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https://www.courtlistener.com/api/rest/v3/opinions/408050/ | 687 F.2d 749
69 A.L.R.Fed. 503
UNITED STATES of America, Appellant,v.Howard CHRISTINE, Perry Grabosky, Appellees.
No. 81-2077.
United States Court of Appeals,Third Circuit.
Argued April 1, 1982.Decided Aug. 30, 1982.Rehearing and Rehearing En Banc Denied Sept. 24, 1982.
William W. Robertson, U. S. Atty., Donald J. Fay, Asst. U. S. Atty. (argued), Newark, N. J., for appellant.
F. Emmett Fitzpatrick, John W. Morris (argued), Pierson, Cameron & Morris, Philadelphia, Pa., for appellees.
Before GIBBONS, SLOVITER and BECKER, Circuit Judges.
OPINION OF THE COURT
BECKER, Circuit Judge.
1
This appeal presents this court for the first time with the question whether a partially invalid search warrant may be redacted so that evidence obtained pursuant to valid, severable portions of the warrant need not be suppressed. The issue has arisen on the government's appeal from the district court's suppression of all the materials seized pursuant to a warrant which, in the district court's view, authorized a search and seizure exceeding the ambit of the underlying showing of probable cause. After examining the purposes of the warrant requirement and the means by which those purposes are served, we conclude that the practice of redaction is fully consistent with the Fourth Amendment and should be utilized to salvage partially invalid warrants. Because the district court did not consider redaction as an alternative to invalidating the entire warrant and suppressing all the evidence seized thereunder and might have reached a different result had it done so, we vacate the suppression order and remand for further proceedings.
I.
2
On November 28, 1979, the United States, in pursuit of a search warrant, presented a United States Magistrate in the District of New Jersey with the affidavit of Richard Scott, an investigator of the Inspector General's Office of the Department of Housing and Urban Development (HUD). Scott had been assigned to investigate allegations of fraud in HUD's Title I Home Insurance Program. In his affidavit, Scott conveyed information provided him by Phillip Lake and Henry Keiser about a scheme in which appellees Howard Christine and Perry Grabosky, the owners of Landmark Builders, Inc., allegedly fraudulently procured HUD Title I Home Improvement Loans for uncreditworthy individuals. According to Lake, Christine and Grabosky obtained these loans by bribing Glenwood Rapf, the loan officer for the HUD Title I program at Collective Federal Savings and Loan Association. Scott also related that Keiser had told him "that he was informed by Christine and Grobosky (sic) that they only intended to run Landmark Builders, Inc. for a short period of time and that before the company went out of business, they intended to increase their lines of credit with various of their creditors, deplete their assets and leave the company destroyed."
3
On the basis of the Scott affidavit, the magistrate issued a warrant authorizing any postal inspector to search the Absecon, New Jersey, offices of Landmark Builders, Inc., and to seize the following property as described by the warrant:
4
(a) all folders and all documents contained therein and all other documents relating to home improvements and home improvement contracts pursuant to the HUD Title I Insured Home Improvement Loan program;
5
(b) all checks, check stubs and bank statements, deposit slips and withdrawal slips, reflecting the receipt and disbursement of funds through Landmark Builders, Inc. for the period January 1, 1977 to the present;
6
(c) all general ledgers, general journals, cash receipt disbursement ledgers and journals for the period January 1, 1977 to the present;
7
(d) all correspondence to and from and submissions to Collective Federal Savings and Loan; and
8
(e) all other documents, papers, instrumentalities and fruits of the crime of submission of false statements in connection with the HUD Title I Insured Home Improvement Loan program as well as any evidence of a scheme to defraud HUD or Collective Federal Savings and Loan or any other creditor by use of the United States mails.
9
A postal inspector conducted the search the following day. The return of the warrant reveals that he seized prospective, active, and completed job folders; bank statements and check stubs for 1978 and 1979; a customer list; receipts; deposit slips; a job completion summary; two lease agreements and accompanying cover letter; a loan fee receipt; "salesman records"; job summary costs; an income statement; a cash disbursements journal; a writing entitled "Correct Way To Do Business"; a lunch receipt; and a letter to the press.
10
On December 10, 1980, a federal grand jury returned a ten-count indictment charging Christine and Grabosky with conspiring to violate and violating 18 U.S.C. § 657 (1976), by causing Rapf knowingly and wilfully to misapply funds with the intent to injure and defraud Collective. In a related case, Rapf pleaded guilty to conspiring with Christine and Grabosky to make false statements in loan applications submitted to Collective. No other charges have been brought against Christine, Grabosky, or Rapf.
11
Prior to trial, Christine and Grabosky moved for suppression of the property seized pursuant to the search warrant. The district court ruled that Scott's affidavit established probable cause only to believe that Christine and Grabosky "had bribed one individual at a particular savings institution to approve certain specific loan applications submitted by particular uncreditworthy individuals," United States v. Christine, Crim. No. 80-416, slip op. at 3 (D.N.J. March 12, 1981), and that evidence thereof would be found among the relevant records at appellees' office. Finding that the warrant's scope of authorization-a search and seizure of virtually all of the corporation's records within the last few years preceding the date of the search-was impermissibly broad in light of the probable cause showing that had been made and therefore failed to satisfy the particularity requirement of the Fourth Amendment, the district court suppressed all the material seized pursuant to the warrant.
12
The United States moved for reconsideration. It argued that the Scott affidavit established probable cause to believe that appellees were engaged in the federal crimes of conspiracy, bankruptcy fraud, and aiding and abetting the misapplication of savings and loan institution funds. On the basis of that putative probable cause showing, the government argued that the scope of the warrant's authorization was not overbroad. The district court, however, declined to reconsider its previous ruling. It ruled that the Scott affidavit had not established probable cause to believe that bankruptcy fraud had been committed and that, even if such probable cause had been shown, it did not provide "carte blanche for the seizure of virtually all of the business records of the corporation over a four year period." United States v. Christine, Crim. No. 80-416, slip op. at 3 (D.N.J. May 13, 1981). The United States has appealed the order denying its motion for reconsideration.
13
In this appeal, the United States contends that the warrant satisfied the particularity requirement of the Fourth Amendment and was not invalid as a general warrant. It argues that generic description of the items to be seized (e.g., "folders," "checks," and "general ledgers") is an acceptable and constitutionally valid practice. It further argues that the generic descriptions were limited through modification by the final clause of the warrant authorizing seizure of "all other documents, papers, instrumentalities and fruits of the crime(s)...." The government also argues that complete suppression was improper because, even if some portions of the warrant were overbroad, other portions of the warrant were valid and the evidence seized pursuant to the valid portions of the warrant should not have been suppressed. Finally, the government argues that the Scott affidavit established probable cause to believe that appellees' entire business was fraudulent and, therefore, that probable cause existed to seize all the records of Landmark Builders.
14
Appellees submit that the district court's ruling was correct. Additionally and alternatively, they argue that the warrant is also invalid because it was a general warrant and because the Scott affidavit failed to establish probable cause.
II.
15
The parties vigorously dispute whether the warrant in this case was a general warrant. A general warrant is a warrant that authorizes "a general exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 2038, 29 L. Ed. 2d 564 (1971). The Fourth Amendment seeks to prevent general warrants by requiring all warrants to contain a "particular description" of the things to be seized. The particularity requirement "makes general searches ... impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 76, 72 L. Ed. 231 (1927).1 For example, the Fourth Amendment condemns as general warrants those warrants that authorize searches for and seizures of: "smuggled goods," as was provided by the notorious writs of assistance, Boyd v. United States, 116 U.S. 616, 624, 6 S. Ct. 524, 29 L. Ed. 746 (1886); "obscene materials," Marcus v. Search Warrant, 367 U.S. 717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961); "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas," Stanford v. Texas, 379 U.S. 476, 85 S. Ct. 506, 13 L. Ed. 2d 231 (1965); "illegally obtained films," United States v. Cook, 657 F.2d 730 (5th Cir. 1981); and "stolen property," United States v. Giresi, 488 F. Supp. 445 (D.N.J.1980), aff'd mem., 642 F.2d 444 (3d Cir. 1981), cert. denied, 452 U.S. 939, 101 S. Ct. 3081, 69 L. Ed. 2d 953 (1981); United States v. Burch, 432 F. Supp. 961 (D.Del.1977), aff'd mem., 577 F.2d 729 (3d Cir. 1978).
16
The warrant at issue cannot be invalidated as a general warrant for it does not vest the executing officers with unbridled discretion to conduct an exploratory rummaging through appellees' papers in search of criminal evidence. Rather, the warrant's clauses describe in both specific and inclusive generic terms what is to be seized: "all folders ... all checks ... all general ledgers (and) all correspondence...."2 By directing the searching officers to seize all of these items, the magistrate, rather than the officer, determined what was to be seized. Neither is the final clause of the warrant ("all other documents, papers, instrumentalities and fruits of the crime") in the nature of a general warrant. See Andresen v. Maryland, 427 U.S. 463, 470-77, 96 S. Ct. 2737, 2743-46, 49 L. Ed. 2d 627 (1976).
17
The district court did not proceed to analyze the case in general warrant terms; rather, the district court properly approached it by measuring the scope of the search and seizure authorized by the warrant against the ambit of probable cause established by the affidavit upon which the warrant issued. The Fourth Amendment dictates that a magistrate may not issue a warrant authorizing a search and seizure which exceeds the ambit of the probable cause showing made to him. "(A)n otherwise unobjectionable description of the objects to be seized is defective if it is broader than can be justified by the probable cause upon which the warrant is based." 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 4.6, at 97 (1978).3
18
Even though it did not find the warrant to be a general warrant, the district court reached the same result by invalidating the warrant in its entirety. The district court approached the warrant in terms of the cumulative effect of all of its clauses by measuring the sum of the evidence authorized to be seized against the probable cause established by the Scott affidavit. As a result of its conclusion that the sum of the evidence authorized to be seized exceeded the underlying probable cause justification, the district court invalidated the entire warrant and suppressed all that had been seized. A different result may have obtained had the district court considered redacting the warrant in order to preserve the valid clauses and allow the government's use of the materials seized under them. At the time of the suppression hearing, however, there was no clear rule in this circuit regarding the availability of redaction as an alternative to total suppression. It is understandable, therefore, that the district court proceeded as it did.
III.
19
By redaction, we mean striking from a warrant those severable phrases and clauses that are invalid for lack of probable cause or generality and preserving those severable phrases and clauses that satisfy the Fourth Amendment. Each part of the search authorized by the warrant is examined separately to determine whether it is impermissibly general or unsupported by probable cause. Materials seized under the authority of those parts of the warrant struck for invalidity must be suppressed, but the court need not suppress materials seized pursuant to the valid portions of the warrant.
20
Redaction is inappropriate when the valid portions of the warrant may not be meaningfully severable from the warrant as a whole. As the California Supreme Court noted in Aday v. Superior Court of Alameda County, 55 Cal. 2d 789, 13 Cal. Rptr. 415, 362 P.2d 47, 53 (1961):
21
We recognize the danger that warrants might be obtained which are essentially general in character but as to minor items meet the requirement of particularity, and that wholesale seizures might be made under them, in the expectation that the seizure would in any event be upheld as to the property specified. Such an abuse of the warrant procedure, of course, could not be tolerated.
22
Although many state courts have adopted the practice of redaction,4 the Fifth and Ninth Circuits are the only federal appellate courts to have explicitly recognized it as an alternative to total suppression. See United States v. Cardwell, 680 F.2d 75 (9th Cir. 1982);5 United States v. Cook, supra.6 An earlier panel of the Ninth Circuit in VonderAhe v. Howland, supra, applied a procedure that may be confused with redaction when, after determining a warrant's invalidity, the court measured the scope of probable cause established by the information submitted to the magistrate and then sifted through the seized material to determine which seizures were supported by probable cause. The VonderAhe court did not attempt first to redact the warrant in order to tailor it to the scope of the probable cause established by the affidavit and then segregate the seized material according to the clauses of the warrant under which it had been seized. The VonderAhe approach was not evaluated in the later Cardwell decision.
23
This is the first time that this court has considered the redaction principle in depth. Previously, two conflicting district court opinions, both of which this court affirmed by judgment order, provided this circuit's only authority on redaction. In United States v. Burch, supra, Judge Stapleton refused the government's request to redact a warrant. He wrote,
24
In effect, the government asks the Court to act as if there were two searches, a legal search for tires (an item specifically identified by the warrant) and an illegal search for 'other unknown items.' Such an approach cannot be squared with the interests which the Fourth Amendment was designed to protect....
25
The inclusion of the specific reference to tires afforded no protection to Mr. Jaegers' right to be free from a general search. The search warrant authorized and the search which in fact occurred, was no more narrow by reason of the inclusion of that reference than it would have been in its absence. When the agents entered Jaegers' property on the morning of May 7th they were authorized to search for and seize anything they thought might have been stolen.... In sum, there was only one search, that search (which), unlimited in scope as it was, violated the Fourth Amendment....
26
432 F.Supp. at 964.
27
On the other side of the issue, in United States v. Giresi, supra, Judge Coolahan concluded that redaction-or "severance," as he labelled the practice-did not offend "the implied Fourth Amendment prohibition against general warrants," 488 F. Supp. at 460, and that as a matter of law it would be permitted in the case before him. Judge Coolahan recognized that Burch and two other district court opinions, In re Application of Lafayette Academy, Inc., 462 F. Supp. 767 (D.R.I.1978), aff'd on other grounds, 610 F.2d 1 (1st Cir. 1979), and United States v. Hatfield, 461 F. Supp. 57 (E.D.Tenn.1978), rev'd on other grounds, 599 F.2d 759 (6th Cir. 1979), had reached contrary conclusions. He distinguished these cases primarily for the reason that they "rest(ed) upon the critical preliminary finding that the warrant under consideration was dangerously akin to a general warrant." 488 F. Supp. at 460 (footnote omitted).
28
We do not think that Judge Stapleton's criticisms of redaction can be avoided by factually distinguishing Burch, for they go to the foundation of the redaction principle. It thus appears that the only two decisions on point in this circuit reach contradictory conclusions regarding the constitutional validity of redaction. It also appears that, although redaction may be an accepted practice in many state courts, it has yet to attain currency in federal courts. Moreover, the VonderAhe decision, apparently still viable in the Ninth Circuit, is precedent that courts may go beyond redacting warrants to match the seized evidence directly against the underlying probable cause showing.
29
Because of the importance of the issue to the administration of criminal justice in this circuit, it is necessary that we conduct an independent inquiry into the constitutional validity of redacting warrants. Our own analysis of redaction in the context of the purposes of the Fourth Amendment and the means by which those purposes are served leads us to conclude that we should embrace redaction as a practice and principle of law. We proceed now to examine the purposes of the Fourth Amendment and the means by which those purposes are effectuated as a predicate to evaluating the practice of redaction in light of that examination.
A.
30
Familiar history teaches that indiscriminate searches and seizures conducted pursuant to general warrants, known in the colonies as writs of assistance, "were the immediate evils that motivated the framing and adoption of the Fourth Amendment." Payton v. New York, 445 U.S. 573, 583, 100 S. Ct. 1371, 1378, 63 L. Ed. 2d 639 (1980). Writs of assistance were issued upon "mere suspicion" and gave customs officials blanket authority to search where they pleased for goods imported in violation of British tax laws. See generally Boyd v. United States, 116 U.S. at 625, 6 S.Ct. at 529; N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 13-78 (1937).7 The effect of the widespread use of writs of assistance was that "police control took the place of judicial control, since no showing of 'probable cause' before a magistrate was required." Henry v. United States, 361 U.S. 98, 100, 80 S. Ct. 168, 170, 4 L. Ed. 2d 134 (1959). In the eloquent and oft-quoted words of James Otis, the writs placed "the liberty of every man in the hands of every petty officer." Boyd v. United States, 116 U.S. at 625, 6 S.Ct. at 529.
31
The Fourth Amendment provided the new nation's answer to the odious writs of assistance:
32
The 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.
