individual's right to choose between speech and silence remain[ed] unfettered throughout the interrogation process." See, Robertson, 97-177 at 27-28, 712 So.2d at 31, quoting State v. Green, 94-887, p. 10 (La.5/22/95), 655 So. 2d 272, 287-88, n. 8. Since the Defendant did not invoke his right to remain silent during questioning, it was permissible for the police to continue to question him.
An accused's statement obtained by direct or implied promises, or by the exertion of improper influence must be *929 considered involuntary and, therefore, inadmissible. Mollette, 08-138 at 10, 2 So.3d at 467. A determination of whether the accused's waiver of constitutional rights was knowingly and voluntarily made is determined on a case-by-case basis, and rests upon the totality of the circumstances. Id.; Taylor, 01-1638 at 7, 838 So.2d at 739.
Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the accused was first advised of his Miranda rights, that the accused voluntarily and intelligently waived them, and that the accused's statement was made not made under the influence of fear, intimidation, menaces, threats, inducement or promises. La. R.S. 15:451; Mollette, 08-138 at 9-10, 2 So.3d at 467. The State cannot rely on evidence of general disclaimers of inducements or promises. Mollette, 08-138 at 10, 2 So.3d at 467. Rather, when the defendant's claims of police misconduct in eliciting a confession are raised, the State must specifically rebut the allegations. Id.
In Mollette, the defendant claimed the trial court erred in denying his motion to suppress his statements because his confession was obtained through threats of arrest made against his family and by the officer pointing a gun pointed towards him. There, the interviewing officer testified that he advised the defendant of his rights and completed the waiver of rights form with the defendant. According to the officer, the defendant verbally acknowledged that he understood his rights and also indicated that he understood his rights by initialing by each one of them on the form. In addition, the defendant acknowledged both verbally and in writing on the form that he wished to waive his rights and give a statement. The officer believed that the defendant clearly understood and acknowledged his rights as he never indicated that he did not understand the process or that he did not want to give a statement. Furthermore, the interviewing officer testified that no threats were made against the defendant or his family during the entire interview process. He denied that the other officer involved in the interview produced, showed, or pointed a gun at the defendant during the interview process in order to obtain his statements.
After our review, we concluded that the trial judge did not abuse his discretion in determining the statements were admissible. We noted that the trial judge's determination of admissibility of a statement and its conclusions on the credibility and weight of the testimony related to the voluntariness of the statement are entitled to great weight and will not be overturned unless unsupported by the evidence. Mollette, 08-138 at 13, 2 So.3d at 469.
In this case, Major Hay denied that he went into the interrogation room and placed his gun on the table. He said that the Defendant's claim was an absolute lie. Furthermore, he described the procedure he implemented to prevent this type of accusation which requires any officer to be unarmed when entering an interrogation room.
We find that the trial judge did not abuse his discretion in determining the statements were admissible. The trial judge's determination of admissibility was based on the credibility and weight of the testimony. As the trial judge's determination is supported by the evidence, it is entitled to great weight and will not be overturned.
2) Motion for Mistrial
In the second assignment of error, the Defendant contends that the trial judge erred in denying the Motion for Mistrial because the opinion testimony given *930 by Detective Stelly caused substantial harm to his fundamental right to due process.
Detective Stelly testified that he obtained an audio-taped confession from co-defendant Babin. During his testimony, Detective Stelly was asked if Babin admitted to being part of this murder, to which he replied, "Yes, sir." The defense objected, claiming that the information on the tape was hearsay. Subsequently, after the State requested that the tape be played for the jury, the defense moved for a mistrial. The defense claimed that the State's question was highly prejudicial because Babin did not mention anything on the tape about being part of a murder. After argument, the trial judge listened to the tape and then denied the defense motion.
The Defendant claims that Detective Stelly's opinion that Babin admitted to committing the murder was a direct "rebuke of his trial strategy" in that it indicated that the Defendant was not guilty because he lacked the intent to cause harm or death to the victim. The Defendant contends that the Detective's statement also had the effect of portraying the Defendant as a "willing co-participant." The Defendant argues that the opinion also was a comment on the Defendant's guilt, which was a determination to be made by the trier of fact and, therefore, Detective Stelly's testimony should not have been permitted.
The State responds that Detective Stelly's statement only relates to the culpability of co-defendant Babin, not the Defendant. Furthermore, the State contends that Detective Stelly's comment was a true statement of fact. The State argues that because of the overwhelming evidence presented, the comment by Detective Stelly does not rise to the degree of prejudice warranting reversal.
La.C.Cr.P. art. 771 states:
In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.
See also State v. Smothers, 02-277, p. 16, 836 So.2d at 559, 569, writ denied, 03-0447 (La.10/10/03), 855 So. 2d 329.
La.C.Cr. P. art. 775 states that the defendant's motion for a mistrial shall be ordered, "when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771." A mistrial is a drastic remedy that is only authorized where substantial prejudice will otherwise result to the accused. Smothers, 02-277 at 16, 836 So.2d at 569.
The testimony of a lay witness in the form of opinions or inferences, who is not testifying as an expert, is limited to those opinions or inferences that are rationally based on the perception of the witness and are helpful to a clear understanding of the testimony or the determination *931 of a fact in issue. La. C.E. art. 701; Imbraguglio, 08-64 at 16, 987 So.2d at 266. The general rule is that a lay witness can only testify to the facts within their knowledge and not to impressions or opinions. Imbraguglio, 08-64 at 16, 987 So.2d at 266. A lay witness is permitted to draw reasonable inferences from his own personal observations, as long as the lay witness also states the observed facts. Id.
"Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact." La. C.E. art. 704. See also State v. Higgins, 03-1980, p. 21 (La.4/1/05), 898 So. 2d 1219, 1234, cert, denied, 546 U.S. 883, 126 S. Ct. 182, 163 L. Ed. 2d 187 (2005). Therefore, the fact that an opinion or inference embraces an ultimate issue in a case does not preclude admissibility. La. C.E. art. 704, Comment (c). See also State v. King, 99-1279, p. 5 (La.App. 5 Cir. 4/25/00), 760 So. 2d 540, 543, writ denied, 00-1498 (La.3/16/00), 787 So. 2d 298 and 00-1452 (La.3/16/01), 787 So. 2d 298.
A trial judge is required to admonish the jury to disregard a comment made within its hearing that is irrelevant, immaterial or prejudicial to the defendant or the State, when either the defendant or the State requests an admonishment. La. C.Cr.P. art. 771; Smothers, 02-277 at 15, 836 So.2d at 569. La.C.Cr.P. art. 771 applies to remarks or comments made by a witness regardless of whether the remark or comment is within the scope of La. C.Cr.P. art. 770.[5]Smothers, 02-277 at 16, 836 So.2d at 569.
In Higgins, a lay witness was permitted to testify that it appeared to her that a robbery was taking place. The Louisiana Supreme Court found that the trial court did not abuse its broad discretion in admitting the evidence because the lay witness's observations may have been rationally based on the witness's perception, as well as the perception of any layperson, of the interaction between the defendant and the victim. Higgins, 03-1980 at 21-22, 898 So.2d at 1234.
In Imbraguglio, this Court found that the police officer's opinion testimony about the truthfulness of the defendant's explanations for the injuries sustained by the victim were admissible because it was based on his own personal observations of the defendant throughout the interview process. Imbraguglio, 08-64 at 16, 987 So.2d at 267.
In this case, Detective Stelly said that he assisted State Fire Marshall Carter in obtaining Babin's recorded confession after Babin's arrest and after he waived his rights. Furthermore, Babin testified that he gave a free, voluntary, and truthful audio-taped statement to Detective Stelly *932 implicating all three of the defendants in the events leading to the victim's death. Therefore, we find that the testimony was admissible as it was based on the Detective's personal observations. Furthermore, the testimony was cumulative, as well.
The Defendant also claims that Detective Stelly gave a legal opinion regarding the scope of the second degree murder statute. However, a review of the testimony shows that the Detective did not give a legal opinion on the second degree murder statute prior to the trial judge's ruling on the Defendant's motion for mistrial. Thus, we find this argument is not supported by the testimony.
3) Error Patent Review
The Defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920. State v. Oliveaux, 312 So. 2d 337 (La.1975); State v. Hicks, 08-402, p. 13 (La.App. 5 Cir. 12/16/08), 3 So. 3d 539, 547.
Our error patent review reveals that the trial judge failed to correctly notify the Defendant at sentencing of the two-year prescriptive period for filing postconviction relief pursuant to La.C.Cr.P. art. 930.8 A, which states in pertinent part, "No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final." [Emphasis added.] Here, the sentencing transcript reveals that the trial judge informed the Defendant that he had "two years to file an application for post-conviction relief. That is two years after your sentence becomes final...." [Emphasis added.]
We have previously held that the failure of the trial court to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final renders the advisement incomplete. State v. Holmes, 08-719, p. 14 (La. App. 5 Cir. 3/10/09), 10 So. 3d 274, 283. In the past, we ordered the trial court to properly advise the defendant of the prescriptive period for filing an application for post-conviction relief pursuant to La. C.Cr.P. art. 930.8 by written notice within ten days of the rendition of this Court's opinion and then to file written proof in the record that the defendant received the notice. Id. However, recently we have chosen to correct this error in the opinion rather than by remanding the case, citing State v. Morris, 40,322, pp. 4-5 (La.App. 2 Cir. 1/25/06), 920 So. 2d 359, 363. See Holmes, 08-719 at 14, 10 So.3d at 283; State v. Davenport, 08-463, pp. 10-11 (La. App. 5 Cir. 11/25/08), 2 So. 3d 445, 451, writ denied, XXXX-XXXX (La. 10/16/09), 19 So. 3d 473,.
We find this procedure an appropriate method of notifying the Defendant of the prescriptive period for post-conviction relief.
Therefore, the Defendant is hereby advised by this opinion that, pursuant to La.C.Cr.P. 930.8, no application for post-conviction relief, including an application which seeks an out of time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 and 922.
Accordingly, the Defendant's conviction is affirmed.
AFFIRMED
NOTES
[1] A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juveniles, or terrorism, even though he has no intent to kill or to inflict great bodily harm.
(3) When the offender unlawfully distributes or dispenses a controlled dangerous substance listed in Schedules I through V of the Uniform Controlled Dangerous Substances Law, or any combination thereof, which is the direct cause of the death of the recipient who ingested or consumed the controlled dangerous substance.
(4) When the offender unlawfully distributes or dispenses a controlled dangerous substance listed in Schedules I through V of the Uniform Controlled Dangerous Substances Law, or any combination thereof, to another who subsequently distributes or dispenses such controlled dangerous substance which is the direct cause of the death of the person who ingested or consumed the controlled dangerous substance.
B. Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
[2] The Defendant was originally indicted for first degree murder along with co-defendants, Lawrence Anthony Babin and Bryan Stewart. The indictment was later amended. The cases against the co-defendants were eventually severed.
[3] Referred to herein as Detective St. Martin.
[4] The Defendant's co-defendant is named Bryan Stewart, but goes by the names Brian Stewart, Brian Stuart, and Brian Gilmore as well. Stewart is also known as "BG."
[5] La.C.Cr.P. art. 770 provides:
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/694327/ | 52 F.3d 571
UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,v.Gary F. EPLEY, Ronald J. Pike, and James Goodman,Defendants-Appellants, Cross-Appellees.
Nos. 94-5100 to 94-5102, 94-5179 and 94-5181.
United States Court of Appeals,Sixth Circuit.
Argued Feb. 2, 1995.Decided April 24, 1995.Rehearing and Suggestion for Rehearing En Banc Denied in No.94-5102 June 9, 1995.
Stephen G. Frye, Asst. U.S. Atty., Office of U.S. Atty., Louisville, KY, Miriam R. Eisenstein (argued and briefed), Dennis J. Dimsey, U.S. Dept. of Justice, Civ. Rights Div., Appellate Section, Washington, DC, for U.S.
C. Fred Partin (argued), Barbara M. Gunther (briefed), C. Fred Partin & Associates, Louisville, KY, for Gary F. Epley.
David A. Lambertus (argued and briefed), Elizabeth O. Kinnaird, Louisville, KY, for Ronald J. Pike.
Samuel Manly, Louisville, KY (argued and briefed), for James Goodman.
Before: GUY, BOGGS, and SILER, Circuit Judges.
BOGGS, Circuit Judge.
1
Gary Epley, Ronald Pike, and James Goodman were each convicted for their involvement in a conspiracy to violate the civil rights of Ricky Pardue by setting up a false arrest in which they planted drugs and an illegal firearm in his possession. Epley appeals his sentence, Pike appeals his conviction for conspiracy to violate civil rights, in violation of 18 U.S.C. Sec. 241, and his sentence, and Goodman appeals his conviction for conspiracy to violate civil rights, in violation of 18 U.S.C. Sec. 241, and for deprivation of rights under color of law, in violation of 18 U.S.C. Sec. 242. The government cross appeals the calculation of Pike's and Goodman's sentences. We affirm the convictions, but vacate the sentences of Pike and Goodman, and remand for resentencing.I
2
The facts of this case are complicated, and involve numerous people. David Tingley and George Tingley owned Resthaven Memorial Park, a cemetery, and were part owners of Special Services, a detective agency located in a house on the premises of Resthaven. Pike was a former Jefferson County policeman, and worked at Resthaven and Special Services. Joanie Pardue was a secretary, first for Special Services, then for Resthaven. She was also the wife of Ricky Pardue, the victim of this crime, and began an affair with David Tingley in the fall of 1990. Epley was a captain in the St. Regis Police Department and operated the Kentuckiana Detective Agency. James Goodman was a police sergeant in the St. Regis Police Department.
3
The staff of Special Services used Special Services as a repository for weapons. Weapons were stored in the house at the cemetery and in a crypt. They feared that Joanie's husband, Ricky, who knew about their activities and had learned about the affair between his wife and David Tingley, would report their activities to authorities. Their fears were justified--in fact, Pardue offered his services as an informant to the FBI in October 1990. These fears were confirmed when Pardue, arrested after a fight, told the local police that he was working for the FBI. Word of his claim got back to Special Services.
4
In an effort to discredit Ricky Pardue, Epley and Pike met with David Tingley at Remington's, a restaurant. David Tingley agreed to supply Epley with drugs and an illegal firearm equipped with a silencer. Epley would then find some reason to arrest Ricky Pardue and plant these items in Pardue's possession. David Tingley agreed to pay for the arrest.1 Another Special Services employee, John Bersot, was dispatched to the crypt to obtain drugs and guns for the task.
5
David Tingley received the drugs and guns from Bersot and delivered them to Pike, who delivered them to Epley. Epley then met with Goodman and told Goodman that Ricky has been "causing problems." Epley proposed that Goodman and he should stake out Pardue's home in Louisville. He told Goodman he would pay him $500 for the trouble.2 Goodman borrowed an unmarked white Ford Crown Victoria from another St. Regis officer to use for the stakeout.
6
The stakeout, on November 1, 1990, in front of Pardue's house, did not go unnoticed. Pardue saw Goodman and Epley, but could not initially identify them. A neighbor, another police officer, also noticed the car. This neighbor testified that he drove by in a marked police car and saw the two men in the car duck as he passed.
7
Nevertheless, Ricky Pardue left his house, and Goodman and Epley followed him. According to Epley, Goodman exclaimed that Pardue ran a stop sign.3 Goodman and Epley used their car's lights to signal for Pardue to pull over, but instead he fled and drove back to his house, less than a mile away. Epley and Goodman pulled behind Pardue's car, and left their car with guns drawn. Epley apprehended and handcuffed Pardue in front of his house, and handed him over to Goodman. Goodman took Pardue to the Crown Victoria. Epley searched Pardue's car and "found" the gun and drugs he planted (as well as two other pistols actually belonging to Pardue). Pardue testified that he observed Epley removing the cocaine from his right front pocket, although it is unclear from Pardue's testimony whether Goodman could also see Epley plant the drugs. Epley and Goodman called the Louisville Police Department, and Pardue was taken into custody. Pike drove by during the incident, observed the arrest, and reported back to David Tingley that the plan had been executed.
8
Over the next several months, Epley and Goodman continued to affirm the validity of the arrest. Epley testified before the grand jury that Pardue ran the stop sign, refused to pull over, attempted to run the St. Regis officers off the road, and reached down in his car as though to grab a weapon. Epley also affirmed that, on searching Pardue's car, he found the cocaine and silenced gun. At the probable cause and suppression hearing in April 1991, which both Epley and Goodman attended, the commonwealth's attorney asked Epley whether the arrest was a set-up and Epley denied it was. Epley testified that Pardue ran the stop sign and that the arrest was legitimate.
9
The BATF and IRS opened an investigation. Meanwhile, David and George Tingley sold Resthaven and Special Services. The state criminal case against Pardue was dismissed in the fall of 1991. In early 1992, John Bersot began demanding money from David Tingley to keep silent. David Tingley agreed to cooperate with the investigation at that point. Bersot also agreed to testify in exchange for immunity. Epley pled guilty and agreed to cooperate.
10
At trial, Pike and Goodman were convicted, Pike of conspiracy under Sec. 2414 and Goodman of both conspiracy under Sec. 241 and deprivation of rights under color of law under Sec. 242.5 Epley was sentenced to 84 months under his plea agreement (in which he pled guilty to one count each of conspiracy to violate civil rights and use of a firearm during a crime of violence, 18 U.S.C. Sec. 924(c), and three counts of willful failure to file income tax returns), and Pike was sentenced to 37 months for his conviction in this case and on the accompanying weapons charge (on appeal as No. 93-5104). Goodman and David Tingley received 3 years of unsupervised probation, six months to be served in a half-way house.
II
11
We first address the issues raised by appellants Pike and Goodman concerning their convictions. We find that none of these alleged errors require reversal.
12
* Goodman raises five issues on appeal. He argues first that the government presented insufficient evidence to convict him of the conspiracy count and the deprivation of civil rights count. Second, he claims that testimony discussing his "silence" and failure to cooperate violated his Fifth Amendment rights. Third, he asserts that he was prejudiced when the court initially denied his severance motion. Fourth, he argues that the court should have declared a mistrial after Epley boasted of passing a polygraph examination. Pike also argues that the admission of the polygraph testimony, although accompanied by an admonition, was prejudicial. Fifth, Goodman claims that the court erred by providing the jury with a jury nullification instruction.
13
First, we consider whether the government produced sufficient evidence to convict Goodman of the Sec. 241 and Sec. 242 charges. We review the sufficiency of the evidence to determine "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." United States v. Ellzey, 874 F.2d 324, 328 (6th Cir.1989) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)).
14
To obtain a conviction for conspiracy to violate civil rights under Sec. 241, the government must prove that Goodman knowingly agreed with another person to injure Pardue in the exercise of a right guaranteed under the Constitution. Anderson v. United States, 417 U.S. 211, 223, 94 S.Ct. 2253, 2261, 41 L.Ed.2d 20 (1974). Specific intent to deprive another of civil rights is an element of the offense that the government must prove beyond a reasonable doubt. See, e.g., United States v. Hamilton, 684 F.2d 380, 384 (6th Cir.), cert. denied, 459 U.S. 976, 103 S.Ct. 312, 74 L.Ed.2d 291 (1982). Proof of the crime of deprivation of civil rights under Sec. 242 also requires the government to show that Goodman had the specific intent to deprive Pardue of a right under the Constitution. Screws v. United States, 325 U.S. 91, 104, 65 S.Ct. 1031, 1036, 89 L.Ed. 1495 (1945); United States v. Senak, 477 F.2d 304, 306 (7th Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 157, 38 L.Ed.2d 105 (1973). "[O]nce a due process right has been defined and made specific by court decisions, that right is encompassed by Sec. 242." United States v. Stokes, 506 F.2d 771, 774-75 (5th Cir.1975) (citing Screws ). Courts have applied Sec. 242 to punish police officers who have abused their authority under "color of law." See United States v. Koon, 34 F.3d 1416 (9th Cir.1994); United States v. McDermott, 918 F.2d 319, 325 (2d Cir.1990), cert. denied, 500 U.S. 904, 111 S.Ct. 1681, 114 L.Ed.2d 76 (1991); United States v. Alonso, 740 F.2d 862, 872-73 (11th Cir.1984), cert. denied, 469 U.S. 1166, 105 S.Ct. 928, 83 L.Ed.2d 939 (1985).
15
The constitutional rights at issue here are Pardue's right to be free from "seizure" without probable cause, in violation of the Fourth Amendment, and his rights under the due process clause of the Fourteenth Amendment to be free from arrest without probable cause and to be free from having false evidence presented against him. See Briscoe v. LaHue, 460 U.S. 325, 339, 103 S.Ct. 1108, 1117, 75 L.Ed.2d 96 (1983) (discussing intent behind Klan Act, noting victims of Klan perjury denied "equal protection"); Michigan v. Summers, 452 U.S. 692, 696 n. 5, 101 S.Ct. 2587, 2591, 69 L.Ed.2d 340 (1981); Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968) (arrest requires probable cause); United States v. Price, 383 U.S. 787 at 806, 86 S.Ct. 1152 at 1163, 16 L.Ed.2d 267(1966); United States v. Langer, 958 F.2d 522 (2d Cir.1992) (unsupported vehicle stops by police violated Fourth Amendment); McDermott, 918 F.2d at 325 (false arrest is violation of due process) (citing United States v. Garza, 754 F.2d 1202 (5th Cir.1985)); Winslow v. Romer, 759 F.Supp. 670, 675 (D. Colo.1991) (violation of civil rights when "officials 'conspire to procure groundless state indictments and charges based upon fabricated evidence' ") (quoting Anthony v. Baker, 767 F.2d 657, 662 (10th Cir.1985)).
16
We hold that the government produced sufficient evidence for a rational jury to convict Goodman of violating Sec. 241 and Sec. 242. A rational jury could credit Pardue's account of the events preceding the arrest, such as his testimony that he did not, in fact, run a stop sign. Furthermore, Goodman was with Pardue when Epley planted the drugs, and Pardue testified that he could see Epley remove the contraband from his pocket, after which Goodman asked "Coke?" to which Epley replied "Cocaine." A jury could infer that, like Pardue, Goodman was able to see Epley plant the drugs. No one contests the assertion that Goodman knew he was being paid by David Tingley to watch and arrest Pardue because Pardue was "bothering" Tingley. In addition, Goodman also appeared in state court proceedings against Pardue to confirm Epley's false account of the arrest.
17
Goodman argues in his brief before this court that in order to convict him under Sec. 241 and Sec. 242, the jury must have believed that he knew specifically that Epley was going to plant drugs and an illegal weapon on Pardue. While a conviction under either Sec. 241 or Sec. 242 requires specific intent to violate the victim's constitutional rights, it does not, in this context, require that Goodman knew beforehand of the plan to plant drugs and a gun on Pardue. A rational jury could weigh the evidence, judge the credibility of the various witnesses, and determine that Goodman had the specific intent to violate Pardue's Fourth and Fifth Amendment rights by executing a false arrest.
18
In his second issue on appeal, Goodman states that evidence was elicited that the defendants had "agreed" to keep quiet and "take the fifth" in the face of an official investigation into Pardue's arrest. Goodman argues that this evidence violated his Fifth Amendment right not to testify, and that the resulting prejudice justifies granting him a new trial.
19
During Epley's direct testimony, Epley mentioned that "it was an understanding nobody was going to say anything." Epley testified that he discussed with Goodman and Pike the story they would tell to cover up the details of the arrest. Several sentences later, Epley testified that "in fact, if anybody was called in front of the grand jury they would have took the Fifth." During cross-examination, Goodman's counsel asked Epley what Goodman's reaction had been when the government began investigating the arrest, and Epley responded that Goodman "wanted to take the fifth." Later, during Bersot's testimony that he and David Tingley planned to "take the fifth," Goodman's counsel moved for a mistrial, but instead the court admonished the jury.6
20
The prosecution elicited testimony that called attention to Goodman's intention to exercise his right not to testify against himself. However, no defense counsel raised an objection during Epley's testimony on this issue, which contains the information that could conceivably harm Goodman. Only when Bersot testified did Goodman raise this issue, and the court provided an admonition to the jury.
21
This court will not reverse a conviction where the prosecution has elicited testimony that calls attention to a defendant's or witness's invocation of his Fifth Amendment rights, when the comments at issue occurred only briefly during a long trial, and the court sufficiently instructed the jury to disregard them. United States v. Clark, 988 F.2d 1459, 1464 (6th Cir.) (citing Namet v. United States, 373 U.S. 179, 187, 83 S.Ct. 1151, 1155, 10 L.Ed.2d 278 (1963)), cert. denied, --- U.S. ----, 114 S.Ct. 105, 126 L.Ed.2d 71 (1993). A reviewing court should defer to the trial court's decision and should reverse only for abuse of discretion. Clark, 988 F.2d at 1464. Given the minor place this evidence occupied in a lengthy and complicated trial, it is unlikely the jury was so swayed by it that it affected the result of the trial. See Spalla v. Foltz, 788 F.2d 400, 403-04 (6th Cir.) (indirect comment on defendant's failure to testify not automatically reversible), cert. denied, 479 U.S. 935, 107 S.Ct. 410, 93 L.Ed.2d 362 (1986).
22
Third, Goodman argues that he should have received a mistrial because the court only granted severance of his case mid-trial. We review de novo the failure to grant a severance under Fed.R.Crim.P. 8. United States v. Hatcher, 680 F.2d 438, 440-41 (6th Cir.1982).
23
Goodman argues that his pre-trial motions to sever counts unrelated to him (Counts 5, 8, and 9) under Fed.R.Crim.P. 8(a) and (b) should have been granted.7 Count 8 charges George Tingley with possession of a machine gun, in violation of 18 U.S.C. Sec. 922(o), and Count 9 charges George Tingley with possession of an unregistered silencer, in violation of 26 U.S.C. Sec. 5841 and 5861(d).
24
Goodman acknowledges that the court granted his motion to sever on the fifth day of trial. Goodman nevertheless claims that he was prejudiced because the jury heard evidence unrelated to him, and that his conviction should be reversed, citing United States v. Bibby, 752 F.2d 1116, 1122 (6th Cir.1985), cert. denied, 475 U.S. 1010, 106 S.Ct. 1183, 89 L.Ed.2d 300 (1986), and Hatcher, 680 F.2d at 442.
25
We find that Goodman conceded at trial that Count 5 was properly joined with Counts 1-4 for trial. We also note that the court admonished the jury that Goodman was not named in Count 5 when evidence regarding Count 5 (the guns with silencers provided to Epley by Pike but not planted in Pardue's car) was presented.
26
We conclude that Counts 8 and 9 were properly joined with Counts 1 through 4 under Rule 8(b). The secret cache of guns was part of the same series of transactions that made up the conspiracy. The Special Services staff wanted to discredit Pardue because they believed he would tell the FBI about their illegal activities (including their arsenal). Nevertheless, exercising an abundance of caution, the trial court severed Counts 8 and 9 on the fifth day of trial.
27
Even if Counts 8 and 9 were improperly joined, any error that persisted through the first four days of trial was harmless to Goodman. The Supreme Court adopted a non-constitutional harmless error test for misjoinder under Rule 8 in United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 732, 88 L.Ed.2d 814 (1986). The Court held that an error involving misjoinder "requires reversal only if the misjoinder results in actual prejudice because it 'had substantial and injurious effect or influence in determining the jury's verdict.' " Ibid. (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). The testimony that was admitted before severance relevant to the particular weapon charged in Counts 8 and 9 simply referred to "guns" at Special Services. The additional weapon had not been introduced into evidence. Furthermore, ample evidence in the record supports Goodman's convictions on Counts 1 and 2 for the civil rights violations. Therefore, even if Counts 8 and 9 had been improperly joined, we would not reverse Goodman's conviction because any error was harmless. Hatcher, 680 F.2d at 442.
28
In the fourth contention raised on appeal, Goodman and Pike both argue that the court should have declared a mistrial after Epley boasted of passing a polygraph examination. During questioning by Goodman's attorney, Epley mentioned that he had passed a polygraph test.8 On objection by Goodman's and Pike's attorneys, the court admonished the jury to disregard the remark. Both Pike and Goodman claim on appeal that the admonishment was insufficient, and their convictions should be reversed.
29
This passing reference to a polygraph test taken on a different matter is not reversible error. United States v. Walton, 908 F.2d 1289, 1291-93 (6th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). Epley's polygraph comment was in reference to another investigation, and the court promptly admonished the jury to disregard it. We do not find that the evidence of Pike's and Goodman's guilt is otherwise so close that this remark would have prejudiced the jury. See United States v. Murray, 784 F.2d 188, 189 (6th Cir.1986).
30
Finally, Goodman argues that the court erred by providing the jury with a jury nullification instruction. We find no merit to this issue. See United States v. Krzyske, 836 F.2d 1013, 1021 (6th Cir.), cert. denied, 488 U.S. 832, 109 S.Ct. 89, 102 L.Ed.2d 65 (1988).
B
31
Pike raises two trial errors on appeal. He claims first that the court erred by rereading the testimony of Robert Epley (Gary's father), thus placing undue emphasis on it. Second, he argues that the court erred by admitting a prejudicial photo of Pike and Tingley taken at Remington's on a previous occasion.
32
We review the trial court's decision to read a witness's testimony to the jury for abuse of discretion. United States v. Padin, 787 F.2d 1071, 1076 (6th Cir.), cert. denied, 479 U.S. 823, 107 S.Ct. 93, 93 L.Ed.2d 45 (1986). During deliberations, the jury asked the court for copies of the testimony of four witnesses. After discussing the request with counsel, the court asked the jury to consider again what testimony they truly desired, because to provide all this testimony would require time to redact the transcripts of bench conferences and other information the jury should not read. The jury adjourned for the day, and the next day responded that they wanted to hear the testimony of Robert Epley. Pike's counsel objected, noting that whatever admonition the court gave the jury, by reading this testimony and no other, the testimony would be overemphasized. The court called the jury in, and gave them an admonition to consider the testimony as a whole, and not to focus on particular answers given by the particular witness. After reading the testimony, the court again admonished the jury not to emphasize this piece of evidence over others.
33
In his testimony, Robert Epley stated that he ran Kentuckiana Detective Agency, and that he knew Pike and Goodman. He testified that Goodman looked up to Gary Epley. He recalled that in October 1990, Bersot and Pike borrowed radios from the office. He also stated that through October 1990, George Tingley, David Tingley, Ron Pike and Gary Epley would meet frequently for lunch. Robert Epley also testified that George Tingley and Pike came by his office in 1991, with George bearing bruises and scars from a beating. George said David had beaten him up while Bersot and another man held him down.
34
We have recognized two dangers from reading testimony to a jury. The first is that the jury may accord undue emphasis to the testimony. Padin, 787 F.2d at 1076 (citing United States v. Varsalona, 710 F.2d 418, 421 (8th Cir.1983)); United States v. Nolan, 700 F.2d 479, 486 (9th Cir.), cert. denied, 462 U.S. 1123, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983). The second is that the testimony reviewed by the jury may be taken out of context. Padin, 787 F.2d at 1076 (citing Government of Canal Zone v. Scott, 502 F.2d 566, 570 (5th Cir.1974)). In Padin, we also noted that "these concerns are escalated after the jury ha[s] reported its inability to arrive at a verdict." 787 F.2d at 1076-77 (citing Henry v. United States, 204 F.2d 817 (6th Cir.1953)). It does not appear that the jury made such a report in our case.
35
Here, the jury heard the entire testimony of Robert Epley, so the jury would not have taken part of the testimony out of context. Robert Epley's testimony did not contradict the testimony of other witnesses, but it did add evidence of a beating of George Tingley by David Tingley. This testimony would seem to harm only David Tingley, who is not a defendant. We do not find that Pike suffered any prejudice by the reading of the testimony, because as to him the testimony only confirmed evidence presented by other witnesses.
36
Pike's argument on appeal regarding the photograph is similarly unconvincing. During his testimony, David Tingley was asked to identify a photograph. He said that it depicted himself, Pike, and the manager of Remington's. Pike argues that this photo should not have been introduced as evidence, because it would mislead the jury into believing that the alleged conspiracy at Remington's was documented.
37
Whether to admit a photograph is a determination the trial court has discretion to make, especially where, as here, the party appealing the decision did not object below. We find no error in allowing the photograph in evidence.
III
38
We next address Epley's and Pike's sentencing issues. Epley claims that the government should have requested, and the court erred by not granting, a downward departure to credit Epley for his cooperation, as promised in his plea agreement. Pike argues that the court erred by sentencing him to a longer sentence than Goodman, because Pike was only found guilty of Count 1 while Goodman was found guilty of Counts 1 and 2.
39
Epley's argument is without merit. Epley's plea agreement included the statement:
40
[I]f the United States deems that such a departure is warranted, the United States will move for a downward departure pursuant to 18 U.S.C. Sec. 3553(e) and Sec. 5K1.1 of the Sentencing Guidelines, stating that defendant has provided substantial assistance in the investigation or prosecution of other persons who have committed offenses. The United States retains complete discretion both in determining whether a Sec. 5K1.1 departure motion is warranted and in determining the extent of any departure requested.
41
Epley joined a plea agreement in which the government reserved complete discretion over whether to request a downward departure. It would go against the terms of the plea agreement to find that the government was obliged to ask for such a departure. It was not erroneous for the court to deny Epley's motion to withdraw his plea, since the government has not violated its agreement with him. See United States v. Mandell, 905 F.2d 970 (6th Cir. 1990). It follows that the court was under no obligation to resentence Epley.
42
Pike was sentenced to 37 months after the jury found him guilty of Count 1. Pike argues on appeal that he should have received a lighter sentence than Goodman, who was found guilty of both Counts 1 and 2.
43
This court cannot reverse a sentence imposed under the Guidelines unless based upon a legal or factual error. United States v. Lavoie, 19 F.3d 1102, 1102-03 (6th Cir.1994). This court lacks jurisdiction over a claim that the sentencing court refused to depart downward. Id. at 1103. However, this court may review a sentence based on a legal error, even if within the Guidelines range. Id. at 1104. Pike does not present this court with any legal error to review, so we find this argument without merit.
IV
44
We now address the government's sentencing cross-appeal. The government argues that the district court incorrectly calculated the base offense level for conspiracy to interfere with civil rights. It appeals the sentences of Pike and Goodman on this basis. It also argues that the court was not authorized to depart downward and sentence Goodman only to probation, and that Goodman's sentence should also be vacated and remanded for resentencing on this basis.
45
We review de novo the district court's interpretation of the Sentencing Guidelines. United States v. Gresser, 935 F.2d 96 (6th Cir.), cert. denied, 502 U.S. 885, 112 S.Ct. 239, 116 L.Ed.2d 195 (1991).
46
* First, the government appeals the court's calculation of Pike's and Goodman's sentences. Guideline Sec. 2H1.1 contains the method for calculating the offense level for a conspiracy to interfere with civil rights.9 Under Sec. 2H1.1, the court should use as the base level the greater of 15 or 2 plus the offense level for the underlying offense. The government argued at sentencing that the underlying offense in this conspiracy was "unlawful restraint." Although there is no federal crime called "unlawful restraint," the government noted that the Guidelines provide a base level of 24 in Sec. 2A4.1, titled "Kidnapping, Abduction, Unlawful Restraint," so the base level for each defendant should have been 26. See USSG Sec. 2A4.1. As an alternative, the government argued that the court could use the base offense level of 15, but then should add a two-level adjustment under Sec. 3A1.3 for offenses in which a victim is restrained. The government also argued that Pike should receive an upward adjustment as an organizer of the conspiracy under Sec. 3B1.1(a).
47
The district court instead followed the recommendation of the probation department, and sentenced Pike and Goodman using a base offense level of 15. The court stated:
48
Having heard how this conspiracy unfolded ..., the court has concluded that the ultimate goal in this conspiracy was to have Rick Pardue neutralized as a threat to the personal and business interest of David Tingley.... As a corollary to his being neutralized the acts would also effectively destroy Pardue's reputation so that he would not be a credible witness against the Tingleys in any further matter. The court finds no basis for comparing these acts to the more egregious offenses of kidnapping and unlawful restraint under section 2A4.1
49
The court also overruled the request for an additional adjustment under Sec. 3A1.3 for restraint of a victim, because the act of false arrest includes restraining the victim so that the restraint "cannot be seen as a separate victim related adjustment." The court also overruled the government's objection that Pike should be sentenced as an organizer.
50
On appeal, the government makes much the same argument it did before the sentencing court. It argues that the court should have applied the base offense level for unlawful restraint contained in Sec. 2A4.1, or in the alternative that it should have adjusted the offense level upward under Sec. 3A1.3 because the victim was physically restrained. For support, the government cites United States v. Gresser, 935 F.2d 96 (6th Cir.), cert. denied, 502 U.S. 885, 112 S.Ct. 239, 116 L.Ed.2d 195 (1991), which held that it was error for a sentencing court not to apply the guideline for the underlying offense of arson under Sec. 2K1.4, for a conspiracy to interfere with civil rights involving a cross-burning.
51
We must determine whether the fact that Pardue was ultimately restrained should be accounted for by a sentence under Sec. 2A4.1, because the underlying offense is analogous to a federal crime sentenced under the "kidnapping, abduction [or] unlawful restraint" guideline; whether it should be accounted for by enhancing the sentence as provided in Sec. 3A1.3; or whether the restraint is irrelevant for sentencing purposes.
B
52
The government urges us to find that the sentence in this case should be calculated using the "kidnapping, abduction, [or] unlawful restraint" guideline, for a proper base offense level of 26. USSG Secs. 2A4.1; 2H1.1. We decline to do so, finding instead that the facts of this case would not support a conviction for such an underlying offense.
53
We consider first what federal crimes would be sentenced under Sec. 2A4.1. These include 18 U.S.C. Secs. 112(a) (assaulting foreign officials, official guests, and internationally protected persons); 115(a) and (b)(2) (influencing, impeding, or retaliating against a Federal official); 351(b), (c), and (d) (Congressional, Cabinet and Supreme Court assassination, kidnapping, and assault); 1153 (kidnapping in Indian country subject to same penalties as in United States jurisdiction); 1201 (kidnapping); 1203 (hostage taking); and 1751(b), (c), and (d) (Presidential and Presidential staff assassination, kidnapping, and assault). Clearly, neither Pike nor Goodman could have been convicted of these crimes. The conduct at issue in this case is not similar to the conduct that falls within the scope of these crimes.
54
We note that the underlying offense in this crime might be more analogous to obstruction of justice. See 18 U.S.C. Secs. 1512 (tampering with a witness), 1513 (retaliating against victim, witness, informant). However, the base offense level for each of these offenses is 12. See USSG Sec. 2J1.2 (obstruction of justice). Had the sentencing court considered this alternative, and increased the base level for "substantial interference with the administration of justice" (which could probably be supported with the egregious facts of this case) this method only renders a base level of 15. The base level for these other offenses is not greater than the default level of 15 provided in Sec. 2H1.1(a)(1), so the sentencing court would use level 15 as provided in Sec. 2H1.1(a)(1).
55
We next consider what state offense the defendants might have committed. In Kentucky, the elements of kidnapping are defined in Ky.Rev.Stat. Sec. 509.040(1). They include the unlawful restraint10 of another with the intent to hold for ransom, accomplish or advance the commission of a felony, inflict bodily injury or to terrorize the victim or another, interfere with a government or political function, or use as a shield or hostage. Kidnapping is a Class B felony when the victim is released alive and in a safe place, a Class A felony when the victim is released but is injured or not released in a safe place, and a capital offense when the victim is not released alive or dies subsequent to release.11 Ky.Rev.Stat. Sec. 509.040(2). Kentucky also recognizes the offense of unlawful imprisonment in the first degree, Ky.Rev.Stat. Sec. 509.020(1), which punishes the knowing and unlawful restraint of another person "under circumstances which expose that person to a risk of serious physical injury." First degree unlawful imprisonment is a Class D felony. Kentucky also punishes the offense of unlawful imprisonment in the second degree under Ky.Rev.Stat. Sec. 509.030(1), which is "knowingly and unlawfully restrain[ing] another person." Second degree unlawful imprisonment is a Class A misdemeanor.12
56
We do not believe that convictions for the state crimes of kidnapping or unlawful imprisonment in the first degree could be supported by the facts of this case. Therefore, they do not provide an analogous underlying offense under state law that justifies sentencing Goodman and Pike under Sec. 2A4.1. While the Pardue arrest may fit the elements of second degree unlawful imprisonment, we cannot find that the federal Sentencing Guidelines intended to sentence this misdemeanor offense as a level 24 crime. The elements of second degree unlawful imprisonment under Kentucky law are far less serious than the federal crimes sentenced under Sec. 2A4.1.
57
We also note that "false arrest" is not usually raised as a crime, but instead as a tort. False arrest is often claimed in constitutional tort cases brought under Sec. 1983. See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Adams v. Metiva, 31 F.3d 375 (6th Cir.1994); McCune v. City of Grand Rapids, 842 F.2d 903 (6th Cir.1988).
58
In contrast, when a police officer is convicted under Sec. 241 or Sec. 242, and sentence imposed using Guideline Sec. 2A4.1, it is often in cases in which the police are charged with brutalizing an arrestee. See, e.g., United States v. Koon, 34 F.3d 1416 (9th Cir.1994). In such cases, we reach the conclusion that the defendants have committed an underlying offense of aggravated assault without difficulty. Nor is it difficult to conclude that cross-burnings incorporate the underlying federal offense of arson. United States v. Gresser, 935 F.2d 96 (6th Cir.), cert. denied, 502 U.S. 885, 112 S.Ct. 239, 116 L.Ed.2d 195 (1991); United States v. Worthy, 915 F.2d 1514 (11th Cir.1990). However, we cannot agree with the government that the same is true here regarding this false arrest and the underlying offenses sentenced using the "Kidnapping, Abduction, Unlawful Restraint" guideline.
59
Therefore, we agree with the sentencing court that the conduct in this case does not support a sentence calculated from a base level of 24 as provided in Sec. 2A4.1. The defendants did not commit an offense that would be sentenced at this level under federal law, nor did they commit any analogous state law offense.C
60
The government suggests a second alternative on appeal. It argues that we should apply the base level of 15, as provided in Sec. 2H1.1, and adjust upward two levels for physically restraining the victim as provided in Sec. 3A1.3. The definition of "physically restrained" for this section is contained in the Commentary to Sec. 1B1.1, which states " 'physically restrained' means the forcible restraint of the victim such as by being tied, bound, or locked up." However, Sec. 3A1.3 states that its adjustment should not be applied "where the offense guideline specifically incorporates this factor, or where the unlawful restraint of a victim is an element of the offense itself...."
61
We find that the civil rights crime charged here under Secs. 241 and 242 does not contain physical restraint as an element of the offense. As the government notes, it is a violation of Sec. 241 to cast false votes, see Anderson v. United States, 417 U.S. 211, 226, 94 S.Ct. 2253, 2263, 41 L.Ed.2d 20 (1974), but this offense involves no "physical restraint." We note that the background to Sec. 2H1.1 states that "the base offense level for this guideline assumes threatening or otherwise serious conduct." Therefore, threatening and serious conduct can be considered as a factor "specifically incorporated" in the guideline. But we do not see that restraint is likewise incorporated. We hold that a proper application of the Sentencing Guidelines would sentence Pike and Goodman starting with the base offense level provided in Sec. 2H1.1. Goodman's sentence would then be adjusted upward two levels for physically restraining Pardue. Since Pike was convicted of a conspiracy that involved the false arrest, and physical restraint of Pardue, his sentence should also be adjusted upward two levels.
62
In summary, we agree with the sentencing court that the base offense level provided in Sec. 2A1.4 is not appropriate for this case. However, the element of physical restraint in this false arrest is not irrelevant for sentencing purposes. Instead, we hold that a proper interpretation of the Sentencing Guidelines starts with a base offense level of 15, as provided in Sec. 2H1.1, adjusted upward two levels for physical restraint of the victim, as provided in Sec. 3A1.3.
D
63
The district court calculated that Goodman should receive an adjusted base offense level of 15. Under the Guidelines, this would result in a sentence of 18-24 months. Instead, the court departed under 18 U.S.C. Sec. 3553(b)13 and sentenced Goodman to three years probation, with the first six months to be served in a half-way house. The court determined that Goodman should not serve a longer sentence than David Tingley, who from all indications masterminded the false arrest.
64
The government argues first that Goodman's minor role cannot justify a downward departure under Sec. 3553(b), because this is a factor the Guidelines provide for specifically in Sec. 3B1.2. The government also argues that there is no support in the record to justify departing downward based on coercion, duress, or diminished capacity, which were the factors cited by the sentencing court in its statement of reasons.
65
We have held that district courts "are not precluded as a matter of law from departing from the guidelines" to conform one conspirator's sentence to the sentences of co-conspirators. United States v. Nelson, 918 F.2d 1268, 1273 (6th Cir.1990). However, we have also stated that reducing a defendant's sentence to bring it in line with the sentences of co-conspirators also introduces a disparity between that defendant's sentence and those of other similar defendants nationwide. United States v. LaSalle, 948 F.2d 215, 218 (6th Cir.1991). In LaSalle, this court held that departing from the Guidelines "simply to eliminate a disparity as compared to his codefendants' sentences is unreasonable." Ibid. (citing United States v. Gessa, 944 F.2d 265 (6th Cir.1991); United States v. Parker, 912 F.2d 156 (6th Cir.1990); Nelson, 918 F.2d at 1275).
66
Here, the court departed downward in part to bring Goodman's sentence in line with an "unindicted co-conspirator" who was not a co-defendant. This situation presents a weaker argument for downward departure than LaSalle, where the district court attempted to harmonize the sentences of indicted co-conspirators. We find that this reason alone could not support a downward departure in this case.
67
However, the sentencing court provided other reasons for downward departure, namely coercion, duress, and diminished capacity. These factors are not supported by the record. Under Sec. 5K2.12 (Coercion and Duress), the policy statement states that the defendant should be subjected to "serious coercion, blackmail or duress" and "[o]rdinarily coercion will be sufficiently serious to warrant departure only when it involves a threat of physical injury, substantial damage to property or similar injury resulting from the unlawful action of a third party or from a natural emergency." Under Sec. 5K2.13, the court may depart if the defendant has "significantly reduced mental capacity" to the extent "reduced mental capacity contributed to the commission of the offense." We do not find evidence in the record to warrant departure under these sections.
68
We have already found that the base offense level for Goodman's sentence was erroneously calculated. Furthermore, under relevant case law, the district court cannot depart downward to reconcile Goodman's sentence simply because Tingley made a good deal with the authorities. In addition, the record does not support the other bases given to justify a downward departure, nor does the court discuss why they apply. We cannot state that no bases for a downward departure could exist in Goodman's case, but only that the ones applied at the initial sentencing are erroneous.
V
69
We AFFIRM the convictions of Pike, Epley and Goodman. We VACATE the sentences given Pike and Goodman, and REMAND for resentencing proceedings consistent with this opinion.
1
Epley testified that David Tingley ultimately agreed to pay $8,000
2
Epley testified that Goodman received about $1,000
3
Pardue testified that he did not run the stop sign
4
18 U.S.C. Sec. 241 reads:
Conspiracy against rights
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same ... They shall be fined [or imprisoned, or both] under this title....
5
18 U.S.C. Sec. 242 reads:
Deprivation of rights under color of law
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State ... to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined ... or imprisoned ... or both.
6
The admonishment was as follows:
Members of the jury, you've heard several references to [an] agreement to exercise a constitutional right. The exercise of a constitutional right in no way constitutes an illegal conspiracy or any part thereof.... [T]he Constitution is there to be exercised by every citizen and, in fact part of this case involves the failure or an invasion of the constitutional right. So we have the constitutional right and if somebody wants to plead the 5th Amendment they're certainly entitled to, they're not to be condemned for it or held liable for it in any way. Let's keep that in mind.... In that regard, this testimony regarding somebody deciding to exercise the constitutional right ... it's to be disregarded in its entirety.
7
Counts 6, 7, and 10 were dismissed before trial
8
The exchange was as follows:
Q. But you also talked with him [D. Tingley] about other things unrelated to any of the matters that we're here about today, such as for instance the so-called, quote, murder of a state trooper in Laurel County, correct?
A. That's correct. I took a polygraph on that, passed that, yes sir, that's correct. There's a lot of different things.
MR. MANLY: May we approach?
THE COURT: I don't think it's necessary.... I'll ask the jury to disregard that last statement and I think everybody knows why.
After a brief recess:
THE COURT: Members of the jury, the witness made reference to a polygraph test. That evidence is improper, the statement with regard to polygraph tests must be disregarded by you and not considered in any way during your deliberation.
9
Section 2H1.1 reads as follows:
Conspiracy to Interfere with Civil Rights; Going in Disguise to Deprive of Rights
(a) Base Offense Level (Apply the greater)
(1) 15; or
(2) 2 plus the offense level applicable to any underlying offense.
(b) Specific Offense Characteristic
(1) If the defendant was a public official at the time of the offense, increase by 4 levels.
The Commentary to this section states that the "[u]nderlying offense ... includes any offense under federal, state, or local law other than an offense that is itself covered under Chapter Two...."
10
Ky.Rev.Stat. Sec. 509.010 provides the definition of "restrain" applicable to this chapter: " 'Restrain' means to restrict another person's movements in such a manner as to cause a substantial interference with his liberty by moving him from one place to another or by confining him either in the place where the restriction commences or in a place to which he has been moved without consent."
11
Under Ky.Rev.Stat. Sec. 532.060, the sentences for felonies are: Class A, 20 years to life; Class B, 10 to 20 years; Class C, 5 to 10 years; Class D, 1-5 years
12
Under Kentucky law, a Class A misdemeanor is a crime punishable by a maximum term of between 90 days and 12 months. Ky.Rev.Stat. Sec. 532.020
13
The justification provided in the court's "Statement of Reasons" states:
Upon the court's own motion, a downward departure was deemed to be appropriate in this case due to the following factors, in part. The defendant had a minimal role in the overall scheme of this offense and the Court believes that he deserves to receive a sentence no more severe than that received by the organizer of this conspiracy, David Tingley, who benefited from a very favorable deal with the Government. The Court chose to reduce Mr. Goodman's sentence in the "interest of justice." Other factors include in part "Coercion and Duress" as provided in Section 5K2.12 and "Diminished Capacity" as provided in Section 5K2.13. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1556386/ | 798 F. Supp. 392 (1992)
ALMO MUSIC CORP., et al., Plaintiffs,
v.
T & W COMMUNICATIONS CORP., Defendant.
No. EC91-70-S-D.
United States District Court, N.D. Mississippi, E.D.
September 14, 1992.
William H. Cox, Jr., Watkins & Eager, Jackson, Miss., for plaintiffs.
Randolph Walker, Walker & Turner, West Point, Miss., for defendant.
OPINION
SENTER, Chief Judge.
This case involves claims of willful copyright infringement based on defendant's public performances of copyrighted musical compositions, which were broadcast over radio station WACR-FM in Columbus, Mississippi. Presently before the court is plaintiffs' unrefuted motion for summary judgment. Although this court cannot grant summary judgment by default, i.e., simply because there is no opposition to the motion, Hibernia National Bank v. Administracion Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.1985), the court may accept as undisputed the movant's version of the facts and grant the motion where the movant has made a prima facie showing of its entitlement to summary judgment. Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988). This is the position the court now finds itself in, for not only has defendant not responded to the instant motion, it has also failed to respond to plaintiffs' requests for admissions. Clearly, under Fed. R.Civ.P. 36, these matters are admitted and thus "conclusively established."
*393 FACTS
Plaintiffs, who are members of the American Society of Composers, Authors and Publishers (ASCAP), are owners of valid copyrights in the fourteen songs which form the basis of this action. To lawfully perform copyrighted music, a radio station must have permission, either by license from ASCAP or directly from the ASCAP member. At the time of the alleged infringement, defendant owned and operated two radio stations in Columbus, Mississippi WACR-FM and WACR-AM. Neither of these stations is licensed by ASCAP, WACR-FM's license having been terminated for default in payment of licensing fees on March 29, 1989. At that time, defendant was warned that it "is not licensed to perform copyrighted musical compositions in the ASCAP repertory, and any performances of our members' copyrighted works without advance written permission, will constitute infringements under the United States Copyright Law."
On May 11, 1989, plaintiffs engaged the services of Timothy Chesnut to make tape recordings of WACR-FM broadcasts and to prepare logs of those broadcasts. On that day, he recorded fourteen songs, which underlie the basis of this action. As just indicated, WACR-FM was not licensed to perform any ASCAP material, nor did it have permission directly from plaintiffs or their agents to perform these songs. According to plaintiffs, defendant has continued daily to broadcast copyrighted songs over both stations without permission to do so. Plaintiffs estimate that if properly licensed by ASCAP though May, 1992, the stations would owe combined licensing fees of $21,729.52.
DISCUSSION
17 U.S.C. § 501 prohibits infringement of any copyright. To establish liability in the context of this case, i.e., for infringement of copyrights in musical compositions, plaintiffs must prove the following:
(1) the originality and authorship of the compositions involved;
(2) compliance with all formalities required to secure a copyright under Title 17 of the United States Code;
(3) plaintiffs' ownership of the copyrights of the subject compositions;
(4) defendants' public performance of the compositions; and
(5) defendants' failure to obtain permission from any of the plaintiffs or their representatives for such performance.
Almo Music Corp. v. 77 East Adams, Inc., 647 F. Supp. 123, 124 (N.D.Ill.1986). In the instant case, plaintiffs, through the Rule 36 admissions and the uncontested summary judgment evidence, have easily established each of these elements. See Nick-O-Val Music Co. v. P.O.S. Radio, Inc., 656 F. Supp. 826, 828 (M.D.Fla.1987); Milene Music, Inc. v. Gotauco, 551 F. Supp. 1288, 1292 (D.R.I.1982).
Having found that defendant infringed on plaintiffs' copyrights, the court must next determine the appropriate relief. In this respect, plaintiffs request the issuance of an injunction, an award of statutory (rather than actual) damages, and costs and attorney's fees.
I. Statutory Damages
17 U.S.C. § 504(c) provides:
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect ... to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $100,000.
In this regard, plaintiffs request $42,000 ($3,000 for each of the fourteen infringements).
*394 The amount of statutory damages "is left to the discretion of the Court within the minimum and maximum amounts fixed by the statute," Milene Music, 551 F.Supp. at 1296; however, in awarding statutory damages, the court must consider the following factors:
(i) expenses saved and profits reaped by defendant[] in connection with the infringement; (ii) revenues lost by the plaintiffs; (iii) whether the infringement was willful and knowing, or whether it was accidental and innocent.
Id. In weighing these factors, "most courts that have pondered the issue do not attach great weight to profits gained or to income lost.... Courts thus have focused largely on the element of intent, and the per-infringement award tends understandably to escalate, in direct proportion to the blameworthiness of the infringing conduct." Id. (citations omitted).
In this instance, the court finds that defendant's course of conduct reveals a willful violation of the copyright laws. Several factors, which have been recognized by other courts as indicative of willfulness, lead to this conclusion. First, defendant "was familiar with ASCAP's role in the licensing process, and in fact paid fees to ASCAP ... for some time prior to embarking on a course of deliberate nonpayment of license fees. That stratagem led to license revocation...." Id. Second, defendant "repeatedly rebuffed offers to resolve this dispute prior to the commencement of litigation...." Boz Scaggs Music v. KND Corp., 491 F. Supp. 908, 915 (D.Conn.1980). Third, defendant's "defense efforts in this action have been spare...." Boz Scaggs, 491 F.Supp. at 915. And finally, defendant "made no attempt whatsoever to avoid infringement," id., and, "seemingly undeterred by lack of licensure and-or permission, proceeded boldly to appropriate protected compositions to [its] own use." Milene Music, 551 F.Supp. at 1296.
The court is of the opinion that statutory damages in the amount of $28,000 ($2,000 per infringement) is sufficient "to deter further wrongful conduct by this defendant," Coleman v. Payne, 698 F. Supp. 704, 708 (W.D.Mich.1988), and to put it "on notice that it costs less to obey the copyright laws than to violate them." Music City Music v. Alfa Foods, Ltd., 616 F. Supp. 1001, 1003 (E.D.Va.1985).
II. Injunctive Relief
17 U.S.C. § 502(a) states: "Any court having jurisdiction of a civil action arising under this title may ... grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright." An injunction should issue "when a substantial likelihood of further infringement of plaintiffs' copyrights exists." Milene Music, 551 F.Supp. at 1295. Here, according to plaintiffs' unrefuted summary judgment evidence, defendant continues to operate its stations without licenses or permission, and thus, further infringement is more than substantially likely it is a reality. Accordingly, an injunction shall issue to restrain defendant from infringing on plaintiffs' copyrights in the fourteen subject compositions. Although the terms of the injunction are not those requested by plaintiffs, i.e., that defendant be enjoined from broadcasting any and all music in the ASCAP repertory, they are in line with the majority of courts considering this issue. Indeed, the risk of committing additional violations is still borne by defendant.
III. Costs and Attorney's Fees
17 U.S.C. § 505 allows the court in its discretion to award plaintiffs their full costs and a reasonable attorney's fee. "Although attorney's fees are awarded in the trial court's discretion, they are the rule rather than the exception and should be awarded routinely." Micromanipulator Co. v. Bough, 779 F.2d 255, 259 (5th Cir. 1985). As recognized by the court in Boz Scaggs,
Some of the considerations that might justify the denial of fees include the presence of a complex or novel issue of law that the defendant[] litigate[s] vigorously and in good faith; the defendant['s] status as [an] innocent, rather than willful or knowing infringer[]; bad faith on the plaintiffs' part in prosecuting *395 the action; or a good faith attempt by the defendant[] to avoid infringement.
Boz Scaggs, 491 F.Supp. at 915 (emphasis in original) (citations omitted). None of these factors are present in this case. The court therefore finds an award of costs and attorney's fees is appropriate.
Plaintiffs have submitted the affidavit of their counsel who avers that his usual and customary rate in this type of case is $135.00 per hour. Although defendant has offered no opposition to this request, the court finds that it is not in line with that ordinarily awarded in this district. The court therefore finds that $100.00 per hour for the fourteen hours expended on this case will adequately and fairly compensate plaintiffs' counsel. Plaintiffs also ask for the payment of their costs of $186.47. The court finds this amount completely reasonable.
A final judgment shall issue.
FINAL JUDGMENT
Pursuant to an opinion filed contemporaneously herewith, it is ORDERED:
That plaintiffs' motion for summary judgment is granted;
That plaintiffs recover from defendant statutory damages in the amount of $28,000.00;
That plaintiffs recover from defendant costs and attorney's fees in the amount of $1,586.47;
That defendant and its officers, agents, servants, and employees are hereby enjoined and restrained from further infringement of plaintiffs' copyrights in the fourteen musical compositions listed on Schedule A of the complaint in this action;
That this cause is dismissed with prejudice.
SO ORDERED AND ADJUDGED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556061/ | DONALD BRITTON,
v.
CHARLES (CHUCK) HUSTMYRE, LOUISIANA BUSINESS INCORPORATED, ROLFE McCOLLISTER, JR., MIKE ECKSTEIN, JULIO MELARA, 225BATON ROUGE, 225BATON ROUGE.COM.
No. 2009 CA 0847.
Court of Appeals of Louisiana, First Circuit.
March 26, 2010.
Not Designated for Publication.
DONALD BRITTON, Baker, LA, Plaintiff/Appellant, Pro Se.
A. JUSTIN OURSO III, CHRISTOPHER D. MARTIN, Baton Rouge, LA, Counsel for Defendants/Appellees, Louisiana Business Incorporated, Charles Hustmyre, Rolfe McCollister, Jr., Mike Eckstein, and Julio Melara.
Before: WHIPPLE, HUGHES, and WELCH, JJ.
HUGHES, J.
This is an appeal from a trial court judgment granting the defendants' LSA-C.C.P. art 971 special motion to strike and dismissing the action in defamation. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
In a July 2008 edition of 225 Magazine, an article written by "Chuck Hustmyre" was published that purported to expose matters involving the Louisiana Department of Health and Hospitals ("DHH") and nonprofit counseling organizations associated with Donald Britton. On August 15, 2008 the instant suit was filed by Mr. Britton alleging the article contained "lies, rumor and gossip" about him.[1] In his petition, Mr. Britton characterized the 225 Magazine article about him as retaliatory, for his failure to yield to author Charles (Chuck) Hustmyre's July 2009 "demands" for the disclosure of financial records related to the Community Resource Services organization, of which he was President/Executive Director. Mr. Britton alleged that Mr. Hustmyre maliciously caused lies to be published about him "for the purpose of causing financial, economic and social damages." The other named defendants were alleged to have provided the "vehicle" and/or assisted Mr. Hustmyre "in spreading lies, rumor and gossip for the purpose of defaming, slandering and ruining [his] reputation and [his] career."
In response to this suit, the defendants filed a special motion to strike, based on the authority of LSA-C.C.P. art 971, asserting that Mr. Britton was unable to establish a "probability of success" as required by Article 971, and therefore his suit should be dismissed. Following a hearing on the motion, held by the trial court on January 5, 2009, judgment was rendered (and later signed on March 2, 2009) in favor of the defendants, dismissing the action and ordering Mr. Britton to pay court costs and $2,500.00 in attorney fees to the defendants.
On January 8, 2009 Mr. Britton filed a motion for rehearing and to set aside the judgment, which also sought recusal of the presiding judge. A February 18, 2009 hearing on Mr. Britton's motion to recuse the presiding judge was held before another judge of the trial court, and the motion was denied.
On February 25, 2009 Mr. Britton filed an appeal, which was subsequently dismissed by this appellate court as abandoned.[2] See Britton v. Hustmyre, XXXX-XXXX (La. App. 1 Cir. 6/8/09) (unpublished).
Thereafter, on March 2, 2009, judgment was rendered and signed, denying Mr. Britton's motion for rehearing and to set aside the January 5, 2009 judgment. In the March 2, 2009 judgment, the presiding judge stated that Mr. Britton had failed to set forth any basis in law or in fact that would warrant a rehearing or new trial within the authority of LSA-C.C.P. arts. 1972 or 1973.
On March 11, 2009 the defendants filed a motion for new trial "limited to the amount of the defendants' attorneys' fees awarded pursuant to its successful special motion to strike under Article 971." Also on that date, Mr. Britton filed the subject suspensive appeal as to the trial court judgment rendered on January 5, 2009 and signed on March 2, 2009.
In conjunction with his appeal, Mr. Britton has filed with this appellate court a "Motion to Included [sic] Exhibits] Denied in District [Court,]" seeking to be permitted to submit exhibits and evidence relevant to the case, which he contends were not accepted into evidence by the trial court. In his motion, Mr. Britton alleges:
1. The presiding 19th [Jjudicial [District [J]udge denied plaintiff his right to admit evidence in this case that would reveal the truth about the illegal activities of the defendants.
2. The copy of the judgment, order, minute entry, oral reason for judgment and transcripts will not reveal all truth about the injustice of the court.
3. The interest of justice in this case [sic] plaintiff should be allowed to enter exhibits.
Defendants have filed with this court a "Motion to Dismiss Appeal or, Alternatively, Motion to Suspend Briefing Deadlines Pending Consolidation of Appeals." In this motion, the defendants assert that at the time Mr. Britton filed his appeal (March 11, 2009) the trial court had not ruled on the defendants' motion for new trial (also filed March 11, 2009). Defendants further assert that the trial court signed a judgment on May 26, 2009 granting the defendants' motion for new trial "thereby vacating its March 2, 2009 judgment." Defendants argue that pursuant to LSA-C.C.P. art. 2123(C), the prematurity of Mr. Britton's appeal was never cured as the judgment appealed was vacated. Defendants seek dismissal of this appeal and, in the alternative, a suspension of briefing delays until this appeal can be consolidated with a subsequent appeal filed by Mr. Britton.[3] See Britton v. Hustmyre, XXXX-XXXX (La. App. 1 Cir. 3/26/10) (unpublished).
Additionally, this court, ex proprio motu, issued an order on June 11, 2009 directing the parties to show cause why the appeal should not be dismissed as premature, citing the absence of a ruling in the record by the trial court on the defendants' motion for new trial. All of the appellate motions have been referred to this panel for disposition.
As to the merits of the appeal, Mr. Britton presents the following assignments of error:
1. A rational trier of fact could not conclude that [LSA-C.C.P. art. 971] has any relevance in this case since it refers to public and political figures[,] which the appellant is neither.
2. [LSA-C.C.P. art. 971] was not intended to be a vehicle whereby any media can spread falsity, lies and defamation about citizens of the State of Louisiana with immunity from due process of law and law suits [sic].
3. Plaintifff's] rights [sic] to due process of law dictates [sic] that on a new trial or rehearing both part[ies] should have the right to enter evidence, witnesses and be treated fairly.
4. The defendants] should not be awarded any attorney fees[.]
5. The defendants] being awarded a judgment against appellant for attorney fees of $17[,]000.00 after being awarded $2[,]500.00 in a final judgment which was on appeal. [Sic]
6. The presiding judge presented himself as bias[ed] and prejudice[d] toward pro se litigant. He has attempted to obstruct justice, conspire with defendants, extort money, harass, intimidate, threaten and disrespect plaintiff.
7. The presiding judge should have recused himself when his conduct became questionable.
LAW AND ANALYSIS
Motion/Rule Relating to Prematurity of Appeal
An appellate court has the duty to examine the basis of its jurisdiction. See Monterrey Center, LLC v. Ed.ucation Partners, Inc., XXXX-XXXX, p. 5 (La. App. 1 Cir. 12/23/08), 5 So.3d 225, 228-29 (quoting McGehee v. City/Parish of East Baton Rouge, XXXX-XXXX, p. 3 (La. App. 1 Cir. 9/12/01), 809 So.2d 258, 260). A final judgment is appealable in all causes in which appeals are given by law. Id. at p. 229; LSA-C.C.P. art. 2083. A judgment that determines the merits in whole or in part is a final judgment. Id.; LSA-C.C.P. art. 1841. An order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict. The order becomes effective upon the denial of such motions. LSA-C.C.P. art. 2123(C). Courts of this state have held that a trial court's denial of a motion for new trial during the pendency of an appeal cures the defect of prematurity. See Guillory v. Hebert, 2007-614, p. 4 (La. App. 5 Cir. 12/27/07), 975 So.2d 58, 60; Sullivan v. Franicevich, XXXX-XXXX, p. 2 (La. App. 4 Cir. 3/9/05), 899 So.2d 602, 604, writs denied, XXXX-XXXX, XXXX-XXXX (La. 5/20/05), 902 So.2d 1051, 1055 (citing Oliver v. Oliver, 411 So.2d 596, 597-98 (La. App. 1 Cir. 1982)). Cf Overmier v. Traylor,475 So.2d 1094, 1094-95 (La. 1985).
In the instant case, Mr. Britton's appeal was prematurely taken prior to the disposition by the trial court of the defendants' motion for new trial; however, the defendants' motion was subsequently ruled on during the pendency of this appeal. Following a May 4, 2009 hearing on the motion for new trial, the trial court granted the motion in part, vacating the March 2, 2009 judgment "only with respect to the amount of attorneys' fees awarded." Judgment was then rendered on the attorney fee issue in favor of the defendants and against Mr. Britton, ordering him to pay defendants "$17,723.00 in reasonable attorneys' fees, plus $450.00 for the court costs of defendants." The trial court further ordered that "the rest of the March 2, 2009, judgment remains in effect and unchanged by this final judgment." The judgment was signed on May 27, 2009.[4]
With respect to that portion of the March 2, 2009 judgment dismissing Mr. Britton's action on the basis of LSA-C.C.P. art. 971, we deem the instant appeal effective, as the motion for new trial was denied as to that portion of the judgment. See LSA-C.C.P. art. 2123(C). However, with respect to that portion of the March 2, 2009 judgment that was vacated, i.e., the award of attorney fees, this appeal was premature, having been taken prior to the rendition and signing of the final judgment. Accordingly, we will maintain this appeal in part, with respect to the trial court's LSA-C.C.P. art. 971 dismissal, and dismiss the appeal, in part, with respect to the award of attorney fees.[5]
Motion to Supplement Record
Next we address Mr. Britton's motion, filed with this court, requesting that he be allowed to introduce evidence into the record on appeal. As an appellate court, we have no jurisdiction to receive new evidence. An appellate court must render its judgment upon the record on appeal in accordance with LSA-C.C.P. art. 2164. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcripts, jury instructions, judgments and other rulings, and evidence filed, unless otherwise designated, as stated in LSA-C.C.P. arts. 2127 and 2128, Official Revision Comment (d) for LSA-C.C.P. art. 2127, and Rules of Court Courts of Appeal, Rule 2-1.7. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence; therefore, the motion to introduce additional evidence must be and hereby is denied. See Hudson v. East Baton Rouge Parish School Board, XXXX-XXXX, p. 2 (La. App. 1 Cir. 3/28/03), 844 So.2d 282, 284-285; Lewis v. Jabbar, XXXX-XXXX, p. 6 (La. App. 1 Cir. 1/12/09), 5 So.3d 250, 255; Nickens v. Patriot Home Systems, 97-0291, p. 3 (La. App. 1 Cir. 2/20/98), 708 So.2d 1184,1186.
Code of Civil Procedure Article 971 Special Motion to Strike
In his first and second assignments of error, Mr. Britton contends that LSA-C.C.P. art. 971 is not applicable to this case since, he asserts, he is not a public or political figure. Further, Mr. Britton argues that LSA-C.C.P. art. 971 was not intended to be used to allow the media to defame Louisiana citizens with immunity from suit, implicitly asserting the trial court erred in granting the Article 971 special motion to strike.
In enacting Article 971 by 1999 La. Acts, No. 734, the Louisiana Legislature stated its purpose:
The legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, it is the intention of the legislature that the Article enacted pursuant to this Act shall be construed broadly.
The granting of a special motion to strike pursuant to Article 971 presents a question of law. Appellate review regarding questions of law is simply a review of whether the trial court was legally correct or legally incorrect. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and render judgment on the record. Lamz v. Wells, XXXX-XXXX, p. 3 (La. App. 1 Cir. 6/9/06), 938 So.2d 792, 795.
Louisiana Code of Civil Procedure Article 971 provides as follows, in pertinent part:
A. (1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.
* * *
F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) "Act in furtherance of a person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue" includes but is not limited to:
* * *
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
* * *
The meaning of LSA-C.C.P. art. 971, as it relates to the instant case, is clear. In Paragraph A of Article 971, the Louisiana Legislature designated the type of action the article is applicable to, i.e., an action arising out of a person's exercise of his right of petition or free speech in connection with a public issue. (In the instant case, the "persons" who have exercised their right of free speech are the defendants.) Article 971 goes on to state, in Paragraph A, that if a person is sued based on an act relating to his right of petition or free speech, then a special motion to strike is available to that person. (Again, in this case, the "persons" who acted on their right of free speech, by publishing the magazine article at issue herein, are the defendants.)
Further, the applicability of Article 971 depends on whether a defendant in a defamation case, was exercising his right of free speech in connection with a public issue, when the plaintiff was allegedly defamed. This requirement is satisfied, as stated in Article 971, Paragraph (F)(1)(c), when the allegedly defamatory statements are made publically and "in connection with an issue of public interest." (This means that the defendants in this case must have made the allegedly defamatory statements "in connection with an issue of public interest.")
Thus, the plaintiffs status, or lack thereof, as a public figure is irrelevant to the application of Article 971. Rather, it is the defendants' speech that must be made in connection with a public issue, which triggers the applicability of Article 971. Therefore, Mr. Britton's assertion that LSC.C.P. art. 971 is not applicable to this case since he is not a public or political figure is without merit.
This court's review of the 225 Magazine article at issue in this case reveals that the subject of the article was related to an issue of public interest. The article was clearly intended as an expose of the government dispersal of public funds via grants and/or contracts to providers who, in the author's (Mr. Hustmyre's) opinion, lack the proper qualifications to provide the services at issue, as well as the government's failure to adequately screen such providers. It cannot be denied that the public has a right to be informed about how its tax dollars are being spent. Therefore, the subject of the instant action is clearly a matter of public interest, which is subject to the provisions of LSA-C.C.P. art. 971.
Mr. Britton also contends on appeal that the Article 971 special motion to strike was improperly granted in this case. Pursuant to Article 971, the special motion to strike authorized therein should be granted only when a plaintiff is unable to establish "a probability of success on the claim." Thus the plaintiff in a defamation action, subject to Article 971, must demonstrate to the trial judge, by means of his pleadings and/or affidavits filed (as directed by Paragraph (A)(2) of Article 971), that it is probable that he can successfully prove defamation.
In order to prove defamation, a plaintiff must establish five elements: (1) defamatory words; (2) unprivileged publication; (3) falsity; (4) malice (actual or implied); and (5) injury. Aymond v. Dupree. XXXX-XXXX, p. 9 (La. App. 3 Cir. 4/12/06), 928 So.2d 721, 728, writ denied, XXXX-XXXX (La. 10/6/06), 938 So.2d 85. If even one of these required elements is lacking, the cause of action fails. Thinkstream, Inc. v. Rubin, XXXX-XXXX, p. 10 (La. App. 1 Cir. 9/26/07), 971 So.2d 1092, 1101, writ denied, 2007-2113 (La. 1/7/08), 973 So.2d 730.
Our review of the record leads us to conclude that Mr. Britton has failed to demonstrate that he has a probability of establishing the falsity of the statements complained of in this case. At the time of the ruling by the trial court on the Article 971 motion, Mr. Britton had filed no affidavits into the record. In his pleadings, Mr. Britton specified only the following statements in the 225 Magazine article as being falsehoods: (1) that he received $200,000 from the DHH and a couple of six figure grants; (2) that he was charged with stealing from a non-profit organization; (3) that he proposed to provide services for the Baker School System when he did not have funding in place to perform the services offered; and (4) that he billed the State for services he did not provide.[6]
In support of their special motion to strike, the defendants filed the affidavit of Mr. Hustmyre, with documentary attachments, attesting to the following:
1. He is a freelance author and reporter and investigated, researched, and wrote the text of a news article that bore the headline "Contract to steal" that Louisiana Business, Inc., published in the August 2008 print issue of the its [225 Magazine] and which appeared in the magazine's on-line edition on July 29, 2008 (the "News Article"), a copy of which article is attached to this affidavit as Exhibit 1.
2. He has personal knowledge of the facts stated in this affidavit by virtue of his having investigated, researched, and written the News Article and by virtue of his participation in the events described in this affidavit.
3. He gives this affidavit in connection with a motion to strike pursuant to Article 971 of the Louisiana Code of Civil Procedure.
4. He is an experienced investigator, having worked as a criminal investigator for the East Baton Rouge Parish District Attorney's office from March 1988 until December 1990 and having worked as a special agent for the Bureau of Alcohol, Tobacco, and Firearms of the United States Department of the Treasury for almost thirteen years from January 1991 until he took a disability retirement in October 2003 due to an on-thejob injury.
5. He has been a full-time writer since then, including numerous assignments as a freelance reporter for the last five years for the Baton Rouge Advocate, the cable network Court TV, and other publications, and he is the author of two nationally published true crime books, Killer With a Badge and An Act of Kindness.
6. He was covering a Baker School Board meeting for the Advocate on or near April 15, 2008, when Donald Britton, who is a subject of the News Article, made a presentation that piqued his interest.
7. He began investigating Britton's background and his relationships with two agencies of the State of Louisiana that award contracts to private parties.
8. He investigated the record in State of Louisiana v. Donald Britton, No. 07-04-0401, Nineteenth Judicial District Court for the State of Louisiana, including an arrest warrant with a supporting affidavit, a bill of information, and minute entries from the criminal case, certified copies from the record of which are attached at Exhibit 2.
9. The statements in the News Article concerning the criminal prosecution of Britton, including the statements "...was on probation at the time for stealing money from another government program;" "Britton was charged with stealing $3,000 of government money from one of the residents;" and "Shortly after being charged with stealing from one nonprofit..." were all based upon information in Exhibit 2.
10. The attached Exhibit 3 is a certified copy of the articles of incorporation of Mai son Des Ami of Louisiana, Inc.
11. His investigation disclosed that Britton was hired in December 2005 to serve as the Executive Director of a clinic operated by the Good Shepherd Resource and Substance Abuse Center (the "Center") and that he served as the Executive Director of the clinic until January 16, 2007.
12. The attached Exhibit 4 is a copy of a compliance report that he obtained from the Louisiana Department of Health and Hospitals entitled "Report on Compliance with Laws and Regulations Based on a Limited Review of Financial Statements and Financial Records for Good Shepherd Resource and Substance Abuse Center."
13. The attached Exhibit 5 is a copy of a schedule, timeline, and memorandum notes that the Louisiana Department of Health and Hospitals furnished him in response to inquiries that he made concerning the Center, which shows the reimbursement payments made to the Center during the period from April 2006 through April 2008.
14. He added the amounts of the payments for the period April 2006 through December 2006, during which Britton was the Executive Director of the Center's clinic, and the notation "total $199,419" on Exhibit 5 is his handwriting reflecting the sum of the payments received by the clinic during this period.
15. The statement in the News Article that "The year before-from April to December 2006the Department of Health and Hospitals handed Britton $200,000 to run an adult drug and alcohol counseling service..." was based upon the information in Exhibits 4 and 5.
16. The attached Exhibit 6 is a certified copy of the articles of incorporation and annual reports of Community Resource Services, a nonprofit corporation for which Britton was an incorporator and of which Britton has been the president and a director since its formation in 2005.
17. The attached Exhibit 7 is a copy of a financial statement of Community Resource Services for the year ending December 31, 2007, that he obtained from the Louisiana Legislative Auditor.
18. The statement in the News Article that "What Britton didn't mention during his presentation to the Baker School Board was that he did not have the funding in place to pay for the services he was offering" was based upon the information in Exhibit 7.
19. He had not known or heard of Britton prior to being present during Britton's presentation to the Baker School Board on or near April 15, 2008.
20. He knows Britton only from meeting Britton in connection with his investigation, research, and writing of the News Article and does not know Britton personally.
21. He has no ill feelings toward Britton.
A court in a defamation case must consider the entirety of a statement in determining whether the statement is actionable, as well as the context in which it was made, and the effect it is reasonably intended to produce in the mind of the average listener. See Sassone v. Elder, 626 So.2d 345, 352 (La. 1993); Kosmitis v. Bailey, 28,585, p. 3 (La. App. 2 Cir. 12/20/96), 685 So.2d 1177, 1180. See also Taylor v. Town of Arcadia, 519 So.2d 303, 306 (La. App. 2 Cir.), writ denied, 522 So.2d 1097 (La. 1988). After a thorough review of the record presented on appeal, this court concludes that, when the statements complained of are read in the context of the magazine article as a whole, and considering the effect the article as a whole would have on the average reader, Mr. Britton's probability of proving falsity has not been established.
The Hustmyre article begins the first paragraph by stating, "Rev. Donald Britton might be the last person to whom you'd expect the state of Louisiana to hand a couple of six-figure government grants."[7] Mr. Britton argues that this statement is untrue because he, personally, has never been given any government grants. However, after a reading of the entire magazine article, it becomes clear that what Mr. Hustmyre intends to convey to the reader is that government funds have been placed in the hands of Mr. Britton in his capacity as the director of the various organizations under government contract. The article clearly states that as the director of Community Resource Services, Mr. Britton received the $100,000 government contract. Similarly, in the beginning of the Hustmyre article it is stated that DHH "handed" Mr. Britton "$200,000" to run an alcohol counseling service, but it is clear from later statements in the article that Mr. Britton received the funds in an administrative capacity for the non-profit corporation established by the Good Shepherd Baptist Church. It is obvious to an average reader that a corporation or any other entity can only receive funds through its executive officers and/or other employees. We further note that these two contracts could reasonably be referred to as a "couple" of "six-figure" grants.
Mr. Britton further declares as false the Hustmyre article's representation that he has stolen from a non-profit organization as stated in the article. Beneath the photograph of Mr. Britton at the beginning of the article, it is stated:
Rev. Donald Britton, in this 2004 East Baton Rouge Parish booking photo, was convicted of stealing $3,000 from Maison Des Ami of Louisiana, a federally-funded shelter for chronically mentally ill homeless. The money was meant to help one of the center's clients. Although Britton was convicted, he insists it should have remained a simple civil matter and that he was persecuted because of his race.
Further clarification of the referenced incident is given in the opening sentence of the article where it is stated that the felony conviction for theft was of funds "from a client at a government-funded homeless shelter." Additional details are given later in the article:
In June 2004, just five months into his tenure as executive director of Maison Des Ami of Louisiana on Convention Street, a federally-funded nonprofit shelter for homeless adults with chronic mental problems, Britton was charged with stealing $3,000 of government money from one of the residents.
The certified criminal records upon which Mr. Hustmyre based these statements were annexed to his affidavit, which was filed into the trial court record. The June 3, 2004 sworn affidavit of Maison Des Ami employee Harvey Johnson, upon which the arrest warrant was based, stated in pertinent part:
The affiant states that the accused was employed as the Executive Director of the business of Maison Des Ami ... since January 5th, 2004. Maison Des Ami is a boarding care facility for the mentally ill and homeless in which the United States Treasury pays rent for certain residents. Each resident receives a check in different amounts monthly. The rent at Maison Des Ami varies for each resident. Part of the accusedf's] job is to take all the checks, cash them and then give each resident what is left from his or her check after the rent is paid. This money is then placed into a name file and recorded in a registry. The money is to be dispersed to the desi[g]nated resident as needed.
On March 8th, 2004, the accused was given a check in the amount of $4,207.00 by the affiant. $3,900.00 of the money was for Danny L. Trask, a resident of Maison Des Ami's money and the remainder was for other residents. $425.00 of the $3,900.00 was designated for rent to Maison Des Ami which leaves a refund of $3,475.00 to Danny Trask.
On March 12th, 2004 the accused gave Vada Elliot, the social worker who oversees the refunds, $465 of the $3,475.00. The accused told Vada Elliot that he would keep the remainder of the cash, $3,010.00[,] in his office.
On April 18th, 2004, the accused was asked by the affiant where the remainder of Danny L. Trask[`s] refund was. The accused told the affiant that he had the money in a safe place. The affiant then asked a second time where was the refund. The accused then told the affiant that he had taken the money to his personal safe deposit box at Liberty Bank....
* * *
The bill of information, filed by the district attorney on July 26, 2004, charged Mr. Britton with felony theft and stated that "on or about March 9, 2004 the defendant committed theft of U.S. Currency belonging to Danny Trask...." The minutes of the criminal court reflect that Mr. Britton was found guilty as charged by a jury on March 2, 2005. The criminal court minutes also reflect that as a special condition of probation, Mr. Britton was ordered to "pay restitution in the amount of $3,320.00 to Maison Des Ami." These criminal court documents validate the statements made in the Hustmyre article. Mr. Britton failed to timely submit proof to the contrary in the trial court.
As to the Hustmyre article's assertion that when, on or about April 15, 2008, Mr. Britton proposed to provide services for the Baker School System, he did not have funding in place to perform the services offered, again, Mr. Britton failed to submit proof to the contrary in the trial court in a timely manner. The Hustmyre affidavit provided to the trial court attached a prior financial statement of the Community Resource Services, dated December 31, 2007, which showed the Britton-run organization had total assets of $5,371.00 and total liabilities of $21,034.00, with a net deficit for 2007 of $15,663.00. The Hustmyre article logically assumed, based on the 2007 Community Resource Services financial statement, that the organization was insolvent. Mr. Britton failed to prove this conclusion was false.
The final assertion contained in the Hustmyre article, which Mr. Britton's pleadings point to as false, was that Mr. Britton had billed the State for services that were not provided. In support of that contention, Mr. Hustmyre, in his trial court affidavit, stated that he relied on a compliance report obtained from the DHH, entitled "Report on Compliance with Laws and Regulations Based on a Limited Review of Financial Statement and Financial Records for Good Shepherd Resource and Substance Abuse Center ["Good Shepherd"]." The copy of the report attached to the Hustmyre affidavit contained a DHH schedule, timeline, and memorandum notes that Mr. Hustmyre attested were furnished to him in response to inquiries that he made concerning the Good Shepherd for the period of April 2006 through April 2008, during which time Mr. Britton was running the program. The DHH report stated that, through its Office for Addictive Disorders, it administered the Access to Recovery ("ATR") program. DHH further stated that the ATR program was designed to provide substance abuse patients with a free choice of providers and services of recovery and support, and allowed selection of "faith and community based caregivers." DHH stated that it had contracted with Good Shepherd to perform such services on a "fee for service" basis. The DHH report was generated following a limited-in-scope review to determine if fee-for-service billings by Good Shepherd were consistent with applicable regulations. The report noted the following "exceptions:" (1) employees were being treated as contract workers and no payroll taxes were being deducted from wages; (2) a review of randomly selected clients revealed that DHH/ATR was billed for two clients whose files could not be located (it was recommended that DHH/ATR be reimbursed $785.00 for these clients); and (3) a review of transportation service records revealed these services were not properly documented and out of 571 transportation services, only eleven were documented (undocumented transportation services billed, amounting to $17,391.00, were recommended for reimbursement to DHH/ATR).
The DHH Activity report for Good Shepherd further listed ATR payments to Good Shepherd totaling $199,419.00 for the period of April 2006 through December 2006. During this time period, Mr. Britton was running the program for Good Shepherd and presumably received these funds from DHH/ATR on behalf of Good Shepherd. Further, the fact that Good Shepherd was required to reimburse DHH/ATR for monies received for which it could not document that services had been provided could lead to the assumption that said services were not provided. We conclude that the Hustmyre article's statements based on these DHH documents had a basis in fact. Mr. Britton filed no proof to the contrary into the trial court record.
Having concluded that Mr. Britton has shown no probability that he can succeed in proving the falsity of the Hustmyre statements, Mr. Britton failed to bear his burden of proof under LSA-C.C.P. art 971. Thus, we find no error in the trial court's dismissal of this defamation action under Article 971.
Refusal of the Trial Court to Allow Introduction of Mr. Britton's Evidence
The hearing on the defendants' LSA-C.C.P. art. 971 special motion to strike was held in the trial court on January 5, 2009. Mr. Britton was present in court. Prior to the date of the hearing, other than his pleadings, Mr. Britton submitted no affidavits or other evidence into the record. During the January 5, 2009 hearing, both counsel for defendants and Mr. Britton presented oral argument to the trial court. During the course of Mr. Britton's argument, he admitted that he was "charged" with felony theft, but asserted that it was "more a civil matter than a criminal matter." During the remaining portion of Mr. Britton's argument before the trial court, he pointed to no "pleadings" or "supporting and opposing affidavits" to support his allegations, as required by Article 971. Mr. Britton's argument to the trial court consisted only of his oral and conclusory assertions of the falsity of the statements in the Hustmyre article.
We note that at one point in his oral argument, Mr. Britton asserted that one of Hustmyre's sources, Will McDaniel, "never told Chuck Hustmyre that lie." The trial judge then asked Mr. Britton, "How do you know that he didn't say that to Mr. Hustmyre?" Mr. Britton replied, "Because he told me he didn't." The court then asked, "And where is the proof of that? I'm simply going to take your word on that? Where is the affidavit from that individual saying, I never made those statements that were printed in that article?" Mr. Britton stated, "Well, I'm sure Mr. Chuck Hustmyre has it since he wrote it. I'm sure he has an affidavit to that effect." The court further stated, "You're the one that's saying that the person, the gentleman, Mr. McDaniel, didn't say it and he told you he didn't say it. Where is the affidavit from Mr. McDaniel supporting that position?" Mr. Britton responded, "There is no affidavit from Mr. McDaniel. I would like to see Mr. Chuck Hustmyre's affidavit that he used when he wrote this article saying it. He's the one who defamed my character."
This interchange between Mr. Britton and the trial court illustrates the nature of the problem with Mr. Britton's case. The trial court is required by law to decide the LSA-C.C.P. art. 971 motion on the basis of "the pleadings[8] and supporting and opposing affidavits." The law requires Mr. Britton, as the plaintiff, to establish "a probability of success" on his claim of defamation, yet Mr. Britton did not file the necessary documents with the trial court to satisfy his burden of proof. At no time during the January 5, 2009 hearing did Mr. Britton seek to introduce the documents of proof required by LSA-C.C.P. art. 971, nor did he request that the court allow him any additional time to do so. At the conclusion of the hearing, the trial judge ruled as follows, in pertinent part:
The basis of the article in question was public records that were relied upon by the reporter.... A review of these exhibits ... clearly rebuts any presumption of falsity. Therefore, ... even giving the plaintiff the presumption of falsity, that presumption has been rebutted. The burden then shifts to plaintiff to prove likelihood of success, and the plaintiff has offered nothing whatsoever to address that burden [of proof] or to show any likelihood of success other than argument today and basically rereading to the Court the allegations in his petition.
...[B]ased on plaintiffs failure to meet the burden of proving the probability of success on his defamation claim ... the Court is going to grant the special motion to strike and dismiss plaintiffs claim, with prejudice, at plaintiffs costs.
It was not until the subsequent May 4, 2009 hearing on the defendants' limited motion for new trial (as to the amount of attorney fees) that Mr. Britton attempted to present evidence to support his claim of defamation.[9] During that May 4, 2009 hearing, Mr. Britton attempted to call witnesses to the stand who he had subpoenaed to testify on his behalf. The trial court asked Mr. Britton why the witnesses were being called to testify and Mr. Britton stated, "To get the facts of the case and to show that there are reasons for a new trial and to submit evidence into the record." The court then stated, "I denied [your] motion for new trial. The only thing we're hearing today is the question of the amount of attorney's fees...." Mr. Britton was not allowed to submit the testimony of his witnesses as it related to the previously heard and decided LSA-C.C.P. art. 971 special motion to strike. The hearing was limited only to the defendants' motion for a limited new trial on the issue of attorney fees.
Mr. Britton contends on appeal that he should have been allowed to introduce the testimony of the witnesses called to attend the May 4, 2009 hearing. We disagree.
The trial court rendered judgment on the merits of the LSA-C.C.P. art. 971 special motion to strike following the hearing on that motion on January 5, 2009. The final judgment was signed by the court on March 2, 2009, dismissing Mr. Britton's case. Mr. Britton's motion for new trial of the matter was denied by the trial court.