33
The Warrant Clause enshrines the functional, sensitive balance struck by the Bill of Rights between the government's need to enforce its laws and the colonists' antipathy for general searches and seizures licensed by writs of assistance.
34
Courts have identified no less than five separate, but related functions served by the Warrant Clause. First, by requiring that warrants be justified by an antecedent showing of probable cause, the Warrant Clause accommodates the citizenry's interest "in being safeguarded from rash and unreasonable interferences with privacy and from unfounded charges of crime" while allowing "fair leeway for enforcing the law in the community's protection." Brinegar v. United States, 338 U.S. 160, 176, 69 S. Ct. 1302, 1311, 93 L. Ed. 1879 (1949).
35
Second, the Warrant Clause prevents individual privacy from being subjected to the whims of law enforcement officers who are "engaged in the often competitive enterprise of ferreting out crime," Johnson v. United States, 333 U.S. 10, 13-14, 68 S. Ct. 367, 369, 92 L. Ed. 436 (1948), by requiring that a neutral and objective judicial officer "weigh the need to invade that privacy in order to enforce the law." McDonald v. United States, 335 U.S. 451, 455, 69 S. Ct. 191, 193, 93 L. Ed. 153 (1948).
36
Third, the terms of the warrants' authorization serves to limit the scope of the intrusion. Walter v. United States, 447 U.S. at 656, 100 S.Ct. at 2401; United States v. Poller, 43 F.2d 911, 914 (2d Cir. 1930) (Hand, J.). "The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another." Marron v. United States, 275 U.S. at 196, 48 S.Ct. at 76.
37
Fourth, a warrant serves the purpose of notifying the subject of the search that his privacy must yield to the public's need for law enforcement.8 "(A) warrant insures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." United States v. Chadwick, 433 U.S. 1, 9, 97 S. Ct. 2476, 2482, 53 L. Ed. 2d 538 (1977) (citing Camara v. Municipal Court, 387 U.S. 523, 532, 87 S. Ct. 1727, 1732, 18 L. Ed. 2d 930 (1967)).
38
Fifth, the procedures for validly issuing a warrant generate a valuable record susceptible to subsequent judicial review. The justification for a warrant must be determined upon the basis of the information presented to the magistrate at the time the warrant was sought. "A contrary rule would, of course, render the warrant requirements of the Fourth Amendment meaningless." Whiteley v. Warden, 401 U.S. 560, 565 n.8, 91 S. Ct. 1031, 1035 n.8, 28 L. Ed. 2d 306 (1971). "Probable cause is to be shown by persons willing to swear or affirm the truth of their statements and thus to be held accountable for their representations. In addition, the applicant for the warrant is committing to a public record the information that is known before the search so that, after the search takes place, there is no confusion between the ex-post and ex-ante positions of the applicant." S. Saltzburg, supra, at 57.
B.
39
Although an individual whose Fourth Amendment rights have been abridged may seek recourse through a civil damages action,9 the principal means today for effectuating the rights secured by the Fourth Amendment is through the judicially created exclusionary rule. The primary justification for the exclusionary rule is its tendency to deter police conduct violative of the Fourth Amendment. Stone v. Powell, 428 U.S. 465, 482-86, 96 S. Ct. 3037, 3046-48, 49 L. Ed. 2d 1067 (1976). A secondary consideration is that convictions secured upon the basis of illegally seized evidence could "compromise the integrity of the courts." Dunaway v. New York, 442 U.S. at 218, 99 S.Ct. at 2259. The application of the exclusionary rule in various situations turns upon a "pragmatic analysis of the exclusionary rule's usefulness" that balances the interests safeguarded by exclusion against the public interests served by admission of the evidence. Stone v. Powell, 428 U.S. at 488-89, 96 S.Ct. at 3049-50. See also United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974); Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969); Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954).
40
The "pragmatic analysis of the exclusionary rule's usefulness" explains the judicial response to cases in which law enforcement officers, acting pursuant to a valid warrant, seize an article whose seizure was not authorized and which does not fall within an exception to the warrant requirement. Defendants in such cases have vainly argued that the entire search should be invalidated and that all evidence seized should be suppressed. Without exception federal appellate courts have held that only that evidence which was seized illegally must be suppressed;10 the evidence seized pursuant to the warrant has always been admitted. See, e.g., United States v. Dunloy, 584 F.2d 6, 11 n.4 (2d Cir. 1978); United States v. Forsythe, 560 F.2d 1127, 1134 (3d Cir. 1977); United States v. Mendoza, 473 F.2d 692, 696 (5th Cir. 1972). See also, Andresen v. Maryland, 427 U.S. at 482 n.11, 96 S. Ct. at 2749 n.11. In such cases, the interests safeguarded by the Fourth Amendment have been adequately served by the suppression of only that evidence seized by overreaching the warrant's authorization. The heavy cost to society of excluding evidence which was legally seized and could have been admitted had the warrant been scrupulously honored far outweighs the objective of deterring future seizures exceeding a warrant's authority by suppressing all the evidence seized. "The entire search would only seem to be invalid if its general tenor was that of an exploratory search for evidence not specifically related to the search warrant." United States v. Russo, 250 F. Supp. 55, 58 (E.D.Pa.1966).
41
It is beyond doubt that all evidence seized pursuant to a general warrant must be suppressed.11 The cost to society of sanctioning the use of general warrants-abhorrence for which gave birth to the Fourth Amendment-is intolerable by any measure. No criminal case exists even suggesting the contrary. The same result applies to warrants unsupported by probable cause but particularly describing the things to be seized, for the particularity and probable cause requirements are inextricably intertwined and, along with the requirement of antecedent justification before a neutral and objective magistrate, are among the most essential foundations of the Fourth Amendment's bulwark against general warrants.12
C.
42
Redaction of a warrant containing valid severable phrases or clauses is consistent with all five purposes of the warrant requirement. First, with respect to the search and seizure conducted pursuant to the valid portion of the redacted warrant, the intrusion into personal privacy has been justified by probable cause to believe that the search and seizure will serve society's need for law enforcement. Second, because it is a duly issued warrant that is being redacted, the objective of interposing a magistrate between law enforcement officials and the citizen has been attained. Third, even though it may not be coterminous with the underlying probable cause showing, the scope of a search pursuant to a particularized, overbroad warrant is nevertheless limited by the terms of its authorization. In the case of a warrant containing some invalid general clauses, redaction neither exacerbates nor ratifies the unwarranted intrusions conducted pursuant to the general clauses, but merely preserves the evidence seized pursuant to those clauses particularly describing items to be seized. Fourth, as to the valid portions of the warrant salvaged by redaction, the individual whose property is to be searched has received notification of the lawful authority of the executing officer, his need to search, and the limits of his power to search. Fifth, redaction does not affect the generation of a record susceptible to subsequent judicial review.
43
Applying the pragmatic analysis behind the exclusionary rule to the issue before us, we not only believe that redaction adequately serves the warrant clause and law enforcement goals, but also that it should be used in order to avoid the social cost of unnecessarily excluding validly seized evidence. As other courts have recognized,13 redaction of a partially invalid warrant is analogous to courts' treatment of evidence seized by overreaching a warrant's scope of authorization. In redaction, as in the case of overreaching, only that evidence seized without valid authorization supported by particularized probable cause is suppressed. The cost of suppressing all the evidence seized, including that seized pursuant to the valid portions of the warrant, is so great that the lesser benefits accruing to the interests served by the Fourth Amendment cannot justify complete suppression.
44
The district court in United States v. Burch, supra, criticized redaction as a fiction which asks a court to act as if there were two searches: a legal search, under the valid portions of the warrant, and an illegal search, under the invalid portions. Logically, Burch's approach would require either that all evidence seized pursuant to a partially invalid warrant be suppressed or that, in the interest of precluding complete suppression, the illegal aspects of the warrant be ignored. Both courses of action are unacceptable. The inflexibility of the first alternative abandons the pragmatic foundations of the exclusionary rule while the second needlessly sacrifices individual rights for the sake of law enforcement interests. The proper approach is to strike a middle ground between those two positions by utilizing the alternative of redaction.
45
Burch's viewpoint may be partly motivated by the secondary reason behind the exclusionary rule, a concern that redaction will compromise the integrity of the courts. But this danger is more imagined than real. Redaction does not countenance the admission of illegally seized evidence. If the overall tenor of the warrant or search smacks of a general warrant or an abuse of the prospective availability of redaction, then the entire search and seizure may be treated as a single illegality.
46
Burch's concern about courts engaging in a fiction that ignores the substance of the Fourth Amendment is more accurately directed at the approach taken in VonderAhe. By matching the evidence seized directly against the probable cause showing underlying the warrant, VonderAhe bypassed the terms of the warrant without regard to the centrality of the warrant clause to the scheme of the Fourth Amendment. Under VonderAhe, rather than reviewing the warrant, which embodies the magistrate's assessment of probable cause and the scope of the search and seizure it justifies, a reviewing court, in effect, considers de novo the government's case for a search and seizure. By ignoring the terms of the warrant issued by the magistrate, a reviewing court acts as if the magistrate's intervention between the state and citizen in order to weigh the justification for the former's invasion into the latter's privacy was a mere formality. Furthermore, in failing to demand that the warrant be valid in significant measure, as is required for redaction, the VonderAhe approach offends the notification principle of the warrant clause by not ensuring that the subject of the search receives notice of the officer's lawful authority to search. Under VonderAhe, the warrant served upon a person could be completely invalid and yet evidence seized in the search may be admitted on the basis of an affidavit that that person never saw until after the search had been completed.
IV.
47
We have concluded that redaction is an efficacious and constitutionally sound practice, and should be utilized in order to avoid unnecessary social costs. The district court lacked clear guidance on this issue and therefore did not consider it as an alternative to suppressing all the evidence seized pursuant to the challenged warrant. This appears to be an appropriate case for redaction and had the district court considered the redaction alternative, it might have reached a different result. We have both the affidavit and the warrant before us and could attempt to redact the warrant ourselves. However, because this case is not a post-conviction appeal and in any event must be remanded to the district court for further proceedings, we think it preferable rather than engage in the process of redaction ourselves, to allow the district court to have the first opportunity to accomplish that task.14 On remand, rather than focusing upon the sum of the items authorized by the warrant to be seized, the district court should consider whether the Scott affidavit establishes probable cause to support each severable clause of the search warrant. Only those clauses unsupported by probable cause should be invalidated.15
48
In its reconsideration of the suppression motion, the district court should keep in mind that the warrant in this case authorizes a search and seizure of mere evidence. In such a case, "probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. In so doing, consideration of police purposes will be required." Warden v. Hayden, 387 U.S. 294, 307, 87 S. Ct. 1642, 1650, 18 L. Ed. 2d 782 (1967). Courts must avoid a hypertechnical approach by heeding the admonition that "the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract." United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684 (1965). Affidavits and warrants "must be tested by courts in a commonsense and realistic fashion." Id. See also, United States v. Newman, 685 F.2d 90, 92 (3d Cir. 1982). For instance, the use of generic classifications in a warrant is acceptable when a more precise description is not feasible. See, e.g., United States v. Cook, 657 F.2d at 733; United States v. Cortellesso, 601 F.2d 28, 32 (1st Cir. 1979), cert. denied, 444 U.S. 1072, 100 S. Ct. 1016, 62 L. Ed. 2d 753 (1980); United States v. Scharfman, 448 F.2d 1352, 1354 (2d Cir. 1971), cert. denied, 405 U.S. 919, 92 S. Ct. 944, 30 L. Ed. 2d 789 (1972). Likewise, in searches for papers, it is certain that some innocuous documents will be at least cursorily perused in order to determine whether they are among those papers to be seized. But no tenet of the Fourth Amendment prohibits a search merely because it cannot be performed with surgical precision. Nor does the Fourth Amendment prohibit seizure of an item, such as a single ledger, merely because it happens to contain other information not covered by the terms of the warrant. United States v. Beusch, 596 F.2d 871, 876-77 (9th Cir. 1979).
49
This flexibility is especially appropriate in cases involving complex schemes spanning many years that can be uncovered only by exacting scrutiny of intricate financial records. The Court in Andresen seems to have recognized that the problems posed by prosecution of white-collar criminals must be accommodated:
50
Petitioner also suggests that the specific list of the documents to be seized constitutes a "general warrant." We disagree. Under investigation was a complex real estate scheme whose existence could be proved only by piecing together many bits of evidence. Like a jigsaw puzzle, the whole "picture" of petitioner's false pretenses scheme with respect to Lot 13 T would be shown only by placing in the proper place the many pieces of evidence that, taken singly, would show comparatively little. The complexity of an illegal scheme may not be used as a shield to avoid detection when the State has demonstrated probable cause to believe that a crime has been committed and probable cause to believe that evidence of this crime is in the suspect's possession.
51
427 U.S. at 480 n.10, 96 S. Ct. at 2748 n.10. See also United States v. Jacobs, supra; United States v. Abrams, 615 F.2d 541, 547-51 (1st Cir. 1980) (Campbell, J., concurring).
52
The district court's order will be vacated and the case remanded for reconsideration in light of this opinion.
GIBBONS, Circuit Judge, concurring:
53
While I join in the court's judgment and in most of Judge Becker's opinion, I have several minor reservations about his analysis. The first is with respect to his references to the deterrence rationale for the exclusionary rule. When dealing with the exclusion of evidence seized in a warrantless search and seizure something, perhaps, can be said for that rationale, although I remain skeptical about that justification. When dealing with the due execution of a judicially authorized warrant in accordance with its terms, however, deterrence of police misconduct as a justification for the exclusionary rule seems to me completely illogical. The police went to a judicial officer, obtained a warrant, and executed it in accordance with its terms. They did all that could be reasonably expected of them.
54
When we suppress evidence obtained pursuant to a warrant, either because the affidavits on which it issued were insufficient or because, as in this case, the subject matter to be searched for was insufficiently particularized, we are in effect exercising appellate review over the judicial performance of the issuing magistrate. We do so because the courts have an affirmative obligation under the Fourth Amendment to refrain from providing a public forum for dissemination of information which should have remained private. Use by a court of evidence which should, under the Fourth Amendment, have remained private is itself a violation of the Fourth Amendment.
55
Our adoption of the redaction requirement is entirely consistent with my position that judicial use of illegally obtained evidence is a violation of the Fourth Amendment separate and distinct from any violation committed by the police. By hypothesis the affidavit justified entry to the premises and seizure of some property. Thus there has been no invasion of privacy in the entry, and at least some of the property lost the shield of privacy. On the other hand the seizure of property for which no probable cause showing has been made does involve an invasion of privacy, which the court cannot compound.
56
Finally, I suggest that on remand, in deciding what evidence should be suppressed, the court may not end its analysis at the point at which it matches up the seized evidence with the probable cause showing in the affidavit. The officers were lawfully on the premises, and were required to examine the company's books and records in order to execute even the valid parts of the warrant. Under those circumstances the court should consider whether seizure of additional evidence was justified under the plain view doctrine.
1
Quoted in Walter v. United States, 447 U.S. 649, 656 n.7, 100 S. Ct. 2395, 2401 n.7, 65 L. Ed. 2d 410 (1980); Andresen v. Maryland, 427 U.S. 463, 479, 96 S. Ct. 2737, 2748, 49 L. Ed. 2d 627 (1976)
2
Accord In re Application of Lafayette Academy, Inc., 610 F.2d 1, 5-6 (1st Cir. 1979)
3
See Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979); United States v. Roche, 614 F.2d 6, 7 (1st Cir. 1980); Montilla Records of Puerto Rico, Inc. v. Morales, 575 F.2d 324, 327-28 (1st Cir. 1978) (Campbell, J., concurring); VonderAhe v. Howland, 508 F.2d 364, 368-70 (9th Cir. 1974); United States v. Adler, 393 F. Supp. 707 (E.D.Pa.1975). See also S. Saltzburg, American Criminal Procedure: Cases and Commentary, 56-57 (1980); Mascolo, Specificity Requirements for Warrants under the Fourth Amendment: Defining the Zone of Privacy, 73 Dick.L.Rev. 1, 4-6 (1968)
4
See United States v. Giresi, 488 F. Supp. at 459-60 (collecting state cases); Aday v. Superior Ct. of Alameda Cty., supra (leading case); People v. Mangialino, 75 Misc. 2d 698, 348 N.Y.S.2d 327 (Cnty.1973); Walthall v. State, 594 S.W.2d 74 (Tex.Cr.App.1980); see also 2 W. LaFave, supra, § 4.6(f). But see Kinsey v. State, 602 P.2d 240 (Okl.Cr.App.1979)
5
The Ninth Circuit stated that the Supreme Court approved redaction in footnote 11 of Andresen v. Maryland, supra. In the only passage of that footnote that could possibly support the Ninth Circuit's reading, the Court wrote:
The record discloses that the officials executing the warrants seized numerous papers that were not introduced into evidence. Although we are not informed of their content, we observe that to the extent such papers were not within the scope of the warrant or were otherwise improperly seized, the State was correct in returning them voluntarily and the trial judge was correct in suppressing others.