We note that Mr. Britton's previously filed (on January 8, 2009) motion for new trial (denied by the trial court on March 2, 2009) failed to state that he had any new evidence to present to the trial court, which would satisfy the requisite grounds for a new trial found in LSA-C.C.P. art. 1972: "A new trial shall be granted, upon contradictory motion of any party, in the following cases: .. .When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial." To the extent, Mr. Britton's appeal attempts to assign error to the trial court's denial of his motion for new trial, we find no error in the ruling.
Mr. Britton filed the instant appeal of that January 5, 2009 judgment on February 25, 2009. After the appeal of the January 5, 2009 judgment was taken, the trial court was without jurisdiction to alter the judgment, as dictated by LSA-C.C.P. art. 2088(A), which provides in pertinent part: "The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal...."
Mr. Britton's proof to prevent his case from being dismissed under LSA-C.C.P, art. 971 should have been submitted prior to the court's ruling at the January 5, 2009 hearing. His attempts to introduce evidence on that issue, after the judgment dismissing his case had been signed by the trial court and after he had filed his appeal of that judgment, came too late.
By choosing to represent himself, a litigant assumes the responsibility of familiarizing himself with applicable procedural and substantive law. He assumes all responsibility for his own inadequacy and lack of knowledge of procedural and substantive law. His failure to comply with applicable procedural and substantive law does not give him any greater rights than a litigant represented by an attorney. See Harrison v. McNeese State University, 93-288, p. 3 (La. App. 3 Cir. 3/23/94), 635 So.2d 318, 320, writ denied. 94-1047 (La. 6/17/94), 638 So.2d 1099; Devffle v. Watch Tower Bible and Tract Society, Inc., 503 So.2d 705, 706 (La. App. 3 Cir. 1987). See also Hudson v. East Baton Rouge Parish School Board, XXXX-XXXX, p. 3 n.2 (La. App. 1 Cir. 3/28/03), 844 So.2d 282, 285 n.2. Cf. Hutchinson v. Westport Insurance Corporation, XXXX-XXXX (La. 11/8/04), 886 So.2d 438.
We find no error in the trial court's refusal to allow introduction of evidence by Mr. Britton on May 4, 2009, which was required to have been submitted by January 5, 2009.
Recusal of Trial Court Judge
Although Mr. Britton's appellate brief presents arguments and assertions relating to the denial of his motion to recuse the presiding trial court judge, he stated during the February 26, 2010 appellate oral argument that he did not intend to appeal the denial of is motion to recuse. Thus, this appeal presents nothing further for our review.[10]
CONCLUSION
For the reasons assigned, we deny the defendants' motion to suspend the briefing schedule, we deny the plaintiffs motion to supplement the record, and we grant the defendants' motion to dismiss this appeal, in part, and deny the motion to dismiss, in part. We further affirm the judgments of the trial court, which: dismissed the plaintiffs suit with prejudice, denied plaintiffs motion for new trial, and denied the plaintiffs motion to recuse. All costs of this appeal are to be borne by Donald Britton.
MOTION TO SUSPEND BRIEFING SCHEDULE DENIED; MOTION TO SUPPLEMENT RECORD DENIED; MOTION TO DISMISS APPEAL GRANTED IN PART AND DENIED IN PART; JUDGMENTS AFFIRMED.
NOTES
[1] Mr. Britton is not an attorney, but he is representing himself in this litigation.
[2] Although Mr. Britton stated, during the appellate oral argument of this case on February 25, 2010, that he had not filed three appeals in the underlying trial court suit, the trial court record contains three separate motions for appeal, filed, respectively, on February 25, 2009, March 11, 2009, and May 18, 2009. The motion for appeal, filed on February 25, 2009, was granted by the trial court on February 27, 2009, and the record was lodged with this court on March 27, 2009. However, Mr. Britton filed no appellate brief, and the appeal was dismissed as abandoned by order of this court dated June 8, 2009. We note that the motion for appeal, filed February 25, 2009, did not specify which trial court judgment was being appealed and, at that time, the trial court had rendered two judgments: one on January 5, 2009 (granting the defendants' special motion to strike), which had not yet been signed by the court; and another judgment rendered on February 18, 2009 (denying the plaintiffs motion to recuse), which was signed on February 25, 2009. In light of Mr. Britton's February 25, 2010 statements to this court, it is apparent that his March 11, 2009 motion for appeal was intended as a revision of the February 25,2009 motion for appeal, so as to clearly indicate his intent to appeal the January 5, 2009 judgment.
[3] Since the defendants nevertheless timely filed an appellate brief in this appeal, we deem that portion of the defendants' motion seek suspension of briefing delays to be moot.
[4] Although a copy of this judgment does not appear in the record of this appeal, it appears in the record submitted to this court in connection with Mr. Britton's subsequently filed appeal, also taken from the same lower court proceeding. See Britton v. Hustmyre, XXXX-XXXX.
[5] We note that Mr. Britton will, nevertheless, receive review of the attorney fees issue via his subsequently filed appeal, Britton v. Hustmyre, XXXX-XXXX.
[6] These specifications were culled from Mr. Britton's petition and his opposition to the special motion to strike. However, we note that the latter was not technically a "pleading," though captioned as a "motion," as the substance of that filing did not meet the criteria as stated in LSC.C.P. arts. 852 and 961. See also Alcorn v. City of Baton Rouge ex rel. Baton Rouge Police Department, 2003-2682, p. 3 (La. 1/16/04), 863 So.2d 517, 519.
[7] Although the Hustmyre article does not appear in its entirety in the record of the instant appeal (XXXX-XXXX), due to an apparent irregularity in the copying of the record, the article does appear in the record submitted to this court in connection with Mr. Britton's subsequently filed appeal, also taken from the same lower court proceeding. See Britton v. Hustmyre, XXXX-XXXX
[8] The pleadings allowed in civil actions, whether in a principal or incidental action, shall be in writing and shall consist of petitions, exceptions, written motions, and answers." LSA-C.C.P. art. 852.
[9] Although a copy of the transcript of this hearing does not appear in the record of this appeal (XXXX-XXXX), it appears in the record submitted to this court in connection with Mr. Britton's subsequently filed appeal, also taken from the same lower court proceeding. See Britton v. Hustmyre, XXXX-XXXX.
[10] We note that the hearing on the motion to recuse, held before Judge Janice Clark on February 18, 2009, was not transcribed and the arguments before the trial court do not appear in the record on appeal. However, the signed judgment of the trial court states: "After considering the motion, the failure of the plaintiff Britton to offer any evidence at the hearing, the argument presented by Mr. Britton, the statements by counsel for the defendants, the record, and the law, ... the plaintiff Britton's motion to recuse is denied." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556121/ | 30 So. 3d 458 (2009)
FORT JAMES HOLDING COMPANY, INC., d/b/a Georgia Pacific
v.
Cheryl D. MORGAN.
2071201.
Court of Civil Appeals of Alabama.
August 28, 2009.
*459 William E. Pipkin, Jr., of Austill, Lewis & Pipkin, P.C., Mobile, for appellant.
William L. Utsey of Utsey & Utsey, Butler; and Robert Potter of Mann, Cowan & Potter, P.C., Birmingham, for appellee.
THOMAS, Judge.
Fort James Holding Company, Inc., d/b/a Georgia Pacific ("GP") appeals from a judgment determining that Cheryl D. Morgan is permanently and totally disabled as a result of an on-the-job accident that occurred on December 5, 2003.
Morgan was employed by GP, and she worked on the Number 3 Ultra Flow machine at GP's Pennington, Alabama, plant. Morgan regularly worked double shifts at GP, working 16 hours each day. Sometime in early November 2003, Morgan was lifting crates and felt a pain in her back similar to a pain in her back she had felt in 1999, when she was injured at GP while lifting a roll of wrap. Morgan did not report to GP that she hurt her back moving crates in early November 2003. In 1999, Morgan, on the advice of a friend, had sought chiropractic treatment, which resolved her back pain. Because the 1999 experience had been positive, Morgan again sought chiropractic treatment for the back pain she experienced in November 2003.
Morgan's first appointment with the chiropractor, Dr. Angela Armstrong, was on November 24, 2003. Morgan reported to Dr. Armstrong that she had hurt her back moving crates. She indicated on an intake form that the pain had lasted two weeks, that it was aggravated by moving or lifting, that the condition was not getting worse, and that the pain was not constant but "comes and goes." Dr. Armstrong's records indicate that Morgan further explained in a narrative that her back pain was like her 1999 back pain in that it began as a sharp pain in the left side of her lower back, but that it was different this time because the pain did not radiate into her left leg all the time. According to Dr. Armstrong's notes, Morgan reported that the pain radiated into her left leg only if she stood for a period. Morgan also told Dr. Armstrong that she was suffering from numbness in the balls of both of her feet; neither Morgan nor Dr. Armstrong related this symptom to Morgan's back injury because it had begun when Morgan started wearing steel-toed boots at work and only occurred while she was wearing those boots.
Dr. Armstrong performed some neurological tests that, she testified, ruled out the possibility that Morgan had a herniated or bulging disk. Dr. Armstrong also did a physical exam and took X-rays, which led her to diagnose Morgan with a muscle spasm. Based on her diagnosis, Dr. Armstrong performed an adjustment, massage, heat therapy, and an ultrasound on Morgan.
On December 3, 2003, Morgan returned to Dr. Armstrong. Morgan was still suffering back pain, and Dr. Armstrong diagnosed her with continuing muscle spasm. Dr. Armstrong performed the same treatments on Morgan that she had performed on November 24. Morgan likewise returned to Dr. Armstrong on December 5 with the same basic complaints, and Dr. Armstrong performed the same treatments.
*460 On December 5, 2003, Morgan reported to work at GP at 3:00 p.m. for her scheduled shift. While she was unjamming the Number 3 Ultra Flow machine, a Plexiglass door fell on Morgan, striking her across the lower back. Another employee, Gladys Vann, came to Morgan's assistance and lifted the door so that Morgan could get up. Morgan testified that she had "blacked out" for just a few seconds and that, when she came to, she had "a pain going all the way through her body on down into my leg and my feet." Morgan's supervisor, Ike Bonner, arrived shortly after the accident, and he escorted Morgan to the first-aid station, where she described the accident and her injury to GP's nurse, Mattie "Kitty" Fendley. Fendley's notes reflect that Morgan had a "red spot" on the lower left side of her back. According to the notes Fendley took, Morgan reported that she was unsure whether the pain she felt was a result of the door hitting her or the back strain she was having treated by Dr. Armstrong. Fendley testified that Morgan reported that she was not hurting that bad and that she had something at home she would use to treat herself. Fendley said that she reminded Morgan that if her back pain was related to the incident, she would need to see the company doctor.
Morgan next saw Dr. Armstrong on December 8, 2003, when she reported that she was hit by the door at work but that the hit "wasn't that hard." Dr. Armstrong's notes indicate that she noticed a bruise "adjacent to the L3/L4/L5 spinous processes on the left side." Regarding her back pain, Morgan reported to Dr. Armstrong that her back was "about the same" but that she still suffered from pain on the left side. Dr. Armstrong performed Morgan's regular treatment on December 8.
Morgan next saw Dr. Armstrong on December 10, 2003. On that date, Morgan reported that although her back was "a little better," she was having pain down her left side when she stood for 30 minutes or so. Morgan related the pain to her earlier 1999 back pain, noting that, although nearly identical, the pain in 1999 was worse when she was sitting, while the current pain was worse when she was standing. Dr. Armstrong concluded that, because the examination on December 10 revealed that Morgan's muscles were "so tight" on both sides of her lower back, a treatment known as intersegmental traction would be helpful to Morgan.
Morgan continued treatment with Dr. Armstrong until late December. Although she commented to Dr. Armstrong that her back pain seemed to be improving, Morgan continued to complain of pain radiating into her left hip, leg, and foot. Ultimately, Morgan told Dr. Armstrong that she did not think she was improving and that the pain in her left side was exacerbated by standing for only 10 to 15 minutes at a time.
Because her back pain had not resolved, Morgan sought treatment from the company's doctor, Dr. Terry French. Dr. French first saw Morgan on January 4, 2004. Dr. French's notes and deposition testimony reflect that Morgan had reported to him that she had pain in her lower back with radiation into her left leg with prolonged sitting or standing. Dr. French performed an examination of Morgan, which he reported to be "normal from a physical standpoint"; he said his examination revealed that Morgan had full range of motion but had diffuse tenderness of the paraspinal muscles, which was slightly worse on the left side. Dr. French said that the examination also revealed no neurological deficits. He prescribed an anti-inflammatory medication, a non-narcotic pain medication, and some muscle relaxers; he also sent Morgan for physical therapy.
*461 When Morgan continued to report to the first-aid station at work complaining of pain, Dr. French ordered that she undergo an MRI to rule out any more serious injury. The results of the MRI revealed that Morgan was suffering from pressure on her L4 nerve root on the left side from a bulging disk; Dr. French said that the MRI findings were compatible with the pain that Morgan described. Morgan reported no improvement in her pain at her January 27, 2004, appointment, and Dr. French gave her a steroid shot, prescribed a steroid dose pack, and continued to prescribe muscle relaxers. Although he indicated that Morgan should return in 10 days, she never returned to his office.
Dr. French received Dr. Armstrong's office notes from either Morgan, GP, or both. GP requested that Dr. French review the notes and determine whether, in his opinion, Morgan's disk injury predated the December 5, 2003, accident. He opined in a letter that Morgan's disk injury was present before the December 5 accident.
In early February 2004, Morgan received a document indicating that her claim seeking workers' compensation benefits for her back injury, which she claimed was related to her December 5, 2003, accident, had been denied. The document indicates that the claim was denied because "current complaints are not related to our injury of 12-5-03." The document was signed by Jo Ann Jenkins, an examiner with Sedgwick Claims Management Services, Inc. The document indicated that, in addition to being mailed to the Morgan, copies were sent to Dr. French, GP, and the State of Alabama.
Morgan continued to seek treatment for her back from her personal physician, Dr. Frank Dozier, who referred her to Dr. William S. Fleet, a neurologist. Morgan saw Dr. Fleet for the first time on March 15, 2004. In 2007, Morgan was treated by Dr. Robert White and Dr. Patricia Boltz.
As noted above, the trial court entered a judgment determining that Morgan was permanently and totally disabled as a result of the December 5, 2003, accident. GP appeals, raising several arguments. GP argues that the trial court's judgment fails to comply with Ala.Code 1975, § 25-5-88; that the trial court erred in determining that Morgan properly notified GP of her injury, which GP contends occurred in November 2003; that Morgan's action was filed outside the statutory limitations period because her injury occurred in November 2003 and she never filed an action based upon that injury; that Morgan waived her rights to compensation and indemnity benefits because she did not avail herself of the treatment offered by GP; that the trial court erred by admitting the May 2007 deposition testimony given by Dr. Fleet; and that the trial court's judgment is not supported by substantial evidence.
We will first address GP's claim that the trial court's judgment fails to comply with § 25-5-88, which requires a trial court to make findings of fact and conclusions of law in workers' compensation judgments. Alabama law requires only substantial compliance with § 25-5-88, and meager or omissive findings of facts or conclusions of law do not necessarily require a reversal of a workers' compensation judgment. See Ex parte Curry, 607 So. 2d 230, 232 (Ala.1992); Calvert v. Funderburg, 284 Ala. 311, 224 So. 2d 664 (1969) (construing the predecessor statute to § 25-5-88). However, a trial court must make findings responsive to the issues presented at trial. Equipment Sales Corp. v. Gwin, 4 So. 3d 1125, 1129-30 (Ala.Civ.App. 2008).
GP argues that the trial court's judgment fails to address the specific *462 question whether Morgan's use of unauthorized physicians impacted her right to receive compensation benefits or indemnity benefits. According to GP, the trial court's failure to order it to pay for Morgan's past medical treatment might indicate that the trial court determined that Morgan's decision to seek treatment through unauthorized physicians precluded GP's liability for the costs of that treatment. However, the trial court's specific finding that GP ceased providing medical care on February 3, 2004, indicates that Morgan might have been permitted to seek care from a physician of her own choosing. See Kimberly-Clark Corp. v. Golden, 486 So. 2d 435, 437 (Ala.Civ.App. 1986) (setting out justifications for failing to seek prior authorization of medical treatment from an employer, including "`where the employer has neglected or refused to provide the necessary medical care'" (quoting United States v. Bear Bros., Inc., 355 So. 2d 1133, 1138 n. 2 (Ala. Civ.App.1978))). Thus, GP argues, the trial court's failure to address whether Morgan is due any indemnity benefits violates § 25-5-88. Morgan's only response is that the trial court's judgment contains findings of facts and conclusions of law, including a detailed history of Morgan's medical treatment and comments about the trial court's observations of Morgan in the courtroom.
"`The purpose of Ala.Code 1975, § 25-5-88, is to "ensure sufficiently detailed findings so that the appellate court can determine whether the judgment is supported by the facts."' Farris v. St. Vincent's Hosp., 624 So. 2d 183, 185 (Ala. Civ.App.1993) (quoting Elbert Greeson Hosiery Mills, Inc. v. Ivey, 472 So. 2d 1049, 1052 (Ala.Civ.App.1985)). `[T]he trial court has a duty to make a finding on each issue presented and litigated before it. In instances where the trial court fails to make a finding responsive to the issue presented, the case must be reversed.' Thomas v. Gold Kist, Inc., 628 So. 2d 864, 867 (Ala.Civ.App.1993); see also Harbin v. United States Steel Corp., 356 So. 2d 179 (Ala.Civ.App.1978); and Dun & Bradstreet Corp. v. Jones, 678 So. 2d 181 (Ala.Civ.App.1996). In Harbin v. United States Steel Corp., this court reversed the trial court's judgment and remanded the case because the trial court had failed to address or to make findings regarding the issue of notice of injury to the employer, despite the issue being presented and litigated. In Harbin, this court stated:
"`In the present case the question of whether Harbin notified his employer of his injury was pleaded, contested and submitted to the trial court for its determination. Despite this fact there was no finding made on this issue in the court's original judgment. Nonetheless, Harbin maintains that the absence of a finding of notice of injury does not require reversal since a number of Alabama cases have held that when a finding of the trial court is merely meager or omissive, the reviewing court may examine the evidence in order to decide if the trial court's judgment can be sustained. E.g., West Point Mfg. Co. v. Bennett, 263 Ala. 571, 83 So. 2d 303 (1955); Alabama Textile Products Corp. v. Grantham, 263 Ala. 179, 82 So. 2d 204 (1955). However, such is not the rule when, as here, there was no finding made on the issue in question.'
"356 So.2d at 181-82."
Equipment Sales Corp., 4 So.3d at 1129-30 (emphasis added).
Although the trial court's judgment does contain detailed findings of fact regarding Morgan's medical treatment and the testimony of the various doctors and witnesses, the judgment fails to address whether GP is required to pay for past medical treatment Morgan obtained from *463 unauthorized physicians. One could read the judgment as indicating that the trial court intended that GP be responsible for that treatment based on certain findings by the trial court, but the judgment itself contains no reference to GP's duty to pay for that treatment and also indicates that GP's satisfaction of the amounts outlined in the judgment satisfies its obligation to Morgan, other than for future medical expenses or other benefits arising under Alabama's workers' compensation law. Because Morgan requested that GP be responsible for the medical expenses she had incurred and because GP argued that Morgan chose not to avail herself of medical care provided by GP, the trial court was presented squarely with the issue of which party was responsible for the medical expenses Morgan incurred as a result of the December 5, 2003, accident and her resulting injury. Accordingly, because the judgment fails to contain a finding of fact or a conclusion of law pertaining to that issue, we must reverse the judgment and remand the cause for the trial court to comply with § 25-5-88 and make specific findings of fact and conclusions of law regarding which party is responsible for Morgan's past medical expenses. Based on our resolution of this issue, we pretermit discussion of the other issues GP raises in this appeal.
REVERSED AND REMANDED WITH INSTRUCTIONS.
THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.
MOORE, J., recuses himself. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556081/ | RASH EENA JONES
v.
R & R STORES, INC. AND XYZ INSURANCE COMPANY
No. 2009 CA 1492.
Court of Appeals of Louisiana, First Circuit.
March 26, 2010.
Not Designated for Publication
JACKIE MONTAGUE-MYLES, Plaquemine, Louisiana, Counsel for Plaintiff/Appellant Rasheena Jones.
THOMAS M. RULI, Metairie, Louisiana, Counsel for Defendant/Appellee R & R Stores, Inc.
Before: DOWNING, GAIDRY and McCLENDON, JJ.
McCLENDON, J.
The plaintiff appeals a judgment in "favor of the defendant, in which the trial court found that the plaintiff failed to establish an intentional tort by the defendant and granted defendant's motion for summary judgment. We affirm.
At approximately 5:30 a.m. on January 12, 2008, the plaintiff, Rasheena Jones, was employed at an Express Stop convenience store owned by the defendant, R & R Stores, Inc. (R & R), when Renell Thomas entered the store and robbed, raped, and kidnapped her.[1] Thereafter, Ms. Jones received workers' compensation indemnity and medical benefits. She also filed a petition for damages against R & R, alleging an intentional act, strict liability, and negligence. In response to the tort action, R & R filed an exception raising the objection of no cause of action and a motion for summary judgment, in which it asserted that Ms. Jones's remedy against it, if any, was limited to that provided in the Louisiana Workers' Compensation Act. Specifically, R&R urged that Ms. Jones did not set forth any disputed facts giving rise to an intentional act by R & R, which would afford her an exception to the exclusive remedy provisions of the Workers' Compensation Act. Thereafter, R&R filed a supplemental and amending petition, alleging intentional acts or omissions by R & R, including the failure to maintain adequate security. Following a hearing, the trial court denied the exception raising the objection of no cause of action, but granted the motion for summary judgment and dismissed Ms. Jones's suit. She appealed. On appeal, Ms. Jones contends that the trial court erred in granting R & R's motion for summary judgment based on its finding that R & R's failure to provide adequate security measures did not amount to an intentional tort by her employer.
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Granda v. State Farm Mutual Insurance Company, 04-2012, p. 4 (La.App. 1 Cir. 2/10/06), 935 So.2d 698, 701. Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966B.
On a motion for summary judgment, the initial burden of proof is on the moving party. However, if the moving party will not bear the burden of proof at trial on the matter before the court, the moving party's burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the non-moving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial. Failure to do so shows that there is no genuine issue of material fact. LSA-C.C.P. art. 966C(2); Babin v. Winn-Dixie Louisiana, Inc., 00-0078, p. 4 (La. 6/30/00), 764 So.2d 37, 40.
Summary judgments are reviewed on appeal de novo. Granda, 04-2012 at p. 4, 935 So.2d at 701. Thus, this court uses the same criteria as the trial court in determining whether summary judgment is appropriate whether there is a genuine issue of material fact and whether mover is entitled to judgment as a matter of law. Jones v. Estate of Santiago, 03-1424, p. 5 (La. 4/14/04), 870 So.2d 1002, 1006. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is "material" for summary judgment purposes can only be seen in light of the substantive law applicable to the case. Dickerson v. Piccadilly Restaurants, Inc., 99-2633, pp. 3-4 (La.App. 1 Cir. 12/22/00), 785 So.2d 842, 844.
The exclusiveness of rights and remedies in the Louisiana Workers' Compensation Act is established in LSA-R.S. 23:1032, which provides, in pertinent part:
A. (1)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, ...
* * *
B. Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
Thus, LSA-R.S. 23:1032 makes workers' compensation an employee's exclusive remedy for a work-related injury, except for a suit based on an intentional act. An "intentional act" for purposes of exception to the exclusivity of Louisiana's workers' compensation remedy is defined as an act whereby the defendant desired to bring about the result that followed or believed that result was substantially certain to follow his act. Bazley v. Tortorich, 397 So.2d 475, 482 (La. 1981). Since the Bazley decision, Louisiana courts have continued to narrowly construe the intentional act exception according to the legislative intent. Reeves v. Structural Preservation Systems, 98-1795, p. 6 (La. 3/12/99), 731 So.2d 208, 211; Thomas v. Fina Oil and Chemical Company, 02-0338, p. 7 (La.App. 1 Cir. 2/14/03), 845 So.2d 498, 503.
"Substantially certain to follow" requires more than a reasonable probability that an injury will occur. "Certain" has been defined to mean "inevitable" or "incapable of failing." A high probability of someone getting hurt is not enough. The exception is designed for acts that are intentional, not for acts that are wanton or reckless or grossly negligent. Reeves, 98-1795 at pp. 9-10, 731 So.2d at 213; Thomas, 02-0338 at p. 7, 845 So.2d at 503. Further, believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers' compensation. Reeves, 98-1795 at p. 9, 731 So.2d at 212.
In this matter, Ms. Jones contends that R & R had knowledge to a substantial certainty of the risk of injury based on R & R's knowledge of local crime statistics; the vulnerability and danger of opening a store alone in a secluded area during early morning hours; R & R's failure to take basic security measures; and R & R's failure to properly train its employees on the use of the security system installed in the store. Thus, Ms. Jones argues, R&R was substantially certain that the risk of injury to Ms. Jones would occur. We must disagree.
In granting the motion for summary judgment, the trial court found the facts of this matter similar to those in Knight v. Cracker Barrel Stores, 597 So.2d 52 (La.App. 1 Cir), writ denied, 598 So.2d 377 (La. 1992). In Knight, a convenience store employee was sexually assaulted by a customer. She filed suit against her employer claiming that poor lighting and lack of security at the store were the cause of the damages she suffered. The first circuit concluded that the employer was entitled to judgment as a matter of law, stating that an employer's failure to furnish an employee with a safe place to work presents a dangerous situation which, at most, can be said to make an occurrence more probable than not; but such negligence falls short of making injury by a third person inevitable or substantially certain to occur. Knight, 597 So.2d at 54.
Similarly, in Adams v. Time Saver Stores, Inc., 615 So.2d 460 (La.App. 4 Cir.), writ denied, 617 So.2d 910 (La. 1993), an associate manager was abducted and sexually assaulted while working the late night work shift. She filed suit alleging that her employer committed an intentional tort based on a list of acts and omissions that preceded the crime. Specifically, she contended that before the assault occurred, there had been nine armed robberies within the past five years, incidents of shoplifting, simple robberies, and gang fights on the store's property. Furthermore, she asserted that, although once assigned to the store, security guards had been removed, and there was an armed robbery of the store only thirty-four days before the plaintiff was raped. Additionally, prior to the assault, she had alerted her employer that she did not want to work the particular shift that night because she was frightened. The court stated that although terms such as "reasonably foreseeable," "likely to occur" and "should have known" may have raised issues of negligence, or gross negligence, they did not amount to "intentional" as that term is used in the workers' compensation act. Adams, 615 So.2d at 461-62.[2]
In Bourgeois v. Jordan, 527 So.2d 603 (La.App. 3 Cir. 1988), the plaintiff was working alone late at night in the fast food store of his employer, when two people entered, announced it was a holdup, and shot the plaintiff in the face with a large caliber handgun. The plaintiff filed a damage suit and claimed that because of the defendant's choice of lighting (in and out of the store), electing to have a sole employee on duty, and knowing that at least one prior robbery had occurred at the store, that the defendant knew or should have known of the substantial certainty of an armed robbery occurring at the store and that by failing to take action to prevent such an armed robbery defendant committed an intentional tort against plaintiff. The court found that although the allegations of fact may have been sufficient to show negligence, the facts were insufficient to show an intentional tort. Bourgeois, 527 So.2d at 606.
Despite the horrific and tragic circumstances in the instant case, upon our de novo review of the facts and the record, and based on the jurisprudence and legislative purpose of the intentional act exception, we can only conclude that R & R carried its burden of establishing that there were no unresolved issues of material fact as to whether it was substantially certain that Ms. Jones's injuries would result from its actions. Nothing in the record can be interpreted as showing that either R & R intended to cause Ms. Jones harm or that R & R was substantially certain that Ms. Jones would be harmed while working in the convenience store. Thus, the burden shifted to Ms. Jones to come forward with evidence that her rape and kidnapping was substantially certain to occur. Ms. Jones did not produce any such evidence. Accordingly, R & R's actions or omissions do not rise to the level of an intentional tort, and summary judgment was appropriate.
For these reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Ms. Jones.
AFFIRMED.
NOTES
[1] Thomas was not an employee of R & R.
[2] See also Faust v. Greater Lakeside Corp., 98-2853 (La.App. 4 Cir. 9/12/01), 797 So.2d 748, writ denied. 01-3149 (La. 2/1/02), 808 So.2d 343, wherein similar allegations of failing to implement security measures to protect a business's employees, despite knowledge of the risk, established only negligence or gross negligence. The court found that the employer's conduct was egregious and fell woefully short of protecting the interests and welfare of its employees. Nonetheless, the court found that this was not enough to impute intent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556864/ | 30 So. 3d 1163 (2010)
Adonis Cole WEEKS
v.
SUNSTREAM, INC., et al.
No. 09-706.
Court of Appeal of Louisiana, Third Circuit.
February 10, 2010.
*1164 William J. Mitchell, Attorney at Law, Baton Rouge, LA, for Defendants-Appellees, SunStream, Inc. and The Northern Insurance Company of New York.
Robert L. Salim, Attorney at Law, Billy L. West, Jr., Attorney at Law, Natchitoches, LA, for Plaintiff-Appellant, Adonis Cole Weeks.
Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
J. DAVID PAINTER, Judge.
Plaintiff, Adonis Cole Weeks (Weeks), appeals the grant of summary judgment in favor of Defendants, SunStream, Inc. (SunStream) and The Northern Insurance Company of New York (Northern), dismissing his negligence claim against them. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Weeks was employed by Pilgrim's Pride Corporation (Pilgrim's) as a maintenance mechanic. He alleges that he was injured on July 29, 2005, in the course and scope of his employment, by an "arcing explosion" that occurred when he re-set a circuit breaker in the master control center of Pilgrim's chicken processing plant in Natchitoches, Louisiana. Weeks initially filed suit against only SunStream, a contractor who provides electrical services to Pilgrim's on an "as needed" basis. By first supplemental and amending petition, Northern, as insurer of SunStream, was added as a defendant. Weeks filed a second supplemental and amending petition adding Schneider Electric Engineering *1165 Services, LLC (Schneider), and Square D, the manufacturer of the breaker, as defendants. Schneider was dismissed on an exception of no cause of action. Pilgrim's filed a petition in intervention naming SunStream as the sole defendant-in-intervention. A second supplemental and amending petition in intervention was filed to add Northern, Schneider, and Square D as additional defendants-in-intervention. SunStream and Northern filed a motion for summary judgment alleging that Weeks had absolutely no evidence regarding any alleged negligence on the part of SunStream that was a possible cause-in-fact of the accident or any alleged breach of any duty that SunStream may have owed him. The trial court agreed, granted the motion for summary judgment, and dismissed Weeks' claims against SunStream and Northern. The intervention, as well as Weeks' principal demand against Square D, remains pending in the district court.
Weeks appeals the grant of summary judgment in favor of SunStream and Northern and contends that the trial court committed legal error in finding that SunStream did not have a duty to warn him of the risk of injury and/or unreasonable risk of harm. For the following reasons, we agree with Weeks and reverse the summary judgment.
DISCUSSION
We review this matter de novo. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So. 2d 1180. However, we must first address SunStream and Northern's contention that this appeal is not properly before us. Specifically, SunStream and Northern contend that this is a partial summary judgment under La.Code Civ.P. art. 1915(B) since it does not dispose of all of Week's claims and because they remain as defendants-in-intervention. As such, SunStream and Northern contend that since Weeks did not request that the judgment be designated as a final judgment and since the trial court did not designate it as a final judgment, it is not immediately appealable. Accordingly, SunStream and Northern ask that we dismiss this appeal. Weeks, on the other hand, asserts that no designation is necessary.
Louisiana Code of Civil Procedure Article 1915(A) provides that "[a] final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case." We find that the judgment at issue is a final judgment under La.Code Civ.P. art. 1915(A)(1) and (3), rather than a partial judgment under 1915(B), because it disposes of Weeks' entire claim against SunStream and Northern.[1] No designation is necessary under La.Code Civ.P. art. 1911, which provides that "[a]n appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated." This is not a situation where the summary judgment does not dispose of the entire case under La.Code Civ.P. art. 966(E). That SunStream and Northern remain in the suit as defendants-in-intervention is of no moment because the summary judgment dismissed all of Weeks' claims against them in the principal demand.
We now move to the merits of the grant of the motion for summary judgment. There was testimony that, prior to the subject accident, SunStream had attempted to repair the breaker. SunStream's *1166 owner was called to the plant the day before the subject accident because a circuit breaker kept tripping, causing the plant to shut down. SunStream's owner, Mr. Talmadge, testified that he contacted ETI, an engineering firm that is accredited to test this equipment, to come and test the breaker. He and the ETI representative went to Pilgrim's facility, and ETI conducted the testing, which was done by removing the rating plug and hooking the testing device up to it. The test revealed that the breaker was functioning at only a third of its capacity. Pilgrim's manager instructed SunStream to obtain a replacement breaker since the breaker could not be repaired on site. Weeks contends that the breaker was left in place while a new one was ordered and that he was instructed by his supervisors that he could by-pass the fail safe breaker by manually flipping the breaker back on. He alleges that SunStream failed to warn him of the risk of injury associated with the circuit breaker. Weeks' expert found that "the most probable cause of the accident was the incorrect reassembly of the breaker inside the motor control panel...." Representatives of SunStream, however, contend that the breaker was not taken apart. The trial court found that "nothing that SunStream did or failed to do that [sic] caused plaintiff's damages. Plaintiff would be unable to satisfy his evidentiary burden of proof at trial." The trial court also found that there was no genuine issue of material fact as to whether or not SunStream was negligent. We disagree. There is a genuine issue of material fact regarding SunStream's leaving the breaker in place while a new one was located. Weeks contends that SunStream left the circuit breaker in an unsafe condition and failed to warn him and others at Pilgrim's facility of the risk of injury associated with the circuit breaker.
Whether a defect presents an unreasonable risk of harm is a mixed question of fact and law that is peculiarly a question for the jury or trier of the facts. It entails innumerable considerations; and, because it requires a balancing of the risk and utility of the condition, it is not a simple rule of law which can be applied mechanically to the facts of any particular case. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So. 2d 362. It is "a matter wed to the facts" and must be determined in light of the facts and surrounding circumstances of each particular case. Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So. 2d 1002.
Waller v. Shelter Mut. Ins. Co., 41,215, p. 7 (La.App. 2 Cir. 6/28/06), 935 So. 2d 288, 292.
We conclude that the trial court erred in granting summary judgment. In opposing the motion for summary judgment, Weeks presented sufficient evidence, including evidence of failure to comply with OSHA rules and regulations and that there was no warning label on the breaker despite Square D's suggestion that an arc flash warning label be used, to create a genuine issue of material fact as to whether an unreasonable risk of harm was presented by leaving the circuit breaker, which was known to be malfunctioning, in place. Further, to reach its stated conclusions, the trial court had to weigh the credibility of the opposing experts. The law is well settled that the trial court cannot make credibility determinations or weigh conflicting evidence in making its decision whether to grant or deny a motion for summary judgment. DeMoss v. Pine Hills Golf and Country Club, Inc., 42,033 (La.App. 2d Cir. 4/4/07), 954 So. 2d 316; Sharp v. Parkview Care Center, Inc., 41,341, 41,342 (La.App. 2d Cir. 9/27/06), 940 So. 2d 724. Instead, the trial court must assume that all affiants are credible. Hutchinson v. Knights of Columbus Council 5747, 03-1533 (La.2/20/04), 866 So.2d *1167 228; Gladney v. Milam, 39,982 (La.App. 2d Cir. 9/21/05), 911 So. 2d 366. That did not happen in this case. For these reasons, we reverse the summary judgment rendered by the trial court.
DECREE
The trial court's grant of summary judgment in favor of Defendants-Appellees, SunStream, Inc. and The Northern Insurance Company of New York, is reversed. Costs of this appeal are assessed against Defendants-Appellees, SunStream, Inc. and The Northern Insurance Company of New York.
REVERSED.
GREMILLION, J., concurs and assigns written reasons.
GREMILLION, Judge, concurs.
I agree with the majority's conclusion that there exists a genuine issue of material fact as to whether an unreasonable risk of harm was presented by leaving the circuit breaker, which was known to be malfunctioning, in place. Thus, I concur with the majority's opinion. However, the majority overreached in attempting to articulate issues of fact, which, in fact, do not exist.
First, the majority states that "Sunstream had attempted to repair the breaker." The trial court expressly found that there "is no evidence of any repair attempts." Second, the majority cites the plaintiff's expert for the proposition that the accident was probably caused by "incorrect reassembly of the breaker." The trial court referenced the same language in its reasons for judgment. However, it went on to conclude that "[t]his opinion is not factually supported as it is clear that the breaker was never entered." Third, the majority suggests that there is a genuine issue as to whether Sunstream should have placed a "warning label" on the breaker. Because the defendant in question neither manufactured nor owned the breaker, it clearly had no duty to place such a warning label. There is no evidence that the defendant would have been permitted to place a warning label on the breaker of which it had no guard, custody, or control. Accordingly, I concur in the result.
NOTES
[1] See Riehm v. State Farm Mut. Auto. Inc. Co., 07-651 (La.App. 5 Cir. 1/22/08), 977 So. 2d 1045, wherein the court noted that judgment dismissing a party is final and appealable without the necessity for designation under La.Code Civ.P. art. 1915(B) even though other claims remain pending. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556875/ | 30 So. 3d 746 (2009)
Randall J. ANGLIN, et al.
v.
William H. ANGLIN and Louisiana Federal Land Bank Association, FLCA.
No. 2009 CA 0844.
Court of Appeal of Louisiana, First Circuit.
December 16, 2009.
*748 Phil E. Miley, Baton Rouge, LA, for Plaintiffs-Appellants, Randall J. Anglin, et al.
E.B. Dittmer, II, Gary L. Hanes, Talley, Anthony, Hughesh & Knight, L.L.C., Mandeville, LA, for Defendant-Appellee, William H. Anglin.
Before PARRO, McDONALD, and WELCH, JJ.
PARRO, J.
Randall J. Anglin, David G. Anglin, Beth Anglin Mora, Pamela Anglin Rowell, and Andrew Darryl Anglin (the appellants) appeal a judgment recognizing them as owners in indivision of certain immovable property and awarding them attorney fees and all court costs. They seek recognition of greater ownership interests in the property and additional attorney fees, as well as the release of their interests in the property from a mortgage encumbering the property. William H. Anglin answered the appeal, seeking recognition of his ownership of all of the property at issue, reversal or reduction of the attorney fee award, and reversal or reduction of the award of court costs. For the following reasons, we amend the judgment and affirm it as amended.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal is the third time this matter has been before this court. See Anglin v. Anglin, 03-0485 (La.App. 1st Cir.12/31/03), 2003 WL 23182907 (unpublished opinion) (Anglin I), and (Anglin v. Anglin, 05-1233 *749 (La.App. 1st Cir.6/9/06), 938 So. 2d 766 (Anglin II). The appellants filed suit against their brother, William H. Anglin, and the Louisiana Federal Land Bank Association, FLCA (the Bank), seeking a declaratory judgment annulling the donation of their interests in certain immovable property to William and declaring that a subsequent mortgage in favor of the Bank did not encumber their interests in the property. The first two appeals dealt with the claims against the Bank, ultimately affirming the dismissal of the Bank from the litigation after concluding that it had acted in good faith and reasonably relied on the public records in allowing William to borrow funds secured by the entirety of the property. The judgment concerning the appellants' remaining claims against William is the subject of this appeal.
The five appellants, along with Kenneth R. Anglin and defendant William H. Anglin, are the children of Hillard Anglin. The appellants' claims stem from their inheritance of an undivided interest in 277 acres of land located in Washington Parish, Louisiana. Their grandparents, Baty and Maggie A. Anglin, acquired this property during their marriage. Baty and Maggie had four children, one of whom was Hillard Anglin, the appellants' father. After Baty's death, Maggie was recognized as the owner of an undivided 50% interest in the property and the four children were recognized as co-owners in indivision of the remaining 50% interest. Thus, after Baty's death, Hillard Anglin owned an undivided 12.5% interest in the property. Accordingly, when Hillard die d, each of his seven children inherited an undivided 1.7875% interest in the property. Hillard predeceased his mother, Maggie. According to a September 7, 2000 judgment of possession in Maggie's succession, Hillard's seven children received an additional 12.5% undivided interest in her 50% undivided interest in the property, or 6.25%. Therefore, when this suit was filed in April 2002, each of Hillard's seven children would have owned an undivided 2.6786% interest in the property.[1]
However, in December 1998, William had arranged a meeting with his siblings, after which the appellants agreed to donate their interests to him so he could take the lead in obtaining ownership of the entire tract, either by purchase from the other co-owners or by partition. The acts of donation to William were executed in March 1999.[2] The appellants were under the impression that the acts of donation were not going to be recorded, but were being executed simply to help William acquire the rest of the undivided interests in the property, after which each of the seven siblings would receive an undivided 1/7 ownership interest in the property. However, William had the acts of donation notarized and recorded, thereby showing him on the public records as the sole owner of the undivided interests in the property inherited by him and his siblings. In 2000 and 2001, William acquired the rest of the undivided interests in the property from the other co-owners by purchase and by partition by licitation. After those acquisitions, in September 2001, William executed an act of collateral mortgage in favor of the Bank, encumbering the entire 277 acres.[3]
The appellants sued to have the acts of donation declared null, to have the court *750 convey to each of them an undivided 1/7 interest in the property, and to have the court declare that the Bank's mortgage did not encumber their undivided interests in the property. After this court recognized the validity of the Bank's mortgage in Anglin II, they continued to litigate their claims against William. On the date set for trial, the parties entered a number of documents and depositions into the record and agreed to submit the matter to the court on the basis of the record. After considering the evidence, the court stated in written reasons for judgment that the acts of donation were null, because they were not executed in the presence of the notary public who signed them. Therefore, the court concluded that the appellants still owned their undivided interests in the property, which was stated as 1.7857% each. The court also recognized that the mortgage still attached to the entire property, because the Bank had obtained the mortgage in good faith and in reliance on the public records. In a judgment signed December 8, 2008, the court recognized that each of the appellants owned an undivided 1.7857% interest in the 277 acres of land, awarded them $5000 in attorney fees, assessed all court costs to William, and dismissed William's claims for attorney fees and costs relating to his acquisition of the rest of the property.
DISCUSSION
Ownership of the Property
The appellants assign as error the court's failure to recognize that each of them is entitled to an undivided 1/7 interest in the property, in accord with their original agreement with William. We find no merit in this argument. Louisiana Civil Code article 1839 states, in pertinent part:
A transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath.
Assuming that there was an agreement among the siblings concerning the eventual transfer to each of them of an undivided 1/7 interest in the property, there is no evidence that this agreement was ever confected with the formalities required by Article 1839. Nor were the requirements for a valid oral transfer met. Therefore, any such agreement was ineffective as a transfer or promise to transfer the immovable property. See LSA-C.C. art. 2440; see also East Tangipahoa Dev. Co., LLC v. Bedico Junction, LLC, 08-1262 (La.App. 1st Cir.12/23/08), 5 So. 3d 238, 244, writ denied, 09-0166 (La.3/27/09), 5 So. 3d 146; Southern Casing of Louisiana, Inc. v. Houma Avionics, Inc., 00-1930, 00-1931 (La.App. 1st Cir.9/28/01), 809 So. 2d 1040, 1051. The trial court was legally correct in determining that the appellants were not entitled to more than their inherited interests in the property.[4]
However, we note that the trial court's judgment contains a mathematical error, in that the seven children inherited an *751 undivided 12.5% interest in the property from their father's succession, as well as an undivided 6.25% interest from their grandmother's succession. Therefore, the judgment should have stated that each of the appellants was recognized as the owner of an undivided 2.6786% interest in the property, as previously discussed. The judgment will be amended accordingly.
Attorney Fees/Fraud
The appellants also claim the trial court erred in making an unreasonably low award of attorney fees to them. In his answer to the appeal, William contends the award of attorney fees was legal error or, in the alternative, was too high.[5] Addressing first whether the award of attorney fees was legally appropriate, we note that attorney fees are not allowed under Louisiana law except where authorized by statute or contract. See Whiddon v. Livingston Parish Council, 04-1126 (La.App. 1st Cir.5/6/05), 915 So. 2d 863, 866. The trial court stated in written reasons for judgment that the acts of donation and the mortgage were procured by fraud and referred to LSA-C.C. art. 1958, which states that "[t]he party against whom rescission is granted because of fraud is liable for damages and attorney fees." See Osborne v. McKenzie, 43,658 (La.App. 2nd Cir.10/22/08), 998 So. 2d 137, 144-45, writ denied, 08-2555 (La.1/9/09), 998 So. 2d 726. William contends there was no fraud, and therefore, the award of attorney fees was legal error.
Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction. LSA-C.C. art. 1953. Fraud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence. LSA-C.C. art. 1957. Fraud cannot be predicated on mistake or negligence, no matter how gross. Fraudulent intent, which constitutes the intent to deceive, is a necessary element of fraud. Whitehead v. American Coachworks, Inc., 02-0027 (La.App. 1st Cir.12/20/02), 837 So. 2d 678, 682. The trial court's findings with respect to a claim of fraud are subject to the manifest error standard of review. Boudreaux v. Jeff, 03-1932 (La.App. 1st Cir.9/17/04), 884 So. 2d 665, 672.
The two-part test for the appellate review of a trial court's factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trier of fact; and 2) whether the record further establishes 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 trier of fact's finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart v. State, through Dep't of Transp. and Dev., 617 So. 2d 880, 882 (La.1993); Moss v. State, 07-1686 (La. App. 1st Cir.8/8/07), 993 So. 2d 687, 693, writ denied, 08-2166 (La.11/14/08), 996 So. 2d 1092.
The evidence reviewed by the trial court included the depositions of all of the appellants, William, and the attorney who originally represented all of the siblings, Rodney C. Cashe. According to the appellants, William represented to them that the acts of donation were not actually transferring their ownership interests to *752 him, but that he would simply be the nominal owner in order to unify the property, after which the ownership would be divided, such that each of the siblings would own an undivided 1/7 interest in the whole. The Bank's loan, secured by a mortgage on the property, would finance the acquisition of the rest of the property, and timber on the land would be sold to repay the loan. Mr. Cashe confirmed that his original understanding was the same as that of the appellants, namely, that the seven siblings had a collective goal to own the 277 acres in equal portions, and their actions and his were designed to facilitate that goal. To that end, the acts of donation were prepared and, although they were not signed in his presence, he notarized them.[6] After William had acquired the remaining undivided interests in the property in his name, Mr. Cashe realized that William intended to claim full ownership of the property and did not intend to divide ownership with his siblings. At this point, recognizing a conflict of interest, Mr. Cashe withdrew as counsel. Based on this evidence, we conclude there was a reasonable factual basis for the trial court to find that William intentionally misrepresented or suppressed the truth in order to obtain an unjust advantage over his siblings. The record as a whole does not show that this factual finding was clearly wrong. Therefore, having rescinded the acts of donation due, in part, to fraud in their execution, the trial court had a legal basis for the award of attorney fees to the appellants.
Our next consideration is whether the amount of attorney fees awarded was reasonable. Factors to be taken into consideration in determining the reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence of counsel; and (10) the court's own knowledge. See Rule 1.5(a) of the Rules of Professional Conduct; State, Dep't of Transp. and Dev. v. Williamson, 597 So. 2d 439, 442 (La. 1992); Mayfield v. Reed, 43,226 (La.App. 2nd Cir.4/30/08), 981 So. 2d 235, 241. The trial court has much discretion in fixing an award of attorney fees, and its award will not be modified on appeal absent a showing of an abuse of discretion. Regions Bank v. Automax USA, L.L.C., 02-1755 (La.App. 1st Cir.6/27/03), 858 So. 2d 593, 595, writ denied, 03-2131 (La.11/7/03), 857 So. 2d 503.
At the hearing during which the attorney fee award was discussed, counsel for appellants brought to the court's attention an affidavit he had filed, showing $15,000 in attorney fees 100 hours at $150/hour incurred in handling this case. There were no expenses shown on the affidavit. There was some discussion at the hearing concerning the fact that much of the time was involved in pursuing the appellants' claims against the Bank, including the two prior appeals, and the fact that the appellants did not get the results they sought in this litigation. Without specifically mentioning any of the above factors or explaining its decision, the court awarded $5,000 in attorney fees.
In order to determine whether the court abused its discretion in this award, we must examine the work done by the attorney for the appellants in light of the factors enumerated in the jurisprudence and *753 the rules of professional conduct. The appellants did not obtain all of the results they wanted, although they were recognized as the owners in indivision of the property they had inherited. The litigation did not involve any novel or difficult legal issues, but the record shows the lawsuit was pursued diligently by appellants' counsel. We do not think the fee should be discounted because of the time expended in the claim against the Bank concerning the mortgage; William encumbered the appellants' undivided interests in the property with that mortgage, and thus, necessitated those legal efforts on their behalf. Counsel for the appellants participated in written discovery, appeared at eight depositions, briefed and argued an exception and a motion in district court, attended pre-trial conferences, and briefed and argued the issues in three appeals to this court. We do not find the hourly fee excessive, and it appears all of the time entries are reasonable for the work described. Accordingly, we find the court abused its discretion in awarding only $5,000 in attorney fees. Recognizing that the appellants did not get all of the results they sought, we will amend the judgment to award $13,000 in attorney fees.
Partial Release of Mortgage
The appellants contend the court erred in failing to order William to have their undivided interests in the property released from the mortgage in favor of the Bank. After recognizing that the Bank's mortgage still attached to the entire property, the trial court stated, in written reasons:
The six siblings, however, have a claim against William for their portions of the mortgage since both the "donations" and mortgage were obtained by fraudulent means.
From the record, it appears that the controversy concerning this statement, along with the need to set the attorney fees, delayed the signing of the final judgment for almost a year after the written reasons were signed. Ultimately, the final judgment signed by the court did not include any language concerning the release of the Bank's mortgage affecting the appellants' undivided interests in the property.
We find no error in that decision. In Anglin II, this court recognized the validity of the Bank's mortgage over the entire property, and the appellants' claims against the Bank were dismissed. Therefore, the court could not require the Bank to grant a partial release of its mortgage, nor could it give the appellants or William the authority to do so. Simply put, the court could not order William to do something that would be impossible for him to accomplish. Even if the court had ordered William to pay damages to the appellants to compensate them for the fact that their property interests were encumbered by the mortgage, the mortgage itself would still remain in place.[7] Therefore, the court did not err in failing to order William to have the appellants' property interests released from the Bank's mortgage.
Assessment of Costs
William argues that the court erred in imposing all court costs on him, rather than assessing part or all of the costs against the appellants. As a general rule, the party cast in judgment should be assessed with court costs. See LSA-C.C.P. art. 1920. Article 1920 further provides that except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party as it may consider equitable. The trial court may even assess costs against a *754 party who prevails to some extent on the merits. Adams v. Rhodia, Inc., 07-0897 (La.App. 1st Cir.2/13/09), 5 So. 3d 288, 289. On appeal, the trial court's assessment of costs will not be disturbed in the absence of an abuse of discretion. Steadman v. Georgia-Pacific Corp., 95-1463 (La.App. 1st Cir.4/6/96), 672 So. 2d 420, 428, writ denied, 96-1494 (La.9/20/96), 679 So. 2d 440.
We recognize that the trial court could have required both sides to bear some portion of the court costs in this case, but we find no abuse of discretion in assessing William with all of the costs. William's actions made it necessary for the appellants to bring this lawsuit and incur the costs of litigating. Therefore, even though the appellants did not succeed in all of their requests, it was equitable and within the trial court's discretion to require William to pay the court costs.
CONCLUSION
Based on the foregoing, we amend the judgment of December 8, 2008, to recognize that Randall Anglin, David Anglin, Beth Anglin Mora, Pamela Anglin Rowell, and Andrew Darryl Anglin are each the owner of an undivided 2.6786% interest in the property. We further amend the judgment to award $13,000 in attorney fees to the appellants. In all other respects, the judgment is affirmed. Because that judgment sets out the legal description of the property at issue, a copy of the judgment is attached and made a part hereof.[8] Each party is to bear its own costs of this appeal.
AMENDED AND AFFIRMED AS AMENDED.
*755 ATTACHMENT
*756
*757
NOTES
[1] 12.5% + 6.25% = 18.75%, and 18.75% ÷ 7 = 2.6786%.
[2] Although not a party to this litigation, Kenneth Anglin did execute one of the acts of donation.
[3] As this court noted in Anglin II, neither Hillard's nor Maggie's successions had been opened when the acts of donation were executed. In Anglin II, this court announced its acceptance of the Second Circuit's analysis of LSA-C.C. arts. 935 and 938 in Anding v. Anding, 37,778 (La.App. 2nd Cir. 10/29/03), 859 So. 2d 901, in which the court concluded that a successor could exercise rights of ownership with respect to his interest in a particular thing, as well as in his entire interest in a succession. Based on that analysis, this court found that the Bank had reasonably relied on the public records in concluding that William could encumber 100% of the property. Anglin II, 938 So.2d at 773-74.
[4] William answered the appeal, claiming the court erred in failing to find him the owner of all of the property. However, he did not brief that issue. Therefore, we consider it abandoned. See Uniform Rules of Courts of Appeal, 2-12.4.
[5] William's answer to the appeal also seeks an award of attorney fees and costs for the partition suit in which he acquired a portion of the property. This issue was also not briefed, and is considered abandoned.
[6] In fact, two of the appellants did not actually sign the act of donation that purportedly bears their signatures.
[7] We note that the petition did not request such damages; therefore, the court could not have awarded them.
[8] See LSA-C.C.P. art. 1919. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2302801/ | 40 Cal. App. 4th 1699 (1995)
48 Cal. Rptr. 2d 368
TICOR TITLE INSURANCE COMPANY et al., Plaintiffs and Respondents,
v.
EMPLOYERS INSURANCE OF WAUSAU, Defendant and Appellant.
Docket No. A068090.
Court of Appeals of California, First District, Division Four.
December 15, 1995.
*1702 COUNSEL
Zelle & Larson, Steve D. Meier and Patricia St. Peter for Defendant and Appellant.
Pillsbury, Madison & Sutro, Walter R. Allan, Stephen Stublarec, John M. Grenfell, Warren H. Nelson, Jr., and Roger E. Booth for Plaintiffs and Respondents.
OPINION
ANDERSON, P.J.
I. INTRODUCTION AND BACKGROUND
This appeal involves yet another insurance squabble in the tangle of litigation stemming from the demise of Technical Equities Corporation (TEC), a diversified investment services company that sought bankruptcy court protection in February 1986. Appellant is Employers Insurance of Wausau (Wausau), provider of second layer excess general liability insurance to respondent Ticor Title Insurance Company and Ticor Title Insurance Company of California (Ticor).
The bankruptcy estate of TEC (Estate) sued Ticor for its alleged acts or omissions in preparing and recording title documents which obscured the illusory underpinnings of a TEC real estate option program and thereby aided TEC directors and officers in their scheme to loot and defraud the *1703 company. Certain investors in TEC also asserted claims against Ticor arising out of the same conduct.
Ticor tendered defense of the Estate's claims to Wausau in December 1990, appending the Estate's petition to "add on" Ticor as a defendant in its existing, coordinated actions. The next month Wausau denied coverage for Ticor's claims and the Estate filed its first amended complaint formally targeting Ticor as a defendant.
In September 1991 Ticor settled the Estate and investor claims for $7.5 million. Two months later Ticor turned around and sued the various insurers in the ladder of its primary and excess liability insurance program.[1] Ticor sought declaratory relief as well as damages for breach of contract and breach of the implied covenant of good faith and fair dealing. CNA and National Union settled with Ticor. Ticor's case against Wausau proceeded to trial and judgment, with a $4,192,339[2] verdict against Wausau, plus an additional $1,870,00 in attorney fees and litigation expenses pursuant to Brandt v. Superior Court (1985) 37 Cal. 3d 813 [210 Cal. Rptr. 211, 693 P.2d 796].
Wausau challenges the multimillion dollar judgment on all fronts. First, it urges that Ticor had no right, under the "bodily injury" clause of the policy, to indemnification for settlement of the investor claims because in the last analysis the investors' injuries flowed from financial losses, for which the policy afforded no coverage. Second, Wausau maintains it had no duty to defend the Estate's claims because (1) given that it was an excess carrier, its duty to defend did not kick in until the underlying CNA coverage was exhausted and (2) in any event there was no potential for coverage under the Wausau policy. We agree on all points and reverse the judgment in its entirety.
*1704 II. DISCUSSION
A. There Was No Coverage for Investor Claims Under the Bodily Injury Clause
The investors never filed suit against Ticor. However, Alan Ruby, attorney for the investors, appeared at the settlement conference between Ticor and the Estate and inserted the investor claims into the settlement negotiations. Ruby indicated that his clients intended to sue Ticor for economic damages in excess of $100 million as well as emotional distress damages. Ticor quickly settled these claims for $2.2 million.
At the trial against Wausau, Ruby explained the basis for seeking emotional distress damages: "The consequences of the collapse of Technical Equities took a financial toll on all of our clients. [¶] There was also a very heavy emotional toll taken on our clients.... [¶] Many of our clients were elderly people. Many of them were people who had lost money that was for their retirement and for their support in retirement or otherwise. [¶] And when that money suddenly vanished the emotional consequences were awful." And further: "They suffered [emotional distress] from losing their life savings."
(1) By requested (but denied) jury instruction as well as motions for nonsuit and directed verdict, Wausau argued that under authority of McLaughlin v. National Union Fire Ins. Co. (1994) 23 Cal. App. 4th 1132 [29 Cal. Rptr. 2d 559] and Chatton v. National Union Fire Ins. Co. (1992) 10 Cal. App. 4th 846 [13 Cal. Rptr. 2d 318], both decided under the coordinated TEC litigation proceedings,[3] there was no coverage under its "bodily injury" provisions for the investor claims because any "bodily injury" sustained by the investors resulted directly from their investment losses. The trial court disagreed and the cause was submitted to the jury with interrogatories querying (1) whether there was an occurrence resulting in bodily injury to the investor claimants and, if so (2) what amount, if any, of the settlement paid to the investors should be paid by Wausau.
The trial court erred. In Chatton we had occasion to examine whether National Union's CGL policy afforded coverage for emotional distress suffered by TEC investors when that distress arose from their investment losses caused by negligent misrepresentations of TEC officers and directors. *1705 Under that policy, coverage was forthcoming for "bodily injury" or "property damage" caused by an "occurrence."[4]
We first held that the phrase "bodily injury, sickness, or disease" is plain and unambiguous, limiting coverage to physical injury to the body and excluding nonphysical, emotional, or mental harm. (Chatton v. National Union Fire Ins. Co., supra, 10 Cal. App.4th at pp. 853-856.) Next, we explained that the investment loss suffered by the investors, upon which their emotional trauma was predicated, constituted an injury to intangible property and, hence, by definition such loss was not recoverable under the policy. (Id., at pp. 857-859.) Finally, we concluded that the negligent misrepresentations of the insured officers and directors were not "occurrences" within the meaning of the policy. We clarified that negligent misrepresentations, however, causing loss of economic interest, are purposeful rather than accidental acts for purposes of CGL coverage because they require an intent to reduce reliance and, thus, are relatives of fraud. (Id., at p. 861.)
McLaughlin took the above analysis a step further in light of the investors' contention that they suffered emotional and physical distress which in turn derived from investment loss negligently inflicted upon them by the insureds. Reiterating that damage for loss of investment is not cognizable under the property damage clause of the CGL policy, we further held: "[S]ince Plaintiffs' physical distress was induced by an uncovered economic loss it defies reason that bodily injury coverage would nevertheless independently obtain. `It would expand coverage of [CGL] policies far beyond any reasonable expectation of the parties to sweep within their potential coverage any alleged emotional or physical distress that might result from economic loss that is itself clearly outside the scope of the policy. [Citation.]' (Keating v. National Union Fire Ins. (9th Cir.1993) 995 F.2d 154, 156-157.)" (McLaughlin v. National Union Fire Ins. Co., supra, 23 Cal. App.4th at p. 1150.)
Very recently our Supreme Court followed suit and agreed that parties to a CGL policy could not reasonably expect that coverage would be expanded simply because a claim of emotional or physical distress is alleged as a result of an uncovered economic loss. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal. 4th 1, 23 [44 Cal. Rptr. 2d 370, 900 P.2d 619].)
*1706 McLaughlin controls here. For all practical purposes, save one, the relevant Wausau policy provisions are virtually the same as their National Union counterparts. The one difference is the Wausau definition of "bodily injury" which includes physical injury, etc., as well as "mental or emotional injury, sickness, disease, disability, anguish, or shock...." This difference does not in fact make any difference.
Ticor argues that the Wausau "bodily injury" coverage is independent of its "property damage" coverage and there is no basis for reading the limitations of the latter into the former, pointing to expert testimony of former California Insurance Commissioner Richard Roddis. Roddis testified that coverage under a CGL depends on "the nature of the damage, property damage versus some other sort of damage...." No one would argue with that statement. Then, in response to a question whether one could recover economic loss under the policy, he used the illustration of an automobile accident to explain that if an injured pedestrian becomes permanently disabled from the accident, the policy would cover economic loss in the nature of lost career earnings because it results from the bodily injury.
This illustration is the flip side of our situation. Under the former Insurance Commissioner's example, you start with a primary injury that is covered under the policy bodily injury from an accident. Economic loss stemming from that injury is covered. But, if you start with an uncovered economic loss in the form of dissipated investments, McLaughlin and Keating teach that you cannot then tag on emotional or physical distress induced by that uncovered loss. Thus, even though a CGL policy such as Wausau's provides coverage for emotional harm caused by an occurrence, if that harm is the by-product of an uncovered financial loss there is no coverage, period.
As a matter of law there is no basis to support Ticor's claim for indemnification of the settlement paid to the investors and, therefore, we reverse the judgment awarding $2 million on that claim.
B. Wausau Had No Duty to Defend the Estate's Claims
After hearing all the evidence the court ruled that Wausau "had and breached" a duty to defend the Estate claims brought against Ticor, and so instructed the jury that "this is a legal ruling and is binding on you." Wausau objected and comes now to attack the propriety of that instruction. The instruction should never have been delivered because Wausau had no duty to defend.
(1) Wausau's Duty Was Not Triggered Because CNA Refused to Defend
The insuring agreement of the Wausau policy states in part: "With respect to any claim or suit seeking damages by reason of an occurrence to which *1707 this policy applies or would apply except for the amount of the retained limit, and for which no defense coverage is provided by underlying insurance ..., the company will defend any such suit against the insured alleging such damages and seeking recovery on account thereof.... [¶] The company will pay, in addition to the applicable limit of liability, the following defense expenses: ...."[5] (Italics in original, italics added.)
(2a) Wausau first asserts that if there was any duty to defend the Estate's lawsuit, that obligation resided with CNA, Ticor's primary and underlying insurer. In this case, CNA refused to provide a defense and, thus, Ticor settled the Estate lawsuit without any resources forthcoming from its primary insurer. It was not until Ticor sued all of its insurers that CNA settled, allocating a portion of the settlement to defense costs incurred in the underlying action. Under these circumstances, Wausau maintains its duty to defend never came into play. We agree.
As a general rule, under California law the primary insurer alone owes a duty to defend, with the corresponding right to control the defense. In the absence of contract language to the contrary, the excess carrier has no right or duty to participate in the defense until the primary policy limits are exhausted. (Signal Companies, Inc. v. Harbor Ins. co. (1980) 27 Cal. 3d 359, 365, 370-371 [165 Cal. Rptr. 799, 612 P.2d 889]; Diamond Heights Homeowners Assn. v. National American Ins. Co. (1991) 227 Cal. App. 3d 563, 577 [277 Cal. Rptr. 906].) In any given case, of course, we look to the specific language of the excess policy to ascertain the existence of a duty to defend, and whether the excess insurer must "drop down" to assume the obligations of a primary insurer under circumstances of insolvency or refusal to defend.
(3) Our rules governing interpretation of contracts, including insurance policies, teach us that the overriding goal of interpretation is to give effect to the parties' mutual intentions as of the time of contracting. (Civ. Code,[6] § 1636.) Where contract language is clear and explicit and does not lead to absurd results, we ascertain intent from the written terms and go no further. (§§ 1638, 1639; Helfand v. National Union Fire Ins. Co. (1992) 10 Cal. App. 4th 869, 879 [13 Cal. Rptr. 2d 295].) We understand the words of a contract according to their ordinary and popular meaning unless the parties use them in a technical sense or "a special meaning is given to them by *1708 usage...." (§ 1644.) However, where the terms of a promise are ambiguous or uncertain we interpret the promise "in the sense in which the promisor believed, at the time of making it, that the promisee understood it." (§ 1649.) "This rule, as applied to a promise of coverage in an insurance policy, protects not the subjective beliefs of the insurer but, rather, `the objectively reasonable expectations of the insured.'" (Bank of the West v. Superior Court (1992) 2 Cal. 4th 1254, 1265 [10 Cal. Rptr. 2d 538, 833 P.2d 545].) If use of this rule does not eliminate the uncertainty, we construe the applicable language against the insurer, the drafter who created the uncertainty. (Ibid.; § 1654.)
California case law has consistently protected the limited and shielded position of the excess carrier when the obligations of the excess carrier are set in clear phrases. For example, Division Three of this court recently concluded that language incorporated into the excess policy stating that the underlying policy "must be exhausted solely by payment of losses" was clear and unambiguous and precluded an obligation of the excess carrier to "drop down" to provide coverage upon the insolvency of the primary insurer. (Wells Fargo Bank v. California Ins. Guarantee Assn. (1995) 38 Cal. App. 4th 936, 939, 944-946 [45 Cal. Rptr. 2d 537].)
We have uncovered no California cases dealing with the issue of whether the excess insurer has a duty to defend when the primary insurer refuses and the amount of the claim approaches or exceeds the primary limits. At least one California treatise has commented on this situation, pointing out that although the matter "has not yet been clearly decided" in this state, "it appears likely that no such duty exists until those limits have been exhausted." (2 Cal. Liability Insurance Practice (Cont.Ed.Bar 1995) § 17.27, pp. 17-24.)[7]
(2b) We see no reason not to treat refusal to defend cases like insolvency "drop down cases" and, thus, we proceed by examining the insuring *1709 language to ascertain if it clearly and unambiguously precludes dropping down in this situation. We conclude it does.
Under the Wausau policy, the duty to defend arises when there is a claim for damages for an occurrence under the policy and "no defense coverage is provided by underlying insurance." Ticor claims the defense clause is "at best" ambiguous and must be interpreted to mean that because CNA did not "act" to defend Ticor in the underlying action, there was no underlying defense coverage. Not so.
Webster's Ninth Collegiate Dictionary (1984) (Webster's) defines "coverage" this way: "1: the act or fact of covering 2: something that covers: as a: inclusion within the scope of an insurance policy or protective plan: INSURANCE." (Id., at p. 300.)
Ticor quotes the first, but not the second definition. Obviously, when the contract in question is an insurance policy and the term in question is "defense coverage" we have a more "special meaning" pertaining to insurance usage, and that "special meaning" must be followed. (§ 1644.) In the context of an insurance policy, coverage means "inclusion within the scope of an insurance policy," not "the act or fact of covering." Thus "coverage" has nothing to do with how, in reality, the insurer acts with respect to its insurance obligations. (See Wells Fargo Bank v. California Ins. Guarantee Assn., supra, 38 Cal. App.4th at pp. 948-949 [applying similar reasoning to the terms "covered" and "not covered" in an excess policy].) Moreover, Wausau's commitment to provide a defense was a commitment to pay "defense expenses," defined to exclude any defense-related expenses "payable under underlying insurance." Again, "payable" means "that may, can, or must be paid." (Webster's, supra, at p. 864.) Thus, so long as defense obligations are "payable" (not actually paid) by CNA there is no duty to defend under the Wausau policy.
We therefore agree with Wausau that if there was a duty to defend at all, that duty was CNA's until its limits of liability were spent. For purposes of the Estate's claims, the substantive coverage afforded by the CNA policy and the Wausau policy was identical and, thus, because CNA never came forward, Wausau's obligation was never triggered.
Ticor counters that Wausau's conduct in handling Ticor's claim was "inconsistent" with the interpretation of the defense clause it now advances. It urges that because Wausau did not inquire into the particular terms of the CNA policies, and because Wausau's response to Ticor's tender raised other coverage issues, the insurer cannot now rely on its defense clause and *1710 position as excess carrier to defeat the duty to defend. First, what is clear is that Wausau has consistently denied that it had a duty to defend the Estate claims. What it did or did not know about the particulars of the CNA policies is irrelevant. Either CNA had a duty to defend or it did not, and nothing Wausau said or did would change that fact. Moreover, our Supreme Court has just pronounced that an insurer's denial of coverage on one ground does not, absent clear and convincing evidence suggesting otherwise, impliedly waive grounds not stated in the denial. (Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p. 31.)
(2) There Was No Duty to Defend Under the Property Damage Clause
(4) Finally, Wausau argues that, even if we were to ignore its status as excess carrier and treat it like a primary provider, there was no duty to defend Ticor against the Estate's claims because there was no potential for coverage under the policy. Ticor contends to the contrary that the Estate's complaint raised the potential for coverage under Wausau's "property damage" clause, which includes coverage for loss of use of tangible personal property caused by an occurrence.[8] Ticor points to various allegations in the complaint to the effect that Ticor, acting either intentionally or negligently, helped the officers and directors of TEC loot and defraud the company of its assets by converting, misappropriating and diverting corporate assets. Corporate assets included funds and cash as well as real property and subsidiary manufacturing companies that produced rubber and metal products.
The defense obligation "is established at the outset of the litigation and is fixed by facts which the insurer garners from the complaint and other sources which give rise to a potential of liability under the policy. [Citations.] However, while the duty to defend is broad, where there is no potential for recovery, there is no duty to defend." (McLaughlin v. National Union Fire Ins. Co., supra, 23 Cal. App.4th at pp. 1148-1149.)
We agree with Wausau that there was no potential for recovery under the property damage provisions and, thus, it properly turned down Ticor's tender.
Turning to the complaint, we first note that the numerous allegations of Ticor's intentional misconduct would not fall within the scope of coverage because the acts in question would not qualify as an "occurrence." The one *1711 negligence cause of action alleges that Ticor breached its duty of care to TEC "by not reasonably and prudently performing trustee, escrow, title and agency services, and particularly by failing to inform TEC's attorneys or auditors about the existence of the deeds of reconveyance or about the unusual and suspicious nature of the facts of the transaction, as Ticor knew them. Ticor failed to act reasonably as trustee, and escrow agent, failed to exercise ordinary care in the performance of its duties and responsibilities, and failed to discharge those duties and responsibilities in accordance with the standards of the industry." (Italics added.)
These general allegations of negligence are not dispositive of whether the complaint potentially alleged an occurrence. The complaint contains a section entitled "ACTS AND OMISSIONS OF TICOR" which is incorporated into each cause of action against Ticor, including the negligence cause, and which recites in detail the specific conduct of Ticor which enabled the TEC officers and directors to cover up a fraudulent real estate option program. In particular, Ticor was trustee under three second deeds of trust in favor of TEC that were collateral to secure an obligation on the part of outside entities to refund $25.8 million to TEC in the event certain real estate options were not exercised. Ticor also executed and notarized three deeds of reconveyance covering the same property, recorded one, and arranged for a cooperating title company to record the other two. The reconveyances were recorded within one to six days following the recording of the deeds of trust. The underlying deeds of trust were of substantial interest to TEC's auditors and lawyers and the reconveyances, following practically on their heels, rendered them illusory as collateral security for the option program. Ticor also prepared abstracts of title with respect to the three pieces of property that showed title "as of" more than a month earlier, such that the reconveyances were not depicted. Ticor did not disclose these unusual title circumstances to the TEC auditors and attorneys. Ultimately, in January 1986, the TEC board of directors learned of the illusory nature of the option program and fired its president, Harry Stern. The complaint alleged that, had Ticor in June or August of 1985 promptly disclosed what it knew, Stern would have been fired in June, July or August and the "millions of dollars that the Stern Group diverted and looted in the interim, as well as other millions of dollars that the Stern Group caused TEC to waste and misspend in the interim" would have been saved.
The crux of these allegations is that Ticor had, and breached, a duty to promptly disclose material information to TEC's attorneys and auditors namely, the existence and timing of the reconveyances and the unusual state of title depicted in the abstract. This breach in turn deferred the firing of *1712 Stern by five to seven months, which enabled millions of dollars to be looted, wasted and misspent in the interim. These are not allegations of an accidental event resulting in loss of use of tangible property.
The problem was not, as Ticor attempts to claim, that it somehow performed sloppy title or escrow work. The problem, clearly set out in the complaint, is that the insureds did not tell TEC's auditors and attorneys what they knew about the unusual and suspicious events surrounding the properties in question, or the current status of title thereto. Undressed, the allegations against Ticor state an imperative of disclosure which could only exist when the insureds had knowledge that others i.e., the TEC auditors and attorneys and ultimately the TEC board of directors were relying on the incomplete state of facts that they put forth. The ingredients of knowledge and reliance cast Ticor's actions and inactions in a nonaccidental mode. (See Dykstra v. Foremost Ins. Co. (1993) 14 Cal. App. 4th 361, 368 [17 Cal. Rptr. 2d 543]; Chatton v. National Union Fire Ins. Co., supra, 10 Cal. App.4th at pp. 861-862; McLaughlin v. National Union Fire Ins. Co., supra, 23 Cal. App.4th at p. 1149.) The complaint did not allege an occurrence giving rise to a duty to defend.
Even if, by some leap of imagination, we were to agree that professional negligence in performing trustee, escrow and title services was the conduct that harmed the Estate, and that such conduct amounted to an "occurrence" under the Wausau policy, we still would proclaim there was no coverage and no duty to defend because the losses alleged by the Estate were not covered losses. To reiterate, Ticor's alleged misdeeds purportedly deferred the firing of Stern, thereby contributing to the economic collapse and eventual bankruptcy of TEC because in the interim, Stern and his cohorts diverted, looted, wasted and misspent millions of dollars.
The focus of coverage for property damage, including loss of use of tangible property, is the property itself. What the insurer agrees to pay on the insured's behalf, subject to liability limits, etc., is the amount of damages which the insured becomes obligated to pay because of damage to, or loss of use of, tangible property. Ticor contends it was entitled to a defense because the complaint alleged diversion and misappropriation of corporate assets which conceivably could have caused loss of use of some tangible corporate property. However, nothing in the complaint remotely suggests that the Estate was seeking damages for loss of use of tangible corporate property. The loss which the Estate suffered at Ticor's hands was an economic loss the plummet in TEC's value in the pernicious hands of Stern and company. As the complaint alleged, on June 28, 1985, the independent certified public accountant for TEC issued an unqualified opinion regarding *1713 TEC's financial statements. Less than eight months later the corporation announced that these financial statements should not be relied on the bubble was burst in the "illusion of prosperity manufactured by the Stern group." Such a loss falls outside the scope of CGL property damage coverage. (Chatton v. National Union Fire Ins. Co., supra, 10 Cal. App.4th at pp. 857-858; McLaughlin v. National Union Fire Ins. Co., supra, 23 Cal. App.4th at p. 1150; Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at pp. 17-18.)
(3) There Was No Duty to Defend Under the "Advertising Injury" Clause
(5) Finally, we note that the Estate also lodged allegations of unfair competition against Ticor. The Wausau policy provided coverage for "advertising injury" which included injury resulting from "unfair competition" on the part of the insured. Our Supreme Court has ruled that the term "unfair competition" in the standard CGL advertising injury clause or endorsement does not embrace conduct prohibited by unfair business practice statutes. Rather, it refers only to the common law tort of unfair competition, which requires a showing of competitive injury. (Bank of the West v. Superior Court, supra, 2 Cal.4th at pp. 1263-1264.) The Estate's complaint does not hint of a claim of competitive injury; indeed Ticor has never contended that TEC and Ticor were competitors. (6) (See fn. 9.) Thus, the Wausau advertising injury provisions could not sustain the court's instruction that Wausau had, and breached, a duty to defend.[9]
C. The Judgment on the Breach of Covenant Cause Must Be Reversed
The jury found that Wausau acted unreasonably or in bad faith in denying Ticor a defense but it did not find by clear and convincing evidence that Wausau had acted with malice, oppression or fraud. We have concluded there was no coverage under the Wausau policy for the Estate's claims and, thus, Wausau had no duty to defend Ticor against that lawsuit. The court's erroneous instruction to the contrary that Wausau had and breached that duty for all practical purposes sealed a bad faith finding. The judgment on that *1714 finding, including the judgment for $1,870,000 in Brandt[10] fees, must be reversed. There being no duty, as a matter of law there could be no breach of the covenant for failure to defend or any ancillary duty such as the duty to investigate. (See McLaughlin v. National Union Fire Ins. Co., supra, 23 Cal. App.4th at pp. 1159-1162.)
III. DISPOSITION
We reverse the judgment in its entirety and direct entry of judgment in favor of Wausau on all causes. Ticor to pay costs on appeal.
Reardon, J., and Hanlon, J., concurred.
Respondents' petition for review by the Supreme Court was denied April 11, 1996. George, J., was of the opinion that the petition should be granted.
NOTES
[1] Transportation Insurance Company, a CNA company, provided general liability insurance for the period April 1, 1985, to April 1, 1986; Continental Casualty Company, another CNA entity, provided the first layer of excess coverage for the same period. (Collectively, we refer to these companies as CNA.) Wausau provided the second layer of excess coverage under an umbrella policy with liability limits up to $5 million in excess of the $1 million combined policy limits of the CNA policies. National Union Fire Insurance Company (National Union) was the third layer carrier.
[2] Of that verdict, the jury awarded $2,192,339 as reasonable defense costs incurred by Ticor in defending the Estate's lawsuit and $2 million to indemnify Ticor for its settlement of the investor claims upon a finding that there was "an occurrence resulting in bodily injury" to the investor claimants. Although the jury found that Wasau acted "unreasonably or in bad faith in connection with Ticor's claim," it did not further find that the insurer acted with malice, oppression, or fraud. Finally, the jury declined to find that "there was an occurrence [under the Wausau policy] resulting in property damage to the Estate" and returned a verdict of zero on that claim.
[3] Both cases addressed coverage and defense issues pertaining to the comprehensive general liability (CGL) policy which National Union issued to TEC during the time frame of the TEC financial collapse.
[4] The policy defined bodily injury as "`sickness or disease sustained by any person which occurs during the policy period.'" (Chatton v. National Union Fire Ins. Co., supra, 10 Cal. App.4th at p. 852.) "Property damage" under the policy referred to physical injury to, or destruction or loss of use of, tangible property. Finally, the term "occurrence" was defined as "`an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.'" (Ibid.)
[5] The policy defines "defense expenses" as "all reasonable expenses (other than the amount of any judgment or settlement) incurred by the insured or the company as provided in Insuring Agreement II of this policy with respect to the investigation, defense or settlement of claims or suits, except.... (b) any such expenses payable under underlying insurance. ..." (Italics in original, italics added.)
[6] All further statutory references are to the Civil Code.
[7] Ticor points to two general treatises which state that the excess carrier does have a duty to defend if the primary insurer denies coverage and a defense, but these treatises cite only out-of-state law to support their proposition. (See 7C Appelman, Insurance Law and Practices (rev. ed. 1979) § 4682, p. 33; id. (1995 pocket supp.) § 4682, p. 8; 14 Couch on Insurance (rev. 2d ed. 1982) § 51:36, pp. 446-447.)
For example, in Hocker v. New Hampshire Ins. Co. (10th Cir.1991) 922 F.2d 1476, the circuit court held that under Wyoming law and the terms of the excess policy, the excess insurer's defense obligations were activated even though the primary insurer wrongfully refused to defend. The excess policy language concerning occurrences "not covered, as warranted" by the underlying policy spoke to the possibility that the primary insurer would wrongfully deny coverage for an occurrence that it had warranted would be covered; in that case, the excess insurer would have to "drop down" and provide a defense. (Id., at pp. 1481-1482.)
[8] The Wausau policy defines "property damage" as "(1) physical injury to or destruction of tangible property which occurs during the policy period including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed...."
[9] That the Supreme Court had not rendered its decision in Bank of the West at the time Wausau denied Ticor a defense is irrelevant. Case law applies retroactively to all cases still open on direct review and to all events, regardless of whether such events predate or postdate announcement of the rule. (Waller v. Truck Ins. Exchange, Ins., supra, 11 Cal.4th at p. 24.) Therefore, if the policy terms provide no potential for coverage, the insurer acts properly in denying a defense even if that duty is later evaluated under an appellate decision that did not exist at the time of the tender. (Id., at p. 26.) Moreover, since the duty to defend depends on whether there is potential liability based on facts pled in the complaint or known to the insurer, there is no duty where the only potential for liability turns on resolution of a legal question. (McLaughlin v. National Union Fire Ins. Co., supra, 23 Cal. App.4th at p. 1151.)
[10] Under Brandt v. Superior Court, supra, 37 Cal. 3d 813, 817, the insured can recover as an element of damages stemming from the insurer's tortious breach of the covenant of good faith and fair dealing attorney fees reasonably incurred to compel payment of policy benefits. Backed by the finding that Wausau breached the implied covenant, Ticor moved for, and received, Brandt damages in the amount of $1,870,000. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556084/ | 30 So.3d 508 (2010)
SAUVE
v.
STATE.
No. 4D09-1437.
District Court of Appeal of Florida, Fourth District.
March 10, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556099/ | 66 F.Supp. 140 (1946)
HADLEY
v.
UNITED STATES.
No. 46831.
Court of Claims.
June 3, 1946.
*141 William Robert Hadley, in pro. per.
Irvin M. Gottlieb, of Washington, D. C., and John F. Sonnett, Asst. Atty. Gen., for defendant.
Before WHALEY, Chief Justice, and JONES, LITTLETON, WHITAKER, and MADDEN, Judges.
WHITAKER, Judge.
Plaintiff sues for damages of $250,000 for false imprisonment. This is his second suit on the same cause of action. His first one was dismissed on demurrer for failure to allege a cause of action. This one must be dismissed for the same reason.
Plaintiff says that the Constitution provides that no person shall be deprived of liberty without just compensation. His memory is inaccurate. The extent of the protection afforded by the Constitution is that a person shall not be deprived of his liberty "without due process of law," Amend. 5, but the Constitution does not make the Government pecuniarily liable for doing so. The extent of its pecuniary liability is set forth in the Act of May 24, 1938, c. 266, 52 Stat. 438, 18 U.S.C.A. § 729 et seq.
It seems plain that plaintiff does not and cannot bring himself within the terms of that Act. It renders the United States liable to the extent of $5,000 if on new trial, rehearing, or appeal, or as result of a pardon a person shall have been proven not to have been guilty of a crime for which he was convicted, provided (1) it shall appear he did not commit any of the acts with which he was charged; and (2) that his conduct did not constitute a crime against the United States or against the sovereignty within which the acts were committed; and (3) that he had not negligently or wantonly contributed to bring about his arrest or conviction.
Not only must these facts appear, but they must appear in a certain way, that is, by a certificate of a court or a pardon containing a recital of these facts. The Act says that only such certificate or such a pardon, or certified copy thereof, is admissible to prove innocence. No such certificate nor such a pardon has been issued, as plaintiff's petition shows.
He relies upon the order of the court in the habeas corpus proceedings; but, even if such an order would be sufficient in any event, the recitals of this one are not a sufficient compliance with the Act. It recites that the defendant's attorney admitted in writing that the indictment under which plaintiff was sentenced "failed to charge an offense against the United States"; but it does not recite, as the Act requires, that plaintiff did not commit any of the acts with which he was charged and *142 that his conduct did not constitute a crime or offense against the laws of the State of Texas, within which the acts are alleged to have been committed. It is mandatory that the "certificate of the court" should contain these recitals. The Act says that it is the only evidence admissible to prove these things, and proof of them is necessary to render the defendant liable. Cf. Prisament v. United States, 92 Ct.Cl. 434; Viles v. United States, 95 Ct.Cl. 591, certiorari denied, 317 U.S. 629, 63 S.Ct. 45, 87 L.Ed. 508.
Plaintiff, therefore, does not and cannot bring himself within the terms of the Act. We do not decide whether or not an order in habeas corpus proceedings which contains the necessary recitals would be a sufficient compliance with the Act.
Defendant's demurrer is sustained and plaintiff's petition will be dismissed. It is so ordered.
JONES and LITTLETON, Judges and WHALEY, Chief Justice, concur.
MADDEN, Judge, took no part in the decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556563/ | 798 F.Supp. 755 (1992)
In re KOREAN AIR LINES DISASTER OF SEPTEMBER 1, 1983.
Jeung Em YUN, as Personal Representative and Administratrix of the Estate of Ei Sik Yun, deceased, Plaintiff,
v.
KOREAN AIR LINES, the Boeing Company, Litton Industries, Inc., and the United States, Defendants.
Mo Hsiang Lai TSAO, individually, and as Personal Representative and Administratrix of the Estate of Yuen Che Tsao, deceased, and as guardian and representative of decedent's minor children, Hoi-Mei Tsao and Hoi-Shan Tsao, deceased, Plaintiff,
v.
KOREAN AIR LINES, the Boeing Company, Litton Industries, Inc., and the United States, Defendants.
Civ. A. Nos. 83-CV-4492 (TCP), 84-CV-2371 (TCP).
United States District Court, E.D. New York.
June 24, 1992.
*756 Milton Sincoff, Kreindler & Kreindler, New York City, for plaintiff.
George Tompkins, Condon & Forsyth, New York City, for defendants.
MEMORANDUM AND ORDER
PLATT, Chief Judge.
The two above-captioned cases were consolidated with others by the Judicial Panel for Multi-District Litigation before Chief Judge Aubrey E. Robinson, Jr. of the United States District Court for the District of Columbia for a consolidated trial on the issue whether the Korean Air Lines Disaster of September 1, 1983 was proximately caused by the "wilful misconduct" of the defendants, including Korean Air Lines. On August 2, 1989, the jury returned a verdict against the defendants. On appeal the Circuit Court affirmed the jury finding of wilful misconduct but vacated the finding for punitive damages, holding that punitive damages are not recoverable under the Warsaw Convention[1]. In re Korean Air Lines Disaster, 932 F.2d 1475 (D.C.Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991). Subsequently the individual cases, including the two at issue here, were returned to their originating districts for trials on damages.
Presently before the Court is a motion by defendant Korean Air Lines ("KAL" or "defendant") to strike the jury demands made in plaintiffs' complaints. Defendant's motion raises interesting, and somewhat novel, questions regarding the interplay between the Warsaw Convention and admiralty law in general and between the Warsaw Convention and the Death on the High Seas Act ("DOHSA"), 46 U.S.C.App. *757 §§ 761-768, in particular. For the reasons set forth below, the motion is denied.
BACKGROUND
On September 1, 1983, KAL flight KE007 was shot down and destroyed by Soviet military aircraft, killing all passengers and crew. The plane crashed into the Sea of Japan, more than a marine league from the shore of any State, territory or dependency of the United States. All actions arising from the disaster were transferred by the Judicial Panel on Multidistrict Litigation to the D.C. District Court before Chief Judge Robinson. In re Korean Air Lines Disaster of Sept. 1, 1983, 575 F.Supp. 342 (J.P.M.D.L.1983). On May 20, 1988, KAL moved to strike the jury demands in all of the plaintiffs' complaints, including the two at issue here, on the ground that because the disaster took place over the high seas,[2] the consolidated actions were each governed by the Death on the High Seas Act ("DOHSA"), and that under DOHSA plaintiffs had no right to a jury trial. Chief Judge Robinson denied KAL's motion by Memorandum and Order dated November 7, 1988. In re Korean Air Lines Disaster of Sept. 1, 1983, 704 F.Supp. 1135 (D.D.C.1988) ("KAL I").
In KAL I, as in the instant proceeding, defendant relied heavily on the United States Supreme Court decisions in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978) and Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986). Defendant argued that these cases, "when combined with the general rule that admiralty suits are tried without a jury, establish that plaintiffs are not entitled to a jury trial notwithstanding the existence of any other cause of action that would otherwise support a jury demand." KAL I, 704 F.Supp. at 1152. Chief Judge Robinson, however, rejected this broad reading of the Higginbotham and Tallentire cases and further reasoned that although "Congress placed federal jurisdiction under DOHSA in admiralty, ... it cannot be said that jury trials are repugnant to the DOHSA scheme, at least where there are concurrent claims triable by the jury joined with the DOHSA claim." Id.
KAL recognized the rule that "when claims carrying a right to jury trial are joined with admiralty claims and arise out of the same transaction or occurrence, all claims may be tried to a jury," id. at 1152-53, but argued, in effect, that the non-admiralty Warsaw Convention claims are not triable before a jury and therefore this rule need not apply. In KAL's view, Warsaw Convention claims arising from air crashes over the high seas are not triable before a jury because under Warsaw Convention Article 28(2), "questions of procedure shall be governed by the law of the court to which the case is submitted," and in such crashes the "law of the court" is DOHSA, under which no right to a jury trial exists: DOHSA + Warsaw Convention (DOHSA) = DOHSA. Chief Judge Robinson rejected KAL's argument that the "law of the court" was limited to DOHSA in this case. Instead, the Court looked to whether general federal law "provides for a jury trial in wrongful death actions brought under the Warsaw Convention." Id. at 1153. The Court concluded:
Wrongful death actions, essentially grounded in negligence and other common-law tort concepts, have been typically tried by juries. The nature of the issues to be triedculpability, causation, and damagesare issues commonly reserved for juries. In sum, a wrongful death action under the Warsaw Convention should be tried by a jury.
Id. Accordingly, KAL's motion to strike the jury demands was denied. Chief Judge Robinson later denied KAL's motion to certify the jury trial issue for interlocutory appeal on December 6, 1988.