Although we agree with the result reached in Cardwell, we do not agree that the redaction principle was approved in Andresen.
6
The Fourth Circuit has come close to adopting redaction, but has not yet explicitly done so. See United States v. Jacob, 657 F.2d 49, 52 (4th Cir. 1981), cert. denied. --- U.S. ----, 102 S. Ct. 1435, 71 L. Ed. 2d 653 (1982) ("we think (the warrant) was sufficiently particularized with respect to the items to be seized. We are further of the opinion that the challenged phrase should properly be treated as merely superfluous...."); United States v. Torch, 609 F.2d 1088 (4th Cir. 1979), cert. denied, 446 U.S. 957, 100 S. Ct. 2928, 64 L. Ed. 2d 215 (1980)
7
Some of the colonists' hostility to the general warrants was rooted in the warrants being issued by the same authority, such as the Court of the Exchequer, which was charged with enforcing the law. But regardless of whether the issuing authority was a law enforcement official or a judge, "(h)ostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment...." Dunaway v. New York, 442 U.S. 200, 213, 99 S. Ct. 2248, 2257, 60 L. Ed. 2d 824 (1979)
8
See Steagald v. United States, 451 U.S. 204, 226, 101 S. Ct. 1642, 1654-55, 68 L. Ed. 2d 38 (1981) (Rehnquist, J., dissenting); In re Application of Lafayette Academy, Inc., 610 F.2d at 5; United States v. Johnson, 541 F.2d 1311, 1315 (8th Cir. 1976); United States v. Marti, 421 F.2d 1263, 1268 (2d Cir. 1970), cert. denied, 404 U.S. 947, 92 S. Ct. 287, 30 L. Ed. 2d 264 (1971); United States v. LaMonte, 455 F. Supp. 952, 960 (E.D.Pa.1978)
9
See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971); Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), overruled on other grounds, Monell v. Department of Soc. Serv., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)
10
Some courts have concluded that in some circumstances it may be possible that the seizure of evidence not described in the warrant nevertheless may be justified under the "plain view" exception to the warrant requirement. See, e.g., United States v. Crouch, 648 F.2d 932 (4th Cir.), cert. denied, 454 U.S. 952, 102 S. Ct. 491, 70 L. Ed. 2d 259 (1981); United States v. Ochs, 595 F.2d 1247 (2d Cir.), cert. denied, 444 U.S. 955 (1979). See also United States v. Scarfo, 685 F.2d 842 (3d Cir. 1982) (Gibbons, J., dissenting)
11
See Lo-Ji Sales, Inc. v. New York, supra (reversing denial of motion to suppress evidence seized pursuant to warrant "reminiscent of the general warrant or writ of assistance"); Stanford v. Texas, supra; Marcus v. Search Warrant, supra; United States v. Cook, 657 F.2d at 734
12
In Justice Stevens' words, "The requirement that a warrant only issue on a showing of particularized probable cause was the means adopted to circumscribe the warrant power." Marshall v. Barlow's, Inc., 436 U.S. 307, 328, 98 S. Ct. 1816, 1828, 56 L. Ed. 2d 305 (dissenting opinion) (emphasis added)
13
United States v. Cook, 657 F.2d at 735 n.5; United States v. Giresi, 488 F. Supp. at 460 n.18; People v. Mangialino, 348 N.Y.S.2d at 338-39
14
Although we do not reach all the issues raised on this appeal, we hold that appellees' argument that the warrant should be invalidated because the government did not satisfy the test of Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), lacks merit. Lake and Keiser were not anonymous informants and their reliability as well as the basis upon which they concluded that appellees had engaged in criminal activity is clearly and adequately set forth in the Scott affidavit
15
As was pointed out in Aday, supra, the district court may decline to engage in redaction if it determines that it would be an abuse of the warrant procedure. We do not suggest, though, that this is such a case | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1556624/ | 30 So. 3d 494 (2010)
SANBORN
v.
STATE.
No. SC10-331.
Supreme Court of Florida.
February 23, 2010.
Decision Without Published Opinion Review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1538642/ | 240 Pa. Super. 291 (1976)
Janet D.
v.
Carros, Appellant.
Superior Court of Pennsylvania.
Argued November 11, 1974.
March 29, 1976.
*295 Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN DER VOORT, and SPAETH, JJ.
James A. Esler, Assistant County Solicitor, with him Thomas M. Rutter, Acting County Solicitor, and Stephen A. Zappala, County Solicitor, for appellant.
Max A. Levine, with him Eric N. Anderson, for appellee.
OPINION BY SPAETH, J., March 29, 1976:
This case presents two questions, each of first impression in Pennsylvania, and of first importance: Does a child committed by a juvenile court to a child *296 welfare agency as a "deprived child"[1] have a right to treatment? If so, may the director of the agency be held in contempt for failing to provide the treatment?
Appellant, Thomas Carros, is the Director of Child Welfare Services of Allegheny County (hereinafter "CWS"). When this action was commenced, appellee, Janet D., was a sixteen year old girl under the protective supervision of CWS.
On June 15, 1973, following the informal detention hearing required by the Juvenile Act,[2] the lower court issued the following order:
"And now, to wit, this fifteenth day of June, 1973, after Shelter Care Hearing, it is ordered and directed that:
1. Said child [appellee] is committed to the Allegheny County Juvenile Detention Home.
2. Child Welfare Services of Allegheny County (hereinafter called `CWS') is directed to file a petition in the interest of said child by 4:00 P.M. Tuesday, June 19, 1973.
3. CWS is to provide suitable shelter for said child on or before Friday, June 22, 1973, so that she will not have to remain in the Juvenile Detention Home.
4. Said child appears to be retarded and ran away from McIntyre Shelter in March, 1973; it will *297 therefore be necessary for CWS to make suitable arrangements to see that said child does not run away subsequent to her placement in the shelter facility to be provided by CWS." (Record at 4a-5a).
On June 20, 1973, Bernard Frank, the CWS social worker assigned to appellee's case, filed the petition called for by paragraph 2 of this order. The petition designated appellee a "deprived child," requested that CWS be given "supervision with permission to place," and stated that "[i]t appears that it is in the best interest of said child and the public that she be given a hearing."[3] On June 22 appellee was taken by the Sheriff from the Detention Home to McIntyre Shelter, a facility administered by CWS and designated as "temporary" and "physically unrestricted."[4] On June 25 her appointed counsel[5] wrote a letter to appellant, stating that "[a]t this time, no suitable arrangements have been made, to the best of my knowledge," and demanding that appellant *298 comply with the June 15 order. Record at 16a. That same evening, appellee ran away from McIntyre Shelter.
On June 26, appellee's counsel petitioned the lower court for a rule to show cause why appellant should not be held in contempt. Record at 9a.[6] The lower court issued the rule, and after a hearing conducted on July 27, July 30, August 3, and September 4, 1973, filed an opinion on March 29, 1974, finding appellant in "Contempt of the Order of this Court dated June 15, 1973."[7] Pursuant to this finding, the court imposed a fine of $100.00 on appellant, and granted appellee leave to file a petition for compensatory damages.[8]
I
Some background information about appellee and the history of her relationship with CWS is helpful to an *299 understanding of the events that brought into question whether CWS had complied with the June 15 order.
Appellee was born September 23, 1956, and was one of twelve children. Her father died in December, 1972. Her mother was considered mentally retarded and was cared for by one of the older children, appellee's sister Betty. Appellee has also been designated retarded (see, for example, the June 15 court order, supra), because she scored 64 and 76 on I.Q. tests, although one witness at the contempt hearing, Mrs. Laughren, Director of Social Services at McKeesport Hospital, disagreed with this interpretation, considering that appellee's problems derive from emotional disturbance rather than from retardation. (N.T. 66, 7/27/73.)[9]
In 1969, when appellee was 13, she was admitted to McKeesport Hospital as an hysterical child. At that time, she was a resident of Westmoreland County and the Child Welfare service of that county removed her from her home and placed her with a foster family.
On March 28, 1973, appellee was again taken to McKeesport Hospital. Mrs. Laughren testified:
"Janet at that time was very unkempt and dirty, and dressed in clothing that was really heavy winter clothing, had been barefooted. The Emergency Room diagnosed at the time that they saw her acute exposure and feet frostbite. They didn't feel that she needed an admission, however, they did feel that she needed some emotional supports . . ." (N.T. 61, 7/27/73.)
Evidently, appellee had run away from her foster home because she had overheard that the court would not continue to make payments for her and that she would have to leave. At first she had returned to her mother and sister, but when they refused to keep her, she went to a neighbor's home. There, according to Mrs. Laughren,
*300 "The man of the house then declared he wouldn't keep her unless she was cleaner and put her on the kitchen floor, sat on her, and shaved all her hair from her head." (N.T. 62, 7/27/73.)
After the hospital had cleaned appellee and had purchased a wig for her, they attempted to place her with a welfare agency. The Westmoreland County Child Welfare Service disclaimed responsibility because appellee's mother and sister had moved to Allegheny County. Despite this fact, CWS also disclaimed responsibility for appellee. Mrs. Laughren testified:
"Janet was highly disturbed and we saw her as a possible suicide attempt if some treatment weren't effected . . . . We attempted to persuade Child Welfare [CWS] to allow us to send Janet directly to . . . Shelter. . . and this was refused. And they insisted that they would have to have the mother, who is retarded, and the daughter . . . go to Juvenile Court and to Child Welfare to file a complaint . . . . This was after about seven or eight phone calls between agencies and all day at the [McKeesport] hospital . . . ." (N.T. 63, 7/27/73.)
Eventually appellee was committed to McIntyre Shelter. Soon, however, she ran away and returned to her former foster home in Westmoreland County. Three months later she ran away from the foster home, attempting to return to her mother and sister. However, they refused to keep her, she ran away again, and on June 12, 1973, her sister and a minister took her back to the McKeesport Hospital. Mrs. Laughren testified:
"She [the sister] had called the Child Welfare office and seemed to get no cooperation insofar as what she was to do with her sister, so she brought her back to me, hoping we could make some dispositional plan." (N.T. 73, 7/27/73.)
In trying to devise such a plan, Mrs. Laughren encountered considerable difficulty in obtaining the cooperation of CWS. Appellee had been brought to her *301 office at 9:30 that morning. Mrs. Laughren made numerous telephone calls to CWS, attempting to reach either appellee's caseworker or his supervisor, but her calls were not returned. After six hours, she called the office of the Juvenile Court judge who had previously committed appellee to shelter care. Because of his intervention, Mrs. Laughren was finally able to speak with a CWS supervisor, who advised her to file a petition and to take appellee to Juvenile Court. Appellee's sister followed this procedure, and appellee, although a deprived child rather than a delinquent child,[10] was placed in the Allegheny County Juvenile Detention Home, a facility for delinquents. She remained there for ten days. 11 P.S. §§ 50-311(d) and 50-321(b) prohibit the placement of deprived children in a facility for delinquents, but the lower court agreed to the placement as a temporary measure to enable CWS to plan for appellee's subsequent placement.[11]
It was against this background that the lower court issued its June 15 order.
II
It is hardly surprising that the lower court found that appellant had disobeyed the June 15 order, which, it will be recalled, was that appellant was "to make suitable arrangements to see that [appellee] does not run away subsequent to her placement in the shelter facility *302 to be provided by CWS." Briefly stated, the arrangements made were again to place appellee in McIntyre Shelter, and then to provide her with next to nothing in the way of intelligent supervision, counseling, or treatment.
-A-
Since McIntyre Shelter was a "temporary" and "physically unrestricted" facility, see footnote 4, supra, it would seem that it was unsuitable for a child, who, as CWS knew from its past experience with appellee (recited in Part I, supra), had run away before and was emotionally unstable. This unsuitability was in fact immediately and repeatedly demonstrated.
As already mentioned, on June 25 appellee's counsel wrote appellant demanding that suitable arrangements be made for appellee. That same evening, appellee ran away from McIntyre Shelter. The infirmary records[12] show that she left at 11:15 P.M. and returned several hours later, voluntarily. According to her testimony, "I just went out the door and down the stairs and out the back door." (N.T. 20, 7/27/73.)
Following this first runaway, appellee was placed on "Seven Day Restriction," which meant confining her to the cottage for seven days in pajamas and robe. This restriction was not imposed on all children who ran away. The Shelter Administrator, Paul Aigner, testified, however, that as concerned appellee, "We felt that with pajamas and robe on . . . we could hold her in detention . . . until possible placement." (N.T. 126, 7/27/73.) Although this suggests awareness that McIntyre Shelter was not a suitable facility for appellee, there is no evidence that any effort was made to find a suitable facility.
*303 On June 28 appellee ran away again. (She explained that ". . . I have clothes downstairs I kept and I went downstairs with my pajamas on and took the clothes outside." (N.T. 20, 7/27/73.)) Again she returned voluntarily.
On July 4, appellee was reported a runaway for the third time (although she remained on the shelter campus for four hours, her absence was reported as a run). As she was returning to her cottage, she was attacked by four boys also in residence at the shelter, undressed by them, and beaten with a whip. Appellee testified that she feared she would be sexually attacked. (N.T. 23, 7/27/73.) After thirty minutes, a houseparent and the houseparent supervisor subdued the boys and took appellee to the infirmary. The infirmary records describe her condition:
"Child trembling when brought in the department. Long welts on left thigh of leg. Abrasion left side of back. Superficial scratching on arms. Underpants full of dirt. Outer jeans soaking wet . . . Stated she was on her way back to shelter when boys jumped her." (N.T. 49, 7/27/73.)
Bernard Frank, appellee's assigned caseworker, was not informed of this incident for six days, and only learned of it when appellee came to his office to meet with her attorney.
Appellee was again placed on restriction and made to wear pajamas and robe. However, on July 15 she ran away again, stayed away for three days, and returned voluntarily. Her condition on return is described by the infirmary records:
"Legs very dirty . . . condition very dirty. Legs covered with scratches and insect bites, also some on forearms. Had been staying in the woods. Had not eaten since dinner on 7/15. Was wearing gym shorts and short pajama bottoms, long sleeved shirt, no shoes or socks. Very depressed. Is afraid she will be locked up at J.C." (N.T. 49-50, 7/27/73.)
On July 23 appellee left her cottage again, stayed out *304 all night, and the next morning returned voluntarily. During this absence she stayed within the shelter boundaries.
In summary, although appellee was required to wear pajamas and robe during the entire six weeks (except for four days) that she was at McIntyre Shelter, she ran away five times.
-B-
In his answer to the petition for a rule to show cause why he should not be held in contempt, appellant claimed to have instructed the personnel at McIntyre Shelter that:
"[a] court order had been issued directing that suitable arrangements be made to prevent the child from running away; that special supervision and counseling be given to the child to assist her in adjustment to her placement; that she be carefully watched and that she be told she must not leave the shelter." (Record at 21a.)
It is evident from what has just been said that appellee was not "carefully watched;" she was able to run away five times. It is equally evident that neither was she given "special supervision and counseling . . . to assist her in adjustment to her placement."