After the jury verdict, KAL appealed the case, challenging initially the verdict, the imposition of punitive damages and Chief Judge Robinson's finding that plaintiffs *758 were entitled to a jury trial. After moving unsuccessfully to file a longer appellate brief than allowed by the rules applicable in the United States Circuit Court for the District of Columbia, KAL dropped its challenge to Chief Judge Robinson's finding on the jury trial issue. The Circuit Court affirmed the jury's findings on causation and wilful misconduct, but dismissed the punitive damages awards as not recoverable under the Warsaw Convention. Korean Air Lines Disaster, 932 F.2d 1475 (D.C.Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991).
Thereafter, KAL brought its motion to strike the jury demand before Chief Judge Robinson yet again for the twenty-four cases remaining in the District of Columbia. This time, however, KAL attempted to distinguish, as it attempts to do in the instant cases, between the right to a jury trial for purposes of liability as opposed to that right for purposes of damages. Chief Judge Robinson denied the motion as to those twenty-four cases in a Memorandum and Order dated March 31, 1992 ("KAL II").[3]
In his second order, Chief Judge Robinson stated that the determination of the issue of whether plaintiffs were entitled to a jury trial on damages depended on three sub-issues: (i) whether DOHSA provides the exclusive remedy; (ii) if plaintiffs' wrongful death claims may be based on the Warsaw Convention, what is the "law of the court" pursuant to Article 28(2); and (iii) what effect did plaintiffs' jury triable survival claims have on the question.
The Court found initially that DOHSA did not constitute the exclusive remedy in this case, stating that the Warsaw Convention applies concurrently. The Court noted that defendant had argued at an earlier stage in the litigation that plaintiffs' claims were limited by the liability provisions of the Warsaw Convention. Quoting its earlier decision, the Court stated in response that "[s]ince plaintiffs will be bound by the Treaty's limitation of liability and willful misconduct standard regardless of whether they pled the Treaty to support their complaints, they should have the benefit of the Treaty as the source supporting their jury demands." KAL II (quoting KAL I, 704 F.Supp. at 1154).
Secondly, Chief Judge Robinson addressed the question of whether the "law of the court" under Article 28(2) was limited to DOHSA. The Court noted first that it had addressed this question in KAL I, holding that the "law of the court" was not so limited. The Court then stated that even if DOHSA is the "law of the court," however, plaintiffs are still entitled to a jury trial because plaintiffs had each filed jury triable survival claims in addition to the wrongful death claims arising from the disaster. The Court found that such "Warsaw survival actions," KAL II, at 8, are triable before a jury and when "claims carrying a right to a jury trial are joined with admiralty claims, all of the claims may be tried to a jury." Id. (citing Fitzgerald v. United States Lines Co., 374 U.S. 16, 21, 83 S.Ct. 1646, 1650, 10 L.Ed.2d 720 (1963)). Thus, on the third issue, the Court found that the presence of jury triable survival claims dispositive of the question whether plaintiffs were entitled to a jury.
DISCUSSION
A. The Law of the Case
Plaintiffs argue that given the prior history of this case and the motion filed and decided in KAL I, the instant motion is barred on the ground of issue preclusion. Defendant correctly notes, however, that issue preclusion is inapplicable here because the instant proceedings do not constitute a separate cause of action from the liability phase of the multidistrict litigation. See Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980) ("Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude *759 relitigation of the issue in a suit on a different cause of action involving a party to the first case.") (emphasis added); Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979) ("Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a part to the prior litigation") (emphasis added).
Although it is clear that issue preclusion does not bar defendant's current motion, it is a much closer question whether the motion may be barred under the "law of the case" doctrine. "Under the law of the case doctrine, a decision on an issue of law made at one stage of a case becomes binding precedent to be followed in subsequent stages of the same litigation." In re PCH Associates, 949 F.2d 585, 592 (2d Cir.1991). It is oft stated that "[l]aw of the case directs a court's discretion, it does not limit the tribunal's power." Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). Therefore, application of the doctrine is a matter of discretion for the Court.
Defendants argue that this Court should not exercise the doctrine because "the Court of Appeals for the District of Columbia simply did not rule on the jury trial question and, therefore, there is nothing binding from a superior court to an inferior court." Def's Mem. at 40. We disagree. The law of the case doctrine is not limited to the situation in which a lower court on remand must follow a ruling previously made by a higher court. See C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478, at 788 (1981). In fact, the Court finds it somewhat disingenuous for defendant to argue that the absence of an appellate ruling on this issue should preclude application of law of the case when, in fact, defendant itself failed to raise Chief Judge Robinson's ruling on the jury trial issue as a ground for appeal.[4]See Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C.Cir.1987) ("Under law of the case doctrine, a legal decision made at one stage of litigation, unchallenged in a subsequent appeal when the opportunity to do so existed, becomes the law of the case for future stages of the same litigation, and the parties are deemed to have waived the right to challenge that decision at a later time."); Fogel v. Chestnutt, 668 F.2d 100, 108-09 (2d Cir.1981), cert. denied, 459 U.S. 828, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982) ("It would be absurd that a party who has chosen not to argue a point on a first appeal should stand better as regards the law of the case than one who had argued and lost.").
The law of the case doctrine "counsel[s] against reconsideration of issues absent compelling circumstances such as an intervening change of the law, the availability of new evidence, the need to correct a clear error, or to prevent manifest injustice." Diduck v. Kaszycki & Sons Contractors, Inc., 737 F.Supp. 792 (S.D.N.Y. 1990). Chief Judge Robinson has denied defendant's instant motion twice; both times after a thorough and well reasoned analysis of the issues raised. None of the factors suggesting that application of the law of the case doctrine is inappropriate are present here. Plaintiffs' right to try the damages phase of their cases to a jury is law of the case and, therefore, defendant's motion is denied.
B. The Merits
Assuming, arguendo, that defendant is not barred by the law of the case, the Court still finds that plaintiffs are entitled to a jury trial. As discussed above, the basic structure of defendant's argument is as follows. First, defendant notes the general principle that no right to a jury trial exists in admiralty. Second, defendant states that because Congress specified that *760 jurisdiction under DOHSA is founded in admiralty, actions brought under DOHSA may only be tried to a judge. Third, defendant notes that the Warsaw Convention does not expressly provide for a jury trial and therefore a court must look to local law the "law of the court" in Article 28(2) of the Warsaw Convention to determine whether a jury trial right exists for a Warsaw Convention action. Fourth, defendant states that because the disaster occurred over the "high seas" the applicable "law of the court" is DOHSA. In essence, defendant argues that because DOHSA is the applicable law and because no jury trial right exists under DOHSA, plaintiffs are not entitled to a jury in their damages trials: DOHSA + Warsaw Convention (DOHSA) = DOHSA.
In opposition plaintiffs first argue that the Warsaw Convention, not DOHSA, applies exclusively to the present actions. Since the Warsaw Convention does not specify the mode of trial, plaintiffs contend that we must look to the "nearest historical analogy" to decided whether a right to a trial by jury exists. In this case, that would be a common law tort action, where trial by jury both as to liability and damages is an established right. Second, plaintiffs argue that even if DOHSA applies to the wrongful death claims they are still entitled to a jury because when admiralty claims are brought with claims at law which arise out of the same event, all claims are tried to a jury. Plaintiffs have each brought survival claims for the decedents' pre-death conscious pain and emotional suffering. Since these jury triable claims arise out of the same disaster giving rise to the wrongful death claims, plaintiffs contend they are entitled to try the whole package before a jury: Warsaw Convention + DOHSA = Warsaw Convention + DOHSA.
As plaintiffs note, four decisions have reached the specific issue raised by defendant's instant motion; each concludes that plaintiffs are entitled to try their damages before a jury. The first two decisions are KAL I and KAL II discussed above. The third case is Air Crash Disaster in the Ionian Sea, M.D.L. 229, 1979 WL 2973 (S.D.N.Y. April 10, 1979) (Duffy, J.). In Ionian Sea, defendants moved to strike plaintiffs' jury demand arguing that the sole jurisdictional predicate for plaintiffs' suits was DOHSA, that DOHSA only provides for admiralty jurisdiction and, accordingly, no right to a jury trial exists. Plaintiffs countered that in addition to DOHSA, the Warsaw Convention provided a "wholly independent jurisdictional predicate as well as an independent cause of action, entitling them to a jury trial." Id. at 21. Judge Duffy denied defendant's motion on two grounds. First, he found that the Higginbotham case did not, as defendants argued, compel the conclusion that DOHSA represented plaintiffs' exclusive remedy. Second, Judge Duffy found the defendants' position inherently inconsistent. "On the one hand, defendants seek to invoke a limitation upon their potential liability under the Warsaw Convention. Yet, they insist that plaintiffs' sole remedy is one in admiralty under the DOHSA thus foreclosing trial by jury." Id. at 22.
In Air Crash Disaster Near Honolulu, 783 F.Supp. 1261 (N.D.Cal.1992), defendants made the identical argument brought in the instant litigation that the "law of the court" of the United States for purposes of Warsaw Convention Article 28(2) is DOHSA. The Court rejected that argument, stating that the Warsaw Convention creates a separate cause of action for wrongful death and survival. "To hold, as defendants here assert, that DOHSA provides the full measure of damages where a passenger's death arises out of an incident covered by the Warsaw Convention would be to substitute a complete system of tort compensation with a partial remedy specifically created to rectify a recognized omission in the historical development of the common law." Id. at 1265. As to the right to a jury trial, the Court stated:
Suits in admiralty, including DOHSA suits, are traditionally tried to the court. However, 28 U.S.C. § 1333 specifies that federal courts have jurisdiction over maritime actions, `saving to suitors in all cases all other remedies to which they are otherwise entitled.' Under the `saving *761 to suitors' clause, a plaintiff with claims in both admiralty and law may invoke either jurisdiction. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 360 [82 S.Ct. 780, 784, 7 L.Ed.2d 798] (1962); Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 384 [38 S.Ct. 501, 503, 62 L.Ed. 1171] (1918). Furthermore, when claims carrying a right to a jury trial are joined with admiralty claims, all claims may be tried to a jury. Fitzgerald v. United States Lines Co., 374 U.S. 16, 21 [83 S.Ct. 1646, 1650, 10 L.Ed.2d 720] (1963), In re Korean Air Lines Disaster, 704 F.Supp. 1135, 1153 (D.D.C.1988). The Federal Rules of Civil Procedure specify that where a plaintiff brings a claim which could be brought in either law or admiralty, the plaintiff is deemed to be proceeding in law unless the plaintiff expressly elects the court's maritime jurisdiction. Fed. R.Civ.P. 9(h).
All of the plaintiffs here assert claims cognizable in law under the Warsaw Convention. None of the plaintiffs have invoked the court's admiralty jurisdiction. Accordingly, all claims will be tried to a jury.
Id. at 1266.
Having considered defendant's argument at length, this Court concludes that plaintiffs are entitled to a jury trial. As the Second Circuit originally found in Benjamin v. British European Airways, 572 F.2d 913 (2d Cir.1978), and later reconfirmed in In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1273 (2d Cir.1990), cert. denied, ___ U.S. ___, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991), "the Warsaw Convention creates a cause of action enabling a plaintiff to sue under its [own] terms." Defendant, of course, does not contest this point but argues instead that under Article 28(2) of the Convention we must look to local law, the "law of the court," to determine questions of procedureincluding the question whether a right to a jury trial existsand the applicable law of the court is DOHSA, under which defendants claim no such right applies. This Court disagrees for two reasons.
First, as Chief Judge Robinson stated in KAL I, there is no reason to look solely to DOHSA to determine the jury trial issue. A treaty, duly confirmed by two-thirds of the Senate, constitutes the law of the land equivalent in status to an Act of Congress. See U.S. Const. art. VI, cl. 2; Foster v. Neilson, 27 U.S. (2 Pet.) 253, 7 L.Ed. 415 (1829). The Supreme Court stated in Curtis v. Loether, 415 U.S. 189, 195, 94 S.Ct. 1005, 1009, 39 L.Ed.2d 260 (1974), "when Congress provides for enforcement of statutory rights in an ordinary civil action in the district courts, where there is obviously no functional justification for denying the jury trial right, a jury trial must be available if the action involves rights and remedies of the sort typically enforced in an action at law." The Warsaw Convention creates an action for wrongful death and survival and such actions, "essentially grounded in negligence and other common-law tort concepts, have been typically tried to juries." KAL I, 704 F.Supp. at 1153.
Second, even assuming defendant's contention that we should look to DOHSA on the question whether a right to a jury trial exists, the Court finds that in the instant cases DOHSA does not necessarily preclude a jury trial. First, as the Supreme Court stated, "[w]hile this Court has held that the Seventh Amendment does not require jury trials in admiralty cases, neither that Amendment nor any other provision of the Constitution forbids them." Fitzgerald v. United States Lines Company, 374 U.S. 16, 20, 83 S.Ct. 1646, 1650, 10 L.Ed.2d 720 (1963). Second, "[t]here is no language in [DOHSA] prohibiting a trial by jury." Peace v. Fidalgo Island Packing Co., 419 F.2d 371, 372 (9th Cir.1969) (comparing the explicit prohibition of jury proceedings in the Suits in Admiralty Act, 46 U.S.C. §§ 741-42). And third, it is well settled that when jury and non-jury claims are combined before a court sitting in admiralty, all claims may be tried before a jury. See Fitzgerald, 374 U.S. at 20-21, 83 S.Ct. at 1650. In the two cases before this Court, plaintiffs have claims cognizable under the Warsaw Convention that sound in law and to the extent plaintiffs have claims *762 sounding in admiralty, all of plaintiffs' claims may be tried before a jury.
In any case, although the mere fortuity that Korean Air Flight KE007 was shot down over the "high seas" means that in addition to the Warsaw Convention, plaintiffs could have proceeded under DOHSA, the fact remains that they did not. 46 U.S.C.App. § 761 provides that "[w]henever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas ... the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit [of specified beneficiaries]." (emphasis added). Under Rule 9(h) of the Federal Rules of Civil Procedure, when a pleading sets forth grounds for relief that could sound in admiralty as well as in another ground of jurisdiction, the pleader may preserve the procedural rules applicable in admiralty practice by including a statement on the pleading indicating the pleader's intention to proceed in admiralty. Fed.R.Civ.P. 9(h). None of the plaintiffs presently before the Court made such a designation. Accordingly, this Court finds that plaintiffs' claims may be tried to a jury.
CONCLUSION
Finally, as was previously noted by Judge Duffy and Chief Judge Robinson, this Court finds a disturbing inconsistency in defendant's position. At the summary judgment stage of this litigation, defendant no doubt actively pursued the argument that the Warsaw Convention limited plaintiffs' damages to $75,000. Now defendant's are fighting just as hard, if not harder, to prove that DOHSA is exclusively applicable and precludes a jury trial. Plaintiffs, however, have claims arising under the Warsaw Convention and are in federal court on that basis. The Warsaw Convention creates a cause of action for wrongful death and survival sounding in law, and such claims may be tried to a jury. This fact may not be altered by the mere fortuity that the air crash occurs over the high seas.
For the reasons set forth above, defendant's motion to strike the jury demand from plaintiffs' complaints is denied.
SO ORDERED.
NOTES
[1] Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934), reprinted in note following 49 U.S.C.App. § 1502.
[2] For purposes of the Death on the High Seas Act, "high seas" are situate "beyond a marine league from the shore of any state, or the District of Columbia, or the Territories or dependencies of the United States." 46 U.S.C.App. § 761.
[3] Upon defendant's motion, Judge Robinson certified the jury trial issue for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). On or about June 9, 1992, the Court of Appeals for the District of Columbia accepted the appeal and thus the jury trial issue is now sub justice before that Court.
[4] The fact that defendant moved to submit a longer than usual brief to the Court of Appeals and in that motion identified the jury trial issue as a ground for appeal is insignificant. Defendant's appeal, as filed and argued, raised only the issues of punitive damages and the jury finding of wilful misconduct. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556305/ | 30 So.3d 55 (2009)
Susan DAIGLE
v.
The PARISH OF JEFFERSON Individually and/or by and through Appropriate Consolidated Road District, and the State of Louisiana, by and through the Department of Transportation and Development.
No. 08-CA-1310.
Court of Appeal of Louisiana, Fifth Circuit.
December 8, 2009.
Writ Denied March 26, 2010.
*56 Patrick H. Hufft, Jesse Beasley, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
*57 Michael F. Nolan, Attorney at Law, Metairie, LA, for Defendant/Appellee.
Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD and JUDE G. GRAVOIS.
JUDE G. GRAVOIS, Judge.
Plaintiff, Susan Daigle, filed a petition for damages against the Parish of Jefferson for injuries she sustained in a one-car accident. Ms. Daigle has appealed the jury verdict in favor of the Parish. For the reasons that follow, we affirm.
FACTS
The accident that is the subject of this appeal occurred on June 25, 1999 at approximately 12:30 a.m. at the intersection of Daniels Road and Oakwood Drive in Terrytown, which is in Jefferson Parish. At that time and location, the car that Ms. Daigle was driving crossed through said intersection, climbed a curb, flew over a drainage canal, and came to rest on a street on the opposite side of the canal.
Ms. Daigle's trial testimony as to the facts surrounding the accident can be summarized as follows. At the time of the accident, Ms. Daigle was dating Wade Mattei, whom she later married. Mr. Mattei was keeping a dog at his apartment that Ms. Daigle had agreed to sit for a friend. At approximately 7 a.m. on June 24, 1999, Ms. Daigle received a phone call from Mr. Mattei explaining that the dog he had been keeping for her got lost the night before when he let it out to relieve itself. That same night, sometime after 11 p.m., Ms. Daigle drove around in Mr. Mattei's neighborhood looking for the lost dog. Later, evidently just before 12:30 a.m., Ms. Daigle saw Mr. Mattei's vehicle. At that point, she drove away because she did not want to talk to him since she was upset with him for losing the dog. She eventually turned onto Daniels Road. Mr. Mattei followed behind her. Ms. Daigle had lived on the West Bank of Jefferson Parish since she was 16 years old and had been to Mr. Mattei's apartment several times, but had never driven in this direction on Daniels Road prior to the night of the accident.
The next thing Ms. Daigle remembered after turning onto Daniels Road was that she was involved in the accident in question. She never saw a yellow sign or a stop sign. She had no idea what speed she was going at the time of the accident. She felt a jolt, then remembered Mr. Mattei talking to her. She recalled ankle pain. Emergency medical technicians arrived and removed her from the vehicle. She was transferred to West Jefferson Medical Center and then later to the Medical Center of Louisiana, also known as Charity Hospital. She sustained a severe fracture to her ankle in the accident, requiring numerous surgeries, resulting in residual pain and disability.
On cross-examination, Ms. Daigle was presented with a police report stating that at the time of the accident she was attempting to leave the area at a high rate of speed. She admitted that she told the investigating officer that Mr. Mattei was behind her, but did not recall telling the officer that she feared Mr. Mattei. When confronted with the Emergency Medical Services record stating that she was being "chased by boyfriend," she testified that she did not recall talking to the emergency medical technicians. When confronted with a medical record from the emergency department at West Jefferson Medical Center stating "driving high rate of speed fleeing boyfriend she thought might be violent," she testified that she did not recall speaking to anyone at West Jefferson. She denied that Mr. Mattei was chasing her at the time of the accident. When confronted with a medical record indicating her blood alcohol level sometime after *58 the accident was .089, she stated that she had not consumed any alcohol the night of the accident and that she did not think it was her blood that was tested for alcohol because of a time discrepancy in the medical records.
Wade Mattei also testified as to the facts of the accident. According to Mr. Mattei, Ms. Daigle was upset when he told her he lost the dog. On the evening of June 24, 1999, he went to a bar and left at about 10:30 or 11:00 o'clock p.m. When he drove to his apartment, he spotted Ms. Daigle's car. Ms. Daigle turned onto Daniels Road towards Oakwood Drive and he followed her. He tried to call Ms. Daigle but did not speak to her. As Ms. Daigle drove towards the intersection of Daniels Road and Oakwood Drive, he became concerned because he knew the double arrow sign at the end of the street was down. He was fearful that Ms. Daigle would not know the "end of the road was coming." He then saw Ms. Daigle's car bounce upward and come to a stop on the street across the canal that is located at said intersection. Mr. Mattei then crossed the canal on the pedestrian bridge nearby and went over to assist Ms. Daigle. He noticed Ms. Daigle's injured ankle and called 911.
At the time of the accident, Mr. Mattei saw that the double arrow sign that would normally be at the end of the street next to the canal was in fact lying on the ground in the grass next to the canal. He returned to the scene of the accident the next day and took several daytime pictures of the intersection. These photographs were admitted into evidence. The pictures depict foliage partially obstructing the stop sign at the intersection.
On cross-examination, Mr. Mattei denied that he was chasing Ms. Daigle at the time of the accident. Although Mr. Mattei testified in his deposition that Ms. Daigle was avoiding him, he testified at trial that he did not know she was trying to avoid him. Mr. Mattei admitted that he did not notify anyone with Jefferson Parish when he noticed that the double arrow sign was down days prior to the accident. Mr. Mattei did not recall the time Ms. Daigle was transferred to Charity Hospital.
Deputy Patrick Langley, who investigated the accident on behalf of the Jefferson Parish Sheriffs Office, was not available for trial. His deposition was read to the jury. The police report authored by Deputy Langley was attached to the deposition and published to the jury. Deputy Langley testified that he had worked in the traffic division of the Sheriffs Office for approximately seven of his 14 years as a deputy. He had an independent recollection of this accident. He arrived at the scene while Ms. Daigle was still in the vehicle. He spoke to Ms. Daigle and Mr. Mattei, gathered evidence, and took measurements at the scene. According to Deputy Langley, Ms. Daigle hit the curb at the intersection, cleared the canal, traveling some 40 feet in the air, landed on the other side of the canal, and traveled an additional 115 feet after landing. There were no skid marks, indicating that Ms. Daigle had not made any attempt to stop. Another officer took pictures of the scene and these were admitted into evidence.
Deputy Langley checked Ms. Daigle for sobriety as well as he could and performed the nystagmus gaze test on her. In this test, a subject is asked to follow an object with their eyes and the officer looks for jerking in the eye movements. The result of this test was negative. It did not show signs of impairment. Officer Langley did not smell alcohol on Ms. Daigle.
According to Deputy Langley, the double arrow sign that had originally been placed between the curb and the canal was found in the grass nearby and was not up *59 at the time of the accident. He had no idea how long it had been down.
Susan Treadway testified that she has worked in the traffic engineering department for the Parish of Jefferson for thirteen years. This department is responsible for the erection and maintenance of traffic signs. The 1988 Manual on Uniform Traffic Control Devices was followed by her department at the time of the accident in question. The manual did not specify what type of sign should be placed at canal banks. It is standard practice for a black and yellow warning sign with double arrows to be erected at an intersection such as the one at Daniels Road and Oakwood Drive. Ms. Treadway admitted that the sign was not upright at the time of this accident. The department did not, however, have a record of any complaints being received regarding this sign, nor were there any accidents at this location that indicated that there were any particular problems with this intersection. Accordingly to Ms. Treadway, the Parish does not have a crew that is specifically assigned to look for signs that may be down or obstructed; rather her department depends on notification from residents and other parish workers to let them know when there is a problem with a sign.
Wayne Winkler, an expert in accident reconstruction, recreation, and cause analysis, testified that he inspected this accident scene at night and used the pictures taken by the investigating officers to show that since Daniels Road continues on the other side of the canal, it gives drivers the false impression that the street continues across the canal. He noted that there were no stop signs at the intersections on Daniels Road leading up to Oakwood Drive, which gives drivers the false impression that there is no stop sign at the intersection of Daniels Road at Oakwood Drive. At the time he visited the scene, the double arrow sign was erect and was the first thing he noticed at the intersection. Mr. Winkler noted that Daniels Road is a wide street and that generally in Jefferson Parish, the speed limit on streets of this width is 30 miles per hour. Referring to the photograph labeled as plaintiffs exhibit number 29, depicting the intersection from the direction from which Ms. Daigle approached the intersection, which was taken by one of the investigating officers, Mr. Winkler estimated the stop sign was only 50% visible. Mr. Winkler estimated this photograph was taken 50 to 60 feet from the curb. He explained that the Manual of Uniform Traffic Control Devices states that the stopping distance for a vehicle traveling at 20 miles per hour is 115 feet; therefore a motorist should be able to see this stop sign from at least 115 feet away. He was of the opinion that on the night of the accident, this stop sign was not visible from at least 115 feet away due to foliage obstructing the sign. He explained that it takes 80 feet for a vehicle traveling at 20 miles per hour to stop. Again referring to exhibit number 29, which he determined was taken 25 feet from the stop sign, Mr. Winkler testified that, in his opinion, Ms. Daigle did not have enough time to stop.
Mr. Winkler estimated that, given the nine inch curb which Ms. Daigle hit and the location where she landed on the other side of the canal, she was traveling between 25 and 30 miles per hour when she hit the curb. He opined that the missing double arrow sign was a major factor in causing this accident. In his opinion, Ms. Daigle's car was traveling about 25 miles per hour when it landed and then rolled to a stop. According to Mr. Winkler, alcohol was not suspected in this crash given the absence of the smell of alcohol on Ms. Daigle and the negative nystagmus test. Further, in his opinion, Mr. Winkler felt that had Ms. Daigle's blood alcohol been *60.089 three hours after the crash, she would have shown signs of obvious intoxication at the time of the accident since her blood alcohol would have been .14 at the time of the accident. Mr. Winkler stated that if alcohol was used to wipe Ms. Daigle's arm prior to drawing blood for her blood test, this could have caused a false positive in Ms. Daigle's blood test. Mr. Winkler concluded that the Parish of Jefferson was the cause of this accident for failing to maintain the double arrow sign and failing to remove the obstruction from the stop sign.
On cross-examination, Mr. Winkler stated that he felt that the curb in question along the canal is not an indicator of the end of the street because the curb is the same color as the street. With regard to plaintiffs exhibit number 29, depicting the stop sign, Mr. Winkler was of the opinion that this picture was taken with a flash, and accordingly the lighting for this photo is not representative of what Ms. Daigle saw on the night of her accident. Mr. Winkler felt that the evidence disputes the allegation that Ms. Daigle was being chased at a high rate of speed at the time of the accident. The evidence indicates to him, rather, that she was traveling at 25 miles per hour at the time of the accident. Finally, Mr. Winkler testified that there were five accidents at this intersection in the year prior to Ms. Daigle's accident which should have prompted the Parish to perform a study of this intersection.
After its Motion for Directed Verdict was denied, the Parish presented the testimony of Dr. William George, an expert pharmacologist and toxicologist. Dr. George was of the opinion that, based on the report of a blood alcohol level of .089 three hours after the accident, Ms. Daigle's blood alcohol level was .13 at the time of the accident. Dr. George concluded that alcohol was a significant factor in the cause of this accident. On cross-examination, Dr. George testified that a person with a blood alcohol level of .13 would not necessarily smell of alcohol; rather whether a person's breath smelled of alcohol would depend on the type of alcoholic beverage consumed.
Fred Davidson, an expert in accident reconstruction, testified that he gathered evidence from the police report, photographs and depositions, and concluded that Ms. Daigle was traveling at a speed of 50 to 55 miles per hour at the time she hit the curb. Mr. Davidson disagreed with the calculations used by Mr. Winkler in estimating the vehicle's speed, explaining that he used a different area of the vehicle to determine the distance traveled, and a different angle of takeoff to arrive at his conclusions. Mr. Davidson stated that a 10 to 12 inch long and 2 to 3 inch deep section of the curb was broken by the impact. Mr. Davidson was of the opinion that Ms. Daigle's vehicle was traveling at 37 to 38 miles per hour as it slid to its final resting spot.
Mr. Davidson referred to the photograph of the intersection, plaintiffs exhibit number 29, in finding the curb was visible from about 150 feet away. He disagreed with Mr. Winkler's opinion that the photograph was taken 25 feet from the stop sign. He based this on the fact that the expansion joints depicted in the picture are 27 feet apart. He also noted that the photograph was taken from a standing position. A driver would, however, be at a lower angle. It was his opinion, therefore, that well over 50% of the stop sign would be visible at a distance of 60 feet, which is 90 to 100 feet from the curb. Mr. Davidson further explained that a car's headlights shine 150 feet in front of the car, meaning that the curb and grass canal bank would have been illuminated by the headlights. Mr. Davidson was of the opinion *61 that 100% of the fault of this accident was due to the actions and inactions of Susan Daigle.
Susan Treadway, when called back to the stand by the Parish, testified that the Manual of Uniform Traffic Control Devices did not require that a double arrow sign be placed at an intersection such as this. She explained that the stop sign was the primary sign at the intersection. She further explained that there were only three accidents at this intersection in the year prior to Ms. Daigle's accident and that none of these accidents were similar to her accident. From January 1999 through the date of the accident in question, there were no complaints made to the Parish regarding signs at this intersection.
On cross-examination, Ms. Treadway acknowledged that she did not know how long the double arrow sign had been down, and that the Manual on Uniform Traffic Control Devices states that drivers should have a clear view of the stop sign at an intersection.
In rebuttal, the deposition testimony of Dr. Martin Ferris was read to the jury. Dr. Ferris is the medical director of the laboratory at West Jefferson Medical Center. He held this position in 1999. According to Dr. Farris, the specific person who drew Ms. Daigle's blood for the blood alcohol test was not listed in the medical records introduced into evidence. There are archived records at the hospital that would state the name of the person who drew Ms. Daigle's blood. Dr. Ferris also stated that it is extremely unusual to have blood drawn from the wrong patient. He explained that alcohol would have been used to wipe Ms. Daigle's arm prior to the blood being drawn, but that this would not have changed the results of Ms. Daigle's blood test because their lab does not test for that type of alcohol. Dr. Ferris concluded that it is more probable than not that the results in the medical records are from Ms. Daigle's blood.
Mr. Winkler also took the stand in rebuttal. He disagreed with Mr. Davidson's calculations because, in his opinion, Mr. Davidson's calculations assume the front and back tires all left the ground at the same time, when in reality the front tires left the ground first, while the back tires were still on the ground. Mr. Winkler was of the opinion that if Ms. Daigle had been traveling at 50 miles per hour at the time of the accident, her car would have broken apart upon impact.
After being instructed by the trial judge, the jury was given interrogatories to be answered. The first interrogatory, asking if the alleged defects in the roadway were in the custody or control of the defendant, was stipulated to by the parties. The second interrogatory, asking whether the roadway presented an unreasonable risk of harm in the June 25, 1999 accident, was answered negatively by the jury. Based on this finding by the jury, the trial judge rendered judgment in favor of the Parish, dismissing the Parish from this matter. This appeal followed the trial court's denial of Ms. Daigle's Motion for Judgment Notwithstanding the Verdict.
FIRST ASSIGNMENT OF ERROR UNREASONABLE RISK OF HARM
In her first assignment of error, Ms. Daigle argues that a reasonable jury could not have found that the defects in the roadway did not present an unreasonable risk of harm to her based on the evidence presented that the double arrow sign was laying on the ground and that the stop sign was obscured by foliage. In support of this argument, Ms. Daigle cites the testimony of her expert, Mr. Winkler, that the intersection in question was unreasonably dangerous as it existed on the night of the accident. She argues that the Manual on Uniform Traffic Control Devices, *62 which the Parish's traffic engineer testified it follows, mandates that traffic control devices must give adequate time for the driver to properly respond. Mr. Winkler testified that the stop sign, which was obscured by foliage, did not give Ms. Daigle adequate time to respond. Ms. Daigle further argues that the absence of the double arrow sign and the fact that Daniels Road continues on the other side of the canal gives the false illusion that the roadway continued over the canal. Ms. Daigle concludes that since the Parish offered no evidence to rebut this testimony, the jury was manifestly erroneous in determining that the alleged defects in the roadway did not create an unreasonable risk of harm at the time of the accident in question.
The Parish responds that the jury's verdict was supported by the evidence, especially the photographs of the accident scene, particularly plaintiffs exhibit number 29, which obviously led the jurors to conclude that this was not an unreasonably dangerous intersection. The Parish points out that the photographs indicate that the stop sign controlling this intersection, as well as the curb running across the middle of the street, are clearly visible. The Parish cites the testimony of its expert, Mr. Davidson, who concluded that the sole cause of this accident was the actions and inactions of Ms. Daigle, noting that the curb was clearly visible to Ms. Daigle over 90 feet before she reached it. The Parish points out the testimony of Deputy Langley that he disagreed with Ms. Daigle's counsel's statement that this intersection gave a false impression that the road continued over the canal. The Parish contends that the testimony that Ms. Daigle was speeding and being chased by Mr. Mattei, as well as the medical records indicating a blood alcohol level of .089 three hours after the accident, support the jury's finding. Finally, the Parish argues that the testimony of Ms. Treadway that the stop sign was the primary sign at the intersection, that the Parish had no notice that the double arrow sign was down, and that there were no accidents similar to Ms. Daigle's accident at this intersection, also support the jury's finding.
LSA-R.S. 9:2800, which is applicable herein, provides in pertinent part:
A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
B. Except as provided for in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
In order to recover under this statute, a plaintiff must prove that: (1) the defendant owned or had custody of the thing that caused the damage; (2) the thing was defective in that it created an unreasonable risk of harm to others; (3) the defendant had actual or constructive knowledge of the defect or unreasonable risk of harm and failed to take corrective action within a reasonable time; and (4) causation. Wilson v. City of New Orleans, 95-2129 (La.App. 4 Cir. 4/30/97), 693 So.2d 344, writ denied, 97-1701 (La.10/13/97), 703 So.2d 613.
Whether the condition of a road is unreasonably dangerous is a question of fact and should only be reversed if it is manifestly erroneous or clearly wrong. Rizzuto v. State, Dep't of Transp. and *63 Dev., XXXX-XXXX (La.App. 4 Cir. 3/17/04), 870 So.2d 1034, 1041. The manifest error-clearly wrong standard authorizes an appellate court to reverse a trial court's factual finding only if we find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart v. State, Dep't of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). This standard requires that the reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding; rather, the reviewing court must review the entire record to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Id. The appellate court must determine whether the fact finder's conclusion was reasonable, not whether the fact finder was right or wrong. Id. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. Where two permissible views of the evidence exist, the fact finder's choice between them cannot be clearly wrong. Id.
In the case at bar, Ms. Daigle was required to prove that the alleged defect created an unreasonable risk of harm. "The existence of an unreasonable risk of harm may not be inferred solely from the fact that an accident occurred. In fact, the vice or defect must be of such a nature as to constitute a dangerous condition that would be reasonably expected to cause injury to a prudent person using ordinary care under the circumstances." Forbes v. Cockerham, 08-0762 c/w 08-0770 p. 33, (La.1/21/09), 5 So.3d 839, 859. Thus, Ms. Daigle had to prove to the jury that the intersection of Daniels Road and Oakwood Drive presented an unreasonable risk of harm to a person using ordinary care, and that action by the Parish of Jefferson could have prevented this harm.
A review of the record in its entirety indicates this jury's finding is not manifestly erroneous or clearly wrong. Ms. Daigle presented the testimony of Mr. Winkler that the intersection created an unreasonable risk of harm because the double yellow sign was not in place and the stop sign was partially obstructed. Mr. Winkler also testified that Ms. Daigle was traveling at approximately 25 miles per hour which was five miles faster than the posted speed limit. The Parish, however, presented testimony that a double yellow sign was not required at this intersection and that the stop sign was not obstructed. The Parish also presented testimony that Ms. Daigle was traveling well over the posted speed limit and was intoxicated at the time of the accident. Thus, the jury was presented with two opposing causes of the accident in question: that the accident occurred because the roadway presented an unreasonable risk of harm, or that the accident occurred due to Ms. Daigle's failure to use ordinary care. The jury found the latter. The jury obviously gave more credibility to the testimony and evidence presented by the Parish over that presented by Ms. Daigle. We accordingly find no error in the jury's finding that the roadway in question did not present an unreasonable risk of harm at the time of the accident in question.
SECOND ASSIGNMENT OF ERROR MOTION IN LIMINE
In her second assignment of error, Ms. Daigle argues that the trial court erred in denying her motion in limine and, as such, in improperly allowing the introduction of a medical record purporting to show her blood alcohol content. She argues these records are defective because there is no signature of the person responsible for drawing the blood sample. She *64 contends that under LSA-R.S. 13:3714,[1] the person responsible for creating the records must be available for cross-examination, and that, because the records do not indicate the person drawing the blood and the person performing the test, the records cannot speak for themselves as per the statute and therefore should not have been admitted.
Ms. Daigle further argues that the time discrepancies in the medical records wherein the records reflect that she was transferred to Charity Hospital at 3:10 a.m. and the blood to determine alcohol level was drawn at 3:21 a.m. makes the results of the test unreliable.
The Parish responds that the records were properly admitted because they were certified records admitted in accordance with LSA-R.S. 13:3714. The Parish further argues the records were admissible as an exception to the hearsay rule under Judd v. State, Dept. of Transp. and Dev., 95-1052 (La.11/27/95), 663 So.2d 690. The Parish contends that the medical records indicate that the lab tests were completed at 3:21 a.m., not that the blood was drawn for these tests at 3:21 a.m. The Parish states that the Charity Hospital records indicate that Ms. Daigle did not arrive at Charity until after 6:00 a.m., and to believe Ms. Daigle's argument would indicate it took over three hours to transfer Ms. Daigle from West Jefferson to nearby Charity.
The specific medical record which establishes Ms. Daigle's blood alcohol level several hours after the accident is contained in the medical records obtained from West Jefferson Medical Center. These records were submitted into evidence by Ms. Daigle as well as the Parish. These records were certified and thus admissible under R.S. 13:3714 A. Further, Dr. Farris, the director of the laboratory at West Jefferson Medical Center, testified that the name of the individual drawing the blood was available in the archive records of the hospital. It is apparent from the record that the deposition of Dr. Farris was taken while this trial was in progress. This accident occurred in 1999 and the trial was not held until 2007. Certainly, Ms. Daigle was in possession of these records well before the trial and based on the testimony of Dr. Farris could have obtained the name of the individual who drew the blood.
Further, although Ms. Daigle argues that the results were unreliable because of the time discrepancies, this information *65 was brought to the attention of the jury. Additionally, the jury was able to hear the testimony of Ms. Daigle that she did not consume alcohol in the hours preceding the accident, and that of the investigating officer that he did not smell alcohol on Ms. Daigle.
Moreover, as part of Ms. Daigle's certified medical records, the record of her blood alcohol was admissible under Judd, supra, which held that certified hospital records are admissible into evidence without the laying of any foundation beyond a showing of certification.
Ms. Daigle also argues that the records were irrelevant and their admission was unfairly prejudicial under La. C.E. art. 403. She contends there was ample testimony to indicate she was not intoxicated. Mr. Winkler concluded that Ms. Daigle was not intoxicated because Deputy Langley noted a negative nystagmus test and there were no notations that there was odor of alcohol or that Ms. Daigle was visibly intoxicated. This argument ignores the holding that certified medical records are admissible as prima facie proof of their contents under LSA-R.S. 13:3714. Ms. Daigle attempted, although unsuccessfully, to rebut this evidence with her own testimony, and that of Mr. Winkler, and Deputy Langley.
For the above-stated reasons, we find the trial court did not err in admitting the medical record containing Ms. Daigle's blood alcohol level.
THIRD ASSIGNMENT OF ERROR EVIDENCE OF FOLIAGE TRIMMING
In her third assignment of error, Ms. Daigle contends the trial court erred in excluding evidence of the Parish's subsequent act of trimming the foliage around the stop sign immediately following the accident.[2] While acknowledging that subsequent remedial measures is inadmissible to prove liability, Ms. Daigle argues that this evidence was admissible to show the Parish had control over the foliage obscuring the stop sign, had knowledge of the defect, that the precautionary measures were feasible and to rebut the Parish's contentions that the stop sign was not obscured.
The Parish responds that the photograph of the intersection accurately depicts the intersection at the time of the accident and shows the condition and visibility of the stop sign. The Parish contends that Ms. Daigle's accident was the first notice that there may be a problem at the intersection and that the branches that partially hung over the stop sign were trimmed. The Parish concludes this was clearly a subsequent remedial measure and inadmissible under La. C.E. art. 407.
The jury was presented with several photographs of the intersection showing foliage partially obstructing the stop sign. These photographs show that although the stop sign is partially obstructed, the sign can be clearly seen as testified to by Mr. Davidson. The jury was able to clearly see the appearance of the intersection as it appeared on the night of the accident, as well as the day time photographs taken by Mr. Mattei. The photographs admitted into evidence show that the stop sign was partially obscured by foliage. The jury obviously concluded that this did not present an unreasonable risk of harm to Ms. Daigle at the time of the accident in question.
We find that the Parish's subsequent act of trimming the foliage around the stop sign immediately following the accident *66 was clearly a subsequent remedial measure and therefore inadmissible under La. C.E. art. 407. This assignment of error is accordingly without merit.
FOURTH AND FIFTH ASSIGNMENTS OF ERRORJURY CHARGES AND CUMULATIVE ERRORS
In her fourth assignment of error, Ms. Daigle argues the court erred in excluding a jury charge on constructive notice. In light of the above holding that there is no manifest error in the jury's finding that the alleged defects in the roadway did not present an unreasonable risk of harm, this assignment of error is moot.
Likewise, having found no error in the trial court's evidentiary rulings, Ms. Daigle's fifth assignment of error arguing that the trial court's cumulative errors denied her right to a fair trial, is also moot.
CONCLUSION
For the foregoing reasons, the judgment of the trial court in this proceeding is hereby affirmed.
AFFIRMED.
NOTES
[1] LSA-R.S. 13:3714 provides in pertinent part:
A. Whenever a certified copy of the chart or record of any hospital, signed by the administrator or the medical records librarian of the hospital in question, or a copy of a bill for services rendered, medical narrative, chart, or record of any other state health care provider, as defined by R.S. 40:1299.39(A)(1) and any other health care provider as defined in R.S. 40:1299.41(A), certified or attested to by the state health care provider or the private health care provider, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the bills, medical narrative, chart, or record is sought to be used may summon and examine those making the original of the bills, medical narrative, chart, or record as witnesses under cross-examination.
. . .
C. Notwithstanding the provisions of this Section to the contrary, in any civil action, whenever the blood alcohol concentration (BAC) test results are from a source other than the office of state police crime laboratory of the Department of Public Safety and Corrections, if a timely challenge is raised in a court of competent jurisdiction to the authenticity, reliability, or accuracy of the test results, or to the lack of a proper foundation for the admissibility of the test results into evidence, the court shall conduct a hearing to determine the validity of the challenge and, if it finds that the challenge is well-founded, the court may rule the blood alcohol concentration test results inadmissible....
[2] This Court has previously found the trial court did not abuse its discretion in excluding this evidence. Daigle v. the Parish of Jefferson, 06-968 (La.App. 5 Cir. 1/12/07) (unpublished writ disposition). Plaintiff's writ to the Supreme Court on this matter was likewise denied. Daigle v. Parish of Jefferson, 07-0307 (La.2/27/07), 949 So.2d 427. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2343903/ | 272 P.3d 624 (2012)
STATE
v.
MANZUR.
No. 105619.
Court of Appeals of Kansas.
March 16, 2012.
Decision Without Published Opinion
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556146/ | 30 So. 3d 501 (2010)
H.D.W.
v.
ADAME.
No. 2D10-910.
District Court of Appeal of Florida, Second District.
March 19, 2010.
Decision Without Published Opinion Habeas Corpus denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556168/ | 30 So. 3d 511 (2010)
SPENCE
v.
STATE.
No. 5D09-4123.
District Court of Appeal of Florida, Fifth District.
March 9, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556155/ | STATE OF LOUISIANA, Plaintiff-Appellee,
IN THE INTEREST OF J.N.R., L.D.H., and S.L.H.
No. 45,294-JAC.
Court of Appeals of Louisiana, Second Circuit.
March 3, 2010.
Not Designated for Publication
ANGELA G. WALTMAN, Counsel for Appellants, Parents of the children.
AUDIE L. JONES, Department of Social Services, Counsel for Plaintiff, Appellee.
STEVEN R. THOMAS, RICHARD Z. JOHNSON, District Attorney. ANNA GARCIE, MICHAEL DANIEL, Assistant District Attorneys, Counsel for the Children.
Before BROWN, STEWART, and PEATROSS, JJ.
BROWN, Chief Judge.
Defendants, the parents of three girls, a nine-year-old, a two-year-old, and a four-month-old infant, have appealed from a September 21, 2009, judgment terminating their parental rights. We affirm.
Factual Background
On June 25, 2008, the Department of Social Services, Office of Community Services ("DSS"), received information that J. (D.O.B 02/15/00), L. (D.O.B 01/12/07), and S. (D.O.B 05/09/08), (as well as two other children who are not the subject of the instant appeal), were living in a two-bedroom, single-wide mobile home with their parents, a grandmother, and two uncles. Both uncles have criminal records and one is a registered sex offender. The sex offender's convictions are for forcible rape and indecent behavior with a juvenile (he was originally charged with molestation of children living in the same residence). The children were taken into protective custody by the DSS on June 27, 2008.
The DSS continued its investigation. Several hearings were held, and the children were adjudicated as Children in Need of Care on October 17, 2008. The goal for the parents, both of whom have criminal histories and current/past drug abuse problems, was initially guardianship/reunification. However, after several months of noncompliance, the goal was changed to adoption, and a Termination of Parental Rights petition was filed on May 7, 2009, by the DSS. By judgment signed on September 21, 2009, parental rights were terminated. The father's parental rights were terminated only as to the four-month-old daughter as DNA testing established that he was not the biological father or legal father of the other two girls.[1] It is from this judgment that the parents have appealed.
Discussion
In its petition for termination filed on May 7, 2009, the DSS sought termination of appellants' parental rights based upon, but not limited to, La. Ch.C. art. 1015(3)(k). In the judgment of termination, the parental rights of appellants were terminated based upon, but not limited to, the ground set forth in La. Ch.C. art. 1015(3)(k). This provision states:
The grounds for termination of parental rights are:
...
(k) The parent's parental rights to one or more of the child's siblings have been terminated due to neglect or abuse and prior attempts to rehabilitate the parent have been unsuccessful. Emphasis added.
On appeal, the parents contend that the trial court erred in finding that the DSS proved by clear and convincing evidence that there exists no reasonable expectation of reformation in the foreseeable future for them and that there has been no substantial compliance with their case plan.
Although there are seven statutory grounds for involuntary termination of parental rights set forth in La. Ch.C. art. 1015, only one ground need be established. State ex rel. SNW v. Mitchell, 01-2128 (La. 11/28/01), 800 So. 2d 809; State in the Interest of J.W.M., 44,513 (La. App. 2d Cir. 06/24/09), 15 So. 3d 1218; State ex rel. B.H. v. A.H., 42,864 (La. App. 2d Cir. 10/24/07), 968 So. 2d 881. The applicable burden of proof which must be carried by the DSS in order to terminate parental rights is by clear and convincing evidence. La. Ch.C. art. 1035(A).
The issue of parental compliance with a case plan, the parents' expected success of rehabilitation or reformation, and the expectation of significant improvement in the parents' condition and conduct are questions of fact which will not be set aside in the absence of manifest error. State in the Interest of J.W.M., supra; State in the Interest of S.C.M., 43,441 (La. App. 2d Cir. 06/04/08), 986 So. 2d 875.
This mother and father had three other children (for a total of nine children between the two parents). In 2006, the court granted a judgment to terminate their parental rights as to these three children. In fact, the reasons outlined in 2004 for termination of parental rights as to these first three children were the same as those given for termination in the present case; in particular, that these children were significantly neglected, and removed from the small trailer they were living in with, among others, the father's brothers, a convicted drug offender and a registered sex offender. The previous termination of parental rights was based, inter alia, upon the parents' lack of compliance with their case plans and a finding of no reasonable expectation of significant improvement in the parents' condition or conduct in the near future (La. Ch.C. art. 1015(5)).
Our review of the record reveals no manifest error in the trial court's factual determinations in this matter. There was testimony by Jennifer McCann, the DSS social worker, that the first two case plans called for guardianship and reunification, but that both parents failed to comply with the requirements of the case plans. As an example, Ms. McCann testified that the father mentioned during several of the supervised visitations that although the case plan called for no contact whatsoever with his brothers, he had continued contact with them. Because both brothers had valid histories of sexual abuse, she was extremely concerned for the children. Ms. McCann also noted inappropriate behavior on the part of the mother during several visitations with the children. Ms. McCann further testified that prior attempts to rehabilitate the parents have been unsuccessful.
The records of two psychologists who saw the parents after the instant removal and petition for termination were introduced into evidence. According to Dr. John Simoneaux, while the father has shown "nominal improvement" by marrying the mother, (allegedly) finding a place to live, and attending counseling, the mother has shown no significant improvement whatsoever. He noted that the mother is moody, hostile, paranoid, and emotionally inappropriate at times. According to Dr. Simoneaux, therapy would not be very helpful because of the severity of the mother's problems. He also expressed concerns because the mother minimized the danger of having her children in the presence of known sex offenders. Dr. Simoneaux further opined that the parents are not on the same page regarding the proper rearing of the children, nor do they have a consistent approach to parenting. Dr. Simoneaux saw "a lot of red flags" which concerned him about the parents' abilities to care for their children, specifically their refusal to accept or acknowledge the danger they exposed their children to by moving into the same residence as a convicted sex offender.
While both parents attended counseling sessions and visitations with their children and expressed their desires that their parental rights not be terminated, the record contains little evidence that either parent has significantly changed his or her behavior significantly or taken significant steps to achieve the goal of getting their children back. We are disturbed by the parents' failure and/or unwillingness to recognize the potential harm they exposed their children to by associating with and living in the same home (even if on a temporary basis) as the father's brothers, notwithstanding the fact that this very behavior was what caused three other children to be removed from them. We cannot say that the trial court's decision to terminate defendants' parental rights in this case was clearly wrong or manifestly erroneous.
Conclusion
For the reasons set forth above, the judgment of the trial court terminating the parental rights is affirmed.
NOTES
[1] The alleged biological and unknown father's fathers rights were also terminated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556157/ | 30 So. 3d 946 (2009)
STATE of Louisiana
v.
Rhonda K. OLIVER.
Nos. 03-KA-416, 09-KH-710, 09-KH-711.
Court of Appeal of Louisiana, Fifth Circuit.
December 29, 2009.
Rehearing Denied January 26, 2010.
*947 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
Rhonda K. Oliver, Saint Gabriel, Louisiana, In Proper Person.
Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
CLARENCE E. McMANUS, Judge.
In this appeal, we consider defendant's allegations of error raised in her pro se brief, which were not considered in defendant's original appeal. In addition we consider the issues raised in defendant's two writ applications, no. 09-KH-710 and no. 09-KH-711. For the reasons that follow, we find no merit to defendant's allegations of error and re-affirm defendant's conviction and sentence. We further deny defendant's applications for writs.
PROCEDURAL HISTORY
Defendant, Rhonda Oliver, was found guilty by a jury of theft of goods valued at $100.00 or more, but less than $500.00, a violation of LSA-R.S. 14:67.10. On October 10, 2001, the trial court sentenced her as a habitual offender to 20 years imprisonment at hard labor without benefit of probation or suspension of sentence. State v. Oliver, 03-416 (La.App. 5 Cir. 9/30/03), 857 So. 2d 1227. This Court affirmed defendant's conviction and sentence on appeal. Id. In its opinion, this Court ruled on defendant's counseled assignments of error, but did not address the two additional assignments in defendant's pro se brief, filed on July 18, 2003. Defendant filed an untimely writ application in the Louisiana Supreme Court. The Supreme Court treated the writ as an application for post-conviction relief and denied it. State ex rel. Oliver v. State, 04-2139 (La.5/20/05), 902 So. 2d 1042.
*948 On August 1, 2008, defendant filed with this Court pro se writ application no. 08-KH-639, in which she challenged a district court ruling denying her motion to correct an illegal sentence. In that writ application defendant claimed, in part, that this Court had failed to consider the supplemental pro se assignments in her original appeal. This Court consolidated writ no. 08-KH-639 with writ no. 08-WR-901, pertaining to a Cordero[1] review of this Court's rulings on several writs defendant filed prior to May 21, 2007. Thereafter, this Court granted the consolidated writ in part, recognizing that it had failed to consider defendant's timely filed pro se assignments of error in its original appeal opinion, and allowing appellate review of those allegations that defendant had raised in her pro se appellate brief. State ex rel. Oliver v. State, 08-WR-901 C/W 08-KH-639, (La.App. 5 Cir. 3/18/09)(unpublished writ), order issued (La.App. 5 Cir. 4/29/09).
In addition, on August 25, 2009, relator filed two pro se writ applications, no. 09-KH-710 and no. 09-KH-711. By order dated September 21, 2009, these writ applications were consolidated with this appeal for review.
FACTS
The facts of this case are taken from this Court's original opinion:
Rubystein Goins is a sales associate at Sears Oakwood in Jefferson Parish. On February 8, 2001, at approximately 5:30 p.m., Ms. Goins was working in the bedding department located on the second floor of the store adjacent to the house ware department. She was approached by a customer, later identified as Rhonda Oliver, and the customer wanted to return a Foreman Grill and a mixer. According to Ms. Oliver, she had purchased these two items at Sears Clearview, but she did not have a receipt. According to store policy, Ms. Goins issued a credit for the returned items in the form of a Sears Gift Card, which required that any purchases made with the card were to be made at a Sears store. The card was issued for the sum of approximately $400, according to Ms. Goins.
Ms. Goins later testified that she was suspicious of Ms. Oliver because of the return of two major appliances that were unaccompanied by a receipt. Because of her suspicions, Ms. Goins notified Joseph Bernard, the store's safety asset coordinator. Ms. Goins relayed to Mr. Bernard an account of the return and a description of the customer. At the time of the advisory, Mr. Bernard was located in the store's surveillance camera room where he was able to observe various locations in and outside the store. Mr. Bernard alerted the security manager, Walter Dominique. The two men watched Ms. Oliver on the surveillance cameras. Ms. Oliver was observed leaving the house ware department, going to the first floor by escalator, and exiting the store. At this time, she was carrying two bags, each containing a juicer.
Once outside the store, Ms. Oliver walked to a white vehicle parked in the adjacent lot. She placed one bag of merchandise on the ground and the second bag of merchandise in the white car. She removed the juicer from the bag that was located in the vehicle and left the juicer in the vehicle. She tore the bag and then crumpled it and placed this empty bag inside the bag containing the juicer that was located on the ground. Thereafter, Ms. Oliver returned to the store with the bagged juicer which also contained the empty bag. Ms. Oliver *949 again returned to the house ware department.
As Mr. Bernard and Mr. Dominique watched on surveillance cameras, Ms. Oliver walked to the corner of the house ware department, removed a sign from the merchandise, and retrieved another boxed juicer. Ms. Oliver now had two juicers in bags and one of the bags was torn. She asked Ms. Goins for a new bag in order to replace the torn one. Ms. Oliver presented the sales associate with a receipt, which indicated that two juicers had been purchased that day for $179.99 each, using a gift card.
Using the previously taken path, Ms. Oliver left the department, stepped onto the escalator to reach the first floor, and walked in the direction of the exit to the parking lot. Mr. Dominique confronted Ms. Oliver before she exited the store. Ms. Oliver asked Mr. Dominique whether she had done something wrong, and Mr. Dominique asked her to accompany him to the security office. Ms. Oliver did so and she was questioned about the newly acquired juicer. Ms. Oliver told Mr. Dominique she had purchased the juicer; however, she was not able to produce a receipt. Jefferson Parish Sheriffs Office was called and an officer arrived at the scene. Ms. Oliver agreed to a search of her vehicle. Two juicers were seized from the vehicle. The third juicer was returned to the store.[[2]] That item was photographed and returned to the sales shelf. Thereafter, Ms. Oliver was arrested and charged with theft.
State v. Oliver, 03-416 at 2-5, 857 So.2d at 1228-29.
APPEAL
In her first pro se assignment of error, the defendant alleges that the trial court erred by allowing one of the items seized from the appellant[']s car during the unlawful search to be admitted before the jury throughout the trial. Defendant argues the improperly admitted evidence, regarding a "third juicer" or "other juicer," was seized in an unlawful search of her car. The State responds that defendant is not entitled to relief because she failed to preserve the issue for appeal.
Defendant filed a pre-trial motion to suppress evidence, but the record does not indicate that the motion was ever heard. State v. Oliver, 03-416 at 2, 857 So.2d at 1228. A defendant waives all pending motions by permitting trial to proceed without raising the issue that his pre-trial motions were neither heard nor ruled on. State v. Fletcher, 02-707, p. 5 (La. App. 5 Cir. 12/30/02), 836 So. 2d 557, 559, writ denied, 03-0409 (La.10/10/03), 855 So. 2d 334.
A review of the trial proceedings reflects that there was mention throughout the trial of all three juicers involved in the incident. Even defense counsel, in his opening statement, referred to the juicer defendant put in her car. Defendant did not object to any references to the juicers until the testimony of Walter Dominique, the State's last witness. Under LSA-C.Cr.P. art. 841, "[a]n irregularity of error *950 cannot be availed of after verdict unless it was objected to at the time of occurrence."
During Mr. Dominique's testimony, defendant objected to the mention of items seized from her vehicle after she was apprehended. Specifically, the prosecutor asked Mr. Dominique what, if anything, he saw in defendant's vehicle during his investigation of the incident. Mr. Dominique responded, "There were several items of Sears merchandize [sic] that had Sears tags on it, mostly small appliances like mixers, George Foreman Grills." Defense counsel objected and stated, out of the jury's hearing,
My objection is that they go out to the car and they find numerous items other than the juicers, none of which are stolen, although the report tries to infer that there's something illegal or stolen about it. To my knowledge, it is not the subject of this trial, so the inference is that perhaps there's something illegal and improper about these items being in the car, which is what the report basically intimates. Judge, it just doesn't come in because it's not the subject of this trial. It's bringing in other evidence. And if it is not, then what's the purpose of bringing it in? If he's going to say he went out and recovered one juicer because that's all there could have been out there since she brought back one with her that was already paid for, but these other items are paid for as far as we know.
The trial judge ordered an evidentiary hearing, out of the jury's presence, regarding whether the search of defendant's vehicle in the parking lot of Oakwood Mall was lawful, and consequently, whether the evidence found in the car was admissible. Mr. Dominique testified he was present when the evidence was located in defendant's car. Some of it was in the passenger area of the car, and some of it was in the trunk. He looked through the car's windows and saw some of the items. Mr. Dominique saw defendant hand her car keys to a deputy, and then officers searched the vehicle. Mr. Dominique said he did not search the car himself, nor did he seize any items from the car. He testified all of the property taken from the car was photographed and turned over to the Jefferson Parish Sheriffs Office. The only item the store kept was "the last juicer when she came in the store and picked it up and put it in the bag." Mr. Dominique further testified that he did not know whether police seized the items from the car before or after defendant signed a "consent to search" form.
The judge ruled:
I'm not going to allow this evidence before the jury. I do not find that the constitutionality of the search has been established through this witness. The search was not one of his own. There's a question as to when the consent was given and under what circumstances and that must be established by the police officer. I have not ruled that it is inadmissible. I am ruling that it is not by this witness. I further find that his presence at the car was provoked by the police who were on the way out to search the vehicle. Had he gone out on his own and viewed it through that window, I would have allowed it, but he went out with the police officers who had obtained consent presumably by this witnessI mean by the defendant. Until such time as that is established, that evidence will not be admitted before the jury, and the defense's objection is sustained.
At the conclusion of the hearing, the jury returned to the courtroom, and the judge instructed them to "disregard any testimony by [Mr. Dominique] of items that he viewed inside the defendant's vehicle." The prosecutor continued questioning *951 Mr. Dominique regarding the last juicer defendant picked up in the store. Mr. Dominique testified that he photographed the "third juicer" and put it back on the sales floor. He stated that the "other juicer" (assumedly the second one in defendant's possession when Mr. Dominique stopped her) was taken by the police department. Defendant did not object to that testimony, nor did she object to the admission of State's Exhibit 3, a photograph of the juicer that Mr. Dominique returned to the sales floor. As the judge ordered, the State did not attempt to elicit any further testimony regarding the search of the car. The jury did not hear any testimonyeither before or after defendant's objectionabout the seizure of a juicer from defendant's vehicle.
Based on the foregoing, defendant fails to show the trial court erred. This allegation of error has no merit.
In her second pro se allegation of error defendant argues that her conviction was obtained in violation of the equal protection clause of the Louisiana Constitution, Article 1 § 3. Defendant argues LSA-R.S. 14:67.10 is unconstitutional because it establishes different grades of penalties for the theft of goods from merchants than the general theft statute, LSA-R.S. 14:67, does for theft from other businesses and private persons. She points out that under LSA-R.S. 14:67, the $179.00 theft for which she was prosecuted would have been classified as a misdemeanor; and that under LSA-R.S. 14:67.10, she was charged with a felony. Consequently, she was subject to an enhanced sentence as a habitual offender. The State responds that the Louisiana Supreme Court has addressed this issue, and has found that LSA-R.S. 14:67.10 does not violate equal protection.[3]
A statute is presumed constitutional and the burden of proving a claim of unconstitutionality rests upon the party attacking the statute. State v. Interiano, 03-1760, p. 4 (La.2/13/04), 868 So. 2d 9, 13. The constitutionality of a statute cannot be raised for the first time on appeal; it must first be presented in the trial court. Williams v. State, Dept. of Health and Hospitals, 95-0713, p. 4 (La.1/26/96), 671 So. 2d 899, 901; State v. Michel, 07-47, p. 15 (La.App. 5 Cir. 5/29/07), 961 So. 2d 516, 526, writ denied, 07-1422 (La.1/7/08), 973 So. 2d 732. A party contesting the constitutionality of a statute has a three-tiered burden: 1) the presentation must be made in the trial court; 2) the claim of unconstitutionality must be specially pleaded; and 3) the grounds for the claim must be particularized. Williams, 95-0713 at 4-5, 671 So.2d at 902; Mickel, supra. In this case, defendant did not raise the constitutionality issue in the trial court. Accordingly, the question of constitutionality is not properly before this Court and should not be addressed. See State v. Mickel, 07-47 at 16, 961 So.2d at 526-27.
Defendant's argument also fails on the merits. At the time of defendant's offense, LSA-R.S. 14:67.10 B(2) provided that theft of goods valued at $100.00 or more, but less than $500.00, was a felony punishable by imprisonment, with or without hard labor, for not more than two years. Under LSA-R.S. 14:67 B(3), a misappropriation or taking amounting to less than $300.00 was a misdemeanor punishable by imprisonment for up to six months. In State v. Fleury, 01-0871 (La.10/16/01), 799 So. 2d 468, the Louisiana Supreme Court, under facts similar to those in the instant case, rejected the defendant's argument that LSA-R.S. 14:67.10 is *952 unconstitutional[4]. For the reasons expressed by the supreme court in Fleury, the sentencing scheme of LSA-R.S. 14:67.10 does not violate equal protection. This pro se assignment of error lacks merit.
WRIT APPLICATIONS
The instant writ applications originated from a July 9, 2008 district court ruling denying relator's "Motion to Correct Illegal Sentence/Motion Requesting Retroactive Application of Recent Enactment of LSA-R.S. 14:67.10(2)." In her motion, relator complained she was convicted and sentenced as a felon under the version of LSA-R.S. 14:67 B(2) in effect at the time of her offense. That subpart has since been amended, and the theft of which relator was convicted would now be a misdemeanor-grade offense. Under the current version of the statute, relator argued, she could not be sentenced as a habitual offender. Relator moved the district court to apply the more recent version of the statute to her case retroactively. Relator also argued that this Court had failed to rule on the pro se assignments of error she filed with her original appeal.
In her prior pro se writ application, no. 08-KA-639, relator made two claims: 1) the sentencing amendment to LSA-R.S. 14:67.10 B(2) should be applied retroactively to her 2001 sentence, and 2) this Court failed to consider her supplemental pro se assignments in her original appeal. In short, relator argued she was entitled to retroactive application of the revised sentencing provision because her sentence was not final. She claimed her sentence was not final because this Court failed to rule on the issues she raised in her pro se supplemental brief. As stated earlier, this court granted 08-KH-639 c/w 08-WR-901 and set aside the trial court's ruling, and provided for docketing of defendant's pro se allegations of error.
When it vacated the district court's July 9, 2008 ruling, the writ panel did not address the merits of relator's retroactivity claim. We believe that the writ panel intended to refer that claim to the merits of relator's pro se appeal assignments.
In the current two writ applications, relator points out that there is now no ruling on her motion to correct illegal sentence. She apparently wants this Court to rule in her favor on the merits of her retroactivity claim, and to order the district court to carry out such ruling. In order to reach the merits of the retroactivity claim, we recognize the district court's ruling of July 9, 2008, denying retroactive application of the sentencing changes to LSA-R.S. 14:67.10 B(2).
Relator committed the offense at issue on February 8, 2001. The theft involved goods valued at $179. At that time, LSA-R.S. 14:67.10 B(2) provided:
When the misappropriation or taking amounts to a value of one hundred dollars or more, but less than a value of *953 five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years or may be fined not more than two thousand dollars, or both.
Relator's crime was thus categorized as a felony.
The theft of goods statute was amended in 2006 so that LSA-R.S. 14:67.10 B(3) now provides, in pertinent part, "When the misappropriation or taking amounts to less than a value of three hundred dollars, the offender shall be imprisoned for not more than six months or may be fined not more than five hundred dollars, or both." As relator points out, theft of goods valued at $179.00 is a misdemeanor under the current version of the statute.
It is well established that the applicable sentencing scheme is the one in effect at the time the offense is committed. State v. Sugasti, 01-3407, p. 4 (La.6/21/02), 820 So. 2d 518, 520; State v. Bellow, 08-259, p. 20 (La.App. 5 Cir. 7/29/08), 993 So. 2d 307, 318, writ denied, 08-2109 (La.4/13/09), 5 So. 3d 162. The Louisiana Supreme Court has held that the "mere fact that a statute may be subsequently amended, after the commission of the crime, so as to modify or lessen the possible penalty to be imposed, does not extinguish liability for the offense committed under the former statute." State v. Narcisse, 426 So. 2d 118, 130 (La.1983), cert. denied, 464 U.S. 865, 104 S. Ct. 202, 78 L. Ed. 2d 176 (1983). Relator points to nothing in the enacting legislation or in the amended statute that indicates the new sentencing provisions should be applied to her retrospectively. Based on the foregoing, we deny defendant's applications for writs.
For the above discussed reasons, we affirm defendant's conviction and sentence. We further deny relief in writ applications no. 09-KH-710 and no. 09-KH-711.
CONVICTION AND SENTENCE AFFIRMED; APPLICATIONS FOR WRITS DENIED.
NOTES
[1] State v. Cordero, 08-1717 (La.10/3/08), 993 So. 2d 203.
[2] The surveillance tape from Sears (State's Exhibit 1) shows defendant put one juicer in her car, and that she was carrying two juicers when she was apprehended by Mr. Dominique. The trial testimony of the Sears employees also indicates defendant had two juicers with her when she was stopped by Mr. Dominique, and that she was seen placing only one juicer in her vehicle. There seems to have been some confusion about this at trial. During a bench conference, both the judge and defense counsel stated that they understood there was one juicer in the car and two with defendant. But the prosecutor disputed that, stating two juicers were seized from the car. The prosecutor's assertion does not seem to be supported by the evidence.
[3] Since defendant, in her second pro se assignment, challenges the constitutionality of a state statute, this court sent notice by certified mail to the Louisiana Attorney General's Office in accordance with LSA-R.S. 13:4448.
[4] The defendant in Fleury argued LSA-R.S. 14:67.10 is discriminatory on its face because it provides classifications based on the victim's status, distinguishing between theft of goods from a merchant and theft from another type of business or an average citizen. The Supreme Court rejected the defendant's argument, reasoning that the dissimilar punishments based on the status of the theft victim were warranted because a merchant is more affected by a particular type of theft, i.e., shoplifting, than are other businesses or individuals. Fleury, 01-0871 at 8, 799 So.2d at 473-74. The defendant in Fleury also argued that LSA-R.S. 14:67.10 does not further an appropriate state interest because it does not protect other businesses from theft to the extent that it protects retail merchants. The Supreme Court rejected that argument too, noting that the greater penalties under LSA-R.S. 14:67.10 reflect "the legislature's desire to address a particular social evil, shoplifting." Fleury, 01-0871 at 10, 799 So.2d at 475. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556159/ | 30 So. 3d 19 (2009)
Michael STAMPS, Glenn Miller, Michael Chauvin, Billie Hartline and Randolph Doucet
v.
JEFFERSON PARISH ADMINISTRATION (Public Works-Sewerage).
No. 09-CA-443.
Court of Appeal of Louisiana, Fifth Circuit.
December 8, 2009.
*21 Scott W. McQuaig, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
Clement P. Donelon, Attorney at Law, Metairie, LA, for Defendant/Appellee.
Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and MARC E. JOHNSON.
MARC E. JOHNSON, Judge.
The Plaintiffs, Michael Stamps, Glenn Miller, Michael Chauvin, Billie Hartline and Randolph Doucet, appeal their suspensions without pay for violating the Jefferson Parish Workplace Harassment Policy, No. 2.02 (the harassment policy).[1]
The Plaintiffs were suspended in November of 2007 as a result of displaying certain items in the office of the Jefferson Parish Department of Public Works-Sewerage (the Department) that were alleged to be of such a nature as to harass, harm, or offend the public and/or other employees. The items displayed were:
1) A large white rope with a knot and a running loop (rope).
2) A black whip (whip).
3) A sign that read: "Bill's Whipping Post" (sign).
4) A dart board with a picture of a man holding a large yellow fin tuna.
5) A kicking device which was operated by pulling a rope which had a loop at the end of the rope.
Each of the Plaintiffs worked for the Parish of Jefferson in some capacity for over 20 years. During a period from six to fifteen years, the objectionable items were on display in the Department's office. All of the Plaintiffs were aware that the items were plainly visible to anyone who entered, and all were in supervisory positions during all or part of that time period.[2]
In addition, the objects remained on display throughout a period of exacerbated racial tensions in Louisiana resulting from an incident in which three nooses were hung from a tree outside a high school in Jena, Louisiana. The Jena incident was the focus of national media attention during the summer and fall of 2007. Nevertheless, none of the Plaintiffs took any steps to have the objects in the Department removed.
None of the items in question were owned and/or placed in the office by any of the Plaintiffs. Although the office was visited over the years by other Jefferson Parish employees, supervisors, members of *22 the administration, and the public, no one was instructed to remove the items from the workplace, no one ever complained about any of the items, and no one was warned that any of the respective items may be considered to be offensive by either a Jefferson Parish employee or member of the public.
In November of 2007, Terrance Lee filed a civil rights complaint of racial discrimination with the Federal Bureau of Investigation (FBI) regarding the five objects displayed in the Department. Lee had worked around the items and was aware of their existence for a number of years. In addition, Lee often filed grievances and/or complaints, and he took pictures of the items eighteen months prior to making his first complaint. He lodged the complaint after he was disciplined for other reasons.
The Jefferson Parish Administration and the Jefferson Parish Department of Human Resource Management first learned that the five objects were on display in the Department's office on November 7, 2007 following the complaint made by Lee. At that time, the Parish Administration immediately ordered the objects to be removed.
On November 13, 2007, the Parish President appointed Tim Whitmer, Chief Administrative Assistant, to investigate the complaint filed by Lee and to serve as the Appointing Authority in regard to any disciplinary actions that needed to be taken as a result of Lee's complaints of racial discrimination in the Department. Whitmer asked the Chief Administrative Assistant, Darryl Ward, an African-American, to conduct the investigation. He commenced by going to the location where the objects were located, and later interviewing fifty-two past and present employees of the Department.
After the completion of that investigation and after conducting a pre-disciplinary hearing with each Plaintiff, Whitmer issued a Letter of Discipline (LOD) to the Plaintiffs. Whitmer found that the Plaintiffs violated the harassment policy and the Jefferson Parish Employee Regulations of Conduct (ROC). He found that the Plaintiffs, inter alia, allowed the five objects to remain on display for an extended period of time; failed to take appropriate steps to either remove the objects, or have the objects removed; failed to assist in the maintenance of a work place free of harassment; and failed to take appropriate steps to remove the open display of objects which could serve to offend and harass other employees.
Stamps, Hartline, and Miller were each suspended for thirty days without pay. Chauvin and Doucet were each suspended for twenty days without pay.
The Plaintiffs subsequently filed appeals with the Jefferson Parish Personnel Board (JPPB). The Personnel Board appointed a hearing officer to conduct the hearings on the appeals. The Hearing Officer consolidated the appeals. He heard the appeals on five different days beginning in June of 2008 and ending in November of 2008.
On January 13, 2009, the Hearing Officer issued decisions reducing the suspensions. He found that the objects "were inappropriate to a workplace environment and should not have been in a Jefferson Parish Office, especially the darts, for the dart board." The Hearing Officer found that all five Plaintiffs violated ROC. However, the Hearing Officer determined that "no harassment was intended and in fact, none occurred," and as a result, the Hearing Officer determined that the Plaintiffs did not violate the Parish's workplace harassment policy. Consequently, the Hearing Office reduced Hartline's suspension *23 from thirty to twenty days, Stamp's and Miller's suspensions were reduced from thirty to fifteen days, Doucet's suspension was reduced from twenty to ten days, and Chauvin's suspension was reduced from twenty to five days.
The Appointing Authority then appealed to the Jefferson Parish Personnel Board (JPPB) which issued a judgment on February 26, 2009. The JPPB reversed the decisions of the Hearing Officer, and reinstated the Appointing Authority's suspensions. The JPPB stated in its ruling, "After reviewing the hearing transcripts, pleadings and the record, the Board has reached a unanimous decision in this matter that the Appellants violated the Jefferson Parish Workplace Harassment Policy as written, no intent being required, and the penalties imposed albeit harsh, are within the discretion of the Appointing Authority."
The issues on appeal are whether the JPPB committed manifest error by reversing the decisions of the Hearing Officer; in failing to rescind the suspensions, substituting the suspensions with an appropriate letter of warning; and in failing to award the Plaintiffs back pay, attorney's fees and costs. The Plaintiffs also assert that the JPPB erred by accepting or considering certain documents provided by the Hearing Officer with the Application for Review of the Hearing Officer's decision that had not been introduced into the record, contrary to the JPPB Rules of Appeal Procedure and other applicable law.
The Plaintiffs first contend that the JPPB was manifestly erroneous in sustaining the suspensions.
The Plaintiffs argue that the Hearing Officer listened to five days of live testimony, considered the credibility of the witnesses, and correctly characterized the items and intent of the Plaintiffs. He described the rope with the large knot and running loop "as a lariat of the kind used to rope cattle," and the whip "as a gift to Bill Hartline as a joke to go along with the whipping post." He stated that the third item was "a dart board with a photograph of a man who had gone fishing with members of the Sewerage Department and darts." The Hearing Officer concluded that this item was "a way of mocking the man in the photo who did not live up to his agreement to share the fish, but who took what must have been a bigger share with him at the conclusion of the trip." The fourth item was a kicking mechanism, described as a device made to resemble the device Wyle E. Coyote used to punish himself when he would fail to capture the road runner in the popular cartoon "The Road Runner." The Hearing Officer concluded that the items were intended to be humorous, not to harm or harass anyone. Thus, the Plaintiffs claim Appointing Authority failed its burden of proving that a violation of the Parish workplace policy had occurred, as no harassment was intended and in fact, no harassment had ever occurred.
The Plaintiffs note that the Hearing Officer made a specific reference to the fact that Lee took the photographs over an eighteen month period, and only filed a complaint after he was disciplined for other reasons.
The Plaintiffs further argue that it is uncontroverted that the items were neither owned by, nor placed in the office by any of the Plaintiffs. The kicking device was built fifteen to eighteen years prior to this litigation. The dart board was placed in the office after a fishing trip five to six years prior to this litigation. The whip, rope, and whipping post sign were assembled by prior employees of the Department years before, and Hartline, a Plaintiff here, was the brunt of that joke.
*24 They also point out that the items were repeatedly mischaracterized and misrepresented by the media and the Appointing Authority. The Plaintiffs argue that the harsh reaction by the Parish to the discovery of these items was a knee-jerk reaction caused by the media, the NAACP, and the threat of litigation by the complaining employee, and did not result from an act or omission by the Plaintiffs. They argue that they received a severe discipline due to pressure from the events that had occurred in Jena, Louisiana involving the display of a noose at the high school, and the subsequent racial tensions there. Hence, the characterization of the rope in this case as a noose, when it was not intended to be anything other than a cattle rope, and the characterization of the face on the dart board as African American, when the face was actually of a Caucasian man. The Plaintiffs further note that the Appointing Authority failed to call Lee to testify at the hearing, and only presented the testimony of Ward, its investigator. Although Ward testified that he found the items offensive, he also incorrectly characterized the rope as a noose and another item as a gallows type device.
The Defendant argues that the Plaintiffs did violate the workplace harassment policy. It cites the testimony of Ward and the U.S. Equal Employment Opportunity Commission (EEOC) determination that there was reasonable cause to believe that the presence of the rope and other objects on display in the Department were racially offensive and constituted a violation of Title VII.
The documents submitted by the Defendant in its application for review of the Hearing Officer's decisions contained the five decisions of the Hearing Officer, a copy of the Parish workplace harassment policy, a copy of the EEOC Determination, and photographs of the rope and whip, all of which were introduced into evidence. The items that were not entered into evidence at the hearing were: a one page transcript of comments made by the hearing officer at a disciplinary hearing involving Lee on May 13, 2008; an article in the New Orleans, Louisiana newspaper, the Times-Picayune (T-P) dated May 14 2008 that quoted those comments; and one page from Ward's testimony at the hearing. According to the hearing officer's comments made after Lee's disciplinary hearing, Lee complained in his testimony that the Defendant was retaliating against him for complaining about the objects at issue here. The hearing officer at that time described the items differently than in the 2009 decisions and stated that Lee was upset every time he saw them.
The Jefferson Parish Personnel Rules (the Rules), Rule II, Section 8.1 grants to the JPPB the authority to hear and decide all removal and other actions appealable under the Rules.
A civil service employee is afforded protection in disciplinary actions, taken without cause, pursuant to La. Const. Art. 10 Sec. 8(A). St. Pe' v. Jefferson Parish Dept. of Public Works-Drainage Pump Stations, 06-779, p. 3 (La.App. 5 Cir. 3/13/07), 956 So. 2d 623, 625; Adams v. Jefferson Parish Department of Community Action Programs, 02-1090, p. 4 (La. App. 5 Cir. 4/29/2003), 845 So. 2d 1147, 1150; Lewis v. Jefferson Parish Dept. of Public Works, 99-16, p. 4 (La.App. 5 Cir. 5/19/99), 761 So. 2d 558, 559, writ denied, 99-2906 (La.1/14/00), 753 So. 2d 215. Cause is synonymous with legal cause, and legal cause is when the employee impairs the efficiency of the public service. St. Pe', 06-779 at 3, 956 So.2d at 625; Bruno v. Jefferson Parish Library Dept., 04-504, p. 7 (La.App. 5 Cir. 11/30/04), 890 So. 2d 604, 608.
*25 The appointing authority bears the burden of proving legal cause. St. Pe', 06-779 at 3, 956 So.2d at 625; Adams, 02-1090 at 4, 845 So.2d at 1150; Lewis, 99-16 at 4, 761 So.2d at 559. In addition, the personnel board has a duty to decide, independently from the facts presented, whether the appointing authority has good and lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. St. Pe', 06-779 at 3, 956 So.2d at 625; Bruno, 04-504 at 7, 890 So.2d at 608.
On appeal, this Court applies the clearly wrong or manifest error rule. St. Pe', 06-779 at 3, 956 So.2d at 625; Lewis, 99-16 at 4, 761So.2d at 560. For a review of an administrative disciplinary decision, the appellate court is limited to a determination of whether the decision was made in good faith for legal cause. Unless the record contains insufficient evidence to support the administrative decision or shows that the decision was clearly wrong, the decision must be affirmed. St. Pe', 06-779 at 3, 956 So.2d at 625; Lewis, 99-16 at 4, 761 So.2d at 560.
The ROC provides in pertinent part that "Each employee, because of his job and assignment, has to perform certain duties and assume responsibilities. An employee's failure in either or both of these areas is neglect of duty." ROC, Section 3.14, Neglect of Duty.
The Appointing Authority also disciplined the Plaintiffs for violating Section 7.03 of the ROC which lists, inter alia, the following as prohibited conduct and grounds for disciplinary action:
2. Engaging in fighting, horseplay, scuffling, practical joking, pushing, shoving... or other such disruptive and non-productive behavior.
6. Threatening, intimidating, coercing, distracting, causing confusion, shouting, or in any way interfering with work of fellow employees.
12. Insubordination or refusing to obey orders.
16. Committing any act to discredit, disrupt, or prejudice of the Parish; violating any laws, rules, or regulations of the nation, state, parish, or other competent jurisdiction; conviction of a felony offense while employed.
18. Violation of "Sexual Harassment," "Harassment," "EEO", and/or "Violence in the Workplace Policies".
19. Unsatisfactory job performance; violation of "Employee Duty Expectations."
Jefferson Parish adopted the workplace harassment policy in recognition of its legal responsibility to prevent the creation of a hostile, and/or racially insensitive and/or racially provocative workplace environment.
The workplace harassment policy provides that "it is the intent of the Jefferson Parish Government to provide and maintain a workplace free of all types and forms of harassment, including but not limited to harassment based on disability, national origin, age, race, color, religion or gender." Paragraph II, Policy. That section further states that the employee is prohibited from "... conduct that harasses, denigrates, shows hostility, insults or involves offending acts such as epithets, slurs, negative stereotyping, threatening behavior, public humiliation, or posting, distributing, creating, or displaying written or graphic materials which serve to offend and harass an individual or group of individuals."
The objectives of the workplace harassment policy include providing a workplace which is conducive to efficient, productive public service and to ensure that employees do not have to endure harassment. *26 Paragraph III, Policy Objectives. All employees, including supervisors, are responsible for promoting a workplace free of harassment and complying with the policy. Paragraph IV, Policy Scope, and Paragraph V, A., Supervisor Responsibility.
Supervisors under the Policy must assist in maintaining a workplace free of harassment, including periodically inspecting work locations and facilities on a regular basis to insure that no offensive materials are posted or displayed. Paragraph V, A, Supervisor Responsibility.
The evidence shows that all of the Plaintiffs worked in supervisory capacities while the items were displayed. They were aware of and received training about the harassment policy. Stamps testified that the policy was usually discussed in staff meetings. The other four Plaintiffs received copies of and signed a receipt for the harassment policy and ROC.
In McGinest v. GTE Service Corp., 360 F.3d 1103, 1115 (9th Cir.2004), cert, denied, 552 U.S. 1180, 128 S. Ct. 1226, 170 L. Ed. 2d 61 (2008), the Court held that allegations of a racially hostile workplace must be assessed from the perspective of a reasonable person belonging to the racial group of the complainant.
In this case, Ward testified that the fifty-two past and present employees he interviewed indicated that there was no racial intent in displaying the objects or allowing them to remain in the office, although one or two said they complained verbally to their supervisors. Nevertheless, Ward testified he was offended, particularly by the whip, and the rope which he perceived as a noose. Ward is the Chief Administrative Assistant, and his testimony was credible. His opinion indicates that the items were at the very least potentially offensive to reasonable African-Americans. That conclusion is supported by the reasonable cause determination issued by the EEOC, which also found the items racially offensive. After hearing this testimony, Stamps and Miller conceded that the rope and the whip had the potential to be racially insensitive or racially provocative.
Based on this evidence, we find that the Plaintiffs violated the ROC and the workplace harassment policy by failing to remove the objectionable items, have them removed, or report their existence to the appropriate authority, if there had been resistance to their removal. The fact that the items had been there for a long time, or that the Plaintiffs did not consider the items to be anything other than jokes on each other is irrelevant. It is the perception of the observer that determines whether an act or display is legally considered harassment. The perception here is that the items were racially offensive.
In regard to the JPPB's consideration of Lee's transcript from his hearing and the T-P article that were not part of the record, there is sufficient evidence to support the decision of the JPPB without consideration of those documents. Furthermore, the JPPB had the right to consider all of the evidence produced at the hearing, including the copy of Ward's testimony. The JPPB is authorized to review the entire record to determine whether the Hearing Officer erred in his decisions. See St. Pe', 06-779 at 3, 956 So.2d at 625; Lewis, 99-16 at 4, 761 So.2d at 560. In addition, the Board also based its decision on the fact that no intent is necessary to find a violation. We agree that no intent is required in order for an employee to violate the harassment policy.
Consequently, we find no manifest error in the decision by JPPB finding that the Plaintiffs violated the harassment policy.
*27 The Plaintiffs further argued that the suspensions were excessive in light of facts, and that they were harsh, as they were suspended without pay near the Christmas holidays.
The JPPB recognized that the penalties imposed by the Appointing Authority were harsh. However, the Plaintiffs allowed the items to be displayed for many years, even during a period of racial tension. The Plaintiffs' insensitivity to the possible misinterpretation of the meaning of the display, combined with their positions of authority, warrants the penalties imposed. Thus, we find that the JPPB did not err in failing to reverse the suspensions, or reduce the length of the suspensions.
Accordingly, we hereby affirm the decision of the Jefferson Parish Personnel Board.
AFFIRMED.
NOTES
[1] Policy No. 2.02 was promulgated in 1996 by the Jefferson Parish President in a document entitled Administrative Management Policy Memorandum.
[2] Stamps has been the Assistant Director since 1998. Miller was a Superintendent II from 2003 to 2006 when he was promoted to General Superintendent of Lift Stations. Hartline was Sewerage Maintenance Foreman from 1999 until he was promoted in 2003 to Sewerage Lift Station Superintendent II. Chauvin has been a Foreman I since 2003. He reports to Hartline. During the relevant time period, Chauvin was the immediate supervisor of four laborers who worked in the Department, including Terrance Lee, an African-American, the complainant in this case. Doucet was a Sewerage Lift Station Superintendent II from 1997 to July of 2003. All, except Stamps worked in or near the office containing the items in plain view, and Stamps went into the office regularly. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561625/ | 66 S.W.3d 467 (2001)
Jose C. MARTINEZ, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 01-99-01329-CR, 01-99-01330-CR, 01-99-01331-CR, 01-99-01332-CR.
Court of Appeals of Texas, Houston (1st Dist.).
December 13, 2001.
Rehearing Overruled January 31, 2002.
*468 Jon A. Jaworski, Houston, for Appellant.
Alan Curry, Asst. Dist. Atty., Houston, for State.
Panel consists of Justices COHEN, HEDGES, and TAFT.
OPINION
ADELE HEDGES, Justice.
Appellant was charged with four separate felony offenses of intoxication manslaughter.[1] After appellant pleaded not guilty, a jury found him guilty and assessed punishment for each offense at confinement for 15 years. The trial court ordered that the sentences run consecutively. We affirm.
Background
Kurt Groten and his wife, Lisa Groten, and their three children were driving home from Hobby airport in their Ford Expedition. Appellant, who was driving an 18-wheeler on the same freeway, attempted to pass the Grotens on the left side. The 18-wheeler tipped over and crushed the Expedition, killing everyone inside except Lisa. After officers arrived at the scene, they determined that appellant was intoxicated and placed him under arrest.
In six points of error, appellant argues that: (1) the evidence is legally and factually insufficient to support the convictions; (2) the trial court erred in ordering appellant's sentences to run consecutively; (3) the trial court erred by denying appellant's request to have the jury determine whether the sentences should run consecutively or concurrently; (4) section 3.03(b) of the Texas Penal Code is void and unconstitutional; and (5) the trial court violated appellant's constitutional right of confrontation. We affirm.
Legal Sufficiency
In his first point of error, appellant argues that the evidence is legally insufficient to support his conviction because the State did not prove that appellant's intoxication caused the deaths of the complainants. Specifically, appellant argues that the State presented no evidence that his intoxication caused the deaths of the complainants. Appellant does not dispute the officer's conclusions or the intoxilyzer results that he was intoxicated. He argues only that the evidence was legally insufficient to prove that his intoxication caused the deaths of the victims.
In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime *469 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979).
A person commits the offense of intoxication manslaughter if he: (1) operates a motor vehicle in a public place; (2) is intoxicated; and (3) by reason of that intoxication causes the death of another by accident or mistake. See Tex. Pen.Code Ann. § 49.08(a)(1), (2) (Vernon Supp.2001).
At trial, Herman Wright, III testified as an eyewitness to the accident. He testified that he saw the 18-wheeler before the accident, and that it appeared as though it was moving too fast. Another eyewitness, Walter Wilson, testified that the 18-wheeler swerved to the right and then tried to adjust and go back to the left. At that point, the trailer buckled and the load shifted, thus causing the 18-wheeler to fall on the Expedition. Wilson did not see the 18-wheeler brake at any time. He also testified that the posted speed limit was 50 miles per hour, and that the 18-wheeler was "hitting more than 50." Wilson also saw appellant after the accident. When appellant exited his 18-wheeler, Wilson thought that he had been drinking.
The jury was properly charged on causation. Section 6.04 of the Texas Penal Code provides that, "A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient." Tex. Pen.Code Ann. § 6.04 (Vernon 1994). Based on the testimony from Wilson and Wright, we conclude that there was sufficient evidence in the record from which the jury could find beyond a reasonable doubt that appellant caused the deaths of the four victims by reason of his intoxication.
We overrule appellant's first point of error.
Factual Sufficiency
In his second point of error, appellant argues that the evidence is factually insufficient to show that appellant, by reason of his intoxication, caused the deaths of the complainants. Under the factual sufficiency standard, we ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000). We will reverse the fact finder's determination only if a manifest injustice has occurred. Id. In conducting this analysis, we may disagree with the jury's determination, even if probative evidence supports the verdict, but must avoid substituting our judgment for that of the fact finder. Id.