When appellee arrived at McIntyre Shelter, she met with Mrs. Banaszak, the Shelter Intake Worker. This meeting was arranged at the instruction of Rena Menegaz, Assistant Director of CWS. Miss Menegaz had told Mrs. Banaszak to "[m]ake it quite clear to Janet that the court was interested in her case and wanted her to stay with us . . . . She [Mrs. Banaszak] was to offer to see, or to make herself available to Janet on demand whenever the child felt pressure, some compulsion to run. . . ." (N.T. 107, 7/27/73.) Thus, rather than providing regular counseling, the burden was put on appellee to seek counseling. During the six weeks appellee spent at the shelter, she never asked to meet with Mrs. Banaszak *305 for counseling, although she clearly "felt some compulsion to run." Nor, despite appellee's disturbed behavior, did Mrs. Banaszak seek her out.
Appellant testified that he also instructed Miss Menegaz to communicate to Paul Aigner, the McIntyre Shelter Administrator, ". . . specific directions . . . that our houseparents be involved in whatever way might produce the desired results in terms of the [lower court's] Order. . .". (N.T. 64, 7/30/73.) Mr. Aigner himself never met with or counseled appellee. Nor did he ever consult her caseworker, Mr. Frank.[13] Instead, he passed Miss Menegaz's instructions on to his assistant, Frank Pruszynski. Mr. Pruszynski never spoke with appellee, or counseled her, or consulted her caseworker. Instead, "I relayed this to Mr. Catalfamo [houseparent supervisor]. . . in whose hands I feel this matter was truthfully placed." (N.T. 151, 7/27/73.) Mr. Catalfamo had no higher education or training in counseling. He spoke with appellee in the presence of two houseparents and instructed her not to run away. He also arranged that when two houseparents were on duty at the cottage, one would be assigned solely to appellee and would follow her when she attempted to run away and try to convince her not to run away. Thus, the major responsibility for appellee's care devolved upon the cottage houseparents.[14]
*306 One houseparent viewed her qualifications for the job as ". . . having children, working with Girl Scouts, our Brownies, and so on up to the top." When asked if she had any professional training, she answered, "No," and described the in-service training she had received at McIntyre Shelter as ". . . a schooling that taught you everything from marriage to conception. In other words, into adulthood, down the steps." (N.T. 37, 7/27/73.) Another houseparent responded to questioning about her qualifications that Child Welfare had offered her two classes at which "Everything from birth to adult stages" was discussed. (N.T. 172, 7/27/73.) Indeed, the houseparents recognized that their training and experience had not prepared them for a child with appellee's problems. The cottage manager who supervised the houseparents assigned to appellee's cottage thought that "Janet needs more professional help than what we could give her," and added, "I don't like to make statements, but I think Janet needs treatment." (N.T. 168, 7/27/73.)[15]
The houseparents' task was further made difficult by the fact that they were not placed in contact with appellee's caseworker. One houseparent testified, "We're not allowed to call the caseworker." (N.T. 37, 7/27/73.) Nor were the houseparents given any information about appellee's family, her schooling, her I.Q., or her previous history of foster care. Nor were the reasons for certain arrangements made for her at the shelter communicated to the houseparents. For example, appellee never *307 attended special classes offered at the shelter (although both Mr. Aigner and Mr. Pruszynski thought she had (N.T. 119, 153, 7/27/73.) The houseparents, however, did not know why appellee did not attend classes: "If there is a reason, I don't know why, let's put it that way. In fact, I did ask about it and wasn't given an answer." (N.T. 41, 7/27/73.)
In summary: During the six weeks that appellee was at McIntyre Shelter there was no attempt to treat her or to involve her in a program that might alter her pattern of behavior. She received no counseling - at least none by anyone trained to counsel her; and such "supervision" as she received was "special" only in that a special effort was made, in particular, requiring her to wear pajamas and a robe, to confine her to her cottage.
III
Before it may be decided whether appellee had a right to be treated better than she was, it is necessary to dispose of an issue of mootness.
If the lower court's order were regarded as an order of criminal contempt, this issue would not arise. In re Martorano, 464 Pa. 66, 80, 346 A.2d 22, 29 (1975). However, as already remarked, see footnote 7, supra, the opinion of the lower court makes it plain that the court regarded the proceeding, and therefore presumably the order that issued from the proceeding, as one in civil contempt. On this view of the case, an issue of mootness does arise.
Appellee became eighteen on September 23, 1974, two months before this appeal was argued before our court. She was therefore no longer a "child" as defined in the Juvenile Act[16] when her case was presented for *308 appellate review. Furthermore, she was released from shelter care on August 3, 1973, and although she remained under the "supervision" of CWS, Record at 49a, 52a, during the pendency of the lower court's hearings on the contempt petition she was housed in private facilities. Appellant cannot, therefore, purge himself of civil contempt by providing superior treatment to appellee:[17] she is too old to be under his supervision and, moreover, has not been a resident in a CWS facility for more than two and one-half years.
Although these considerations, among others to be discussed, constrain us from affirming the lower court's order, see Salvitti Appeal, 238 Pa. Super. 465, 357 A.2d 622 (1976), they do not require that we declare the case moot or otherwise refuse to decide it.
The general rule is that an actual case or controversy must exist at all stages of appellate review. DeFunis v. Odegaard, 416 U.S. 312 (1974); Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974); Roe v. Wade, 410 U.S. 113, 125 (1973). The policies that this rule seeks to achieve are ". . . to satisfy three fundamental needs of a judicial tribunal: first, a full record of the facts of the dispute, the raw material of decisionmaking; second, a presentation of opposing claims and defenses related to prior judicial settlements and social policies. . .; and third, the potential of effective resolution of the dispute, the raison d'etre of the institution." Mootness on Appeal in the Supreme Court, 83 Harv. L. Rev. 1672, 1672-73 (1970).
Here, there is a full record: during four days of hearings, the parties and the CWS staff testified in *309 considerable detail to appellee's background, her experiences while in shelter care, and the procedures followed by CWS in implementing the lower court's order. We must, however, determine whether the opposing claims continue to exist, and whether these claims may still be effectively resolved. We conclude that each of these requirements is satisfied.
First, although appellee did not bring this action as the representative of a class, and although no testimony was received during the hearings concerning the possible adverse effect of CWS's practices on other children, the subject of this appeal may fairly be viewed as a continuing controversy that affects a large number of persons. CWS continues and will continue to serve deprived children; its ability to "make suitable arrangements" for those children will therefore remain at issue. The many problems implicit in appellee's situation may not be precisely duplicated in the case of another deprived child, but CWS will certainly continue to handle children from broken homes, children who run away, and children whose problems make them difficult to place. See, Dunn v. Blumstein, 405 U.S. 330, 333 n.2 (although the named appellee met the challenged three month voting requirement, the problem the requirement posed to other Tennessee voters would recur); Moore v. Ogilvie, 394 U.S. 814 (1969) (the burden placed on nomination of candidates for state office would control future elections, although the election in question had been held); Werner v. King, 310 Pa. 120, 164 A. 418 (1933) (issue concerned the annual duty of a public official); Commonwealth ex rel. Finken v. Roop, 234 Pa. Super. 155, 162, n.4, 339 A.2d 764, 767-768 n.4 (1975) (although appellant was no longer confined to a state hospital, the controversy was a continuing one and affected large numbers of people). But see, Sosna v. Iowa, 419 U.S. 393 (1975) (had appellant, who challenged Iowa's residency requirement for a divorce sued only in her own behalf, and not as the representative of a class, *310 the fact that she satisfied the requirement and had obtained a divorce would make her case moot).
Second, this case presents issues that are by their very nature "capable of repetition yet evading review." Roe v. Wade, supra at 125; Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 (1911).
As we have seen, The Juvenile Act, supra, 11 P.S. § 50-102(5), defines shelter care as "temporary care of a child." (Emphasis added.) Moreover, Title 7200 of the Department of Public Welfare Regulations, Emergency Services for Children, C. & Y. Manual (1969), § 7210 G., provides that "[c]hildren shall not be kept in shelter facilities for more than three months, and successive emergency placements are prohibited." The time required for initial fact-finding, not to mention the process of appellate review, will certainly exceed so limited a period.
Furthermore, the cases most similar to appellee's are the cases most likely to recur and most difficult to review. At the contempt hearings in this case, the Assistant Director of CWS testified that alternatives to McIntyre Shelter existed for younger children, for children with I.Q.'s higher than appellee's, and for children without appellee's history of running away. (N.T. 114, 7/27/73.) Another CWS official described the difficulties CWS experienced in persuading private institutions to accept children with more complex histories. (N.T. 14, 9/4/73.) Appellant testified that these considerations caused him to assume that only McIntyre Shelter could provide the "suitable shelter" mandated by the June 15 order. (N.T. 63, 7/30/73.) From this testimony it appears that it is the older child, such as appellee, who is the most likely candidate for placement in a CWS shelter. Yet, because of her age, she is the child who will have the most difficulty completing an appeal before the case is mooted either by her relocation or by her becoming eighteen.
The mere passage of time can make a case moot. See, *311 De Funis v. Odegaard, supra, 416 U.S. 312 (1974) (plaintiff, who did not sue as a representative of a class, had registered for his last semester in law school and would almost certainly graduate; therefore, his challenge to the law school's admissions procedures became moot). See also Doremus v. Board of Education, 342 U.S. 429 (1952); Atherton Mills v. Johnston, 259 U.S. 13 (1922); Standard Dairies, Inc. v. McMonagle, 139 Pa. Super. 267, 11 A.2d 535 (1940). Here, however, the presence of a full record, the continuing existence of a controversy, its potential effect on others, and the probability that similar claims will recur, yet be difficult to review, convince us that this appeal should not be considered moot.
Third, there is an exception to the general rule that a case or controversy must exist at all stages of appellate review. If one of the parties to the controversy will continue to suffer some detriment from the lower court's decision, the appeal will usually be heard. Here appellant will suffer the adverse effect of having been held in contempt, yet if we declare the case moot because appellee has attained her majority, he will be unable to order any measures by which he might purge himself. In the criminal law, the rule has been that ". . . a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed. . .", Sibron v. New York, 392 U.S. 40, 57 (1968). This rule has also been applied in civil cases. See Moore v. Ogilvie, supra at 816; Carroll v. President and Commissioners, 393 U.S. 175, 178 (1968); Commonwealth ex rel. Finken v. Roop, supra at 162, n.4, 339 A.2d at 767-768, n.4. But see Commonwealth ex rel. Watson v. Montone, 227 Pa. Super. 541, 323 A.2d 763 (1974).
Finally, cases ". . . important to the citizenry as a whole, as when the state acts as substantial trustee for the public . . .", have been reviewed even when moot. Cases Moot on Appeal: A Limit on the Judicial Power, 103 U. Pa. L. Rev. 772, 788 (1955). See also Wortex Mills, *312 Inc. v. Textile Workers Union, 369 Pa. 359, 370, 85 A.2d 851, 857 (1952) (moot question will be decided when "exceptional circumstances exist or questions of great public importance are involved"). The question of whether the director of a public agency may be held in contempt of a prior court order because of the quality of care afforded a deprived child committed to a facility under his superintendence is such a question of great public importance.
IV
It is now in order to decide whether appellee had a legally enforcible right to be treated better than she was.
-A-
The "right to treatment" has been widely discussed in the context both of mental health and juvenile care. See, inter alia, Wald and Schwartz, Trying a Juvenile Right to Treatment Suit, 12 Am. Crim. L. Rev. 125 (1974); BAZELON, Implementing the Right to Treatment, 36 U. Chi. L. Rev. 742, and accompanying articles, 755 - 801 (1969); A Symposium, The Right to Treatment, 57 Geo. L. Rev. 673, 680 - 817 (1969).
The most widely discussed basis for the right has been constitutional. Several courts have said that confinement to a mental hospital or to a juvenile detention facility without providing rehabilitative treatment violates the due process clause of the federal constitution. U.S. Const. Amend. XIV. Thus, in Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971), the court held that adequate medical treatment must be afforded patients civilly committed to a mental hospital, and wrote: "To deprive any citizen of his or her liberty upon the altruistic theory that the confinement is for humane therapeutic reasons and then fail to provide adequate treatment violates the very fundamentals of due process." Id. at 785. In cases of juvenile detention, whether *313 temporary or long term, and whether for delinquency or for non-criminal behavior such as running away, confinement without rehabilitative treatment has been held to be a violation of the Eighth Amendment prohibition against cruel and unusual punishment as well as a denial of due process. U.S. Const. Amend. VIII. See generally Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974); Morales v. Turman, 364 F. Supp. 166 (E.D. Tex. 1973); Martarella v. Kelley, 349 F. Supp. 575 (S.D.N.Y. 1972); Inmates of Boys' Training School v. Affleck, 346 F. Supp. 1354 (D.R.I. 1972).
Recently, however, in O'Connor v. Donaldson, 422 U.S. 563 (1975), the United States Supreme Court did not find it necessary to decide the issue of whether compulsory confinement such as civil commitment carries with it a concomitant constitutional right to treatment. Although such a constitutional right appears to be emerging, therefore, its existence has not been definitively established.
-B-
A second basis for the right to treatment has been the statutory law of the jurisdiction in question.
In Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966), Chief Judge BAZELON found a statutory right to treatment for institutionalized mental patients in the 1964 Hospitalization of the Mentally Ill Act, D.C. Code 21-562 (Supp. V, 1966). Finding that "[t]he patient's right to treatment is clear," id. at 456, he specified criteria for determining whether adequate treatment is being afforded in conformity with the statute: "According to leading experts `psychiatric care and treatment' includes not only the contacts with psychiatrists but also activities and contacts with the hospital staff designed to cure or improve the patient. The hospital need not show that the treatment will cure or improve him but only that there is a bona fide effort to do so. This requires the hospital to *314 show that . . . periodic inquiries are made into the needs and conditions of the patient with a view to providing suitable treatment for him, and that the program provided is suited to his particular needs . . . . The effort should be to provide treatment which is adequate in light of present knowledge." Id.
In Creek v. Stone, 379 F.2d 106 (D.C. Cir. 1967), a statutory right to treatment was found in a juvenile case. There, the appellant alleged that his temporary confinement in the District of Columbia Receiving Home was unlawful in part because there were no facilities for the psychiatric care he claimed he needed. The Juvenile Court refused to hold a hearing on the suitability of the Receiving Home as a place of detention for appellant. The Court of Appeals held that the Juvenile Court should have made the appropriate inquiry to ensure that "statutory criteria, as applied to that particular juvenile are being met," id. at 111, and relied on the following statutory provision: "When the child is removed from his own family, the court shall secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given him by his parents. 16 D.C. Code § 2316(3) (Supp. V, 1966)." Id. at 109.
The court wrote that "[t]he Congressional objective comprehends psychiatric care in appropriate cases," id. at 109, and did not find the fact that confinement to the Receiving Home was "interim" rather than "final" to be determinative:
"The jurisdiction of the Juvenile Court is comprehensive and is to be taken as attaching at the earliest stage necessary to implement the broad rehabilitative purposes of the law . . . . If a psychiatric condition were seriously endangering the health or perhaps life of the juvenile, there would likewise be jurisdiction in the Juvenile Court to make an appropriate detention arrangement . . . . the purpose stated in 16 D.C. Code § 2316(3) - to give the juvenile the care `as nearly as possible' equivalent to that which should have been *315 given by his parents - establishes not only an important policy objective, but, in an appropriate case, a legal right to a custody that is not inconsistent with the parens patriae premise of the law." Id. at 110-111.
See also Haziel v. United States, 404 F.2d 1275 (D.C. Cir. 1968); In re Elmore, 382 F.2d 125 (D.C. Cir. 1967); In re Harris, 2 Crim. L. Rep. 2412 (1968).[18]
-C-
In the present case, whether appellee had a constitutional right to treatment need not be decided; the right was given her by the Juvenile Act, supra, 11 P.S. § 50-101 et seq.