In support of his factual sufficiency challenge, appellant argues that the evidence is factually insufficient based on the testimony of Officers Kessler and Saenz. Kessler, who is certified in safety inspections of 18-wheelers, testified that, after inspecting the 18-wheeler, he found: (1) a defective front steering axle; (2) three and one-half of the four brakes were not working; and (3) the cargo inside the 18-wheeler was not secured properly to prevent sideways shifting. Officer Saenz, an accident reconstruction expert, testified that: (1) the 18-wheeler was positioned in the right lane, behind the Expedition; (2) the 18-wheeler changed lanes from the right to the left in order pass the Expedition; and (3) during the lane-change, the weight of the cargo shifted, which caused the trailer portion of the 18-wheeler to fall on *470 top of the Expedition. Appellant argues that the testimony of these two officers demonstrates that the unsecured cargo caused the 18-wheeler to crush the Expedition.
Although this evidence tends to show that the 18-wheeler may have had safety violations and that it may have been improperly loaded, we conclude that, based on section 6.04 of the Penal Code, the improper loading of the cargo, as testified to by Officer Saenz, was not clearly sufficient to produce the result. Furthermore, we conclude that appellant's intoxication was not clearly insufficient to cause the accident. The two eyewitnesses to the accident both testified that appellant was driving too fast. Appellant's conduct, namely, his intoxication combined with the act of driving an 18-wheeler on a public highway above the legal speed limit, cannot possibly be characterized as being insufficient conduct to cause the accident.
After reviewing all the evidence admitted in this case in a neutral light, we do not find that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination. Nor do we find that the proof of guilt is greatly outweighed by contrary proof presented by appellant. Accordingly, we hold that the evidence was factually sufficient to support the jury's verdict that the victims' deaths were caused by appellant's intoxication.
We overrule appellant's second point of error.
Consecutive Sentences
In his third point of error, appellant argues that the trial court erred in ordering appellant's sentences to run consecutively. Specifically, appellant argues that he elected to have the jury, not the trial court, both assess his punishment and decide whether the sentences would run consecutively or concurrently.
Penal Code section 3.03 provides:
(a) When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently.
(b) If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:
(1) an offense;
(A) under Section 49.08
TEX. PEN.CODE ANN. § 3.03(a), (b)(1)(a) (Vernon Supp.2001).
Appellant elected to have the jury assess his punishment. He also requested that the jury give the trial court a recommendation as to whether the sentences should run consecutively or concurrently. The trial court denied his second request.
Appellant correctly points out that section 3.03 is silent about whether the trial court or the jury decides if sentences should run consecutively or concurrently. However, the Court of Criminal Appeals has previously held that "it was within the trial court's discretion to sentence appellant consecutively for any of the intoxication manslaughter offenses." Yvanez v. State, 991 S.W.2d 280, 282 (Tex.Crim.App. 1999). We agree with Yvanez, insofar as the trial court has discretion in deciding whether a defendant's sentences run consecutively. See id. Accordingly, the trial court did not err in determining that appellant's sentences would run consecutively.
*471 We overrule appellant's third point of error.
In appellant's fourth point of error, he argues that the trial court violated his constitutional right to trial by jury because the jury did not determine whether his sentences would run consecutively or concurrently. In his fifth point of error, he argues that section 3.03(b) is void and unconstitutional because it does not specify who will determine whether sentences shall be consecutive or concurrent.
Appellant's constitutional complaints are without merit. The federal constitutional right to trial by jury does not include the right to have a jury at the punishment phase of trial. Parrish v. Beto, 414 F.2d 770 (5th Cir.1969); Ex parte Marshall, 72 Tex. Crim. 83, 161 S.W. 112, 113 (1913). In Texas, there is both a constitutional right to a jury trial and a statutory right to a jury trial. Tex. Const. art. I, § 10 (Vernon 1997); Tex.Code Crim. Proc. Ann. arts. 1.12, 1.13, 1.14, 1.15, 37.07 (Vernon 1977 & Supp.2001). However, the Texas Constitutional right to a jury trial does not include the right to have the jury assess punishment. Ex parte Moser, 602 S.W.2d 530, 533 (Tex.Crim.App.1980); Bullard v. State, 548 S.W.2d 13, 16 (Tex. Crim.App.1977); Ex parte Marshall, 161 S.W. at 113. Accordingly, appellant's argument that he was denied his constitutional right to jury assessed punishment is without merit.
Moreover, an argument that a statute is vague and indefinite addresses concerns about a defendant's lack of notice of the elements of the charged offense. See Papachristou v. City of Jacksonville, 405 U.S. 156, 163, 92 S. Ct. 839, 843, 31 L. Ed. 2d 110 (1972) (finding that a statute can be void for vagueness when it does not give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute or it encourages arbitrary and erratic arrests and convictions); Rodriguez v. State, 47 S.W.3d 86, 88-89 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). Here, there was no issue about whether appellant had notice of the elements of intoxication manslaughter. Therefore, appellant's arguments are without merit.
We overrule appellant's fourth and fifth points of error.
Right to Cross-Examine
In his sixth point of error, appellant argues that the trial court denied him his right to cross-examine a State's witness for bias or motive.
Appellant called Larry Boyd to show that he had been retained by Lisa Groten to pursue separate civil litigation against appellant for damages arising from the accident. Essentially, appellant wanted to question Boyd to show that Lisa Groten was biased or had a motive for testifying.
Outside the presence of the jury, the trial court allowed appellant's counsel to question Boyd. As to all of the questions asked of Boyd, he asserted the attorney-client privilege, which had not been waived by his client. The State objected to the line of questioning based on Rules of Evidence 402, 403, and 503. The trial court sustained all of the State's objections, stating that the testimony was immaterial in this case to show bias by another witness.
If there was any error in not allowing appellant to cross-examine Boyd, the error would be subject to Rule 44.2(a). Tex.R.App. P. 44.2(a). We must reverse the judgment of conviction unless we find beyond a reasonable doubt that the error did not contribute to the conviction. Id. Appellant attempted to show Ms. Groten's bias or motive in testifying. In reviewing Ms. Groten's testimony, we note that it *472 was very limited. Because the events transpired so quickly, she could not testify to any of the details of the accident. She mainly testified to what happened after the accident. Further, she did not testify about appellant's intoxication or what caused the accident.
The main issue in the case was whether appellant was intoxicated, and if so, whether his intoxication caused the accident. Lisa Groten gave no testimony that could have influenced the jury in arriving at a verdict on these two issues. Accordingly, we conclude beyond a reasonable doubt that the trial court's error, if any, did not contribute to the conviction.
We overrule appellant's sixth point of error.
Conclusion
We affirm the judgment of the trial court.
NOTES
[1] Kurt Groten and his three children are the complainants. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556242/ | 798 F. Supp. 219 (1992)
AFN, INC. d/b/a American Financial Network, Plaintiff,
v.
SCHLOTT, INC., National Homenet, Inc., Home Mortgage Network, Inc., Matthew Broderick, PHH U.S. Mortgage Corp., Cenlar Federal Savings Bank, Evergreen Mortgage Corp., Home Investors Mortgage Corp., and Merit Financial Corp., Defendants.
Civ. A. No. 91-1646 (MTB).
United States District Court, D. New Jersey.
July 14, 1992.
*220 Feldman Gold & Wachtel by John H. Reichman, West Orange, N.J., for plaintiff.
Hogan and Palace by Michael R. Scully, Hackensack, N.J., for defendants Schlott, Inc., Nat. Homenet, Inc., Home Mortg. Network, Inc. and Matthew Broderick.
OPINION
BARRY, District Judge.
I. Introduction
The present action is one of a number of actions between AFN, Inc. ("AFN") and Schlott, Inc. arising out of the business relationship between those parties relating to computerized loan origination ("CLO") systems. Defendants Schlott, Inc., National Homenet, Inc., Home Mortgage Network, Inc. and Matthew Broderick have moved to dismiss AFN's complaint for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. AFN has opposed Schlott's motion and cross-moved for Rule 11 sanctions. The court will deny both Schlott's motion to dismiss and AFN's motion for sanctions.
II. Factual Background
AFN is the developer and supplier of a CLO system which provides home buyers with information concerning various home mortgage loan programs available from lenders around the country. Amended Complaint ¶ 1. Schlott is a realtor with its headquarters in New Jersey.[1]
In July, 1986, AFN and Schlott entered into a license agreement under which AFN would make its network available to Schlott and its customers. Amended Complaint ¶¶ 18-19 and Exh. A. The license agreement required Schlott to pay, in exchange for access to AFN's CLO system, an initial license fee for each location with access to the system, a monthly fee for each location, an hourly charge for use time on the system, and a "mortgage application transmittal fee" for each mortgage application sent to a lender over the system. License Agreement, Amended Complaint, Exh. A (hereinafter "License Agreement") ¶¶ 4.2-4.5.
AFN also entered into license agreements with various residential mortgage lenders, including the lender defendants. These contracts generally required the lender to pay an initial license fee, a monthly access fee, a usage fee based upon the network time used, and a "mortgage placement fee," which was at least in some, if not all, instances based on the mortgages closed in that month which were obtained by the lender through the use of AFN's network. Amended Complaint ¶¶ 27-30, 122, 130, 135, 140, 145. Schlott employed Financial Service Representatives ("FSRs") to work with borrowers and help select *221 certain mortgage products listed on the AFN network. Affidavit of John Pembroke, dated April 10, 1992 (hereinafter "Pembroke Aff.") ¶ 4. The FSRs would keep in contact with both the lender and the borrower in order to expedite the loan approval process. Id. It is AFN's receipt of "mortgage placement fees" without being a licensed mortgage broker or banker which is the basis of Schlott's motion.
III. Procedural History
In order to fully comprehend the complexity and vitriol of this litigation, it is necessary to examine not only the instant dispute, but the concurrent litigation waged by the parties in other fora. AFN first filed suit against Schlott and two former AFN employees in state court in Texas ("Texas state action"), alleging that Schlott and others converted computer information and confidential and proprietary information from AFN and tortiously interfered with its business relationships. See Texas State Action Complaint, Affidavit of John Reichman in Opposition to Motion to Dismiss, dated May 23, 1991 (hereinafter "Reichman May 23, 1991 Aff."), Exh. A. In May, 1990, Schlott filed an action against AFN in the Superior Court of New Jersey, Law Division ("New Jersey state action"), alleging breach of the license agreement, breach of warranty, breach of lender agreements, breach of AFN and Schlott's subsequent "Representative Agreement," tortious interference with contractual relations, and violations of the New Jersey Consumer Fraud Act. See New Jersey State Action Complaint, Reichman May 23, 1991 Aff., Exh. B (hereinafter "New Jersey State Action Complaint"). In July, 1990, Schlott filed another action against AFN and its chairman, John Pembroke, this time in federal court in New Jersey. This action, entitled National Homenet, Inc. v. AFN, Inc., No. 90-2636 (AMW), alleged Lanham Act violations, common law fraud, New Jersey Consumer Fraud Act violations, statutory and common law unfair competition, disparagement, tortious interference with contractual relations, and defamation. See Reichman May 23, 1991 Aff., Exh. C. In September, 1990, this case, on the court's own motion, was transferred to the Northern District of Texas. See National Homenet, Inc. v. AFN, Inc., No. 90-2636 (AMW) (D.N.J.1990). Finally, in April, 1991, AFN filed the instant action in this court.
AFN's amended complaint alleges, in the main, that while Schlott was an AFN licensee, it was scheming to destroy AFN and take all of AFN's business for itself by developing its own CLO system based on proprietary trade secrets of AFN. Amended Complaint ¶ 2. AFN claims, as well, that Schlott breached its license agreement with AFN by failing to report and pay fees to AFN for loan applications and loans closed by means of the AFN system. Id. Finally, AFN alleges that Schlott disparaged AFN and threatened and coerced lenders to pay money owed to AFN to Schlott and to cancel mortgage applications made through the AFN network. Id.[2]
In support of its motion to dismiss AFN's amended complaint or, in the alternative, for summary judgment, Schlott argues that all of AFN's claims arise from the license agreement between AFN and Schlott, an agreement Schlott alleges is illegal and, therefore, unenforceable. It contends, more specifically, that AFN is seeking to collect fees for what amounts to the origination or placement of mortgage loans. Pointing to New Jersey's statutory definitions of "mortgage banker" and "mortgage broker", it argues that AFN was acting as either a mortgage banker or *222 a mortgage broker[3] and, thus, that its services violated certain portions of the Mortgage Brokers and Bankers Act:
No person shall act as a mortgage banker or mortgage broker without a license therefor as provided in this act....
* * * * * *
No person not licensed or not exempt from licensure under this act shall receive any commission, bonus or fee in connection with arranging or originating a mortgage loan for a borrower....
* * * * * *
No person or licensee shall pay any commission, bonus or fee to any person not licensed or not exempt under the provisions of this act in connection with arranging for or originating a mortgage loan for a borrower....
N.J.S.A. 17:11B-3(a), 14(d), & 14(e). Citing case law in support of the proposition that contracts made with professionals not in compliance with New Jersey licensing statutes are void as against public policy, Schlott urges that because all of AFN's claims stem from the illegal license agreement, all must fail.
AFN opposes Schlott's motion on both substantive and procedural grounds. While maintaining that its activities did not amount to mortgage banker or mortgage broker activity and that, therefore, no license was needed, AFN also disputes the propriety of Schlott's motion. Thus, AFN contends that Schlott has sat on its haunches with reference to this issue while this case has been vigorously litigated, including an earlier unsuccessful motion for a stay or to dismiss pursuant to Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976) in which, in its reply brief, Schlott argued that the doctrine of judicial estoppel precluded AFN from proceeding in this court.[4] More significantly, AFN contends that Schlott should be judicially estopped from arguing that the contract is illegal because of the position Schlott has taken in the concurrent New Jersey state action.
In the New Jersey state action, Schlott, as plaintiff, is suing on the license agreement. One month before its motion to dismiss was filed in this case, Schlott moved in the state action for partial summary judgment, claiming that AFN is withholding certain funds collected by AFN and owed to Schlott under the agreement, as modified by letters dated June 1, 1988 and November 4, 1988. See Letter Brief in Support of Schlott's Motion for Partial Summary Judgment, dated February 7, 1992, Reichman May 23, 1991 Aff., Exh. F (hereinafter "New Jersey State Action Letter Brief"). It seeks judgment as a matter of law with respect to "the wrongful withholding by AFN of Two Hundred Sixty-one Thousand Nine Hundred Seventy-Four Dollars and Nine Cents ($261,974.09) which was collected by AFN on behalf of Schlott under the License Agreement between the parties." New Jersey State Action Letter Brief at 1 (emphasis added). Recognizing, as it does, that AFN contests the validity *223 of the June 1, 1988 and November 4, 1988 letters as contract modifications, New Jersey State Action Letter Brief at 2-3, Schlott relies, in arguing their validity, on the license agreement and the two letters themselves, all of which it submitted to the court. See id.[5] It is, thus, crystal clear that the sine qua non of Schlott's position in the state action is that the license agreement was and is a valid and enforceable agreement. Indeed, Schlott's complaint in that action clearly reflects as much. See, e.g., New Jersey State Action Complaint ¶ 21 ("AFN has violated the License Agreement with Schlott."). Parenthetically, Schlott's answer and counterclaim in the Texas state action allege breach of the license agreement by AFN, thus pressing there, implicitly if not explicitly, the legality and enforceability of the same agreement.
Because Schlott is seeking in one court to enforce the very agreement it seeks in this court to avoid as illegal, AFN urges this court to judicially estop Schlott from asserting here a defense that the agreement is illegal. Significantly, Schlott does not claim that it is not simultaneously assuming directly contradictory positions in its quest to vanquish AFN on different fronts. Significantly, too, Schlott appears to have forgotten its earlier statements to this court when, invoking the doctrine of judicial estoppel, it unsuccessfully attempted to stay or dismiss this action:
AFN apparently operates without conscience with regard to its prior positions urged upon various courts. When it served AFN's purpose to argue [one thing], it did so; when it served a different purpose to change its course, it readily abandoned the prior position....
Reply Br. on Motion to Stay/Dismiss under Colorado River at 5. Describing the assumption of contradictory positions as an "affront to judicial dignity", id., Schlott concluded, before it lost its religion, that "AFN's change of position should not be tolerated." Id. at 7.
Now, in a one page response, Schlott relies on its interpretation of Third Circuit law which, it argues, requires that for a party to be judicially estopped, it have obtained relief, by a judgment or otherwise, based on its previously asserted contradictory position. Schlott's argument is unavailing, for not only do Third Circuit law and logic not require the conclusion Schlott advocates but, indeed, they counsel against reaching any such conclusion. Therefore, while the underlying substantive dispute may raise weighty questions of what constitutes mortgage broker or mortgage banker activity under New Jersey law, the court need not reach these questions, for the dispositive issue before the court is judicial estoppel.
IV. Judicial Estoppel
Judicial estoppel, sometimes referred to as "preclusion by inconsistent positions," is an equitable doctrine which precludes a party from asserting a position in a legal proceeding that contradicts or is inconsistent with a previously asserted position. Delgrosso v. Spang and Co., 903 F.2d 234, 241 (3d Cir.), cert. denied, ___ U.S. ___, 111 S. Ct. 428, 112 L. Ed. 2d 412 (1990). The doctrine is distinct from other forms of estoppel. While what were popularly known as res judicata and collateral estoppel focus on the effect of a final judgment on a party's ability to relitigate a matter which was essential to the judgment, 1B Moore's Federal Practice ¶ 0.405[8] at 239 (2d ed. 1992), and equitable estoppel looks to the relationship between the parties, requiring representation, reliance, and prejudice, Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3d Cir.), cert. denied, 488 U.S. 967, 109 S. Ct. 495, 102 L. Ed. 2d 532 (1988), judicial estoppel centers on the relationship between the litigant and the judicial *224 system. Delgrosso, 903 F.2d at 241; Oneida Motor Freight, 848 F.2d at 419.
The doctrine traces its roots to the Supreme Court's enunciation in Davis v. Wakelee that "[w]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position." 156 U.S. 680, 689, 15 S. Ct. 555, 558, 39 L. Ed. 578 (1895). First adopted in the Third Circuit in Scarano v. Central Railroad Co., the doctrine represents a measure of protection of the integrity of the courts, designed to prevent litigants from "playing fast and loose with the courts." 203 F.2d 510, 513 (3d Cir.1953).[6] Thus, a court may apply the doctrine in a situation where "intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice." Scarano, 203 F.2d at 513.
The contours of the doctrine are, for the most part, relatively straightforward. The doctrine applies to assertions of both factual and legal positions. See Hardwick v. Cuomo, 891 F.2d 1097, 1105 n. 14 (3rd Cir.1989); In the Matter of Cassidy, 892 F.2d 637, 641-42 (7th Cir.), cert. denied sub nom. Cassidy v. Comm'r, ___ U.S. ___, 111 S. Ct. 48, 112 L. Ed. 2d 24 (1990); Patriot Cinemas, Inc. v. General Cinema Corp., 834 F.2d 208, 214 (1st Cir.1987); United States v. Starrett City Associates, 605 F. Supp. 262, 264 (E.D.N.Y.1985). Not surprisingly, judicial estoppel may be applied based on the assertion of a party or a party's legal counsel. Thus, a position taken or a representation made by counsel in a legal brief or in argument to the court may provide a basis for estoppel. Lewandowski v. National Railroad Passenger Corp., 882 F.2d 815, 819 (3d Cir.1989). If there is an uncertain aspect of the doctrine of judicial estoppel it is whether a party can be estopped only when its inconsistent assertion was actually adopted by the court in the prior action[7] or at least was successfully *225 maintained in that action without necessarily having been judicially adopted, or whether the offending party need only have played "fast and loose" with the court even if ultimately unsuccessful in the prior action.[8]
The purpose behind the requirement that there have been judicial adoption or, in some other respect, successful maintenance of a prior inconsistent position is that, absent acceptance of that prior position, there is no risk of inconsistent results and, thus, the integrity of the judicial process is unaffected and the perception and/or danger that either the first or subsequent court was misled is not present. Stevens Technical Services, 885 F.2d at 588-89. And, presumably because of the view that the integrity of the judicial process can be sorely compromised short of inconsistent results, the purpose of the broader view of the doctrine of judicial estoppel is to vindicate the integrity and efficacy of the court by preventing the offending party from continuing in "fast and loose" behavior which undermines the integrity of the court. Patriot Cinemas, 834 F.2d at 214. Indeed, if what is at issue is the integrity of the court, whether a court is asked to rely or has in fact relied on a prior inconsistent position should be a distinction without a difference.
A determination as to whether and how, in this circuit, a party may be judicially estopped must necessarily begin with Scarano. The oft-quoted holding of Scarano states that, "[a] plaintiff who has obtained relief from an adversary by asserting and offering proof to support one position may not be heard later in the same court to contradict himself in an effort to establish against the same adversary a second claim inconsistent with the earlier contention." Scarano, 203 F.2d at 513. On its face, this statement appears to suggest a requirement that before a party may be estopped, the prior position must have been successfully maintained.[9] The facts of Scarano, however, indicate that the estoppel ordered there did not turn on any such requirement.
The plaintiff in Scarano brought suit under the Federal Employers Liability Act to recover for injuries sustained while working for the defendant. After a jury returned a verdict in plaintiff's favor but before the court had ruled on defendant's motion for a new trial, the parties settled the action. Id. at 511. Thereafter, plaintiff brought a second action against defendant for breach of contract and sought, in connection therewith, lost wages, past and future. Based on plaintiff's assertion in the first action that he was "totally incapacitated from resuming his former occupation or from engaging in any other form of labor", he was estopped from making a contrary assertion in the second action. Id. at 511-12. The court noted that to require a judgment based on the earlier assertion in order to invoke judicial estoppel would confuse that concept with collateral estoppel. Id. Deriving its ruling from the general principle that "a party to litigation will *226 not be permitted to assume inconsistent or mutually contradictory positions with respect to the same matter in the same or a successive series of suits," the court declined to decide whether the rule should be that broad. Id. at 513 (quoting II Freeman on Judgments § 631 (5th ed. 1925)).[10] Rather, recognizing that each case must be decided on its own facts and circumstances and relying on the fact that the "rendition of the $35,000 verdict was a significant factor in the negotiations which led ultimately to a stipulated judgment in the amount of $27,750," id. at 513 n. 3, the court's holding was restricted to the facts before it, with the outer boundaries of the doctrine left open for future consideration.
Although Third Circuit law in the wake of Scarano has recited the holding of that case, that court has pointedly and repeatedly focused its analysis on the assertion of a prior position, treating the "benefit" requirement of Scarano more as a factor to be considered or weighed than as a mandatory element of the doctrine. While the prior position may, in fact, have been successfully maintained in many or most of those cases, the court has clearly indicated that judicial estoppel can be applied in the absence of having successfully maintained the prior position, opining on more than one occasion that "application of doctrine of judicial estoppel is particularly appropriate in situations like this, where the party benefitted from its original position." Delgrosso, 903 F.2d at 242 (emphasis added); see also Murray v. Silberstein, 882 F.2d 61, 66 (3d Cir.1989).[11] In Lewandowski, for example, the court noted that "the critical issue is what the employee contended in the underlying proceeding, rather than what the jury found." 882 F.2d at 819. See also Hardwick, 891 F.2d at 1105, n. 4 (the doctrine binds parties to factual and legal positions); Oneida Motor Freight, 848 F.2d at 419 (the doctrine precludes a party from assuming a position inconsistent with one previously asserted); Shell Oil Co. v. Trailer & Truck Repair Co., 828 F.2d 205, 209 (3d Cir.1987) (the doctrine prevents a party from arguing contradictory positions in different actions). Moreover, the district court in Wade v. Woodings-Verona Tool Works Inc. explicitly held that there is no requirement that a prior position be successfully maintained in order to apply judicial estoppel. 469 F. Supp. 465, 467 (W.D.Pa.1979). To impose such a requirement, the court noted, would be to confuse judicial estoppel with other types of estoppel, most particularly collateral estoppel.
While the Third Circuit has focused its attention on the assertion of a prior position, Oneida Motor Freight did not require even that much before finding that Oneida, a Chapter 11 debtor, was both equitably and judicially estopped from further litigating a claim against a creditor which could have been the basis for recovery against that creditor as well as the basis for financial benefits to other creditors if the claim had been successfully prosecuted. Oneida had previously failed to disclose the claim in its reorganization plan, much less take or successfully maintain a position with reference to that claim, and the Bankruptcy Court was unaware that Oneida even thought that it had such a claim. "The silence," said the Third Circuit, was "deafening." 848 F.2d at 417.
We conclude that Oneida's failure to list its claim against the bank worked in opposition to preservation of the integrity of the system which the doctrine of judicial estoppel seeks to protect. Although we stop short of finding that, as the bank *227 argues, Oneida's prior silence is equivalent to an acknowledgement that it did not have a claim against the bank, we agree that its current suit speaks to a position clearly contrary to its Chapter 11 treatment of the bank's claim as undisputed.
Id. at 419.
Finding no requirement in the law of the Third Circuit that a party have been successful in its prior position, and in consideration of the strong policy rationale underlying the concept of judicial estoppel, Schlott will be judicially estopped from asserting that its agreement with AFN is illegal.[12] Schlott's actions are clearly the type of "evil the courts should not tolerate." Scarano, 203 F.2d at 513. Embroiled in simultaneous litigation over the same subject matter with the same adversary, Schlott has maintained and sought court rulings in different fora at the same time on diametrically opposed positions with respect to the validity of Schlott's license agreement with AFN; indeed, it makes no attempt to characterize its positions in the two courts (which, presumably could simultaneously determine that the agreement is legal and illegal) as anything other than completely opposite. Having exhorted the Superior Court of New Jersey to rule in its favor based on its agreement with AFN, Schlott cannot now be heard to shield itself from liability by simultaneously asserting the invalidity of that agreement. "If parties feel free to select contradictory positions before different tribunals to suit their ends, the integrity and efficacy of the courts will suffer." Patriot Cinemas, 834 F.2d at 214. In furtherance of the broader policy of protecting the integrity of the court and the judicial system, "no further judicial aid [will] be given this particular enterprise of blowing hot and cold as the occasion demands." Allen, 667 F.2d at 1167 n. 3. Because Schlott will be estopped from asserting that its contract with AFN is illegal, its motion to dismiss the complaint or, in the alternative, for summary judgment, will be denied.
V. Rule 11 Sanctions
AFN's motion for Rule 11 sanctions will be denied as well. AFN sought Rule 11 sanctions against Schlott because Schlott has "taken diametrically opposed positions before two different courts within the space of a little more than a month." (Pl.Br. at 5). Beyond that, AFN argues, Schlott should have known that it would be judicially estopped from making its "frivolous" motion to dismiss given that it moved to dismiss AFN's complaint the first time around on the ground of judicial estoppel. Id. at 2-3, 29. The motion and the inconsistent position asserted therein, AFN concludes, aside from being wholly without merit, were made in bad faith and for purposes of delay and have caused AFN needless *228 litigation costs.[13]
The all-too-familiar Rule 11 provides, as relevant here, that an attorney's signature certifies that he or she has read the pleading or motion or other papers that has prompted the Rule 11 application; and that that pleading or motion is well grounded in fact and law and not interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation. If the pleading or motion has been signed in violation of Rule 11, sanctions shall be imposed on the attorney or the client or both. The test is one of reasonableness under the circumstances, and good faith is not a defense. Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 111 S. Ct. 922, 112 L. Ed. 2d 1140 (1991).
There is nothing reasonable about Schlott's intentional decision to take a position in this court just one month after it had taken a diametrically opposed position in the state court; indeed, that decision is one more example of the fact, and fact it be, that AFN and Schlott are at each other's throats in this and each of the other cases in which they are involved. It is also true, of course, that Schlott's motion to dismiss in which the fact of diametrically opposed positions first surfaced has delayed resolution of the merits of the action and has caused AFN to expend time and money.
But that is not enough. Of critical importance in a Rule 11 analysis is whether the motion to dismiss was well grounded in fact and law. Given the disposition on the ground of judicial estoppel, however, the merits of the mortgage banker-mortgage broker argument on which the motion was predicated were not reached much less any conclusion drawn as to whether the motion was or was not well grounded in fact and law or interposed for at least one improper purpose.
AFN's contention that Rule 11 sanctions are called for because Schlott should have known that it was judicially estopped from taking inconsistent positions having earlier invoked the very authority invoked against it now is similarly unavailing. Although not the law in the Third Circuit, at least in this court's view, there is caselaw which supports Schlott's contention that until its prior position has been "successfully maintained," it can effectively do whatever it pleases before any court of its choice. AFN's motion for Rule 11 sanctions will be denied.[14]
NOTES
[1] National Homenet, Inc. and Home Mortgage Network, Inc. are wholly-owned subsidiaries of Schlott, Inc., and Matthew Broderick is an employee of Schlott. Inasmuch as these defendants are, for all intents and purposes, alteregos, they will be treated together for the purposes of this motion and referred to collectively as "Schlott."
The remaining defendants in this action, PHH U.S. Mortgage Corp., Cenlar Federal Savings Bank, Evergreen Mortgage Corp., Home Investors Mortgage Corp., and Merit Financial Corp. (hereinafter "lender defendants"), are all residential real estate lenders located in New Jersey which entered into license agreements with AFN under which their services would be accessible through AFN's network. Amended Complaint ¶¶ 8-13. Each of the lender defendants agreed to pay AFN a "mortgage application fee" for each accepted mortgage application originated through the AFN network. Id. ¶ 13.
AFN has settled its claims against certain of the lender defendants. The claims against the remaining lender defendants themselves are not at issue in these motions.
[2] Specifically, the counts against Schlott, Inc., National Homenet, Inc., Home Mortgage Network, Inc., and Matthew Broderick are tortious interference with contractual relations (Count One), tortious interference with prospective economic advantage (Count Two), unfair competition (Count Three), violations of the Lanham Act (Count Four), conversion of trade secrets and confidential and proprietary information (Count Ten), theft of computer information (Count Eleven), and violations of the New Jersey racketeering statute (Count Twelve). There are also several counts brought only against Schlott, Inc.: breach of the license agreement (Count Five), breach of Representative Agreement (Count Six), breach of implied covenant of good faith and fair dealing (Count Seven), breach of fiduciary duty (Count Eight), and common law fraud (against Schlott and Broderick) (Count Nine).
[3] The New Jersey statute defines "mortgage banker" as
any person not exempt under Section 2 of this Act who for compensation or gain, or in the expectation of compensation or gain, either directly or indirectly originates, acquires, or negotiates mortgage loans in the primary market.
N.J.S.A. 17:11B-1(c). It defines "mortgage broker" as any person not exempt under Section 2 of this Act, who for compensation or gain, or in the expectation of compensation or gain, either directly or indirectly negotiates, places or sells for others, or offers to negotiate, place or sell for others a mortgage loan in the primary market.
N.J.S.A. 17:11B-1(d). Section 2 of the Act exempts savings and loan institutions, private investors not engaged in the regular course of a mortgage business, New Jersey attorneys not actively and principally engaged in the mortgage business, licensed New Jersey real estate brokers and salespersons not engaged in the mortgage business, and builders who place mortgages for the sale of their own construction.
[4] AFN argues that, given this prior motion, Schlott is precluded by Fed.R.Civ.P. 12(g) from bringing the instant motion. AFN is wrong. A motion to stay or dismiss a federal action due to a pending state action is not a Rule 12 motion and, therefore, a second motion to dismiss is not barred by Rule 12(g). Aetna Life Ins. Co. v. Alla Medical Services, Inc., 855 F.2d 1470, 1475 (9th Cir.1988).
[5] The affidavit of Matthew Broderick in support of Schlott's motion for partial summary judgment in the state action similarly invokes the license agreement. That affidavit states that "the License Agreement between AFN and Schlott Realtors required AFN to collect on behalf of Schlott origination fees which Schlott had earned by originating loans with individual lenders." Second Supplemental Affidavit of Matthew Broderick, Reichman May 23, 1991 Aff., Exh. F, ¶ 2.
[6] This court has jurisdiction over the instant dispute pursuant to 28 U.S.C. § 1331 by virtue of AFN's Lanham Act claims, see Amended Complaint, Count Four, ¶¶ 70-72, and supplemental jurisdiction over the remaining claims by virtue of 28 U.S.C. § 1367. In addition, the court has jurisdiction by virtue of the diversity of citizenship of the parties, pursuant to 28 U.S.C. § 1332. The parties agree, correctly, that the appropriate governing law is federal law. See Angel v. Bullington, 330 U.S. 183, 192, 67 S. Ct. 657, 662, 91 L. Ed. 832 (1947) ("where resort is had to a federal court not on grounds of diversity of citizenship but because a federal right is claimed, the limitations upon the courts of a State do not control a federal court sitting in the State").
Even where this action brought to this court solely based on diversity of citizenship, the issue of judicial estoppel would be one properly resolved by the application of federal law rather than state law. While it is generally true that in disputes which come to federal court solely on the basis of diversity of citizenship, the federal court is bound under Erie Railroad v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938) to apply the law of the state in resolving questions of state law, this rule is not absolute. See Byrd v. Blue Ridge Rural Electrical Cooperative, Inc., 356 U.S. 525, 537-38, 78 S. Ct. 893, 900-901, 2 L. Ed. 2d 953 (1958) ("affirmative counterveiling considerations" relating to a "strong federal policy" may warrant the application of federal law in a diversity case). Because the function of judicial estoppel is to protect a court'sand, here, a federal court'sintegrity, this case would present a compelling case for an exception to Erie. See Allen v. Zurich Ins. Co., 667 F.2d 1162, 1167 n. 4 (4th Cir.1982). But see Konstantinidis v. Chen, 626 F.2d 933, 937 (D.C.Cir.1980); Reno v. Beckett, 555 F.2d 757 (10th Cir.1977); Walker v. American Motorists Ins. Co., 529 F.2d 1163, 1164-65 (5th Cir.1976). Parenthetically, the Third Circuit in Scarano, a diversity action, applied federal law to resolve the judicial estoppel question, albeit without explicitly stating its reasons for doing so.
Even Judge Bryan's dissent in Allen recognized that "[a]lthough the Federal policy [of applying federal judicial estoppel law to protect the integrity of the federal courts] is not without some force, it must yield when the choice of a Federal rule necessitates a result contrary to that attaining under the applicable state rule." Allen, 667 F.2d at 1168 n. 1 (Bryan, J., dissenting). Finding that federal law required a result contrary to that under state law, the dissent opined that federal law should, in that instance, defer to state law. Of course, given that New Jersey law on judicial estoppel, as expressed in Levin v. Robinson, Wayne & La Sala, 246 N.J.Super. 167, 586 A.2d 1348 (Law Div.1990), is in accord with the law of the Third Circuit (law, I note, which the Levin court cited extensively), even were state law to be applied, the result would be the same.
[7] See Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598 (6th Cir.1982). The Ninth Circuit which, I note, has not itself determined what is required before the doctrine may be applied, describes prior judicial adoption as the "majority view." See, e.g., Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703, 716 (9th Cir.1990); Stevens Technical Services, Inc. v. S.S. Brooklyn, 885 F.2d 584, 588-59 (9th Cir. 1989). I question the use of the word "majority" given the cases cited in the Ninth Circuit cases; indeed, only Edwards held that prior judicial adoption was required. None of the other cases cited held even that, short of judicial adoption, a prior inconsistent position must have been successfully maintained. Thus, Allen v. Zurich Inc. Co., supra, cited in both Ninth Circuit cases, did not confine application of the doctrine to situations in which the party asserting the earlier contrary position had prevailed, although the Fourth Circuit found it more appropriate in that situation. 667 F.2d at 1167. The only other two cases cited by the Ninth Circuit, while preferring a judicial adoption or a successfully maintained requirement, do not even recognize the doctrine in their respective jurisdictions. See United States v. 49.01 Acres of Land, 802 F.2d 387 (10th Cir.1986); Konstantinidis v. Chen, 626 F.2d 933 (D.C.Cir.1980).
[8] See Patriot Cinemas, 834 F.2d at 213.
[9] Certainly, Scarano did not require a judicial adoption of an inconsistent assertion in prior litigation. In explaining why collateral estoppel was inappropriate, the court noted that there was "a substantial dispute as to what the former judgment decided about plaintiff's physical condition...." 203 F.2d at 512.
[10] A more contemporary application of that principle is evident in the discretion accorded a court, when considering a motion for summary judgment, to disregard a party's subsequent contradiction, without a satisfactory explanation for the contradiction, of his or her prior testimony. Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703, 705-06 (3d Cir.1988).
[11] Although the court in Murray quotes a passage from Bower v. O'Hara, 759 F.2d 1117, 1129 (3d Cir.1985) which appears to endorse the requirement that a prior position have been successfully maintained, that language is itself quoted from a Pennsylvania state case, Associated Hospital Service v. Pustilnik, 497 Pa. 221, 227, 439 A.2d 1149 (1981). In the context in which the "successfully maintained" language is used in Bower, it does not appear, even in that instance, to constitute an inflexible requirement.
[12] To the extent that this conclusion is inconsistent with the result reached in Zenith Laboratories, Inc. v. Bristol-Meyers Squibb Co., 1991 WL 267892, 1991 U.S.Dist.Lexis 18463 (D.N.J.1991), I respectfully disagree with the result in that case. While the court in Zenith Laboratories recognized that the Third Circuit has not explicitly endorsed such a requirement, it nonetheless concluded that success in the prior position is required "because, as in other forms of estoppel, reliance is the basis for the bar." Id. 1991 WL 267892 at *11, 1991 U.S.Dist.Lexis 18463 at *33. As noted earlier, however, judicial estoppel is a unique form of estoppel whose justification lies in protecting the integrity of the courts. A party's cavalier switch of position from one case to the next or from one proceeding to the next is inimical to the integrity of the judicial system, regardless of whether the court affirmatively relies on the representation. Zenith Laboratories also makes reference to the propriety of alternative pleading under the Federal Rules of Civil Procedure. Id. 1991 WL 267892 at *11, 1991 U.S.Dist.Lexis 18463 at *34-35 (citing Fed. R.Civ.P. 8(e)(2)). This analogy to alternative pleading is not persuasive. While a party may quite properly plead that A or, in the alternative, B, is true, it is quite another thing for a party to assert that A, which directly contradicts B, is true at one time for one purpose and later assert that B is also true at another time for another purpose. See 1B Moore's Federal Practice ¶ 0.405[8] at 243 n. 22 (2d ed. 1992). See also Allen, 667 F.2d at 1167, in which the court, citing Fed.R.Civ.P. 8(e), distinguished the intentional self-contradiction in separate legal proceedings which the doctrine of judicial estoppel is justified in preventing from the permissible practice of "simultaneously advancing in the same action inconsistent claims or defenses which can then, under appropriate judicial control, be evaluated as such by the same tribunal, thus allowing an internally consistent final decision to be reached."
[13] AFN also seeks Rule 11 sanctions because (1) Schlott failed to cite directly contrary authority as to its mortgage banker-mortgage broker argument even though its current counsel represented it in the proceeding from which the contrary authority emanated; and (2) Schlott has failed to answer a single interrogatory or produce a single document even though its request for a stay of discovery was denied by the Magistrate Judge. It is inappropriate to determine whether Rule 11 sanctions are warranted on these grounds, first, because given the disposition on the ground of judicial estoppel, it was unnecessary to consider the mortgage banker-mortgage broker argument thus making it impossible to determine at this juncture whether contrary authority should have been and was not cited and, second, because any discovery abuses occurred before, and should be brought to the attention of, the Magistrate Judge.
[14] Even if Rule 11 sanctions were warranted, the order barring Schlott from defending on the ground that the license agreement is illegal would be sanction enough for this court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556339/ | 30 So. 3d 588 (2010)
Elison MIRUTIL, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D08-2127.
District Court of Appeal of Florida, Third District.
February 24, 2010.
*589 Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
Before RAMIREZ, C.J., CORTIÑAS, J., and SCHWARTZ, Senior Judge.
CORTIÑAS, J.
Elison Mirutil was charged with multiple offenses of burglary and theft committed on four separate occasions. He pled guilty to all of the charges, and the trial court imposed juvenile sanctions, committing him to a moderate risk program with aftercare. Mirutil successfully completed the moderate risk program and was close to completing the aftercare program when he was arrested and charged with several new offenses. After a hearing, the trial court granted the request of the Department of Juvenile Justice to terminate supervision, revoked the juvenile sanctions, and set the case for sentencing Mirutil as an adult.
At the sentencing hearing, the State offered evidence of the new violations "to show this defendant's danger to the community." *590 Defense counsel objected to the court's consideration of any evidence related to the new crimes, arguing that it would grossly "prejudice the [c]ourt on unproven charges." The trial court accepted testimony on the new cases "for purposes of probable cause of the four corners of the arrest affidavits in those cases." After hearing from the State's three eyewitnesses to the new offenses, the trial court found that "[t]he State ha[d] proven probable cause that exists that [Mirutil] did in fact commit the new offenses." It imposed sentences for the previous crimes, totaling seventy-five years in state prison, nearly the maximum dictated by the criminal punishment code scoresheet.[1] Mirutil appeals, arguing that it was improper for the trial court to consider the subsequent offenses in sentencing him for the earlier offenses.
"The trial court may not rely upon impermissible considerations when sentencing a defendant." Cook v. State, 647 So. 2d 1066, 1067 (Fla. 3d DCA 1994). Impermissible factors include a "belief that the defendant likely had committed previous acts of violence although [he] had never been charged with committing any such acts," Epprecht v. State, 488 So. 2d 129, 130 (Fla. 3d DCA 1986); a "belief that the defendant was guilty of an offense of which he had been acquitted," id.; and "unsubstantiated allegations of misconduct" and "unsupported speculations." Reese v. State, 639 So. 2d 1067, 1068 (Fla. 4th DCA 1994).
Mirutil argues that the trial court erred by sentencing him based on testimony concerning his subsequent arrests. The State maintains that "the statute doesn't require a conviction.... It doesn't say that he needs to be convicted of the new offense, just that he committed a new violation of law." However, Section 985.565(4)(c), Florida Statutes, allows a "court [to] revoke the previous adjudication, impose an adjudication of guilt, and impose any sentence which it may lawfully impose ... if the child commits a new violation of law while under juvenile sanctions." The trial court had already revoked Mirutil's juvenile sanctions based on the new charges. The sentencing hearing was not tantamount to a probation violation hearing, where the court may consider the new crimes a defendant committed because he violated his probation by doing so; its sole purpose was to determine the appropriate sentence to be imposed based on the nature of the offenses for which the court had originally imposed the juvenile sanctions. Accordingly, as in any adult sentencing hearing, it was improper for the judge to consider the details of the pending charges alleged to have occurred after the offenses for which Mirutil was to be sentenced. See Gray v. State, 964 So. 2d 884 (Fla. 2d DCA 2007); Seays v. State, 789 So. 2d 1209, 1210 (Fla. 4th DCA 2001). "The state through its criminal process may not penalize someone merely for the status of being under indictment or otherwise accused of a crime, as it has attempted to do here." State v. Potts, 526 So. 2d 63 (Fla.1988). The State cites Whitehead v. State, 21 So. 3d 157, 159-60 (Fla. 4th DCA 2009), for the proposition that pending charges may be considered for their relevance to the sentencing, if the defendant is "given the opportunity to explain or offer evidence" regarding the pending charges. However, this case is readily distinguishable because Whitehead had admitted to the charges, whereas Mirutil maintains his innocence.
"[T]he State has the burden to show from the record as a whole that the trial judge did not rely upon impermissible considerations in passing sentence upon the defendant where portions of the record *591 reflect that the trial judge may have so relied." Epprecht, 488 So.2d at 130; see Seays, 789 So.2d at 1210. The State's sole argument is that throughout the hearings, the trial judge reiterated that she was not considering the new offenses in sentencing Mirutil but was using them solely to prove that Mirutil had violated his probation agreement.
However, testimony regarding the new offenses was the central feature of the sentencing hearing. Discussion of the new offenses comprised forty-eight pages of the transcript, or eighty-five percent of the sentencing hearing, while the testimony of Mirutil's character witnesses comprised only nine pages. The State presented testimony from three witnesses regarding the new offenses. Their testimony could not have been but extremely prejudicial.
Because we are "not at liberty to assume that items given such emphasis by the sentencing court, did not influence the sentence," it befalls the State, as we have said, to convince us that these items played no part in the sentence imposed in the present case. While most assuredly there is more than ample justification for the sentence imposed, and our remand in no way precludes this or some equivalent sentence, we are not convinced, as we must be, that these impermissible items played no role in the sentence.
Epprecht, 488 So.2d at 131 (quoting Townsend v. Burke, 334 U.S. 736, 740, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948)). "Based on the record and the trial court's candid remarks it cannot be said that the trial court did not take into consideration impermissible factors in sentencing" Mirutil. Cook, 647 So.2d at 1067 (citing Epprecht). Therefore, we find that the State has not carried its burden of proving that the trial court did not rely on the later cases in sentencing Mirutil for the previous cases.
Accordingly, we reverse and remand for resentencing by a different judge, "to preclude any perception on [Mirutil's] part that the resentencing may not be conducted in a completely fair and impartial manner...." Berry v. State, 458 So. 2d 1155, 1156 (Fla. 1st DCA 1984).
Reversed and remanded.
NOTES
[1] The scoresheet recommended between 8.12 years and eighty-five years. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556275/ | DANIEL IRISH,
v.
NATHAN BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY AT ANGOLA; RICHARD PEABODY, DEPUTY WARDEN; LESLIE DUPONT, DEPUTY WARDEN; SECRETARY OF DEPARTMENT OF CORRECTIONS, CINDY VANNOY, LIEUTENANT; LINDA RAMSAY, SECRETARY'S DESIGNEE; AND JEFFREY E. TRAVIS, SECRETARY'S DESIGNEE.
No. 2009 CA 1738.
Court of Appeals of Louisiana, First Circuit.
March 26, 2010.
Not Designated for Publication.
DANIEL IRISH Angola, LA, In Proper Person, Plaintiff/Appellee.
TERRI L. CANNON, WILLIAM L. KLINE, Baton Rouge, LA Counsel for Defendant/Appellant, James LeBlanc, Secretary Department, of Public Safety and Corrections.
Before: CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
GUIDRY, J.
The Louisiana Department of Public Safety and Corrections (DPSC), appeals from a district court judgment reversing the final administrative decision as manifestly erroneous and an abuse of discretion and ordering DPSC to allow the petitioner, Daniel Irish, to receive the publications at issue. For the reasons that follow, we reverse the judgment of the district court.
FACTS AND PROCEDURAL HISTORY
Daniel Irish is an inmate in the custody of DPSC who is housed on death row at the Louisiana State Penitentiary (LSP). On October 2, 2007, Irish filed a grievance in accordance with the Corrections Administrative Remedy Procedure (CARP), La. R.S. 15:1171, et. seq., complaining that the LSP mailroom employees erroneously rejected five books upon grounds that each book contained depictions of nudity and sexually explicit conduct in accordance with Dept. Reg. C-02-009. DPSC responded to Irish's grievance citing to Dept. Reg, C-02-009 and asserting that printed material shall be refused if it interferes with legitimate penological objectives, including, but not limited to, deterrence of crime, rehabilitation of inmates, maintenance of internal/external security of an institution, or maintenance of an environment free of sexual harassment.
Thereafter, Irish filed a petition for judicial review in district court pursuant to La. R.S. 15:1177, seeking declaratory relief and asserting that the five books in question are "artistic," "instructional," and therefore "educational," placing them within the exception to Dept. Reg. C-02-009. Additionally, Irish asserted that DPSC failed to establish how the books in question interfere with a legitimate penological interest.
Following a hearing, wherein the five books were submitted to the court under seal, a commissioner assigned by the district court to review the matter submitted a screening report recommending that the district court reverse the final administrative decision rendered in this matter pursuant to La. R.S. 15:1177(A)(9) as manifestly erroneous and an abuse of discretion. Further, the commissioner recommended that DPSC should be ordered to allow the petitioner to receive the publications at issue. The commissioner made this recommendation after finding that under the Turner v. Safely, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987) analysis, the record does not support the finding that the restrictive regulation, which prohibits publications containing depictions of exposed breasts, genitalia, and buttocks, is reasonably related to a legitimate penological interest as applied to this particular death row inmate.
The district court thereafter rendered judgment in conformity with the commissioner's recommendation on May 5, 2009. DPSC now appeals from this judgment.
DISCUSSION
Louisiana Revised Statute 15:1177(A)(9) sets forth the appropriate standard of review by the district court, which functions as an appellate court when reviewing the DPSC's administrative decision through CARP. Specifically, the court may reverse or modify the administrative decision only if substantial rights of the appellant have been prejudiced because the administrative findings are: (1) in violation of constitutional or statutory provisions, (2) in excess of the statutory authority of the agency, (3) made upon unlawful procedure, (4) affected by other error of law, (5) arbitrary, capricious or characterized by an abuse of discretion, or (6) manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. La. R.S. 15:1177(A)(9); Lightfoot v. Stalder, 00-1120, p. 6 (La. App. 1st Cir. 6/22/01), 808 So. 2d 710, 715-716, writ denied, 01-2295 (La. 8/30/02), 823 So. 2d 957.
On review of the district court's judgment on judicial review under La. R.S. 15:1177, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. McCoy v. Stalder, 99-1747, p. 6 (La. App. 1st Cir. 9/22/00), 770 So. 2d 447, 450-451.
At issue in the instant case is Dept. Reg. C-02-009 regarding inmate mail and publications, promulgated in the Louisiana Administrative Code Title 22, Part, I, Section 313, which provides, in part:
D. Definitions
* * *
Nuditypictorial depiction of buttocks, genitalia or female breasts (with the nipple or areola exposed).
* * *
Sexually Explicit Materialany book, pamphlet, magazine, or printed matter however reproduced, which contains any picture, photograph, drawing or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct, sadomasochistic abuse, bestiality and homosexuality. Explicit sexual material also includes that which contains detailed verbal descriptions or narrative accounts of deviant sexual behavior. (A publication will not be prohibited solely because it contains pictorial nudity that has a medical, educational or anthropological purpose).
Sexually Explicit Featuresthe publication contains depictions of nudity or sexually explicit conduct on a routine or regular basis or promotes itself based upon such depictions in the case of individual one-time issues. A publication will not be prohibited solely because it contains pictorial nudity that has a medical, educational or anthropological purpose.
E. Policy. It is the secretary's policy that inmates may communicate with persons or organizations subject to the limitations necessary to protect legitimate penological objectives, (including but not limited to deterrence of crime, rehabilitation of inmates, maintenance of internal/external security of an institution, or maintenance of an environment free of sexual harassment), to prevent the commission of a crime, or to protect the interests of crime victims.
* * *
G. Procedures for Publications
* * *
3. Refusal of Publications: Printed material shall only be refused if it interferes with legitimate penological objectives (including but not limited to deterrence of crime, rehabilitation of inmates, maintenance of internal/external security of an institution or maintenance of an environment free of sexual harassment), or if the refusal is necessary to prevent the commission of a crime or to protect the interests of crime victims. This would include but not be limited to the following described categories.
* * *
b. Sexually Explicit Material. It is well established in corrections that sexually explicit material causes operational concerns. It poses a threat to security, good order and discipline of the institution and can facilitate criminal activity. Examples of types of behavior that result from sexually explicit material include nonconsensual sex, sexual molestation of other inmates or staff, masturbation or exposing themselves in front of staff and inappropriate touching or writing to staff or other forms of sexual harassment of staff and/or inmates.
i. Sexually explicit material can portray women (or men) in dehumanizing, demeaning and submissive roles, which, within an institutional setting, can lead to disrespect and the sexual harassment of female (or male) correctional staff. Lack of respect and control in dealing with inmates can endanger the lives and safety of staff and inmates.
ii. The viewing of sexually explicit material undermines the rehabilitation of offenders as it can encourage deviant, criminal sexual behavior. Additionally, once sexually explicit material enters an institution, it is impossible to control who may view it. When viewed by an incarcerated sex offender, it can undermine or interrupt rehabilitation efforts.
iii. Publications that depict nudity or sexually explicit conduct on a routine or regular basis or promotes itself based upon such depictions in the case of individual one time issues will not be allowed.
In filing his petition for judicial review, Irish asserted that the books at issue were "educational" and therefore, come within the exception to Dept. Reg. C-02-009, and alternatively, that DPSC failed to establish how the books interfere with a legitimate penological interest.
From our review of the record, we find that the books at issue are not "educational" material. These books represent collections of fantasy and pinup artwork, with no specific instructional directions or artistic commentary. Rather, the artwork is presented as a collection for the reader's enjoyment. Accordingly, we do not find that the books at issue in the instant case fall within the exception for material that has a medical, educational, or anthropological purpose.
In analyzing the reasonableness of the prison regulation at issue, we note that imprisonment does not automatically deprive a prisoner of certain important constitutional protections, including those of the First Amendment. But, at the same time, the constitution sometimes permits greater restriction of such rights in a prison than it would allow elsewhere. Turner, 482 U.S. at 84-85, 107 S. Ct. at 2259; Beard v. Banks, 548 U.S. 521, 528, 126 S. Ct. 2572, 2577-2578, 165 L. Ed. 2d 697 (2006). Substantial deference must be accorded to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them. Overton v. Bazzetta, 539 U.S. 126, 132, 123 S. Ct. 2162, 2167, 156 L. Ed. 2d 162 (2003). Turner reconciles these principles by holding that restrictive prison regulations are permissible if they are "reasonably related to legitimate penological interests" and are not an exaggerated response to such objectives. Beard, 548 U.S. at 528, 2572 S. Ct. at 2578.
Turner sets forth four factors relevant in determining the reasonableness of the regulation at issue. First, there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it. Second, whether there are alternative means of exercising the right that remain open to prison inmates. Third, the impact the accommodation of the asserted constitutional right will have on guards and other inmates and on the allocation of prison resources generally. Finally, an absence of ready alternatives is evidence of the reasonableness of a prison regulation. Turner, 482 U.S. at 89-90, 107 S. Ct. at 2262.
In its first step response to Irish's grievance, DPSC identified the penological interest as "including but not limited to deterrence of crime, rehabilitation of inmates, maintenance of internal/external security of an institution or maintenance of an environment free of sexual harassment." In its second step response, DPSC also maintained that Dept. Reg. C-02-009 protects the interest of other inmates and staff because accommodation of sexually explicit materials could restrict the liberty and safety of both staff and inmates.
As stated previously, Irish is housed on death row where he is confined to his cell for twenty-three hours per day and his access to other inmates and staff is restricted. However, DPSC maintains that Irish's status as a death row inmate does not differ substantially from that of other inmates with regard to this issue because certain prison personnel and inmates still have access to Irish, including tier walkers, classification officers, security officers, canteen officers, and medics. Additionally, death row inmates are allowed "tier time" so they have the opportunity to distribute materials to other inmates on death row.
DPSC has determined, as expressed in Dept. Reg. C-02-009, that sexually explicit material causes operational concerns and poses a threat to security, good order and discipline of the institution by leading to non-consensual sex, sexual molestation of other inmates or staff, exposing themselves in front of the staff, and inappropriate touching or writing to the staff, or other forms of sexual harassment of staff and/or inmates. Further, such material can lead to disrespect and sexual harassment of correctional staff, and such lack of respect and control in dealing with inmates can endanger the lives and safety of staff and inmates. Finally, once sexually explicit material enters an institution, it is impossible to control who may view it, and it can encourage deviant, criminal sexual behavior.
Accordingly, given the deference afforded to the professional judgment of prison administrators, we find that DPSC has put forth a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.
In determining whether there are alternative means of exercising the right that remain open to prison inmates, the court is to view the right in question "sensibly and expansively." Thornburgh v. Abbott, 490 U.S. 401, 417, 109 S. Ct. 1874, 1884, 104 L. Ed. 2d 459 (1989). Accordingly, in the instant case, the right infringed by DPSC's policy is the right to receive sexually explicit material. As evidenced by the record and Dept. Reg. C-02-009, inmates can receive sexually explicit material if it has a medical, educational, or anthropological purpose. Further, inmates can view such material on the prison television channel. Where other avenues remain available for the exercise of the asserted right, courts should be particularly conscious of the measure of judicial deference owed to corrections officials in gauging the validity of the regulation. Turner, 482 U.S. at 90, 107 S. Ct. at 2262. As such, we find this factor is satisfied.
The third factor under the Turner analysis is the impact that accommodation of the asserted constitutional right will have on guards and other inmates. As stated previously, DPSC asserts that accommodating Irish's right in the instant case could lead to disrespect and the sexual harassment of correctional staff. Such lack of respect and control in dealing with inmates can endanger the lives and safety of institutional personnel, visitors, and inmates. Accordingly, from our review of the record, we find that unrestricted possession of sexually explicit material would have a significant negative impact on institutional personnel and other inmates.
Finally, under the fourth Turner factor, if an inmate can point to an alternative that fully accommodates the inmate's rights at de minimus cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard. Turner, 482 U.S. at 91, 107 S. Ct. at 2262. In the instant case, Irish has failed to point to any alternatives that accommodate his rights and therefore, he has not sustained his burden on this element.
Accordingly, from our review of the record and application of the Turner factors to the facts of the instant case, we find that Dept. Reg. C-02-009 is reasonably related to DPSC's legitimate penological interest. Therefore, we find no error or abuse of discretion in DPSC's determination that the five books at issue violate Dept. Reg. C-02-009 and were properly rejected by LSP mailroom employees.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the district court, reversing DPSC's administrative decision and ordering that it allow Irish to receive the publications at issue. We reinstate DPSC's administrative decision, denying Irish's request for relief. All costs of this appeal are assessed against Daniel Irish.
REVERSED AND RENDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556278/ | EDWARD I. DANIEL, IV,
v.
KELLIE KAUFMAN DANIEL.
No. 2009 CA 1743.
Court of Appeals of Louisiana, First Circuit.
March 26, 2010.
Not Designated for Publication.
CHARLES E. GRIFFIN, II, St. Francisville, LA, Attorney for Plaintiff-Appellee, Edward I. Daniel, IV.
VINCENT A. SAFFIOTTI, Baton Rouge, LA, Attorney for Defendant-Appellant, Kellie Kaufman Daniel.
Before: WHIPPLE, HUGHES, and WELCH, JJ.
WELCH, J.
Kellie Kaufman Daniel (now "Belk") appeals a judgment of the trial court dismissing her petition to rescind the community property settlement agreement between her and Edward I. Daniel, IV, on the grounds of lesion, error, and fraud. Finding no error in the judgment of the trial court, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Mr. Daniel and Mrs. Belk were married on January 8, 1994. Prior to their marriage, they executed an agreement whereby they agreed to accept the legal or community regime, but reserved their right to own and maintain separate property. The parties separated, and a petition for divorce was filed by Mr. Daniel on March 3, 2005. Thereafter, the parties entered into a stipulated judgment, which, among other things, prohibited both parties from alienating, encumbering, mortgaging, selling, or otherwise disposing of the community property existing between the parties, absent the written agreement of the parties. Additionally, by judgment signed on August 1, 2005, the community property regime was terminated and a separate property regime was established between the parties, retroactive to March 3, 2005. On August 16, 2005, the parties entered into a community property settlement. By judgment rendered on September 21, 2005, the parties were divorced.
Thereafter, on June 6, 2006, Mrs. Belk filed a petition to rescind the community property settlement on the basis of lesion, error, and fraud. In her petition, Mrs. Belk asserted that Mr. Daniel committed fraud in that he knowingly undervalued assets belonging to the community during settlement discussions leading up to the signing of the community property settlement, which resulted in her receiving a disproportionate share of the community assets. Alternatively, she alleged that the community property settlement should be rescinded based on a vice of consentmutual errorin that both parties undervalued the value of the community real estate and the tax liability owed by the parties such that Mrs. Belk received a disproportionate share of the community property. Mrs. Belk also asserted, in the alternative, that the community property settlement should be rescinded on the basis of lesion beyond moiety in that Mrs. Belk received less than three-eighths (3/8) of the net community property.
After a trial on the merits, on May 21, 2009, the trial court, for written reasons assigned, rendered judgment finding no evidence to support Mrs. Belk's claims of fraud, error, or lesion, and therefore, dismissed Mrs. Belk's claims against Mr. Daniel. A judgment in conformity with the trial court's ruling was signed on June 12, 2009, and it is from this judgment that Mrs. Belk has appealed.
II. ASSIGNMENT OF ERRORS
On appeal, Mrs. Belk contends that the trial court's factual determinations with regard to the value placed on the community home and the community office building at the time the parties entered into the community property settlement were manifestly erroneous, and therefore, the community property settlement should be set aside based on lesion. Mrs. Belk also contends that the trial court manifestly erred in finding that the evidence did not support Mrs. Belk's claim of error induced by fraud and in its factual determinations underlying that claimi.e., that Mr. Daniel lacked the fraudulent intent to obtain an unjust advantage or cause damage or inconvenience to Mrs. Belk.
III. STANDARD OF REVIEW
In this case, the trial court's judgment was based solely on its underlying factual findings. The correct standard of review by the appellate court for factual findings is manifest error. The two-part test for the appellate review of a trial court's factual finding is: (1) whether there is a reasonable factual basis in the record for the finding of the trier of fact; and (2) whether the record further establishes 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 trier of fact's finding, no additional inquiry is necessary to conclude that there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines that the factual finding was clearly wrong. See Stobart v. State, DOTD, 617 So. 2d 880, 882 (La. 1993); Moss v. State, XXXX-XXXX (La. App. 1st Cir. 8/8/08), 993 So. 2d 687, 693, writ denied, 2008-2166 (La. 11/14/08), 996 So. 2d 1092. Under this rule, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Stobart, 617 So.2d at 882. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart, 617 So.2d at 882-883.
When the findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the findings of fact, for only the fact finder is cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989). Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness's story, a reviewing court may well find manifest error even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-845. Where such factors are not present, however, and a fact finder's determination is based on its decision to credit the testimony of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 845. The rule that questions of credibility are for the trier of fact applies equally to the evaluation and resolution of conflicts in expert testimony. Lasyone v. Kansas City Southern Railroad, 2000-2628, p. 13 (La. 4/3/01), 786 So. 2d 682, 693. A fact finder may accept or reject the opinion expressed by an expert, in whole or in part. Green v. K-Mart Corporation, 2003-2495, p. 5 (La. 5/25/04), 874 So. 2d 838, 843.
IV. LAW AND DISCUSSION
A. Lesion
Louisiana Civil Code article 814 addresses rescission of a partition for lesion and provides that "[a]n extrajudicial partition may be rescinded on account of lesion if the value of the part received by a co-owner is less by more than one-fourth of the fair market value of the portion he should have received."
The proper method of establishing lesion beyond one-fourth is twofold: (1) the community property's true value (net value) must be ascertained; and (2) it must then be determined from the property acquired whether a party received value less than ¾ of ½ share of the true value of the property partitioned. McCarroll v. McCarroll, 96-2700, p. 10 (La. 10/21/97), 701 So. 2d 1280, 1285. The value of the property exchanged is determined as of the date the exchange was executed. Id.
The plaintiff has the burden of proving lesion beyond one-fourth and must establish the claim by clear and convincing evidence. Baechle v. Baechle, 99-1379, p. 4 (La. App. 1st Cir. 6/23/00), 762 So. 2d 1165, 1167. To prove lesion, the evidence must be clear and exceedingly strong; unsupported or speculative values are not to be considered in resolving the question of whether or not lesion exists. Id.
At the outset, we must first determine what property was included in the partition. According to the community property settlement, Mrs. Belk was not allocated any community liabilities and was allocated the following community assets: (1) the sum of $350,000.00 payable in cash or a certified check from Mr. Daniel; (2) a Merrill Lynch IRA account in the name of Kellie Kaufman Daniel; (3) a 2000 ML 430 Mercedes; (4) an option to purchase lot 155 in Amaris Isle Plantation in Grand Isle, Louisiana; and (5) all furniture, movables, and other personal items in her possession. Mr. Daniel was allocated the following community assets:[1] (1) the home (former matrimonial domicile) and property; (2) the office building and property; (3) the depot property; (4) the restaurant property; (5) the Tunica cabin; (6) the Pirates Cove property; (7) an option to purchase lot 156 in Amaris Isle Plantation in Grand Isle, Louisiana; (8) the restaurant Que Pasa; (9) the community interest in Hardwood Seedlings, L.L.P.; (10) Daniel Forestry Services, Inc.; (11) Daniel Properties, L.L.P.; (12) a Commonwealth Financial Network IRA account in the name of Edward I. Daniel, IV; (13) a Merrill Lynch investment account in the name of Edward I. Daniel, IV; and (14) all furniture, movables, and other personal items in his possession, together with a chair and ottoman in the possession of Mrs. Belk.
Additionally, Mr. Daniel assumed the following community liabilities: (1) the mortgage on the community home (former matrimonial domicile) with Wells Fargo; (2) four loans with the Bank of St. Francisville (which were in relation to the above immovable properties allocated to Mr. Daniel and to the Mercedes allocated to Mrs. Belk); (3) any and all liabilities, including tax liabilities, in the name of the companies allocated above to Mr. Daniel; and (4) any and all personal tax liabilities of the parties from the date of marriage through the date the community was terminated. Additionally, according to the community property settlement, Mr. Daniel was required to remove Mrs. Belk from all of the liabilities, within 30 days of the execution of the agreement, except with regard to the mortgage on the former matrimonial domicile; Mrs. Belk was to be removed from that liability within 120 days of the execution of the agreement.
At the beginning of trial, the parties stipulated to the values of the following assets on the date the assets were partitioned: (1) Pirates Cove property$65,000.00; (2) the 2000 ML 430 Mercedes$18,000.00; and (3) the options to purchase lots 155 and 156 in Amaris Isle Plantation in Grand Isle, Louisiana$6,000.00 each (or a total of $12,000.00).
After the trial on the merits, the trial court identified and valued the following as community assets:[2] (1) the Merrill Lynch IRA account in the name of Kellie Kaufman Daniel$4,548.41; (2) all furniture, movables, and other personal items in the possession of Mrs. Belk$32,490.00;[3] (3) the former matrimonial domicile and property$550,000.00; (4) the office building and property$161,500.00; (5) the depot property$121,500.00; (6) the restaurant property$192,000.00; (7) the Tunica cabin$62,500.00; (8) the restaurant Que Pasa$41,000.00; (9) the community interest in Hardwood Seedlings, L.L.P.$178,000.00; (12) the Commonwealth IRA account in the name of Edward I. Daniel, IV$11,318.23; (13) the Merrill Lynch investment account$55,856.64; and (14) a Merrill Lynch IRA account in the name of Edward I. Daniel, IV$38,165.05.[4] Accordingly, the trial court concluded that the total value of community assets was $1,543,878.33.
The trial court also assigned the following values to the community liabilities allocated in the settlement agreement: (1) 2004 state and federal tax liabilities of the parties$6,161.00; (2) the mortgage on the community home (former matrimonial domicile) with Wells Fargo$232,301.98; (3) loan with Bank of St. Francisville(Pirates Cove property)$56,000.00 (4) loan with Bank of St. Francisville(depot property)$117,544.78; (5) loan with Bank of St. Francisville(restaurant property)$173,017.16; (6) loan with Bank of St. Francisville(Mercedes allocated to Mrs. Belk)$10,213.23. The trial court then concluded that the total community liabilities were $595,238.15, which yielded a net community of $948,640.18, with each party being entitled to $474, 320.09.
The trial court then determined that the total net value of the community property allocated to Mrs. Belk was $411,038.41 (the Amaris Isle Plantation lot 155 option$6,000.00; the Merrill Lynch IRA in her name$4,548.41; movables$32,490.00; the Mercedes$18,000.00; and cash$350,000.00). Because the partition agreement could be rescinded on account of lesion only if the value of the part Mrs. Belk received was less by more than one-fourth of the value she should have received, and since Mrs. Belk received 86% of the value to which she was entitled ($411,038.41 is 86% of $474,320.09), the trial court determined that Mrs. Belk was not entitled to any relief based on lesion.
On appeal, Mrs. Belk does not challenge the trial court's factual determinations that the total community liabilities were $595,238.15 and that she received $411,038.41 in net community assets. Instead, she asserts that the values assigned by the trial court to two of the community assetsthe home and officewere manifestly erroneous. And if those assets are valued according to other evidence from trial, which she claims the trial court disregarded, the total value of the community assets would be much higher, the total net community to which she was entitled to would be higher, and the partition agreement would be lesionary.
As previously noted, the trial court valued the home at $550,000.00. This factual determination was based on an appraisal performed by Don Capron, an expert real estate appraiser, who appraised the value of the property as of August 9, 2005, seven days prior to the execution of the community property settlement. Mrs. Belk contends that the trial court should have valued the home according to its actual sales price approximately one-month later on September 19, 2005to a person from New Orleans immediately following Hurricane Katrinafor the sum of $840,000.00 and based on the appraisal by Ken Thornton, another expert real estate appraiser, who appraised the property on September 9, 2005, for $841,000.00 in conjunction with the September 19, 2005 sale of the home.
During trial, Mr. Thornton was questioned extensively about the discrepancy between his September 9, 2005 appraisal of the property for $841,000.00 and Mr. Capron's August 9, 2005 appraisal of the property for $550,000.00. Mr. Thornton explained that he was not asked to assess the value of the property and that the scope of his appraisal was dictated by his client, Iberia Bank, who only wanted him to find comparable sales to support the purchase price that the prospective buyer had agreed to pay. Additionally, Mr. Thornton explained that, generally, the property was probably worth more following Hurricane Katrina, and he specifically admitted that he did not know the value of the property on August 16, 2005, because he did not appraise it on that date.
After reviewing the record in its entirety, we find no error in the trial court's factual determination that, on the date the parties voluntarily partitioned the community property, the value of the former matrimonial domicile was $550,000.00. The trial court's conclusion in this regard is fully supported by the expert testimony of Mr. Capron. Although there is other evidence in the record suggesting that the home may have been worth $840,000.00, as it was sold for that sum approximately one-month later, the trial court's decision to value the home according to Mr. Capron's appraisal, particularly in light of the testimony by Mr. Thornton regarding the very limited scope of his appraisal and the general effect of Hurricane Katrina on the real estate market, was not clearly wrong.
With regard to the office property, the trial court determined that it had a value of $161,500.00. The record before us contains three separate appraisals of the community office and property which were performed by three different expert real estate appraisers. Mr. Capron performed an appraisal on August 9, 2005, and concluded that the market value of the office and property was $376,000.00. On July 7, 2008, David Wesley Moore, II performed a retrospective appraisal to determine its market value as of August 16, 2005, and concluded that its market value as of that date was $175,000.00. Additionally, on April 10, 2008, Joseph Rinaudo, Jr. performed a retrospective appraisal to determine its market value as of August 10, 2005, and concluded that its market value on that date was $148,000.00.
In determining the value of the office property, the trial court specifically stated, in its reasons for judgment, that while all of the appraisals on the office property, the depot property, the restaurant property, and the Tunica cabin were "thorough and seem supported by valid conclusions," it could not reconcile the variance between the appraisals, and therefore it chose to fix the value of those properties by averaging the competing appraisals. However, in fixing the value of the office property at $161,500.00 by averaging competing averages, it only considered and averaged the market value of the office property as presented by the appraisals of Mr. Rinaudo ($148,000.00) and Mr. Moore ($175,000.00); the trial court did not include in its average the market value of the office property as presented by Mr. Capron ($376,000.00).[5] Mrs. Belk contends that because the trial court specifically found that all of the appraisals were thorough and supported by valid conclusions, and decided to determine the market value by averaging the appraisals, it was clear error and an abuse of discretion for the trial court to only use Mr. Moore's and Mr. Rinaudo's appraised values and not include Mr. Capron's appraised value in its average.
The record before us does not disclose why the trial court did not include Mr. Capron's appraised value of the office property in calculating the average of the competing appraisals. Whether the omission of Mr. Capron's appraised value of the office property was by oversight or an implicit rejection of Mr. Capron's appraised value, the underlying factual determination reached by the trial court was clear, i.e., that the office property had a value of $161,500.00. This factual determination is supported by the expert opinion testimony of both Mr. Moore and Mr. Rinaudo. Although there was a slight variance in their two appraised values, the trial court resolved that conflict between the expert opinions by averaging the two appraised values. In light of the fact that Mr. Capron's appraised value of the office property was more than twice the appraised values of both Mr. Rinaudo and Mr. Moore, we cannot say that the trial court was clearly wrong in not including Mr. Capron's appraised value in its average of the market value or in its ultimate factual determination that the market value of the office property was $161,500.00.
Because we have found no manifest error in any of the underlying factual determinations made by the trial court with regard to the net value of the community, we further find no manifest error in the trial court's determination that Mrs. Belk received 86% of the value of the community to which she was entitled. Therefore, Mrs. Belk was not entitled to any relief based on lesion.
B. Fraud and Error
"Consent may be vitiated by error, fraud, or duress." La. C.C. art. 1948. "Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction." La. C.C. art. 1953. "Fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill. This exception does not apply when a relation of confidence has reasonably induced a party to rely on the other's assertions or representations." La. C.C. art. 1954. "Error induced by fraud need not concern the cause of the obligation to vitiate consent, but it must concern a circumstance that has substantially influenced that consent." La. C.C. art. 1955. "In pleading fraud the circumstances constituting fraud ... shall be alleged with particularity." La. C.C.P. art. 856. However, "[f]raud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence." La. C.C. art. 1957.
There are three basic elements to an action for fraud against a party to a contract: (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause loss or inconvenience to another; and (3) the error induced by a fraudulent act must relate to a circumstance substantially influencing the victim's consent to the contract. Shelton v. Standard/700 Associates, XXXX-XXXX, p. 5 (La. 10/16/01), 798 So. 2d 60, 64.
Mrs. Belk contends that Mr. Daniel's valuation of the property during the community property settlement negotiations were amounts that he knew were much lower than the actual value of those assets. She also contends that her allegations of Mr. Daniel's fraudulent conduct are supported by: Mr. Daniel's failure to disclose his intention to apply for a loan secured by the property he was to receive in the community property partition agreement, even though to encumber the property was a violation of the stipulated judgment of July 13, 2005, providing for an injunction; his failure to inform the Bank of St. Francisville that he was not the sole owner of the property securing the loan; his listing of the property after the signing of the settlement agreement for a higher value than he claimed during the negotiations; the subsequent sale of the property at the listing price; and the short period of time between the execution of the community property settlement and the listing and sale of the property. Mrs. Belk also claims that though both parties were aware that the Louisiana Department of Transportation and Development had offered $18,522.00 for a portion of community property (the office property) it was expropriating and which was partitioned in the agreement, Mr. Daniel failed to reveal that the negotiations with regard to the sum received for the expropriation were ongoing, resulting in a payment of $50,750.00 instead of $18,522.00. She also contends that Mr. Daniel misrepresented the amount of the community tax liability and failed to disclose a cash distribution he received from the community enterprise, Hardwood Seedlings, L.L.P. Mrs. Belk asserted that Mr. Daniel withheld his intention to apply to the Bank of St. Francisville for a loan to prevent her from knowing the terms of the loan, and that had she been aware of the terms of the loan, the ongoing negotiations with the Louisiana Department of Transportation and Development, the actual community tax liability, and the cash distribution, she would have been alerted to the fact that the value of the community property was higher than Mr. Daniel claimed in the negotiations.
After the trial on the merits, the trial court found that Mrs. Belk was not specifically informed by Mr. Daniel of the details of the loan he was obtaining to secure the funds necessary to satisfy both the community obligations allocated to him and the cash payment to Mrs. Belk under the terms of the community property settlement, nor was she aware that the negotiations with the Louisiana Department of Transportation and Development were ongoing or of the cash distribution to Mr. Daniel from Hardwood Seedlings, L.L.P.. Therefore, the trial court found that Mrs. Belk met her burden of proving the first element to an action for fraudthat there was a misrepresentation, suppression, or omission of true information. However, as to the second element, the trial court found that there was no intent to obtain an unjust advantage or cause damage or inconvenience. Accordingly, the trial court concluded that Mrs. Belk was not entitled to any relief based on fraud or error induced by fraud. In making the factual determination that Mr. Daniel did not have the requisite intent to obtain an unjust advantage or cause damage or inconvenience to Mrs. Belk, the trial court specifically found that Mr. Daniel's testimony as to how he arrived at the values he used during the negotiation of the community property settlement and his denial of any fraudulent intent was credible.
Based upon our review of the record, we can find no manifest error in the trial court's conclusions in this regard. As to the terms of the loan from the Bank of St. Francisville, the trial court found that Mr. Daniel did not hide the fact that he was applying for a loan secured by property that he was to receive in the partition from Mrs. Belk. Harrison Carter Leake, III, the president and CEO of the Bank of St. Francisville, handled and approved the loan to Mr. Daniel. Mr. Leake testified that he was aware that the loan to Mr. Daniel was being made in conjunction with the partition of community property and explained that the Bank was not concerned that Mr. Daniel was not the sole owner of the property securing the loan at the time Mr. Daniel applied for the loan because the Bank knew the funds were to be placed in an attorney trust account until the property securing the loan was solely in the name of Mr. Daniel.
Additionally, although Mr. Daniel testified that he was aware that an appraisal of the property was required for the loan and knew when that appraisal was performed on the property, there is no evidence in the record establishing that Mr. Daniel was aware of the results of the appraisal or the amount the property appraised for prior to the execution of the community property settlement. As to Mr. Daniel's action in encumbering the property in violation of the injunction, the trial court believed it was logical that Mr. Daniel would utilize the property he was to receive in the community property partition as security for the loan since the parties had specifically agreed that the property he was encumbering would be allocated to him. Thus, the trial court found that, although the execution of the collateral mortgage by Mr. Daniel prior to the partition may have been a technical violation of the injunction against encumbering community property, there was no harm to Mrs. Belk because Mr. Leake testified that the transaction would only be complete when Mrs. Belk accepted her portion of the community property and conveyed that to which Mr. Daniel was entitled by executing the property settlement.
With regard to Mrs. Belk's contention that Mr. Daniel knew what the community home was worth since he valued it at $487,500.00 during the negotiations, but listed it for sale six days following the execution of the community property settlement for $840,000.00, and thereafter sold it for that sum, the trial court noted that both the purchase agreement and sale of the property occurred after Hurricane Katrina. Notably, Mr. Thornton testified that there had been an increase in real estate values in West Feliciana immediately following the hurricane. The court also noted that the only evidence establishing that Mr. Daniel had knowledge that the property may have been worth more than the values considered during the negotiations was the listing agreement, which the trial court found was insufficient to prove any fraudulent intent by Mr. Daniel.
As to the ongoing negotiations with the Louisiana Department of Transportation, the evidence in the record established that, at the time of the execution of the community property settlement, the Louisiana Department of Transportation had offered the sum of $18,522.00 for the parcel in question. Although in November 2005, the Department actually paid the sum of $50,750.00 for the parcel, the record does not contain any evidence establishing that Mr. Daniel knew the final sum that would be paid when he entered into the property settlement.
Mrs. Belk also asserted that she was misled to believe that the potential income tax liability for 2004 for the parties would be approximately $60,000.00 and that this liability would be paid from the parties' Merrill Lynch investment account. She testified that in consideration of Mr. Daniel's agreement to pay the tax, she agreed that Mr. Daniel would receive the Merrill Lynch investment account as part of the community property settlement. However, she later discovered, according to their actual state and federal income tax returns, that the parties' actual income tax liability was only $6,160.00. The trial court found that Mr. Daniel did not act fraudulently in his estimation of the potential income tax of the parties to induce Mrs. Belk to convey her interest in the account because McDuffie Herrod, the parties' certified public account, testified that he had estimated the potential income tax liability of the parties to be that which was represented by Mr. Daniel. Thus, the trial court concluded that during the settlement negotiations, Mr. Daniel was only repeating that which his accountant had advised him.
Lastly, with regard to the distribution from Hardwood Seedlings, L.L.P., the testimony established that annual distributions were made from that enterprise and Mrs. Belk was aware of that fact because she was the bookkeeper for that enterprise.
Although Mrs. Belk was not specifically informed of certain actions taken by Mr. Daniel, the trial court's conclusion that there was no intent to obtain an unjust advantage or cause loss or inconvenience to Mrs. Belk is supported by the record. Although it appears that Mr. Daniel obtained an advantageous settlement, his actions to obtain this settlement did not rise to the level of fraud. He offered plausible explanations for all of his actions during the negotiations of the settlement, which the trial court found credible. We also note that during the negotiations for the property settlement, Mr. Daniel's settlement offers also included a reverse situationwhere Mrs. Belk would receive all of the assets and liabilities which were allocated to him and Mr. Daniel would receive the cash settlementwhich belies any intent by Mr. Daniel to gain an unjust advantage or cause damage or inconvenience to Mrs. Belk. Furthermore, we also find no evidence in the record affirmatively establishing that Mrs. Belk relied on or was induced to rely on any assertion by Mr. Daniel during the settlement negotiations.
Accordingly, as we have found no manifest error in any of the underlying factual determinations made by the trial court with regard to Mrs. Belk's claim of fraud, Mrs. Belk was not entitled to any relief based on fraud or error induced by fraud.
V. CONCLUSION
For all of the above and foregoing reasons, the June 12, 2009 judgment of the trial court dismissing Mrs. Belk's action against Mr. Daniel to rescind the parties' community property settlement based on lesion, error, and fraud is affirmed.
All costs of this appeal are assessed to the appellant, Kellie Kaufman Belk.
AFFIRMED.
WHIPPLE, J., concurring.
Although I find the extremely short time between the partition agreement and Mr. Daniel's ability to list and sell the home and property at a significantly higher amount than the value assigned in the partition to be very troubling and suspicious, and to raise serious issues regarding Mr. Daniel's credibility and his intent to deceive Mrs. Daniel, I am compelled to concur in the result reached by the majority, given the standard of review applicable herein and the absence of some clear testimony or evidence showing precisely when Mr. Daniel negotiated the terms of the sale and listing of the property at issue to the buyer herein. In sum, absent some clear evidence establishing Mr. Daniel had entered into these negotiations with a willing buyer before the compromise partition was signed, the result is correct.
NOTES
[1] For the sake of brevity, we have not included the legal description of the immovable property allocated to Mr. Daniel, but instead refer to the properties in the manner the parties have referred to the properties throughout the record in this matter.
[2] We note that the trial court did not identify as community or assign a value to either Daniel Forestry Services, Inc. or Daniel Properties, L.L.P. The evidence at trial indicated that Daniel Forestry Services, Inc. was Mr. Daniel's separate property and that Daniel Properties, L.L.P. was a holding entity, holding title to the various immovable properties owned by the parties and allocated in the partition agreement to Mr. Daniel.
[3] The trial court noted that Mr. Daniel also received some movable property, but there was insufficient evidence offered at trial to place a value on those assets.
[4] We note that this Merrill Lynch IRA account was not included as an asset that was partitioned in the community property settlement, and the record does not disclose the reason for its absence from the partition agreement. Although it was appropriate for the trial court to consider this asset in determining the net value of the community for purposes of determining whether the partition agreement was lesionary, we note that its exclusion or omission from the community property settlement may be grounds for a supplemental partition. See Edwards v. Edwards, 35,953, 35,954, p. 3 (La. App. 2nd Cir. 5/8/02), 817 So. 2d 414, 416; Sullivan v. Sullivan, 42,923, p. 9 (La. App. 2nd Cir. 2/13/08). 976 So. 2d 329, 336, writ denied. XXXX-XXXX (La. 6/6/08), 983 So. 2d 921.
[5] ($148,000.00 + $175,000.00) ÷ 2 = $161,500.00. Notably, had the average of the market values of the office property included Mr. Capron's appraised market value of $376,000.00, the average of the market values would have been $233,000.00 ($148,000.00 + $175,000.00 + $376,000.00) ÷ 3 = $233,000.00. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556296/ | 30 So. 3d 313 (2010)
Carolyn Marie BARNES
v.
STATE of Mississippi.
No. 2008-KA-00684-SCT.
Supreme Court of Mississippi.
March 4, 2010.
*315 Office of Indigent Appeals by Erin Elizabeth Pridgen, Toni Demetresse Terrett, Leslie S. Lee, attorneys for appellant.
Office of the Attorney General by Deirdre McCrory, attorney for appellee.
Before GRAVES, P.J., LAMAR and KITCHENS, JJ.
GRAVES, Presiding Justice, for the Court.
¶ 1. Carolyn Barnes was convicted of one count of embezzlement in the Circuit Court of Warren County and sentenced to ten years in the custody of the Mississippi Department of Corrections. Barnes' post-trial motion was denied and she filed this appeal. We find that the issues raised by Barnes are without merit and that her conviction should be affirmed.
FACTS
¶ 2. Carolyn Barnes was a home caregiver for Lottie Montague's husband. Upon his death, the family continued to employ Barnes to assist 86-year-old Lottie Montague with daily activities. Barnes had a key to Montague's home, kept Montague's vehicle for personal use and to take Montague on errands, and was paid an hourly wage. On May 8, 2006, Barnes drove Montague to a senior citizens center in Vicksburg. After leaving the center, Barnes drove Montague to BancorpSouth, where Montague cashed a check for $3,000 with the intention of depositing the money into the credit union account of Montague's daughter, Joyce. The pair picked up lunch and proceeded to Mutual Credit Union, where Barnes offered to take the money inside and deposit it in Joyce's account because she said she knew the teller. Barnes took the money and entered the credit union. When Barnes exited the credit union, Montague's son, Charles, came walking up. Charles, who worked across the street from the credit union, asked what Montague and Barnes were doing there and Barnes indicated she would tell him later.
¶ 3. The pair returned to Montague's house and ate lunch. Montague then told Barnes she was going to take a nap and that Barnes could leave for the day. Barnes said she would lock the door and then left. Shortly thereafter, Montague was awakened by someone straddling her and holding a pillow over face and rubbing it back and forth. Montague testified that she initially struggled, but then she thought she was going to die and just relaxed. The attacker removed the gold and diamond ring from Montague's fingers, took her leather wallet containing $300 and her credit cards, and her keys. Montague was unable to identify her attacker, but was able to tell that the person was tall, thin and wearing a white shirt with a blue stripe. Montague called 911. Law enforcement and emergency medical personnel arrived on the scene. Montague provided details of the attack and was later transported to the emergency room. Barnes returned to Montague's house and spoke with investigators from the Warren County Sheriff's office, including Todd Dykes and Randy Lewis. Investigators found no signs of forced entry. Barnes never returned to work for Montague. However, Barnes kept in contact with investigators, wanting to know how the case was progressing.
¶ 4. On May 9, 2006, the day following the attack, Barnes called Dykes. Barnes told Dykes that, although the initial report *316 made by Montague was that $300 was taken, an additional $3,000 actually had been taken. However, Barnes failed on at least two separate occasions to mention anything about going to Mutual Credit Union to deposit the money. Dykes relayed the information provided by Barnes to Lewis, who was working the case. After Barnes told investigators that an additional $3,000 had been taken, investigators talked with Montague, and she told them that Barnes was supposed to have deposited the money into Joyce's account. However, the money was never deposited. Further, investigators obtained surveillance photographs, taken from surveillance video[1] from Mutual Credit Union, that showed Barnes, wearing a white shirt with a blue stripe, enter the bank, go toward the deposit counter and do nothing. Barnes was wearing a different shirt when she returned to Montague's home following the attack.
¶ 5. Investigators asked Barnes to go to the sheriff's office on May 23, 2006, for an interview. During the course of the interview and based on discrepancies in her version of the events, Barnes was read her Miranda[2] rights and was later arrested. On May 24, 2006, authorities executed a search warrant on Barnes' home, but did not find any of the items taken from Montague or the white shirt with a blue stripe that Barnes was wearing on the surveillance video.
¶ 6. Barnes was indicted on charges of embezzlement and robbery. Barnes was convicted only of embezzlement and sentenced to serve ten years in the custody of the Mississippi Department of Corrections. Subsequently, Barnes filed this appeal.
ANALYSIS
I. Whether the trial court misapplied the law in admitting Barnes' statements made during custodial interrogation, thus depriving Barnes of her constitutional Right to Counsel.
¶ 7. Barnes asserts that the trial court should have suppressed her statements because they were taken in violation of her constitutional Right to Counsel. Barnes asserts that she attempted to invoke her Fifth Amendment Right to Counsel during her interview with authorities on May 23, 2006. Barnes further asserts that her statement to police was taken in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution and Section 26 of Article 3 of the Mississippi Constitution.
¶ 8. This Court will reverse a trial court's denial of a motion to suppress only if the ruling is manifest error or contrary to the overwhelming weight of the evidence. Ruffin v. State, 992 So. 2d 1165, 1169 (Miss.2008) (citations omitted). Under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), custodial interrogation must be preceded by advising the defendant of his right to remain silent and his right to an attorney. Id. at 479, 86 S. Ct. 1602. Upon invocation of the right to remain silent, the interrogation must cease. Id. If the defendant invokes his right to counsel, the interrogation must cease until an attorney is present. Id. "If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Id. at 475, 86 S. Ct. 1602. Once a defendant asks for counsel, he cannot be *317 interrogated further until counsel has been made available, "unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981).
¶ 9. However, the "applicability of the `"rigid" prophylactic rule' of Edwards requires courts to first `determine whether the accused actually invoked his right to counsel.'" Davis v. U.S., 512 U.S. 452, 458, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994) (citations omitted). Determining whether a defendant actually invoked his right to counsel is an objective inquiry. Id. at 459, 114 S. Ct. 2350. A defendant must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect. Davis, 512 U.S. at 459, 114 S. Ct. 2350. Further, the U.S. Supreme Court in Davis reiterated that there is no requirement that police clarify whether or not a defendant actually wants an attorney when the defendant makes an ambiguous or equivocal statement. Davis, 512 U.S. at 461, 114 S. Ct. 2350. The Court said that, although clarifying questions are good police practice, "we decline to adopt a rule requiring officers to ask clarifying questions. If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." Id. at 461-62, 114 S. Ct. 2350.
To recapitulate: We held in Miranda that a suspect is entitled to the assistance of counsel during custodial interrogation even though the Constitution does not provide for such assistance. We held in Edwards that if the suspect invokes the right to counsel at any time, the police must immediately cease questioning him until an attorney is present. But we are unwilling to create a third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer. Unless the suspect actually requests an attorney, questioning may continue.
Davis, 512 U.S. at 462, 114 S. Ct. 2350. See also Delashmit v. State, 991 So. 2d 1215, 1221 (Miss.2008); and Chamberlin v. State, 989 So. 2d 320, 333 (Miss.2008).
¶ 10. During the hearing on the motion to suppress, Lewis testified that Barnes was not a suspect when he called her and asked her to come to his office for a noncustodial interview. Barnes' interview was videotaped and later transcribed. However, Lewis testified that during the course of the interview, Barnes made some contradictory statements, which are discussed further herein, that made her a person of interest. At that point, Lewis said Barnes was given her Miranda rights and a waiver. Lewis further testified that Barnes still was not a suspect at that point, but that he was aware that she had made contradictory statements. Lewis also testified that Barnes never asserted her right to have an attorney present, but that she was offered an attorney.
¶ 11. In the motion to suppress her statement, Barnes argued that she had asserted her right to counsel multiple times. The trial court denied Barnes' motion, finding that Barnes understood her right to get an attorney, that Barnes never asked for an attorney, and that her statements were free and voluntary. The trial court also noted that Barnes never made any inculpatory statements.
¶ 12. Barnes argues on appeal that the first assertion after she was given the Miranda warning was when she made *318 the statement, "So, I don't need legal, okay. ..." However, this is not an assertion of her right to counsel, but rather an attempt to clarify whether she must have an attorney present. Barnes testified during the hearing on the motion to suppress that she made the statement "[t]o see did I need to have a lawyer there, did I need some legal representation. ..." Further, after Barnes made this statement, Lewis explained to her that he had to advise her of her rights and make sure she understood before he asked her any more questions. Barnes indicated that she understood.
¶ 13. Barnes next claims that she again asserted her right to counsel when she said, "But I don't have an attorney here." However, again, this statement read in the context in which it was made does not indicate an explicit request for an attorney. Barnes continued talking. Lewis interrupted her on two separate occasions and advised her to "hold on just a second" until he had the information written on the waiver so she could read over it. Lewis then reviewed the waiver with Barnes. Barnes indicated that she understood. Further, Barnes again testified during the hearing on the motion to suppress that this statement was merely a question as to whether she needed to have an attorney present.
¶ 14. Barnes claims that the "clearest example" that she had asserted her right to counsel was when she said, "Now if I do need to get a lawyer ... I will get one." However, Lewis asked whether that was what she wanted to do and she replied, "It don't matter to me." Lewis again asked whether she wanted to, and she replied, "Whatever I've got to do, but I'm not fixing to get railroad [sic] up in this mess because Joyce is the one that gets ... getting all ... getting her and her husband since she bought him from Iraq, she's the one that's talking about she's been broke since she got `Farkad' [Joyce's husband] over here." Barnes testified at the hearing on the motion to suppress that this statement meant exactly what it says, "[m]eaning if I needed to get a lawyer, that I would get one, whatever I have to do."
¶ 15. We find that the record supports a finding that Barnes received the Miranda warning, that she knowingly and intelligently waived the rights, and that she freely and voluntarily made the statements. Pursuant to Davis, Barnes failed to make an unambiguous, unequivocal request for an attorney, and Lewis had no obligation to stop questioning her. Id. at 461-62, 114 S. Ct. 2350. See also Chamberlin, 989 So.2d at 333. Therefore, this issue is without merit.
II. The trial court erred in denying Barnes' motion for a new trial as the verdict was against the overwhelming weight of the evidence.
¶ 16. Barnes was indicted for embezzling the $3,000 under Mississippi Code Section 99-23-19, which provides, in relevant part:
If any director, agent, clerk, servant, or officer of any incorporated company, or if any trustee or factor, carrier or bailee, or any clerk, agent or servant of any private person, shall embezzle or fraudulently secrete, conceal, or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods, rights in action, money, or other valuable security, effects, or property of any kind or description which shall have come or been intrusted to his care or possession by virtue of his office, place, or employment, either in mass or otherwise, with a value of Five Hundred Dollars ($500.00) or more, he shall be guilty of *319 felony embezzlement, and, upon conviction thereof, shall be imprisoned in the Penitentiary not more than ten (10) years, or fined not more than Ten Thousand Dollars ($10,000.00), or both.
Miss.Code Ann. § 97-23-19 (Rev.2003).
¶ 17. This Court reviews a trial court's denial of a motion for new trial under an abuse-of-discretion standard. Dilworth v. State, 909 So. 2d 731, 737 (Miss. 2005). "A greater quantum of evidence favoring the [S]tate is necessary for the [S]tate to withstand a motion for a new trial, as distinguished from a motion for J.N.O.V." Id. (quoting Pharr v. State, 465 So. 2d 294, 302 (Miss.1984)). "Accordingly, we defer to the discretion of the trial judge, and `[w]e will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice.'" McLendon v. State, 945 So. 2d 372, 385 (Miss.2006) (quoting Groseclose v. State, 440 So. 2d 297, 300 (Miss.1983)). This Court further has said:
However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, as the "thirteenth juror," the court simply disagrees with the jury's resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.
Dilworth, 909 So.2d at 737.
¶ 18. Barnes asserts that the verdict was not supported by the overwhelming weight of the evidence because too much weight was placed on Montague's testimony. Barnes also asserts that Montague's testimony was "riddled with inconsistencies and contradictions." Barnes' claim is an exaggeration not supported by the record in this matter.
¶ 19. Barnes asserts that statements about whether she returned to the home after the attack and whether Montague had an additional set of house keys were contradictory. However, it is rational to assume that since Montague had just been attacked, was treated at the scene and then taken to the hospital, she may not have realized whether Barnes returned to the scene. Further, various parts of the record are contradictory as to which keys were even taken. More importantly though, neither of these statements has anything to do with the embezzlement.
¶ 20. Barnes further asserts that "Montague's most damaging contradiction occurred when she acknowledged Carolyn's conversation with Charles, her son, outside the Mutual Credit Union." Barnes asserts that because Montague admitted that Charles asked what the pair was doing at the credit union and Barnes responded she would tell him later, that it somehow proves that Montague was hiding something from Charles. However, this argument is nonsensical. There is no contradiction in the record regarding what was said by and to Charles at the credit union. The only contradictions regarding the credit union are Barnes' various versions of what occurred there. Barnes failed to mention anything about the credit union to investigators. When Lewis specifically asked Barnes during the interview whether the pair stopped at the credit union, Barnes indicated that the pair stopped at the bank so Montague could withdraw money. Further, Barnes said the pair then proceeded to the credit union because Montague wanted to withdraw more money, but that they saw Charles and Montague *320 changed her mind.[3] Barnes then indicated that, upon changing her mind, Montague told Barnes to go in and get some change. However, this scenario was contradicted by both Barnes herself and other evidence in the record. Barnes testified at trial that, after they left the bank and as they were driving, Montague indicated she needed some change, so Barnes stopped at the credit union. The surveillance video indicated that Barnes did nothing, and did not even get change, upon entering the credit union. Further, the video, Montague, and Barnes' statement established that Charles was not there before Barnes went into the credit union, but came up as Barnes exited. The evidence presented at trial established that Barnes was employed by Montague. The evidence also established that Montague entrusted Barnes with $3,000 to deposit into Joyce's account. Further, Barnes failed to deposit the money, but instead secreted it for her own use.
¶ 21. Barnes has failed to establish that the trial court abused its discretion in denying the motion for new trial. Further, Barnes has failed to establish that the verdict is contrary to the overwhelming weight of the evidence. Therefore, this issue is without merit.
CONCLUSION
¶ 22. For the reasons stated herein, we affirm the judgment of conviction of embezzlement in the Circuit Court of Warren County and sentence of ten years in the custody of the Mississippi Department of Corrections.
¶ 23. CONVICTION OF EMBEZZLEMENT AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.
WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.
NOTES
[1] A bank employee also testified regarding the video.
[2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[3] At this point, Lewis advised Barnes of her rights. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556459/ | 30 So.3d 508 (2010)
LAPHAN
v.
STATE.
No. 4D09-1166.
District Court of Appeal of Florida, Fourth District.
March 10, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556483/ | STATE OF LOUISIANA,
v.
TALMAGE J. GALATAS.
No. 2009 KA 1467.
Court of Appeals of Louisiana, First Circuit.
February 12, 2010.
Not Designated for Publication
WALTER P. REED, District Attorney, and KATHRYN W. LANDRY, Special Appeals Counsel, Counsel for Appellee, State of Louisiana.
JERRY L. FONTENOT, Counsel for Defendant/Appellant, Talmage J. Galatas.
Before: PARRO, KUHN, and McDONALD, JJ.
KUHN, J.
Defendant, Talmage J. Galatas, was charged by bill of information with illegal possession of stolen things valued at over $500.00, a violation of La. R.S. 14:69. He entered a plea of not guilty and was tried before a jury. Defendant was found guilty as charged, and the trial court sentenced him to serve a period of five years at hard labor. The trial court suspended the sentence and placed defendant on active, supervised probation for five years with special conditions. Defendant appealed, assigning the sufficiency of the evidence at trial error. This court affirmed defendant's conviction, conditionally affirmed his sentence, vacated a condition of his probation, and remanded the matter to the district court. Specifically, as a result of our review for error pursuant to La. C.Cr.P. art. 920(2), we noted that the trial court failed to set a specific amount of restitution to be paid as a condition of the defendant's probation (citing La. C.Cr.P. arts. 895A(7) and 895.1 A; State v. Cortina, 632 So.2d 335, 338 (La. App. 1st Cir. 1993)). State v. Galatas, XXXX-XXXX (La. App. 1st Cir. 6/6/08), 986 So.2d 255 (unpublished). After a restitution hearing, the trial court ordered defendant to pay restitution as itemized by the victim in Exhibit S-1 with the exception of the last four items on the list. Defendant now appeals, assigning the restitution order as error. We affirm.
STATEMENT OF FACTS[1]
In the summer of 2005, Timothy Galatas and Guilio Giunta purchased a home located on Tag Along Road in Lacombe, Louisiana. In late August, as Hurricane Katrina approached the coastline, they evacuated to Jackson, Mississippi. Timothy's parents had been taken to his sister's home in Jacksonville, Florida by his brother, defendant. Soon after the hurricane, Timothy's mother was hospitalized because she suffered a stroke. After learning of his mother's hospitalization, Timothy and Giunta traveled to Jacksonville to assist Timothy's parents.
Timothy worked as an operating-room nurse and had previously performed temporary contracts away from Louisiana (commonly referred to as travel nursing). In the aftermath of Hurricane Katrina, Timothy signed a temporary employment contract with a hospital in the Jacksonville area. Timothy testified that he intended to return to his home in Lacombe following completion of his three-month contract and have his parents live with him.
While in Jacksonville, Timothy agreed to allow defendant to live in his Lacombe residence. The camper that defendant lived in had been damaged, and his business office had been flooded. Defendant agreed to pay Timothy's monthly mortgage note payment and utilities, and defendant would be able to operate his extermination business (Galatas Systems) from his brother's residence.
In late September or early October, Timothy and defendant "had words" following an attempt by Timothy's other siblings to place both parents into a nursing home in Florida. Following this verbal confrontation, defendant told Timothy that he was "going to get even" for blocking the attempts to place their parents into a nursing home.[2] Questions and tensions also arose between Timothy and his siblings over how their parents' finances were being handled.
Despite defendant's agreement to pay the mortgage note monthly payment and utilities on Timothy's Lacombe residence, the payments were not made. Timothy later discovered that he had lost possession of his home because the monthly mortgage payments had not been paid. On December 7, 2005, Timothy returned to his Lacombe residence in a U-Haul moving truck to move his possessions from the house. Timothy entered the house and discovered that everything except for a sofa and a table had already been removed. According to Timothy, the house had been "trashed with beer bottles," and the key he had given to defendant was lying on the kitchen table. There was no sign of forced entry into the house. Timothy contacted defendant and asked where all his belongings were. Defendant denied that he had any of his brother's items and suggested Timothy contact the police.
Timothy contacted the St. Tammany Parish Sheriffs Office, and soon made a list of items that were missing from his home. After reporting the missing items, Timothy returned to Jacksonville.
Sergeant Joseph Picone of the St. Tammany Parish Sheriffs Office began his investigation of the complaint shortly after Christmas, 2005. Although Timothy suspected defendant was responsible for the missing items, Sergeant Picone's investigation included a canvassing of the neighborhood where Timothy's home was located. During his canvass, Sergeant Picone encountered Nicole Belsome, a neighbor who lived across the street from Timothy.
According to Belsome, shortly after the hurricane, a man appeared at Timothy's residence and stated that he was Timothy's brother from Chalmette and that he would be working his business from the house. For the next several weeks, Belsome observed activity at the residence. Then, one day in December, Belsome noticed a U-Haul truck at the residence, and she saw defendant and others moving things from the residence into the truck. Belsome testified that the U-Haul truck was there for several days and that she even saw defendant moving things out during the night. Belsome testified that it took defendant much longer to move out of Timothy's house than it took him to move into the house. Belsome identified defendant from a photographic lineup as the person who moved into Timothy's residence and who moved out of the residence.
Prior to speaking with defendant, Sergeant Picone acquired a U-Haul equipment contract in defendant's name for the rental of a truck on December 3, 2005. On January 26, 2005, Sergeant Picone contacted defendant, advised him of the investigation, and asked that he come to the police department to speak about it. Defendant arrived at Sergeant Picone's office and was advised of his Miranda rights. After waiving his Miranda rights, defendant was interviewed regarding Timothy's missing possessions.
Defendant denied that he had taken any of Timothy's belongings, and claimed he only removed his own belongings using his brown pickup truck. Defendant offered Sergeant Picone the opportunity to search his current residence. When Sergeant Picone accepted the offer and asked if they could go immediately to defendant's residence, defendant initially hesitated and inquired whether the search could be conducted the next day. However, defendant subsequently agreed that the search could take place that day.
Defendant accompanied the police to his house. When they arrived, Les Moore, one of defendant's employees, was already inside the residence. During the search, several items that Timothy had reported as missing from his residence were located in a spare bedroom in defendant's house.
Detective Corey Crowe of the St. Tammany Parish Sheriffs Office assisted in the search and testified that the following items were recovered from defendant's residence: music CDs, a cable TV reception box, a JVC video camera,[3] a mirror, and a remote control for a karaoke player. Defendant told Crowe that over the years, he had acquired items from Timothy that were transferred back and forth between them.
Defendant was arrested and originally charged with simple burglary. According to Detective Picone, defendant claimed he only used his brown pickup truck to move his belongings from Timothy's residence to his new home, and that he moved at the end of September, 2005. At no time did defendant tell Detective Picone that Timothy had given all his possessions to him.
Moore testified on defendant's behalf. According to Moore, defendant restarted his business from Timothy's Lacombe residence following the hurricane because the business office had been flooded. Moore testified that he did not participate in moving any of defendant's belongings into Timothy's residence. Moore stated he helped move materials for defendant's business from Timothy's house to defendant's new house off Dedinger Road in Lacombe. According to Moore, sometime in November, 2005, he and Barbara Hall, the office manager, loaded a moving truck in about an hour and fifteen minutes and took it over to defendant's new house. According to Moore, everything he moved was packed in boxes, but he specifically remembered moving a cable TV reception box.[4]
Garland Galatas, defendant's older brother, testified on defendant's behalf. Garland resided in California. Following Hurricane Katrina, Garland traveled to Jacksonville to see his parents. According to Garland, he, defendant, Giunta, Timothy, and Beverly Misrendino (another Galatas sibling) met in the parking lot of the hospital in Jacksonville, where his mother had been admitted. During this meeting, Garland claimed that Timothy stated he was enjoying Florida so much he did not plan to return to Louisiana. Timothy indicated to defendant that he could live in his Lacombe house and anything that was in the house was his, because he did not want it. Garland admitted he never contacted the police or the prosecutors with this information in an attempt to stop the prosecution of defendant.
Giunta denied that he or Timothy ever indicated that they were not returning to Louisiana. Giunta testified that he and Timothy had purchased the Lacombe house five weeks prior to the hurricane and had spent a lot of time repairing the house.
Misrendino testified that after the hurricane, defendant took their mother to Jacksonville and then returned to Slidell. Shortly after, their mother was hospitalized because of a stroke. Misrendino testified that she was present in the hospital parking lot when Timothy stated defendant could use his Lacombe house because he was not returning to Louisiana.
The State called Sergeant Picone as a rebuttal witness. Sergeant Picone testified that at no time did Moore claim responsibility for mistakenly moving any of Timothy's belongings into defendant's house and that he was never contacted or told by any of defendant's siblings that they heard Timothy give defendant permission to dispose of his belongings.
Defendant did not testify.
ASSIGNMENT OF ERROR
In the sole assignment of error, defendant contends that the trial court erred by ordering him to pay restitution arising from criminal acts for which he was never arrested, charged, or convicted. Defendant was ordered to pay restitution for items stolen during the burglary of the victim's home. Defendant notes that he was convicted based on items in his possession, which had been stolen at the time of the burglary. He maintains that, although the State tried to implicate him in the underlying burglary, he was never actually charged with that crime and, thus, it was improper for the trial court to order him to pay restitution for that crime.
When the court suspends the imposition or execution of sentence and places a defendant on probation, it may impose any specific conditions reasonably related to his rehabilitation, including reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court. La. C.Cr.P. art. 895A(7). See also La. C.Cr.P. art. 895.1 A(l) and B(5) (the court may, in its discretion, order placed as a condition of probation, an amount of money to be paid by the defendant to the victim to compensate him for his loss and inconvenience). In ordering defendant to pay restitution as listed by the victim, the trial court in part stated it is entitled to impose restitution for the damage or loss caused by the offense. The trial court concluded that the offense was not limited by the actual charge, but based on the offense established by "clear evidence of theft that was presented during the course of the trial."
In State v. Alleman, 439 So.2d 418, 419 (La. 1983), defendant was required, as a condition of probation, to make restitution to victims of offenses "of which he was accused but not convicted." The Alleman court noted the sentencing judge is authorized by La. C.Cr.P. art. 895A(7) to order restitution for loss caused by the defendant's offense. The court then summarily concluded that the condition was invalid, presumably because there was no evidence to support the order, i.e., that the losses were caused by the defendant's offense. The condition of restitution to other victims, as well as one other condition, was deleted from the sentence. The rest of the sentence was affirmed.
In State v. Elkins, 489 So.2d 232 (La. 1986), defendant was charged in separate bills of information with having received stolen jewelry valued at $200.00 and $500.00, respectively. The jewelry had been stolen from two homes, both of which sustained a substantially greater loss than that reflected by the value of the jewelry. The defendant was not charged with the burglaries and the record contained no evidence implicating her in the burglaries. After entering guilty pleas, the defendant was given a suspended sentence. As one of the probationary conditions, she was ordered to make restitution of $2,335.75 to one of the property owners and $5,000 to the other. The Louisiana Supreme Court stated:
The record before us is barren of evidence of the actual damage to the victims, of whether the stolen jewelry had been returned, and of defendant's participation in the burglaries. Assuming the condition of restitution ordered in this case is not otherwise invalid under Alleman, we hold that restitution is improper absent proof of a defendant's participation in the crime for which restitution is sought.
Elkins, 489 So.2d at 233.
In contrast, in State v. Metlin, 467 So.2d 876 (La. App. 3rd Cir. 1985), the court found that the trial judge did not abuse his discretion in ordering the defendant to make restitution to the victims of burglaries and thefts, where he possessed the things stolen from the victims and the victims were aggrieved parties for losses caused by his offense. The defendant had been ordered to pay restitution to the owners of the stolen things he had received. The Metlin court noted that the victims were aggrieved parties and did suffer a loss caused by the defendant's offense of receiving stolen things, to which the defendant pled guilty in misdemeanor amounts. The court found that this condition of the defendant's probation was permitted under the provisions of La. C.Cr.P. art. 895 A(7) and was reasonably related to his rehabilitation.
Similar to the facts in Metlin, we find in this case that the record includes evidence that the loss in question was caused by defendant's offense (unlike the circumstances presented in Elkins and Alleman). Thus, the trial court was within its discretion when it ordered defendant to pay restitution for the value of the items in question. The sole assignment of error lacks merit.
DECREE
For these reasons, we affirm the trial court's order of restitution against defendant, Talmage J. Galatas, as itemized by the victim in Exhibit S-1, with the exception of the last four items on the list.
RESTITUTION ORDER AFFIRMED.
NOTES
[1] The facts of this case are restated as set forth in the prior appeal.
[2] Timothy requested the State of Florida conduct an evaluation as to whether his parents needed to be placed into a nursing home. The results of the evaluation indicated that neither of his parents required nursing-home care.
[3] As the police were driving away from defendant's residence, they realized that the JVC video camera they had seen in defendant's residence matched the description of the JVC video camera Timothy reported as missing. The police returned to defendant's residence and obtained consent to search for the JVC video camera and seized it.
[4] The cable TV reception box recovered from defendant's residence was matched by serial number to the cable TV reception box issued to Timothy Galatas. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/393949/ | 658 F.2d 968
108 L.R.R.M. (BNA) 2177, 92 Lab.Cas. P 13,015
The PROCTER & GAMBLE MANUFACTURING COMPANY, Port Ivory, NewYork Plant; Kansas City, Kansas Plant; Dallas,Texas Plant; Baltimore, Maryland Plant,Petitioners,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 80-1275.
United States Court of Appeals,Fourth Circuit.
Argued Dec. 4, 1980.Decided Sept. 4, 1981.
Guy Farmer, Washington, D. C. (Farmer, Wells, McGuinn, Flood & Sibal, Washington, D. C., Harry L. Browne, James G. Baker, Spencer, Fane, Britt & Browne, Kansas City, Mo., Harold S. Freeman, Gregory L. Hellrung, Dinsmore, Shohl, Coates & Deupree, Cincinnati, Ohio, on brief), for petitioners.
R. Michael Smith, Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., on brief), for respondent.
Before HAYNSWORTH and FIELD, Senior Circuit Judges, and PHILLIPS, Circuit Judge.
JAMES DICKSON PHILLIPS, Circuit Judge:
1
This case is before us upon the petition of Procter & Gamble Manufacturing Company (Procter & Gamble) to review and set aside a decision and order of the National Labor Relations Board (Board) and upon the Board's cross-application for enforcement of its order. Procter & Gamble Manufacturing Co., 248 N.L.R.B. No. 119 (Apr. 4, 1980).
2
Procter & Gamble is a national manufacturer with its headquarters in Cincinnati, Ohio. This case involves four Procter & Gamble plants Port Ivory, New York, Kansas City, Kansas, Dallas, Texas, and Baltimore, Maryland and the four independent unions representing employees at these plants.1 The four unions eventually want to bargain with Procter & Gamble on a multiplant basis.2 As a step towards this goal, each union, during its collective bargaining agreement's renewal negotiations in 1976 or 1977, attempted to include members of the other three unions on its bargaining committee. Procter & Gamble clearly is opposed to multiplant bargaining and, therefore, it sought to discourage the participation of such "outsiders"3 in the negotiations.
3
The unions filed charges with their respective regional Board offices, alleging that Procter & Gamble committed numerous unfair labor practices during the 1976-77 contract renewal cycle. The charges were transferred to the Brooklyn, New York Regional Office, complaints issued, and the cases consolidated before an Administrative Law Judge (ALJ). The ALJ concluded that Procter & Gamble violated subsections 8(a)(1), (3), and (5) of the Act, 29 U.S.C. § 158(a)(1), (3), (5), by engaging in a concerted course of conduct at all four plants which effectively foreclosed the unions' selected outside bargaining representatives from participating in the contract negotiations. He also found unfair labor practices at individual plants. Procter & Gamble Manufacturing Co., No. JD-608-79 (Aug. 31, 1979) (appended to 248 N.L.R.B. No. 119) (Jt.App. at 980). The Board affirmed the ALJ's rulings, findings, and conclusions and adopted his recommended order with slight modification. 248 N.L.R.B. No. 119 (Jt.App. at 1094).
4
In its petition to this court, Procter & Gamble raises four major objections: (1) the Board erred in finding any unfair labor practices; (2) several allegations are barred by the six-month limitation in subsection 10(b) of the Act, 29 U.S.C. § 160(b); (3) the Board erred in issuing one decision and order for the four distinct plants and unions when there was no single consolidated complaint; and (4) the Board's conclusions, order and notice are too broad. We consider these objections in order and, for the reasons that follow, we find them without merit. Accordingly, except for that portion of the Board's order directing Procter & Gamble to sign the now expired 1977 Kansas City agreement, we grant enforcement.I
5
The following facts are supported by substantial evidence on the record. Each of the unions involved in this case is an independent labor organization and the recognized bargaining representative for the employees at its respective plant. For numerous years, each union has negotiated and executed collective bargaining agreements for its unit. Before 1976-77, each union was represented at contract negotiations by a bargaining committee composed solely of its members, although the union's attorney occasionally attended the bargaining sessions too. Negotiations were held at the plant and Procter & Gamble paid the employee negotiators for the work time they lost while in negotiations.
6
In 1968, several independent unions representing Procter & Gamble employees formed an "Amalgamation," which by 1971 consisted only of the four unions in this case.4 One of the Amalgamation's aims is to establish a multiplant bargaining unit. At the Amalgamation's September 1975 meeting, the four unions decided to further this goal by including the outsiders on their bargaining teams during the upcoming contract renewal negotiations. This was, however, the only contemplated change in bargaining procedure. The Amalgamation's proposed plan was published in the Port Ivory union's October 7, 1975 bulletin; thus by early 1976, Procter & Gamble was alerted to the unions' plan.
7
The four contracts expired on different dates. Renewal negotiations accordingly began at Port Ivory on October 6, 1976, at Kansas City on January 9, 1977, at Dallas on March 25, 1977, and at Baltimore on July 18, 1977. Upon learning of the unions' plan to include outsiders, Procter & Gamble management at each plant responded in a nearly identical manner shortly before negotiations were to begin. Initially management asserted that negotiations could not be held on the plant premises because each plant had a security, or access, rule which restricted any visitors, including employees from other Procter & Gamble plants, from entering the plant except on a guided tour. Management then suggested that, as an accommodation to the union's insistence upon including outsiders, the negotiations could be held at alternative facilities, such as local motels, with the parties sharing the rental costs. In addition, Procter & Gamble would no longer pay local employee negotiators. Each union protested these changes but, because its contract was due to expire, the union eventually negotiated with Procter & Gamble under these forced conditions.
8
Each union managed to include three outsiders on its team for the opening negotiation session. The outsiders were introduced as members of the union's bargaining committee present to negotiate a contract for only that union. In each case management, using a series of prepared written questions furnished by Procter & Gamble's industrial relations department at its Cincinnati headquarters, then asked the outsiders about their role and purpose in participating in the negotiations.5
9
The Port Ivory renewal negotiations serve as a detailed example of Procter & Gamble's concerted opposition to the outsiders. When the division manager, Philip Robinson, learned that the Port Ivory union intended to include outsiders, he consulted with Bob Larsen, a member of Procter & Gamble's industrial relations staff in Cincinnati, about the union's plan. Larsen informed Robinson that legally the union could select whomever it wanted to represent it in collective bargaining negotiations. He suggested, however, that since the union was making a change in its team composition, Procter & Gamble also could change the procedural ground rules. Larsen reminded Robinson of the plant's security rule.
10
Robinson then urged the Port Ivory union to use only local employees on its committee and to bargain as it had in the past. The union refused to comply or to name the outsiders who would participate. Consequently in September 1976, Robinson told the union that if it insisted on including outsiders, negotiations could not be held on the plant premises because of the security rule6 and that Procter & Gamble would not pay employee negotiators. The union responded that it had no choice but to hold the negotiations outside the plant and offered its union hall as an alternative site. Procter & Gamble refused to meet at the union hall, so negotiations were held at various local motels with the parties sharing the rental cost of the facilities.
11
At the first meeting on October 6, 1976, three outsiders were present: Omer Jones (Kansas City), Hoyt Middlebrooks (Dallas), and Raymond Bramble (Baltimore). Port Ivory union president, Ken McCauley, introduced the three as members of the union's bargaining committee and stated that they were present to negotiate a contract for only Port Ivory. Robinson then asked each outsider the series of prepared written questions received from Larsen about their role and purpose in participating in the bargaining. After his interrogation, Robinson adjourned the meeting to study the ramifications of having outsiders present. Thirteen additional sessions were held in which outsiders did not participate and an agreement was reached and signed on November 16, 1976.
12
At Kansas City, Dallas, and Baltimore, the same sequence of events unfolded: management refused to hold negotiations on the plant premises if outsiders participated because of the security rule and it discontinued paying local employee negotiators; the unions protested these changes but eventually agreed to meet at local motels, thereby incurring half the rental cost of these alternative facilities; and at each opening session, the Procter & Gamble representative asked the outsiders the questions furnished by the industrial relations staff even though the outsiders had been introduced as members of the negotiating union's bargaining committee.
13
Aside from the opening session for each plant and one afternoon session of the Dallas negotiations, outsiders did not otherwise participate in the bargaining.7 Because negotiations were held during weekday working hours, outsiders had to obtain some form of leave in order to attend any sessions and as the negotiations progressed, this became increasingly difficult.
14
The outsiders' efforts to obtain leave commenced when the Port Ivory negotiations opened in early October 1976. In order to participate, outsiders from Kansas City, Dallas, and Baltimore requested union business leave as provided in their effective collective bargaining agreements. The wording in each contract was nearly identical: "By agreement between the Plant Manager and the Union, leaves of absence without pay up to thirty (30) days per year may be granted for the purpose of attending to Union business." (Jt.App. at 378-79 (Baltimore). See Jt.App. at 174 (Port Ivory); 375 (Dallas); 991 (Kansas City).) Although the preamble to each contract defined "union" as the contracting labor organization for that agreement, union officials in Kansas City and Baltimore anticipated using union business leave to participate as outsiders because in the past they had obtained such leave to attend Amalgamation and Council meetings and to visit government officials as well as to attend to their local union's affairs. Officials of the Dallas union were not so optimistic. In 1975, one official had requested union business leave in order to go to Procter & Gamble's plant in Alexandria, Louisiana to explain the Dallas contract to the Alexandria union membership. Dallas management denied the request because the leave did not relate to the Dallas union's business. The denial was grieved and resulted in arbitration upholding management's position. Procter & Gamble Manufacturing Co. v. Independent Oil & Chemical Workers of Dallas, (Jan. 5, 1978) (Yarowsky, Arb.) (Jt.App. at 808).
15
Managers at Kansas City, Dallas, and Baltimore denied the requests for union business leave to attend the Port Ivory negotiations because they now uniformly interpreted the union leave provisions to cover only local union affairs, which did not include representing the Port Ivory union. The Dallas industrial relations manager further warned his employees that they would be disciplined if they used union leave to negotiate at Port Ivory. When Port Ivory union officials later requested union leave to participate in the Kansas City negotiations, their personnel manager said that if they went to Kansas City, there would be "serious repercussions" and if they actually used union leave for that purpose, they would be disciplined. The Baltimore plant manager also told his employees that no leave would be granted to attend the Kansas City or Dallas bargaining sessions. Outsiders consequently gave up requesting union business leave.
16
Outsiders next requested vacation leave for days on which negotiations were scheduled. On October 13, 1976, the Baltimore union president, Walter Donnellon, requested a one-day vacation for October 15 when a Port Ivory bargaining session was to be held. His request was denied because a purported departmental policy, with which Donnellon was unfamiliar, required ten-days advance notice for vacation leave.8 Substitute workers apparently were available. Donnellon also asked two other Baltimore employees to request vacation leaves for October 15; their requests were granted. Donnellon grieved the leave denial, the supposed policy was abandoned, and Donnellon subsequently received vacations on one day's notice.
17
Omer Jones (Kansas City) and Roger Hatton (Dallas) also requested vacation leave in order to participate in the bargaining at Port Ivory. Jones' request was denied because another employee already was scheduled for vacation at that time. Hatton's request was denied because no substitute was available.
18
Despite difficulties in obtaining vacation leave, Omer Jones requested leave, on March 24, 1977, for the following day when negotiations were scheduled for Dallas. Although Jones' supervisor had told him a week earlier that one day's notice was sufficient, Jones' vacation request was denied because of the short notice. Substitute workers were available.
19
Because the outsiders could not obtain any form of leave, the union engaged in negotiations asked its management to meet evenings or weekends when outsiders could attend without leave. Except for the opening session at Kansas City which was held on a Sunday, Procter & Gamble refused to meet at these times.
20
Based on these facts, the Board found that Procter & Gamble made a concerted effort to discourage participation by outsiders. First, if the unions had not attempted to include outsiders, management at all four plants would have continued the past practices of negotiating on the plant premises and of paying local employee negotiators. Although an employer has no statutory duty to do either, the Board found that discontinuing these practices was simply retaliation over the unions' selection of outsiders as their bargaining representatives. The assertion that the plants' security rules necessitated meeting off the premises was a mere pretext to impede the unions, particularly since union attorneys had attended previous bargaining sessions held at the plant. Thus, the Board concluded that Procter & Gamble violated subsections 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1), (5), and ordered it to cease and desist from refusing to make its plant premises available or to pay local employee negotiators because the union invited persons outside the bargaining unit to participate in contract negotiations. The Board also affirmatively ordered Procter & Gamble to reimburse each union for sums expended to rent alternative meeting facilities in 1976-77 and to pay the local employees for the work time they lost negotiating in 1976-77.
21
The Board next found that Procter & Gamble's interpretation of the union business leave provisions as limited to local union business was reasonable. Accordingly it dismissed allegations that such leave denials were unlawful and that the Dallas and Port Ivory managements had unlawfully threatened to discipline employees if they misused union leave to participate in another union's negotiations.
22
The Board, however, found that Procter & Gamble's denial of vacation time or some alternative form of uncompensated leave to its employees so they could attend negotiations elsewhere while management simultaneously refused to bargain evenings or weekends effectively precluded outsider participation. Recognizing that the geographic distances between the plants made evening or weekend sessions impracticable, the Board concluded that simply the leave denials prevented the unions from selecting their bargaining representatives and violated subsections 8(a)(1) and (5) of the Act. In drawing this conclusion the Board relied heavily upon the Seventh Circuit's decision in NLRB v. Indiana & Michigan Electric Co., 599 F.2d 185 (7th Cir. 1979), cert. denied, 444 U.S. 1014, 100 S.Ct. 663, 62 L.Ed.2d 643 (1980). The Board ordered Procter & Gamble to cease and desist from denying uncompensated leave and/or vacation time.
23
On appeal, Procter & Gamble contends that the Board erred in finding it made an orchestrated effort to dissuade the unions from including outsiders on their bargaining committees, because it actually met with the unions' full committees and negotiated contracts. This is all that subsection 8(d) of the Act requires.9 Procter & Gamble also raises objections to the Board's specific findings on the issues of meeting on the plant premises, paying the local employee negotiators, and denying leaves.
24
At the outset, we note that section 7 of the Act, 29 U.S.C. § 157, guarantees employees the right "to bargain collectively through representatives of their own choosing ...."10 While the Supreme Court has recognized this right as fundamental to the statutory scheme, NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33, 57 S.Ct. 615, 622, 81 L.Ed. 893 (1937), it is not absolute: the employer may refuse to negotiate with the union bargaining committee if he can carry the heavy burden of showing that the selected representatives present a clear and present danger to the collective bargaining process. IBEW v. NLRB, 557 F.2d 995, 998 (2d Cir. 1977); NLRB v. David Butterick Co., 399 F.2d 505, 507 (1st Cir. 1968); Harley Davidson Motor Co., 214 N.L.R.B. 433 (1974). This rule requires the employer to show exceptional circumstances such as bad faith or ulterior motive underlying the union's choice of its bargaining team members. Mere inclusion of persons outside the negotiating unit does not constitute exceptional circumstances. Indiana & Michigan Electric, 599 F.2d 185 (other units); Minnesota Mining & Manufacturing Co. v. NLRB, 415 F.2d 174, 177-78 (8th Cir. 1969) (other locals); General Electric Co. v. NLRB, 412 F.2d 512, 517-20 (2d Cir. 1969) (other international unions); Standard Oil Co. v. NLRB, 322 F.2d 40, 44 (6th Cir. 1963) (other locals). Further, the employer's claim that the union's use of outsiders is an unlawful attempt to compel companywide or multiplant bargaining also is insufficient unless the employer can demonstrate that the union actually attempted to bargain outside unit boundaries. Indiana & Michigan Electric, 599 F.2d at 191; Minnesota Mining, 415 F.2d at 178; General Electric, 412 F.2d at 519-20.
25
In this case, Procter & Gamble did not refuse to bargain collectively with the unions' committees and the unions did not engage in multiplant bargaining without Procter & Gamble's consent. Each round of bargaining and the resulting agreement were confined to a single plant. Thus, the Board properly found that the unions' "coordinated bargaining"11 presented no clear and present danger to the collective bargaining process. This case, however, does raise the issue of whether Procter & Gamble violates the Act by engaging in conduct which effectively chills its employees' right to select their own bargaining representatives by preventing or discouraging those representatives from fully participating in the negotiations. The Board concluded, and we affirm, that Procter & Gamble's conduct at all four plants constitutes such a violation.
26
First, Procter & Gamble seeks to justify its unilateral changes in bargaining procedure discontinuing negotiations on the plant premises and pay for local employee negotiators on several grounds: the plant security rules are valid, longstanding, and not applied discriminatorily; there is no statutory obligation to meet at the plant; alternative sites were available; meeting elsewhere was an accommodation to the unions; and the unions mutually agreed to the changes. The Board found, however, that Procter & Gamble used its security policy as a mere pretext and really instituted these changes as retaliation over the unions' inclusion of outsiders. We must accept the Board's findings as conclusive because they are "supported by substantial evidence on the record considered as a whole ...." Subsections 10(e) and (f) of the Act, 29 U.S.C. § 160(e), (f); Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 463-64, 95 L.Ed. 456 (1951); Barrus Construction Co. v. NLRB, 483 F.2d 191, 197 (4th Cir. 1973); NLRB v. Aerovox Corp. of Myrtle Beach, 435 F.2d 1208, 1209 (4th Cir. 1970). In prior years, union attorneys had attended negotiations in the plant without objection; it would be no more difficult to police three outside employees. Further, the unions clearly did not agree to the changes. They protested before negotiations began and they subsequently filed unfair labor practice charges alleging that Procter & Gamble's unilateral changes were unlawful. While an employer has no statutory obligation either to pay employee negotiators for lost work time or to negotiate on the plant premises subsection 8(d) of the Act only mandates meeting at reasonable times and in good faith and while an employer may have the right to exclude nonemployees from its plant for legitimate business reasons, NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112-14, 76 S.Ct. 679, 684-85, 100 L.Ed. 975 (1956), an employer cannot discontinue such longstanding practices where the effect is to interfere with, restrain, or coerce employees in the exercise of their § 7 rights. Borg-Warner Controls, 198 N.L.R.B. 726, 728, 730 (1972). Accordingly, we uphold the Board's findings and conclusions.
27
Second, Procter & Gamble raises numerous objections to the Board's order that it cease and desist from denying uncompensated leave and/or vacation time to outsiders. Procter & Gamble contends that an alternative form of uncompensated leave had never been requested, was never denied, and is not provided for in the contracts. The Board's order, therefore, imposes a new contractual term upon the parties without their bargaining over it and, in effect, requires Procter & Gamble to insure that its employees from one plant are available for negotiations at another. Further, because the Board placed no limitations upon this uncompensated leave, the Company's business operations may be disrupted seriously. Finally, Procter & Gamble contends that the Board's reliance on Indiana & Michigan Electric, 599 F.2d 185, is misplaced because the two situations are factually distinct and the Board's ruling in this case goes far beyond the Seventh Circuit's decision.
28
We affirm the Board's findings because they are supported by substantial evidence and we hold this remedy is within the Board's authority and discretion. Uncompensated leave was never requested or denied in 1976-77 because the union officials anticipated using either union leave to attend the negotiations as they had used it in the past to attend Amalgamation and Council meetings or vacation time. They soon found it futile, however, to seek any form of leave as their requests were denied because of purported departmental policies on advance notice or because the notice given was too short. While uncompensated leave to attend negotiations elsewhere was not explicitly provided for in the contracts, at least the Port Ivory and Dallas contracts in effect during the 1976-77 negotiations contained a personal leave provision:
29
Upon application to his department manager or supervisor, with good and sufficient reasons, an employee shall, when plant conditions permit, be granted a leave of absence without pay for a reasonable length of time. Such request shall be made as far in advance as possible.
30
(Jt.App. at 174 (Port Ivory 1973 Agreement). See also Jt.App. at 375 (Dallas 1974 Agreement).)12 Surely serving as a bargaining representative for another union, when substitute workers are available, is a good and sufficient reason for uncompensated leave and easily could be covered by the personal leave provisions. Procter & Gamble also should not be heard to complain about the Board's decision not to define the form of such uncompensated leave. The above personal leave provision apparently only limits the number of employees requesting uncompensated leave to the number at which plant operations will not be disrupted; it limits the duration of such leave to a "reasonable length of time"; and it states nothing about the frequency of such leave requests. These are the very factors which Procter & Gamble contends are problems with the Board's alternative remedy of uncompensated leave in this case. Obviously they cannot be so problematic. Further, Procter & Gamble has the first shot at placing limits on uncompensated leave as long as its limits do not interfere with employees' statutory rights, and particularly with their choice of bargaining representatives. Procter & Gamble also has some leeway to grant employees vacation time or to meet evenings or weekends rather than to grant any uncompensated leave, although utilizing these options necessarily is limited because of the geographic distances involved. There is no indication that the uncompensated leave remedy will be abused in a manner disrupting Procter & Gamble's business operations. That Procter & Gamble may limit such leave for valid business reasons or choose other alternatives demonstrates the contrary. Procter & Gamble's options also demonstrate that the Board's order does not impose a new contractual provision upon the parties. The cease and desist order serves only to remedy the unfair labor practices found in this case, and as such, we hold that it is a proper exercise of the Board's wide discretion in fashioning remedies. NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n.32, 89 S.Ct. 1918, 1939 n.32, 23 L.Ed.2d 547 (1969); Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 405, 13 L.Ed.2d 233 (1964).
31
Finally, the Board's reliance on Indiana & Michigan Electric, 599 F.2d 185, is not misplaced. That case involved four plants within a small geographic area and four bargaining units of a local union, each plant and unit having their own contract. During the 1975-76 contract renewal cycle, the union, which eventually wants companywide bargaining, was represented by permanent union officials, employee members of the unit whose contract was being renegotiated, and "travelers" employee members of the other three units. The Company had prior experience with travelers participating in initial sessions of the 1973 and 1974 negotiations. In 1975-76, however, travelers sought leave to attend all scheduled meetings. The Company denied such requests because it thought the union was forcing multiplant bargaining and such extensive leaves would be burdensome to administer. The Company also refused to meet evenings or weekends. The Board found that the union did not engage in multiplant bargaining, but that the Company did violate subsections 8(a)(1) and (5) of the Act "by refusing to grant travelers uncompensated leave to permit them to engage in bargaining during working hours, while simultaneously refusing the Union's request to bargain during nonworking hours since its conduct interfered with the Union's right to select its own bargaining representatives." Id. at 189.
32
In our case, the Board found Indiana & Michigan Electric to be persuasive despite somewhat different factual settings. First, Indiana & Michigan Electric involved four separate bargaining units of one union; this case involves four independent unions. As discussed above, however, a union may select anyone to serve as its bargaining representative. Second, in Indiana & Michigan Electric the plants were within 133 miles of each other; in this case the plants are scattered across half the United States. Further, both companies denied leave requests and simultaneously refused to meet evenings or weekends. In Indiana & Michigan Electric, the Board gave the Company the option of granting uncompensated leave or meeting during nonworking hours. In this case, the logistical difficulties of meeting evenings or weekends when the plants are so widely scattered demonstrates, if anything, that it would be irrational for the Board not to order uncompensated leave as a cease and desist remedy.13 Accordingly, we find that Indiana & Michigan Electric is persuasive authority for the Board's conclusions and order in this case.
33
Finding no error in the Board's findings and conclusions with respect to the subsection 8(a)(1) and (5) violations, we grant enforcement on this portion of the Board's order.
II
34
The Board concluded that Procter & Gamble violated subsections 8(a)(1) and (3) of the Act, 29 U.S.C. § 158(a)(1), (3), by denying vacation leave to Walter Donnellon (Baltimore union president) and to Omer Jones (Kansas City union president) in order to prevent them from participating in negotiations at Port Ivory and Dallas, respectively. The Board's findings are supported by substantial evidence. Donnellon's vacation leave request for October 15 was denied because of a purported departmental policy requiring ten-days advance notice. Donnellon was unfamiliar with this new policy and it was not applied to other Baltimore employees requesting leave for the same day. The Baltimore plant manager also clearly knew when the Port Ivory negotiations were scheduled because he told Donnellon that the October 15 session was cancelled a day before the Port Ivory union learned of the cancellation. Omer Jones' vacation leave request for March 25, 1977 was denied because of too short notice one day. Jones' supervisor, however, had told him a week earlier that one day's notice was sufficient, and Jones' absence would not have disrupted the work schedule. Accordingly, we affirm the Board's conclusions that these denials violated subsections 8(a)(1) and (3) of the Act.
35
The Board also found that Procter & Gamble violated subsections 8(a)(1) and (3) when it twice suspended Omer Jones for attending negotiations on March 25 and July 18, 1977, without leave. Jones was president of the Kansas City union in 1977 and had worked at the plant for 44 years. He had a good attendance record and had never been disciplined. When Jones' request for vacation time on March 25 was denied, he nevertheless absented himself from work and participated in the Dallas bargaining session held that day. When Jones returned to work, his supervisor knew that he had been in Dallas. Jones was suspended for one day. Because it was futile to request a leave, Jones also absented himself from work on July 18, 1977, in order to attend a bargaining session at Baltimore. This time Jones' wife called the Kansas City plant on July 17 and reported that he would not be at work the following day. In the past, Jones had taken time off after simply calling in beforehand. Jones also was absent from work on July 19 because his mother-in-law had an emergency operation. His absence on July 19 was excused, but Jones received a five-day disciplinary suspension because of his absence on July 18. Jones' supervisor testified that he was suspended because his excuse for July 18 was not "a good reason." (Jt.App. at 1772-73.) The Board found that Procter & Gamble disciplined Jones because he participated in the Dallas and Baltimore negotiations and because it sought to discourage the outsiders. The Board ordered Procter & Gamble to cease and desist from disciplining employees engaged in protected activities, to make Omer Jones whole for any loss of pay suffered because of his suspensions, and to expunge his personnel file.
36
Procter & Gamble contends that Jones' suspensions were justified because he twice absented himself from work without leave acts of deliberate insubordination. Further, Jones' union activities do not immunize him from discipline. Procter & Gamble correctly asserts that mere union membership or concerted activity does not insulate an employee from being disciplined for just cause. Florida Steel Corp. v. NLRB, 601 F.2d 125, 131-32 (4th Cir. 1979); Firestone Tire & Rubber Co. v. NLRB, 583 F.2d 1268, 1273 (4th Cir. 1978). Rather, as this court has stated on numerous occasions, when the employer has come forward with evidence of a legitimate and substantial business justification for disciplining an employee, the burden is on the Board not simply to declare the disciplinary action is pretextual because there is some evidence of improper motive, but to find "an affirmative and persuasive reason why the employer rejected the good cause and chose a bad one." Firestone Tire & Rubber Co. v. NLRB, 539 F.2d 1335, 1337 (4th Cir. 1976) (quoting NLRB v. Billen Shoe Co., 397 F.2d 801, 803 (1st Cir. 1968)). See also Florida Steel, 601 F.2d at 131-32; Firestone, 583 F.2d at 1273; NLRB v. Patrick Plaza Dodge, Inc., 522 F.2d 804, 807 (4th Cir. 1975); NLRB v. Consolidated Diesel Electric Co., 469 F.2d 1016, 1024 (4th Cir. 1972). In carrying this burden, the Board must produce substantial evidence of antiunion motivation. Florida Steel, 601 F.2d at 132; Firestone, 583 F.2d at 1273; Patrick Plaza Dodge, 522 F.2d at 807; Maphis Chapman Corp. v. NLRB, 368 F.2d 298, 304-05 (4th Cir. 1966).
37
Applying these standards, we conclude that the Board properly found Procter & Gamble unlawfully suspended Jones in March and July 1977. Although Procter & Gamble introduced evidence of a just cause for its disciplinary actions Jones' unapproved absences from work the Board found antiunion motivation in Procter & Gamble's denying Jones leave in order to prevent him from participating in negotiations elsewhere; in suspending him without the usual "advisory talk" or warning despite his good record; in disciplining Jones when he was absent in order to attend a Baltimore bargaining session but not when he was absent because his mother-in-law was undergoing an operation; and in Procter & Gamble's overall hostility to the unions' attempt at coordinated bargaining. The question whether Jones was suspended because of Procter & Gamble's antiunion bias or because of his unexcused absences from work is a question of fact to be decided by the National Labor Relations Board, which is empowered by Congress to weigh the employer's interest "in operating his business in a particular manner" against the employees' interest in concerted activities. NLRB v. Erie Resistor Corp., 373 U.S. 221, 227-29, 236, 83 S.Ct. 1139, 1144-46, 1149, 10 L.Ed.2d 308 (1963); NLRB v. Lester Brothers, Inc., 337 F.2d 706, 708 (4th Cir. 1964). In this case, there is substantial evidence on the record as a whole to support the Board's finding that Procter & Gamble suspended Jones because of his union activities. Accordingly, we grant enforcement to these portions of the Board's order.
III
38
The Board found that at its Kansas City and Dallas plants, Procter & Gamble refused to sign single instruments embodying the agreed-upon contracts where such documents would contain the signatures of the respective union's entire bargaining committee in order not to recognize outsiders as members of those committees. The Board concluded these refusals violated subsections 8(a)(1) and (5) of the Act, 28 U.S.C. § 158(a)(1), (5), and it ordered Procter & Gamble to cease and desist from such refusals to sign and ordered the Kansas City management to sign the 1977 contract upon the union's request.
39
In Kansas City, the union officials and management could not agree upon a formal meeting to sign the contract immediately after the union membership ratified it on February 4, 1977. The plant manager, Robert McIntire, then refused to meet with the entire union bargaining committee. Instead, he gave the union president, Omer Jones, two copies of the contract with space for only their two signatures and stated that only Jones' signature was necessary to bind the union. Jones refused to sign and insisted that the union's entire committee was to execute the agreement. In the past, the parties had signed a single document with the bargaining committee, but not necessarily every member thereof, signing on behalf of the union. On February 9, Jones presented a contract to McIntire signed by the entire union team, including the outsiders, but McIntire refused to sign it. Rather, he signed yet another copy of the agreement and completely crossed out the union's signature line. McIntire enclosed this contract with a letter to Jones, stating that Procter & Gamble considered only Jones' signature to be necessary and, therefore, it was disregarding the other union signatures on Jones' February 9 copy. Further, it considered the two separately signed instruments together to complete the signing process and to produce a binding agreement. McIntire justified crossing out the union's signature line on the enclosed copy because he already had Jones' signature on the February 9 copy. (Jt.App. at 447.)14 To date, the parties have never signed a single instrument although they agree that there is a valid contract in existence.
40
In Dallas, the union membership ratified the agreed-upon contract on April 7. The local management proposed that only union president, Roger Hatton, and plant manager, Niles Millsap, sign the contract. Hatton suggested, however, that the parties continue the past practice of signing one instrument with the plant manager signing for Procter & Gamble and the union's negotiating committee signing for the union. Management then proposed either that the Dallas employees (but not the outsiders) and Millsap sign one contract or that two separately executed agreements be combined as in Kansas City. The union continued to insist upon a single executed instrument and a formal signing meeting. Millsap then sent Hatton a contract which he had signed with the space for all other signatures, including Hatton's, crossed out.15 The cover letter stated that Procter & Gamble had satisfied its obligation to sign and only Hatton's signature was necessary on behalf of the union. Other signatures would be unacceptable. (Jt.App. at 661.) The parties again discussed signing the contract at the monthly meeting on May 5, 1977, but reached no agreement. On April 25, 1978, during the course of the unfair labor practices hearing, the new plant manager, Roy Gillespie, and sixteen of the eighteen union negotiators,16 including the three outsiders, signed the contract. There was no formal meeting to execute the agreement; the union signed first and then presented the contract to Gillespie.
41
Subsection 8(d) of the Act, 29 U.S.C. § 158(d), requires "the execution of a written contract incorporating any agreement reached if requested by either party ...." The Supreme Court has noted that "refusal to sign a written contract has been a not infrequent means of frustrating the bargaining process through the refusal to recognize the labor organization as a party to it ...." H. J. Heinz Co. v. NLRB, 311 U.S. 514, 523-24, 61 S.Ct. 320, 324-25, 85 L.Ed. 309 (1941). Thus, the Board is authorized under subsection 10(c) of the Act, 29 U.S.C. § 160(c), to order the employer, at the union's request, to sign the agreed-upon contract. Id. at 526, 61 S.Ct. at 325; NLRB v. Coletti Color Prints, Inc., 387 F.2d 298, 304 (2d Cir. 1967); NLRB v. Huttig Sash and Door Co., 362 F.2d 217, 219 (4th Cir. 1966).
42
In this case, Procter & Gamble's refusals to sign the 1977 Kansas City and Dallas agreements in sharp contrast to past practice result solely from its opposition to the inclusion of outsiders on the unions' bargaining teams. At each plant, the plant manager insisted that only the union president's signature was necessary on behalf of the union and he crossed out the remaining space on the contracts in order to preclude additional signatures. Procter & Gamble contends that the unions, and not management, refused to sign the agreed-upon contracts, but the Board discredited that version. Since it is in a unique position to judge witnesses' credibility and because there is substantial evidence to support its determination that Procter & Gamble refused to sign the contracts, we will not upset these findings and conclusions on review. Aerovox Corp., 435 F.2d at 1210; NLRB v. M&B Headwear Co., 349 F.2d 170, 173 (4th Cir. 1965).
43
Procter & Gamble also argues that because both agreements have been signed, the issue is moot. In addressing this argument, we must distinguish between the cease and desist portion of the Board's order requiring Procter & Gamble not to refuse to sign an agreement because outsiders also will sign it and the affirmative portion of the Board's order requiring Procter & Gamble to sign the 1977 Kansas City contract upon that union's request. The cease and desist portion is entitled to enforcement as a continuing obligation in order to prevent resumption or repetition of the unlawful conduct. NLRB v. Mexia Textile Mills, Inc., 339 U.S. 563, 567, 70 S.Ct. 826, 828, 94 L.Ed. 1067 (1950); NLRB v. Metalab-Labcraft, 367 F.2d 471, 472 (4th Cir. 1966). Because the 1977 Kansas City agreement by its own terms expired on February 3, 1980, however, we decline in this case to examine the validity of the Board's affirmative order to sign the contract. NLRB v. Cosmopolitan Studios, Inc., 291 F.2d 110, 112 (2d Cir. 1961). Therefore, we grant enforcement only to the cease and desist portion of the order.
IV
44
The Board found one other unfair labor practice. It concluded that Procter & Gamble, at its Port Ivory plant, violated subsection 8(a)(1) of the Act, 28 U.S.C. § 158(a)(1), when its soap and synthetic plant manager, Armin Sharfe, threatened employees that participation by outsiders in the negotiations would result in a less favorable contract than one negotiated by only local employees. The Board ordered Procter & Gamble to cease and desist from such threats.
45
The Port Ivory union vice president, Gordon Canney, testified that he spoke informally with Sharfe on several occasions during May through August 1976. Sharfe inquired about the union's plan to include outsiders on its bargaining committee and stated that Procter & Gamble would fight multiplant bargaining in every way. Canney also testified that he and Gordon Ritchie, a union executive committeeman, spoke with Sharfe in the plant cafeteria on or around September 8, 1976. Sharfe again expressed disapproval of multiplant bargaining, asked who the outsiders would be, and stated that the union would " 'not get a good contract by bringing people in from another plant because we (Procter & Gamble) are not going to show the rest of the plants that it's beneficial to belong to the Amalgamation.' " (Jt.App. at 1171.) Canney further testified that Sharfe said a contract with outsiders would be approximately five cents less per hour per employee.
46
Gordon Ritchie's testimony corroborated Canney's description of the September 8 discussion with Sharfe. Although Ritchie was not present for the entire meeting, he reported that Sharfe said outsiders "could cost us (the union) in money with the contract" (Jt.App. at 1196), and when Canney had then asked Sharfe to explain that statement, Sharfe replied, "well, it would cost you at least five cents a person per hour for the upcoming contract." (Jt.App. at 1197.)
47
Sharfe admitted voicing his opposition to both outsiders and multiplant bargaining to various union members, but he expressly denied making any alleged threats of a less favorable contract. Sharfe also denied meeting with Canney and Ritchie in September 1976. Rather, he testified that he discussed, with Ritchie only, the effect of outsiders on the upcoming negotiations, and in response to Ritchie's inquiry about the outsiders' financial impact, Sharfe speculated that the resulting contract might be five cents an hour less.
48
The Board first found that Sharfe did say a contract negotiated with outsiders would be worth about five cents an hour less for employees and that he also stated that the Port Ivory union would not get as good a contract because Procter & Gamble did not want to encourage employees at other plants to join the Amalgamation. The Board then looked to the context of Sharfe's remarks. Although he did not participate in the Port Ivory contract negotiations later held in October and November 1976, Sharfe was a Port Ivory plant manager, he had participated in the 1973 negotiations, and he was obviously well-informed about the 1976 bargaining atmosphere. High-ranking union officials, primarily responsible for the upcoming negotiations, would be likely to give special credence to Sharfe's comments. Therefore, the Board concluded that these comments were unlawful threats.
49
Procter & Gamble contends that Sharfe's comments are protected by subsection 8(c) of the Act17 and the First Amendment. The Supreme Court has addressed the balance to be struck between an employer's free speech rights as protected by subsection 8(c) and employees' rights to associate freely as embodied in section 7, subsection 8(a)(1), and the proviso to subsection 8(c). In Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547, the Court held that:(a)ny assessment of the precise scope of employer expression ... must be made in the context of its labor relations setting.... And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.
50
Id. at 617, 89 S.Ct. at 1942. See also NLRB v. McCormick Concrete Company of S.C., Inc., 371 F.2d 149, 152 (4th Cir. 1967). The Supreme Court also recognized "the Board's competence in the first instance to judge the impact of (employer) utterances ...." Gissel, 395 U.S. at 620, 89 S.Ct. at 1943; accord, McCormick Concrete, 371 F.2d at 152; E. I. Du Pont de Nemours and Co. v. NLRB, 480 F.2d 1245, 1247-48 (4th Cir. 1973). The question of whether an employer's comments are coercive is a factual one and the Board's findings shall be affirmed on review if supported by substantial evidence. Du Pont, 480 F.2d at 1247.
51
First, we uphold the Board's findings that Sharfe, in order to discourage multiplant bargaining, told the union officials that a contract negotiated with outsiders would be less favorable to Port Ivory employees than one negotiated with only local union members. There is substantial evidence to support these findings and because they go to the credibility of various witnesses, the findings are peculiarly within the province of the hearing officer and the Board and, therefore, entitled to acceptance on review. NLRB v. Dover Corp., Norris Division, 535 F.2d 1205, 1209 (10th Cir. 1976). Second, we hold that the Board properly analyzed both the effect of Sharfe's comments in toto and the probability that they would have a particularly chilling effect on the union officials in concluding they were unlawful threats. Considering the nature of Sharfe's remarks and the conditions under which they were made, the Board did not err in reaching its conclusions and we grant enforcement to its cease and desist order.18
V
52
On appeal, Procter & Gamble argues that subsection 10(b) of the Act, 29 U.S.C. § 160(b), bars the Board from considering either Omer Jones' March 1977 suspension or the Dallas management's refusals to make the plant premises available for bargaining and to pay local employees for the work time they lost while in negotiations. Subsection 10(b) provides in pertinent part that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board ...." Thus, if this proviso to subsection 10(b) is applicable, the Board lacks jurisdiction to adjudicate an unfair labor practice alleged in the untimely charge.
53
Kansas City union president, Omer Jones, received a one-day disciplinary suspension for attending the Dallas negotiations without leave. No unfair labor practice charge specifically challenged this conduct. The Kansas City union, however, had filed three unfair labor practice charges with the Board prior to Jones' suspension. Two of these charges had alleged that Procter & Gamble, in violation of subsections 8(a)(1) and (5) of the Act, had denied employees vacation leave or time off in order to prevent them from participating in the negotiations at Port Ivory and at other plants and had imposed discriminatory conditions on the union in retribution for its exercise of the right to select its bargaining representatives. The consolidated amended complaint of December 29, 1977 contained the necessary allegation as a subsection 8(a)(3) violation also. The Board found the earlier charges were sufficiently broad to encompass Jones' March suspension and, therefore, it considered this allegation on its merits.
54
Subsection 10(b)'s proviso, by its language, extinguishes liability for unfair labor practices committed more than six months prior to the filing of the charge. "It does not relate to conduct subsequent to the filing of the charge." NLRB v. Fant Milling Co., 360 U.S. 301, 309 n.9, 79 S.Ct. 1179, 1184 n.9, 3 L.Ed.2d 1243 (1959). The Supreme Court has held that the Board may deal with subsequent conduct under a previous charge if the conduct is "related to" the unfair labor practices alleged in the charge and grows out of them while the proceeding is pending before the Board and if it is of the "same class" of violations as those alleged in the charge. Id. at 307, 79 S.Ct. at 1183. See also NLRB v. Jack La Lanne Management Corp., 539 F.2d 292, 293, 295 (2d Cir. 1976); NLRB v. Southern Materials Co., 447 F.2d 15, 18 (4th Cir. 1971); NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2d Cir. 1952). Further, a charge does not serve the purpose of a pleading; its purpose is solely to set the Board's investigative machinery in motion. Fant Milling, 360 U.S. at 307, 79 S.Ct. at 1183. Thus, the Board has broad leeway to found a complaint on events not specified in the charge as long as it does not initiate the proceeding on its own, NLRB v. I.U.O.E., Local 925, 460 F.2d 589, 596 (5th Cir. 1972) (quoting Texas Industries, Inc. v. NLRB, 336 F.2d 128, 132 (5th Cir. 1964)), and unlike a charge, a complaint need not be filed and served within the six month period. Dinion Coil, 201 F.2d at 491.
55
After examining the record, we conclude that the Board properly found the earlier charges covered Jones' March 1977 suspension. The Board found Jones was denied vacation leave for March 25 in order to prevent him from attending the Dallas negotiations and he was disciplined because he attended those negotiations after absenting himself from work without leave. Such conduct clearly is related to the denial of vacation leave or time off to attend bargaining sessions at other plants. The practices complained of occurred within the same general time period and were part of the entire series of interrelated efforts by Procter & Gamble to discourage the unions' inclusion of outsiders on their bargaining teams. Finally earlier charges adequately informed Procter & Gamble that its leave denials had been challenged.19
56
Procter & Gamble also contends that subsection 10(b) bars consideration of the allegations of paragraph 15 of the Dallas consolidated amended complaint that Procter & Gamble refused to make the plant premises available for bargaining or to pay local employees for the work time they spent in negotiations from March 11 to April 6, 1977. The Dallas union filed four unfair labor practice charges with the Board, which did not specifically challenge these refusals, but did contain printed language that "(b)y the above and other acts, the above-named employer has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act." (Jt.App. at 24-25, 29.)20 The Board concluded that under the circumstances of this case, the catchall language of the charges legally encompassed the paragraph 15 allegations. In reaching this conclusion, it looked at the broad picture, focusing on an orchestrated effort by the four unions to include outsiders and a pattern whereby the management at each plant engaged in a substantially similar course of conduct in expressing its opposition to their inclusion.
57
Under Fant Milling and the other cases discussed above, the Board properly may issue complaints alleging other unfair labor practices not specified in the charge if "related to" or of the "same class" as the specified violations. At least one court has applied these principles in a similar case. In NLRB v. Braswell Motor Freight Lines, Inc., 486 F.2d 743 (7th Cir. 1973), the charge alleged unfair labor practices at respondent's Chicago terminal. The amended complaint, however, also alleged violations at its Atlanta and Jackson terminals. The court found a sufficient nexus between the conduct at Chicago and the other terminals to avoid subsection 10(b)'s application, particularly because "the company's conduct at the three locations was part of an overall plan to resist organization by the (union)." Id. at 746. In this case, the Board found that Procter & Gamble engaged in a concerted course of conduct at all four plants in order to prevent the unions from including outsiders. The refusals to bargain at the plant or to pay employee negotiators were both part and parcel of the Dallas management's and Procter & Gamble's overall opposition. Moreover, the other unions had filed charges claiming that similar unlawful refusals at their plants were part of this coordinated opposition. Thus, the paragraph 15 allegations clearly are grounded in the viable charges, Procter & Gamble had ample notice of these charges against it, and, therefore, the Board properly considered the merits of these claims.
VI
58
The unions filed eleven viable unfair labor practice charges against Procter & Gamble which were transferred to the Board's regional office in Brooklyn, where complaints issued and the cases were consolidated pursuant to 29 C.F.R. § 102.33.21 Procter & Gamble contends that the Board erred in never issuing one consolidated complaint covering all four plants and unions.
59
Consolidation is within the sound discretion of the Board, Fruin-Colnon Corp. v. NLRB, 571 F.2d 1017, 1020 n.3 (8th Cir. 1978); NLRB v. UMW District 31, 198 F.2d 389, 390 (4th Cir. 1952), and will not be disturbed where the parties are given a fair hearing, Barrus Construction, 483 F.2d at 195, and where no showing of prejudice is made. UMW, District 31, 198 F.2d at 390. In addition, any injury potentially caused by failure to issue a consolidated complaint is obviated when the employer has notice of the charges against him. An unfair labor practice complaint serves two purposes: "to present a clear and concise statement of the facts upon which jurisdiction by the Board is predicated and to indicate clearly and concisely the acts which are claimed to constitute unfair labor practices." NLRB v. Sunnyland Packing Co., 557 F.2d 1157, 1161 (5th Cir. 1977). See 29 C.F.R. § 102.15 (1980). The complaint is not to be judged by rigid pleading rules; it is sufficient if the employer has notice of the basis of the charges against him, Sunnyland, 557 F.2d at 1161, and absent a special showing of detriment, the lack of specifics in the complaint is tolerated. Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1361 (4th Cir. 1969).
60
Procter & Gamble has not shown that it was prejudiced by consolidation or that it lacked notice of the charges against it. It did not move for separation of the cases and apparently contested transfer to Region 29 only in the case of the Dallas charges. Further, in its voluminous exceptions to the ALJ's decision and order, Procter & Gamble objects frequently to consolidation, but makes only a conclusory allegation of prejudice: because the ALJ issued one decision, he has attributed alleged unfair labor practices at one or two plants to all four plants. The record does not support this allegation. Although the ALJ issued one decision, he made separate findings of fact and conclusions of law for each plant and did not illogically mix the occurrences at the plants. See NLRB v. Tex-O-Kan Flour Mills Co., 122 F.2d 433, 437 (5th Cir. 1941) (consolidation of charges made by separate unions at two separate mills was proper). Further General Counsel has prosecuted these cases on the theory of a concerted effort by Procter & Gamble to discourage the inclusion of outsiders on the union bargaining committees. By transferring the charges to Region 29, issuing consolidated complaints for three plants, and consolidating all the cases for hearing, General Counsel gave Procter & Gamble indisputable notice of its theory of prosecution; Procter & Gamble has demonstrated no prejudice.
61
Finally, 29 C.F.R. § 102.33 does not require either a consolidated complaint or amendment of a complaint to reflect the issues as finally developed. While the regional director and the ALJ or Board, on motion, can amend a complaint "upon such terms as may be deemed just ...," 29 C.F.R. § 102.17 (1980), even failure to amend does not preclude finding an unfair labor practice where an issue is fully and fairly litigated. Free-Flow Packaging Corp. v. NLRB, 566 F.2d 1124, 1131 (9th Cir. 1978). Procter & Gamble certainly does not contend that it was unable to litigate any issue in these cases. Therefore, we find the Board did not abuse its discretion by failing to issue one consolidated complaint.
VII
62
Finally, Procter & Gamble raises several objections to the issuance of the order and notice to be posted at the four plants.22 First, Procter & Gamble argues that a single, common notice and order requires all four plants to remedy unfair labor practices found at only one plant. For example, all four plants are now ordered to make Omer Jones, a Kansas City employee, whole for any loss of pay resulting from his suspensions. Obviously upon enforcement of the Board's order, the affirmative relief which Procter & Gamble must undertake will be carried out in individual plants. The Kansas City plant naturally will be the one to pay Omer Jones. Procter & Gamble's real complaint is that the Board has used specific acts occurring at one plant to bolster its findings of an unlawful four-plant scheme to defeat or discourage coordinated bargaining. This argument replicates Procter & Gamble's objections to nonconsolidation of the complaints and for the same reasons discussed above, we find that it is meritless. Several courts, recognizing the Board's broad remedial powers, have upheld orders to post notices companywide even though the unlawful conduct was found to have occurred at only some company plants. See, e. g., J. P. Stevens & Co. v. NLRB, 612 F.2d 881, 882 (4th Cir. 1980); United Aircraft Corp. v. NLRB, 440 F.2d 85, 100 (2d Cir. 1971). The Board does not even go so far in this case since it limits the posting to the four plants involved. Accordingly, we find no error in the Board's order to post a common notice at all four plants.
63
Procter & Gamble also argues that the Board's order forces it to capitulate on three bargaining issues making the plant premises available for negotiations, paying local employee negotiators, and granting employees uncompensated leave to participate in negotiations at another company plant and such forced capitulation is beyond the Board's remedial power. H. K. Porter Co. v. NLRB, 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970); NLRB v. American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952). First, we note that the cease and desist portion of the Board's order only requires Procter & Gamble to stop refusing to make the plant premises available, to pay local employee negotiators, and to grant uncompensated leave and/or vacation time when it engages in such conduct because the unions' bargaining teams include outsiders. Even assuming this prohibition involves mandatory subjects of bargaining about which the Board may not order agreement, H. K. Porter, 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146 an issue which we need not decide, the prohibition simply does not impose new contractual provisions on the parties. Procter & Gamble may refuse to bargain on its plant premises for other valid business reasons, it does not have to pay local employee negotiators indefinitely, and it is free to develop the form of leave to be granted. We conclude that the Board's cease and desist order, which seeks to ensure that Procter & Gamble cannot interfere again with the unions' choice of bargaining representatives, is a proper exercise of its discretion in fashioning remedies. Gissel, 395 U.S. at 612 n.32, 89 S.Ct. at 1939; Fibreboard Paper Products, 379 U.S. at 216, 85 S.Ct. at 405.
64
Procter & Gamble also objects to part of the affirmative relief in the Board's order. Specifically, it objects to the Board's two additions to the ALJ's recommended order that Procter & Gamble (1) reimburse the unions for sums expended as rent for alternative meeting facilities in 1976-77 and (2) pay local employees for the work time they lost while in the 1976-77 negotiations.23 Both modifications require only that Procter & Gamble correct the injuries suffered by the unions and employees during the 1976-77 negotiations. Absent Procter & Gamble's refusals to make its plant premises available for the 1976-77 negotiations or to pay the employee negotiators, neither the unions nor employees would have suffered the economic losses at issue here. Consequently, we hold that the Board's modified order is well within its discretion to remedy unfair labor practices.
65
Accordingly, except for that portion of the order requiring Procter & Gamble to sign the 1977 Kansas City agreement, we enforce the Board's order in full.
66
ENFORCEMENT GRANTED.
FIELD, Senior Circuit Judge, dissenting:
67
I would deny enforcement of the Board's order in this case. As the majority recognizes, four independent unions had for many years represented employees at four widely scattered plants of Procter and Gamble, and during those years certain negotiating procedures had been followed at each of these plants. In 1976 each of the four unions decided to include members of the other three unions on its bargaining committee which concededly was a step toward the unions' aim to bargain with Procter and Gamble on a multiplant basis. I had always been under the impression that when you start a new and different ballgame, as the unions did here, you do not continue to play under the rules of the old game. Yet that is exactly what the Board has ordered and the majority unfortunately has approved.
68
Procter and Gamble did not refuse to bargain with a committee containing "outsiders", but merely declined to continue its past practice of negotiating on plant premises and of paying local employee negotiators. The majority concedes that an employer has no duty to do either of these things, but finds that the discontinuance of such practices was retaliation for the unions' selection of "outsiders" on their committees. The company and the union negotiated with respect to the issue of the site of the bargaining sessions, and the parties agreed upon the site as well as the sharing of the costs of such facilities. Despite this fact the majority concludes that the company must not only make its premises available for future negotiations, but must reimburse the union for the rental cost which the union had agreed to pay incident to the 1976 bargaining sessions.
69
The Board's order forces Procter and Gamble to capitulate on three bargaining issues make the plant premises available for negotiations, pay local employee negotiators, and grant employees uncompensated leave to participate in negotiations at another company plant. I agree with counsel for the employer that such forced capitulation is beyond the Board's remedial power and flies in the face of H. K. Porter Co., Inc. v. National Labor Relations Board, 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970), by compelling Procter and Gamble to agree to a proposal of the union and requiring that it make concessions on bargainable issues. I am in accord with the observation of Judge Wood in National Labor Relations Board v. Indiana and Michigan Electric Company, 599 F.2d 185, 192 (1979) that "the union camel has been constantly circling the company tent probing for a way to stick its nose under, (and) (n)ow the Board itself has indirectly lifted the edge of the tent to make it easy". In my opinion the Board has no authority whatever to punish a company because it opposes a union, nor does it have the authority to force a company to facilitate the unions' efforts to attain their objectives.
1
The unions are: Independent Oil & Chemical Workers, Inc. (Port Ivory); Independent Oil & Chemical Workers of Kansas City, Kansas; Independent Oil & Chemical Workers of Dallas; and Independent Oil & Chemical Workers (Baltimore)
2
Multiplant bargaining is collective bargaining between an employer and the union(s) representing employees in more than one plant of that employer. It results in a single contract
3
"Outsiders" is the term used by the parties and the Board and adopted by this court to refer to employees at the other three Procter & Gamble plants whom the negotiating union invited to participate as its bargaining representatives
4
Nine independent unions, including the four in this case, also compose a "Council" that meets annually to exchange information of common interest
5
The questions, while not identical in all cases, covered the following matters: (1) each outsider's name, address, and at what plant he was employed; (2) if he was in the local union; (3) if he was a member of another union and if he held an office in that union; (4) who he was present to represent the local union or another one; (5) what was his role and purpose in the present negotiations; (6) had he had any prior involvement with the local union; and (7) by what process or authority he was invited to the negotiations
6
Robinson acknowledged that, in the past, union attorneys had participated in bargaining sessions held on the plant premises
7
The outsiders had to resort to various means simply to attend the opening sessions: switching shifts, sending union officials already on vacation, or attending without leave
8
When the Baltimore plant manager denied Donnellon's vacation leave request on October 13, he also informed Donnellon that the Port Ivory bargaining session scheduled for October 15 had been cancelled. The Port Ivory union did not even learn of the cancellation until October 14
9
Subsection 8(d) of the Act, 29 U.S.C. § 158(d), provides in pertinent part that
to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times, and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, ....
10
The employer has a corresponding right in subsection 8(b)(1)(B) of the Act, 29 U.S.C. § 158(b)(1)(B)
11
"Coordinated bargaining is a negotiating technique whereby a union coordinates its bargaining with other unions or other bargaining units by including on its negotiating panel members of such other unions or bargaining units." Indiana & Michigan Elec., 599 F.2d at 190 n.4. The resulting contract is only for one union or unit
12
Complete copies of the other agreements were not included in the Joint Appendix so it is impossible to determine whether or not they contain personal leave provisions
13
Procter & Gamble also seeks to distinguish Indiana & Michigan Electric because there was a history of travelers participating in contract negotiations and there was no union business leave provision in the parties' contracts. We see no significance in these distinctions
14
The Board also discredited McIntire's testimony that he would have signed a single instrument on February 4, even if it also contained the outsiders' signatures
15
In addition to crossing out the space in order to prevent all the union negotiators from signing, Millsap placed the following notation on the contract: "The Union President was offered the opportunity to sign the Agreement and refused to sign." (Jt.App. at 702.)
16
One of the negotiators was no longer a Procter & Gamble employee; the other declined to sign
17
Subsection 8(c), 29 U.S.C. § 158(c), provides:
The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.
18
Procter & Gamble also suggests that Sharfe's threats were not authorized and, therefore, it is not responsible for them. Under the National Labor Relations Act, employer responsibility for a supervisor's acts is not determined by strict rules of agency law. Subsection 2(13) of the Act, 29 U.S.C. § 152(13). Rather, the employer is responsible when "employees would have just cause to believe that (a supervisor) was acting for and on behalf of the company." NLRB v. Texas Independent Oil Co., 232 F.2d 447, 450 (9th Cir. 1956). Accord, Dover Corp., 535 F.2d at 1210 (10th Cir.); Trey Packing, Inc. v. NLRB, 405 F.2d 334, 338 (2d Cir. 1968); NLRB v. Garland Corp., 396 F.2d 707, 709 (1st Cir. 1968). Considering Sharfe's position as a plant manager and his role in previous contract negotiations, the Port Ivory union officials would be justified in believing that he spoke for Procter & Gamble
19
Procter & Gamble also objects because the earlier charges did not specify an 8(a)(3) violation. This does not prevent Board consideration of the March suspension. What is crucial is that the complaint, not the charge, notify the employer of the charges against him, I.U.O.E., Local 925, 460 F.2d at 596, and even that need not be specific. Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1361 (4th Cir. 1969); NLRB v. Pecheur Lozenge Co., 209 F.2d 393, 402 (2d Cir. 1953); American Newspaper Publishers Ass'n v. NLRB, 193 F.2d 782, 800 (7th Cir. 1951), aff'd 345 U.S. 100, 73 S.Ct. 552, 97 L.Ed. 852 (1953). In this case, however, the consolidated amended complaint did allege the March suspension as a subsection 8(a)(3) violation and the Board, therefore, properly addressed this allegation on its merits
Procter & Gamble also cites several cases for the proposition that events occurring after the original charge is filed and more than six months prior to the filing of an amended charge are barred by subsection 10(b). NLRB v. Newton, 214 F.2d 472, 474-75 (5th Cir. 1954); Indiana Metal Products Corp. v. NLRB, 202 F.2d 613, 618-19 (7th Cir. 1953). These cases are inapposite for two reasons. First, they deal with amended charges encompassing prior events; this case addresses including subsequent events within prior charges. Second, these cases were decided before Fant Milling and did not apply its test for determining the inclusion of subsequent events; to this extent, they are unpersuasive.
20
A charge filed April 5, 1977, specifically covered the above conduct, but subsequently was withdrawn without prejudice and never reinstated
21
29 C.F.R. § 102.33(a) (1980) provides in pertinent part that
(w)henever the general counsel deems it necessary in order to effectuate the purposes of the act or to avoid unnecessary costs or delays, he may ... order that (a) charge and any proceeding which may have been initiated with respect thereto:
....
(3) Be transferred to and continued in any other region for the purpose of investigation or consolidation with any proceeding which may have been instituted in or transferred to such other region; ....
22
Procter & Gamble contends that the notice requires it to meet and bargain collectively with union bargaining committees including outsiders even though the Board specifically found that Procter & Gamble did not refuse to bargain. Read in light of the accompanying order, Procter & Gamble must cease and desist from refusing to bargain with the unions by engaging in the unlawful conduct found by the Board in this case. Thus this contention is without merit
23
The General Counsel excepted to the ALJ's failure to award backpay for negotiators and Procter & Gamble briefed and argued this issue before the Board. Before this court, the Board now contends that because Procter & Gamble failed to file a petition for reconsideration of this affirmative relief with the Board, 29 C.F.R. § 102.48(d)(1), it cannot assert any objection absent extraordinary circumstances which are not present in this case. Subsection 10(e) of the Act, 29 U.S.C. § 160(e); ILGWU v. Quality Mfg. Co., 420 U.S. 276, 281 n.3, 95 S.Ct. 972, 975 n.3, 43 L.Ed.2d 189 (1975); NLRB v. Ochoa Fertilizer Corp., 368 U.S. 318, 322, 82 S.Ct. 344, 347, 7 L.Ed.2d 312 (1961). Because this issue was briefed and argued to the Board, there is sufficient compliance with subsection 10(e). NLRB v. Annapolis Emergency Hosp. Ass'n, 561 F.2d 524, 527 (4th Cir. 1977). Accordingly, we will address this objection on the merits
While the remedy of ordering Procter & Gamble to reimburse the unions for their share of the rental cost of alternative meeting facilities apparently was not fully litigated before the Board as such, both the General Counsel and Procter & Gamble litigated the ALJ's finding that Procter & Gamble violated the Act by refusing to make its plant premises available for bargaining. Accordingly, we also will address this modified remedy on its merits. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1556491/ | 30 So.3d 907 (2009)
STATE of Louisiana
v.
Scott J. BROWN.
No. 09-KA-209.
Court of Appeal of Louisiana, Fifth Circuit.
December 29, 2009.
*909 Harry J. Morel, Jr., District Attorney, Juan Byrd, Assistant District Attorney, Hahnville, LA, for Plaintiff/Appellee.
Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
JUDE G. GRAVOIS, Judge.
Defendant, Scott Brown, was charged with possession of cocaine in violation of LSA-R.S. 40:967 C. Following the denial of his motion to suppress, defendant pled guilty to this charge,[1] reserving his right to appeal the denial of his motion to suppress under State v. Crosby, 338 So.2d 584 (La.1976). For the reasons that follow, we vacate the trial court's ruling and remand for further proceedings.
FACTS
Given that defendant pled guilty in this case prior to trial, the following facts are taken from the August 7, 2008 preliminary hearing conducted in this case and the October 23, 2008 hearing on defendant's motion to suppress evidence.
Sergeant Joseph Hasselback,[2] a trooper with the Louisiana State Police, testified that on May 7, 2008, he and his partner, Trooper Trent Cuccia, stopped a vehicle for a traffic violation on Interstate 10 in St. Charles Parish. Sergeant Hasselback testified that he observed "a lot of activity inside the vehicle, as far as movements" immediately upon stopping the vehicle. Based on his years of law enforcement experience, he found this behavior to be peculiar.
Pursuant to his department's standard procedure, Sergeant Hasselback had the driver exit the vehicle, a 2003 Buick automobile. A criminal history check showed that the driver had a recent arrest and conviction for narcotics. Trooper Cuccia received conflicting information from the car's occupants regarding where they had been and where they were going. He noted that all of the occupants exhibited *910 nervous behavior. Based on the driver's criminal background and the occupants' nervous behavior, Sergeant Hasselback asked the car's owner, who was a passenger, if she would consent to a vehicle search. The owner duly consented and written consent to search the vehicle was obtained.
Sergeant Hasselback followed his department's protocol for vehicle searches and ordered all of the passengers to exit the car. Sergeant Hasselback explained that the protocol requires the officers to perform a pat-down search of each individual for weapons for the safety of the officers. Upon searching defendant, who was one of the car's passengers, Sergeant Hasselback felt a bulge in defendant's front pants pocket. The officer retrieved the item, which he found to be a cigarette package. Sergeant Hasselback testified that he opened the package because "a cigarette package is large enough to hold a weapon." Upon looking inside the package, he saw a crack pipe. Crack cocaine was also found inside the package.
Because Trooper Cuccia was not available to testify at the suppression hearing, the district court took judicial notice of his testimony given at the preliminary hearing conducted on August 7, 2008. Trooper Cuccia testified that he participated in the traffic stop that led to defendant's arrest. After he obtained consent to search the car, Trooper Cuccia ordered all of the occupants to exit the vehicle, with the exception of a three-year-old girl who was in the back seat. Trooper Cuccia then conducted a pat-down search of the driver while Sergeant Hasselback conducted a pat-down search of defendant. Trooper Cuccia testified that Sergeant Hasselback found a cigarette pack containing a crack pipe and three rocks of crack cocaine on defendant's person. Upon searching the car, Trooper Cuccia recovered cocaine and Valium tablets from another passenger's purse. Defendant and the other passenger were then arrested.
Defendant testified at the suppression hearing, describing the pat-down search of his person. He explained that Sergeant Hasselback removed a cigarette box from his right front pocket. The officer looked inside the box and dumped its contents onto the hood of the car. Defendant testified that although Sergeant Hasselback did not tell him he was under arrest, he assumed at some point that he was.
LAW, DISCUSSION AND ANALYSIS
Defendant does not challenge the initial stop of the vehicle in which he was a passenger, conceding that the officers made a valid traffic stop based on a moving violation. Nor does defendant challenge the validity of the consent to the search of the vehicle. Instead, defendant argues that the officer's seizure of the cigarette box containing crack cocaine from his pocket was illegal in that it exceeded the permissible scope of a Terry[3] pat-down frisk for weapons. The State responds that the officer was justified in conducting a pat-down of defendant for safety purposes, and that the officer's actions in seizing and opening the cigarette package were within the permissible scope of a pat-down search.
In a hearing on a defense motion to suppress the evidence, the State has the burden of establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703 D, State v. Manson, 01-159, p. 5 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755, writ denied, 01-2269 (La.9/20/02), 825 So.2d 1156. The exclusionary rule bars evidence obtained either during or as a direct result of an unlawful invasion. Wong Sun v. U.S., 371 U.S. 471, 484-85, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). Evidence *911 recovered as a result of an unconstitutional search and seizure may not be used in a resulting prosecution. State v. Harris, 00-1930, p. 3 (La.App. 5 Cir. 4/11/01), 786 So.2d 798, 801-802.
Once an officer has lawfully stopped a vehicle for a routine traffic violation, he is authorized to order both the driver and passengers out of the vehicle pending completion of the stop. State v. Gomez, 06-417, p. 7, (La.App. 5 Cir. 11/28/06), 947 So.2d 81, 85 citing Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). Additionally, an officer conducting a traffic stop may perform a pat-down search of a driver and passengers upon reasonable suspicion that they may be armed and dangerous. Knowles v. Iowa, 525 U.S. 113, 118, 119 S.Ct. 484, 488, 142 L.Ed.2d 492 (1998); LSA-C.Cr.P. art. 215.1. Such a search "must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." Terry v. Ohio, 392 U.S. at 26, 88 S.Ct. at 1882. This limited protective search is justified under circumstances where a reasonably prudent person in those circumstances would be warranted in the belief that his safety or the safety of others was in danger. Terry, 392 U.S. at 27, 88 S.Ct. at 1883; State v. Boyer, 07-0476, p. 20 (La.10/16/07), 967 So.2d 458, 471. "[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Terry, 392 U.S. at 27, 88 S.Ct. at 1883. See also, State v. Boyer, 07-0476 at 20, 967 So.2d at 471.
Our jurisprudence has recognized that there is potential danger for an officer even during a routine traffic stop. State v. Landry, 588 So.2d 345, 347 (La.1991).
Sergeant Hasselback testified he removed the occupants from the car prior to searching it in order to comply with his department's protocol, which arises out of a concern for officer safety. In this instance, the vehicle search would require that the officers turn their backs on the subjects they had removed from the car. This was of particular concern in this instance because the car's occupants outnumbered the officers, and they had acted in a suspicious manner from the time the officers initiated the stop.
Sergeant Hasselback further testified that when he stopped the vehicle, he immediately noted the occupants were moving around a great deal. Trooper Cuccia testified that when he spoke with the car's occupants, they all behaved nervously and gave conflicting information. Sergeant Hasselback testified that he has been with the State Police since 1995, and based on his experience, he found the subjects' behavior to be peculiar. The officers also learned that the driver of the vehicle had a prior narcotics conviction.
Applying the foregoing law to the facts as testified to by the officers, we find that Sergeant Hasselback in the instant case had a reasonable, objective and particularized basis for conducting a pat-down weapons search of defendant. Accordingly, we find that Sergeant Hasselback was justified in conducting a patdown frisk of defendant for weapons.
Having found the pat-down search for weapons was lawful, the question now becomes whether Sergeant Hasselback exceeded the permissible scope of the search by seizing the cigarette package and the narcotics it contained. The "plain feel" exception to the warrant requirement for the seizure of evidence allows an officer conducting a legally valid pat-down search to seize contraband when the incriminating character of the object is immediately apparent *912 to the officer without an additional form of search or examination to identify it as contraband. Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993); State v. Boyer, 07-0476 at 22, 967 So.2d at 472.
Sergeant Hasselback testified that while patting down defendant's clothing, he felt a bulge in defendant's front pants pocket. The officer reached into the pocket and retrieved the item, which proved to be a cigarette package. He could not remember whether the package had a lid, or if it did, what kind of lid it had. He explained that based on his law enforcement experience, the package was large enough to hold a weapon such as a knife or razor blade, so he looked inside of it. Upon looking inside of the package, he discovered it held a crack pipe, which he immediately recognized as contraband. Sergeant Hasselback also found crack cocaine inside the cigarette package.
Sergeant Hasselback was questioned on cross examination about the bulge that he felt in defendant's pocket as follows:
Q. Isn't it true officer that when you frisked Scott Brown for officer safety, you didn't feel anything that was immediately apparent as contraband or a weapon upon touching?
A. I felt a bulge in his front pocket.
Q. What did you believe the bulge was when you felt it?
A. I don't know.
Q. You didn't know it was a weapon when you felt it?
A. No, I didn't.
Q. You didn't know it was contraband when you felt it?
A. No. I didn't.
Q. So if you didn't believe it was a weapon or contraband when you felt it, why did you go into his pocket?
A. I didn't believe, I didn't know.
Q. So if you didn't know, why did you go into his pocket?
A. I had to find out if he had a weapon.
In State v. Sheehan, 97-2386 (La.App. 4 Cir. 12/9/98), 740 So.2d 127, another case involving a cigarette package, a police officer noticed a partially open cigarette package in the defendant's shirt pocket during a pat-down search. The officer testified that he searched the cigarette package for a razor blade, and found crack cocaine. The Fourth Circuit upheld the search, finding that based on the officer's "past experience of knowing that razor blades are often concealed in cigarette packs, removing and looking at the cigarette pack was a reasonable intrusion designed to discover a weapon." Id. at 8, 740 So.2d at 131.