The fundamental purpose of statutes such as the Juvenile Act is to provide for treatment of children, whether delinquent or deprived, and not merely for their punishment or confinement. The state, as parens patriae, has a duty to care for its more dependent citizens, especially young people who are without the requisite parental supervision. Hawaii v. Standard Oil Co., 405 U.S. 251, 257 (1972). See generally Paulsen, Kent v. United States: The Constitutional Context of Juvenile Cases, 1966 Sup. Ct. 167, 173-174. Thus in an early case, in which the constitutionality of one of the first juvenile acts was upheld, our Supreme Court wrote:
"To save a child from becoming a criminal, or from continuing in a career of crime . . . the legislature surely may provide for the salvation of such a child, if its parents or guardian be unable or unwilling to do so, by bringing it into one of the courts of the state. . . for the purpose of subjecting it to the state's *316 guardianship and protection. The natural parent needs no process to temporarily deprive his child of its liberty . . . to save it . . . from the consequences of persistence in a career of waywardness, nor is the state, when compelled, as parens patriae, to take the place of the father for the same purpose, required to adopt any process . . ." Commonwealth v. Fisher, 213 Pa. 48, 53, 62 A. 198, 200 (1905).
Because the purpose of juvenile acts is to provide treatment, not punishment, it has been held that a child will not be accorded the procedural rights implied in a criminal proceeding. In Commonwealth v. Henig, 200 Pa. Super. 614, 189 A.2d 894 (1963), we said that "the juvenile court proceedings . . . constitute merely a civil inquiry or action looking to the treatment, reformation, and rehabilitation of the minor child . . ." Id. at 619, 189 A.2d at 896. Although the child's procedural rights have been expanded, see In re Gault, 387 U.S. 1 (1967); Kent v. United States, 383 U.S. 541 (1966), the ideas that "the child was to be `treated and rehabilitated' . . . and the procedures were to be `clinical'," and "that the state was proceeding as parens patriae", have remained. In re Gault, supra at 15-16.
Consistent with these ideas, the Juvenile Act throughout its many provisions mandates the treatment of deprived and delinquent juveniles. 11 P.S. § 50-101(b) (1) defines one of the purposes of the Act as "to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this act." A deprived child requires the "care or control necessary for his physical, mental, or emotional health or morals . . . ." 11 P.S. § 50-102(4). A "custodian" is one who stands "in loco parentis." 11 P.S. § 50-102(7). The court may order an investigation of the child's background and requirements for physical and psychological treatment. 11 P.S. §§ 50-319, 50-320(e). The child's custodian has "the right and duty to provide for the care, protection, training, and education, and the *317 physical, mental, and moral welfare of the child, subject to the conditions and limitations of the order . . ." 11 P.S. § 50-327. The word "treatment" is used in several provisions. See 11 P.S. §§ 50-320(e), 50-322. The responsibilities of the juvenile court and of the child's custodian include the development of a treatment plan and the carrying out of that plan by the party who stands in the place of the child's parents. No limitations are placed on the words "care" and "protection," which include such treatment as the court and the custodian find appropriate to the individualized needs of the particular child.
It only remains to define the kind of treatment to which appellee was entitled. In Rouse v. Cameron, supra, the court defined the kind of treatment to which a mental patient had a statutory right, stating that although psychiatrists differ as to what constitutes appropriate treatment, "lack of finality cannot relieve the Court of its duty to render an informed decision." Id. at 457. We must fulfill that responsibility here.
In addition to the formal requirements imposed by the Juvenile Act, CWS was bound by the regulations published by the Department of Public Welfare governing treatment of children in emergency care. The Public Welfare Code, Act of June 13, 1967, P.L. 31, No. 21, art. 7, § 701, 62 P.S. § 701 et seq., sets forth the powers and duties of the State Department of Public Welfare in the field of child welfare. Section 703 provides:
"The department shall make and enforce all rules and regulations necessary and appropriate to the proper accomplishment of the child welfare duties and functions vested by law in the county institution districts or their successors. All rules and regulations which the department is authorized by this section to make with respect to the duties and functions of the county institution districts or their successors shall be binding upon them."
Title 7200 of the Departmental Regulations, *318 Emergency Services for Children, D.P.W.C. & Y. Manual, § 7201 et seq. (1969), specifies the treatment required for children in temporary shelter care. As the record shows, however, CWS failed to follow several applicable sections of these regulations in its treatment of appellee.
Section 7210 C. requires that shelter care be provided "with staff to give good physical and psychological care." (It was contrary to this regulation to put the burden of seeking counseling on appellee; it was likewise contrary to the regulation to make untrained houseparents principally responsible for appellee.)
Section 7231 requires planning for and analysis of the needs of the child in shelter care:
"7231.1. Intake
A social study shall be made on each child no later than a week after placement. It shall include:
1. basis for receiving the child into the shelter facility.
2. significant information about the life experience, personality, behavior patterns, development, attitudes toward parents, and needs of the child.
3. significant information about the personality of the parents and their life experiences, including their attitudes toward the child, their understanding of the placement plan, and their ability to cooperate with the agency in continual planning for the child.
4. adequate information about the health history of members of the family.
7231.2. Social Work and Medical Services
a. Social work services shall be available for the child and his parents.
b. The caseworker shall maintain a continuing relationship with the child while he is in emergency care through regular contacts with him.
c. Constant effort shall be made by the caseworker, with involvement of the parents, to make discharge plans for the child as soon as possible."
*319 (Despite appellee's initial interview with Mrs. Banaszak, no intake study as outlined in this regulation appears to have been completed or even begun. Mr. Frank, appellee's social worker, did not maintain the required "continuing relationship" with appellee; nor was he incorporated into any plans developed for her. Indeed, there was no evidence of any planning for appellee's future while she was in shelter.)
Section 7232.1(a) requires that
"Each child shall be provided with his own clothing, which shall be comfortable, well-fitting, and appropriate in style."
and Section 7232.9(f) that
"Each child shall be allowed to have his own personal possessions and to acquire others while he is in the shelter facility."
(To restrict appellee to wearing pajamas and a robe was contrary to these provisions.)
Section 7232.4 requires that
"An educational program adapted to the special needs of the child shall be arranged for by the agency in consultation with the appropriate school district."
(The failure to see to it that appellee attended the special classes contravened this regulation.)[19]
Taken together, the Juvenile Act and the Department of Public Welfare Regulations quoted above establish that appellee had a right to treatment conforming to the following minimum requirements:
*320 1. An analysis of her personal history, to determine her physical, psychological, and educational needs;
2. The development of an individualized treatment program based upon those needs;
3. The provision of the counseling, psychiatric, educational, recreational, and social work services required by the individualized treatment program, and the incorporation of her caseworker into the program;
4. The formulation of a longer-term placement plan, based on analysis of her needs;
5. Adequate communication and consultation about her and the plans for her future among all levels of the staff;
6. Periodic re-evaluation of the treatment program developed for her in terms of her behavior in response to the treatment, and revision of the program as necessary;
7. Application of disciplinary measures consistent with her dignity.
These requirements will not prevent the professionals trained in the field from applying their knowledge and skills. To the contrary, they will help to ensure that the professionals do apply their knowledge and skills, as did not happen in the case of appellee. Nor are we preempting the role of the social work and child welfare experts in defining the statutory requirements for treatment of deprived children. The line between the proper and improper exercise of judicial review may not always be clear. However, courts have long reviewed the decisions made by administrative agencies to see whether an agency's expertise was correctly applied in a given case without themselves administering the agencies or usurping the function of the experts charged with those responsibilities:[20]
"It is often unclear precisely what scope of review is appropriate or what result such review demands. But *321 the principle of a division of responsibility between administrators skilled in their area and judges skilled in the law is clear and has proved workable. . . . No judge would claim the ability to prescribe a particular therapy for a `chronic undifferentiated schizophrenic.' But neither would any judge allocate AM frequencies to avoid interference. That is not his task in either case; his role rather is to determine whether a capable expert has studied the problem fully and reached a defensible result." BAZELON, Implementing the Right to Treatment, supra, 36 U. Chi. L. Rev. 742, 744-45 (1969).
That an approach conforming to the minimum requirements outlined should have been followed in appellee's case was confirmed by the experts who testified for appellee.[21] Among others, Miss Ruth Succopp, Director of Social Service and Chief Psychiatric Social Worker, Children's Hospital, Pittsburgh, testified:
"What I would have liked to have seen is much more collaborative effort and more team approach. I think that all that are involved in the care of this girl need to decide on what are the goals, what does one want to direct their attention towards, and sit down and mutually decide how best this can be fulfilled. I *322 really didn't hear this. I didn't hear any support of each other on the team or collaborating and deciding what kind of help can we give her at this time." (N.T. 53, 7/30/73.)
In Nelson v. Heyne, supra at 360, where a right to treatment for incarcerated juveniles was upheld on both constitutional and statutory grounds, the court stated: "In our view the `right to treatment' includes the right to minimum acceptable standards of care and treatment for juveniles and the right to individualized care and treatment. Because children differ in their need for rehabilitation, individual need for treatment will differ. When a state assumes the place of a juvenile's parents, it assumes as well the parental duties, and its treatment of its juveniles should, so far as can be reasonably required, be what proper parental care would provide. Without a program of individual treatment the result may be that the juveniles will not be rehabilitated, but warehoused.. . . their interests and those of the state and the school thereby being defeated." (Emphasis in original.)
So here. Without the individualized planning that we find to be an essential element of the "treatment" required by the Juvenile Act, little more can be expected than the sort of custodial care that was afforded appellee.
V
There can be no doubt that the lower court could enforce appellee's right to treatment by adjudicating in contempt those who were ordered to provide the treatment. Not only was this an inherent power of the court, see generally, In re Martorano, supra, but it was a power specifically conferred on the court by the Juvenile Act.[22] The question is, however, whether the court *323 properly exercised its power. We have concluded that the court did not, for three reasons: the procedure followed by the court in conducting a contempt hearing was precipitous and contrary to the procedure required by the Juvenile Act; the order of June 15, 1973, of which appellant was found in contempt, was ambiguous; and the order of March 29, 1974, adjudicating appellant in contempt, was improperly stated.
-A-
The Juvenile Act provides for a two-step process: first, emergency detention, followed by an informal detention hearing; and second, submission of a petition, a more complete hearing, and a final order of disposition. Here, only the first of these two steps was taken.
-1-
It will be recalled that appellee was brought to the court by her sister Betty and placed in the Detention Home on June 12, 1973, before any hearing had been held. The Juvenile Act provides for such an emergency. 11 P.S. § 50-309 states, in relevant part:
"A child taken into custody shall not be detained or placed in shelter care prior to the hearing on the petition unless his detention or care is required to protect the person or property of others or of the child . . . or because he has no parent, guardian, or custodian or other person able to provide supervision and care for him . . . ."
The Act requires, however, that such an emergency detention must be followed by an informal detention hearing, provided by 11 P.S. § 50-312(b):
"An informal detention hearing shall be held promptly by the court . . . and not later than seventy-two hours after [the child] is placed in detention to determine whether his detention or shelter care is required under Section 12 [11 P.S. § 50-309]." *324 This hearing was held by the court on June 15, 1973, and it is the basis of the June 15 order, which refers to it as a "shelter care hearing." Thus, the lower court completed the first step of the two-step process provided by the Juvenile Act.
-2-
It will also be recalled: that the June 15 order directed CWS "to file a petition in the interest of [appellee]"; that on June 20, CWS did file such a petition; and that the petition designated appellee a "deprived child" and stated that "it is in the best interest of said child and the public that she be given a hearing." This looked forward to the second step of the two-step process provided by the Juvenile Act.
11 P.S. § 50-315(a) provides:
"After the petition has been filed the court shall fix a time for hearing thereon, which, if the child is in detention, shall not be later than ten days after the filing of the petition. If the hearing is not held within such time, the child shall be immediately released from detention."
See generally, Commonwealth ex rel. Watson v. Montone, supra. The purpose of this hearing is to enable the court to formulate an individualized order. 11 P.S. § 50-320(e) provides that the court may continue the hearing: "On its motion or that of a party the court may continue the hearings under this section for a reasonable period to receive reports and other evidence bearing on the disposition or the need for treatment, supervision or rehabilitation. In this event the court shall make an appropriate order for detention of the child . . . during the period of the continuance."
And 11 P.S. § 50-319 provides:
"(a) If the allegations of a petition are admitted . . . the court, prior to the hearing on need for treatment or disposition, may direct that a social study and *325 report in writing to the court be made . . . concerning the child, his family, his environment, and other matters relevant to disposition of the case . . . .
"(b) During the pendency of any proceeding the court may order the child to be examined at a suitable place by a physician or psychologist . . ."
Upon conclusion of the hearing, the court is required by 11 P.S. § 50-320(a) to "make and file its findings as to whether the child is a deprived child . . . . If the court finds that the child is not a deprived child . . . it shall dismiss the petition and order the child discharged . . . ."
Finally, 11 P.S. § 50-321 provides that the court shall issue an order in the interest of the deprived child:
"(a) If the child is found to be a deprived child the court may make any of the following orders of disposition best suited to the protection and physical, mental, and moral welfare of the child:
. . . .
"(2) Subject to conditions and limitations as the court prescribes transfer temporary legal custody to . . . (ii) an agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child or (iii) a public agency . . . ."
In the present case the lower court never took this second step. Although CWS petitioned for a hearing, none was held; the court therefore neither received evidence bearing on appellee's particular needs, nor made findings of fact, nor issued an individualized order based on such findings. Instead, in response to the petition filed by appellee's counsel, the day after she first ran away, the court proceeded directly into the contempt hearing. Consequently, the order of June 15, of which appellant was found in contempt, was not a final, individualized, order but only preliminary in nature.
-B-
"[C]ourts should be explicit and precise in their commands, and should only then be strict in exacting *326 compliance. To be both strict and indefinite is a kind of judicial tyranny." McComb v. Jacksonville Paper Co., 336 U.S. 187, 195 (1949) (FRANKFURTER, J., dissenting). Thus a party may not be held in contempt of court for failing to obey an order that is too vague or that cannot be enforced. "The most fundamental postulates of our legal order forbid the imposition of a penalty for disobeying a command that defies comprehension." International Longshoremen's Association v. Philadelphia Marine Trade Association, 389 U.S. 64, 76 (1967). An order must be sufficiently definite so that the alleged contemnor knows what terms he is violating. In re Rubin, 378 F.2d 104 (3d Cir. 1967). Moreover, "the longstanding and salutary rule in contempt cases is that ambiguities and omissions in orders redound to the benefit of the person charged with contempt." Ford v. Kammerer, 450 F.2d 279 (3d Cir. 1971). See also Lichtenstein v. Lichtenstein, 425 F.2d 1111 (3d Cir. 1970).
Here, the June 15 order - no doubt because of its preliminary nature - was ambiguous in two respects.
The first ambiguity in the order was in the phrase "suitable shelter." At the contempt hearing, the lower court stated during a colloquy that it had not intended to specify McIntyre Shelter as the place to which appellee was to be sent: "There's no reference to McIntyre Shelter." (N.T. 114, 7/27/73.) The reason for the phrasing of the order was explained in the lower court's opinion:
"The Court Order had omitted designating what `suitable shelter' was to be provided for this child, thereby leaving it to the discretion of the CWS authorities where Janet should be placed. The order did, however, recite the fact that Janet had run away from McIntyre Shelter in March of 1973 and was suspected of being retarded. McIntyre is a shelter . . . most commonly used by CWS for the temporary shelter of deprived children . . . ." (Opinion at 71a).
Nevertheless, the lower court did not communicate with sufficient clarity the fact that facilities other than *327 McIntyre would be considered "suitable." The order did not suggest alternatives to McIntyre, nor did it exclude McIntyre. As the lower court itself recognized, McIntyre was the facility most commonly used by CWS for the temporary placement of deprived children. The mere recitation in the order that appellee had previously run away from McIntyre and that she appeared to be retarded did not by itself provide sufficient guidance to appellant as to what a "suitable shelter" might be.