The Louisiana Supreme Court reversed, however, stating:
... [T]he seizure and search of the cigarette pack from relator's shirt pocket, which led to the unfolding of crumpled cellophane at the bottom of the pack and to the discovery of a single rock of cocaine concealed within the cellophane, exceeded the permissible scope of the pat-down frisk sanctioned by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and "amounted to the sort of evidentiary search that Terry expressly refused to authorize...." Minnesota v. Dickerson, 508 U.S. 366, 378, 113 S.Ct. 2130, 2139, 124 L.Ed.2d 334 (1993).
State v. Sheehan, 99-0725 (La.7/2/99), 767 So.2d 1 (per curiam).
Sergeant Hasselback, like the officer in Sheehan, testified that he knew razor blades and other weapons are often carried in cigarette packages. However, given the express prohibition against this type of search in Sheehan, that knowledge did not give Hasselback sufficient justification *913 for the search and seizure of defendant's cigarette pack.
In State v. Morton, 08-164 (La.App. 5 Cir. 7/29/08), 993 So.2d 651, this Court held that the seizure of narcotics from the defendant's pocket in the course of a Terry pat-down did not fall under the "plain feel" exception to the warrant requirement. In that case, police officers patrolling a high crime area in the early morning hours saw several individuals standing in the street and in a yard adjacent to a residence. The defendant, who was initially sitting on the porch steps, knelt down next to the steps. Morton, 08-164 at 3, 993 So.2d at 654. Viewing this as suspicious activity, one of the officers instructed the defendant to step away from the porch. The defendant complied with the officer's order only after the officer drew his gun and issued several warnings. Id. The defendant also discarded a chrome object. Id.
For safety purposes, the officer conducted a pat-down search of the defendant's clothing to check for weapons. The defendant refused to identify the bulge felt by the officer in defendant's pocket, so the officer reached into the pocket and retrieved a film canister and a plastic bag containing several rocks of crack cocaine. Id. The defendant was then placed under arrest. The officer searched the area and found a chrome handgun. Morton, 08-164 at 3-4, 993 So.2d at 654. The defendant was later convicted of possession of a firearm while in possession of cocaine. Id. at 2, 993 So.2d at 654.
The defendant appealed the district court's denial of his motion to suppress the evidence, arguing that the officer illegally seized the cocaine from his pocket when he knew it was not a weapon. This Court determined that the officers had reasonable suspicion to stop the defendant, and that the pat-down search was valid, since it was conducted for safety reasons. Morton, 08-164 at 8-9, 993 So.2d at 657. This Court further found the officer exceeded the permissible scope of the pat-down when he reached into the defendant's pocket and retrieved the film canister and plastic bag of narcotics. Morton, 08-164 at 9, 993 So.2d at 657.
This Court noted that the officer testified he checked the bulge in the defendant's pocket for safety reasons, and that he wanted to make sure the defendant didn't have a weapon of any sort. Morton, 08-164 at 9, 993 So.2d at 658. But the officer failed to describe the bulge; and on cross-examination he stated he could not identify the bulge, although it made him suspicious. He then admitted the bulge did not feel like a gun because it was not large enough. Id. This Court held that since the officer "could not immediately identify the bulge as a weapon or contraband by `plain feel,' the subsequent seizure of the narcotics exceeded the lawful scope of a Terry pat down." Id.
Sergeant Hasselback, like the officer in Morton, could not identify the bulge in defendant's pocket by plain feel, and yet he removed the object. In Morton, this Court held that the unlawfully seized evidence was nevertheless admissible under the inevitable discovery doctrine. Morton, 08-164 at 9-10, 993 So.2d at 658. That doctrine provides that illegally seized evidence is admissible if it inevitably would have been discovered through an independent source. State v. Lee, 05-2098, p. 23 (La.1/16/08), 976 So.2d 109, 127, cert, denied, ___ U.S. ___, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008).
The case before us is distinguishable from Morton in that there is nothing in the record to show that the cocaine evidence seized from defendant's pocket would inevitably have been discovered in a legal manner. According to the testimony, there was nothing the officer could have arrested defendant for at the time of the traffic stop *914 aside from the discovery of the cocaine. The record contains no evidence that defendant had outstanding warrants. Nor could the drugs found inside the other passenger's purse be attributed to defendant. Therefore, there would have been no search incident to arrest that would have led the officer to find defendant's cocaine legally.
Likewise, in State v. Duckett, 99-314 (La.App. 5 Cir. 7/27/99), 740 So.2d 227, this Court held that the seizure of contraband following a lawful pat-down was not authorized by the "plain feel" exception. In that case, the officer did not feel any weapons on the defendant during the pat-down. However, the officer felt a plastic bag, but did not know it contained drugs. In Duckett, this Court held the seizure of a plastic bag containing white powder and four plastic bags containing marijuana was not justified under the "plain feel" exception, concluding that the police exceeded the lawful bounds of a Terry frisk because the officer had to "further manipulate" the bag in order to determine it contained drugs. Duckett, 99-314 at 10, 740 So.2d at 232. Similarly, in the instant case, it was not immediately apparent to Sergeant Hasselback that the bulge contained a weapon or contraband.
State v. Barney, 97-777 (La.App. 5th Cir.2/25/98), 708 So.2d 1205, is also pertinent. There the defendant was stopped after he fled when he saw two marked police cars. An officer conducted a pat-down search and felt what he thought was a matchbox in the pocket of defendant's jeans. The officer removed the matchbox, opened it, and found cocaine. This Court held that opening the matchbox to view its contents exceeded the permissible bounds of the frisk under Terry, explaining that "[0]nce the matchbox left Barney's possession, it and any hypothetical weapon contained inside it ceased to be a threat to the officers' safety. The officer's opening of the matchbox to view its contents exceeded the permissible bounds of the frisk under Terry and Dickerson, because the matchbox itself was not contraband, and any threat of harm to the officers ceased upon [Officer] Farrell's removal of it from Barney's pocket. This police behavior is exactly the sort of further invasion of privacy prohibited by Dickerson." State v. Barney, 708 So.2d at 1211.
The following testimony of Officer Hasselback illustrates the similarity between the facts of the instant case and that of Barney concerning Officer Hasselback's opening and looking inside of defendant's cigarette box:
Q. Now, you testified that the reason you opened the cigarette box was because, in your experiences as an officer sometimes a cigarette box has a weapon. That's your testimony, right?
A. Yes, ma'am.
Q. So, even if there was a weapon inside, Scott Brown wouldn't have had access to it, correct?
A. That's correct.
We find the facts regarding the search in the case before us analogous to those in Sheehan, Morton, Duckett, and Barney. In the instant case, the officer testified that he felt a bulge, not a weapon or contraband, during the pat-down. As in Morton and Duckett, because the officer could not identify the bulge as a weapon or contraband by plain feel, the subsequent seizure of the bulge exceeded the lawful scope of a Terry pat-down. Furthermore, even if the officer was justified in removing the bulge from defendant's pocket in order to determine if defendant had a weapon and although the officer testified that he was concerned that the cigarette package contained a weapon, as in Barney, once the package was no longer in the possession of defendant, its contents were *915 no longer a threat to the officers' safety. Thus we find although the initial pat-down was legal, the seizure and search of the cigarette package and its contents taken from defendant's pocket exceeded the permissible limits of a Terry search. Consequently, the evidence seized from the cigarette package was not admissible since it was the product of an illegal search. Based on the foregoing, we find that the district court erred in denying defendant's motion to suppress evidence.
CONCLUSION
For the foregoing reasons, the district court's ruling on defendant's motion to suppress as well as defendant's conditional guilty plea under Crosby are hereby vacated. This matter is remanded to the district court for further proceedings consistent with this opinion.
CONVICTION VACATED; MATTER REMANDED.
NOTES
[1] Defendant also pleaded guilty on the same date to illegal use of controlled dangerous substances in the presence of a minor, a violation of LSA-R.S. 14:91.13, which offense is a misdemeanor. Since defendant only appealed his felony conviction, defendant's misdemeanor conviction is not part of this appeal.
[2] The officer's name is alternately spelled "Hasselback" and "Hasselbach" in the record.
[3] Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556500/ | 30 So.3d 320 (2010)
David ABERNATHY
v.
STATE of Mississippi.
No. 2008-KA-01457-SCT.
Supreme Court of Mississippi.
March 4, 2010.
*321 Joseph Patrick Frascogna, attorney for appellant.
Office of the Attorney General by Laura Hogan Tedder, attorneys for appellee.
Before CARLSON, P.J., DICKINSON and PIERCE, JJ.
PIERCE, Justice, for the Court:
¶ 1. This appeal comes to this Court from the Rankin County Circuit Court's denial of David Abernathy's Motion for Judgment of Acquittal Notwithstanding the Verdict and, in the alternative, Motion for a New Trial.
FACTS AND PROCEEDINGS BELOW
¶ 2. On August 24, 2006, David Abernathy was indicted for the felony offense of sexual battery in violation of Mississippi Code Section 97-3-95(1)(a) (Rev.2006). Abernathy waived arraignment and entered his plea of not guilty the same day.
¶ 3. These charges arose from an incident that occurred on September 6, 2005, in the home of one of his coworkers, Justin Gordon ("Justin"), and Justin's girlfriend, Jennifer Pigg ("Jennifer"). All of the relevant events occurred in the Gordon home, which is within the Pearl city limits, Rankin County, Mississippi. Tammy[1] was the victim of the sexual assault; she was twenty-two years of age at that time. Abernathy was forty-three years of age at the time.
¶ 4. A trial was conducted on December 14, 2007, in the Circuit Court of Rankin County. At trial, the State called four witnesses in its case-in-chief: Detective Dewitt Seal of the City of Pearl Police Department ("Seal"), Jennifer, Justin, and the victim, Tammy.
¶ 5. Seal was the primary investigating officer involved in the case. He testified regarding the particulars of his investigation, specifically detailing the statements taken from Tammy, Jennifer, and Justin. Following Seal's testimony, the State called Jennifer. At the time of the incident, *322 Jennifer lived with her boyfriend Justin. Jennifer testified that she had worked for Custom Products Corporation of Flowood, where Justin and Abernathy both were employed. Justin and Abernathy were coworkers and friends at the time.
¶ 6. Jennifer testified regarding the events of the evening in question. At some time during the day, Jennifer had spoken with Tammy, and they had agreed that Tammy would spend the night at Jennifer's home. Jennifer stated that, in the early afternoon, Justin had arrived home with beer, planning to have an evening cookout. Shortly thereafter, Abernathy arrived, bringing more beer. Abernathy had intentions of staying with Justin and Jennifer that evening, as he was without a permanent home at the time.
¶ 7. Jennifer testified that, shortly after Tammy arrived at Jennifer's house that evening, she became ill and complained of a headache. Tammy then retired to the guest bedroom in the house. Jennifer further testified that she was aware that Tammy previously had suffered from migraines but, to her recollection, Tammy did not suffer from them often. Throughout the evening, Abernathy made several trips to the bedroom to "check" on Tammy. After several visits, Jennifer and Tammy instructed Abernathy not to return.
¶ 8. After Jennifer's testimony, the court called a recess for lunch. During the break, Jamie McBride, attorney for the State, requested the trial court to invoke the rule[2] as to the exclusion of witnesses, and addressed the court regarding Dr. Howard Katz's presence in the courtroom. The defense then indicated that it intended to call Dr. Katz later in the trial to testify as an expert concerning migraine headaches. The attorney for the defense made an ore tenus motion regarding the relevance of Dr. Katz's testimony and discussed his reasons for calling him. After the defense's explanation, the court responded:
Well, we're not going to get through with this trial today. It's going to go into tomorrow at this point. But, I'm not going to rule on that right now. I'll do a Daubert[3] hearing on it at the proper time. But we need to get the rest of the testimony in and then I'll do the Daubert hearing and ever how long it takes, it takes. We're going to stay here until we get through with it. I don't care if it's Sunday.
¶ 9. Next, the State called Justin to testify. Justin testified regarding his friendship with Abernathy. He restated the facts previously offered by Jennifer. He also testified that, in the past, Tammy had used the term "migraine headache" in his presence. However, he testified that the night in question was the first time she had described her personal illness as a migraine headache.
*323 ¶ 10. Finally, the State called Tammy. She testified regarding her illness that evening. Tammy had been diagnosed in high school with having migraines by her personal physician, Dr. Roy B. Kellum.[4] She said that after Jennifer and Justin went to their bedroom on the evening in question, Abernathy entered the bedroom in which she was sleeping. Tammy testified that Abernathy had climbed on top of her, at which point she told him to "stop" and "get off." Tammy recalled that Abernathy told her not to scream. She further testified that Abernathy pulled down her shorts and panties, spread her legs apart and placed his finger into her vagina. In addition, Tammy stated that Abernathy had inappropriately touched her on several parts of her body. Finally, Tammy testified that she was pregnant at the time of the incident but did not discover her pregnancy until after the incident occurred. The State rested after Tammy's testimony.
¶ 11. At the close of the State's case-in-chief, the court asked the defense again for its reasoning in calling Dr. Katz. Attorney Pat Frascogna responded:
Your Honor, the victim in this case, just a few moments ago, said that she has been diagnosed since high school, with a migraine headache condition of some sort. She has suffered from those since that age, since high school age. Dr. Katz is here to not not to offer any kind of conclusion or expert opinion on what David Abernathy may or may not have been involved in at that house that evening, but merely to describe for the jury the migraine headache and what it means as far as its affect [sic] or possible effects on suffering and such.
...
Your Honor, the migraine the migraine headaches, and this is what Dr. Katz will show, migraine headaches are responsible for a wide variety of, let's say misperceived, misperceived [sic] events in one's life while they're having such. In other words, the sufferer of a migraine headache may perceive something about their environment that is not actually there, which is not part of that environment, and testimony today would be merely to give case history an example of that and nothing more.
¶ 12. After further discussion with both attorneys, the Court responded:
Okay. Normally, you hold a Daubert ... hearing to determine whether or not the evidence, testimony offered is and whoever came up with the term, I don't particularly like it, but they want the courts to be the gate keeper to determine if it's junk [science]. I don't believe for one minute that what Dr. Katz would testify to would be junk [science]. But because we all know migraine headache exists, there are different causes for them, and people react to them and in different ways.
That being said, my observation at this point is this that, (1) I hadn't heard any testimony that of a medical nature that would classify this headache this lady had as a migraine headache. There's no medical testimony to that. She said she had a headache. She said that it she used the term migraine to describe it. But other than her saying that, I don't know that it's a migraine. There's been no testimony to indicate that this lady has ever suffered from any hallucinations with or without a headache. We don't know the severity of the degree of *324 the headache. There's no evidence about that.
Unless I'm told otherwise, I'm not sure that Dr. Katz knows what the medical history of this victim is, if it's ever been reviewed by him. I don't know whether or not he's ever examined this victim. Medications taken. The witness is not even sure what medication she's taken, whether or what it was, so we don't know how that would affect this headache.
If Dr. Katz is going to testify as to generally the case histories and generally to how migraine affects people, that doesn't mean that it affects this woman that way. It might. It might not. Unless you can come up with something to tie his testimony to this witness, it's not relevant as far as I'm concerned and I'm deciding it on a relevancy issue and not on a medical issue.
So with that, seat the jury and call your first witness. If you think you can get it to that point, that's you know, I'll reconsider it. But at this point, I don't see how.
MR. FERRELL: Your Honor, I'm Wayne Ferrell and I'm here representing Dr. Katz when we when it was announced that there would be a Daubert hearing. I'm here to represent him individually as far as his qualifications and, you know, being disqualified on what on his expertise. That's the reason I'm here in the courtroom.
THE COURT: Okay. Well, right now it's not relevant and we're not even getting over into that boat.
¶ 13. At the close of the discussion, Judge Richardson denied Abernathy's motion for directed verdict. The defense then began its case-in-chief with the testimony of Sandra Newman. Next, the defense called Abernathy. Abernathy's testimony consisted of his recollection of the night in question. Abernathy testified that Tammy had complained of headaches throughout the evening and even had vomited at one point in the night. Abernathy had assisted Tammy outside with a wet washcloth, and then she retired to bed almost immediately thereafter. Abernathy testified that he did enter her room at one point and sit on the side of the bed where Tammy was sleeping. He claims that he did not disturb her by pulling back the covers and that he did not disrobe her.
¶ 14. After Abernathy's testimony the court asked the defense to call its next witness. The following exchange occurred:
THE COURT: Who would you have next for the Defendant?
MR. FRASCOGNA: That's all, your Honor.
THE COURT: Does the Defendant rest?
MR. FRASCOGNA: Yes, sir.
¶ 15. After the defense rested, the State called Justin Gordon as a rebuttal witness. At the close of his testimony, the State finally rested. At that time, the judge delivered instructions to the jury and charged it with its duty. After closing arguments, the judge dismissed the jury for deliberation. Once the jury retired, the trial court offered one last statement regarding Dr. Katz's testimony:
The jury is out. On the record just a moment. There was another issue, or not issue, but I wanted to have something else included in the record on my ruling on the on Dr. Katz's testimony I forgot to put in there earlier.
[Tammy] testified that she threw up. Tammy testified that she discovered she was six weeks pregnant, and I think that the Court can probably take judicial notice of the fact that when you're pregnant, you throw up, or most, I'd say 99 *325 percent of the women do and it is not necessarily in the morning, and that's, I know, also an indicator, that throwing up is an indicator of a migraine headache. It's also an indication of being pregnant. Okay.
¶ 16. The jury returned a verdict of guilty as charged in the indictment. Abernathy subsequently was sentenced to serve a term of thirty years in the custody of the Mississippi Department of Corrections with twenty years suspended and a period of five years on supervised probation upon release from incarceration.
¶ 17. After the trial, Abernathy moved for judgment of acquittal notwithstanding the verdict. Counsel for the defense argued that there was no specific finding regarding Dr. Katz's testimony and that there was no specific finding regarding the reliability of the opinions that Dr. Katz would have provided. Judge Richardson summarily denied the motion.
ANALYSIS
I. Whether the trial court erred in excluding the expert testimony of Dr. Katz.
¶ 18. "[T]he admission of expert testimony is within the sound discretion of the trial judge." Miss. Transp. Comm'n v. McLemore, 863 So.2d 31, 34 (Miss.2003) (citing Puckett v. State, 737 So.2d 322, 342 (Miss.1999)). "Therefore, the decision of the trial judge will stand `unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.'" Id.
¶ 19. The basis of Abernathy's appeal centers around the fact that Dr. Katz did not testify at trial. Specifically, Abernathy avers that the trial court erred because it determined Dr. Katz's testimony to be irrelevant, and, therefore, excluded said testimony. "This Court has repeatedly held that when testimony is excluded at trial, a record must be made of the proffered testimony in order to preserve the point for appeal." Murray v. State, 849 So.2d 1281, 1289 (Miss.2003). The Official Comment to Rule 103 of the Mississippi Rules of Evidence states that "... when a party objects to the exclusion of evidence, he must make an offer of proof to the court, noting on the record for the benefit of the appellate court what evidence the trial judge excluded." Vaughan v. State, 759 So.2d 1092, 1105 (Miss.1999) (Smith, J., specially concurring); see also King v. State, 374 So.2d 808 (Miss.1979); Brown v. State, 338 So.2d 1008 (Miss.1976).
¶ 20. It is evident from the trial transcript that the defense failed to make a sufficient proffer after the trial court excluded Dr. Katz's testimony. Although the defense mentioned Dr. Katz prior to trial and discussed Dr. Katz's proposed testimony during trial, the defense did not effect a sufficient proffer. See ¶¶ 11-12, supra, for the trial excerpts containing said discussion. Even finding that the testimony of Dr. Katz would have been relevant, the record is insufficient for us to determine whether it could have survived under the Mississippi Rule of Evidence 403 balancing test for admissibility.[5] It is incumbent upon the proponent of evidence to make an adequate record of the proposed testimony which this Court can review. This was not done in this case; without such we are unable to find that the trial court erred.
*326 ¶ 21. Accordingly, we find that the record lacks the necessary information to make a determination concerning the admissibility of the evidence, even if found to be relevant. Likewise, the lack of a sufficient proffer renders this Court unable to hold the trial judge in error. Therefore, the conviction and sentence of David Abernathy are hereby affirmed.
II. Whether the evidence was insufficient to support the verdict.
¶ 22. Additionally, Abernathy avers on appeal that the evidence presented at trial was insufficient to support the verdict. The critical inquiry when considering the sufficiency of the evidence is to decide 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. Morris v. State, 927 So.2d 744, 748 (Miss.2006) (citing Bush v. State, 895 So.2d 836, 843 (Miss.2005)). In the instant case, there was testimony that Abernathy did commit sexual assault upon Tammy. The case largely consisted of the victim's word against the defendant's. This presents a factual dispute to be resolved by a jury. We cannot conclude that any rational trier of fact could not have found the essential elements of the crime beyond a reasonable doubt, when the evidence is viewed in the light most favorable to the State. Accordingly, this assignment of error is without merit.
CONCLUSION
¶ 23. Because Abernathy failed to make a sufficient proffer concerning Dr. Katz's testimony, this Court finds that Abernathy failed to preserve the issue of Dr. Katz's testimony for appeal. Accordingly, the trial court's ruling denying Abernathy's Motion for Judgment of Acquittal Notwithstanding the Verdict and Motion for New Trial is hereby affirmed, as is the conviction and sentence.
¶ 24. CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED. THE LAST TWENTY (20) YEARS OF THE SENTENCE ARE HEREBY STAYED AND THAT PORTION OF THE SENTENCE IS SUSPENDED. UPON RELEASE, THE APPELLANT SHALL BE PLACED ON SUPERVISED PROBATION UNDER THE DIRECT SUPERVISION OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOR FIVE (5) YEARS.
CARLSON, P.J., DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., KITCHENS AND CHANDLER, JJ.
GRAVES, Presiding Justice, dissenting:
¶ 25. I disagree with the majority's conclusion that Abernathy failed to make a sufficient proffer concerning Dr. Katz's testimony. Abernathy complied with the rule of evidence and the caselaw relevant to proffering evidence by adequately explaining to the trial court and into the record why Dr. Katz's testimony was relevant. Therefore, I must dissent.
I. Abernathy complied with the rule of evidence and the caselaw relevant to proffering evidence by adequately explaining why he was offering Dr. Katz's testimony.
¶ 26. Rule 103 of the Mississippi Rules of Evidence explains that a trial court's exclusion of expert testimony can be found in error only if "the substance of the evidence [e.g., expert testimony] was made *327 known to the court by offer or was apparent from the context within which questions were asked." Miss. R. Evid. 103(a)(2). See also Heidel v. State, 587 So.2d 835, 844 (Miss.1991) ("Before a party may secure appellate reversal on an evidentiary exclusion, that party must have placed in the record the substance of the evidence he would have offered had the court ruled otherwise."). The comment to Rule 103 explains that "when a party objects to the exclusion of evidence, he must make an offer of proof to the court, noting on the record for the benefit of the appellate court what evidence the trial judge excluded." Miss. R. Evid. 103(a) cmt.
¶ 27. As explained in the cases regarding proffers cited by the majority, the purpose of the rule requiring the proponent of excluded evidence to "state[] into the record what is excepted [sic] to be proved ..." is "to enable the trial court to judge the competency of the proffered evidence and this Court can review it on appeal." Brown v. State, 338 So.2d 1008, 1009-10 (Miss.1976). See also White v. State, 507 So.2d 98, 102 (Miss.1987) ("The rule is that `when a party would seek a reversal because of excluded testimony ... the witness must be presented, and there must be a specific statement of what the answers or testimony of the witness would be, if allowed, so that the court may see from the record itself whether the offered evidence would be material and of benefit to the merits of the case ...'"); McQuaig v. McCoy, 806 F.2d 1298, 1301 (5th Cir. 1987) ("The purpose of the proffer is to make known to the court for what reasons the evidence is offered.").
¶ 28. This Court has explained that "counsel, when not permitted to present a witness's testimony, must by some manner or means cause the record to show precisely what he intended to prove by the witness." Bell v. State, 443 So.2d 16, 20 (Miss.1984) (emphasis added). See also McQuaig, 806 F.2d at 1301 ("While the evidence must be offered to the court, we do not require a formal proffer; instead, the proponent of excluded evidence need only show in some fashion the substance of the proposed evidence.") (emphasis added). In other words, the fundamental requirement of the rule is not that the proponent of the excluded testimony use the word "proffer" or any other specific language in introducing his explanation of the relevance of the testimony; rather, the fundamental requirement is that the proponent adequately explain to the court why the testimony is being offered.
¶ 29. This Court emphasized the flexibility of the rule regarding proffers in Murray v. Payne. It explained:
It is not necessary that the parties place in the record every detail of what their proof would have shown. All we require is that the party offering the excluded testimony make a clear record showing to us that there is substance to his point, that on reversal and remand there is a substantial likelihood that he will be able to offer evidence which may reasonably be expected to have an impact on the outcome of the case. We do not require that the appealing party place in the record the total and complete details of the proffered but excluded testimony. Nor do we require certainty that exclusion of that testimony affected the outcome of that first trial.
Murray v. Payne, 437 So.2d 47, 55 (Miss. 1983). The Murray court held that, while the proponent of the excluded testimony did not make a formal proffer, the record was sufficient to inform the Court what the substance of the excluded testimony would be. Id.
¶ 30. In the instant case, Abernathy complied with Rule 103 and the relevant caselaw by presenting Dr. Katz to the *328 court and explaining to the court what the upshot of Dr. Katz's testimony would be. Abernathy detailed to the court and into the record on multiple occasions why Dr. Katz's testimony about the psychological and physiological effects of migraines was relevant and essential to his theory of defense.
¶ 31. In a pretrial motion, Abernathy's counsel explained why he intended to call Dr. Katz as a witness:
... [T]he complainant in this cause provides numerous statements in the discovery relating to the ill-effects she suffered from a severe migraine headache (i.e., vomiting, nausea, etc.) which continued throughout the events, both before and subsequent to, the alleged criminal conduct of the Defendant.
... [B]ecause the medical condition the complainant experienced from the migraine headache she suffered on the action date of the case, the Defense identified a medical doctor in the Rankin County area, Dr. Howard Katz, during the spring of 2007 who is qualified to give expert testimony in the physiological and psychological effects on the human body during a severe attack of a migraine headache.
...
[T]he expert testimony of Dr. Katz is essential to virtually every aspect of the Defendant's case to be presented at trial, without which, he will be severely prejudiced.
Additionally, in Abernathy's Notice of Witnesses and Reciprocal Discovery, he stated that "Dr. Katz will testify as to the physiological and psychological effects of migraine headaches."
¶ 32. Abernathy discussed the relevance of Dr. Katz's testimony on two separate occasions during trial and again during the argument of his Motion for Judgment of Acquittal Notwithstanding the Jury Verdict or, in the Alternative, Motion for New Trial. The first time the issue was raised during trial was during a lunch break when the State noticed Dr. Katz sitting in the courtroom and notified the court that it objected to Abernathy calling Dr. Katz as a witness. During this discussion, Abernathy's counsel explained:
Your Honor, Dr. Howard Katz is here today and he's been noticed as an expert as an expert witness in this case. Dr. Katz is an expert in migraine headaches....
[H]e's here ... to discuss and explain what a migraine headache involves and the physiological events [sic] as well as psychological, generally, on those who suffer from it, and that has relevance in this case because the victim in this case has alleged that she was compromised physically because of the migraine headache and that she was unable to protect herself in some regard and to some degree from the defendant. She talks about faking a seizure or something.
Dr. Katz is basically here to merely explain what the migraine headache is and how it affects someone such as [Tammy[6]] in this case.
¶ 33. The issue of Dr. Katz's testimony was again discussed during trial when Abernathy's counsel, before calling his first witness, made a motion in limine regarding this issue. In support of its argument that Dr. Katz's testimony was relevant and should be admitted, Abernathy's counsel stated:
*329 Your Honor, the victim in this case, just a few moments ago, said that she has been diagnosed, since high school, with a migraine headache condition of some sort. She has suffered from those since that age, since high school age. Dr. Katz is here to not not to offer any kind of conclusion or expert opinion on what David Abernathy may or may not have been involved in at that house that evening, but merely to describe for the jury the migraine headache and what it means as far as its affect [sic] or possible effects on suffering and such.
...
Your Honor, the migraine the migraine headaches, and this is what Dr. Katz will show, migraine headaches are responsible for a wide variety of, let's say misperceived, misperceived events in one's life while they're having such. In other words, the sufferer of a migraine headache may perceive something about their environment that is not actually there, which is not part of that environment, and testimony today would be merely to give case history an example of that and nothing more.
¶ 34. Abernathy's counsel explained the relevance of Dr. Katz's testimony a final time during the argument of Abernathy's Motion for Judgment of Acquittal Notwithstanding the Jury Verdict or, in the Alternative, Motion for New Trial. Abernathy's counsel explained:
As the court no doubt is aware, your Honor, a basic tenet of the rules of evidence with regards to the relevance of evidence is ... whether any piece of evidence ... would tend to make a fact or consequence more or less likely or more or less probable than that fact or consequence would have been without that ... particular piece of evidence.
In this case, one of the facts or consequence at trial was whether or not the victim, as alleged ... accurately recalled the events that ... were testified to.
...
Dr. Katz was proffered to testify with respect to the effects of migraine headaches upon individuals, and in particular the propensity ... that migraine headaches, among other things, caused not necessarily hallucinations, but cause the possibility that a migraine could cause a person to inaccurately recollect events that unfolded during that period of time that the person was suffering from migraine headaches.
So we submit, your Honor, that ... this proffered testimony would no doubt... have been relevant to the issue of whether or not the victim, as alleged, accurately recalled the events of propensity to the sexual battery.
...
[T]he victim did testify that she was diagnosed with migraines and, therefore, we submit that there was sufficient basis to allow Dr. Katz to expound on ... what symptoms that particular condition could cause and specifically how that particular condition could have affected the accuracy of the victim's recollection of the ... events.
¶ 35. In sum, Abernathy complied with Rule 103 and the relevant caselaw by adequately explaining to the trial court and into the record why Dr. Katz's testimony was relevant and important to his theory of defense.
II. The trial court abused its discretion when it found Dr. Katz's testimony irrelevant.
¶ 36. As the majority notes, the standard of review for the admission or exclusion of expert testimony is abuse of discretion. Taylor v. State, 954 So.2d 944, 948-49 (Miss.2007) (citing Miss. Transp. *330 Comm'n v. McLemore, 863 So.2d 31, 34 (Miss.2003)). It was an abuse of discretion to exclude Dr. Katz's testimony about migraines because testimony was offered that Tammy had a migraine on the evening of the alleged assault, and therefore, expert testimony regarding the effects of migraines would have been relevant.
A. Testimony was offered that Tammy had a migraine on the evening of the alleged assault.
¶ 37. During direct examination of Tammy, she testified that she had suffered from a migraine on the evening of September 6, 2005 the evening of the alleged assault. She explained:
I had had it [i.e., a headache] all afternoon and it just got worse as the night went on. While we [i.e., Jennifer and I] were riding around [in the car doing errands] it got really bad. And by the time we got home, I asked her [i.e., Jennifer] for something to take to make it feel better. So she gave me I don't know what it was. It was probably Tylenol or an Excedrin or something. But I took that and for the rest of the night it just got worse and worse and worse.
...
[S]he and I both had migraines in the past and I knew she would have something to take for it, because I didn't bring anything with me.
¶ 38. Further, when Tammy was asked during direct examination what type of medication she would normally take if a migraine came on, she explained that she would normally take Darvocet, a drug legally obtained only by prescription. In other words, a medical professional at some point must have diagnosed Tammy with a migraine condition before prescribing her the drug Darvocet.
¶ 39. Moreover, when Tammy was asked during cross-examination whether she was "suffering from a migraine headache" the evening of the alleged assault, she replied, "Yes, sir." She went on to explain that she had been diagnosed with a migraine condition, that it was common for her to get migraines, and that she had suffered from them since she was in high school.
¶ 40. In addition, when Abernathy's counsel asked on cross-examination, "Previously or earlier in that same evening when you were having symptoms from the migraine, did that include nausea and vomiting and so forth?" Tammy responded "Yes, sir."
¶ 41. Jennifer and Justin testified that during the evening in question, Tammy referred to her headache as a migraine. Further, Jennifer testified: "... [Tammy] did get sick from her migraine and she threw up" and "I knew she had migraines...."
¶ 42. Lastly, in the State's Disclosure of Trial Witnesses, which was provided during discovery, the State informed Abernathy that "[Tammy] will testify that on the evening of September 6, 2005, that she was suffering from a migraine headache and was feeling very ill." In other words, even the State (which now argues that it is questionable that Tammy had a migraine that evening) at one time asserted that Tammy did in fact suffer from a migraine that evening.
¶ 43. In sum, Tammy's friends testified that Tammy had told them on the evening of the alleged assault that she was suffering from a migraine; Tammy, as well as her friends, testified that Tammy had a very bad headache that evening and that she also had vomited; Tammy herself testified that she had suffered from a migraine that evening; Tammy testified that her doctor had diagnosed her with migraine headaches and that she had suffered *331 from them since high school; Tammy testified that she had been prescribed Darvocet for her migraine condition; and lastly, Tammy told the prosecutors that she had a migraine that evening, and they informed Abernathy that this fact would be a part of Tammy's testimony.
B. Dr. Katz's testimony was relevant.
¶ 44. In light of the testimony regarding Tammy's history of migraine headaches and her symptoms during the evening of the alleged assault, Dr. Katz's testimony about migraines and how they may impair sufferers' ability to recall events accurately was relevant. Rule 401 of the Mississippi Rules of Evidence explains that evidence is "relevant" when it has a "tendency to make the existence of any fact that is of consequence to the determination of the action [e.g., the fact that Tammy accurately recalled the events of the evening in question] more probable or less probable than it would be without the evidence." Miss. R. Evid. 401. See also Investor Res. Servs., Inc. v. Cato, 15 So.3d 412, 417 (Miss.2009) ("Rule 401 favors admission of the evidence if it has any probative value. `[T]he threshold for admissibility of relevant evidence is not great. Evidence is relevant if it has any tendency to prove a consequential fact.'" (internal citation omitted)). In addition, Rule 702 of the Mississippi Rules of Evidence provides that "[i]f 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...." Miss. R. Evid. 702.
¶ 45. Dr. Katz's testimony would have assisted the jury in understanding what bearing Tammy having a migraine that evening had on the case, and in determining whether Tammy's recollection of that evening's events had been impaired. The ability of a witness not to mention the prosecution's key witness to observe and recollect the assault about which she is testifying is of utmost relevance.
¶ 46. Relevant evidence "may be excluded if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Miss. R. Evid. 403. As discussed above, the testimony introduced at trial regarding Tammy's history of migraines and her symptoms during the evening of the alleged assault makes the probative value of Dr. Katz's testimony significant. Second, the only "danger" (of those dangers listed in Rule 403) that the State raised during discussions of the admissibility of Dr. Katz's testimony was the danger of confusion of the jury. While Dr. Katz's testimony likely would have caused the jurors to consider the possibility that Tammy's ability to observe or recollect that evening's events was impaired, it would not have confused the jurors, and it certainly would not have confused them to the extent that the confusion would have outweighed the probative value. Furthermore, the State would have had the opportunity during cross-examination of Dr. Katz to attack the weight and worth of his testimony.
¶ 47. Even the trial court seemed to agree that when a victim testifies that she had a migraine on the date and time of an alleged assault, expert testimony regarding migraines and their effects on those who suffer from them would be relevant. At the hearing regarding Abernathy's Motion for Judgment of Acquittal Notwithstanding the Jury Verdict or, in *332 the Alternative, Motion for New Trial, which occurred nearly six months after the trial, the trial court heard arguments regarding the relevance of Dr. Katz's testimony, and in closing remarks stated:
If I remember correctly, I think the lady testified that she had a headache, but it was not a migraine headache, that she had them before. And if she didn't have a migraine headache, then Dr. Katz's testimony was not necessary. It was not relevant.
If she had testified that she had them, experienced a migraine headache that night, then you've got a whole different situation. She didn't testify to that. That was something that the defendant brought to the court's attention, and since he was drunk, I don't know he knew that she had a migraine headache. So, the motion is denied.
(Emphasis added.) Again, Tammy did testify that she had a migraine the evening of the alleged assault; the trial court did not correctly recall Tammy's testimony. At trial, the trial court itself noted that Tammy had testified that she had a headache and that "she used the term migraine to describe it." Thus, but for the trial court's erroneous recollection that Tammy had testified that she did not have a migraine on the evening in question, it appears the trial court would have found Dr. Katz's testimony relevant.
¶ 48. It is true that the trial court, earlier in the proceeding, found Dr. Katz's testimony irrelevant on other grounds those grounds being, namely: 1) no testimony of a medical nature was offered that would classify Tammy's condition on the evening in question as a migraine, and 2) Dr. Katz would not be testifying to the effects that migraines have on Tammy specifically, but rather to the effects migraines have, generally, on people who suffer from them. As just noted, however, in the trial court's final remarks on the issue of Dr. Katz's testimony, it agreed that when a victim testifies that she had a migraine on the date and time of an alleged assault, expert testimony regarding the effects of migraines would be relevant.
C. A defendant has a right to have every lawful defense he asserts presented to the jury.
¶ 49. A defendant has a fundamental right to have every lawful defense he asserts presented to the jury, even if that defense is highly unlikely. See Chinn v. State, 958 So.2d 1223, 1225 (Miss.2007) ("... every accused has a fundamental right to have [his] theory of the case presented to a jury, even if the evidence is minimal."); Phillipson v. State, 943 So.2d 670, 671-72 (Miss.2006) ("We greatly value the right of a defendant to present his theory of the case...."); O'Bryant v. State, 530 So.2d 129, 133 (Miss.1988) ("It is, of course, an absolute right of an accused to have every lawful defense he asserts, even though based upon meager evidence and highly unlikely, to be submitted as a factual issue to be determined by the jury under proper instruction of the court. This Court will never permit an accused to be denied this fundamental right."). According to Abernathy's brief, his theory of defense was "first, that he did not commit the acts of which he stood accused, and second, the stated fact that the victim was suffering from a migraine headache and possibly enceinte at the time was material and crucial to the matter of the victim's accurate recollection of the events, among other things, that transpired that evening." Abernathy thus had a right to call Dr. Katz in support of his theory that the migraine headache Tammy had the evening of the alleged assault may have caused her to recollect inaccurately what happened between the two of them.
*333 Conclusion
¶ 50. In conclusion, I disagree with the majority's finding that Abernathy failed to make a sufficient proffer concerning Dr. Katz's testimony; I conclude that Abernathy made an adequate proffer, satisfying the purpose of Rule 103. In addition, I conclude that the trial court abused its discretion in finding Dr. Katz's testimony irrelevant. Accordingly, I dissent and would reverse and remand this case for a new trial with instructions to the trial court to admit Dr. Katz's testimony.
WALLER, C.J., KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.
NOTES
[1] "Tammy" is a pseudonym used by this Court to protect the victim's identity.
[2] Rule 615 of the Mississippi Rules of Evidence provides that at the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. Jamie McBride, attorney for the State, simply invoked this rule.
[3] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (holding general acceptance is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, and that the Rules assign trial judges the task of ensuring that expert's testimony both rests on a reliable foundation and is relevant to the task at hand). Usually, a Daubert hearing is held prior to trial or during trial regarding the reliability and relevance of a party's expert witness.
[4] It should be noted that Tammy used the words "migraine" and "headache" interchangeably throughout her testimony.
[5] Rule 403 of the Mississippi Rules of Evidence allows for relevant evidence to be excluded "... if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Miss. R. Evid. 403.
[6] As the majority has noted, "Tammy" is a pseudonym used by this Court to protect the victim's identity. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556503/ | STATE OF LOUISIANA
v.
JACK LAGARDE.
No. 2009 KA 1306.
Court of Appeals of Louisiana, First Circuit.
February 12, 2010.
Not Designated for Publication.
CAMILLE A. MORVANT, District Attorney, MARTIN J. CAILLOUET, PETER J. ROUSSE, Assistant District Attorney, Counsel for Appellee State of Louisiana.
LARRY P. BOUDREAUX, Counsel for Defendant/Appellant Jack Lagarde.
Before: CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
GUIDRY, J.
The defendant, Jack Lagarde, was charged by bill of information with one count of possession of methamphetamine, a violation of La. R.S. 40:967(C), and pled not guilty.[1] He moved to suppress evidence, but, following a hearing, the motion was denied. Thereafter, he withdrew his former plea and pled guilty pursuant to State v. Crosby, 338 So.2d 584 (La. 1976), reserving his right to challenge the ruling on the motion to suppress. Pursuant to a plea agreement, he was sentenced to five years at hard labor, suspended, three years of probation, and a $2,000 fine. He now appeals, contending that the trial court erred in denying the motion to suppress. For the following reasons, we affirm the conviction and sentence.
FACTS
On August 17, 2006, at approximately 9:00 p.m., a reliable confidential informant (CI) advised Lafourche Parish Sheriff's Office Detective Sergeant Paul Lagraize that Travis Bourgeois had recently received a shipment of nine ounces of methamphetamine. The CI indicated he could purchase some of the methamphetamine from Bourgeois. According to the CI, Bourgeois drove a white pickup truck. Thereafter, in a recorded telephone conversation, the CI asked Bourgeois, "All right. You want to come off a gram?" Bourgeois asked for the CI's location and then stated "I'll call you in a little bit when I get on the road."
Detective Lagraize and Detective Rodrigue placed Bourgeois's house, which was under construction at 312 Cascade Drive in Chackbay, under surveillance. At approximately 9:35 p.m., Bourgeois drove up in a white pickup truck. At approximately 9:40 p.m., the defendant drove up in a green pickup truck. The CI called Bourgeois again, and Bourgeois responded, "Don't worry about it tonight. Go home to your family." Thereafter, the defendant drove away from Bourgeois's house. Due to Bourgeois's response, Detective Lagraize believed that the surveillance may have been compromised and instructed Detective Crochet to follow the defendant's car. Detective Crotchet noticed that the defendant's car had improper illumination of its license plate. He also observed the defendant driving on the shoulder of the road. Detective Crotchet was in an unmarked police vehicle, and thus, asked Officer Simoneaux to assist him in pulling over the defendant for the traffic violations. According to Detective Crotchet, after he asked the defendant for his driver's license, the defendant removed the license from his wallet and threw the wallet onto the back of his truck. Detective Crotchet immediately observed a portion of a plastic baggie sticking out of the billfold section of the wallet, and upon closer inspection, saw suspected crystal methamphetamine. He advised the defendant of his Miranda[2] rights. According to Detective Crotchet, he then asked the defendant for, and was granted, consent to search the vehicle. Detective Crotchet retrieved the crystal methamphetamine from the defendant's wallet and arrested him. According to Detective Lagraize, when he subsequently questioned the defendant at the police department, the defendant indicated he had purchased the methamphetamine from Bourgeois.
Approximately five minutes after the defendant drove away from Bourgeois's house, Bourgeois also drove away. Thereafter, Detective Lagraize learned that methamphetamine had been discovered on the defendant, and conducted a traffic stop of Bourgeois's vehicle. Detective Lagraize detected a burnt odor of marijuana coming from Bourgeois's vehicle and asked for consent to search the vehicle. Bourgeois refused to consent to a search of his vehicle. A canine was brought to the scene and alerted to the presence of narcotics in the vehicle. A subsequent search of the vehicle revealed the presence of marijuana, drug packaging paraphernalia, a scale, and a handgun. After obtaining a search warrant, the police discovered four and one-half ounces of methamphetamine and bank records in an outboard engine on Bourgeois's property.
The defendant testified at the hearing on the motion to suppress. He conceded he had a previous conviction for possession of stolen things. In regard to the instant offense, he claimed he went to Bourgeois's house to pick up a check from Bourgeois for concrete and sheetrock work he had done at the house. He denied throwing his wallet onto the back of his truck, and claimed he returned the wallet to his pocket after producing his driver's license for the police. However, he subsequently indicated he put his wallet on the truck after being patted down for weapons. He denied consenting to a search of his vehicle. He conceded he had crystal methamphetamine in a baggie in his wallet, but denied stating he had purchased the methamphetamine from Bourgeois.
MOTION TO SUPPRESS
In his sole assignment of error, the defendant argues that the trial court erred in failing to grant the motion to suppress the methamphetamine because his wallet was unlawfully searched and seized.
The Fourth Amendment to the United States Constitution and article I, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. Subject only to a few well-established exceptions, a search or seizure conducted without a warrant issued upon probable cause is constitutionally prohibited. Once a defendant makes an initial showing that a warrantless search or seizure occurred, the burden of proof shifts to the State to affirmatively show it was justified under one of the narrow exceptions to the rule requiring a search warrant. La. C.Cr.P. art. 703(D). A trial court's ruling on a motion to suppress the evidence is entitled to great weight, because the trial court had the opportunity to observe the witnesses and weigh the credibility of their testimony. A search conducted pursuant to consent is an exception to the requirements of both a warrant and probable cause. State v. Young, 06-0234, pp. 5-6 (La. App. 1st Cir. 9/15/06), 943 So. 2d 1118, 1122, writ denied, 06-2488 (La. 5/4/07), 956 So. 2d 606.
Prior to the guilty plea, the defense moved to suppress all evidence seized as the result of the search and seizure of the defendant's vehicle, arguing that the vehicle and wallet had been searched without probable cause. At the hearing on the motion, the defense argued that Detective Lagraize should have instructed Detective Crotchet to stop the defendant's vehicle only if there was probable cause for the stop. The defense also argued that Detective Crotchet's search of the defendant's wallet was illegal because Detective Crotchet was not searching for weapons. The State argued that the defendant's testimony was self-serving and his credibility was questionable because he had a prior conviction and because he had admitted possessing crystal methamphetamine. The court denied the motion to suppress.
There was no abuse of discretion in the denial of the motion to suppress. Detective Crotchet and the defendant gave conflicting testimony on the issues of whether or not the defendant threw his wallet onto his truck and whether he thereafter consented to a search of his vehicle. After observing the witnesses and weighing their credibility, the court credited the testimony of Detective Crotchet and rejected the testimony of the defendant. There is no basis in the record to overturn that credibility determination. According to Detective Crotchet, the defendant's wallet was on the back of his truck and was searched pursuant to the defendant's consent to search the vehicle.
The defendant argues that this case should be decided similarly to State v. Aucoin, 613 So. 2d 206 (La. App. 1st Cir. 1992). Aucoin involved a Crosby appeal from a guilty plea to possession of LSD following the denial of a motion to suppress. Aucoin, 613 So. 2d at 207-08. Baton Rouge City Police Officer Barbara Rushing had been dispatched to the Metro Lounge to assist other officers. Officer Rushing informed Aucoin, whom she knew "from prior dealings on other occasions[,]" that the lounge was being closed and asked her to leave the parking lot. Aucoin, 613 So. 2d at 208. Approximately thirty minutes later, however, Officer Rushing saw Aucoin leaning into a truck in the parking lot and talking to its occupant. Upon seeing Officer Rushing and other police officers approaching, Aucoin began walking away from the truck and toward a group of her friends. Aucoin then threw her wallet and keys to a friend, and Officer Kenneth Stelly recovered the items. Officer Rushing detained Aucoin to issue a misdemeanor summons for remaining after being forbidden. Officer Rushing asked Aucoin for her identification, and she stated it was inside her wallet. In response to Aucoin's statement, Officer Stelly opened her wallet and removed her license. As he did so, several tinfoil packets fell from the wallet and several other tinfoil packets became visible through the clear plastic compartment which had contained the license. The officers seized the tinfoil packets as containing suspected drugs and arrested Aucoin. She subsequently admitted that the packets contained LSD, and indicated that she had had other packets of LSD, but had sold them before being apprehended. Aucoin, 613 So. 2d at 208.
In Aucoin, we found that the opening of the wallet, even for the limited purpose of securing Aucoin's driver's license, was a search, and the search could not be upheld as a consent search because Aucoin's response that her identification was in her wallet did not indicate that she wanted the police to open the wallet and remove the identification. Aucoin, 613 So. 2d at 209-10.
Aucoin, however, is distinguishable from the instant case. In this case, there was no ambiguity in the consent to search given by the defendant.
This assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.
NOTES
[1] Travis Bourgeois was also arrested in connection with the incident involving the defendant. Bourgeois was charged by a separate bill of information with possession of methamphetamine and illegal carrying of a weapon while in possession of a controlled dangerous substance. See State v. Bourgeois, 09-0006 (La. App. 1st Cir. 6/12/09), 11 So.3d 1244, (Table.)
[2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2453564/ | 250 P.3d 922 (2011)
350 Or. 130
DEPARTMENT OF HUMAN SERVICES
v.
L.A.O.
(S059223).
Supreme Court of Oregon.
March 25, 2011.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556333/ | 30 So. 3d 120 (2009)
Gretchen DAFFIN
v.
James Bowman McCOOL.
No. 2009 CA 0785.
Court of Appeal of Louisiana, First Circuit.
December 23, 2009.
*121 Todd Gaudin, Marcus Foote, Bruce Kuehne, Baton Rouge, Louisiana, for Plaintiff/Appellee Gretchen Daffin.
Nanine McCool, Mandeville, Louisiana, for Defendant/Appellant James Bowman McCool.
Before DOWNING, GAIDRY and McCLENDON, JJ.
McCLENDON, J.
In this community property partition matter, we issued a rule to show cause why this appeal should not be dismissed and referred the rule to the merits of the appeal. The seminal issue before us is whether a stipulation signed by the parties' attorneys, but not by the parties themselves, is a consent judgment such that the appellant is not entitled to an appeal. For the following reasons, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
On June 23, 2004, Gretchen Daffin filed a petition against her former spouse, James B. McCool, to partition the remaining community property between the parties, particularly the family home. The matter went to trial on November 2, 2006, after which judgment was rendered awarding ownership of the former matrimonial domicile to Ms. Daffin upon payment to Mr. McCool of "one-half the equity less the payoff." The trial court also awarded Ms. Daffin reimbursements for taxes and repairs, but denied her mortgage payment reimbursement claim. Judgment was signed on January 2, 2007. Ms. Daffin appealed, and on March 26, 2008, we affirmed the trial court's judgment in an unpublished opinion. See Daffin v. McCool, 07-1589 (La.App. 1 Cir. 3/26/08), 978 So. 2d 1261, 2008 WL 1787367. Neither party sought writs with the supreme court.
Thereafter, Mr. McCool filed a motion to release funds to satisfy the judgment, which was set for hearing on August 22, 2008. After a conference in chambers with the parties' attorneys, a settlement was reached. Although a minute entry was taken, there was no open court recitation *122 of the stipulation.[1] The judgment was prepared by the attorneys for the parties, who approved the judgment as to substance and form. The judgment was not signed by the parties individually. On September 11, 2008, the judgment was signed by the court.
On October 14, 2008, Mr. McCool filed a motion and order for appeal, which was denied by the trial court on October 27, 2008, with the notation: "In accordance w/CCP art. 2085 a party cannot appeal a judgment in which it acquiesced in." On December 29, 2008, Mr. McCool filed another motion for appeal, which was signed by the trial court.[2] On May 29, 2009, this court, ex proprio motu, issued a rule to show cause to the parties why the appeal should not be dismissed because the October 27, 2008 judgment appears to be a non appealable ruling under LSA-C.C.P. art. 2085, and the motion and order for appeal filed on December 29, 2008, appears to have been filed untimely. On September 1, 2009, the rule to show cause was referred to the panel to which the appeal was assigned.
DISCUSSION
In the case sub judice, Mr. McCool contends that he never consented to the stipulated amount in the September 11, 2008 judgment. Therefore, according to Mr. McCool, it was clear error by the trial court to conclude that he acquiesced in the judgment.
A compromise is a contract in which the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. LSA-C.C. art. 3071. It must be made in writing or recited in open court. LSA-C.C. art. 3072. An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. LSA-C.C.P. art. 2085.
It is undisputed in this matter that there was no open court recitation and that Mr. McCool did not sign the judgment. Further, although there is nothing in the record indicating that Mr. McCool specifically authorized his attorney to enter into the *123 stipulation at issue, it is also undisputed that Mr. McCool was represented by counsel during these proceedings and at the time the judgment was submitted. Thus, the remaining issue is whether the signature of Mr. McCool's attorney, based on the record before us, is legally sufficient to establish Mr. McCool's acquiescence in the judgment.
Although LSA-C.C.P. art. 2085 references "a party," in Sullivan v. Sullivan, 95-2122, p. 4 (La.4/8/96), 671 So. 2d 315, 317-18, the supreme court stated that for a settlement agreement to be valid and enforceable, it must either be recited in open court and capable of being transcribed from the record of the proceeding or be in writing and signed by the parties or their agents. See also City of Baton Rouge v. Douglas, 07-1153, p. 5 (La.App. 1 Cir. 2/8/08), 984 So. 2d 746, 749, writ denied, 08-0939 (La.6/20/08), 983 So. 2d 1284. Finding that Mr. McCool's attorney was clearly acting as his agent and representative in submitting the judgment, we conclude that Mr. McCool fully acquiesced in the stipulation and that it constituted a valid compromise. Accordingly, Mr. McCool cannot seek to appeal the September 11, 2008 judgment, and his appeal should be dismissed.[3]
CONCLUSION
For the above and foregoing reasons, Mr. McCool's appeal is dismissed at his costs.
APPEAL DISMISSED.
NOTES
[1] The minute entry reflects the stipulation as follows:
Based on the stipulations of counsel and the parties, it was ordered that: The parties stipulate that the clerk shall release unto James B. McCool $49,307.08, plus legal interest from January 10, 2007 from the bond amount posted by Gretchen Daffin, and the remainder shall be disbursed to Gretchen Daffin and her attorney, Todd E. Gaudin, plus costs for this rule. Judgment to be signed when formal judgment is presented to the court.
[2] Meanwhile, Mr. McCool applied for supervisory writs. We issued an interim order on April 27, 2009, requesting the trial court to file a per curiam demonstrating how the September 11, 2008 order constitutes a consent judgment under LSA-C.C. art. 3072. The trial court filed its per curiam, dated May 26, 2009, which provides:
The case of Gretchen Daffin v. James B. McCool was set on the docket of my court on August 22, 2008. After a conference with the attorneys, a settlement was reached and a stipulation was entered on the record. (See attached minute entry.) The attorneys prepared an order in accordance with [the] stipulation. This order was approved as to substance and form by the plaintiff's and defendant's attorney. On September 11, 2008, I signed the consent order. The order was necessary because the settlement required the Clerk of Court of Ascension Parish to release funds which had been placed in the registry of the court.
Thereafter, on July 22, 2009, we denied the writ, with the following language:
WRIT DENIED. We note that relator may be able to seek redress by filing a direct action in nullity within the time limits provided by law.
[3] We need not discuss whether Mr. McCool's motion for appeal was filed timely, having found that he acquiesced in the stipulated judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556332/ | 798 F. Supp. 1292 (1992)
UNITED STATES of America, Plaintiff-Appellee,
v.
Marlene TARRANT, Defendant-Appellant.
No. 89-80240-02.
United States District Court, E.D. Michigan, S.D.
July 17, 1992.
*1293 Kathy Moro-Nesi, Asst. U.S. Atty., Detroit, Mich., for plaintiff-appellee.
Richard Lustig, Detroit, Mich., for defendant-appellant.
OPINION AND ORDER REGARDING DEFENDANT'S APPEAL OF HER CONVICTION AND SENTENCE IMPOSED BY THE MAGISTRATE JUDGE
ROSEN, District Judge.
I. INTRODUCTION
Marlene Tarrant was tried and convicted on five counts of failure to file income tax returns in a December 1989 jury trial conducted (by consent) before Magistrate Judge Virginia Morgan.[1] Following the trial, Magistrate Judge Morgan sentenced Ms. Tarrant to one year incarceration, a $5,000 fine, and 5 years probation. Ms. Tarrant filed a timely "Notice of Appeal" and now appeals to this Court pursuant to 18 U.S.C. § 3402. She is currently on bond pending resolution of this appeal.[2]
Both Defendant and the Government have fully briefed the issues on appeal and the Court heard oral argument on this matter on June 25, 1992. Having reviewed and considered the parties respective arguments, the Court is now prepared to rule on Ms. Tarrant's appeal and this Opinion and Order sets forth that ruling.
II. FACTUAL BACKGROUND
Marlene Tarrant and her husband, Michael Tarrant were indicted by a federal grand jury in 1989 on five counts each of failure to file federal income tax returns for the years 1982 through 1986. Prior to trial, Judge Suhrheinrich granted Ms. Tarrant's Motion to Sever her case from that of her husband on the grounds that the two defendants had antagonistic defenses.
Both Ms. Tarrant and her husband subsequently consented to (separate) jury trials before Magistrate Judge Morgan.[3] Ms. Tarrant was tried first.
The Government's theory was that Ms. Tarrant and her husband were tax protestors and that they each intentionally and willfully failed to file tax returns from 1979 to 1986. Ms. Tarrant's defense was that she had not acted willfully, that she did not *1294 file returns because she did not think she had to file based on correspondence she received from the IRS after not filing returns for several years which stated, in essence, that if she did not file tax returns the IRS would file them for her. She further defended on the basis that her failure to file was predicated upon her husband's beliefs of the nature of the law[4] and that, because she supported her husband in his beliefs, she did not file returns in order to maintain the stability of her marriage.
At trial, the Government presented evidence that in the years 1976 through 1978, prior to the years charged in the indictment, Ms. Tarrant had filed joint income tax returns with her husband and had paid federal income taxes, and that she had filed individual tax returns each year from 1964 to 1974. Evidence was presented at trial showing that from 1979 through 1986 (a period which included the years charged in the indictment), Ms. Tarrant earned income for which she owed taxes but that she did not pay the tax due, nor did she file any tax returns.
Evidence at trial further demonstrated that, starting in 1979 through 1985, Ms. Tarrant steadily increased the number of exemptions on her W-4 form to reduce or eliminate the tax withheld by her employer from zero exemptions, to four, to eight, to "exempt", and then back down to five. With respect to changing her W-4 forms and declaring "exempt" status, she testified that she believed in what her husband was telling her and followed what he said. She admitted that she filed an exempt status even though she knew that she would incur tax liability but she did not intend to send a check for taxes due. She explained during her trial testimony that she subsequently reduced the number of exemptions to five because she was beginning to get worried about supporting her husband's beliefs regarding taxes. She testified that she knew taxes and penalties would be assessed and were accruing and that she changed her W-4 from "exempt" to five exemptions so that some of the penalties she knew she would ultimately owe would be reduced.
In addition to changing the number of exemptions on her W-4 forms, evidence was presented at trial that the Ms. Tarrant transferred ownership of her car, and her husband transferred ownership of his pickup truck, into the name of the "Church of New Hope", a "church" purportedly run by the Tarrants,[5] and that they transferred their home into a "Valley Forge Trust."
Ms. Tarrant further admitted during her testimony that she attended meetings of the tax protestor organization, "We, The People, Act" for two years on a regular basis. She further testified that she knew that one of the leaders of the group was involved in legal proceedings concerning his stand on taxes and that she, herself, twice requested the IRS to send her all documents pertaining to her which the IRS had in its Criminal Investigation Division files.
Ms. Tarrant also testified that when she received correspondence from the IRS in 1982 regarding her failure to file income tax returns since 1979, she realized that she could file separately but that she decided not to because she wanted to support her husband. She admitted that she received correspondence from the IRS which informed her that if she and her husband earned $5,400 or more, she was required to file an income tax return.
With respect to her defense that she did not file returns because she thought the IRS was filing returns for her, Ms. Tarrant testified:
[W]e had been communicated with and in contact with the Internal Revenue Service and through their letters it was obvious to me that they had information on us in the form of a return so I felt that *1295 returns were filed on our behalf, not by us.
[12/13/89 Tr. pp. 15-16.]
Evidence was presented at trial that the Tarrants had been in communication with the IRS for a number of years [See 12/13/89 Tr.]. In mid-1984, after having received numerous letters from the IRS regarding her non-filing of income tax returns, Ms. Tarrant received correspondence from the Internal Revenue Service requesting that the Tarrants come to the IRS office for an interview the following month and bring with them pertinent income and expense records. The June 1984 letter stated in pertinent part,
This will enable us to prepare a federal income tax return for the years 1979, 1980, 1981, 1982 and 1983 for which no returns have been made. A blank return is attached to guide you in producing the necessary documents and records.
[12/13/89 Tr. pp. 40-41.]
Ms. Tarrant testified that, based upon the foregoing excerpt from the letter indicating that "this will enable us to prepare a federal income tax return", she did not believe she had to file returns because she thought the letter meant that "they [the IRS] were preparing income tax returns for us." [12/13/89 Tr. p. 41.]
After a three-day trial, the jury found Ms. Tarrant guilty of all five counts of failure to file income tax returns in violation of 26 U.S.C. § 7203, and she was subsequently sentenced by Magistrate Judge Morgan as indicated above.[6] This appeal followed.
III. ISSUES ON APPEAL
This appeal is predicated upon Ms. Tarrants' allegations of six points of error in her trial proceedings.
1) First, Ms. Tarrant contends that the Magistrate Judge erred in instructing the jury regarding what is not to be considered as evidence. The Magistrate Judge stated in her standard jury charge on this issue:
Assertions of fact contained in questions to witnesses are not to be considered as evidence of that fact unless affirmed or testified to by the witness. The examiner's statements are not themselves evidence.
Statements and arguments of counsel and of the defendant are not evidence in the case, unless made as an admission or stipulation of fact.
[12/14/89 Tr. p. 61.]
Defendant admits that she did not object to the charge at trial. However, she now claims that "plain error" was committed by the Magistrate Judge in her inadvertent inclusion of statements and arguments "of the defendant" in the above non-evidence charge.
The Government counters that that one isolated part of the charge does not constitute such prejudicial error to satisfy the plain error doctrine; that the jury instructions taken as a whole clearly and properly explained to the jury how the defendant's testimony should be treated, and, as a result, any error in including "of the defendant" in the one non-evidence charge was harmless.
2) Second, Defendant contends that the Magistrate Judge did not adequately instruct the jury with respect to her "lack of willfulness" theory of defense because the Magistrate Judge refused to instruct the jury regarding her good faith reliance upon her husband with an "innocent spouse" instruction. [See 12/14/89 Tr. p. 84.] The Government counters that no error was committed in the Magistrate's refusal to give an innocent spouse instruction because that instruction is not applicable in a failure-to-file case and because the jury charge on willfulness and good faith reliance, taken as whole, fairly and adequately set forth Defendant's theories of defense and applicable law for the jury.
3) Defendant's third point of error is the Magistrate Judge's refusal to allow her to *1296 cross-examine the Government's summary witness, IRS agent Robert Gardner as to his legal interpretation of a statutory provision. Specifically, Defendant sought to question agent Gardner on cross-examination regarding his interpretation of the legal significance of the section of the Internal Revenue Code which provides for a "substitute return". Magistrate Morgan ruled that presenting the witness's interpretation of a legal statute to the jury would improperly invade the province of the court and could result in juror confusion. Therefore, she held that Defendant could not pursue that "legal interpretation" line of questioning. And, when defense counsel persisted in that vein, MJ Morgan cautioned the jury,
Jurors, certain provisions of the Internal Revenue Code have been brought up here and I don't want you to be confused over the fact that the agent may be testifying to certain provisions of the code. I will give you all the law that you need to decide this, and any portions of the Internal Revenue Code that you need to consider in your decision will come from me. You are instructed that the provisions of the Internal Revenue Code require that each person obligated to pay income tax must file and prepare a tax return. Though the law does permit the Secretary of the Treasury to prepare a return for an individual who has not filed, the law does not require the Secretary to do so and the Secretary's discretion in this matter in no way reduces the obligation of the individual to file their return.
[12/13/89 Tr., Gardner volume, pp. 8-9.]
4) Ms. Tarrant's fourth point of error is, like her first point, an evidence matter which she never objected to at trial she contends that the Magistrate Judge abused her discretion in allowing the Government to present evidence of her husband's income. Ms. Tarrant argues that once her husband's case was severed from her case, the prosecution should have been prohibited from bringing in any evidence as to his actions or income claiming that because of the severance, such evidence was not relevant and was more prejudicial than probative. The Government disputes Defendant's contentions of lack of relevance and probity.
5) As her fifth point of error, Defendant contends that the Magistrate Judge abused her discretion in allowing into evidence certified copies of official IRS records of tax assessments and payments pertaining to the Tarrants under the records exceptions to the hearsay rule, Fed.R.Evid. 803(8) and (10) and the self-authentication rule, Rule 902(1). The certified documents were admitted into evidence during IRS agent Gardner's testimony to show the absence of any tax returns filed by Defendant.[7]
The Government counters that MJ Morgan did not err in admitting the records and further argues that to the extent that Defendant is challenging the admission of the documents on a "lack of trustworthiness" basis, such a challenge goes to the weight of the evidence rather than its admissibility. With regard to a "lack of trustworthiness" challenge, the Government asserts that Defendant had ample opportunity to challenge the trustworthiness of these documents in the course of his cross-examination of agent Gardner.
6) Ms. Tarrant's last point of error is that Magistrate Judge Morgan erred in instructing the jury as to the law with regard to the interpretation of 26 U.S.C. § 6020(b), the "substitute return" provision mentioned above, claiming that the instruction inhibited her defense that she had relied on the actions/representations of the Internal Revenue Service and believed that the IRS filed returns on her behalf.
The Magistrate instructed the jury as follows:
Evidence has been introduced that what has been called a substitute return was filed for the defendant by the IRS *1297 for some of the years charged in the indictment.
The jury is instructed that the provisions of the Internal Revenue Code require that each person obligated to pay income tax must prepare and file a return. Although the law does permit the Secretary of the Treasury to prepare a return for an individual who has not filed, the law does not require the Secretary to do so and the Secretary's discretion in this matter in no way reduces the obligation of the individual taxpayer to file returns. However, you may consider that evidence to determine whether or not Marlene Tarrant actually had a good faith belief that she fulfilled her requirement to file.
[12/14/89 p.m. Tr. pp. 73-74.]
The Government contends that inasmuch as the Magistrate Judge specifically instructed the jury that it could consider the evidence regarding the IRS's preparation of a return for persons who do not file one in determining whether Defendant had a good faith belief that she did not have to file a return, Defendant has failed to demonstrate that she was prejudiced by the instruction. The Government further argues that the Magistrate Judge's "the law does not require the Secretary to prepare a return for a non-filer" is consistent with the construction of Section 6020 given by every court that has considered this issue.
IV. DISCUSSION
A. THE "PLAIN ERROR DOCTRINE".
As an initial matter, as indicated above, Defendant did not object at all during trial to two of the six alleged errors that she now points to in this appeal, to wit, the jury instruction regarding what is not evidence (point one) and the admission of evidence of Michael Tarrant's income and actions (point four). And, with respect to a third alleged error the admission into evidence of the certified records of tax assessments and payments pertaining to the Tarrants (point five) although Defendant originally objected to admission of that evidence, she subsequently withdrew that objection.
It is well-established in this Circuit that when a defendant fails to make an objection to an instruction or to the admission of evidence at trial, he/she is precluded from arguing on appeal that the instruction or the admission of the evidence was flawed unless the instruction or the admission of the evidence constituted "plain error". United States v. Sanderson, 966 F.2d 184, 187 (6th Cir.1992); United States v. Cox, 957 F.2d 264, 267 (6th Cir.1992); United States v. Blankenship, 954 F.2d 1224, 1230 (6th Cir.1992); United States v. Hook, 781 F.2d 1166, 1172 (6th Cir.1986), cert. denied, 479 U.S. 882, 107 S. Ct. 269, 93 L. Ed. 2d 246 (1986). See also, Fed.R.Civ. Pro. 52(b); United States v. Frady, 456 U.S. 152, 163, 102 S. Ct. 1584, 1592, 71 L. Ed. 2d 816 (1982).
As the Sixth Circuit recently explained in Cox, supra:
The Supreme Court and numerous federal courts have repeatedly stated that the plain error doctrine is to be used sparingly, only in exceptional circumstances, and solely to avoid a miscarriage of justice. Recourse may be had to the doctrine "only on an appeal from a trial infected with error so `plain' the trial judge and the prosecutor were derelict in countenancing it.
957 F.2d at 267, citing, United States v. Hook, supra. See also, Blankenship, supra ("Plain error is `an egregious error, one that directly leads to a miscarriage of justice.'" 954 F.2d at 1230, citing, United States v. Busacca, 863 F.2d 433, 435 (6th Cir.1988), cert. denied, 490 U.S. 1005, 109 S. Ct. 1640, 104 L. Ed. 2d 156 (1989)).
The Court will apply the foregoing standard in reviewing Ms. Tarrant's first, fourth and fifth points of error.
1. No Plain Error Occurred When the Magistrate Judge Inadvertently Included "Statements of the Defendant" in the One Non-Evidence Instruction Where the Jury Instructions as a Whole Fairly and Adequately Explained to the Jury That Ms. Tarrant's Testimony Should be Given the Same Consideration as That of Other Witnesses.
In reviewing a jury instruction to which the appellant failed to object at trial, *1298 the plain error review consists of consideration of "whether the jury instructions, when taken as a whole, were so clearly wrong as to produce a grave miscarriage of justice." United States v. Sanderson, supra, 966 F.2d at 187, citing, United States v. Piccolo, 723 F.2d 1234, 1241 (6th Cir. 1983).[8]
With respect to Defendant's first point of error, Ms. Tarrant points to only one phrase contained in the Magistrate Judge's non-evidence instruction that questions and arguments of counsel are not evidence. One sentence inadvertently included the defendant in the standard charge:
Assertions of fact contained in questions to witnesses are not to be considered as evidence of that fact unless affirmed or testified to by the witness. The examiner's statements are not themselves evidence.
Statements and arguments of counsel and of the defendant are not evidence of the case, unless made as an admission or stipulation of fact....
[12/14/89 Tr. p. 61.]
However, reviewing the jury instructions as a whole, as the Sixth Circuit has directed, the Court finds that the instructions clearly and properly explained to the jury how the defendant's testimony should be treated. The Magistrate Judge also gave the following instructions:
The defendant in a criminal case has a perfect right to either testify as a witness in the case or to decline to do so. In weighing his or her testimony, where such defendant has testified, you should apply the same principles by which the testimony of the other witnesses is tested, including the witnesses called by the government.
* * * * * *
Any accused person, having taken the witness stand is before you just like any other witness. He or she is entitled to the same consideration and must have the testimony measured in the same way as any other witness, including his or her interest in the outcome of the case.
[12/14/89 p.m. Tr. pp. 63-64.]
When viewed in the context of the entire charge, the alleged error pointed to by Defendant was harmless beyond a reasonable doubt. In this regard, as the Supreme Court noted in Cupp v. Naughten, 414 U.S. 141, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973):
[T]he question is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.
Id. at 147, 94 S.Ct. at 400.
In this case, the brief phrase to which Defendant now objects was buried in one instruction that non-testimonial statements and questions were not evidence. This instruction was followed by complete instructions as to the correct standard by which Defendant's testimony should be judged.
For the foregoing reasons, the Court does not find that the one brief, isolated phrase in the one brief instruction "so infected the entire trial" with plain error to warrant reversal.
2. No Plain Error Occurred When the Trial Court Admitted Evidence of Defendant's Husband's Income.
As with Defendant's first point of error, with respect to her fourth point of error that the trial court erred in admitting evidence of her husband's income and the amount of taxes due thereon Defendant did not object to the admission of this evidence at trial, and, therefore, like the non-evidence instruction issue, this matter will be reviewed only for "plain error".
*1299 Defendant contends that error was committed in admitting the evidence of her husband's income because she claims it was not relevant. The Court disagrees. Evidence of Michael Tarrant's income was relevant as to Defendant's knowledge of her obligation to file income tax returns. Defendant claimed that she did not file income tax returns because of reliance on the advice of her husband and on statements in IRS correspondence. It was the Government's theory that Ms. Tarrant knew she was obligated to file tax returns and that she did not file returns to avoid the payment of taxes. Since Defendant had a past history of filing joint returns with her husband, consideration of her husband's income was relevant to a determination of whether Defendant would have had a tax obligation if she had filed jointly.
To the extent that Defendant is attempting to make out a Rule 403 "more prejudicial than probative" argument, as the Sixth Circuit directed in United States v. Zipkin, 729 F.2d 384 (6th Cir.1984), in reviewing a trial court's evidentiary decision under Rule 403, the reviewing court is to "look at the evidence in the light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect." Id. at 389. The Zipkin court went on to explain, "[T]he draftsmen [of the Federal Rules of Evidence] intended that the trial judge be given a very substantial discretion in `balancing' probative value on the one hand and `unfair prejudice' on the other, and that he should not be reversed simply because an appellate court believes it would have decided the matter otherwise. ..." Id. at 390.
By application of the foregoing standards, and under the plain error rules, the Court finds no reversible error in the admission of evidence of Michael Tarrant's income and amount of taxes due thereon.
3. The Magistrate Judge Did Not Err in Admitting Into Evidence Certified Copies of IRS Records of Tax Assessments and Payments Concerning the Tarrants.
The above legal discussions also apply to Defendant's claim that the Magistrate Judge in admitting under the public records exceptions to the hearsay rule Fed.R.Evid. 803(8) and 803(10) the certified IRS records of tax assessments and payments pertaining to the Tarrants. These certified records were "self-authenticated" under Fed.R.Evid. 902, and were admitted into evidence to prove the absence of a public record, i.e., the absence of an tax returns filed by Ms. Tarrant for the years charged in the indictment. Several courts have squarely addressed this issue and have held that IRS Certificates of Assessment and Payments the very records at issue here are admissible under Rule 803(10) for this "absence of filing of tax return" purpose. See e.g., United States v. Neff, 615 F.2d 1235, 1241-1242 (9th Cir. 1980), cert. denied, 447 U.S. 925, 100 S. Ct. 3018, 65 L. Ed. 2d 1117 (1980). See also, United States v. Farris, 517 F.2d 226 (7th Cir.1975), cert. denied, 423 U.S. 892, 96 S. Ct. 189, 46 L. Ed. 2d 123 (1975). The courts have further held that admission of these self-authenticated IRS records does not violate the failure-to-file-tax-returns defendant's right to confrontation. Neff, supra, 615 F.2d at 1242 and cases cited therein.
For all of the foregoing reasons, the Court finds no plain error or abuse of discretion in the Magistrate Judge's admission into evidence of the IRS Certificates of Assessments and Payments.
B. THE MAGISTRATE JUDGE DID NOT ERR IN REFUSING TO GIVE AN "INNOCENT SPOUSE" INSTRUCTION, WHERE SHE ADEQUATELY INSTRUCTED THE JURY ON ALL OF THE ASPECTS OF DEFENDANT'S THEORY OF THE CASE WHICH WERE SUPPORTED BY THE EVIDENCE AND THE LAW.
Defendant contends that Magistrate Judge Morgan did not adequately instruct the jury with respect to her "lack of willfulness" theory of defense because the Magistrate Judge refused to instruct the jury *1300 regarding her good faith reliance upon her husband with an "innocent spouse" instruction.
When a jury instruction issue is properly preserved for review by objection at trial, the appellate standard of review is whether the instructions, taken as a whole, fairly and adequately submit the issues and applicable law to the jury. United States v. Martin, 740 F.2d 1352, 1361 (6th Cir.1984). Moreover, as indicated above, the Sixth Circuit has consistently held that jury instructions should be reviewed for a contextual understanding of the entire charge such that no single provision is read in isolation. See, e.g., United States v. Horton, supra; Engle v. Koehler, supra; United States v. Smith, supra.
With respect to "omitted" instructions, the Sixth Circuit recently stated that given the "considered as a whole" review standard, "An omitted or incomplete instruction is even less likely to justify reversal, since such an instruction is not as prejudicial as a misstatement of the law." United States v. Sanderson, supra, 966 F.2d at 187.
In this case, the Magistrate Judge refused to instruct the jury on the "innocent spouse" defense. The "innocent spouse" defense is based on 26 U.S.C. § 6013(e)(1). That provision is applicable only in the civil context and not the criminal context, and it applies only in "failure to pay taxes" cases, not "failure to file tax return" cases, because its purpose is to prevent an innocent spouse from incurring liability for tax deficiencies caused by a spouse's understatement of income. See, Shea v. Commissioner of Internal Revenue, 780 F.2d 561, 564 (6th Cir.1986).
Moreover, Section 6013(e)(1) itself provides that the defense does not apply unless the taxpayer meets certain requirements. Specifically, the statute states:
[I]f
(A) a joint return has been made under this section for a taxable year, [and]
(B) on such return there is a substantial understatement of tax attributable to grossly erroneous items of one spouse, [and]
(C) the other spouse establishes that in signing the return he or she did not know, and had no reason to know, that there was such substantial understatement, and
(D) taking into account all the facts and circumstances, it is inequitable to hold the other spouse liable for the deficiency in tax for such taxable year attributable to such substantial understatement,
then the other spouse shall be relieved of liability for tax (including interest, penalties and other amounts) for such taxable year to the extent such liability is attributable to such substantial understatement.
26 U.S.C. § 6013(e)(1).
As provided above, the initial prerequisite for application of the innocent spouse defense is that a joint return have been filed for the years in question. In this case, Defendant does not dispute that she did not file any returns for the years in question. Therefore, the defense is not applicable and, accordingly, the Magistrate Judge did not err in refusing to instruct the jury on this issue.
Furthermore, to the extent that Defendant now argues that Magistrate Judge Morgan did not adequately instruct the jury on her "lack of willfulness" and "good faith reliance upon her husband" defense theories, having reviewed the jury instructions as a whole, this Court finds no merit in Defendant's argument.
The Magistrate Judge instructed the jury extensively on the issue of willfulness and its relationship to Defendant's good faith reliance defense. The jury instructions given included the following:
The defendant's conduct is not willful if she acted through negligence, inadvertence, or mistake, or due to his or her good faith misunderstanding of the requirements of the law.... In other words, a good faith misunderstanding may negate willfulness but a good faith disagreement will not.
Willfulness necessarily depends upon the defendant's state of mind at the time that acts or omissions for which she is *1301 charged were committed. This is a question for you as jurors to determine.
* * * * * *
Although the law does permit the Secretary of the Treasury to prepare a return for an individual who has not filed, the law does not require the Secretary to do so and the Secretary's discretion in this matter in no way reduces the obligation of the individual taxpayer to file returns. However, you may consider that evidence to determine whether or not Marlene Tarrant actually had a good faith belief that she fulfilled her requirement to file.
* * * * * *
The defendant has introduced evidence of advice she heard from ... her husband that she relied on in concluding that she was not a person required to file income tax returns for the years 1982 through 1986.
The evidence has been admitted solely for the purpose of aiding you in determining whether or not the defendant's failure to file tax returns for 1982 through 1986 were [sic] knowing and willful and you should not consider it for any other purpose.
* * * * * *
The defendant has asserted that she held a good faith belief that she was not required to file income tax returns or pay federal income tax....
[I]f a person in good faith believes that he or she has done all that the law requires, he or she lacks the required criminal intent. Thus, if you should find that the defendant believed in good faith that she was not required to file income tax returns, you should find her not guilty of the charges....
[12/14/89 p.m. Tr. pp. 71-77.]
These instructions demonstrate that the Magistrate Judge clearly placed Defendant's theory of the case before the jury.
In sum, the Court finds that no error was committed in the Magistrate's refusal to give Defendant's requested "innocent spouse" instruction because that instruction is not applicable in a failure-to-file case and because, the instruction on willfulness and good faith reliance, taken as whole, fairly and adequately set forth Defendant's theories of defense and applicable law for the jury.
C. THE MAGISTRATE JUDGE DID NOT ABUSE HER DISCRETION IN PRECLUDING DEFENDANT FROM CROSS-EXAMINING IRS AGENT GARDNER REGARDING HIS INTERPRETATION OF THE LEGAL SIGNIFICANCE OF A STATUTORY PROVISION.
Defendant argues that the Magistrate Judge erred in refusing to allow her to cross-examine the Government's summary witness, IRS Agent Gardner, as to his interpretation of the legal significance of 26 U.S.C. § 6020(b).
That provision states as follows:
(1) Authority of Secretary to execute return.
If any person fails to make any return required by any internal revenue law or regulation made thereunder at the time prescribed therefor, or makes, willfully or otherwise, a false or fraudulent return, the Secretary shall make such return from his own knowledge and from such information as he can obtain through testimony or otherwise.
On direct examination, agent Gardner explained the certificate of IRS record for Defendant Marlene Tarrant. In response to questioning about an entry on the certificate labelled "substitute for return", agent Gardner explained that a substitute for return "is basically a blank return that is submitted by examination to enter the taxpayer on the [computer] system." [12/12/89 Tr., Gardner Vol., p. 24.]
On cross-examination, Magistrate Judge Morgan sustained the Government's objection when Defendant attempted to question agent Gardner as to his interpretation of the legal significance of Section 6020(b). In so doing, the Magistrate Judge relied upon United States v. Poschwatta, 829 F.2d 1477, 1483 (9th Cir.1987), cert. denied, 484 U.S. 1064, 108 S. Ct. 1024, 98 L.Ed.2d *1302 989 (1988), a failure-to-file tax return case in which the appellate court specifically upheld the trial court's determination to exclude cross-examination of IRS employees as to a legal interpretation of Section 6020(b).[9] Magistrate Morgan expressed her concern that if Defendant were allowed to pursue cross-examination as to the legal significance of that provision, the jury would be confused and misled into believing the witness was their source for the law governing the case. [See 12/13/89 Tr., Gardner Vol. pp. 6-8.]
The Magistrate Judge's decision is well-supported by Sixth Circuit law. See, e.g., United States v. Curtis, 782 F.2d 593, 599 (6th Cir.1986); United States v. Zipkin, supra, Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir.1985). Moreover, a trial judge's decision on an evidentiary matter is reviewed deferentially, and is reversible only if the reviewing court is firmly convinced that a mistake has been made. United States v. Arnold, 890 F.2d 825, 828 (6th Cir.1989).
By application of the foregoing authorities, this Court finds no error in the Magistrate Judge's exclusion of cross-examination of agent Gardner on the legal significance of Section 6020(b).
D. THE MAGISTRATE JUDGE DID NOT ERR IN INSTRUCTING THE JURY ON SECTION 6020(b) AND DEFENDANT'S THEORY OF RELIANCE UPON THAT SECTION.
Ms. Tarrant's last point of alleged error is that Magistrate Judge Morgan erred in instructing the jury as to the law with regard to the interpretation of 26 U.S.C. § 6020(b), the "substitute return" provision mentioned above, claiming that the instruction inhibited her defense that she had relied on this provision and by its language believed that the IRS filed returns on her behalf.
The Magistrate instructed the jury as follows:
Evidence has been introduced that what has been called a substitute return was filed for the defendant by the IRS for some of the years charged in the indictment.
The jury is instructed that the provisions of the Internal Revenue Code require that each person obligated to pay income tax must prepare and file a return. Although the law does permit the Secretary of the Treasury to prepare a return for an individual who has not filed, the law does not require the Secretary to do so and the Secretary's discretion in this matter in no way reduces the obligation of the individual taxpayer to file returns. However, you may consider that evidence to determine whether or not Marlene Tarrant actually had a good faith belief that she fulfilled her requirement to file.
[12/14/89 p.m. Tr. pp. 73-74.]
Having reviewed the foregoing instruction, the Court agrees with the Government that inasmuch as the Magistrate Judge specifically instructed the jury that it could consider the evidence regarding the IRS's preparation of a return for persons who do not file one in determining whether Defendant had a good faith belief that she did not have to file a return, the Court is hardpressed to see how Defendant can claim that she was prejudiced by the instruction.
It appears, however, that Defendant is arguing that, notwithstanding the Magistrate Judge's explicit instruction that the jury could consider Section 6020 for the purpose of determining whether Ms. Tarrant actually had a good faith belief that she did not have to file tax returns, the remainder of the instruction regarding the Secretary's "discretion" inhibited her defense. Defendant contends that because the language of Section 6020(b) states that if an individual fails to file a return, the Secretary "shall" make one for him, the part of the Magistrate Judge's instruction that the Secretary "is permitted but not required to make a return" for a non-filer *1303 was erroneous. The record reflects that, in deciding to give the instruction she gave, the Magistrate Judge relied upon the Seventh Circuit's decision in United States v. Verkuilen, 690 F.2d 648 (7th Cir.1982), [see 12/14/89 Tr. p. 85].
In Verkuilen, the trial court gave the very same instruction as in this case (but without the "good faith reliance" last sentence of the instruction given here). Verkuilen made the same argument that Defendant makes here, i.e., that the instruction was erroneous because he claimed that it misstated the law by replacing the mandatory "shall" in the statutory language with "permitted but not required". The Seventh Circuit, relying upon the tax court's construction of Section 6020(b)(1) in Hartman v. Commissioner of Internal Revenue, 65 T.C. 542 (1975), determined that Section 6020(b)(1) "does not make it mandatory that the Secretary of the Treasury file a tax return". 690 F.2d at 648.
Moreover, the Hartman court relied upon United States v. Harrison, 30 A.F.T.R.2d 72-5104 (E.D.N.Y.1972), aff'd, 486 F.2d 1397 (2d Cir.1972), cert. denied, 411 U.S. 965, 93 S. Ct. 2144, 36 L. Ed. 2d 685 (1973). Harrison was also a failure-to-file case. There, the trial court, after conducting an extensive review of the legislative history of Section 6020, concluded that the statute's purpose was to provide a mechanism for the IRS to assess the civil tax liability of a taxpayer who has failed to file a return, not to excuse the taxpayer from the criminal liability that results therefrom.
Based on the foregoing authorities, the Court finds that the Magistrate Judge's instruction on Section 6020 and Defendant's alleged good faith reliance thereon was not erroneous.
V. CONCLUSION
In sum, for all of the foregoing reasons and for the further reasons stated by the Court on the record on June 25, 1992,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendant Marlene Tarrant's conviction and the sentence imposed upon her by the Magistrate Judge be, and hereby is, AFFIRMED.
NOTES
[1] Willful failure to file an income tax return is a misdemeanor, punishable by a fine of not more than $25,000, or 1 year imprisonment, or both. 26 U.S.C. § 7203. The Magistrate's Act, 28 U.S.C. § 636(a)(3), and 18 U.S.C. § 3401 expressly authorize magistrate judges to try and sentence persons accused of misdemeanors. See also, Peretz v. United States, ___ U.S. ___, 111 S. Ct. 2661, 115 L. Ed. 2d 808 (1991).
[2] The Court notes that in her "Notice of Appeal", Ms. Tarrant states only that she is appealing "her sentence imposed by the Honorable Virginia Morgan, United States Magistrate". However, it is clear from the arguments raised in her Appeal Brief and at oral argument that Ms. Tarrant is actually appealing her conviction (i.e., errors in the conduct of the trial), not her actual "sentence".
Although normally when an appellant only indicates in a Notice of Appeal that he/she is appealing a "sentence", a reviewing court's consideration of that appeal may properly be limited to the "sentence" alone [i.e., alleged trial errors will not be reviewed], because the Government has not raised the "sentence-only Notice of Appeal" issue, but rather has fully briefed in its opposition Brief all of the alleged trial error issues addressed in Ms. Tarrant's Appeal Brief, and, thus, appears to have at least implicitly accepted Ms. Tarrant's appeal of her sentence as being an appeal of her "conviction", the Court will not limit its review to Ms. Tarrant's "sentence", but rather will review all of the alleged trial errors pointed to by Appellant.
[3] Both Marlene and Michael had at one point entered guilty pleas (pursuant to a Rule 11 Plea Agreement) but subsequently were allowed to withdraw those guilty pleas.
[4] Michael Tarrant, a college educated Ford Motor Company computer specialist, was a proponent of the belief that federal income tax laws were either unconstitutional or did not apply to him. [See May 14, 1990 Opinion of Magistrate Judge Morgan Denying Defendant Michael Tarrant's Motion for New Trial.]
[5] The "church" had the same address as the Tarrants' residence.
[6] Marlene Tarrant's husband, Michael Tarrant, was also found guilty on all five counts by the jury in his subsequent trial. He was sentenced to one year custody, a $10,000 fine and five years probation. Michael also originally filed a Notice of Appeal but subsequently withdrew his appeal.
[7] Although Defendant originally objected to the admission of this evidence at trial, when it was pointed out that the record reflected the date when a substitute for a return was filed, Defendant's counsel withdrew his objection, reserving his right to cross-examine IRS agent Gardner as to credibility. [Gardner volume, Tr. p. 9.]
[8] When the jury instruction issue is properly preserved for review by objection at trial, the appellate standard of review is whether the charge, taken as a whole, fairly and adequately submits the issues and applicable law to the jury. United States v. Martin, 740 F.2d 1352, 1361 (6th Cir.1984). Moreover, the Sixth Circuit has consistently held that jury instructions should be reviewed for a contextual understanding of the entire charge such that no single provision is read in isolation. See, e.g., United States v. Horton, 847 F.2d 313, 322 (6th Cir. 1988); Engle v. Koehler, 707 F.2d 241 (6th Cir. 1983), aff'd, 466 U.S. 1, 104 S. Ct. 1673, 80 L. Ed. 2d 1 (1984); United States v. Smith, 584 F.2d 759 (6th Cir.1978), cert. denied, 441 U.S. 922, 99 S. Ct. 2030, 60 L. Ed. 2d 395 (1979).
[9] In Poschwatta, as in this case, the defendant, however, was allowed to testify as to an alleged good faith belief that he was relieved from the obligation of filing returns because Section 6020(b) states that the IRS will make out returns for individuals who fail to do so. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556362/ | 30 So. 3d 561 (2010)
Carla R. MORRISON, Appellant,
v.
William E. WEST, Jr., Appellee.
No. 4D08-1693.
District Court of Appeal of Florida, Fourth District.
February 17, 2010.
Rehearing Denied April 16, 2010.
*562 Jane Kreusler-Walsh and Barbara J. Compiani of Kreusler-Walsh, Compiani & Vargas, P.A., and A. Patricia Morales Christiansen of Casey, Ciklin, Lubitz, Martens *563 & O'Connell, West Palm Beach, for appellant.
Gerald F. Richman and John R. Whittles of Richman Greer, P.A., West Palm Beach, for appellee.
WARNER, J.