To be sure, the lower court is correct when it says that "[t]he record is bare of any mention of an attempt by anyone from CWS to obtain clarification, construction or modification of the Order." (Opinion at 72a.) In McComb v. Jacksonville Paper Co., supra at 187, a decree required the respondents to comply with specific minimum wage, overtime, and record-keeping provisions of the Fair Labor Standards Act. Although the decree itself was general, it enjoined violations of those specific requirements. The Court said:
"Decrees of that generality are often necessary to prevent further violations where a proclivity for unlawful conduct has been shown . . . . Yet if there were extenuating circumstances . . . . [r]espondents could have petitioned the District Court for a modification, clarification or construction of the order . . . . But respondents did not take that course either . . . . They knew they acted at their peril. For they were alerted by the decree against any violation of specified provisions of the Act." 336 U.S. at 192.
Here, however, appellant was not so alerted. The order referred to no provision of the Juvenile Act, and enjoined no specific violations. In fact, the lower court left the interpretation of the order to the discretion of CWS. (Opinion at 71a, supra.) Having failed to provide adequate guidelines as to what it expected of CWS, the court should not have held appellant in contempt for exercising the very discretion that the court assumed he would exercise.
*328 The second ambiguity in the order was in the statement, "it will therefore be necessary for CWS to make suitable arrangements to see that said child does not run away . . . ." This statement provided no guidance as to what arrangements the lower court might consider suitable. The court could assume that appellant was fully familiar with the provisions of the Juvenile Act and Title 7200 of the D.P.W.C. & Y. Manual. Nevertheless, we can see no reason for the court's omission of such operative terms as "treatment," "plan," and "program," which would have indicated to appellant that more was expected than merely an attempt to retain appellee on the premises of McIntyre Shelter.
The lower court explained that its order was left general "to avoid usurping the judgment of personnel trained in good social work principles, as we assume most of the CWS staff is. There should not have been any misunderstanding." (Opinion at 86a.) We cannot agree with this reasoning. The generality of the order permitted appellant to conclude that custodial care consistent with the statutory requirement that the shelter care remain "physically unrestricted," 11 P.S. § 50-102(5), was intended. This was not what the lower court had desired, as its opinion clearly indicates. The record shows that the lower court had had difficulty in placing appellee with CWS on two occasions, in March and in June of 1973. Given that experience, it was unfortunate that the lower court assumed that its understanding of "good social work principles" and the principles that appellant would choose to apply to appellee's situation were identical. It was incumbent upon the court to state explicitly what it wanted appellant to do, and to make certain by the clarity of its order that appellant would not conclude that "suitable arrangements" meant only appellee's confinement. Such explicitness would not have usurped the judgment of the social work professionals. Indeed, as already discussed, the Juvenile Act contemplates that after the second hearing provided for by the Act, the *329 court will issue an order "[s]ubject to conditions and limitations as the court prescribes" in light of the child's particular needs. 11 P.S. § 50-321.
In its opinion, the lower court relies heavily on Landman v. Royster, 354 F. Supp. 1292 (E.D. Va. 1973). There, the defendants, who were prison officials responsible for administering the Virginia penal system, were found to be in violation of an injunction against "performing . . . or permitting the performance of any acts found in the memorandum of the Court to be violative of the prohibition against cruel and unusual punishment." Id. at 1294. (Emphasis added.) Other requirements had been imposed in the injunction, including informing "all members of the custodial staff . . . of the injunctive terms of this order." Id. at 1294. Thus, in contrast to the present case, specific acts had been prohibited and specific procedures required. Moreover, the court had directed that the staff be informed of the terms of the injunction; here there was no such directive.
-C-
In Knaus v. Knaus, 387 Pa. 370, 377, 127 A.2d 669, 672 (1956), it is stated:
"The purpose of a civil contempt proceeding is remedial, and judicial sanctions are employed 1) to coerce the defendant into compliance with the court's order, and 2) in some instances to compensate the complainant for losses sustained . . . . A judgment in a civil contempt proceeding for the benefit of a private plaintiff will, of course, incidentally vindicate the authority of the court . . . . But the test is the dominant purpose, not the incidental result."
It follows that "[e]very order which imposes punishment for civil contempt should state the condition which will, upon fulfillment, result in the release of the defendant or the remission of the fine." Id. at 379, 127 A.2d at 673-674. Here, however, the lower court's order of March 29, *330 1974, adjudicating appellant in contempt of the order of June 15, 1973, simply imposed a fine of $100 on appellant. The order did not specify any actions that appellant might take or any standards that his agency, CWS, might meet in order that he might purge himself. Nor did the opinion accompanying the order contain any such specification; rather, it criticized appellant and CWS for "slavish adherence to rigid bureaucratic channels" and a "general lack of humane concern for children." (Opinion at 73a.) Understandable as this criticism is, it does not tell appellant what steps to take so as to comply with the order of June 15, 1973.
In Doe v. General Hospital, 434 F.2d 423 (D.C. Cir. 1970), the court specified the conditions under which a hospital would be required to perform therapeutic abortions, "in view of the repeated conflicts between the parties and the continuing inaction on the part of the hospital." Id. at 425. And in Spangler v. Pasadena City Board of Education, 384 F. Supp. 846 (C.D. Calif. 1974), the court ordered measures by which a school board could purge itself of contempt for refusing to obey an order specifying procedures for desegregating the school system and for hiring minority adminstrative personnel. There was no such specification here.
The order of the lower court adjudicating appellant in contempt is reversed.
WATKINS, P.J., and HOFFMAN and VAN DER VOORT, JJ., concur in the result.
NOTES
[1] The Juvenile Act, Act of Dec. 6, 1972, P.L. 1464, No. 333, § 2(4), 11 P.S. § 50-102(4), defines a "deprived child" in relevant part as "a child who: (i) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals; or . . . (iii) has been abandoned by his parents, guardian, or other custodian; or (iv) is without a parent, guardian, or legal custodian. . ."
[2] 11 P.S. § 50-312(b) provides in relevant part: "An informal detention hearing shall be held promptly by the court or the master and not later than seventy-two hours after he [the child] is placed in detention to determine whether his detention or shelter care is required. . . . Prior to the commencement of the hearing the court . . . shall inform the parties of their right to counsel and to appointed counsel if they are needy persons . . ."
[3] Record at 6a. The hearing referred to is described in 11 P.S. §§ 50-315(a) and 50-320, and is discussed in part V of this opinion, infra.
[4] 11 P.S. § 50-102(5) provides that "shelter care" is "temporary care of a child in physically unrestricted facilities." 11 P.S. § 50-311(d) defines those facilities permissible for a child who is considered deprived: "A child alleged to be deprived may be detained or placed in shelter care only in the facilities stated in clauses (1), (2) and (4) of subsection (a) [a licensed foster home or home approved by the court; a facility operated by a licensed child welfare agency or one approved by the court; any other suitable place or facility, designated or operated by the court and approved by the Department of Public Welfare . . . .] and shall not be detained in a jail or other facility intended or used for the detention of adults charged with criminal offenses or of children alleged to be delinquent."
[5] 11 P.S. § 50-317 provides in relevant part: "Except as otherwise provided under this act a party is entitled to representation by legal counsel at all stages of any proceedings under this act and if he is without financial resources or otherwise unable to employ counsel, to have the court provide counsel for him . . . ." See also, Stapleton v. Dauphin County Child Care Service, 228 Pa. Super. 371, 324 A.2d 562 (1974).
[6] When the petition was filed, Bernard Frank, individually and in his capacity as a caseworker for CWS, was also named as a respondent. However, the lower court denied the petition with prejudice with regard to Mr. Frank. Record at 47a. No appeal from that denial is before us.
[7] Although the lower court does not specify in its order whether the contempt was civil or criminal, it twice refers to the proceeding as a request that appellant be held in civil contempt. (Record at 84a, 87a.)
[8] Although the doctrine of sovereign immunity has not yet been abrogated, see Brown v. Commonwealth, 453 Pa. 566, 305 A.2d 868 (1973) it does not bar the action under consideration here. The doctrine applies to the Commonwealth, its departments and agencies. Prior to 1973, suits against units of local government were barred by the doctrine of governmental immunity. That doctrine was abolished in Pennsylvania in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). Ayala was filed on May 24, 1973, one month before appellee's counsel petitioned the court for a rule to show cause, and ten months before the lower court's opinion was filed. Appellant is an employee of Allegheny County, not the Commonwealth. See Act of June 13, 1967, P.L. 31, No. 21, Art. 7, § 701 et seq., 62 P.S. § 701 et seq. For the same reason, this court, and not Commonwealth Court properly has jurisdiction of this appeal; See Act of July 31, 1970. P.L. 673, No. 223, art. IV, § 402, 17 P.S. § 211.402(1).
[9] A school that appellee attended indicated that she was capable of doing work consonant with an I.Q. of 80. (N.T. 22, 9/4/73.).
[10] A "delinquent child" is defined as a "child whom the court has found to have committed a delinquent act [defined in 11 P.S. § 50102(2) as a crime under State or Federal law or specific or habitual disobedience of the reasonable and lawful commands of a parent or guardian] and is in need of treatment, supervision, or rehabilitation." 11 P.S. § 50-102(3).
[11] Although the CWS intake worker with whom Mrs. Laughren spoke attempted to categorize appellee as a delinquent child because of her pattern of running away, counsel for CWS stipulated at the contempt hearing that appellee was in fact a deprived child. (NT. 8-9, 75-76, 7/27/73.)
[12] It appears to have been the practice at McIntyre Shelter to refer all runaways to the nurses' office upon their return, and to examine them for evidence of drug abuse. (N.T. 51, 7/27/73.)
[13] Nor for that matter did Miss Menegaz consult Mr. Frank before determining what counseling arrangements might best meet appellee's needs: "Who's Mr. Frank? Oh, the caseworker. No, I did not discuss the treatment of this child with Mr. Frank . . . . The focus of my contact was related to discussing this where I had direct supervision and supervisory responsibility . . . . Mr. Frank has a supervisor and a senior supervisory and these people help him with developing the treatment plan." (N.T. 106, 108, 7/27/73.)
[14] During appellee's six weeks in shelter care, the only meetings shown by the record to have taken place between her and adults other than the houseparents are the initial interview with Mrs. Banaszak, three interviews with her caseworker, and two meetings with Mr. Catalfamo, as well as post-runaway checkups by the nurse.
[15] Appellant testified that "[w]e feel . . . that the help the child will receive will be from those persons [houseparents] on our staff." (N.T. 68, 7/30/73.) Not all the CWS staff shared this view. Mr. Frank considered the role of the houseparents to be "a custodial kind of role and not any kind of a counseling role . . . . without the expertise of . . . someone trained in counseling." (N.T. 96, 7/27/73.) Mr. Aigner felt that the houseparents did not counsel their wards: "Well, again, you know, special counseling, this is just . . . interpersonal interaction. We're not trying to psych the girl." (N.T. 120, 7/27/73.)
[16] Section 102(1) of the Act, 11 P.S. § 50-102(1), defines a "child" as an individual who is: "(i) under the age of eighteen years; or (ii) under the age of twenty-one years who committed an act of delinquency before reaching the age of eighteen years." Appellee is not within paragraph (ii).
[17] A characteristic that distinguishes civil from criminal contempt is the ability of the contemnor to purge himself of the civil contempt by complying with the court's directive. See In re Martorano, supra. The Pennsylvania Supreme Court has said that "The conditional nature of the Contempt Order which . . . allowed appellant to purge himself of all contempt by complying with the Court's Order within a reasonable time, makes it clearly civil contempt." East Caln Township v. Carter, 440 Pa. 607, 614, 269 A.2d 703, 707 (1970).
[18] In State of New Jersey, in the Interest of D.F., a Juvenile, 138 N.J. Super. 383, 351 A.2d 43 (Camden Juv. Dom. R. Ct. 1975), the court held that a constitutional and statutory right to treatment required that a juvenile be placed in a private residential facility where he would receive psychiatric treatment.
[19] With respect to appellee's emotional difficulties, it may also be noted that the Director of the Allegheny County Mental Health/Mental Retardation program testified that on several occasions he had offered appellant the resources of his agency, to be incorporated into the program at McIntyre Shelter, but that appellant had responded that because "the shelter was operating with children on a temporary basis, he did not feel that putting in treatment personnel would be appropriate." (N.T. 10, 7/30/73.)
[20] See also The Supreme Court, 1974 Term, 89 Harv. L. Rev. 47, 74 n.39 (1975).
[21] We note that when appellee was provided with treatment more suited to her needs, she responded by changing her behavior. After leaving McIntyre Shelter in August, 1973, appellee was sent to Amicus House, a temporary shelter and residential treatment center. There the counseling staff sought her out, and she made regular visits to a psychiatrist, who met with members of the staff to discuss the treatment provided her. The Director of Amicus House testified: "I think there are some real changes. She is becoming more and more aware that by running away she is hurting herself. Running away is just not running away to her in the real sense. It is not just leaving the place physically, but suicide is a kind of running away. Her verbal attacks are in a sense a way of running away. She is asking now for some ways of changing these kinds of behavior. Her threats of running have decreased tremendously. It used to be in the beginning a daily thing and now it may be four or five days before she even talks about it." (N.T. 99, 9/4/73).
[22] 11 P.S. § 50-336 provides: "The court may punish a person for contempt of court for disobeying an order of the court or for obstructing or interfering with the proceedings of the court or the enforcement of its orders subject to the laws relating to the procedures therefor and the limitations thereon." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1538616/ | 362 A.2d 738 (1976)
STATE of Maine
v.
Clifton E. UPTON.
Supreme Judicial Court of Maine, York.
August 3, 1976.
Peter J. Goranites, P. J. Perrino, Jr., Asst. Attys. Gen., Augusta, for plaintiff.
William S. Brodrick, South Berwick, Ronald D. Bourque, Sanford, for defendant.
Before DUFRESNE, C. J., and POMROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.
ARCHIBALD, Justice.
On July 28, 1974, the Kittery Trading Post was the scene of two homicides. The manager of the Trading Post, Wayne Loring, was fatally shot as was one of his employees, Nancy Upton, the wife of the defendant. The defendant was indicted for these homicides and entered pleas of "not guilty" and "not guilty by reason of mental disease or defect" to both charges. In a consolidated trial the jury returned a guilty verdict on the indictment charging the murder of Wayne Loring. On the indictment charging the murder of Nancy Upton, however, the jury returned a verdict of "not guilty by reason of mental disease."
The appellant has appealed from the guilty verdict only, apparently being satisfied that there was no error in the verdict of not guilty by reason of mental disease.
We deny the appeal.
*739 I
At trial appellant did not deny committing the acts which caused the two deaths but took the position that under the provisions of 15 M.R.S.A. § 102 he was not "criminally responsible" for either because each admittedly unlawful killing "was the product of mental disease or mental defect."
The jury having rejected his contention with reference to the first homicide and having adopted it with reference to the second, the appellant now urges that the guilty verdict was logically inconsistent with the other verdict and, therefore, cannot stand either on the facts or as a matter of law. We disagree.
Whether verdicts returned by the same jury which are admittedly inconsistent with each other are reversible as a matter of law, we need not decide in this case. See Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); United States v. Maybury, 274 F.2d 899 (2d Cir. 1960); Commonwealth v. Scott, 245 N.E. 2d 415 (Mass. 1969). Although the record before us is extensive and involves more than four hundred pages of testimony dealing with the appellant's mental condition, our review there of satisfies us that on the facts the jury verdicts were not necessarily inconsistent.
In State v. Durgin, 311 A.2d 266, 268 (Me. 1973), we analyzed carefully the relative functions of the psychiatric expert and the jury, holding that it was the province of the jury to
"resolve the question of fact whether or not the accused has established by a fair preponderance of the evidence that he was suffering from a mental disease or mental defect which substantially impaired his mental or emotional processes so that the conduct complained of was the product of such mental disease or defect,"[1]
and we likewise limited the scope of expert testimony to describing
"the mental and emotional condition of the accused at the time the conduct complained of was committed, except that the expert should not give his opinion as to the cause of the conduct." (Emphasis supplied.)
Being thus admonished by the teaching of Durgin, we must look to the facts to determine if there was competent evidence which would justify the jury's conclusion that appellant was not suffering from either a mental disease or defect when he fatally shot Wayne Loring.
If the jury had accepted the testimony of a psychiatric witness offered by the State, it would have been justified in concluding that the appellant, although having a personality disorder, did not suffer from any neurosis. Other witnesses for the State admitted the possibility that at some undefined point during the dual killings the defendant's mental condition might have become questionable.
The two experts who testified for the defense were in general agreement that the defendant suffered from "hysterical neurosis, dissociative type." In the opinion of these experts, under acute distress this condition could develop into psychotic proportions and, given impetus, could "catapult" the defendant into a condition where he would have no conscious awareness of what he was doing or any control over his actions. However, there was no general agreement as to precisely when this condition would develop.[2] The jury conceivably *740 could have determined that the killing of Wayne Loring triggered the reaction described by the defense psychiatrist so that, even though only seconds elapsed between the two killings, the defendant would have no conscious awareness of his actions when he shot his wife. In short, although a minimal time period was involved, the time was sufficient to activate his latent psychosis.
Were we to consider adopting a rule reversing verdicts in criminal trials which were necessarily inconsistent, we would have to recognize such verdicts as logically impossible. However, such a holding is unnecessary if it can be determined that allegedly inconsistency and verdicts in fact present no inconsistency and are capable of logical reconciliation. Commonwealth v. White, 296 N.E.2d 822 (Mass. 1973). State v. Coleman, 46 N.J. 16, 214 A.2d 393 (1965), presented a factual situation nearly identical to that in the instant case. In Coleman there were dual killings within moments of each other, and verdicts of guilty and not guilty by reason of insanity were returned. The New Jersey Court determined that the jury was at liberty to accept or reject expert psychiatric testimony in light of their human experience, noting that psychiatrists "do not have all the answers." In Coleman, as in the case before us, it was held that
"the jury's diverse treatment of the two killings does not offend common sense nor result in any unfairness or injustice. . .."
214 A.2d at 407.
In summary, we conclude that the guilty verdict was not necessarily inconsistent with the jury's other response of not guilty by reason of mental disease.
II
Appellant has argued that the doctrine of collateral estoppel would compel a reversal and a mandated entry of "not guilty by reason of mental disease" as to the death of Wayne Loring. However, this argument is premised on a reversal of the conviction because of inconsistency between the two verdicts. Since we have rejected this argument, we need give no further consideration to this point on appeal.
III
The presiding Justice denied a motion for mistrial, and the final point to be considered on this appeal is whether this ruling constituted reversible error.
During the cross-examination of the defendant's brother and one of the defense psychiatrists, the prosecutor asked certain questions which suggested several acts of past wrong doing by the appellant. At the time the questions were asked no objection was made and thus we must determine whether the refusal to grant a mistrial constituted manifest error. Rule 52(b), M.R.Crim.P.
When the Justice below was instructing the jury he used these cautionary words:
"An attempt was made to determine through him [appellant's brother] the state of mind of Clifton Upton. And the questions were not, themselves, evidence."
It can no longer be open to doubt in Maine that the granting of a mistrial lies within the discretionary powers of a presiding Justice and, absent a clear abuse of that discretion, the Law Court has no right to substitute its judgment for that of *741 a presiding Justice who had the advantage of seeing the witnesses and hearing their testimony. State v. Gaddis, 322 A.2d 96 (Me. 1974); State v. Dyer, 289 A.2d 693 (Me. 1972). As this case is postured, we are not faced with the problem presented by State v. Tibbetts, 299 A.2d 883 (Me. 1973), where a prosecutor used a constitutionally impermissible comment in arguing to the jury. The cross-examination here complained of did not infringe on any constitutional rights of the defendant.
We must assume that the Justice below satisfied himself that the questions complained of were non-prejudicial because he denied the motion for a mistrial. After a careful review of the record,[3] we are unable to detect any abuse of discretion in his decision.
The entry is:
Appeal denied.
All Justices concurring.
NOTES
[1] See State v. Buzynski, 330 A.2d 422 (Me. 1974); see also Buzynski v. Oliver, 538 F.2d 6 (1st Cir. 1976).
[2] Shortly before the two homicides the appellant had entered the Kittery Trading Post and had engaged in some type of argument with his wife who was waiting on customers. He left the building but returned shortly and the argument resumed, the parties leaving the customer area and entering a storeroom. Wayne Loring attempted to intercede and, upon doing so, he was shot. Witnesses then said that a very short period of time elapsed when more shots were heard, after which the appellant left the store with a revolver in his hand. The body of Nancy Upton was found some distance from that of Wayne Loring and evidenced three bullet wounds. Witnesses who described the shooting were unable to definitively estimate actual time between the shots. However, the weapon was a revolver and it required cocking between firings so it is clear that there was some elapsed time between shots. However, it would be fair to say that it is more probable that seconds were involved rather than minutes.
[3] Although the form of the questions varied somewhat, in essence there were fewer than ten questions asked of which complaint is made. Including colloquy with the Court and the witness, only eight pages of the transcript reflect these questions. Juxtaposed against these are approximately four hundred pages of testimony devoted exclusively to psychiatric testimony coming from witnesses both for the State and the defense. Additionally, the purpose of the questioning was to explore the expert's knowledge of appellant's past life, since it was agreed that psychiatric experts do give serious consideration to a patient's past conduct in making a diagnosis. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556712/ | 30 So.3d 512 (2010)
TAYLOR
v.
TAYLOR.
Nos. 5D09-1354, 5D09-1492.
District Court of Appeal of Florida, Fifth District.
March 23, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/409371/ | 690 F.2d 9
UNITED STATES of America, Appellee,v.Frederick J. TYSON, a/k/a Omar Harkkon, Defendant, Appellant.
No. 82-1262.
United States Court of Appeals,First Circuit.
Submitted Sept. 17, 1982.Decided Sept. 29, 1982.
Wendie I. Gershengorn, Asst. Federal Public Defender, Boston, Mass., on brief for defendant, appellant.
William F. Weld, U. S. Atty., and Charles T. Spurlock, Asst. U. S. Atty., Boston, Mass., on brief for appellee.
Before COFFIN, Chief Judge, CAMPBELL and BREYER, Circuit Judges.
COFFIN, Chief Judge.
1
Defendant was convicted under 18 U.S.C. § 2314 ("Transportation of stolen goods, securities ..."). This appeal presents a single question of statutory interpretation: did Congress intend in paragraph three of that section to encompass by the phrase "falsely made, forged, altered, or counterfeited securities" a valid check with a forged countersignature? Though a question of first impression in this circuit, the Second, Eighth, Ninth and Tenth Circuits have held that Congress did not so intend.1 We agree with the analysis of those courts and reverse appellant's conviction.
2
There is no dispute between the parties over the facts that led to appellant's indictment. Using the name Frederick Tyson2 and supplying false account information, appellant opened a bank account with a cash deposit of twenty-five dollars. Later the same day, an unidentified person deposited into appellant's account an American Express check made out for the sum of $11,709.75 payable to Don Roth's Restaurant, Inc. The check bore two endorsements: one which purported to be that of Michael Roth, manager of Don Roth's Restaurant, but which was a forgery and one which purported to be that of appellant. The check traveled in interstate commerce from Boston to New York where it was paid. When appellant returned to the bank two months later, the bank informed him that his account had been closed3 and presented him with two checks-one in the amount of his initial deposit and one in the amount of the American Express check.
3
Appellant was charged in a one count indictment with causing the interstate transportation of a falsely made, forged, altered or counterfeited security in violation of 18 U.S.C. §§ 2314 and 2.4 At the conclusion of the government's case in a jury-waived trial, appellant moved for acquittal contending that, as a matter of law, the forging of an endorsement on an otherwise valid security does not render the security falsely made, forged, altered, or counterfeited for purposes of § 2314. After taking the motion under advisement, the district court denied defendant's motion, found him guilty, and subsequently ordered him committed to the custody of the Attorney General for a period of two years. That sentence was stayed pending this appeal.
4
Section 2314 provides in relevant part (paragraph 3):5
5
"Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities or tax stamps, knowing the same to have been falsely made, forged, altered or counterfeited; ...
6
Shall be fined not more than $10,000, or imprisoned not more than ten years, or both."
7
Emphasizing the word altered, the district court found that the "plain language" of paragraph three applies unambiguously to a forged countersignature on a check. Because the forged endorsement "convert(ed) the check from order paper to bearer paper"-"a material alteration under the common law and under the Uniform Commercial Code"-the court reasoned, "(t)he check in this case clearly is an 'altered ... securit(y).' " It was unpersuaded by precedent to the contrary in other circuits.
8
The district court first found that the seminal decision in this line, Streett v. United States, 331 F.2d 151 (8th Cir. 1964), had relied inappropriately on Prussian v. United States, 282 U.S. 675, 51 S.Ct. 223, 75 L.Ed. 610 (1931). In Prussian the Supreme Court, construing language very similar to that in § 2314, held that 18 U.S.C. § 148 (now § 471)6 did not include the forging of an endorsement. The court in Streett found Prussian relevant precedent despite the fact that the statute interpreted in Prussian concerned only government securities.
9
"The government objects to the relevance of these cases (Prussian and those following it) in that they all are concerned with the protection of the United States' securities. Nevertheless, the objective being sought here is to discover the scope of § 2314, and authoritative court interpretations of a statute bearing strikingly similar language would appear to be pertinent here." 331 F.2d at 154.
10
The district court disagreed, however, arguing that Congress' purpose to protect the "bonds and securities (sic) of the United States" rather than to punish "any fraud or wrong on individuals" (quoting Prussian, 282 U.S. at 678, 51 S.Ct. at 224) made the section interpreted by Prussian inapposite to § 2314.7
11
The court below was also unpersuaded by the fact that the legislative history of paragraph three (added to the National Stolen Property Act of 1934 by amendment in 1939) emphasized the actual false making or reproducing of securities (see Streett, supra, at 154; United States v. Sciortino, 601 F.2d 680, 682 (2d Cir. 1979)).8 Pointing to United States v. Sheridan, 329 U.S. 379, 67 S.Ct. 332, 91 L.Ed. 359 (1946), in which the Supreme Court held paragraph three applicable to the forging of two checks, the court reasoned that Congress did not intend to reach only large scale counterfeiting and that there is thus no basis for distinguishing a forged "subsequent endorsement" from a forged "original endorsement".9
12
Finally, the district court rejected the reasoning of United States v. Simpson, 577 F.2d 78, 81 (9th Cir. 1978) (accord, United States v. Sciortino, supra, at 682) that the 1968 amendment to § 2314 making illegal the interstate transportation of traveler's checks with forged countersignatures10 is evidence for the proposition that forged countersignatures on other securities are not covered by the general language of paragraph three. "The better inference to be drawn", the court concluded, "is that because Congress has not amended paragraph three since the Street (sic) decision was handed down, paragraph three still means what its plain words say it means."
13
We are not sure that the Court's interpretation in Prussian of language parallel to § 2314 is so distinguishable as to bear no weight. The Court did not, as the district court suggests, rely principally on the purpose of the Act it construed but rather on its language. See Prussian v. United States, supra, 282 U.S. at 677-78, 51 S.Ct. at 224-225 (interpretation including endorsement "would be possible only by a strained construction of the language"-"if the point were doubtful, the doubt would be resolved by a consideration of the purpose and history of the Act"). If it were clear, as the district court concluded, that to transform a security through endorsement from order paper to bearer paper is to "alter" the security, the Court in Prussian would not have had to reach the conclusion it did. Nor are we impressed by the government's argument that the narrow definition of "government security" in § 147 (now § 8) and the broad definition of "security" in § 2311 make Prussian inapposite.11 The Court's holding was not so narrow.
14
"The endorsement was at most the purported obligation of the endorser, not of the United States, and a purported transfer of the title of the draft to the endorsee. In neither aspect was the endorsement itself an obligation of the United States as defined by § 147, or such a part of the draft as to constitute the forging of the endorsement a forgery of the draft." 282 U.S. at 678, 51 S.Ct. at 224 (emphasis added). See also Streett, supra, at 154.
15
Nor are we sure that the legislative history of the 1939 amendment adding paragraph three has been brushed aside by United States v. Sheridan, supra. Sheridan itself emphasized that history.
16
"In amending § 3 (of the National Stolen Property Act-paragraph three of 18 U.S.C. § 2314) Congress was extending the federal law enforcement arm to reach primarily the larger dealers in forged and counterfeited securities. Not only forged checks, but forged or counterfeited bonds and coupons, as well as other forms of securities, and the instruments with which these are made were the target. The legislative history shows that the purpose was to bring operators in these false securities into substantially the same reach of federal power as applied to others dealing in stolen goods, securities and money." 329 U.S. 389, 67 S.Ct. 337 (footnotes omitted).
17
Though Sheridan held that paragraph three applies to small time as well as large scale counterfeiters, id. at 390, 67 S.Ct. at 337-338, nothing in Sheridan suggested that paragraph three applies to anything but the actual false making or reproducing of securities. It was "not questioned" in Sheridan "that the checks were 'securities' " or "that they were 'forged.' " Id. at 382, 67 S.Ct. at 334.
18
We are certain, however, that the only sensible interpretation of § 2314 after the 1968 amendment is that, except in the case of traveler's checks, a forged endorsement does not convert a valid security into one "falsely made, forged, altered, or counterfeited."12 Paragraph four makes punishable the transportation in interstate commerce "with unlawful or fraudulent intent" of "any traveler's check bearing forged countersignature." Traveler's checks are explicitly included within the meaning of the term "securities" as used in paragraph three. See § 2311. Therefore, if a forged countersignature were included within the meaning of the phrase "forged, altered, or counterfeited" in paragraph three, paragraph four would add nothing to paragraph three.13 We hesitate to ascribe to Congress such a meaningless effort. The district court did not attempt to explain how its interpretation of paragraph three could make paragraph four anything but redundant.
19
Our interpretation is supported by the legislative history. Paragraph four was added by amendment with full consideration of the prior holding in Streett v. United States, 331 F.2d 151 (8th Cir. 1964) that a forged countersignature does not make an otherwise valid security "falsely made, forged, altered, or counterfeited" within the meaning of § 2314.
20
"Section 2311 of title 18 of the United States Code includes traveler's checks under the definition of the term 'securities' as used in an existing paragraph of section 2314. However, the Department of Justice points out in a letter dated January 31, 1968, that the words 'falsely made, forged, altered, or counterfeited' have been construed to refer only to the making or execution of an instrument and not to cover a validly executed instrument bearing a forged countersignature (Streett v. United States, 331 F.2d 151 (C.A. 8, 1964))." H.R.Rep.No.1728, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Ad.News 3654, 3654-55.
21
In adding paragraph four, Congress responded to contentions that forged countersignatures on traveler's checks pose an especial interstate and therefore federal problem.
22
"Representatives of the traveler's check industry also state that their records indicate that a great majority of traveler's checks issued are used in interstate commerce. Consequently, lost or stolen traveler's checks are most susceptible to forgeries and illegal transportation." Id.
23
Thus, though acknowledging the general scope of the holding in Streett -that paragraph three does "not ... cover a validly executed instrument bearing a forged countersignature"-Congress amended § 2314 only with respect to traveler's checks. See United States v. Simpson, supra, at 81.
24
Therefore, based on the language of § 2314 examined as a whole and as reinforced by its legislative history, we follow our sister courts and hold that the phrase "falsely made, forged, altered, or counterfeited securities" in paragraph three of § 2314 does not include a valid security with a forged endorsement. The government cites no cases that have held to the contrary. The cases upon which it relies have all involved the falsification of elements necessary to the completion of the security itself rather than to the subsequent transfer of that security. See, e.g., United States v. Hagerty, 561 F.2d 1197 (5th Cir. 1977) (making of draft with fictitious drawee information); United States v. Huntley, 535 F.2d 1400 (5th Cir. 1976) (same); United States v. Tucker, 473 F.2d 1290 (6th Cir. 1973) (sight draft executed with fictitious name); United States v. Di Pietto, 396 F.2d 283 (7th Cir. 1968) (falsified payee information on stolen money order) (criticizing in dicta holding of Streett ).