The issue presented in this case is whether an attorney not licensed to practice law in Florida, but who provided legal services in Florida in a probate and trust matter, is entitled to collect the quantum meruit value of his fee in an amount in excess of one million dollars. We hold that it violates public policy for a court to award a fee, even in quantum meruit, for the unlicensed practice of law. We reverse.
During the pendency of a divorce, appellant Carla Morrison's husband, Pedro, died of a heart attack, leaving a very substantial estate. Carla Morrison ("Morrison") was the beneficiary of a pour-over trust established by Pedro. The trust named Morrison as the income beneficiary and named her husband's brother, Carlos, as trustee and his nephew, Tommy, as the remainder beneficiary. Disputes arose between Morrison, as the income beneficiary, and Carlos, the trustee, regarding the trust.
Initially, Morrison hired Gary Woodfield of the law firm of Edwards, Angell, Palmer & Dodge to represent her on estate matters. One of the matters on which Woodfield began work in June of 2004 was a demand that the trust increase the amount of income to be paid to Morrison. Apparently, somewhat dissatisfied with Woodfield, Morrison learned about attorney William West through a friend. She contacted West, who was licensed to practice in North Carolina, but not in Florida. West agreed to investigate the case in exchange for a $10,000 fee and reserved the right to modify the fee arrangements if the scope of his engagement changed.
West specializes in complex transactions requiring substantial accounting knowledge. He has appeared pro hac vice in Florida cases involving complex commercial transactions. However, he admitted that he had no experience in Florida probate or trust law. After being contacted by Morrison, he purchased a book on trust law in Florida and spoke to its author in order to acquaint himself with Florida requirements.
On August 12, 2004, West wrote a letter to Morrison acknowledging that he would need to be admitted in Florida pro hac vice and to associate with Florida counsel. The next day he traveled to West Palm Beach to begin his investigation and stayed three days.
Morrison gave West a check for $10,000 which he considered his investigative fee. After West completed his initial investigation he faxed a letter to Morrison in which he agreed to attempt to increase the amount of income she was receiving from the trust and also to try to terminate one or more of the trusts. West acknowledged in the letter that, because he was not licensed to practice in Florida, he would need outside counsel to assist him. He also indicated that his fee would be 22.5% of all increases which Morrison would receive above the current monthly income of $50,000 that she was already receiving. In fact, Morrison was actually already receiving $85,000 monthly at that time. Morrison signed the agreement with West. As a result, West billed Morrison for the 22.5% of the $35,000 increase in her income, for a total of $31,500 through December 2004, even though the increase in income was not attributable to any work that West had performed.
In another letter to Morrison, he again noted that he was not a member of the Florida Bar and would have to secure the services of another attorney in Florida. *564 To secure representation, in September, 2004, West contacted McDonald & Crawford, lawyers he knew in Fort Lauderdale who had expertise in probate and trust matters. He drafted a motion to appear pro hac vice and sent it to this firm. A lawyer with the firm had telephone discussions with West, but West never retained the firm after McDonald sent West an e-mail wanting to firm up a fee agreement with West. No motion was submitted to the court to admit West for practice in the probate proceedings.
Thereafter West represented Morrison in Florida at pre-suit mediation on November 22, 2004.[1] The mediation resulted in a handwritten settlement agreement settling Morrison's disputes with the estate and the trust. On January 19, 2005, the day before a hearing to approve the settlement, West brought the typed version of the settlement agreement to Morrison's home to sign. Paragraph 8 of the settlement agreement states, "One million dollars paid to Carla on closing date from Trust, before Q-TIP is funded." Along with the settlement agreement, West brought another paper for her signature which obligated Morrison to write a check to West in the amount of $1,000,000. Morrison testified that when she saw that paper, things came to a screeching halt. Early the next morning she fired West. She called Woodfield, her prior lawyer, and re-hired him to represent her at the probate confirmation hearing scheduled for later that day. Woodfield asked West to attend the hearing to answer any questions about the settlement terms. West faxed him a letter indicating that he would attend because he had a $1,000,000 fee interest in the case.
At the hearing the probate judge approved the settlement and required the $1,000,000 to be placed into Woodfield's trust account. Later, this amount was disbursed to Morrison. Although the court subsequently ordered her to return the funds to the trust account, she was unable to do so.
Thereafter Morrison filed suit against West seeking a declaratory judgment that he had engaged in the unlicensed practice of law and was not entitled to fees for services. She also sought a refund of the fees she had already paid him. Morrison alleged that the Settlement Agreement was silent as to any fee or payment to West and that the $1,000,000 was to be paid to her, not West. Morrison contended that because West is not an attorney licensed in Florida, his fee agreement with Morrison was void ab initio and could not be enforced.
West filed a counterclaim seeking a declaration that he was entitled to the $1,000,000 fee and included counts for breach of contract, constructive trust, promissory estoppel, and unjust enrichment. After a trial on the merits, the court found that West engaged in the unauthorized practice of law and that his retainer agreement was void ab initio. The court found that West was not licensed to practice in Florida and had agreed to represent Morrison without associating with a Florida law firm or being admitted pro hac vice. The court accepted West's testimony that the $1,000,000 in the settlement agreement constituted West's fee. The court did not find the $1,000,000 amount to be unreasonable, because West had achieved Morrison's objectives. The court ruled that allowing Morrison to retain the fruits of West's representation without compensation would be unjust enrichment and awarded West a quantum meruit recovery of $1,000,000. From this final judgment, Morrison appeals the *565 quantum meruit award, and West crossappeals the finding that the contingency fee contract was void ab initio.
The trial court appropriately recognized that West's letter contract with Morrison was void ab initio based upon Chandris, S.A. v. Yanakakis, 668 So. 2d 180 (Fla.1995). In Chandris our supreme court held that entering into a contingent fee contract to provide legal services in Florida by an attorney not authorized to practice in this state was void ab initio unless the services provided fit into one of the exceptions permitted in Florida Bar v. Savitt, 363 So. 2d 559 (Fla.1978). Those exceptions generally require association with a Florida attorney, or involve the communication of advice related to the application of federal law to a transaction or representation in federal administrative proceedings. None of the exceptions permit an attorney not authorized to practice law in Florida to dispense advice to, or provide representation of, Florida clients with respect to Florida law and proceedings.
The supreme court explained its holding in Chandris as supporting policy concerns related to protection of the public. The prohibition on the unauthorized practice of law in Florida derives not only from the Rules of Professional Conduct, but also from statutory law. The court in Chandris noted that section 454.23, Florida Statutes (1983), provided that "[a]ny person not licensed or otherwise authorized by the Supreme Court of Florida who shall practice law ... shall be guilty of a misdemeanor of the first degree."[2] Relying on long established precedent requiring admission to the bar, the court said:
Florida has a unified bar, and all persons engaged in the practice of law here must be members of that bar. Petition of Florida State Bar Ass'n, 40 So. 2d 902 (Fla.1949). More than thirty years ago, we enunciated why we prohibit those who are not members of The Florida Bar from engaging in professional activities in Florida which are within the boundaries of the practice of law. This Court noted in State ex rel. Florida Bar v. Sperry, 140 So. 2d 587, 595 (Fla.1962), rev'd on other grounds, 373 U.S. 379, 83 S. Ct. 1322, 10 L. Ed. 2d 428 (1963), that:
The reason for prohibiting the practice of law by those who have not been examined and found qualified to practice is frequently misunderstood. It is not done to aid or protect the members of the legal profession either in creating or maintaining a monopoly or closed shop. It is done to protect the public from being advised and represented in legal matters by unqualified persons over whom the judicial department can exercise little, if any, control in the matter of infractions of the code of conduct which, in the public interest, lawyers are bound to observe.
Chandris, 668 So.2d at 184. Despite the experience and qualifications of the unlicensed lawyer in Chandris, the court held that he could not recover under a contingent fee contract.
In a footnote, the court conceded that while a member of The Florida Bar may not claim attorney's fees under a void contingent fee agreement, a Florida Bar member may still be entitled to the reasonable value of his or her services in quantum meruit. Id. at 186 n. 4. While West seeks to expand this footnote to claim entitlement to his quantum meruit fee, his interpretation is clearly wrong. While a contract *566 between a Florida Bar member and a client might be illegal, the Bar member's provision of legal services in Florida is not illegal. In contrast, the provision of legal services by a non-Florida Bar member is illegal. See § 454.23, Fla. Stat. To award fees for illegal activities is contrary to public policy. See Spence, Payne, Masington & Grossman, P.A. v. Philip M. Gerson, P.A., 483 So. 2d 775 (Fla. 3d DCA 1986).
We followed Chandris in Vista Designs, Inc. v. Silverman, 774 So. 2d 884 (Fla. 4th DCA 2001). Vista Designs retained Silverman to pursue patent infringement claims against another firm. Silverman was not licensed to practice law in Florida yet he had offices in Fort Lauderdale and New Jersey. The case proceeded to litigation in federal court in Florida, and Silverman presented a litigation budget, indicating that he would be associating a Florida attorney. Ultimately, Vista Designs refused to pay Silverman who sued for his fees. Vista counterclaimed for disgorgement of fees previously paid to Silverman. Based upon Chandris, our court held that the oral contract of representation between Silverman and Vista Designs was void ab initio, because Silverman was not a member of The Florida Bar and had engaged in the unauthorized practice of law. We ordered the disgorgement of fees previously paid to Silverman, as Silverman's unauthorized practice of law would have constituted a criminal offense, and public policy should not allow him to benefit from his own wrongdoing. We also specifically rejected his claim that he should be entitled to the quantum meruit value of his services.
Vista Designs requires a reversal of the quantum meruit fee in this case. Although West attempts to distinguish Vista Designs from this case, we find his attempt inadequate. The client in Vista Designs testified that he did not know that Silverman was not admitted to practice in Florida, even though Silverman testified that he did tell the client. Nevertheless, the fact that a client knows the attorney he employs is not admitted in Florida should not permit an unlicensed attorney from recovering for illegal activity. Allowing an attorney to recover fees for the unauthorized practice of law is a violation of public policy, irrespective of the private interests and understandings of the parties. The judicial power of this state should not be used to effectuate a violation of public policy.
West argues that his activity was not illegal based upon the rules regulating The Florida Bar. When he entered into his contract for representation in August of 2004, Rule Regulating The Florida Bar 4-5.5 provided that "[a] lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction." West makes the curious argument that because there was no regulation of his activities because he was not a licensed lawyer in Florida, he did not violate the regulation of the legal profession. This argument is specious. Rule 10-2.1(c) of the rules in effect at the time West was representing Morrison provided that a "nonlawyer or nonattorney is an individual who is not a member of The Florida Bar." A nonlawyer is not authorized to practice law in Florida. See Fla. Bar v. Rapoport, 845 So. 2d 874 (Fla.2003) (rejecting an argument that an attorney not licensed in Florida could represent clients in securities arbitration matters, concluding that rule 10-2.1(c) prohibited nonlawyers from practicing in Florida). Section 454.23, Florida Statutes, prohibits the unauthorized practice of law, and West violated that provision.
The supreme court amended Rule 4-5.5 in May, 2005, to permit multi-jurisdictional practice, and West suggests *567 that his conduct was legal under the amended rule, which he suggests may be applied retroactively to authorize his conduct. We disagree that the rule can be applied retroactively. More fundamentally, West's activity did not comply with the amended rule.
The amended rule permits a lawyer admitted in another state to provide legal services on a temporary basis in Florida if the services are undertaken in association with a lawyer admitted to practice in Florida or if the lawyer or a person the lawyer is assisting is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized.[3] West argues that he anticipated securing a Florida attorney but simply did not do so before the matter settled in mediation. Although in September 2004 West drafted a motion for appearance pro hac vice and forwarded it, and a proposed order for admission, to McDonald & Crawford, that Fort Lauderdale firm was never actually retained by Morrison. After an e-mail from the firm to West discussing its fee, the Florida firm did not have further conversations with West until well after the mediation. In fact, West did not even seek pro hac vice admission to present the settlement agreement to the probate court for approval.[4] This can hardly be deemed a technical error when he was admitted pro hac vice in another case involving Morrison and the trust right before he was terminated by Morrison. He knew that such admission was necessary. We can only assume that he chose to ignore that essential requirement to avoid the payment of a fee to McDonald & Crawford. Regardless, he did not comply with Rule 4-5.5, and his representation of Morrison was unauthorized.
As Chandris noted, "[t]he reason for prohibiting the practice of law by those who have not been examined and found qualified to practice ... is done to protect the public from being advised and represented in legal matters by unqualified persons over whom the judicial department can exercise little, if any, control...." 668 *568 So.2d at 184. West engaged in the unauthorized practice of law in Florida. He did not comply with the rules which would permit him to practice in association with the services of a Florida lawyer. The court erred in awarding West a quantum meruit fee for his illegal activities in this state. See Vista Designs, 774 So.2d at 888; Spence, Payne, Masington & Grossman, P.A., 483 So.2d at 778.
We reverse the final judgment, and based upon Vista Designs, we also order the disgorgement of the fees paid by Morrison to West.
Reversed.
LEVINE, J., and McCANN, JAMES W., Associate Judge, concur.
NOTES
[1] At mediation Carlos Morrison, the trustee, was represented by James Pressley, Jr.; Tommy Morrison, the nephew, was represented by Edward Downey.
[2] The legislature has since amended the statute to make such conduct a felony. See § 454.23, Fla. Stat. (2004).
[3] Rule 4-5.5, Rules Regulating The Florida Bar (2005), provides in relevant part:
Unlicensed Practice of Law; Multijurisdictional Practice of Law
* * *
(c) Authorized Temporary Practice by Lawyer Admitted in Another United States Jurisdiction. A lawyer admitted and authorized to practice law in another United States jurisdiction... may provide legal services on temporary basis in Florida that:
(1) are undertaken in association with a lawyer who is admitted to practice in Florida and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential ... mediation ... in this or another jurisdiction and the services are not services for which the forum requires pro hac vice admission:
(A) if the services are performed for a client who resides in or has an office in the lawyer's home state, or
(B) where the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice; or
(4) are not within subdivisions (c)(2) or (c)(3), and
(A) are performed for a client who resides in or has an office in the jurisdiction in which the lawyer is authorized to practice, or
(B) arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.
[4] West presented Morrison with the written settlement agreement only the day before the court hearing to approve it. He had not contacted any law firm to appear with him at that hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556366/ | 30 So. 3d 437 (2009)
K.W.N.
v.
H.G.T.
K.W.N.
v.
S.A.M.
2071162 and 2071163.
Court of Civil Appeals of Alabama.
June 26, 2009.
Opinion Overruling Rehearing in No. 2071163 August 28, 2009.
Certiorari Denied in No. 2071162 September 11, 2009 Alabama Supreme Court 1081330.
*439 Daniel L. Forman, Decatur, for appellant.
Laura S. Chain of White Arnold & Dowd P.C., Birmingham, for appellees.
MOORE, Judge.
In case no. 2071162, K.W.N. ("the mother") appeals from a judgment entered by the Cullman Juvenile Court awarding custody of her minor child, C.T., to H.G.T., the father of C.T. We affirm.
In case no. 2071163, the mother appeals from a judgment entered by the Cullman Juvenile Court awarding custody of another one of her minor children, K.M., to S.A.M., the father of K.M. We dismiss the appeal as being from a void judgment.
Facts and Procedural History[1]
On February 21, 2000, the mother and H.G.T., who were not married to one another, had a child, C.T. C.T. was the mother's second child.[2] On January 31, 2001, the Cullman Juvenile Court adjudicated H.G.T. to be the father of C.T. H.G.T. was awarded visitation and ordered to pay child support. On May 20, 2002, the mother filed a motion requesting that the juvenile court order H.G.T.'s visitation to be supervised and/or terminated, and, on May 24, 2002, the juvenile court entered an order requiring that, pending further order, H.G.T.'s visitation be supervised. On September 13, 2002, H.G.T. filed a motion to rescind the supervised-visitation order; the court denied that motion on October 1, 2002.
On July 8, 2003, the mother gave birth to a third child, K.M. On April 6, 2005, the Shelby Circuit Court adjudicated S.A.M. to be the father of K.M. The mother was awarded primary physical custody of K.M., and S.A.M. was awarded visitation and ordered to pay child support.[3]
According to H.G.T., in August 2005, he asked the mother and K.D.S., the maternal grandmother of M.E. (the mother's first child, see note 2, supra), C.T., and K.M. ("the grandmother"), to take C.T. to the dentist and the mother and the grandmother told him that they would take him in April. In the beginning of 2006, according to H.G.T., the mother began denying him visitation with C.T. On March 22, 2006, H.G.T. filed in the Shelby Juvenile Court a petition seeking a rule nisi and the removal of his visitation restrictions. H.G.T. subsequently modified that petition, requesting that he be awarded custody of C.T. and that the mother be ordered to pay child support. The Shelby Juvenile Court subsequently transferred those proceedings to the Cullman Juvenile Court; those proceedings were assigned case nos. CS-00-56.01, CS-00-56.02, and CS-00-56.03.
Also in March 2006, the mother met W.N.; she married him in April 2006. Shortly thereafter, W.N. and the mother made plans to move to Colorado. On June 15, 2006, the grandmother filed petitions in the Cullman Juvenile Court alleging that M.E., C.T., and K.M. were dependent and *440 requesting that the court award her emergency custody of the children. That same day, the juvenile court awarded the grandmother pendente lite custody of the children. The mother testified that the grandmother had told her that if she would move back to Alabama, she would dismiss her dependency petitions.
On March 8, 2007, S.A.M. filed a petition in the Shelby Circuit Court requesting custody of K.M. He also requested that his petition be transferred to the Cullman Juvenile Court. The Shelby Circuit Court transferred the case to the Cullman Juvenile Court on July 13, 2007; the case was assigned case no. CS-07-138. On August 29, 2007, S.A.M. filed a dependency petition in the Cullman Juvenile Court seeking custody of K.M.; that case was assigned case no. JU-07-299.02. The next day, the grandmother filed another dependency petition in the Cullman Juvenile Court (hereinafter referred to as "the juvenile court") seeking custody of K.M.; that petition was assigned case number JU-06-299.03.[4] All four of the grandmother's dependency petitions were dismissed; however, H.G.T., K.M., and J.E. (the mother's former husband and M.E.'s father, see note 2, supra) requested that the dismissals be set aside for the limited purpose of allowing them to seek sanctions against the grandmother in those cases. The record does not indicate whether the dismissals were ever set aside.
In November 2007, the mother gave birth to her fourth child, whose father is W.N. After a hearing, at which the mother and the grandmother failed to appear, the juvenile court entered orders on November 16, 2007, awarding custody of C.T. to H.G.T. and awarding custody of K.M. to S.A.M.; the orders authorized law enforcement to assist H.G.T. and S.A.M. in effectuating the orders.[5] Thereafter, H.G.T. and S.A.M., along with J.E., traveled with law enforcement to Nebraska to pick up the children. H.G.T. and S.A.M. telephoned the mother and informed her that they had been awarded custody of C.T. and K.M., respectively. Ultimately, the fathers met the mother at a park. It is undisputed that the mother and W.N. arrived with Nebraska police officers and a cameraman from a local television station. H.G.T. testified that W.N. was also videotaping the events. The fathers were not allowed to take the children or to visit with them. In December 2007, H.G.T. and S.A.M., along with J.E., again went to Nebraska to retrieve their respective children. J.E. testified that, when they arrived at the mother's house, the grandmother was there with three pick-up trucks, a U-Haul truck, and packed boxes.
On December 26, 2007, the mother filed a notice of appeal from the November 16, 2007, orders; this court dismissed the appeal as being from nonfinal judgments. On February 19, 2008, the juvenile court, upon the mother's motion, vacated the November 16, 2007, orders. The juvenile court held final hearings on H.G.T.'s and S.A.M.'s petitions to modify custody on March 12, March 13, and June 10, 2008.
At trial, H.G.T. testified that most of C.T.'s teeth are decayed and that, after he obtained custody of C.T., he took C.T. to the dentist to have his dental issues addressed. H.G.T. further testified that, at the time he obtained custody of C.T., C.T. *441 was not potty-trained and that, while in the mother's custody, C.T. had had to go to the emergency room due to impaction of his bowels. S.A.M. testified that, during the time that he and the mother were in a relationship, he had tried to help potty-train C.T. but that the mother had not wanted anything to do with the discipline of C.T. H.G.T. testified at the final day of the trial that, since C.T. had been in his custody, he had been completely potty-trained. H.G.T. testified that the mother and the grandmother had allowed C.T. to race a motorcycle and that he had wrecked and cut his leg. The mother and the grandmother testified that the motorcycle H.G.T. referred to was actually a "pit bike" and that it was "governed down."
The mother admitted that, in the 8 years of C.T.'s life, she had moved approximately 8 times and had had approximately 11 different jobs. The mother testified at trial that she was not presently employed, that her grandfather was supporting her financially, and that she was living in Huntsville in a four-bedroom house.
H.G.T. testified that the mother had denied him visitation with C.T. multiple times. He testified that the mother had told him that he did not have any parental rights unless she said he did. The mother testified that the grandmother had tried to control the mother's children's visitation with their fathers. S.A.M. testified that the mother had told him that, because the grandmother paid for the mother's cars and house, the mother could not control the grandmother. H.G.T. testified that on most of his visits with C.T. he had picked up C.T. from, and returned him to, the grandmother. The mother testified that the children had lived with the grandmother during the week each summer. H.G.T. testified that he had not known about that arrangement. The grandmother testified that a sex offender had lived on her property in the past but that, at the time of the trial, he was living across the road from her property. The grandmother testified that the sex offender comes over to her house and that children may see the sex offender but that they have no physical contact with him. The mother testified that she would not let the grandmother control her anymore; however, the mother testified that she had exercised visitation at the grandmother's house between the March and June 2008 hearings.
The mother admitted that she and W.N. had been involved in incidents of domestic violence. The mother's oldest child, M.E., testified that she had been present during one of those incidents. The mother testified at trial that she and W.N. were physically separated but that they were not legally separated. The mother also admitted that she had allowed the children's insurance to lapse at times.
H.G.T. testified at trial that he had lived in his mother's house in Vestavia for the past 10 years. He testified that his mother, who had been a missionary in Bolivia, was moving back to her house in Vestavia the weekend after the March hearing and that, because of that, he had purchased a 2,020-square-foot, 4-bedroom, 3-bath, new house in Vestavia. He testified that the house is 1/4 of a mile from the school that C.T. would attend. H.G.T. testified that the Vestavia school district is the 13th best school district in Alabama. H.G.T. testified that he has a daughter, who is younger than C.T. and lives with her mother, and that she and C.T. love each other.
H.G.T. testified that he had been consistently employed in the banking industry for the past 13 years and that his annual gross income is $80,150. H.G.T. testified that he can provide stability for C.T. He testified that he makes C.T. eat right, brush his teeth, do chores, and do his homework, and that he does not allow C.T. to drink sodas. H.G.T. testified that C.T. *442 makes good grades. H.G.T. also testified that, since C.T. had been in his custody, he, J.E., and S.A.M. had worked together to allow C.T., K.M., and M.E. to see each other. He testified that J.E. and M.E. had spent the night at his home. J.E. testified that H.G.T.'s house is very clean. H.G.T. further testified that, since C.T. had been in his custody, he had allowed the mother to have more visitation than had been required by the temporary order.
The mother testified that H.G.T. had come to only one of C.T.'s baseball games and that he had not visited with C.T. consistently until C.T. was about one and a half years old. She also testified that H.G.T. had made false allegations to the Department of Human Resources concerning her treatment of C.T.
After the trial, the juvenile court entered a judgment in case nos. CS-00-56.01, CS-00-56.02, and CS-00-56.03 finding that a material change in circumstances had occurred and awarding primary custody of C.T. to H.G.T.; in CS-07-138, the juvenile court entered a judgment finding that a material change in circumstances had occurred, awarding custody of K.M. to S.A.M., and denying all further relief requested. The mother filed a timely postjudgment motion in each case; those motions were denied. The mother timely filed her notices of appeal with this court.
Discussion
I. Case No. 2071163
Although neither party challenges the jurisdiction of the juvenile court to determine custody regarding K.M., "[j]urisdictional matters are of such importance that a court may take notice of them ex mero motu." McMurphy v. East Bay Clothiers, 892 So. 2d 395, 397 (Ala.Civ.App. 2004).
"Juvenile courts are purely creatures of statute and have extremely limited jurisdiction." T.B. v. T.H., [Ms. 2071009, April 17, 2009] 30 So. 3d 429, 431 (Ala.Civ. App.2009). "A juvenile court has jurisdiction in proceedings involving a child who is alleged to be dependent, § 12-15-30(a), Ala.Code 1975, and in custody proceedings when the child is `otherwise before the court.' § 12-15-30(b)(1), Ala.Code 1975." K.S. v. H.S., 18 So. 3d 417, 418 (Ala.Civ. App.2009). Although dependency petitions with "JU" case designations had been filed concerning K.M., the juvenile court did not modify custody of K.M. in the context of those proceedings; instead, it modified custody of K.M. in the context of a custody-modification proceeding in case no. CS-07-138. See, e.g., T.B., ___ So.3d at ___. The juvenile court's order indicated that it found a material change in circumstances, language consistent with the standard to be applied to a regular custody-modification case, not a dependency case.
Furthermore, K.M. was not "otherwise before the court," because the judgment adjudicating K.M.'s paternity and making the initial custody determination as to K.M. was not entered by a juvenile court.[6] Having found no basis for the juvenile court to exercise jurisdiction over S.A.M.'s custody-modification petition, we must conclude that the juvenile court's judgment awarding primary physical custody of K.M. to S.A.M. is void. "`[A] judgment entered without subject-matter jurisdiction is void, . . . and . . . a void judgment will not support an appeal.'" T.B., 30 So.3d at 433 (quoting K.R. v. D.H., 988 So. 2d 1050, 1052 (Ala.Civ.App.2008)). Thus, we must dismiss the appeal. T.B., 30 So.3d at 433.
*443 II. Case No. 2071162
In case no. 2071162, the mother first challenges the June 15, 2006, order awarding temporary custody of C.T. to the grandmother. We note, however, that that order was not a final order and that the juvenile court ultimately awarded custody of C.T. to H.G.T. pursuant to the custody-modification proceeding instituted by H.G.T. Accordingly, the propriety of the temporary-custody order is moot. See, e.g., L.R.M. v. D.M., 962 So. 2d 864, 872 n. 7 (Ala.Civ.App.2007).
The mother next challenges the juvenile court's judgment awarding custody to H.G.T. Before addressing the merits of the mother's argument, we address whether the juvenile court had jurisdiction to modify custody of C.T. In W.B.G.M. v. P.S.T., 999 So. 2d 971 (Ala.Civ.App.2008), this court stated:
"When a juvenile court has jurisdiction to make an initial child-custody determination, it retains jurisdiction over a petition to modify that custody judgment to the exclusion of any other state court until the child reaches 21 years of age or the juvenile court terminates its jurisdiction. See Ala.Code 1975, § 12-15-32. Moreover, once a juvenile court enters a custody judgment in a paternity action under the Alabama Uniform Parentage Act, that court `retain[s] jurisdiction of the cause for the purpose of entering such other and further orders as changing circumstances of the parties may in justice and equity require.' Ala.Code 1975, § 26-17-10(e); see generally State ex rel. B.G. v. J.F.P., 721 So. 2d 213, 217-18 (Ala.Civ.App.1998). . . .
"In the present case, § 12-15-31(2), Ala.Code 1975, conferred exclusive jurisdiction on the juvenile court to decide the issue of paternity. Once the children were before the court on the paternity issue, § 12-15-30(b)(2) gave the juvenile court exclusive original jurisdiction to decide the issue of who should be awarded custody of the children, and the juvenile court exercised that jurisdiction by awarding custody of the children to the mother. Based on § 12-15-32 and § 26-17-10(e), the juvenile court retained jurisdiction to consider any petition to modify its custody judgment unless it terminated that jurisdiction by its own order. Because there is no evidence indicating that the juvenile court terminated its jurisdiction, it is the only court in this state with jurisdiction to modify its custody judgment."
999 So.2d at 974-75.
Similarly, in the present case, the juvenile court had previously exercised its exclusive jurisdiction to decide the issue of C.T.'s paternity. Once C.T. was before the court on that issue, § 12-15-30(b)(2) gave the juvenile court exclusive original jurisdiction to decide the issue of C.T.'s custody, and the juvenile court exercised that jurisdiction by awarding the mother custody of C.T. Pursuant to § 12-15-32 and § 26-17-10(e), the juvenile court retained jurisdiction to consider H.G.T.'s petition to modify its custody judgment unless it terminated that jurisdiction by its own order. There is nothing in the record indicating that the juvenile court terminated its jurisdiction; thus, the juvenile court had jurisdiction to modify its initial custody judgment.
Having determined that the juvenile court had jurisdiction to modify the custody of C.T., we now address the merits of the mother's challenge to the juvenile court's custody-modification judgment. First, the mother argues that the juvenile court exceeded its discretion in determining that H.G.T. had met the standard set out in Ex parte McLendon, 455 So. 2d 863 (Ala.1984).
"A parent seeking to modify a custody judgment awarding primary physical *444 custody to the other parent must meet the standard for modification of custody set forth in Ex parte McLendon[, 455 So. 2d 863 (Ala.1984)]. Under that standard, the parent seeking to modify custody of a child must demonstrate that there has been a material change in circumstances, that the proposed change in custody will materially promote the child's best interests, and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, supra."
Adams v. Adams, 21 So. 3d 1247, 1252 (Ala.Civ.App.2009).
In the present case, the evidence indicated, among other things, that, since the initial determination of custody, the mother had lived a highly unstable lifestyle, had denied H.G.T. visitation with C.T., had neglected C.T.'s dental health, and had failed to potty-train C.T. Also, H.G.T. testified that the mother had allowed C.T. to race a motorcycle and that C.T. had been injured as a result. The evidence also indicated that there had been incidents of domestic violence between the mother and her current husband, including one incident that had occurred in M.E.'s presence. Further, the mother had allowed the grandmother to exert control over her and the children, to the detriment of H.G.T.'s ability to exercise visitation with C.T. Based on the foregoing, we conclude that there is sufficient evidence from which the trial court could have determined that there had been a material change in circumstances since the initial custody order.
We next address whether "the proposed change in custody will materially promote the child's best interests, and [whether] the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child." Adams, 21 So.3d at 1252. H.G.T. testified that he had lived in the same home for the past 10 years and that he had been consistently employed in the banking industry. He had recently purchased a house with sufficient room for C.T. to live with him. H.G.T. testified that he had provided stability for C.T., ensuring that C.T.'s dental needs were met and having potty-trained C.T. by the final day of the trial. Further, H.G.T. testified that his new home was in a good school district, that he ensured that C.T. did his homework, and that C.T. had been making good grades. Finally, H.G.T. testified that he had allowed the mother more visitation than was required under the temporary order and that he had been able to work with the fathers of C.T.'s half-siblings so that the siblings could see one another. Based on the foregoing, we conclude that the change in custody would materially promote C.T.'s best interest. Furthermore, especially considering that the mother had moved eight times since C.T. was born, we conclude that "the benefits of the change will more than offset the inherently disruptive effect caused by uprooting [C.T.]." Adams, 21 So.3d at 1252.
The mother also briefly argues that there was evidence indicating that H.G.T. had committed domestic violence. We note, however, that the record reveals no such "evidence." Further, the record contains substantial evidence indicating that the mother and her current husband have a relationship filled with domestic violence. Accordingly, we find the mother's argument on the domestic-violence issue unpersuasive.
Conclusion
Based on the foregoing, we affirm the judgment in case no. 2071162. We dismiss the appeal in case no. 2071163 as being from a void judgment, albeit with instructions to the juvenile court to set aside its void judgment. See T.B., supra.
*445 2071162 AFFIRMED.
2071163 APPEAL DISMISSED WITH INSTRUCTIONS.
THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.
THOMAS, J., recuses herself.
On Application for Rehearing
MOORE, Judge.
On application for rehearing, S.A.M. argues that the Cullman Juvenile Court had jurisdiction to hear the custody-modification action because, he says, (1) the Shelby Circuit Court conferred jurisdiction on the Cullman Juvenile Court by transferring the action and ordering that it be consolidated with a pending dependency action and (2) the Alabama Supreme Court conferred jurisdiction on the Cullman Juvenile Court by appointing a judge to hear the custody-modification action along with the dependency action. We find both of those arguments unpersuasive.
With regard to S.A.M.'s first argument, we note that this court has determined that a circuit court's transferring a custody-modification action to a juvenile court does not confer subject-matter jurisdiction on the juvenile court. C.D.S. v. K.S.S., 963 So. 2d 125, 130 n. 5 (Ala.Civ. App.2007). With regard to the second argument, we note that the custody-modification action had already been transferred to the Cullman Juvenile Court when all the juvenile-court judges of Cullman County recused themselves and the Alabama Supreme Court appointed a judge to hear the case. That appointment did not confer subject-matter jurisdiction on the juvenile court. Instead, according to the express language of the supreme court's order, it only conferred the "full authority of a regular circuit judge of Cullman County."
S.A.M. also makes an argument with regard to the merits of the appeal. Because we conclude that we correctly dismissed the appeal, we have no need to address that argument.
Based on the foregoing, we overrule S.A.M.'s application for rehearing.
APPLICATION OVERRULED.
THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.
THOMAS, J., recuses herself.
NOTES
[1] Because we are dismissing the appeal concerning the determination of custody of K.M., we focus on the facts as they relate to the determination of custody of C.T.
[2] The mother's first child, M.E., was born to the mother and her former husband, J.E., on July 10, 1995. The mother had custody of M.E. pursuant to a judgment divorcing her and J.E. M.E.'s custody is not the subject of this appeal.
[3] The judgment adjudicating K.M.'s paternity and making the initial custody determination as to K.M. was entered by the Shelby Circuit Court. Although we recognize that "§ 12-15-31(2), Ala.Code 1975, confers exclusive jurisdiction on the juvenile court to decide the issue of paternity," W.B.G.M. v. P.S.T., 999 So. 2d 971, 975 (Ala.Civ.App.2008), that judgment is not at issue in this appeal. Thus, we make no determination on the validity of that judgment.
[4] Because the juvenile court awarded custody of K.M. in the context of case no. CS-07-138, and not the dependency proceedings, the record does not indicate the ultimate disposition of the dependency proceedings. There is nothing in the record to indicate that the dependency proceedings regarding K.M. were consolidated with the "CS" custody-modification case regarding K.M.
[5] The juvenile court also entered an order awarding custody of M.E. to J.E.
[6] See note 3, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556340/ | 798 F. Supp. 451 (1992)
UNITED STATES of America, Plaintiff,
v.
David James QUIGLEY and Michael Kelly Holdridge, Defendants.
File No. 1:91:CR:146.
United States District Court, W.D. Michigan.
June 14, 1992.
*452 Donald Daniels, Asst. U.S. Atty., and John A. Smietanka, U.S. Atty., Grand Rapids, Mich., for plaintiff.
Robert F. Mirque, Mirque, Seys & Zoet, Grand Rapids, Mich., for defendant Holdridge.
Timothy I. Miner, Grand Rapids, Mich., for defendant Quigley.
OPINION
ENSLEN, District Judge.
Defendants, David James Quigley and Michael Holdridge, have filed renewed motions for judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. Defendants seek the dismissal of their convictions on Count Five of the indictment (using and carrying a destructive device during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)) on the grounds that sentencing on Count Five will result in multiple punishment for the same offense without explicit congressional authorization for such punishment, thereby violating the Double Jeopardy Clause.
*453 BACKGROUND
Defendants were charged in a ten count indictment.[1] Count One charged defendants with conspiracy to make, possess, and detonate unregistered destructive devices (pipe bombs) in violation of 18 U.S.C. § 371. Counts Two, Six and Eight charged defendants with the making of a firearm without obtaining approval and identifying themselves and the firearm via a written application, as required by 26 U.S.C. § 5822. Counts Three, Seven, Nine and Ten charged defendants with possession of an unregistered destructive device in violation of 26 U.S.C. § 5861(d) and 18 U.S.C. § 2.
Count Four of the indictment, which is the subject of defendants' Rule 29 motions, charged defendants with maliciously damaging and destroying, by means of an explosive device, a vehicle used in activity affecting interstate commerce, in violation of 18 U.S.C. § 844(i). Specifically, Count Four alleged that defendants placed and detonated a pipe bomb under a 1977 Ford station wagon that was used by a business to transport mail to and from the United States Post Office. Title 18 United States Code section 844(i) provides in pertinent part as follows:
Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not more than ten years or fined not more than $10,000, or both.
Count Five of the indictment, which is also at issue here, charged defendants with the use of a destructive device during and in relation to the crime charged in Count Four. The government alleged that this is a violation of 18 U.S.C. § 924(c)(1), which provides in pertinent part as follows:
Whoever, during and in relation to any crime of violence ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provide for such crime of violence ... be sentenced to imprisonment for five years, ... and if the firearm is ... a destructive device ... to imprisonment for thirty years.... nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence ... in which the firearm was used or carried.
As is evident from the respective statutes, section 844(i), as applied to Count Four, allows for a maximum sentence of 10 years; section 924(c) requires a minimum of 30 years incarceration without the possibility of parole, to run consecutively to the sentence that would be imposed under section 844(i).
Defendants were convicted by a jury of all counts charged against them. Prior to trial, and at the close of evidence, defendants moved to dismiss Count Five of the indictment by arguing that enhancing the sentence imposed for a violation of section 844(i) by resort to section 924(c) is unfair or unconstitutional. Specifically, defendants argued that this amounts to multiple punishments for the same offense in violation of the fifth amendment guarantee against double jeopardy. I denied defendants motions, but granted them leave to renew their arguments by filing post-judgment motions. See Opinion and Order of the Court, dated April 9, 1992, and Transcript of Bench Opinion, dated April 17, 1992.
DISCUSSION
The Double Jeopardy Clause protects a defendant from "multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969). Such protection often is invoked when a defendant is punished for the same conduct under two different statutory provisions. In such a case, "the first step in the double jeopardy analysis is to determine whether the legislature ... intended that each violation *454 be a separate offense." Garrett v. United States, 471 U.S. 773, 778, 105 S. Ct. 2407, 2411, 85 L. Ed. 2d 764 (1985), reh. denied, 473 U.S. 927, 106 S. Ct. 20, 87 L. Ed. 2d 698 (1985). The analysis begins here because, as I have noted in my previous opinions on this matter, if the legislature, as expressed in the language of the statute or its legislative history, clearly intended cumulative punishment under two different statutory provisions, then the imposition of multiple punishment does not violate the Double Jeopardy Clause and the Court's inquiry is at an end. Missouri v. Hunter, 459 U.S. 359, 368-369, 103 S. Ct. 673, 679-680, 74 L. Ed. 2d 535 (1983). This is because, when dealing with multiple punishment protection, as opposed to multiple prosecution protection, "`the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.'" Grady v. Corbin, 495 U.S. 508, 516-17, 110 S. Ct. 2084, 2091, 109 L. Ed. 2d 548 (1990) (quoting Missouri, 459 U.S. at 366, 103 S.Ct. at 678).
If the legislative intent is unclear, however, the rule from Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), must be applied. Hunter, 459 U.S. at 368, 103 S.Ct. at 679. Then, "[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.
In my prior rulings on defendants' double jeopardy challenge, I determined that I need not apply the Blockburger test because I believed that Congress had expressly authorized multiple punishments under section 924(c). However, I noted that the cases that I relied on did not involve the same underlying offense that I am confronted with in this case.
For example, where the underlying offense was a drug trafficking crime, the Seventh Circuit, in United States v. Powell, 894 F.2d 895, 900-901 (7th Cir.), cert. denied, 495 U.S. 939, 110 S. Ct. 2189, 109 L. Ed. 2d 517 (1990), held that since "Congress intended to authorize cumulative punishment" for the underlying offense and the use of a firearm in its commission under 18 U.S.C. § 924(c), the fact of being charged with and convicted of both the underlying offense and the section 924(c) violation in separate counts "does not violate double jeopardy." Similarly, the Tenth Circuit found that Congress clearly intended the bank robbery statute, 18 U.S.C. § 2113, as one of the federal crimes of violence to which section 924 applies. United States v. Lanzi, 933 F.2d 824 (10th Cir.1991).
The Ninth Circuit has declared that:
When Congress amended section 924(c) in 1984, it expressly intended to authorize an additional, cumulative, sentence for persons who also violate section 2113. See S.Rep. No. 225, 98th Cong., 1st Sess. 312-13 (1984), reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3490-91; see also [United States v.] Blocker, 802 F.2d [1102] at 1105 [(9th Cir.1986)]; [United States v.] Gonzalez, 800 F.2d [895] at 898 [(9th Cir.1986)].
United States v. Browne, 829 F.2d 760, 767 (9th Cir.1987), cert. denied, 485 U.S. 991, 108 S. Ct. 1298, 99 L. Ed. 2d 508 (1988). See also United States v. Springfield, 829 F.2d 860, 865 (9th Cir.1987). Similarly, in United States v. Shavers, 820 F.2d 1375, 1377-1378 (4th Cir.1987), aff'd after remand, 842 F.2d 1293 (4th Cir.1988), the court stated:
... Congress amended § 924(c) to expressly provide that it applied to felonious crimes of violence including those which imposed enhanced punishment if committed by the use of a deadly weapon. The amendment makes the punishment imposed by § 924(c) for use of a dangerous weapon additional to the punishment imposed for the crime of violence committed by the use of a deadly weapon. In short, in the context of Shavers' case, Congress intended the imposition of cumulative punishment for violation of armed bank robbery, § 2113(d), *455 and use of a dangerous weapon, § 924(c).... Cumulative punishments prescribed by Congress are constitutional. See Whalen v. United States, 445 U.S. 684, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1984). The district court did not err by imposing consecutive sentences for violation of § 2113(d) and § 924(c).
A number of other Circuit Courts of Appeal have similarly rejected the double jeopardy argument against sentencing under section 924 when applied in connection with crimes of violence. See United States v. Harris, 832 F.2d 88, 91 (7th Cir.1987); United States v. York, 830 F.2d 885 (8th Cir.1987), cert. denied, 484 U.S. 1074, 108 S. Ct. 1047, 98 L. Ed. 2d 1010 (1988); and United States v. Springfield, 829 F.2d at 865.
Despite the foregoing authority, none of the cases treat the same underlying offense that I now encounter in this case, i.e., destroying by means of an explosive device a vehicle used in activity affecting interstate commerce, in violation of 18 U.S.C. § 844(i). Rather, the cases cited herein held that Congress intended to authorize cumulative punishment under section 924(c) where the underlying offense was a drug trafficking crime or armed bank robbery. Therefore, I directed the parties to research the legislative history of section 924(c) and brief this Court on the question whether Congress clearly intended cumulative punishment with respect to all crimes of violence, and, more specifically, whether Congress intended that violations of section 844(i) and 924(c) would be treated as separate offenses, thereby allowing for cumulative punishment under section 924(c).
The parties have been unable to provide the Court with any case law specifically treating this issue. However, the parties have addressed the legislative history of section 924(c), and, upon further consideration, I believe that both the language of the statute and its legislative history express Congress' intent to authorize multiple punishment under section 924(c) for any federal crime of violence involving a dangerous weapon.
The legislative history for the 1984 amendment to 18 U.S.C. § 924(c) is contained in Senate Report No. 98-225 (1983), reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3490-91, which states in pertinent part as follows:
The Committee has concluded that subsection 924(c) should be completely revised to ensure that all persons who commit Federal crimes of violence, including those crimes set forth in statutes which already provide for enhanced sentences for their commission with a dangerous weapon, receive a mandatory sentence, without the possibility of the sentence being made to run concurrently with that for the underlying offense or for any other crime and without the possibility of a probationary sentence or parole.
Id., U.S.Code Cong. & Admin.News at 3491 (footnote omitted) (emphasis added).
Although the legislative history specifically refers to certain crimes that section 924(c) shall apply to, see id. at 3491 n. 8, and although section 844(i) is not included among those crimes or otherwise specifically discussed in the legislative history, the Senate Report does declare that the amended section 924(c) "provides for a mandatory, determinate sentence for a person who uses or carries a firearm during and in relation to any Federal `crime of violence'. ..." Id. at 3491 (emphasis added). The term "crime of violence" "includes any offenses in which the use of physical force is an element and any felony which carries a substantial risk of force." Id. at 3491 n. 9. "Thus, the section expands the scope of predicate offenses, as compared with current law, by including some violent misdemeanors, but restricts it by excluding nonviolent felonies." Id.
These statements in the Senate Report persuade me that the legislature intended cumulative punishment under section 924(c) for any crime of violence committed with a firearm.[2] This comports with the plain language *456 of the statute itself, which provides in pertinent part as follows:
Whoever, during and in relation to any crime of violence ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ... be sentence to imprisonment for five years, ... and if the firearm is ... a destructive device ... to imprisonment for thirty years.... Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence ... in which the firearm was used or carried.
18 U.S.C. § 924(c)(1) (emphasis added).
The fact that Congress chose not to enumerate all of the predicate felonies to which section 924(c) applies, does not obscure its intent. In addition, it does not matter that "Congress could have achieved the same result by amending each statute that punishes a crime of violence when a dangerous weapon is used to provide for an increased penalty. Its amendment of § 924(c), instead of all the predicate felony statutes, does not violate the double jeopardy clause." Shavers, 820 F.2d at 1377-1378.
Defendants primary argument in their latest and respective Rule 29 motions is that sections 844(i) and 924(c) were never intended by Congress to be used together, as 924(c) was part of the Gun Control Act of 1968, whereas 844(i) was part of the Organized Crime Control Act of 1970. Citing the legislative history of section 924(c), defendants contend that Congress was solely concerned with the use of guns in 1968, and therefore did not contemplate the use of the Gun Control Act in conjunction with explosives, which were not addressed by Congress until 1970.
In 1970, subsection 844(i) was enacted, along with section 844(h), which provides in part that whoever "uses an explosive to commit any felony which may be prosecuted in a court of the United States ... shall be sentenced to a term of imprisonment for not less than one year nor more than ten years." Subsection (h) is analogous to section 924(c), argue defendants, and is the more appropriate statute under which to charge defendants for use of an explosive while committing a felony. Subsection 844(h) contains its own enhancement provisions, and subsection 844(i) addresses the more specific situation involving the destruction of property affecting interstate commerce. To apply section 924(c) as a means of enhancing the section 844(i) offense, argue defendants, is to apply an enhancement to a statute that already contains enhancement provisions.
Defendants argument has some appeal, as the House Report to the Organized Crime Control Act of 1970 states that "[s]ection 844(h) carries over to the explosives area the stringent provisions of the Gun Control Act of 1968 relating to the use of firearms and the unlawful carrying of firearms to commit, or during the commission of a Federal felony." House Report No. 91-1549 (1970), reprinted in 1970 U.S.Code Cong. & Admin.News 4007, 4046. This statement indicates that Congress intended to treat the two types of weapons under separate statutory provisions and did not intend the Gun Control Act to provide the penalties for the use of explosives. However, this argument loses its force when viewed in light of the fact that Congress specifically expanded section 924(c) in 1984 to include destructive devices, including explosives and other bombs, notwithstanding the fact that section 844(h) already existed.
Moreover, the fact that an alternative statute exists for prosecuting a particular offense does not preclude prosecution *457 under a more general offense, as the decision is generally a matter of prosecutorial discretion. United States v. Oldfield, 859 F.2d 392, 398 (6th Cir.1988). As for defendants' argument that section 844 contains its own enhancement provisions, the legislative history to section 924(c), which I have already quoted above, states that the section should apply to "all persons who commit Federal crimes of violence, including those crimes set forth in statutes which already provide for enhanced sentences." 1984 U.S.Code Cong. & Admin.News at 3491.
Accordingly, it is the opinion of this Court that Congress clearly intended cumulative punishment with respect to all crimes of violence involving dangerous weapons, and therefore intended that violations of section 844(i) and 924(c) would be treated as separate offenses, thereby allowing for cumulative punishment in the instant case under section 924(c).
That this Court is bound by the intent of Congress does not diminish the fact that I am shocked at the result of Congress' actions. As noted earlier, section 844(i), as applied to Count Four, provides that the defendants "shall be imprisoned for not more than ten years" for destroying a vehicle used in interstate commerce by means of an explosive. 18 U.S.C. § 844(i). Yet, Congress also mandates that where defendants are convicted of violating section 924(c) a violation that requires no further proof in this case once section 844(i) is proven that I must impose an additional 30 year term of incarceration without the possibility of parole, to run consecutively to the sentence that will be imposed under section 844(i). Pursuant to the United States Sentencing Commission guidelines, the sentence on all counts of the indictment for David Quigley, not including Count Five which charges the section 924(c) offense, will be 41 to 51 months. This includes punishment for destroying a vehicle used in interstate commerce by means of an explosive device, as charged in Count Four. Pursuant to section 924(c) and the indictment in this case, however, Congress requires that defendants receive another 30 years for the very same conduct: using an explosive device to destroy the vehicle charged in Count Four.
The Court is troubled and dismayed not only by the pyramiding of penalties for the same offense, but also with the mandatory nature of section 924(c). I am troubled because I do not perceive the two defendants in this case as identical individuals, yet Congress has not allowed any discretion to treat them differently. While some may feel that congressional constraint of judicial discretion and the standardization of sentences may lead to less disparity in sentences, see United States v. Pinto, 875 F.2d 143 (7th Cir.1989), it is also true that treating too many unlike defendants as if they are alike will violate rather than promote the principle of equality. See Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U.Chi.L.Rev. 901, 916 (1991). I believe this to be a chronic problem with the mandatory minimum sentence provisions passed by Congress. As Aristotle once put it, in Politics, there is no greater injustice than to treat unequal things equally. It is this maxim that has led many federal judges to express disapproval of Congress' decision to deprive judges of the power to impose individualized sentences, and I note that the Federal Courts Study Committee of the Judicial Conference of the United States has recommended the repeal of statutes containing mandatory minimum sentences. Report of the Federal Courts Study Committee, April 2, 1990, 133-34.
In the case before me, what I have learned from the trial and the presentence reports convinces me that I am confronted with two defendants that have different propensities toward criminal behavior and dissimilar receptivities to rehabilitation. Nevertheless, the mandatory sentencing provisions passed by Congress direct the Court to disregard what it knows; the probation office can make the most careful investigation about the characteristics of the defendant and the Court can make the most careful findings of fact about the proper offense level and criminal history score under the sentencing guidelines, but these are irrelevant if the defendant is *458 convicted under section 924(c) or any other statute requiring a minimum sentence greater than the applicable guideline range. See Sentencing Guidelines, §§ 2K2.4(a) and 5G1.1(b). As pointed out by two circuit judges in the Eighth Circuit, "this is in direct conflict with one goal of the guidelines, which is to individualize punishment in light of case-specific offense characteristics." United States v. Gordon, 953 F.2d 1106, 1108 (8th Cir.1992) (Heaney, J., concurring).
Moreover, although this Court believes that the crimes committed here are serious ones requiring the incarceration of the defendants, the length of sentences without parole, as mandated by Congress, strip the defendants of any incentive to work toward the rehabilitation of their lives, or to reform their conduct. Without the possibility of a future outside the prison walls, there is no hope of a non-criminal life. Further, I believe that with at least one of the defendants in this case, any desired deterrent effect could be achieved with a sentence in the range of five to ten years. David Quigley, who sustained injuries by the accidental explosion of one of the devices, has already begun to pay the price for his actions with the result of blindness in one eye.
Finally, it does not go unnoticed by this Court that Congress twice increased the penalty under section 924(c) in recent years, and that it has done so in election years. Prior to being amended in 1984, section 924(c) provided for a consecutive sentence of from one to ten years for offenses involving firearms. In 1984, Congress amended the provision to provide for mandatory, determinate sentences (a minimum of 10 years if the firearm happened to be an explosive), and, in 1988, only four years later, Congress amended the provision again to increase the mandatory minimum sentence to 30 years. One has to wonder whether it is wisdom or political pandering that leads Congress to sentence the taxpayers to paying for the incarceration of a nineteen-year-old and a twenty-two-year-old for nearly the rest of their lives, rather than imposing a severe, yet less draconian, penalty that would allow them the hope of returning to society as reformed individuals. While I recognize that such hope must be combined with punishment to be effective, and while I acknowledge that hope contains no certainty, a hope denied completely is an opportunity extinguished forever. This is certain.
ORDER
In accordance with the Opinion entered this date;
IT IS HEREBY ORDERED that defendant David Quigley's motion for judgment of acquittal, filed April 27, 1992, (dkt. # 30) is DENIED;
IT IS FURTHER ORDERED that defendant Michael Holdridge's motion for judgment of acquittal, filed April 27, 1992, (dkt. # 20) is DENIED.
NOTES
[1] Only defendant Quigley was indicted in Counts Eight and Nine of the indictment, whereas Holdridge, but not Quigley, was indicted in Count Ten.
[2] The pipe bombs involved in the instant case fall within the statutory scope of the term "firearm." The definitional provisions of the statute state that the term "firearm" means, inter alia, "any destructive device," 18 U.S.C. § 921(a)(3)(D), and that the term "destructive device" means, inter alia, "any explosive, incendiary, or poison gas bomb ... or device similar...." 18 U.S.C. § 921(a)(4)(A)(i), (vi). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556873/ | 30 So. 3d 149 (2009)
STATE of Louisiana
v.
Patrick WILSON.
Nos. 09-KA-108, 09-KA-210.
Court of Appeal of Louisiana, Fifth Circuit.
December 29, 2009.
*150 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Walter G. Amstutz, Michael D. Smith, Jr., Assistant District Attorneys, Twenty Fourth Judicial District, Gretna, Louisiana, for Plaintiff/Appellee.
James A. Williams, Rachel Yazbeck, Law Office Of James A. Williams, Gretna, Louisiana, for Defendant/Appellant.
Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
MARION F. EDWARDS, Judge.
In this criminal matter, the defendant/appellant, Patrick Wilson ("Wilson"), was charged with three counts of illegal drug activity. Count one was a charge of possession of marijuana with intent to distribute, count two was a charge of distribution of cocaine, and count three was a charge of possession with intent to distribute cocaine. Wilson was arraigned and entered pleas of not guilty to all charges. A defense motion to suppress the evidence and identification was filed and denied by the trial court.
Wilson was tried by a jury and found guilty as charged on all three counts. The trial judge imposed a sentence of fifteen *151 years at hard labor on each count. The sentences were made concurrent, and the trial judge ordered the first two years of Wilson's sentences on counts two and three be served without benefit of parole, probation, or suspension of sentence. Wilson was given credit for time served, and the trial court recommended that Wilson be placed in Blue Walters Drug Treatment while incarcerated.
The State filed a multiple bill of information alleging that Wilson was a second felony offender. Wilson denied the allegations of the multiple bill and a hearing was conducted. The trial court found Wilson to be a second felony offender. The court vacated Wilson's sentence on count two and sentenced him to an enhanced sentence of twenty years at hard labor without benefit of probation or suspension of sentence. The court ordered that the enhanced sentence was to be served concurrently with his sentences on counts one and three and again recommended the Blue Walters Drug Treatment. Wilson filed for and was granted appeals from both the original drug convictions and sentence and the adjudication on the multiple offender bill and the enhanced sentence. Both appeals have been consolidated in this Court and will be considered in this opinion.
FACTS
Detective John Pacaccio ("Detective Pacaccio"), with the Jefferson Parish Sheriffs Office Narcotics Division, testified that, on June 23, 2006, he was part of a multi-jurisdictional strike force conducting undercover drug purchases. On the day in question, one of those areas was the Beechgrove Apartment complex. Detective Pacaccio and his partner, Agent Wiley Davis ("Agent Davis"), along with Deputy Joshua Bermudez ("Deputy Bermudez"), an undercover agent for the Jefferson Parish Sheriffs Office, and Sergeant Sam Palumbo ("Sergeant Palumbo"), of the New Orleans Police Department, worked the Beechgrove Apartment complex trying to make undercover drug purchases.
Deputy Bermudez went into the Beechgrove Apartment complex at approximately 6:00 p.m. He was driving a vehicle equipped with a VCR and a camera that faced the driver's side window. As the deputy was driving down the street approaching 917 Beechgrove, he saw two black males. After he made eye contact with one of the men, later identified in court as Wilson, the man approached the passenger side. The other individuals who were with Wilson were yelling out to him, "If you sell it to [him] that's going to be a sell charge." In response, Wilson yelled back that he did not care if he "[got] a sale charge." Deputy Bermudez testified that he told Wilson that he "wanted a 20," which meant that he wanted $20 worth of crack cocaine. Wilson gave the deputy $20 worth of crack cocaine as requested in exchange for a $20 bill and left. Deputy Bermudez informed both Detective Pacaccio and Agent Davis that a transaction had taken place at 917 Beechgrove. A subsequent field test by Agent Davis of the 0.1 gram "off-white, rock-like object" purchased by Deputy Bermudez was positive for the presence of cocaine.
About thirty to forty minutes later, Deputy Bermudez returned with the other officers to 917 Beechgrove in order to identify the seller. When the officers entered the parking lot, Wilson was standing outside with his hands behind his back. Deputy Bermudez identified Wilson as the person from whom he had purchased the crack cocaine.
Detective Pacaccio testified that he saw a group of individuals standing on the corner by the parking lot when he returned to 917 Beechgrove. Upon entering the parking *152 lot, Detective Pacaccio observed the suspect as described by Deputy Bermudez.
Both Detective Pacaccio and Sergeant Palumbo testified that the individuals began to walk away when they noticed the unmarked cars. Sergeant Palumbo testified that he was walking behind Wilson when Wilson dropped "a clear plastic bag, each containing green vegetable matter, five clear orange Ziploc bags, each containing green vegetable matter, and one clear plastic bag containing eight off-white, rock-like objects." Wilson then turned and walked into a breezeway. Detective Pacaccio testified that he started to follow Wilson until he was informed by Sergeant Palumbo that the suspect had discarded some drugs. Sergeant Palumbo retrieved the bag and turned it over to Detective Pacaccio.
Evidence presented at trial showed that the orange plastic bags were $5 bags of marijuana packaged for distribution, and four bags were $20 or $25 bags of marijuana. There were also several rocks of cocaine each with a street value of $20.
In the search incident to arrest, Wilson was found in possession of one $20 bill and one $5 bill that were photocopied. It was confirmed that these bills were the same ones used in the drug transaction between Deputy Bermudez and Wilson. Further, Deputy Bermudez positively identified Wilson as the man who sold him the drugs.
Laurie Ann Wilson ("Ms.Wilson"), the defendant's aunt, testified that she was inside her residence of 917-Q Beechgrove on the day some young African-American males, including her nephew, were arrested. Ms. Wilson testified that the police stopped everyone who passed the scene. According to her testimony, only young African-American males were handcuffed on the ground. Ms. Wilson testified that her nephew was walking through the breezeway to her house after work when he was called over by the police and placed on the ground. She testified that the police ran the names of everyone and subsequently arrested them. Ms. Wilson admitted that Beechgrove had a lot of drug activity.
LAW
Wilson assigns two errors for our review on appeal. In the first assignment, he asserts that he was denied his constitutional right to the counsel of his choice.
Wilson's argument is based on a decision of the trial court to refuse to continue the case on the scheduled trial date in order to allow James Williams to enroll as private counsel and prepare for trial. Wilson argues that his request to replace his counsel was not a dilatory tactic. He claims that he attempted to exercise his right to counsel at a reasonable time and in a reasonable manner, as well as at an appropriate stage of the proceedings, and that his actions were justifiable under the circumstances. Further, Wilson argues that the trial court's error was not harmless because his trial counsel was ineffective.
The State responds that Wilson abandoned his right to appellate review because he failed to request a transcript of the proceedings relating to this issue and further submitted the argument in brief with full knowledge that the transcript was not included. Since the record has been supplemented with the applicable transcript by order of this Court, we will address Wilson's claim.
The State argues, in the alternative, that there is no evidence to show that Wilson was denied an effective advocate as envisioned by the Sixth Amendment right to counsel.
The record shows that Wilson was arraigned on August 7, 2006. On July 15, 2008 Wilson filed a request for appointed *153 counsel.[1] In response to that request, Katherine Guste ("Ms. Guste") was appointed counsel. On September 11, 2008, James Williams ("Mr. Williams") filed a motion to enroll as counsel. On September 15, 2008, the day of the trial, both Ms. Guste and Mr. Williams appeared before the court. Mr. Williams told the trial judge that he had just been hired by Wilson's family to represent Wilson at trial. However, Mr. Williams explained that, when he found out about the impending trial date, he informed the family that he could only take on the defense if a continuance would be granted. When the trial court denied the continuance, Mr. Williams informed the court that he was not prepared for trial. The trial court denied Mr. Williams' motion to enroll as counsel, and the trial proceeded the following day with Ms. Guste as defense attorney.
The right to counsel is a fundamental constitutional right.[2] The Louisiana Supreme Court has found that it is both structural error requiring reversal, and a violation of the Sixth Amendment, when a criminal defendant has been denied his right to retained counsel of choice.[3] When the right to be assisted by counsel of choice is wrongly denied, no harmless-error analysis is required regarding counsel's effectiveness or prejudice to the defendant.[4] The Louisiana Supreme Court stated:
Deprivation of the right is "complete" when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received. To argue otherwise is to confuse the right to counsel of choice-which is the right to a particular lawyer regardless of comparative effectiveness-with the right to effective counsel-which imposes a baseline requirement of competence on whatever lawyer is chosen or appointed.[5]
Generally, a person accused in a criminal trial has the right to counsel of his choice.[6] However, an indigent defendant's right to choose his defense counsel only extends so far as to allow the defendant to retain the attorney of choice, if the defendant can manage to do so, but the right is not absolute and cannot be manipulated so as to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice.[7]
The defendant's right to choose an attorney is a right to be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system.[8] There is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases.[9]
Given the facts of the current matter and the applicable law, we must inquire into the issue of whether the trial court's *154 decision to deny the motion for continuance prejudiced Wilson by denying him his counsel of choice.
A motion for a continuance must be filed seven days prior to the commencement of trial, in writing and stating the specific grounds on which it is based.[10] The Louisiana Supreme Court has consistently held that the decision on whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge, and that an appellate court will not disturb such a determination absent a clear abuse of that discretion.[11] In addition, the Louisiana Supreme Court generally declines to reverse convictions even on a showing of an improper denial of a motion for a continuance absent a showing of specific prejudice.[12]
It is well settled that a defendant in a criminal trial cannot force a postponement by a last minute change of counsel.[13] This Court has found no abuse of the trial court's discretion in denying a motion for continuance on the day of trial to replace attorneys where the defendant was represented by counsel prepared for trial.[14]
In his argument that the trial court abused its discretion in denying the motion, Wilson relies on State v. Mitchell.[15] In Mitchell, this Court reversed the defendant's conviction and sentence after a finding that the trial court abused its discretion in denying a continuance to allow the defendant to replace his attorney. Because we find Mitchell to be distinguishable from Wilson's issue, we are unconvinced by Wilson's argument.
The defendant in Mitchell claimed that the trial court's refusal to allow his attorney to withdraw and to grant a continuance so that co-counsel could enroll as counsel of record violated his constitutional right to counsel of his choice. The defendant argued that the trial court's refusal caused him to be represented by an unwanted, unwilling, and unprepared counsel.[16]
This Court noted that the defendant's attorney stated he was unprepared to try the case. Defense counsel also failed to attend several pre-trial hearings and to timely comply with a court order which would have granted the defendant a continuance and an opportunity to replace him with prepared, experienced counsel. We determined that the defendant attempted to replace his attorney because his attorney was unprepared and unwilling to try the case. We found that the defendant's attempt to replace his attorney was justified and not a dilatory tactic because it was reasonable for the defendant to assume that his attorney was not going to present an adequate defense based on his attorney's lack of preparation for the trial.
In the present case, Wilson has failed to show any specific prejudice in the trial court's denial of his motion for continuance. *155 Wilson alleges his trial counsel was ineffective. However, these instances occurred during trial, not prior to his request for a continuance to allow private counsel to prepare for trial. Therefore, these allegations do not enter into the discussion on whether the trial court properly denied the motion for continuance prior to trial.
An ineffective assistance of counsel claim is most appropriately addressed in an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted.[17]
In the matter before us, the bill of information was filed on July 14, 2006. Arraignment was held on August 7, 2006, at which time Wilson informed the trial judge that he would retain private counsel. However, Wilson did not obtain private counsel and requested appointment of counsel on July 15, 2008. Therefore, Wilson had approximately two years between his arraignment and the date set for trial of September 15, 2008 to retain the attorney of his choice, if he could manage to do so. There is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases.[18]
We find no merit in this assignment of error.
In his second assignment of error, Wilson challenges his sentences. Specifically, Wilson claims that the sentences for possession with intent to distribute cocaine and marijuana, as well as his enhanced sentence for distribution of cocaine, are unconstitutionally excessive. He further claims that the trial judge failed to consider mitigating circumstances as part of the sentencing guidelines as required by La.C.Cr.P. art. 894.1.
According to Wilson, at the time of the offense he was an eighteen-year-old employed man with strong family ties. Wilson claims his current offense did not contain any aggravating factors. There was no testimony that he resisted arrest or was in possession of a weapon when arrested. In addition, there was no testimony that he was "someone the police dealt with before," that he was targeted either by the task force or upon information provided by a confidential informant, or that he was known to have dealt drugs in the past. Wilson also claims that the amount of drugs sold and found in his possession was not large, and he was not found with a lot of money in his possession. He notes that his previous two convictions for possession of cocaine and unauthorized use of a movable were not crimes of violence. Wilson also asserts that the likelihood of his rehabilitation is high because of his age and his supportive family.
The State contends that Wilson is precluded from raising a claim based upon the trial court's articulation of La.C.Cr.P. art. 894.1 factors because there was no objection made at the time of sentencing. We agree. Wilson's failure to raise the issue of compliance with La.C.Cr.P. art. 894.1 in the trial court below precludes him from raising this issue on appeal.[19]
The State also responds that the trial court did not abuse its discretion in sentencing Wilson.
*156 The record reveals that Wilson failed to file a motion to reconsider sentence. A motion to reconsider sentence must be made orally at the time of sentence or in writing thereafter, setting forth the specific grounds on which the motion is based.[20] Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, precludes the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.[21] When there is no motion to reconsider sentence filed in the trial court, a defendant is limited to a bare review of the sentence for constitutional excessiveness.[22]
The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering.[23] A sentence that is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering is unconstitutionally excessive, even if it is within the statutory limits.[24]
In reviewing a sentence for excessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice.[25] The three factors that are considered in reviewing a trial court's sentencing discretion are the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes by the same court and other courts.[26]
The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate.[27] A trial court is afforded great discretion in determining sentences and sentences will not be set aside as excessive absent clear abuse of that broad discretion.[28] An appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.[29]
The sentencing range for possession with intent to distribute cocaine is at least two and not more that thirty years at hard labor, with the first two years of the sentence being without benefit of parole, probation, or suspension of sentence.[30]
The sentencing range on the possession with intent to distribute marijuana conviction is five to thirty years at hard labor, and a fine of not more than fifty thousand dollars.[31]
Wilson's sentences of fifteen years on each of these convictions are mid-range sentences within the statutory guidelines. Considering that Wilson committed three *157 drug-related offenses on the same day, sold drugs to an undercover officer, and had additional cocaine and marijuana found in his possession, we find no merit in his argument as it relates to these sentences.[32]
The habitual offender law expresses a clear legislative intent that repeat offenders receive serious sentences.[33] When an appellate court reviews a sentence on appeal, the relevant question is not whether another sentence might have been more appropriate, but whether the trial court abused its broad sentencing discretion.[34]
The term of imprisonment for a second felony offender "shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction."[35] A conviction on a charge of distribution of cocaine carries a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of the sentence being without benefit of parole, probation, or suspension of sentence.[36] Thus, Wilson was facing an enhanced sentence as a second felony offender of imprisonment between fifteen and sixty years without benefit of parole, probation, or suspension of sentence for the first two years of the sentence. His actual sentence is twenty years at hard labor. Although the trial court did not restrict the first two years to withhold benefits of parole, probation, or suspension of sentence as required, the sentence is deemed to contain the required restriction and, therefore, does not require any corrective action.[37]
Given the facts of this case and considering the enhanced sentence of twenty years is on the low end of the possible sentencing range, we find no abuse of the trial court's discretion.
For the foregoing reasons, we affirm Wilson's convictions and sentences.
AFFIRMED.
NOTES
[1] The actual motion is not in the record. However, the chronological index states that is "on imaging."
[2] See, State v. Reeves, 06-2419 (La.5/5/09), 11 So. 3d 1031.
[3] Id. at 1056 (citing United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 126 S. Ct. 2557, 2563, 165 L. Ed. 2d 409 (2006)).
[4] Id.
[5] Id.
[6] Id. at 1057.
[7] Id.
[8] State v. Leggett, 363 So. 2d 434, 436 (La. 1978).
[9] Id.
[10] La.C.Cr.P. art. 707.
[11] State v. Reeves, 11 So.3d at 1078. See, La.C.Cr.P. art. 712.
[12] Id. at 1079 (citing State v. Blank, 04-204 (La.4/11/07), 955 So. 2d 90, 140, cert, denied, 552 U.S. 994, 128 S. Ct. 494, 169 L. Ed. 2d 346 (2007)).
[13] State v. Williams, 00-1850 (La.App. 5 Cir. 4/11/01), 786 So. 2d 785, 790-91, writ denied, 01-1432 (La.4/12/02), 812 So. 2d 666.
[14] State v. Divine, 98-812 (La.App. 5 Cir. 5/19/99), 738 So. 2d 614, writ denied, 99-2393 (La.2/4/00), 754 So. 2d 222, cert, denied, 530 U.S. 1219, 120 S. Ct. 2227, 147 L. Ed. 2d 258 (2000); See also, State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So. 3d 445.
[15] 95-552 (La.App. 5 Cir. 7/30/96), 680 So. 2d 64.
[16] Id. at 67-68.
[17] State v. Allen, 06-778 (La.App. 5 Cir. 4/24/07), 955 So. 2d 742, 751, writ denied, 08-2432 (La. 1/30/09), 999 So. 2d 754.
[18] State v. Leggett, 363 So.2d at 436.
[19] State v. Robinson, 07-832 (La.App. 5 Cir. 4/15/08), 984 So. 2d 856, 867, writ denied, 08-1086 (La.12/19/08), 996 So. 2d 1132.
[20] La.C.Cr.P. art. 881.1(B).
[21] La.C.Cr.P. art. 881.1(E).
[22] State v. Fairley, 02-168 (La.App. 5 Cir. 6/26/02), 822 So. 2d 812, 814.
[23] State v. Crawford, 05-494 (La.App. 5 Cir. 1/31/06), 922 So. 2d 666, 669.
[24] State v. Riche, 608 So. 2d 639, 640 (La.App. 5 Cir. 1992), writ denied, 613 So. 2d 972 (La. 1993).
[25] Id.
[26] State v. Crawford, supra, at 670.
[27] Id.
[28] State v. Riche, 608 So.2d at 640.
[29] La.C.Cr.P. art. 881.4(D).
[30] La. R.S. 40:967(B)(4)(b).
[31] La. R.S. 40:966(B)(3).
[32] We note that the trial judge did not impose a fine. There is some doubt surrounding the issue of whether a statutory fine of "not less than" a certain amount is a mandatory fine. See, State v. Phillips, 02-0866 (La. 11/22/02), 834 So. 2d 972, cert, denied, 538 U.S. 1063, 123 S. Ct. 2228, 155 L. Ed. 2d 1117 (2003), Chief Justice Calogero, dissenting; and State v. Francois, 06-0788 (La.App. 3 Cir. 12/13/06), 945 So. 2d 865 (holding that, when the trial court does not impose a fine in a situation where the statute authorizes a fine of "not more than" a certain amount, it impliedly imposes a fine of $0 and there is no error requiring remand); State v. Kerlec, 06-838 (La.App. 5 Cir. 4/11/07), 957 So. 2d 810, 815, writ denied, 07-1119 (La. 12/7/07), 969 So. 2d 626. Further, the State neither objected at the time of sentencing nor assigned this issue for our review. Accordingly we will not disturb this sentence for the failure to impose a fine.
[33] State v. Girod, 04-854 (La.App. 5 Cir. 12/28/04), 892 So. 2d 646, 651, writ denied, 05-597 (La.6/3/05), 903 So. 2d 455.
[34] Id. at 651.
[35] La. R.S. 15:529.1(A)(1)(a).
[36] La. R.S. 40:967(B)(4)(b).
[37] See, La. R.S. 15:301.1 and State v. Wiley, 03-884 (La.App. 5 Cir. 4/27/04), 880 So. 2d 854, 871. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556869/ | 30 So. 3d 619 (2010)
STATE of Florida, Petitioner,
v.
Torry M. JONES, Respondent.
No. 2D08-5751.
District Court of Appeal of Florida, Second District.
March 12, 2010.
*621 Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Petitioner.
James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Respondent.
CASANUEVA, Chief Judge.
The State of Florida petitions this court for a writ of certiorari quashing the trial court's pretrial order excluding certain test results from evidence, as well as its subsequent order denying the State's motion for rehearing. Although the trial court departed from the essential requirements of law, we dismiss the petition because the State failed to allege or prove that the error resulted in a miscarriage of justice.
Facts and Procedural History
The State charged Torry M. Jones with sexual offenses against a child victim. At some point, urinalyses were undertaken on samples from Mr. Jones and the alleged victim. The defense filed a motion in limine to exclude any mention of the tests or their results from evidence, claiming that there was no chain of custody in place on the urine samples and that introduction of the test results without the testimony of those who created the results violated Mr. Jones's constitutional right to confrontation. See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
The trial court held a hearing on the motion. Defense counsel argued that each of the two nurses who collected the urine samples had told him that "we don't do chain of custody on urine samples." He further argued that the identities of the lab technicians who tested the urine and created the reports were unknown and, therefore, the State could not introduce the reports. No witnesses testified; no documents were introduced into evidence. Without the introduction of any evidence, the trial court granted the motion on both bases. The State filed a motion for rehearing which was denied.
Standard of Review
The Supreme Court of Florida has held that "if the requirements permitting certiorari jurisdiction otherwise exist, a pre-trial order excluding evidence which has the effect of substantially impairing the ability of the state to prosecute its case is subject to certiorari review." State v. Pettis, 520 So. 2d 250, 253 (Fla.1988) (quoting State v. Steinbrecher, 409 So. 2d 510, 511 (Fla. 3d DCA 1982)). Although a pretrial order may qualify for certiorari, the writ should be issued only when "there has been a violation of a clearly established principle of law resulting in a miscarriage of justice." Id. at 254 (quoting Combs v. State, 436 So. 2d 93, 96 (Fla.1983)).
State v. Davis, 857 So. 2d 349, 350 (Fla. 2d DCA 2003). In other words, "[t]o obtain common law certiorari relief, a petitioner must show that there has been a departure from the essential requirements of law that causes material and irreparable harm." Gonzalez v. State, 15 So. 3d 37, 39 (Fla. 2d DCA 2009).
Analysis
The State contends that the trial court erred in granting the defense's motion *622 in limine without any evidence presented. Regarding the chain of custody issues, the State asserts that exclusion of evidence based solely upon an alleged break in the chain of custody, without evidence of a probability of tampering, was a departure from the essential requirements of law.
"[R]elevant physical evidence is admissible unless there is an indication of probable tampering." Peek v. State, 395 So. 2d 492, 495 (Fla.1980); see also Dodd v. State, 537 So. 2d 626 (Fla. 3d DCA 1988). In seeking to exclude certain evidence, [the movant] bears the initial burden of demonstrating the probability of tampering. Once this burden has been met, the burden shifts to the proponent of the evidence to submit evidence that tampering did not occur.
Murray v. State, 838 So. 2d 1073, 1082 (Fla.2002) (footnotes omitted). "A mere break in the chain of custody is not in and of itself a basis for exclusion of physical evidence. Rather, the court should consider the probability that the evidence has been tampered with during the interim for which it is unaccounted." Bush v. State, 543 So. 2d 283, 284 (Fla. 2d DCA 1989).
Mr. Jones presented no evidence demonstrating a probability of tampering and made no argument suggesting a tampering problem exists. As the movant, Mr. Jones unquestionably failed to satisfy his burden of proof. Consequently, the trial court departed from the essential requirements of law by granting the motion without any evidence to support Mr. Jones's argument.
In response to the State's petition, Mr. Jones asserts that this court should deny the petition for writ of certiorari regardless because introduction of the lab reports would violate his constitutional right to confrontation. In Crawford, the U.S. Supreme Court held that "[t]estimonial statements of witnesses absent from trial [may be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." 541 U.S. at 59, 124 S. Ct. 1354. The Court specifically declined to "spell out a comprehensive definition of `testimonial.'" Id. at 1374. The Florida Supreme Court, applying Crawford to a Florida Department of Law Enforcement (FDLE) lab report "used to establish the illegal nature of the substances [a defendant] possessed," addressed whether that report was "testimonial" in nature as to invoke the Confrontation Clause. State v. Johnson, 982 So. 2d 672, 673 (Fla.2008). The court found "lab reports and similar materials, when prepared for criminal trials, to be testimonial statements." Id. at 680 (emphasis added). The court distinguished its holding from other cases where the "testing [was] done almost exclusively for medical treatment" because the FDLE report was "only `intended to bear witness against an accused.'" Id. at 676, 677 (quoting Johnson v. State, 929 So. 2d 4, 7 (Fla. 2d DCA 2005)).
Thus, the reason behind a medical test determines whether the written document containing the results of that test is testimonial in nature and triggers a defendant's constitutional right to confrontation. Although Mr. Jones's counsel argued that the urinalyses were ordered for prosecutorial purposes rather than for medical reasons, again he provided no evidence to support his assertion. A trial court may not rely on argument by counsel to make factual determinations. Ordonez v. State, 862 So. 2d 927, 930 (Fla. 2d DCA 2004); see also State v. Thompson, 852 So. 2d 877, 878 (Fla. 2d DCA 2003) (holding that argument of counsel is not evidence); DiSarrio v. Mills, 711 So. 2d 1355, 1357 (Fla. 2d DCA 1998) ("Argument by counsel who is not under oath is not evidence."). Without any evidence to support the assertion that the urinalyses were for prosecutorial purposes rather than for medical *623 reasons, the trial court departed from the essential requirements of law in finding that introduction of the test results would violate Crawford.
Although we are convinced by the State's argument regarding the trial court's departure from the essential requirements of law, the State makes no comment on the second prong necessary for certiorari relief: irreparable harm. Gonzalez, 15 So.3d at 39. The petition discusses the trial court's legal error without specifying the harm suffered or explaining how that harm is irreparable. Further, the petition does not address whether or how the legal error "substantially impair[ed] the ability of the state to prosecute its case." State v. Pettis, 520 So. 2d 250, 253 (Fla.1988) (quoting State v. Steinbrecher, 409 So. 2d 510, 511 (Fla. 3d DCA 1982)); see also State v. Sealy-Doe, 861 So. 2d 530, 531 (Fla. 4th DCA 2003) (dismissing the State's petition for writ of certiorari because the challenged ruling did not "substantially impair the state's ability to bring its case"); State v. Storer, 920 So. 2d 754, 759 (Fla. 2d DCA 2006) (denying certiorari in part because "[t]he order that the State challenges in this case does not prevent the State from presenting all of the evidence necessary to prove its case"). Without the requisite allegation of irreparable harm, this court has no jurisdiction to grant relief. See DeLoach v. Aird, 989 So. 2d 652, 654 (Fla. 2d DCA 2007) (dismissing petition for writ of certiorari for lack of jurisdiction when the petitioner's alleged harm was not sufficiently burdensome to invoke certiorari jurisdiction).
Petition for writ of certiorari dismissed.
KELLY and KHOUZAM, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858064/ | WEAVER V. SNB
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
ON REMAND
NO. 3-88-242-CV
OWEN G. WEAVER AND JOHNNIE N. WEAVER,
APPELLANTS
vs.
SOUTHWEST NATIONAL BANK,
FEDERAL DEPOSIT INSURANCE CORPORATION,
AS RECEIVER OF SOUTHWEST NATIONAL BANK, ACTING
IN ITS CORPORATE CAPACITY, AND TEXAS BANK-SOUTHWEST,
APPELLEES
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. 406,504, HONORABLE JON N. WISSER, JUDGE PRESIDING
Southwest National Bank (SNB), appellee, (1) brought suit against Owen G. and
Johnnie N. Weaver (collectively, the "Weavers"), appellants, to recover a deficiency judgment
on two promissory notes following the non-judicial foreclosure sale of two fourplexes pursuant
to deeds of trust executed by the Weavers. The case was tried to a jury, which found damages
of $113,526.46 in favor of SNB. The trial court rendered judgment for SNB. The Weavers
perfected this appeal. We will affirm.
On appeal the Weavers assert five points of error. In a previous unpublished, per
curiam opinion, this Court overruled one of the points of error and declined to address the
remaining four points on procedural grounds. The Texas Supreme Court reversed our judgment
and remanded the cause to this Court for consideration of the remaining four points of error.
Weaver v. Southwest Nat'l Bank, 813 S.W.2d 481 (Tex. 1991).
In their other four points, the Weavers argue that the trial court erred (1) in
granting judgment for SNB because the jury found that SNB materially breached its obligations
under the loan documents; (2) in granting judgment for SNB because the jury found that SNB did
not act in good faith in its dealings with the Weavers; (3) in denying a new trial on the Weavers'
counterclaim because there was a conflict between the jury's answers to certain questions; and (4)
in disregarding certain jury findings that were supported by probative evidence.
STATEMENT OF FACTS
SNB loaned the Weavers $208,000 in November 1984 and loaned an additional
$180,000 to Owen G. Weaver in June 1985. These loans, secured by deeds of trust on two lots,
represented construction financing for two fourplexes constructed by the Weavers. The Weavers
eventually defaulted on the loans, whereupon SNB instituted non-judicial foreclosure proceedings
pursuant to the deeds of trust. At the foreclosure sale, SNB bid $170,000 for each lot and paid
a total of $340,000 for both properties. SNB's bid reflected what it thought the fair market value
of the property was as of the date of foreclosure.
After applying the proceeds of the sale against the amounts remaining due on each
of the notes, SNB brought suit against the Weavers for the deficiency. The Weavers
counterclaimed, alleging that SNB had committed breach of contract, fraud, negligence, breach
of fiduciary duty, and violations of the Deceptive Trade Practices Act (DTPA), Tex. Bus. & Com.
Code Ann. §§ 17.41-.63 (1987 & Supp. 1991). The jury found that, at the time of trial, the
Weavers still owed SNB $73,530.68 on the $208,000 note, and that Owen G. Weaver still owed
SNB $39,995.78 on the $180,000 note.
The jury also found that SNB had materially breached its obligations under the
notes, renewals, and deeds of trust; that SNB failed to act in good faith; and that SNB's failure
to act in good faith was the proximate cause of damages to the Weavers. However, the jury found
that the Weavers had suffered no monetary damages as a result of SNB's conduct. The trial court
disregarded the adverse jury findings and rendered judgment in favor of SNB.
BREACH OF CONTRACT
In their first and fifth points of error, the Weavers argue that the trial court erred
in granting judgment for SNB by disregarding the jury's finding that SNB materially breached its
obligations under the loan documents. A trial court may disregard any jury finding on a question
that has no support in the evidence or a question that is immaterial. Tex. R. Civ. P. 301; Eubanks
v. Winn, 420 S.W.2d 698, 701 (Tex. 1967); C & R Transp., Inc. v. Campbell, 406 S.W.2d 191,
194 (Tex. 1966); Brown v. Armstrong, 713 S.W.2d 725, 728-29 (Tex. App. 1986, writ ref'd
n.r.e.). The Weavers point to five instances in the record that allegedly support the jury's finding
of material breach by SNB: (1) SNB bid substantially less than fair market value for the property
at the foreclosure sale; (2) SNB failed to advertise the foreclosure sale as required by the deeds
of trust; (3) SNB conducted a void foreclosure sale through an improperly appointed substitute
trustee; (4) SNB took possession of the mortgaged property prior to foreclosure; and (5) SNB
failed to give the Weavers credit for $17,000 of the foreclosure sale proceeds. Because the jury
question, as worded, did not identify any particular "material breach" by SNB, we will address
each of the circumstances asserted by the Weavers.
1. Failure to Advertise
The deeds of trust in issue contained the following clause:
[A]nd after advertising the time, place and terms of the sale of the above described
and conveyed property, then subject to the lien hereof, and mailing and filing
notices as required by section 51.002, Texas Property Code, as then amended
(successor to article 3810, Texas Revised Civil Statutes), and otherwise complying
with that statute, the Trustee shall sell the above described property
. . . .
(Emphasis added.) The Weavers do not argue that SNB failed to comply with the provisions of
section 51.002; rather, they assert that SNB's posting of a notice at the county courthouse
announcing the time, place, and terms of the upcoming public auction of the mortgaged property
was insufficient to satisfy the requirement in the deeds of trust that the sales be "advertised." The
Weavers argue that the phrase "after advertising the time, place and terms of the sale" required
SNB to advertise the sale in a newspaper or the like. We disagree.
If the language of a contract is unambiguous, then a court will construe the
contractual language as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).
Whether the language of a contract is ambiguous is itself a question of law for the court to decide
by looking at the contract as a whole in light of the circumstances present when the contract was
made. Id. at 394. The Texas Supreme Court has adopted the following definition of "advertise"
from Black's Law Dictionary (5th ed. 1979):
To advise, announce, apprise, command, give notice of, inform,
make known, publish. On call to the public attention by any means whatsoever.
Any oral, written, or graphic statement made by the seller in any manner in
connection with the solicitation of business and includes, without limitation because
of enumeration, statements and representations made in a newspaper or other
publication or on radio or television or contained in any notice, handbill, sign,
catalog, or letter. . . .
Smith v. Baldwin, 611 S.W.2d 611, 614-15 (Tex. 1980). Although the term "advertise" is very
broad, the Weavers have failed to convince this Court that it is ambiguous. Nothing in the
language of the deeds of trust or the record indicates that at the time the parties executed the deeds
of trust they intended the term to be read in a narrow sense. There is no evidence, for example,
that SNB was obligated to engage in one type of advertising over another. The Weavers' bare
assertion that a newspaper advertisement was required is not supported by the record. The intent
of the parties must be taken from the agreement itself, not from the parties' present interpretation.
First City Nat'l Bank v. Concord Oil Co., 808 S.W.2d 133, 137 (Tex. App. 1991, no writ).
Therefore, we conclude as a matter of law that the term "advertise" is not
ambiguous and should be construed broadly. Under such a construction, which we believe
comports as well with common sense, the term "advertise" clearly includes the posting of notices
in public places. Thus, SNB complied with the "advertisement" requirements of the deeds of trust
by posting notices of the upcoming sale at the county courthouse.
2. Taking Possession of Property
As another basis for the jury's material-breach finding, the Weavers point to
evidence that prior to foreclosure, SNB collected rents from tenants on the mortgaged properties,
entered into leases for the mortgaged properties, and had the properties mowed. This evidence,
however, provides no support for the jury finding, because these actions by SNB were expressly
permitted by the deeds of trust:
That in the event Grantors [the Weavers] shall fail to keep the
improvements on the property hereby conveyed in good repair and condition, . .
. then Beneficiary [SNB] may, at his option, . . . make such repairs . . . on said
property . . . .
. . . .
[I]n the event of any default in the payment of said note or
hereunder, Beneficiary, his agent or representative, is hereby authorized, at his
option, to collect said rents, or if such property is vacant to rent the same and
collect the rents . . . .
It is undisputed that the Weavers defaulted on their payments before SNB entered into leases,
collected rents, or had the property mowed. Thus, we conclude as a matter of law that these
actions by SNB did not constitute material violations of the deeds of trust.
3. Failure to Give Credit
The Weavers also assert that SNB breached the loan documents by failing to give
them credit on their indebtedness for $17,000 of the proceeds from the foreclosure sale. This
assertion also lacks merit. A reading of the pleadings on which SNB went to trial and the damage
amounts found by the jury shows that proper credit was given for the $17,000.
4. Appointment of Substitute Trustee and Inadequate Consideration
The Weavers also argue that SNB breached its contractual obligations by bidding
substantially less than fair market value for the properties at the foreclosure sale. The rule is well
established, however, that mere inadequacy of consideration is not grounds for setting aside a
trustee's sale if the sale was legally and fairly made. See American Sav. & Loan Ass'n v. Musick,
531 S.W.2d 581, 587 (Tex. 1975); Nautical Landings Marina, Inc. v. First Nat'l Bank, 791
S.W.2d 293, 298-99 (Tex. App. 1990, writ denied). There must be evidence of irregularity,
though slight, which must have caused or contributed to cause the property to be sold for a grossly
inadequate price. Musick, 531 S.W.2d at 587; Pentad Joint Venture v. First Nat'l Bank, 797
S.W.2d 92, 95-96 (Tex. App. 1990, writ denied). As evidence of irregularity, the Weavers point
to evidence that SNB improperly appointed the substitute trustee who conducted the foreclosure
sale: the substitute trustee was not formally appointed until a few days after the notices of
foreclosure sale were sent.
Even if we assume, however, that the foreclosure sale conducted by the substitute
trustee was invalid, we conclude that SNB was not precluded from suing the Weavers for a
deficiency judgment. First, there is no evidence that the allegedly improper appointment of the
substitute trustee caused the property to be sold at a grossly inadequate price. Further, in Tarrant
Savings Association v. Lucky Homes, Inc., 390 S.W.2d 473, 475 (Tex. 1965), the Texas Supreme
Court rejected the contention that a prerequisite to the recovery of a deficiency judgment is the
establishment of the deficiency by a valid foreclosure sale:
The basic error committed by the Court of Civil Appeals lies in the
premise upon which it constructed its opinion. That court accepted as sound the
rule that "[a] prerequisite to the recovery of a deficiency judgment is the
establishment of the deficiency by a valid foreclosure sale", citing Casa Monte Co.
v. Ward, Tex. Civ. App., 342 S.W.2d 812, no writ hist., and Sullivan v. Hardin,
Tex. Civ. App., 102 S.W.2d 1110, no writ hist. This premise from which the
Court of Civil Appeals reasoned is clearly erroneous. Under Maupin v. Cheney,
139 Tex. 426, 163 S.W.2d 380, if the sale is valid the mortgagee is entitled to
judgment for the amount of the note, interest and attorney's fees, less the amount
received at the trustee sale and other legitimate credits. If the sale is invalid and
title to the property has passed to a third person or the property has been
appropriated to the use and benefit of the mortgagee, the mortgagor is entitled to
have the reasonable market value of the property credited on the note.
Therefore, even if we assume for the sake of argument that the foreclosure sale in
the present case was invalid, based on Lucky Homes we reject the Weavers argument that SNB
is precluded from recovering a deficiency judgment. In such an event the Weavers would only
be entitled to have the reasonable market value of the property at the time of foreclosure credited
on the note. See Crow v. Heath, 516 S.W.2d 225, 228-29 (Tex. Civ. App. 1974, writ ref'd
n.r.e.) (holding that lack of requisite notice of intention to accelerate the indebtedness, coupled
with the inadequacy of consideration, was sufficient to set the foreclosure sale aside; therefore,
debtor entitled to a credit on the note in the amount of the reasonable market value of the
property).
In the present case, however, that argument fails as well. SNB established its case
for a deficiency judgment by introducing the promissory notes executed by the Weavers and
showing a proper credit of the proceeds received from the sale of the property securing the notes.
The burden then shifted to the Weavers to show some reason for denying the recovery sought by
SNB. See Lucky Homes, 390 S.W.2d at 474. Even if we assume that the Weavers were entitled
to a credit for the reasonable market value of the property, the Weavers failed to obtain a jury
finding as to the reasonable market value of the property at the time of foreclosure and have,
therefore, waived that defense. Tex. R. Civ. P. 279.
Moreover, even if it could be said that one or more elements of an "invalid
foreclosure sale" defense had been submitted to and found by the jury, the omitted element
(reasonable market value of the property) would be deemed found to support the judgment if there
is factually sufficient evidence to support such a finding. See Tex. R. Civ. P. 279. The Weavers
did not challenge the sufficiency of the evidence to support such a deemed finding, and so have
waived any such complaint. In any event, there was conflicting evidence as to the reasonable
market value of the property at the time of foreclosure; after reviewing the record, we conclude
that there was factually sufficient evidence to support a deemed finding that SNB's bid represented
the reasonable market value of the property. This conclusion is further support by the jury's
finding that the Weavers suffered no monetary damages as a result of SNB's conduct.
Therefore, based on the foregoing discussion, we conclude that there was no
evidence that SNB breached its obligations under the loan documents by failing to advertise the
foreclosure sale; by failing to give proper credit for the foreclosure-sale proceeds; or by taking
possession of the property prior to foreclosure. Further, even if we assume that SNB breached
its obligations by improperly appointing a substitute trustee, we conclude that such a finding was
immaterial because: (1) the Weavers failed to obtain a jury finding that the reasonable market
value of the property was more than the amount bid by SNB at the foreclosure sale, thereby
waiving that defense; (2) the Weavers failed to challenge the sufficiency of the evidence to support
a deemed finding that the reasonable market value was the amount bid by SNB, thereby waiving
that complaint; and (3) such a deemed finding is supported by factually sufficient evidence.
DUTY OF GOOD FAITH
In their second and fifth points of error, the Weavers assert that the trial court erred
in granting judgment for SNB by disregarding the jury's finding that SNB failed to act in good
faith in its dealings with the Weavers. In support of their argument, the Weavers rely on both a
common law duty of good faith and fair dealing and the requirement of good faith found in Tex.
Bus. & Com. Code Ann. §§ 1.203 & 1.201(19) (1968).
Generally, a duty of good faith and fair dealing does not exist in Texas unless
created by either express contractual language or unless a special relationship exists marked by
shared trust or an imbalance in bargaining power. Federal Deposit Ins. Corp. v. Coleman, 795
S.W.2d 706, 708-09 (Tex. 1990); Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d
165, 167 (Tex. 1987); Herndon v. First Nat'l Bank, 802 S.W.2d 396, 399 (Tex. App. 1991, writ
denied); Nautical Landings Marina, 791 S.W.2d at 299. In the present case, there is no evidence
of express contractual language creating a duty of good faith; nor is there any evidence of a
special relationship between the Weavers and SNB. Indeed, the relationship of mortgagor and
mortgagee ordinarily does not involve a duty of good faith. Coleman, 795 S.W.2d at 709;
Nautical Landings Marina, 791 S.W.2d at 299. Therefore, we conclude that SNB did not owe
a common law duty of good faith and fair dealing to the Weavers.
The Weavers also rely on section 1.203 of the Texas Uniform Commercial Code
(the "Code"), which states: "Every contract or duty within this title imposes an obligation of good
faith in its performance or enforcement." Tex. Bus. & Com. Code Ann. § 1.203 (1968). A
critical question, therefore, is whether the transaction between the Weavers and SNB was
governed by the Code. The Weavers argue that the loan documents in this case include
instruments governed by chapters 3 and 4 of the Code.
After examining chapter 4 of the Code, we conclude that it is inapplicable to the
present case. As for chapter 3, it applies only to "instruments" that are "negotiable." See Tex.
Bus. & Com. Code Ann. § 3.104 (1968). But see § 3.805. In order to be negotiable, the written
instrument must contain a promise to "pay a sum certain in money." See Code § 3.104(a)(2).
An amount payable is a "sum certain" even if it is to be paid with stated interest. See § 3.106.
A note with a variable interest rate, however, has been held not to be a promise to pay a "sum
certain" and, therefore, not to be a "negotiable instrument" within the meaning of chapter 3 of the
Code. See Brazos River Auth. v. Carr, 405 S.W.2d 689, 694-95 (Tex. 1966); Dillard v. NCNB
Tex. Nat'l Bank, 815 S.W.2d 356, 360 (Tex. App. 1991, no writ); Lexington Ins. Co. v. Gray,
775 S.W.2d 679, 682 (Tex. App. 1989, writ denied); see also Federal Sav. & Loan Ins. Corp.
v. Griffin, 935 F.2d 691, 697 n.3 (5th Cir. 1991); In re Gas Reclamation, Inc. Securities
Litigation, 741 F. Supp. 1094, 1102-03 (S.D.N.Y. 1990), appeal dismissed, 924 F.2d 448 (2d Cir.
1991) (applying Texas law).
The loan documents in the present case provide for a variable interest rate:
[E]qual to the Prime Rate (as defined by First City National Bank of Austin,
Texas) from time to time announced or posted by First City National Bank of
Austin, Texas plus Two Percent (2%) per annum, but not to exceed the greater of:
(1) the quarterly ceiling from time to time in effect under Article 5069-1.04,
Vernon's Annotated Texas Statutes, as published by the Office of the Consumer
Credit Commissioner, or (2) the maximum rate from time to time allowed under
federal law. The applicable interest rate shall be adjusted as of the date of each
change in such Prime Rate during the term of this loan . . . .
Accordingly, chapter 3 of the Code does not apply to the loan documents in the present case.
Therefore, we conclude that the transaction between the Weavers and SNB was governed neither
by the Code as a whole nor by the good-faith provision contained in section 1.203. Having
determined, as a matter of law, that SNB owed no duty of good faith and fair dealing, we
conclude that the trial court properly disregarded the jury's findings that SNB breached such a
duty and that such breach was the proximate cause of damages to the Weavers.
CONCLUSION
Based on our foregoing discussion, we overrule the Weaver's first, second, and
fifth points of error. Further, based on our holding that SNB did not owe a duty of good faith to
the Weavers, we also overrule their third point of error based on allegedly irreconcilable jury
findings. Finally, because we overruled the Weaver's fourth point of error in our previous
opinion, we affirm the judgment of the trial court.
J. Woodfin Jones, Justice
[Before Justices Powers, Jones and B. A. Smith]
Affirmed on Remand
Filed: January 8, 1992
[Do Not Publish]
1. Also present as appellees in this appeal are two intervenors: (1) the FDIC, as Receiver
for SNB, which was declared insolvent after this appeal was perfected; and (2) Texas Bank-Southwest, to which the FDIC conveyed various assets of SNB, including the promissory
notes in question. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1561670/ | 523 Pa. 223 (1989)
565 A.2d 1147
Mark S. KEENHEEL, Appellant,
v.
COMMONWEALTH of Pennsylvania, PENNSYLVANIA SECURITIES COMMISSION, Robert M. Lam, Chairman of the Pennsylvania Securities Commission, Eliott Klein, Chief Counsel of the Pennsylvania Securities Commission, Victor Wright, Director of Enforcement, Pennsylvania Securities Commission, Appellees.
Supreme Court of Pennsylvania.
Submitted January 18, 1989.
Decided October 25, 1989.
*224 Mark S. Keenheel, pro se.
David M. Donaldson, Senior Deputy Atty. Gen., for appellees.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and STOUT, JJ.
OPINION
NIX, Chief Justice.
The issue to be addressed in this appeal is whether the Board of Claims had exclusive jurisdiction to hear and to determine the underlying claim in this matter. This is a direct appeal from an order of the Commonwealth Court, under its original jurisdiction, which transferred to the Board of Claims the action filed by appellant herein, Mark S. Keenheel, whereby he sought to rescind or to nullify an agreement entered into with his former employer, the Pennsylvania Securities Commission ("Commission"). The transfer order issued in response to preliminary objections filed by the Commission challenging the subject matter jurisdiction of the Commonwealth Court. The Honorable Doris A. Smith viewed the matter as based upon a contract executed between appellant and the Commonwealth and concluded that, pursuant to section 4 of the Board of Claims Act, 72 P.S. § 4651-4 ("section 4"),[1] the appropriate forum to resolve *225 appellant's complaint in equity was the Board of Claims, hence, the Commonwealth Court lacked jurisdiction. Accordingly, that court transferred the matter pursuant to section 5103 of the Judicial Code, 42 Pa.C.S. § 5103. For the reasons that follow, we conclude that this action is not one arising from a contract action against the Commonwealth as envisioned in section 4, thus we reverse the decision below and remand the matter to the Commonwealth Court for it to reach the merits of the claim submitted.
Appellant was employed as an attorney with the Commission, and, in March of 1987, he filed race discrimination charges against the Commission and certain of its officials through the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission. On June 17, 1987, the Commission terminated appellant's employment, effective September 1, 1987. In response, appellant filed a petition in the Commonwealth Court alleging that the termination was in retaliation for filing the charges of race discrimination. Negotiations then commenced between appellant and the Commission. On August 27, 1987, shortly before the termination was to occur, the parties entered into the settlement agreement at issue in this case.
The agreement voided the termination of appellant's employment, and provided that appellant would resign effective September 1, 1987. It also provided that the Commission would pay appellant the sum of six thousand dollars in satisfaction of "costs and expenses," and further provided that all personnel records, other than routine data, generated during 1987 pertaining to appellant, would be held by the Commission as non-public records pursuant to the "Right to Know Act," Act of June 21, 1957, P.L. 390, § 1 et seq., 65 P.S. § 66.1 et seq. The agreement further established that information as to these records would not be disclosed publicly, and that, if inquiries were ever made to the Commission regarding the quality of appellant's job performance, the Commission would state that his performance had been "very good," inasmuch as this corresponded to appellant's *226 performance evaluation of December, 1986. The agreement obliged appellant to withdraw the charges of racial discrimination.
On April 25, 1988, appellant, alleging that the Commission had committed a material breach in that the Commission had purportedly disclosed to a member of the general public certain unfavorable allegations regarding appellant's job performance, commenced this action seeking equitable rescission of the settlement agreement. On June 13, 1988, appellant amended his complaint to include the allegation that the agreement was void under provisions of the "Sunshine Act," Act of July 3, 1986, P.L. 388, No. 84, § 1 et seq., 65 P.S. § 271 et seq. He asserted that the agreement had been adopted by the Commission in a private session which, under the Sunshine Act, should have been open to the public, and, further, that information as to the private nature of the session had only recently come to light. In seeking to be released from the agreement, appellant admittedly desires to reinstate his discrimination complaints.
The jurisdiction of the Board of Claims is set forth under section 4, which provides in pertinent part:
The Board of Claims shall have exclusive jurisdiction to hear and determine all claims against the Commonwealth arising from contracts hereafter entered into with the Commonwealth, where the amount in controversy amounts to $300.00 or more.
In Shovel Transfer and Storage, Inc. v. Simpson, et al., 523 Pa. 235, 565 A.2d 1153 (1989), this Court recently stated that the determining factor as to whether the jurisdiction of the Board of Claims is invoked depends on whether the claim asserted against the Commonwealth is founded in contract.
The mere fact that the validity of a contract may turn upon issues of statutory duty does not create a statutory right of action. Rather, the focus is upon the origin of the rights claimed. In the instant matter, Shovel's objective is to establish the enforceability of the contract and compel its performance. Shovel's right to pursue this *227 objective derives necessarily from the rights and obligations created by the contract, not by the alleged violation of a statute by the PLCB or the appellants.
.....
Shovel's action thus assumes the nature of a breach of contract action in which a traditional remedy for the breach, namely specific performance, is sought. The proper forum for this type of action, therefore, is the Board of Claims.
Simpson, 523 Pa. at 243, 565 A.2d at 1156.
In Simpson it was clear that the dispute centered upon the validity of a contract. The statutory provision was only relevant insofar as it may or may not have impacted upon that question. Thus in Simpson we rejected Shovel's characterization of its claim as one premised upon a statutory mandate and identified the claim being asserted as one arising from contract. We held that the jurisdiction of the Board of Claims was properly invoked.
In ruling that the exclusive jurisdiction of the Board of Claims was invoked in this case, the court below found that the instant action "is based upon a contract." Keenheel v. Commonwealth, Pennsylvania Securities Exchange Commission, et al., Slip op. at 2, No. 976 (Pa.Commw. July 25, 1988). While it may be true that the contract is the subject of the instant action, it is not the basis for the claim asserted by the appellant against the Commonwealth. Indeed, the instant contract poses an impediment to the claim appellant seeks to assert against an agency of the Commonwealth. This distinction is critical to the instant inquiry. We are not here concerned with a contract claim being asserted against the Commonwealth. To the contrary, appellant has brought the instant action in an effort to avoid any obligation arising from the challenged contract.
The jurisdiction of the Board of Claims is not triggered simply because a contract may be involved in an action, rather the jurisdictional predicate is satisfied only when the claimant relies upon the provisions of that contract in *228 asserting the claim against the Commonwealth. The instant case indeed is the converse of Simpson. In Simpson, although a statutory argument was raised, its purpose was to seek the enforcement of the underlying contract and thus rendered the matter one arising from contract. In contrast, in this instance, the appellant is attempting to nullify the contract which serves as an impediment to the statutory claim that he wishes to assert. The instant action is one in equity to declare the contract a nullity so that appellant would then be free to renew his charges of discrimination against the Commonwealth. While the immediate subject of the controversy focuses on an alleged contract, this is not an action in which appellant is asserting a claim against the Commonwealth under the contract at issue.
The significance of the Board of Claims is that it provides a forum in which companies which do business with the Commonwealth and its various agencies can present contractual disputes and seek remedies for the Commonwealth's alleged breaches. Such actions would be impossible were it not for the Board of Claims whose enabling statute expressly abrogates the sovereign immunity that otherwise shields the Commonwealth from suits of such nature. 72 P.S. § 4651-1.[2] The result, absent this exception to sovereign immunity, would be that parties with contractual complaints against the Commonwealth would be without recourse. Such a circumstance would dissuade others from providing contractual services to the Commonwealth.
In order for the objectives of the Board of Claims to be fulfilled, however, a claim must be instituted against the Commonwealth seeking the enforcement of rights that were created by contract. See Simpson, supra. See also, XPress Truck Lines, Inc. v. Pennsylvania Liquor Control *229 Board, 503 Pa. 399, 469 A.2d 1000 (1983); Ezy Parks v. Larson, 499 Pa. 615, 454 A.2d 928 (1982). The Board of Claims was created to provide a remedy where there would otherwise be none for a party adverse to the Commonwealth. The language of the enabling statute is specific. It vests no reciprocal right in the Commonwealth to avail itself of the jurisdiction of the Board of Claims. Sovereign immunity does not preclude the Commonwealth from pursuing a claim arising from contract in the traditional judicial forum. Thus, where the Commonwealth is seeking to derive the benefits of the contract, the jurisdiction of the Board of Claims is not invoked.
Notwithstanding, the Commonwealth argues that this matter belongs in the Board of Claims because, if appellant succeeds in rescinding the contract, he will be compelled to return the six thousand dollars the Commonwealth has paid to him pursuant to the agreement. The Commonwealth insists, therefore, that appellant has lodged "[a claim] against the Commonwealth, arising from [a contract] entered into with the Commonwealth, where the amount in controversy amounts to $300.00 or more." 72 P.S. § 4651-4. This is pure sophistry. The argument misconstrues the focus of the statute. According to the Commonwealth's own contention, any monies paid as a result of appellant's action will necessarily be paid by appellant and not by the Commonwealth. Thus, any action for reimbursement would be available to the Commonwealth, and not to appellant. Under the clear language of section 4, such an action would not be within the jurisdiction of the Board of Claims.
The language of section 4 must be given full effect. Its terms explicitly require that the Board of Claims ". . . hear and determine all claims against the Commonwealth arising from contracts hereafter entered into with the Commonwealth, where the amount in controversy amounts to $300.00 or more." Clearly the statute is not applicable to the instant dispute. As stated, appellant is not asserting a contractual claim against the Commonwealth for an amount *230 in excess of $300.00. To the contrary, he is seeking to nullify a contract to relieve himself of any obligations by which he otherwise would be restricted. The rights he asserts do not arise "from the contract," but from a separate claim he wishes to reinstate. Finally, the six thousand dollars is not an "amount in controversy." What is in controversy is the validity of the settlement agreement. It is conceded that, if the agreement is a nullity, the six thousand dollars passed thereunder must be returned; nonetheless its return is not the subject of the instant dispute. Because the requirements of the statute have not been met, the jurisdiction of the Board of Claims has not been invoked.
For the foregoing reasons, the order of the Commonwealth Court is reversed, and the matter is remanded to that court for disposition.[3]
STOUT, Former Justice, did not participate in the decision in this case.
ZAPPALA, J., files a concurring opinion.
FLAHERTY, J., files a dissenting opinion.
ZAPPALA, Justice, concurring.
I concur in the judgment.
We have in the past held that the Commonwealth Court has no equitable jurisdiction to hear a claim for specific performance, or to enjoin conduct that would allegedly impair contract rights, because a claim before the Board for money damages for breach of contract would be an adequate legal remedy. We have thus foreclosed attempts to enforce contractual obligations by equitable means, reasoning *231 that to do so would infringe on the exclusive jurisdiction of the Board of Claims. See Emergency Medical Services Council of Northwestern Pennsylvania, Inc. v. Department of Health, 499 Pa. 1, 451 A.2d 206 (1982), and Xpress Truck Lines, Inc. v. Pennsylvania Liquor Control Board, 503 Pa. 399, 469 A.2d 1000 (1983).
In this case, the Appellant is attempting to rescind an agreement. As such, his claim does not seek to enforce a contract; it seeks a declaration that the contract is of no effect. He seeks to be relieved of his obligations so that he may reinstitute his complaints before the Pennsylvania Human Relations Commission and the Equal Employment Opportunity Commission. If the Commonwealth Court hears such a claim, there is no danger that the Board's authority will be compromised. If the court grants rescission, there is no contract to be enforced. If the court does not grant rescission, the plaintiff may then have a claim, within the jurisdiction of the Board, arising from the contract and its alleged breach.
When equitable rescission is sought as a remedy for breach of contract, it must generally be shown that the remedy at law is inadequate. Casey v. Philadelphia Auto Sales Co., 428 Pa. 155, 236 A.2d 800 (1968). We have also stated that where the remedy at law before the Board of Claims is inadequate, as for example where a fundamental constitutional right would be threatened, there might be grounds for judicial intervention to provide equitable relief even though the case turned on a contract. Ezy Parks, 499 Pa. at 628, 454 A.2d at 935; Xpress Truck Lines, Inc., 503 Pa. at 408-409, 469 A.2d at 1005. By seeking rescission, the appellant is necessarily asserting that the remedy before the Board of Claims is inadequate. Whether this is so is yet to be adjudicated. If the remedy at law is inadequate, the matter is properly within the jurisdiction of the Commonwealth Court. If the remedy is adequate, and rescission is inappropriate, the matter can then be pursued, if at all, before the Board of Claims.
*232 In addition to seeking rescission, the appellant sought a declaration that the agreement was void on grounds that the SEC adopted it in violation of the Sunshine Act. The Commonwealth Court clearly has exclusive, original jurisdiction to hear and determine such a claim. 65 P.S. § 285; 42 Pa.C.S. § 761(a)(4), (b). It was thus error for the court to transfer this claim as well.[1]
For these reasons, I agree that the Order of the Commonwealth Court transferring this case to the Board of Claims is properly reversed and the matter remanded to that court for disposition.
FLAHERTY, Justice, dissenting.
In transferring this case to the Board of Claims, the Commonwealth Court relied upon 72 P.S. § 4651-4, which defines the jurisdiction of the Board of Claims as follows: "The Board of Claims shall have exclusive jurisdiction to hear and determine all claims against the Commonwealth arising from contracts hereafter entered into with the Commonwealth, where the amount in controversy amounts to $300.00 or more." (Emphasis added). Applying this clear statutory language, we have repeatedly held that claims arising exclusively from contractual obligations are to be addressed by the Board of Claims rather than by the Commonwealth Court. Shovel Transfer and Storage, Inc. v. Simpson, 523 Pa. 235, 565 A.2d 1153 (1989); Delaware River Port Authority v. Thornburgh, 508 Pa. 11, 16-17, 493 A.2d 1351, 1354 (1985); Emergency Medical Services Council, Inc. v. Department of Health, 499 Pa. 1, 7, 451 A.2d 206, 208-09 (1982).
Appellant contends, however, that because there has been no request for an award of damages, there is no "claim" against the Commonwealth and no "amount in controversy," *233 such as, under 72 P.S. § 4651-4, supra, would vest the Board with jurisdiction. I do not agree. Appellant's "claim" is one for equitable rescission, based upon an alleged breach of contractual duties. With regard to the requirement that there be an "amount in controversy" of at least three hundred dollars, it is sufficient to note that there has been a payment of six thousand dollars as consideration for the contract at issue.
Appellant's claim in equity is like any other for an alleged breach of contract, and, as such, it falls within the exclusive jurisdiction of the Board of Claims. The Board's jurisdiction is not diminished by the fact that it is powerless to award forms of relief other than monetary damages. Ezy Parks v. Larson, 499 Pa. 615, 626-29, 454 A.2d 928, 934-36 (1982). This comports with the principle that, in determining whether a forum has subject matter jurisdiction over a given case, the test is whether it is competent to decide controversies of the general class to which the case presented belongs, and not whether it is able to grant the particular relief sought upon the cause of action pleaded. Kaelin v. University of Pittsburgh, 421 Pa. 220, 224-25, 218 A.2d 798, 800 (1966), cert. denied, 385 U.S. 837, 87 S. Ct. 84, 17 L. Ed. 2d 71 (1966). Actions based upon contract must be referred to the Board of Claims, notwithstanding the fact that, where equitable relief is sought, the Board lacks power to act in equity. Ezy Parks, 499 Pa. at 626-28, 454 A.2d at 934-35 (injunctive relief sought); Emergency Medical Services Council, Inc., 499 Pa. at 6-8, 451 A.2d at 208-09 (specific performance sought). Thus, the fact that the Board cannot award equitable rescission does not deprive it of jurisdiction in this case.
The legislature has clearly expressed its intent that claims against the Commonwealth arising from contract, i.e., actions based upon breach thereof, are to be handled by the Board. The Commonwealth has consented to being sued in contract only through its agency, the Board of Claims. In creating the Board and subjecting the Commonwealth to suits arising from contracts, the legislature engaged *234 in a limited waiver of sovereign immunity. Simpson, supra; Ezy Parks, 499 Pa. at 627-28, 454 A.2d at 934-35. When the ban imposed by the common law doctrine of sovereign immunity was abrogated, the legislature modified 72 P.S. § 4651-4, supra, by inserting the word "exclusive" to emphasize that only the Board should hear these matters. Emergency Medical Services Council, Inc., 499 Pa. at 7-8, 451 A.2d at 209.
The purpose of equitable rescission is to restore parties as nearly as possible to their former positions with regard to the subject matter of a contract. Fichera v. Gording, 424 Pa. 404, 227 A.2d 642 (1967). When equitable rescission is sought as a remedy for breach of contract, it must generally be shown that the remedy at law is inadequate. Casey v. Philadelphia Auto Sales Co., 428 Pa. 155, 236 A.2d 800 (1968). We have said that only where the remedy at law before the Board of Claims would be inadequate, as for example where a fundamental constitutional right would be threatened, might there be grounds for judicial intervention to provide equitable relief. Ezy Parks, 499 Pa. at 628, 454 A.2d at 935. In the present case there has been no showing that appellant lacks an adequate remedy before the Board of Claims. Accordingly, equitable rescission is not available, and the claim regarding breach should properly be heard by the Board.
With regard to appellant's assertion of a violation of the Sunshine Act, it is argued that the contract should be declared void on grounds the SEC failed to adopt it in a manner that complied with provisions of the Sunshine Act requiring certain official actions to be taken only during public sessions. See 65 P.S. § 271 et seq. Under the express statutory jurisdiction of the Commonwealth Court, the Board of Claims cannot be viewed as having jurisdiction to decide such matters.
The Commonwealth Court has been vested with exclusive original jurisdiction to address actions brought against agencies of the Commonwealth under the Sunshine Act. 65 P.S. § 285 ("The Commonwealth Court shall have original *235 jurisdiction of actions involving state agencies . . . to render declaratory judgments or to enforce this [Sunshine] act, by injunction or other remedy deemed appropriate by the court."); 42 Pa.C.S. § 761(a)(4), (b) (jurisdiction of the Commonwealth Court in such cases is "exclusive"). Thus, the Board of Claims was clearly not intended by the legislature to serve as a forum for adjudicating the statutory duties of Commonwealth agencies under the Sunshine Act.
Accordingly, I would reverse the order transferring this case to the Board of Claims, and remand to the Commonwealth Court for disposition of the Sunshine Act claim. If, on remand, the contract were held to be valid, the matter should then be transferred to the Board of Claims for consideration of the claim of breach.
NOTES
[1] Act of 1937, as amended 1978, Oct. 5, P.L. 1104, No. 260, § 3.
[2] 1 Pa.C.S. § 2310 provides that the Commonwealth is immune from suit "except as the General Assembly shall specifically waive the immunity." The statute creating the Board of Claims provides that sovereign immunity is specifically waived in instances where the claim falls within the jurisdiction of the Board of Claims. 72 P.S. § 4651-4, as amended 1978, Oct. 5, P.L. 1104, No. 260, § 3.
[3] Since we have concluded that this matter is properly a matter for the Commonwealth Court, we need not dwell upon Keenheel's alternative argument that his claim of violation of the Sunshine Act, Act of July 3, 1986, P.L. 388, No. 84, § 1 et seq., 65 P.S. § 271 et seq., would necessarily mandate such a result. We note, however, that if the statutory provision merely relates to the issue of the validity of the underlying contract being asserted against the Commonwealth, this would not deprive the Board of Claims of jurisdiction. Shovel Transfer and Storage, Inc. v. Simpson, 523 Pa. 235, 565 A.2d 1153 (1989).
[1] It would appear that, as a matter of law, this claim must fail, since the action complained of was a personnel matter, which need not be considered at an open meeting under the express terms of the Act, 65 P.S. § 278(a)(1). As this matter was decided below on preliminary objections, however, we are not in a position to rule on this point and it must be decided by the Commonwealth Court on remand. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561650/ | 18 So. 3d 803 (2009)
Tomarcus Monte FULKS
v.
STATE of Mississippi.
No. 2007-KA-01572-SCT.
Supreme Court of Mississippi.
July 23, 2009.
Rehearing Denied October 22, 2009.
Office of Indigent Appeals by W. Daniel Hinchcliff, Leslie S. Lee, attorneys for appellant.
Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
KITCHENS, Justice, for the Court.
¶ 1. This is a case involving the State's duty to disclose evidence to criminal defendants under Rule 9.04 of the Uniform Rules of Circuit and County Court Practice. Finding that the State violated its *804 obligation in this case, we reverse the convictions and remand for a new trial.
¶ 2. In February 2007, a Lowndes County Circuit Court jury convicted Tomarcus Fulks of armed robbery and aggravated assault in connection with a July 2005 house break-in. One of the State's key witnesses was Joshua Glenn, who originally told police that he and Fulks had not participated in the robbery but merely had sat in a car while recent passengers, unbeknownst to Glenn and Fulks, orchestrated and committed the crime. This account was memorialized and submitted to defense counsel in discovery.
¶ 3. On the day before trial, though, the prosecution advised defense counsel for the first time that Glenn instead would testify that he had seen Fulks kick in the back door of the home, lead the robbery party inside, and then quickly escape the house, followed by the other participants and in possession of some sort of electronic device from the residence. For its part, the prosecution contended that it had provided a complete discovery packet to Fulks's previous attorney and that any material lost from that packet could not be attributed to a failure on the part of the State. Fulks's trial attorney, Jeffrey Hosford of Starkville, countered that the substance of Glenn's new account had never been included in any discovery production until the district attorney mentioned it on the day before trial. The record does not definitively settle this dispute, but prosecutors offered no rebuttal to the defense's counterargument, and the State appears to concede the point in its brief to this Court.[1] Fulks moved the trial court for a continuance, and the motion was denied.
¶ 4. At trial, in addition to Glenn's revised testimony, the State adduced evidence, inter alia, that, once inside the house and during the commission of the robbery, one of Fulks's cohorts assailed the homeowner with a baseball bat. The jury convicted Fulks of both armed robbery and aggravated assault, and the trial judge sentenced Fulks to a total of forty years in prison.[2] On appeal, Fulks's sole assignment of error is his contention that the trial court erred by declining to grant the defense's motion for a continuance.
¶ 5. Rule 9.04(A) of the Uniform Circuit and County Court Rules provides the applicable discovery rule, which requires prosecutors to disclose evidence "which is known or by the exercise of due diligence may become known to the prosecution." Specifically pertinent to the instant case is Subsection 1, which requires disclosure of "[n]ames and addresses of all witnesses in chief proposed to be offered by the prosecution at trial, together with a copy of the contents of any statement ... and the substance of any oral statement made by any such witness[.]" Miss. Unif. Cir. & Cty. R. 9.04(A)(1). When a party fails to adhere to this rule, "the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances." Miss. Unif. Cir. & Cty. R. 9.04(I). On appeal, such a decision is reviewed for an abuse of discretion resulting *805 in manifest injustice. Payton v. State, 897 So. 2d 921, 942 (Miss.2003).
¶ 6. The seminal case on this subject is Box v. State, 437 So. 2d 19 (Miss.1983). The Box Court generally described the issue as a tension that, as a matter of constitutional necessity, must favor the defendant.
The question presented here brings into direct conflict two important interests. First, there is the prosecution's interest in presenting to the jury all relevant, probative evidence. On the other hand, there is the accused's interest in knowing reasonably well in advance of trial what the prosecution will try to prove and how it will attempt to make its proof which, of course, includes the names of persons the State expects to call as witnesses.
This State is committed to the proposition that these conflicting interests are best accommodated and that justice is more nearly achieved when, well in advance of trial, each side has reasonable access to the evidence of the other.
Id. at 21.
¶ 7. Judicial analyses on this subject are necessarily fact intensive. The facts of this case mirror those of the Box case very closely. In Box, the defendant was charged with armed robbery. The prosecution adduced testimony from the owner of the automobile used in the robbery and photos of that car but provided notice of that evidence to the defense, as in the instant case, on the day before the trial commenced. Id. "Although we are not hide-bound to reverse every case in which there was some failure by the State to abide by a discovery rule," id., the Box Court held that such an ill-timed revelation demanded reversal of the defendant's conviction. "A rule which is not enforced," the unanimous Court concluded, "is no rule." Id.
¶ 8. Obviously, the instant case is distinct from Box in that Fulks's attorney was aware of the State's intent to offer Glenn's testimony. However, in the case at bar, the State's eleventh-hour disclosure of the unexpected content of this witness's testimony produced the same result as that which drew the Box Court's condemnation: a trial by ambush in which critically important evidence was sprung on a defendant with such abruptness that defense counsel had time neither to investigate its veracity nor to make meaningful preparation to meet it.
¶ 9. Clearly, the broadly delineated rule governing these decisions, combined with the scope of review through which this Court is bound to view them, makes the reversible error alleged in this appeal rare indeed. Nevertheless, this is one of those rare cases. The prosecution violated Rule 9.04(A)(1) when it failed to notify the defense of Glenn's changed story until the day before trial; this is precisely the sort of "trial by ambush" that Mississippi has endeavored to outlaw. Byrom v. State, 863 So. 2d 836, 870 (Miss.2003). Therefore, the trial judge was obligated to undertake some remedial measure consistent with Rule 9.04(I) to avoid manifest injustice.
¶ 10. When a prosecutor reveals evidence on the eve of trial that should have been disclosed earlier, and when that evidence completely undercuts the defense's theory of the case and renders most of its trial preparations worthless, then the only effective remedy is a continuance. Otherwise, the defense attorney is left with inadequate time and opportunity to investigate the newly arisen evidence, evaluate its trustworthiness, discuss its implications with his client, allow time for due consideration thereof, and, if necessary, to develop a new trial strategy.[3]*806 This quandary seems to have gone unrecognized by the trial judge, who treated Glenn's new revelation merely as an impeachment opportunity for the defense.
BY THE COURT: What would a continuance accomplish? You've talked to Mr. Glenn today.
BY MR. HOSFORD: Yes, Your Honor.
BY THE COURT: You got the statement that he gave to police to impeach him by. What more would a continuance do other than delay the case?
BY MR. HOSFORD: Your Honor, it would allow me
BY THE COURT: You have the vehicle necessary to impeach him if he changes my [sic] his statement.
BY MR. HOSFORD: Your Honor would allow me an opportunity to investigate those allegations further and to verify whether or not there [sic] are true. There may be possible other witnesses that can help my client.
¶ 11. Although the trial court was not persuaded by these clearly valid concerns, they were precisely the impetuses that led this Court to reverse and remand in the case of a defendant against whom the prosecution decided to introduce evidence of prior crime but to whom the prosecution did not disclose that plan until the morning of trial, even though prosecutors happened upon the evidence only that same day. McCullough v. State, 750 So. 2d 1212, 1217 (Miss.1999). In explaining the Box holding, the Court wrote:
When faced with previously undisclosed evidence to which the defendant has objected, the trial court should give the defendant a reasonable opportunity to familiarize himself with the evidence. If the defendant thereafter believes he may be prejudiced by admission of the evidence because of his lack of opportunity to prepare to meet it, he must request a continuance. ... If he indeed requests a continuance, the state may opt to proceed without the undisclosed evidence, else the trial court must grant the continuance. Failure to follow the Box guidelines is prejudicial error, requiring reversal and remand.
McCullough, 750 So.2d at 1217 (quoting Snelson v. State, 704 So. 2d 452, 458 (Miss. 1997)) (emphasis included). Notably, as was so in Box and McCullough, our analysis in the case at bar necessarily depends on the fact that Glenn's revised account of the night in question amounts to "previously undisclosed evidence." McCullough, 750 So.2d at 1217. In Box, a key witness was not revealed to the defense until the evening before trial, even though the State knew nine months ahead of trial that the witness might testify. Box, 437 So.2d at 21. Likewise, in today's case, we know the State was aware that Glenn had changed his story some months in advance, as the record indicates that police were aware of the new version during the court term immediately preceding the one during which Fulks stood trial. These cases do not present situations in which, for example, a witness changes his story on the stand. Such a situation might present other problems requiring review; but for purposes of the Box rule, such testimony would not amount to "previously undisclosed evidence" because the State would have had no knowledge thereof to disclose. We do not attempt today to identify a hard and fast temporal interval beyond which a *807 Rule 9.04 violation crystalizes; indeed, given the fact intensity of these inquiries, such a determination likely is impossible.
¶ 12. Undoubtedly, any rule subject to a review for an abuse of discretion defies the application of a "bright line" to one side of which lies fairness and to the other side of which lies injustice. But there can be no doubt that, under these facts, twenty-four hours was an insufficient period of time for defense counsel to react effectively to a sea change of this magnitude. Any other judgment is not only a violation of Rule 9.04 but also is a serious infringement upon the defendant's right to due process of law under the Fourteenth Amendment to the U.S. Constitution and Article 3, Section 14, of the Mississippi Constitution. See Love v. State, 441 So. 2d 1353 (Miss. 1983) (holding that refusal to allow drug defendant to analyze substance in question prior to trial, when defendant's case centered on identification of substance, required reversal). Compare Ramos v. State, 710 So. 2d 380 (Miss. 1998) (failure to disclose inculpatory evidence to the defendant was reversible error), with Payton v. State, 897 So. 2d 921 (Miss.2003) (holding that trial court did not abuse discretion in refusing to grant continuance when untimely disclosed evidence concerned trivial matters).
¶ 13. Finally, at the very least, the about-face in Glenn's account amounted to "[i]mpeachment evidence ... that, if disclosed and used effectively, ... may [have] ma[d]e the difference between conviction and acquittal." United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (holding that impeachment evidence is "favorable evidence" for purposes of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)). Therefore, because our Rule 9.04 "is obviously much broader than Brady," Hughes v. State, 735 So. 2d 238, 254 (Miss.1999) (citing Brady, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215), a violation of the rule handed down by the U.S. Supreme Court's most notable case on discovery in criminal cases necessarily indicates a failure to adhere to Mississippi's more comprehensive Rule 9.04.
¶ 14. Based on the facts of this case, our fidelity to the rule of Box demands that we find the trial court's decision not to grant a continuance when the State disclosed inculpatory evidence on the eve of trial to be error that prejudiced the defendant's ability to put on his case, culminating in manifest injustice. The convictions must be reversed, and the case is remanded for a new trial.
¶ 15. REVERSED AND REMANDED.
WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR.
NOTES
[1] On page 8 of the appellee's brief in this case, the State says: "[W]hen the prosecutor was interviewing witnesses in preparation for trial ... Glenn gave a statement that ran contrary to his previous recorded statement.... Hosford was provided with Glenn's original recorded statement to law enforcement in the initial discovery packet" (emphasis added).
[2] The total sentence included a thirty-five-year sentence for the robbery and a five-year sentence, to run consecutively, for the aggravated assault.
[3] "By no means does [a Box violation] mean invariably that the defendant will be entitled to a continuance until the next term of court. There will no doubt be cases where postponement of a day or two, or in some cases even an hour or two, will suffice." Reuben v. State, 517 So. 2d 1383, 1386 (Miss.1987) (quoting Foster v. State, 484 So. 2d 1009, 1011 (Miss. 1986)). These determinations necessarily depend on the nature and extent of each discovery violation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556550/ | 30 So.3d 510 (2010)
HILAIRE
v.
STATE.
No. 5D09-3924.
District Court of Appeal of Florida, Fifth District.
March 22, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304431/ | Mr. Justice Humphreys
delivered the opinion of the Court.
Long was convicted of murder in the second degree and sentenced to serve not. more than twenty years in the State Penitentiary. He appealed his conviction to the Court of Criminal Appeals, where it was reversed by that Court, particularly on authority of Poteete v. State, 68 Tenn. 261. We granted certiorari because we thought under the facts the law of the case was best stated in Galvin v. State, 46 Tenn. 283, and that though the case had to be retried, it should be tried in accordance with the law as there stated.
*240For a full statement of tbe facts of the case, both for the State and defendant, reference is made to the Court of Appeals opinion. It is sufficient for the purpose of this opinion to state, that it was the theory of the State that on the night in question a posse of some eight law officers went to Long’s home to arrest him on a warrant charging him with the misdemeanor of assault and battery. That they arrived there late at night, and identified themselves by calling out who they were and their purpose in being there. That this announced purpose was met by promises and threats on Long’s part that he would kill anyone who entered his house and sought to arrest him. That the officers then forced an entrance by kicking open the back door and entering. That the lead officer had a flashlight in one hand with which he illumined Long standing at the foot of his bed with a shotgun, and a pistol in the other. Upon this forceful entry, Long announced he was about to shoot, at which the lead officer lurched to the ground coincidental with Long’s shot. And that as he fell to the floor, the pistol the lead officer had in his hand fired. That Long’s shot killed the second officer, and in the immediate interval following tins, the other two officers made their escape from the house. After this some shots were exchanged between the posse and Long, following which Long surrendered.
It was a part of the State’s theory that Long knew that his night callers were peace officers, knew some of them personally, and was on friendly terms with at least one of them, the man who was killed. That there was no reason or excuse for Long’s action except general malice and ill will.
Briefly, the defendant’s theory of the case was that he and his wife and two other parties, one a woman, *241had been drinking at his house earlier in the evening. That he and his wife had had an argument into which the other woman joined, at which he slapped her. That the other two parties left, and he went to bed. That he was aroused by a noise and by his wife telling him of a commotion at the back door. Long’s testimony on this matter is as follows:
“Q. Now then, after you went to sleep just tell the jury here what you first knew or became conscious of?
A. Well, my wife went back there, come back there to wake me up and said somebody was breaking the door down, well, I just grabbed — I had my gun there right beside of my bed.
Q. Were there any lights on in your home at that time?
A. No sir, we left the front — back porch light on.
Q. Now where was the gun located?
A. Just right to the right at the side of the bed.
Q. Did you have a gun rack there, sir?
A. Yes sir.
Q. Now, just tell the jury what happened.
A. Well, at the time I got up and just slide down on the bed I retched for my gun, the door they’d broke through, and they flashed the light in my ¿yes and they was a shot and then I fired.
Q. Did. you know who you were firing at?
A. No sir, I didn’t.
Q. Now then, just tell the jury what happened after that.
*242A. Well, X was in such a shock that all the shooting started and I don’t know what happened. My wife she was crying and said, I’m shot, and the plaster and glass was flying all over the house and I just don’t know what happened, I fell in behind the bed and I told her to stay down on the floor or she’d get shot. ’ ’ Yol. II, Tr. pp. 114-115.
Although Long didn’t know it at the time, it being his testimony and theory he did not even know his night callers were peace officers, the arrest warrant the officers were attempting to serve, although it described the offense of assault and battery and charged Long therewith, had not been sworn to by the prosecuting party before the magistrate issuing it. The magnistrate had made it out in full except for the signature of the affiant, and had turned it over to a peace officer, who carried it to another place where the affiant attached her signature. So, as held by the Court of Criminal Appeals the warrant was void.
On these facts, it was the theory of defendant Long that the void warrant was no justification for the trespass that deceased, in company with the other peace officers, committed, and that under all of the circumstances he was warranted in resisting the night assault upon his home and upon himself to the extent employed.
The trial judge submitted the case to the jury on instructions concerning self-defense, but with respect to the validity or invalidity of the warrant and the consequences thereof he instructed the jury,
“You have heard some testimony concerning a charge of assault and battery set out in a paperwriting, designated a. State’s warrant. You will not consider whether *243it was technically valid or invalid. You may consider such testimony as explanation of the presence of the deceased and other officers at the scene if it does so explain that.”
It was on account of this instruction, that the Court of Appeals reversed, citing from Poteete v. State, supra. And, while it unquestionably was not so intended, the effect of what was said in this part of the Court of Criminal Appeals opinion leaves the inference that any slaying of a peace officer with a void warrant may be justified, and is never more than manslaughter. This is not the law in Tennessee.
The law in Tennessee on these issues is best stated in Galvin v. State, 46 Tenn. 283, 290-292, as follows:
“The principal ground of defense relied upon in this case is, that the killing of Fenton was committed by Galvin, in the defense of his person against an assault or unlawful arrest, and therefore, must be held to have been either justifiable homicide, or manslaughter. [291] The evidence clearly shows that Fen-ton at the time of the killing, was attempting to arrest the defendant. If Fenton had no right to make such arrest, under the circumstances proven in the case, he was guilty of an assault, which the defendant had the right to resist. And though the defendant in such case had no right, unless he had reason to believe that he was in immediate danger of death, or of great bodily harm, to take the life of the officer, the provocation of the unlawful arrest, might be sufficient to reduce the offense to the grade of manslaughter : 2 Whart., Am. Cr.Law, secs 981, 1034-7; Tackett v. State, 3 Yerg., 392.
“The doctrine has sometimes been stated without qualification, that homicide, committed in the act of *244resistance to an illegal arrest, will be manslaughter, and not murder. Manslaughter is the unlawful killing of another without malice, either express or implied. Where the homicide is shown to have been committed on sudden quarrel, and in the heat of blood, the law making a concession to human infirmity, refuses to imply the malice, which would, under other circumstances, be presumed from the use of the deadly weapon, and ‘mercifully hesitates to put on the same footing of guilt, the cool deliberate act, and the result of hasty passion.’
‘ ‘ But where no adequate provocation exists, or where no passion or heat of blood results, the slayer cannot extenuate his cool, deliberate act of killing by the pretense that he had a right to be in a passion.
“The law recognizes the sacredness of the right of [292] personal liberty, and jealously guards it from violation. It recognizes the fact, that an invasion of that right may be, and often is, the most aggravated provocation. But the only effect to be given to the fact that the killing was in resisting an illegal arrest, rests upon the proven or presumed provocation; and the law does not arbitrarily reduce to the grade of manslaughter every homicide, which may be committed in the act of such resistance, without reference to the presence or absence of actual malice and deliberation.
“An unlawful arrest, made bona, fide under color of legal authority, is a trespass, and like other trespasses, it may, or may not, in the particular case, constitute an aggravated provocation. And the mere fact that the officer or citizen attempting the arrest, and being slain in so doing, has exceeded his authority, does not necessarily reduce the killing to manslaughter, if the slayer *245had no reason to believe himself in imminent danger of life, or great bodily harm, and the homicide were, in fact, perpetrated, not in passion or sndden heat, upon the provocation of the arrest, but with cool, deliberate malice and premeditation: 1 Archb.Cr.Pr. and Pl., 7 ed., 865; Whart. Amer. Law of Homicide, 64.” 46 Tenn. 290-292.
Again in Hurd v. State, 119 Tenn. 583, 108 S.W. 1964, this Court cited with approval the following note in 66 L.R.A. 353, 387, as follows:
“In case of an unlawful arrest, or attempt to arrest, killing the person attempting it is, as a general rule, manslaughter only. A person seeking unlawfully to arrest another is a trespasser, and the trespass is a ground of provocation sufficient to reduce the homicide to manslaughter, though it is not so reduced unless the person sought to be arrested actually acted under the influence of hot blood induced by the provocation. And such an attempt unlawfully to arrest gives the person sought to be arrested a right to resist, even to the extent of killing his opponent, if such killing is necessary to save himself from serious bodily harm; but the necessity must been have real and apparent.
“The amount of force which he may use in self-defense, however, is that only which is necessary to prevent the carrying out o,f the unlawful purpose. If excessive force is used in making resistance, the right of self-defense is eliminated, and killing by means calculated to cause death, with knowledge that the intent was only to arrest, is murder; and an unintentional killing in making such resistance, by means not calculated to cause death, is manslaughter. ’ 119 Tenn. 595, 108 S.W. 1068.
*246Unquestionably, the instruction given to the jury with respect to the warrant was harmful error against the defendant. Likewise, the State was entitled to have the jury instructed in accordance with the general tenor of the quotations above.
The State urges the Court to apply the doctrine of Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900, and fix the punishment as though for voluntary manslaughter. This cannot be done. In Corlew the trial was free from error, except the punishment was fixed for grand larency, in the absence of proof of value of the goods. So, the court simply applied the statute penalty to the facts established in a fair and otherwise error free trial.
But, having found positive harmful error committed against the defendant in the present case, the Corlew doctrine cannot be applied.
The result is, that the judgment of the trial court is set aside and the case is remanded for a new trial in accordance with this opinion.
Burnett, Chief Justice, and Dye®, Chatttn and Ckeson, Justices, concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/397385/ | 665 F.2d 500
Robert D. BLAIR, Appellant,v.UNITED STATES of America, Appellee.Charles L. MOORE, Appellant,v.UNITED STATES of America, Appellee.William G. DODDS, Jr., Appellant,v.UNITED STATES of America, Appellee.
Nos. 80-5207 to 80-5209.
United States Court of Appeals,Fourth Circuit.
Argued July 16, 1981.Decided Nov. 30, 1981.
J. Flowers Mark, Alexandria, Va. (William B. Moffitt, Barry Wolf, Mark & Moffitt, P.C., John Kenneth Zwerling, Jonathan Shapiro, Zwerling & Shapiro, Alexandria, Va., Robert G. Fierer, Atlanta, Ga., Myron L. Wolfson, Towson, Md., on brief), for appellants.
Paul R. Kramer, Deputy U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., on brief), for appellee.
Before PHILLIPS, MURNAGHAN and ERVIN, Circuit Judges.
ERVIN, Circuit Judge:
1
Robert D. Blair, Charles L. Moore, Jr., and William G. Dodds, Jr. were convicted of traveling in interstate commerce with the intent to further unlawful activity, possessing and conspiring to possess marijuana with the intent to distribute, importing and conspiring to import marijuana, and aiding and abetting, in violation of 18 U.S.C. § 1952, 21 U.S.C. §§ 841(a)(1), 846, 952, and 963, and 18 U.S.C. § 2. The district court sentenced all three defendants to five years on each count, the sentences to run concurrently. The defendants assign as error the district court's denial of their motion to suppress evidence of the marijuana. Additionally, Blair charges that the district court abused its discretion and denied him due process in sentencing him. We affirm the defendants' convictions and the sentence imposed upon Blair.
I. Background
2
In the early morning hours of April 29, 1979, Sergeant Hutchinson and another officer of the Charles County, Maryland, sheriff's department arrived at Smith Point on the Potomac River, an area previously used as a drop-off for smuggled drugs, to check into a report that suspicious looking vehicles had been spotted there. They discovered a parked truck, a van, what appeared to be marijuana residue in the van, CB equipment, diesel fuel, a generator, a vacuum cleaner, a tarp, a handtruck, an extension cord, a lamp, a locked trunk, wire, and indentations in the sand apparently made by people running, all of which led them to initiate a drug investigation.
3
As it grew light, the officers noticed a thirty-one foot sailboat off shore, and, after observing a crew member tossing something overboard, they had the sheriff's department instruct the Maryland marine police to board the vessel in connection with the drug investigation underway. The seizure and search of that vessel-not challenged here-turned up no contraband.
4
Customs officer Bass, who had been advised to contact the sheriff's department about the investigation and was therefore present at the boat, along with customs officer Jungerfeld, then received a call from a previously reliable informant regarding another suspect vessel. The informant, who knew of the suspicious vehicles found earlier that day at Smith Point, claimed to have seen a three masted, fifty to sixty foot sailboat with five persons on board and riding low in the water, in the area near Smith Point. The customs officers, accompanied by Maryland marine police officers Sciukas and Furey and by Sergeant Hutchinson, set out on the Potomac in a Boston Whaler owned by the marine police to intercept the vessel.
5
Although aided by a state police helicopter, the officers did not discover any three masted boats. The helicopter patrol, however, had spotted two two masted sailboats, one thirty to forty feet long and the other a fifty foot Morgan. After receiving word that the informant upon reconsideration thought that the boat he saw might have only been two masted and that it was white with a black stripe and had a dinghy in tow, the officers decided to "check out" both vessels.
6
The officers first motored over to the smaller boat, only to learn that a family known to one of them was aboard. They then headed for the fifty foot Morgan, and, after observing that it appeared to be heavily loaded and after checking the area for other boats of similar description and finding none, they approached it. Their observations were that the boat, named the CENTAURUS, was riding low in the water, that it was white and had two masts and three sails and was towing a dinghy, that the vessel's letters were not properly displayed, and that there appeared to be three men on board.
7
As the officers' Whaler closed in upon the sailboat, Sergeant Hutchinson stood in the front, holding a shotgun, and, when the Whaler pulled alongside the CENTAURUS, one of the individuals on board raised his hands and exclaimed, "Don't shoot; we are unarmed; we don't have any guns; you have got us."
8
Sergeant Sciukas immediately started to climb onto the CENTAURUS, and, as he stood on the edge of the Whaler in preparation for boarding with his head and shoulders above the cockpit of the CENTAURUS, he smelled "a very heavy odor of marijuana." When he stepped into the CENTAURUS' cockpit, he could see what he described as bales inside two open hatches. Customs officer Jungerfeld then boarded it, and he too smelled the aroma of marijuana and saw burlap covered bales. Customs officer Bass upon boarding spotted marijuana residue scattered on top of some of the bales and also saw what appeared to be marijuana in a small open container in the galley area. Sergeant Hutchinson then arrested the crew of three, Blair, Moore, and Dodds; customs officer Bass requested the boat's documentation in order to determine if the boat was involved in smuggling; and the boat was searched for other individuals.
9
The CENTAURUS was taken to the Naval Ordinance Station at Indian Head, Maryland, where it was kept until the next day, when the marijuana was unloaded. The marijuana had been packaged in cardboard boxes, some of which had also been wrapped in burlap and secured by tape. Either prior to or during the unloading, however, some of the packages had split and broken open, revealing their contents. After the unloading had been completed, Drug Enforcement Administration (DEA) agents, without having secured a warrant, opened some of the packages for sampling purposes.
10
Subsequent to their indictment, the defendants moved to suppress the evidence of the marijuana as well as film found aboard the CENTAURUS. After conducting an evidentiary hearing, the magistrate recommended denial of the motion to suppress the evidence except for the film. Upon review of the magistrate's findings and conclusions, the district court denied the motion in total, and the defendants were subsequently convicted and sentenced.II. Suppression of the Marijuana
11
On appeal the defendants strenuously argue that the marijuana1 should have been suppressed on two grounds: (1) that the seizure and search of the CENTAURUS was unlawful, and (2) that the opening of the boxes of marijuana after the CENTAURUS had been unloaded constituted an illegal search. We explore in turn each of these grounds for suppression.
A. Seizure and Search of the CENTAURUS
12
The government contends that the seizure and boarding of the CENTAURUS were lawful upon a theory either that the customs officers and marine police had statutory authority to stop and board a vessel, or that the seizure and boarding were reasonable, and hence constitutional, under the fourth amendment. The subsequent search of the CENTAURUS was legal, it asserts, because Sergeant Sciukas' recognition of the pungent odor of marijuana while climbing on board the CENTAURUS supplied probable cause for the search and because the mobility of the vessel created exigent circumstances excusing the acquisition of a warrant. We find lawful the initial stop of the CENTAURUS and agree that the warrantless search was legal because the officers had probable cause and faced exigent circumstances at the time it occurred.
13
The justification for the seizure and search of the CENTAURUS lies in both the statutory powers of the customs officers and state marine police and the reasonableness of the seizure and search under the fourth amendment. These sources of authority are not separate, however, as the government would seem to suggest, but are instead interrelated. The applicable statutes vested the officers with the authority to stop and search the boat. The fourth amendment's requirement of reasonableness, however, limited their statutory authority in these circumstances to that of making a brief investigatory stop upon a reasonable suspicion of illegal activity and searching the boat only upon probable cause.
14
The statutory authority of customs officers to stop, board, and search a vessel is found in 19 U.S.C. § 1581(a), which reads in pertinent part:
15
Any officer of the customs may at any time go on board of any vessel ... at any place in the United States or within the customs waters ... and examine the manifest and other documents and papers and examine, inspect, and search the vessel ... and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel ... and use all necessary force to compel compliance.
16
Maryland marine police officers' statutory authority to stop, board, and search a vessel is similarly broad; Md.Nat.Res.Code Ann. § 8-727 (1974) reads:
17
A natural resources police officer or any law enforcement officer enforcing the provisions of this subtitle (the State Boat Act) may stop, board, or inspect any vessel subject to this subtitle.2
18
By their terms, these statutes appear to grant customs officers and the Maryland marine police and other state law enforcement officers unfettered authority to stop and search a vessel. The statutory language must be read, however, in light of the fourth amendment's requirement that seizures and searches be reasonable,3 for no statute can authorize a violation of the Constitution. See Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973).
19
The initial question before us is whether the stop of the CENTAURUS was a reasonable seizure under the fourth amendment. The requirements that the fourth amendment's reasonableness standard imposes upon a vessel seizure vary greatly according to that vessel's geographic location. A coast guard stop of a vessel on the high seas under 14 U.S.C. § 89(a), for instance, is the equivalent of a border stop and therefore is reasonable even absent any suspicion of criminal activity on board. See United States v. Harper, 617 F.2d 35 (4th Cir.), cert. denied, 449 U.S. 887, 101 S.Ct. 243, 66 L.Ed.2d 113 (1980). The seizure of a vessel by customs officers or the coast guard in customs waters, including the territorial waters running from the coast to the three mile border at sea, may also be reasonable as a border stop requiring no probable cause, if the vessel came from international waters and crossed the territorial border. See, e. g., United States v. Laughman, 618 F.2d 1067, 1072 n.2 (4th Cir.), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980) (dictim); United States v. Tilton, 534 F.2d 1363 (9th Cir. 1976).
20
Our case, however, concerns the seizure of a vessel on inland waters, the Potomac River, with no allegation that the vessel crossed an international border. Under these circumstances, we conclude in accordance with the district court that the fourth amendment requires the customs officers and state police to have had at least a reasonable suspicion that the CENTAURUS was engaged in illegal activity and to have limited the seizure to a brief investigatory stop. This is the prevailing standard of reasonableness under the fourth amendment with respect to a vessel seizure in inland waters, made without sufficient evidence of a border crossing. See United States v. D'Antignac, 628 F.2d 428 (5th Cir. 1980), cert. denied, 450 U.S. 967, 101 S.Ct. 1485, 67 L.Ed.2d 617 (1981); United States v. Zurosky, 614 F.2d 779 (1st Cir. 1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2945, 64 L.Ed.2d 826 (1980); United States v. Odneal, 565 F.2d 598 (9th Cir. 1977), cert. denied, 435 U.S. 952, 98 S.Ct. 1581, 55 L.Ed.2d 803 (1978).
21
The officers on board the marine police Whaler clearly had a reasonable suspicion that the CENTAURUS was engaged in smuggling marijuana: the evidence of a smuggling operation underway at Smith Point, the sighting by a reliable informant of a sailboat riding low in the water, and the discovery of a heavily laden sailboat of similar description, were, as the district court found, objective and articulable facts creating a reasonable suspicion of illegality which justified a brief investigatory stop.
22
The defendants do not protest that the officers had a reasonable suspicion sufficient to support the stop. They do, however, argue that an investigatory vessel stop does not include a boarding and that, by commencing to board the CENTAURUS without probable cause to support a search, Sergeant Sciukas exceeded the limits of the stop. We are persuaded that a boarding is a necessary element of many vessel investigatory stops, given the sound and motion of water, the often significant size differential between the government's boat and the investigated vessel, and the extreme mobility of water craft. At least two other circuits have concluded that an investigatory stop of a vessel permits a boarding. See United States v. D'Antignac, 628 F.2d 428 (5th Cir. 1980), cert. denied, 450 U.S. 967, 101 S.Ct. 1485, 67 L.Ed.2d 617 (1981); United States v. Zurosky, 614 F.2d 779 (1st Cir. 1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2945, 64 L.Ed.2d 826 (1980). We caution that license to board a vessel during an investigatory stop, however, is not license to wander all over the boat or to search for evidence of illegality: the boarding is a part of a brief investigation and the investigating officers' actions must be limited accordingly. A boarding, nevertheless, can be an appropriate part of an investigatory stop, and we hold that in this case it was. Sergeant Sciukas was therefore still acting within the confines of a brief investigatory stop when he started to board the CENTAURUS.
23
While he was in the process of boarding, Sergeant Sciukas smelled the odor of marijuana. The smell supplied probable cause for the state officers and customs officials to act upon their statutory authority and conduct a search of the boat. See, e. g., United States v. Rivera, 595 F.2d 1095, 1099 (5th Cir. 1979). The officers then undertook a warrantless search of the CENTAURUS, the exigent circumstances arising out of the boat's mobility justifying the conduct of the search without a warrant. See United States v. Hensler, 625 F.2d 1141, 1142 (4th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981); United States v. Laughman, 618 F.2d 1067, 1073 (4th Cir. 1980), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980). During the course of this search, they discovered numerous bales, some with marijuana residue sprinkled on top, in the two open hatches of the boat, as well as the marijuana in the galley.
24
The defendants raise an additional challenge to both the seizure and the search: they argue that the officers' professed intention at the outset to conduct far more than a brief investigatory stop of the CENTAURUS-they had planned to search the CENTAURUS thoroughly, even without probable cause-tainted the stop and search with illegality. We are not persuaded by the argument. However ill intentioned the officers, we must restrict our review to the objective circumstances of the detention in determining its lawfulness. Just as courts should not validate an objectively unreasonable search or seizure on the basis of an officer's good faith intentions, see Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), so should they steer clear of excluding evidence discovered by objectively lawful means, even if the officers harbored bad faith intent. Reliance upon objective facts and not subjective intentions in judging the legality of a search or seizure best promotes the protections of the fourth amendment. The seizure and search of the CENTAURUS in all objective respects comported with the requirements of the fourth amendment: a reasonable suspicion that the CENTAURUS contained a large quantity of marijuana allowed the officers to stop and detain the CENTAURUS briefly and to board her for investigatory questioning of the crew; the aroma of marijuana supplied probable cause to search the boat; and the exigencies of the situation eliminated the need for a warrant prior to conducting the search. Whatever the officers may have intended to do had probable cause to search not arisen, it is clear that objective circumstances made the seizure and search entirely lawful.
25
Finding no merit in the defendants' arguments, we conclude, as did the district court, that the seizure and search of the CENTAURUS was lawful and that the resulting evidence of marijuana importation and possession offenses should not have been suppressed on this ground.
B. The Search of the Containers
26
The defendants further assert that the district court should have suppressed the marijuana on the ground that it was the fruit of an unlawful warrantless search of the bales by DEA agents. The district court held the search lawful because the defendants had no reasonable expectation of privacy in the bales. We agree that the search was lawful, but for the reason that the marijuana was in plain view and therefore that no warrant was required.
27
Our starting point is the general rule that a valid search requires that the authorities have obtained a warrant supported by probable cause and issued by a detached and neutral magistrate. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). That rule has been recently applied by the Supreme Court in Robbins v. California, --- U.S. ----, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), to invalidate a warrantless search of two plastic covered bundles containing marijuana and found in the luggage compartment of a station wagon, and more recently by this court in United States v. Sharpe, 660 F.2d 967 (4th Cir. 1981), to hold unlawful the search of well packaged bales of marijuana found in the back of a camper.
28
Had the containers of marijuana in this case been so well packaged that no marijuana was visible to the officers, we would follow the decisions in Robbins and Sharpe and decline to uphold the warrantless search. For, as those decisions make clear, we cannot excuse the requirement of a warrant to search the containers simply on the basis of exigent circumstances resulting from the containers' discovery on a moving vessel, what sort of containers they are, or even their suspicious odor of marijuana. We conclude, however, that a particular variation of one of the few exceptions to the warrant requirement-the plain view exception-applies in this case and that the warrantless search of the containers of marijuana conducted by the DEA agents was lawful.
29
Relying upon earlier reasoning in Arkansas v. Sanders, 442 U.S. 753, 764-65 n.13, 99 S.Ct. 2586, 2593, 61 L.Ed.2d 235 (1979), the plurality in Robbins clearly acknowledged that there was a plain view exception to the bright line rule announced concerning a container search. The exception is actually in two parts. First, if the container is open and its contents exposed, its contents can be said to be in plain view. Second, if a container proclaims its contents by its distinctive configuration or otherwise and thus allows by its outward appearance an inference to be made of its contents, those contents are similarly considered to be in plain view. --- U.S. at ---- - ----, 101 S.Ct. at 2844-2846. In either instance, an investigating authority need not obtain a warrant to search the container, the reasoning behind the exception being that a warrant under those circumstances would be superfluous.
30
The marijuana in the bales seized from the CENTAURUS was in plain view for a combination of those two reasons. As the defendants concede, some of the bales-the record is unclear on the exact number-were split open and marijuana exposed to view prior to the search, that is, the opening and sampling of the bales by DEA agents. The plain view of that marijuana, in combination with the virtually identical appearances of the other intact bales and the presence of marijuana residue on top of some of the bales noted while the bales were still on board the CENTAURUS, allowed the authorities to infer under the latter prong of the plain view exception that the bales not split open also contained marijuana.
31
Because the marijuana was in plain view, the DEA agents did not need to acquire a warrant prior to taking samples from the bales. The search was therefore valid and the motion to suppress on this ground properly denied.
III. Blair's Sentence
32
In addition to the search and seizure arguments raised by the defendants, Blair appeals the imposition of his sentence. He argues that the sentencing was an abuse of the district court's discretion and a denial of due process because (1) the court impermissibly held Blair accountable for his failure to provide further information about the smuggling operation to the government, and (2) it improperly considered Moore's and Dodds' failure to disclose that information in sentencing him.
33
In fashioning a sentence, a district court may, under 18 U.S.C. § 3577, consider without limitation information concerning the background, character, and conduct of the person to be sentenced.4 It may not, however, impose a sentence "on the basis of 'misinformation of constitutional magnitude,' " Roberts v. United States, 445 U.S. 552, 556, 100 S.Ct. 1358, 1362, 63 L.Ed.2d 622 (1980), quoting United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972), and it is upon this due process limitation to a district court's sentencing discretion that Blair relies in arguing that consideration of his failure to supply the government with information was improper. He asserts that the district court erroneously believed that he had information about unidentified members of the drug scheme that he was unwilling to divulge, when in actuality he had no information of that sort.
34
Accepting for purposes of argument that such a misunderstanding would qualify as "misinformation of constitutional magnitude," we nevertheless are not persuaded by the argument, because we find insufficient factual basis for it in the record. First, contrary to Blair's assertion on appeal that he had no information to give the government, his own remarks to the district court prior to sentencing suggest that he did not reveal the information because he was not asked to do so: he told the court,
35
I have tried to cooperate with the Board. I think I am the only one of the defendants that wrote my own statement-you know; and I wasn't asked to mention any names is the only reason I didn't mention any names. (emphasis added).
36
Second, the record does not support Blair's assertion that the district court actually relied on Blair's failure to divulge information in imposing sentence. The court did state that it was concerned that "those who financed and stood behind this criminal venture, those who stood to gain the most, are not here in court." Immediately thereafter, however, it said that a prison sentence for Blair was nevertheless necessary "to act as a deterrent" to young men like Blair who "willingly take the risk" for those others who would profit the most. The sentence, thus, was not imposed as retaliation for Blair's failure to divulge names but in order to deter others from acting as fronts in a smuggling operation. Deterrence is clearly a legitimate sentencing objective. See United States v. Moore, 599 F.2d 310, 315 (9th Cir. 1979), cert. denied, 444 U.S. 1024, 100 S.Ct. 687, 62 L.Ed.2d 658 (1980).
37
Blair's contention that the district court improperly considered the failure of Moore and Dodd to reveal information to the government in sentencing him is similarly not persuasive. While it is true that the court openly expressed its concern at all of the sentencing proceedings that the key individuals behind the drug operation were escaping punishment, and that all three of the defendants received identical sentences, it cannot therefore be inferred that Blair was sentenced for Moore's and Dodds' reluctance to talk.
38
Having disposed of these contentions, we further observe that the sentence was within statutory limits and was not mechanistically imposed but was instead the result of discretion exercised in light of societal considerations and Blair's personal circumstances. See United States v. Neidinger, 647 F.2d 408 (4th Cir., 1981). We accordingly affirm the sentence.
IV.
39
The search and seizure of the CENTAURUS and the search of the bales of marijuana having been lawful, the district court properly denied the defendants' motion to suppress. The district court, moreover, did not abuse its discretion or offend due process in sentencing the defendant Blair. We therefore affirm the defendants' convictions and Blair's sentence.
40
AFFIRMED.
41
MURNAGHAN, Circuit Judge, dissenting in part and concurring in part:
42
Whenever the exclusionary rule applies, with the resulting suppression of trenchant evidence of guilt, and the substantial and regrettable consequence that an offender against society may go free, the judge is apt to wince or at least to feel a twinge. Perhaps the exclusionary rule, in its entirety, or as to possible exceptions, should be reexamined. Mr. Justice Cardozo, after all was a force to be reckoned with and he disapproved of the rule.1 See People v. DeFore, 242 N.Y. 13, 150 N.E. 585 (1926).
43
Still, a study looking to possible revision is not open to those who sit at a level beneath the rank of the United States Supreme Court. Unless and until that Court reconsiders the predominating weight it has assigned to stringent measures to keep the policeman decent and law-abiding at practically any cost in terms of convictions of the perpetrators of crime, it behooves us to give full force to what it has laid down as the law. The responsibility extends to preservation of the vitality of related rules. We should not avoid or vitiate the effectiveness of the exclusionary rule by distorting what constitutes the essential ingredients of a proper search or seizure.
44
It is my regretful conclusion that such a distortion-an attempt, by two wrongs, to make a right-occurs in the majority opinion.
45
First, it must be emphasized that the law enforcement officers had nothing more to go on than (a) awareness that some unidentified group in the neighborhood was engaged in a drug importation scheme and (b) an informer's tip that a large boat was engaged in a drug smuggling caper. Perceiving one large boat in the vicinity on the Potomac River, the officers drew alongside, and with no real justification other than the vessel's size and location in the vicinity2 peremptorily compelled the vessel to accompany them to shore and conducted a warrantless search.3 Regardless of whether there was enough to permit a Terry stop, there was, I submit, no reasonable basis for seeking a warrant. The search was illegal both because no warrant was sought and because no warrant, if one had been sought, would have issued in the absence of probable cause.4 It also was fruitless. No marijuana was discovered. The officers who conducted the search deserve an expression of judicial disapproval, at least in the way of a rebuke, for their trampling on the constitutional Fourth Amendment rights of the citizens aboard that vessel.
46
No doubt disappointed, yet undeterred by their lack of success, the enforcement officers turned to the next big boat in the vicinity. Again with nothing more than size to go on, they drew alongside with every intention of boarding and conducting a warrantless search. They intended an unlawful act. The boat turned out to be one known to one of the officers, so the planned unlawful search was aborted. Nothing if not dogged in their determination to proceed in defiance of the Fourth Amendment, the officers bore down on a third large vessel, the CENTAURUS.
47
This time, a beneficent fate intervened to provide the providential and fragrant whiff of marijuana just as the first officer was about to transfer to the suspect vessel. And still more manna fell from Heaven: the words "You have got us" emerged from one of the party aboard the CENTAURUS. At that point a Terry stop was certainly justified. So, too, we may assume, was the arrest of all aboard, which promptly occurred. Also, unlike the situation the first time, there was probable cause to justify a search. We may assume that exigency justified making a search, without a warrant, of the vessel. United States v. Laughman, 618 F.2d 1067 (4th Cir. 1980), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980).
48
That leaves unanswered, however, the question of the propriety of going further, as to covered parcels discovered in the search of the vessel, and breaking them open to ascertain their contents, although no warrant had been sought. Again there was probable cause, but a significant difference also existed. The search of the vessel justified an arrest of all aboard, which promptly occurred. Hence, mobility of the CENTAURUS and any associated exigency about breaking open the bales were at an end.
49
It is elementary that probable cause alone does not permit a search. It only provides a substantiating basis for issuance of a warrant.5 A warrantless search is per se unreasonable in all but a very narrow set of circumstances.6 The exceptions to the requirement that a warrant be obtained are "few." Robbins v. California, --- U.S. ----, ----, 101 S.Ct. 2841, 2844, 69 L.Ed.2d 744 (1981).
50
The arrest of the occupants of the CENTAURUS preceded any effort to open and inspect the contents of any of the burlap-covered and cigarette carton packaged bales found below deck in the CENTAURUS. Consequently, any removal of the vessel from the supervision of the authorities, likelihood of dissipation of evidence, resort to the packages for concealed weapons, or disappearance of persons aboard the vessel had evaporated before invasion of the bales occurred.7
51
The possibly unique treatment of automobiles derives from "their inherent mobility, which often makes obtaining a judicial warrant impracticable." United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977); Robbins, supra, 101 S.Ct. at 2845. The invasions without warrants here took place as to some bales split open subsequently, during the course of unloading by government agents or employees, which occurred on the following day when the CENTAURUS was fully secure at a Naval Ordnance Station. Thereafter, while the vessel was equally secure, DEA agents, without warrants, broke open some of the bales.8
52
The arguably applicable circumstances advanced to excuse obtention of a warrant are (a) exigency or (b) plain view.
53
No one, however, should seriously contend for exigency. On navigable waters the boat presented little, if any, resemblance to a fleeting motor vehicle on the public streets. The law enforcement officers, having arrested the ship's complement, were in complete control, in a position effectively to frustrate any flight of the boat, dissipation of evidence or disappearance of persons.9
54
As for plain view,10 reliance is placed on the facts that (1) a small quantity of marijuana was contained in a container set out in the galley area for use by those on board; (2) there were stored below a large number of bales,11 (3) some marijuana residue was scattered on top of some of the bales, and (4) the old reliance which justified boarding of the CENTAURUS in the first place, there was an aroma of marijuana.
55
Of course, if, on opening, those bales had disclosed their contents to be cotton or rags, the case would have taken on a very different aspect.12 One may question whether the small amount (about 2 ounces) of marijuana available for personal use would have even led to criminal charges. The immediate expected response is: "But it wasn't cotton, or rags, it was marijuana." That sort of after-the-fact reasoning, however, ignores the possibility that things could well have been otherwise. We, in court, only see the case where an unwarranted breaking of a package actually turns up contraband. An apparent 100% in smelling percentage may, on undistorted statistics (i. e. statistics not skewed by the consideration that prosecutions rarely if ever eventuate when the smell is "pot" but the bale contents turn out to be something else), reduce to 50% or less. Moreover, whatever the likelihood percentage, that does not bring the contents of the bales into plain view. Even if the likelihood that marijuana lies behind the covering of the bales is very high, that fact does not have relevance as to what the eye could see. Probability is simply not visibility.
56
As Robbins v. California, supra, has established, it takes an open package, or one whose configuration is distinctive as to its contents (i. e., a kit of burglary tools or a gun case) to bring into play the plain view exception to the generally unyielding rule that a warrant must first be obtained. Here, however, the contents of the bales fitted neither description. The bursting open of bales did not occur until the next day, and was the product of the government's activities, not of anything done by the defendants. The burlap coverings were as opaque as the green plastic covering the marijuana in Robbins, and more durable than the paper bag referred to in the Court's opinion as being entitled to an expectation of privacy.
57
Nor does the strong likelihood, based on other facts, that the concealed contents are marijuana have anything to do with whether they are revealed to the naked eye. Rather, the other facts merely enhanced the probable cause to believe the hidden substance was marijuana, thereby making the basis for a warrant all the stronger. The fact that an officer is manifestly entitled to a warrant is not a reason to excuse him from the necessity to apply for it.13
58
I do not ignore the contention that the phrase "plain view," while, from a strict linguistic point of view, it refers to only one of the senses, nevertheless may be broadened to apply to the others. In the dark, the sense of touch may convey as precise an impression as the eye does in daylight. But the "view" must be "plain." Smell is by nature fleeting and evanescent. It also is too easy, after the fact, to assert and essentially impossible to refute. Hence to accept it here would justify any and every warrantless search which turns up marijuana, however securely packed, regardless of the unmentioned occasions when the same nose betrayed its owner, when the bales turned out to contain tea, or spices, or rags or cotton.
59
Indeed, in this very case, the reliance on smell to construct a plain view exception for the contents of the bales is rendered suspect because of the presence of a small container of marijuana available for use by the crew members. It also gave off a scent. While it heightened the probability that the bales contained marijuana, nevertheless, it reduced substantially the basis for contending that what was smelled emanated from the bales. Nothing in the evidence produced showed that the bales were known to be the source of what was in the small container. The contents of the bales were simply not visible, by sight or by smell. They, consequently, were not in plain view.14
60
The residue scattered on top of some bales also merely increases the probability, not the visibility. It is at least as likely as any other explanation that the residue came from something earlier stowed above the bales, perhaps containers already off-loaded elsewhere. The bales beneath the residue are by no means certainly their source. Furthermore, the record in no way connects the bales broken open by the DEA, or during off-loading, with those on which marijuana residue was scattered.
61
The enforcement officers brought the CENTAURUS to shore and tied it up in a manner secure, not only against wind and weather, but also against intrusion. A day later the bales were off-loaded. The initial breakage of bales occurred in the course of that operation. All the time which could be needed for obtaining a warrant existed, yet no one bothered to get one. The same was even more true for the DEA sampling of the contents of the bales, without a warrant, which took place still later. We should not encourage lawlessness by excusing the neglectful and the sloppy, by pretending a nonexistent exigency, and by imagining that what could not be seen was in "plain view."
62
The ironic aspect of all this is that, had the prosecutor thought about it, he need not have pushed for unlawful proof about the contents of the bales. Had he contended himself with evidence (a) of the small container of marijuana for individual use, and of the scattered residue, and (b) showing the existence of the many bales, as to which an inference (the basis for a finding of probable cause which would have supported an application for a warrant) could, under all the circumstances here present, have been drawn as to their contents, even though the contents were not in plain view, he probably would have secured his convictions. The convictions would not, then, have been at the price of permitting tainted evidence, obtained in violation of the Fourth Amendment.
63
Instead, he went too far, preferring what may well have been overkill. The convictions so obtained should not stand. I would reverse to permit a new trial undefiled by constitutional violations.
64
As to the other issues addressed by the majority, I concur in the conclusions they have reached.
1
The defendants do not appeal the district court's refusal to suppress the film found aboard the CENTAURUS
2
The defendants argue that, in addition to being unconstitutionally applied, the statute does not support the marine officers' stop of the CENTAURUS, as it references a vessel stop only to enforcement of the provisions of the subtitle in which the statute is found, that is, the State Boat Act, Md.Nat.Res.Code Ann. § 8-701 et seq. (1974). Enforcing the State Boat Act, they assert, does not encompass the stop of a vessel suspected of illegal drug activity
We are not persuaded by the argument. The intent of the Act, by its own terms, is "to foster the development, use, and enjoyment of all the waters of Maryland," Id. § 8-702, and the officers were mandated to cooperate with the federal authorities "for special events or to meet emergency situations." Id. § 8-704(b)(8). Without engaging in detailed analysis of the state statutory scheme, we conclude that the State Boat Act authorizes, to the limits allowed by the fourth amendment, the state marine police to stop and search in state waters a vessel suspected of illegal activity and to assist federal authorities in making such a stop and search. Our conclusion is supported by the statutory language of Md.Nat.Res.Code Ann. § 1-204(a) (1974), which states in part, "In addition to any other powers conferred by this title, the Secretary and every natural resource police officer shall have all the powers conferred upon police officers of the state. These powers may be exercised anywhere within the state."
3
The fourth amendment states that "(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S.Const. amend. IV
4
18 U.S.C. § 3577 recites that
(n)o 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.
1
In that statement, I do not intend to align myself with those who would do away with the exclusionary rule. A distinguished lawyer, speaking from the perspective of the prosecutor, presented a compelling case when he recently urged the rejection of two bills designed to weaken the exclusionary rule, and recommended extreme skepticism "of the many proposals, now very much in vogue, to modify a rule which has barred unconstitutionally seized evidence from federal criminal trials...." Stephen H. Sachs, Attorney General of Maryland, Statement of October 5, 1981 to the United States Senate Judiciary Subcommittee on Criminal Law
Attorney General Sachs was the United States Attorney for the District of Maryland from 1967 to 1970, having previously served three years as an Assistant United States Attorney.
2
Someone on the boat was observed throwing some unidentified object overboard. Anyone who sails knows that such is a frequent occurrence, generating no grounds for suspicion
3
On approaching, the law enforcement officers observed a registration violation, an expired decal posted on the side of the boat. They thereupon arrested the owner for a registration violation and compelled the vessel to accompany them to a boat basin to "board the boat and check it out." The main reason (and evidently, in the circumstances, the only real reason) was the report of a boat suspected of drug smuggling
The boat occupants were held while ownership of the vessel was checked. The officers then, without any probable cause, informed them that they were suspects in a drug investigation and sought permission to and did search the boat.
There is, of course, no finding that, on the totality of the circumstances, the consent to search that vessel was truly voluntary. It seems most questionable.
4
The majority would brush aside the apparent lawlessness with the observation that "seizure and search of that vessel-not challenged here-turned up no contraband." Slip op. at 4. The practical certainty that the innocent in such circumstances would not go so far as to press a legal claim only emphasizes the need for alertness on the part of the courts to curb such impermissible behavior. In all events, who would or could have standing to challenge that violation of law "here"-i. e. in the case before us?
5
Arkansas v. Sanders, 442 U.S. 753, 758, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235 (1979):
The mere reasonableness of a search, assessed in the light of the surrounding circumstances, is not a substitute for the judicial warrant required under the Fourth Amendment.
6
Walter v. United States, 447 U.S. 649, 657-58 n.10, 100 S.Ct. 2395, 2401-2402, 65 L.Ed.2d 410 (1980):
The fact that the labels on the boxes established probable cause to believe the films were obscene clearly cannot excuse the failure to obtain a warrant; for if probable cause dispensed with the necessity of a warrant, one would never be needed.
Cf. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948):
Power is a heady thing; and history shows that the police acting on their own cannot be trusted .... We cannot be true to that constitutional requirement (a prior warrant from a magistrate) and excuse the absence of a search warrant without a showing ... that the exigencies of the situation made that course imperative.
7
New York v. Belton, --- U.S. ----, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) deals with a situation where search of the contents of the passenger compartment of an automobile incident to, and contemporaneous with, a lawful, though warrantless, custodial arrest occurred. One container in the passenger compartment was an item of clothing, a jacket. The court held that a warrant was not required in exigent circumstances, where the container searched was "within the immediate control of the arrestee" and "from within which (an arrestee) might gain possession of a weapon or destructible evidence." 101 S.Ct. at 2863, quoting from Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969)
The containers in the instant case, by contrast, were neither so accessible, nor so destructible. Furthermore, the search of the bales to ascertain their contents occurred, at the earliest, a day later. The Belton majority were careful to distinguish United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538 (1977) on the precise grounds that "the search was conducted more than an hour after the federal agents had gained exclusive control of the (container) and long after respondents were securely in custody; the search therefore cannot be viewed as incidental to the arrest or as justified by any other exigency." 101 S.Ct. at 2865.
8
Testimony of Sergeant Hutchinson:
Q. Now, the bales themselves are for the most part burlap covered?
A. Yes, sir.
Q. Inside the burlap there were cigarette carton boxes and inside of that was the substance?
A. Yes, sir.
Q. Now, when, to your knowledge, was the first bale broken open to see what was inside? Was it that day or the next day? We will start there.
A. I have no recollection of the first day of the bales being broken open. I do recall the second day after we unloaded the bales.
....
Q. And on the next succeeding day, which was Monday, you had yet to open the bales or the DEA agent, as I understand your testimony, had yet begin to open any of the bales; that is true, is it not, sir?
A. I have no knowledge on the first day which was Sunday, of anyone opening the bales. On the second day I seem to recollect that either by accident or on purpose, and I don't know which, one or more of the bales were open.
Testimony of Officer Sciukas:
Q. Did you participate in the unloading of the vessel?
A. Yes, the next day.
Q. Do you know how many bales were finally gotten off?
....
Q. Were there any open containers of bales of marijuana that was in view that you saw?
A. Some of the bales were split and broken open. In the forward cabin area, when you looked through the forward hatch there was a bag of marijuana with rolling papers hanging in plain view, of a small quantity, maybe two ounces or so.
Q. As you were unloading were items found that were later secured?
A. Yes sir.
It should be observed that it is far from clear whether the testimony relates to the time of boarding the CENTAURUS or the time of off-loading on the following day. In any event, nothing in the testimony establishes that the contents of bales split and broken open were visible. It is to be noted that, besides the burlap, the bales were covered by cigarette carton boxes as well.
9
At oral argument, the government acknowledged that there were no exigent circumstances, saying:
....
COURT: Do you agree that there was no exigency to conduct this search?
AUSA: I'll have to agree that there wasn't any. But I'd like to qualify that Your Honor because there was no need and the reason ....
COURT: But there was no exigency because you by that time had complete control of the vessel; you were going to take it to a government controlled location; there was no way anybody could get at it and I take it that a magistrate or other person to issue a warrant was not very far away.
AUSA: Well it was Sunday but I concede that it could have been gotten.
COURT: You could have waited until Monday without any real risk of losing the loot.
AUSA: I think that is true.
COURT: But I want to make sure what we have is a situation where the exception is being argued for without exigency in the picture and it is only a question of whether there was such an abandonment of any expectation of privacy that you could go ahead and disregard the Fourth Amendment because there was no expectation of privacy. That is what your argument really is down to.
AUSA: Yes sir.
....
The situation differs markedly from that presented in United States v. Hensler, 625 F.2d 1141 (4th Cir. 1980), cert. denied, 450 U.S. 980, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981) where the persons operating the vessel were not apprehended and so were free to return and make off with her at any time.
She had no line ashore, no anchor, indeed no moorings of any sort. Heeling at about 45 degrees with the tide, to all appearances she was quarry both to storm and stealth, to be carried out to sea or to the bottom, or towed to a more ready location for the discharge or dispensing of drugs.
Id. at 1143 (emphasis in original).
United States v. Laughman, 618 F.2d 1067, 1073 (4th Cir. 1980), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980) also is not here pertinent, involving only the legality of a search without warrant which turned up marijuana residue, evidently perceptible to the naked eye. I accept that, here, the warrantless search of the vessel was legal. The question here concerns the right to make a further warrantless search of covered parcels, bales swathed in burlap.
10
The district court concluded that there was no reasonable expectation of privacy, although the concealed contraband was stowed, in bales, below decks, in hatches. The majority of the panel does not appear to approve that approach, however, for it explicitly, at 506-507, switches to a "plain view" rationale
11
A few of the bales were shown, at some later time, to be torn or cracked, but that point in time clearly came after the boarding and initial search of the CENTAURUS and the arrest of its entire complement. Indeed, the breaking open of any bale was not shown to have occurred until the next day when, in the course of offloading by the government, the splitting of some bales, revealing their contents, occurred. See at 503:
Either prior to or during the unloading, however, some of the packages had split and broken open, revealing their contents.
Cf. Id. 507:
... some of the bales-the record is unclear on the exact number-were split open and marijuana exposed to view prior to the search, that is, the opening and sampling of the bales by DEA agents.
(Emphasis in original.)
The majority does not suggest, nor does the record reveal, that any bales were broken open until after seizure of the CENTAURUS and arrest of her occupants had been fully completed. Consequently, any creation of a plain view state for the contents of the bales was the work of the government agents, not of the vessel occupants. On the approach that would uphold the sampling of bale contents by the DEA in the present case, on the grounds that the contents were in plain view, there always will be plain view. The encouragement to sloppy work with emphasis on dropping, bumping and the like of closed containers will become routine.
12
Compare the situation in Walter v. United States, supra, 447 U.S. 649, 656 n.6, 100 S.Ct. 2395, 2401, 65 L.Ed.2d 410, where the markings on packages created an inference that the contents were obscene, yet, since only 5 of the 25 film titles were used as a basis for prosecution, it was presumed that the other films were not obscene
13
Walter, supra, is instructive. There the wrappings of a shipment of twelve large packages had been torn open before it came lawfully into the government's hands. Descriptive labels on the contents, 871 reels of film, gave the basis for an overwhelming inference that they were obscene. The government proceeded to screen the films without first obtaining a warrant
The Supreme Court rejected the government's argument that the opening of the packages, and one or more of the boxes containing reels of film before they came into government hands and the existence of visible labels establishing probable cause to believe the films were obscene justified a search without warrant. "Prior to the Government screening, one could only draw inferences about what was on the films." 447 U.S. at 657, 100 S.Ct. at 2401. Prior to the government breaking open of the bales, one could only draw inferences about what was in them. The expansion of the search in both cases was significant. Each required a warrant to make it lawful. "That separate search was not supported by any exigency, or by a warrant even though one could have easily been obtained." Id.
14
The existence of a competing source of the aroma was not a factor in United States v. Haynie, 637 F.2d 227, 233 (4th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 2051, 68 L.Ed.2d 351 (1981); United States v. Hensler, 625 F.2d 1141, 1142 (4th Cir. 1980), cert. denied, 450 U.S. 980, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981); or United States v. Sifuentes, 504 F.2d 845, 848 (4th Cir. 1974). Contra United States v. Bradshaw, 490 F.2d 1097, 1101 (4th Cir. 1974), cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974) ("The liquor was certainly not in 'plain view,' within the ordinary meaning of that phrase, when Agent Williams first detected the odor emanating from the truck. Nor did he, at that point, have any basis upon which to conclude, with certainty, that liquor was actually present in the truck. An alternative explanation of the smell was equally probable-that liquor had once been present in the truck but had since been removed leaving the truck permeated with its vapors. Agent Williams thus had no more than a reasonable ground to infer the presence of liquor at this point.")
The present case is clearly distinguishable on the ground that here there was more than one explanation of where the smell came from. That very consideration was present in Robbins, supra, where a search without a warrant of two packages containing marijuana located in a recessed luggage compartment in a station wagon, was held to have violated the Fourth Amendment. The law enforcement officers had smelled marijuana on approaching the vehicle, and had found marijuana in the passenger compartment. Those considerations, nevertheless, did not eliminate the expectation of privacy for the two bricks of marijuana in the luggage compartment, or result in a finding that their contents were in plain view.
Note also that the smell of marijuana, though present, was not relied on in any way in the reaching of the result in New York v. Belton, --- U.S. ----, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1646750/ | 9 So.3d 578 (2007)
DELVIN LENTER WILLIAMS
v.
STATE.
No. CR-05-1847.
Court of Criminal Appeals of Alabama.
May 18, 2007.
Decision of the Alabama Court of Criminal Appeal Without Opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
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