25
Our holding does not create a loophole in the federal scheme for prosecution of crimes involving the interstate transportation of stolen or falsified securities. We have no doubt that a valid security with a forged endorsement, no matter how the security was acquired by the forger, has been "converted or taken by fraud" within the meaning of paragraph one of § 2314. See United States v. Handler, 142 F.2d 351 (2d Cir. 1944) (statute applicable to any taking whereby a person dishonestly obtains goods or securities belonging to another with the intent to deprive the owner of the rights and benefit of ownership); cf. Prosser on Torts, § 15 (conversion). Unlike the transportation of "falsely made, forged, altered, or counterfeited securities", however, Congress made the interstate transportation of such converted securities a federal crime only if their value exceeds $5,000.
26
The security in question here was, as a matter of agreed fact, worth more than $5,000. That appellant was charged under paragraph three and not under paragraph one appears anomalous. But that he was is clear and undisputed.14 We are not at liberty to speculate about appellant's guilt for a crime with which he was not charged and thus had no notice to defend. We find the evidence insufficient to convict appellant as charged under paragraph three of § 2314.
27
Reversed.
1
United States v. Sciortino, 601 F.2d 680 (2d Cir. 1979); United States v. Simpson, 577 F.2d 78 (9th Cir. 1978); Pauldino v. United States, 379 F.2d 170 (10th Cir. 1974); Streett v. United States, 331 F.2d 151 (8th Cir. 1964)
2
Appellant is also known as Omar Harkkon
3
The bank closed appellant's account the day after he opened it because of a negative report on appellant from the National Check Protection Service. Attempts to notify appellant by mail were unsuccessful
4
The indictment charged that appellant "did with unlawful intent cause to be transported in interstate commerce ... falsely made, forged, altered and counterfeited securities ... having a value of more than five thousand ($5,000.00) dollars, knowing same to have been falsely made, forged, altered, and counterfeited; all in violation of Title 18, United States Code, Sections 2314 and 2." Though the indictment included the allegation that the transported security had a value of more than $5,000 as necessary under paragraphs one and two of § 2314 but not under paragraph three, it clearly asserted a violation under paragraph three of § 2314 and not under any other paragraph of that section. Compare the language of the indictment with the language of paragraph three, infra at 3
18 U.S.C. § 2 proscribes aiding and abetting the commission of an offense.
5
Section 2314 provides in full:
"Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; or
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transports or causes to be transported, or induces any person to travel in, or to be transported in interstate commerce in the execution or concealment of a scheme or artifice to defraud that person of money or property having a value of $5,000 or more; or
Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities or tax stamps, knowing the same to have been falsely made, forged, altered, or counterfeited; or
Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any traveler's check bearing a forged countersignature; or
Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce, any tool, implement, or thing used or fitted to be used in falsely making, forging, altering, or counterfeiting any security or tax stamps, or any part thereof--
Shall be fined not more than $10,000 or imprisoned not more than ten years or both.
This section shall not apply to any falsely made, forged, altered, counterfeited or spurious representation of an obligation or other security of the United States, or of an obligation, bond, certificate, security, treasury note, bill, promise to pay or bank note issued by any foreign government or by a bank or corporation of any foreign country."
6
Section 471 provides:
"Whoever, with intent to defraud, falsely makes, forges, counterfeits, or alters any obligation or other security of the United States shall be fined not more than $5,000 or imprisoned not more than fifteen years, or both."
7
The district court further reasoned:
"The Court of Appeals for the Eighth Circuit in Street (sic) adopted the Prussian holding and applied it to paragraph 3 of 18 U.S.C. § 2314 without noting that the Supreme Court in Prussian based its holding on the fact that the established purpose of 18 U.S.C. § 148 (now § 471) is 'the protection of bonds or securities (sic-Prussian says 'currency' rather than 'securities') of the United States, and not the punishment of any fraud or wrong on individuals.' 282 U.S. at 678. This was a reasonable interpretation of § 148, for a forged endorsement on an otherwise valid United States security does not affect the obligation of the United States created by the security. On the other hand, § 2314, which was promulgated by Congress through its power to regulate interstate and foreign commerce, clearly contemplates the punishment of fraud which has been worked upon individuals. Thus the Prussian analysis contributes little to the inquiry of whether a forged endorsement renders false an otherwise valid security under paragraph 3 of § 2314, and the reliance that has been placed on the decision by the Eighth Circuit and other courts is misplaced. Accord: United States v. Di Pietto, 396 F.2d 283, 286 (7th Cir. 1968)." District court opinion, at 6-7.
8
The legislative history of paragraph three, S.Rep.No.274, 76th Cong., 1st Sess. (1939) (letter from the Attorney General), reads in relevant part:
"The principal purposes of the pending bill are to extend the existing law to property that has been embezzled, and also to forged or counterfeited securities.
"Studies of the desirability of extending this legislation to the transportation of forged or counterfeited securities in interstate or foreign commerce have led the Department to the conclusion that in respect to such cases the minimum amount of $5,000 serves no purpose, and that accordingly, it would be best to provide that such transportation be a criminal offense irrespective of the value of the forged, or counterfeited certificates. The reasons leading to this conclusion are that criminals who engage in forging or counterfeiting certificates do not ordinarily subject themselves to the hazards involved in such a nefarious undertaking, except for the purpose of multiplying the forged certificates on a large scale. For example, while a single act of transportation may perhaps involve a forged traveler's check of a small denomination or a forged stock certificate for a few shares, the probability is that the person who manufactured the plate from which the traveler's check or certificate was printed produced a large number of duplicates of the same fraudulent document. Otherwise, it would not have been worth while for him to go to the trouble and expense of purchasing the necessary tools and engraving the plate employed in accomplishing his criminal purpose. It would appear therefore, that the transportation of this type of contraband articles is entirely different from the transportation of stolen property."
9
The district court opinion reads:
"Assuming that this decision (Sheridan ) accurately reflects the intention of Congress in promulgating § 2314 paragraph 3, it is difficult to understand why Congress would have intended that forgers of subsequent endorsements of otherwise valid securities be treated differently under § 2314 than the forgers of original endorsements whose actions give previously incomplete securities the appearance of validity." District court opinion, at 8.
10
Paragraph four of § 2314 provides:
"Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce, any traveler's check bearing a forged countersignature; ...."
11
Admittedly, there is a significant difference in scope between the two statutes. And the Court in Prussian did interpret § 148 in the context of definitional § 147
"Under § 148, 'whoever, with intent to defraud, shall falsely make, forge, counterfeit, or alter any obligation or other security of the United States' is guilty of a criminal offense. Section 147 provides: 'The words "obligation or other security of the United States" shall be held to mean all ... checks, or drafts for money drawn by or upon authorized officers of the United States.' It is apparent that the draft drawn on the treasurer by an authorized officer is an 'obligation ... of the United States' both in common parlance and by the express definition of § 147. But to extend the meaning of that phrase so as to embrace the endorsement on the government draft is to enlarge the statutory definition and would be possible only by a strained construction of the language of §§ 147 and 148, inadmissible in the interpretation of criminal statutes, which must be strictly construed." 282 U.S. at 677, 51 S.Ct. at 224.
The analogue to § 147, for purposes of the National Stolen Property Act, is § 2311, which defines "securities" broadly.
" 'Securities' includes any note, stock certificate, bond, debenture, check, draft, warrant, traveler's check, letter of credit, warehouse receipt, negotiable bill of lading, evidence of indebtedness, certificate of interest, or participation in any profit-sharing agreement, collateral-trust certificate, pre-organization certificate or subscription, transferable share, investment contract, voting-trust certificate; certificate of interest in property, tangible or intangible; instrument or document or writing evidencing ownership of goods, wares, and merchandise, or transferring or assigning any right, title, or interest in or to goods, wares, and merchandise; or, in general, any instrument commonly known as a 'security', or any certificate of interest or participation in, temporary or interim certificate for, receipt for, warrant, or right to subscribe to or purchase any of the foregoing, or any forged, counterfeited or spurious representation of any of the foregoing;"
It is arguable, therefore, that though a government security with a forged endorsement is not a falsely made, altered, or counterfeited "obligation or other security of the United States ", another type of security with a forged endorsement does constitute a forged security under §§ 2314 and 2311. Nonetheless, we find this reasoning strained and, particularly in the light of other indications of congressional intent, are unpersuaded.
Pointing out that the conviction in Prussian was upheld under § 29 (now § 495), which makes a federal crime the false making, altering, forging, or counterfeiting of "any ... other writing for the purpose of obtaining or receiving, ... from the United States ... any sum of money", the government also argues that the broad definition of "security" in § 2311 together with paragraph three of § 2314 creates similar catch-all criminal liability with respect to private securities. We find this reasoning similarly strained. Section 2311, though broad, does not include "any writing" to obtain money nor does it contain any language that can be easily construed to include endorsement of a check.
12
The single case that has criticized this interpretation (in dicta), United States v. Di Pietto, 396 F.2d 283 (7th Cir. May 1968), did so before the passage of the 1968 amendment in September of 1968 (P.L. 90-535)
13
Cf. United States v. Simpson, supra, at 81:
"(T)he application of the interpretive guideline inclusio unius est exclusio alterius suggests the conclusion that the transportation of securities with forged endorsements, other than traveler's checks, is not within the ambit of the third paragraph."
14
See note 4 and accompanying text supra | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1564646/ | 929 S.W.2d 5 (1996)
Kenneth Ray CLARK, Appellant,
v.
The STATE of Texas, Appellee.
No. 71462.
Court of Criminal Appeals of Texas, En Banc.
May 22, 1996.
Rehearing Denied September 18, 1996.
*6 J. Rex Barnett, Elizabeth Horan, Fort Worth, for appellant.
Anne E. Swenson, Danielle A. LeGault, Asst. Dist. Attys. Fort Worth, Robert A. Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
CLINTON, Judge.
Appellant was convicted of the offense of capital murder. V.T.C.A. Penal Code, § 19.03. At the punishment phase of trial, the jury answered affirmatively the special issues set forth in former Article 37.071(b), V.A.C.C.P. The trial court then sentenced him to death as required by former Article 37.071(e), V.A.C.C.P. Direct appeal to this Court is automatic. Former Article 37.071(h), V.A.C.C.P. Appellant does not challenge sufficiency of the evidence in any respect. We will vacate the trial court's judgment and remand the cause for a new punishment hearing.
In point of error number fifteen, appellant contends the trial court erred in granting the State's challenge for cause against venireman Elaine Jones based on her religious scruples against the death penalty. Under Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), a venireman may be excluded for cause consistent with the Sixth Amendment to the United States Constitution when his views on capital punishment are such that they would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions *7 and his oath." Vuong v. State, 830 S.W.2d 929, 942 (Tex.Cr.App.1992); Moody v. State, 827 S.W.2d 875, 888 (Tex.Cr.App. 1992); Ellis v. State, 726 S.W.2d 39, 44 (Tex. Cr.App.1986). Prospective jurors may not be excused merely because their beliefs about the death penalty might influence the decision-making process. Vuong, supra.
The voir dire of venireman Jones was unusually brief. The prosecutor never explained to her the procedure by which a capital accused, once found guilty of the offense, is sentenced. The following voir dire must be understood in that light:[1]
"[THE PROSECUTOR:] Are you morally against the death penalty?
[JONES:] Somewhat. It depends on the case.
Q. Okay. What are your views on the death penalty?
A. If I feel someone has committed a crime and evidence proves that they have, I am for it.
* * * * * *
Q. Question Number 41 [on the questionnaire] asks you, `Which of the following best describes the way you personally feel about the death penalty?' And you checked, `Generally against the death penalty'?
A. Yes.
Q. Okay. Maybe I need a little additional explanation on that.
A. Generally against, in that I just feel that, you know, I would have to listen and find out, do I really believe that the person committed the crime and whether or not, you know, what type of crime it was, did they really do it? If so, there are cases that I would feel that, yes, they should receive the death penalty. And there are cases that I think they shouldn't.
* * * * * *
Q. Is your general opposition to the death penalty something that is religious or moral, or what is it in you that triggers a general opposition to the death penalty?
A. More religious.
* * * * * *
Q. How does your religion in you trigger a general opposition to the death penalty?
A. More so, let God take care of it.
Q. If you were selected to serve on a jury in which the State was arguing for the death penalty, would you feel an obligation to let God take care of it rather than you yourself being able to vote such that the death penalty would be assessed to the death penalty [sic]?
A. Let God take care of it.
Q. So if you were on a jurylet's picture this for a second.
You are on a jury, and you found someone guilty of capital murder. And the way our trial works, if someone's found guilty of capital murder, we have a second phase to the trial in which the death penalty is an option that the jury could decide. Supposing you were serving on a jury and you had found a defendant guilty of capital murder, you found that they committed a capital murder, and one of the options is they receive the death penalty, would you find yourself wanting to vote in such a way so that the death penalty was not assessed so that God could take care of it?
A. Yes."
However, on questioning by defense counsel, Jones indicated that "where the facts would be so horrible and where the law permitted it," she could "vote for the death penalty" if she was instructed that that was "what the law was." And after appellant explained the legal procedures involved and that the venireman would not actually be called upon to assess punishment, but only to answer specific questions, the following transpired:
"[DEFENSE COUNSEL:] If you were chosen to serve as a juror in a capital murder case such as this one, would you be *8 able to listen and give fair consideration to all of the evidence that was presented by both the State and the Defendant?
[JONES:] Yes.
Q. And based on that, would you be able to follow the Court's instructions at the conclusion of the case and determine what in your mind would be a rightful decision?
A. Yes.
Q. And if that decision included finding that the Defendant was guilty, would you then be able to answer those questions up there without violating your conscience?
A. Yes.
Q. And even though you admittedly feel that there are some cases where capital punishment or death is a proper decision, there are a lot of cases that would be a capital case, perhaps, that you may not feel that way; is that correct?
A. Yes.
Q. And even though it might be a painful situation for you to serve in a capital murder case, do you think you could do that and would do that and follow the Court's instructions?
A. Yes, I would.
Q. And if those instructions resulted after you answered the questions or after the trial was completely over, if those answers of the questions resulted in the Defendant receiving the death penalty, would you be able to do that?
A. Yes."
After this, the trial court again explained to Jones the procedure at the punishment phase of a capital trial. Then, however, without further inquiry as to whether Jones could follow that procedure and answer the special issues honestly and without conscious distortion or bias, according to the evidence, the trial court granted the State's challenge. In doing so, the trial court opined that "[h]er religious scruples would affect her ability to be a fair and impartial juror[.]"
In Riley v. State, 889 S.W.2d 290 (Tex.Cr. App.1994) (Opinion on State's motion for rehearing), this Court reviewed a similar point of error. There venireman Brown had a far more deep-seated conscientious objection to the death penalty than did Jones in this cause. However, Brown also unequivocally maintained that, notwithstanding those objections, she could answer the punishment questions presented in accord with the evidence. The State contends, as it did in Riley, that this indicates a vacillating venireman and, therefore, the challenge must be upheld. We disagree with the State's assessment.
In Riley we held that, even though answering the punishment questions might violate her conscience, this did not indicate that venireman Brown would be substantially impaired in her duties, but only that her attitude might "affect" her deliberations. Riley, supra, at 300. Once the capital punishment procedure was explained to Brown, so long as she consistently affirmed that she could answer the questions in accordance with the evidence, "neither the difficulty she may have in doing so, nor the fact it might violate her conscience, renders her a `vacillating' venireman in any material sense." Id.
It is the burden of the challenging party to establish the venireman he has challenged for cause will be substantially impaired in his ability to follow the law. Hernandez v. State, 757 S.W.2d 744, 753 (Tex.Cr. App.1988) (Plurality opinion). Demonstrating that the venireman has conscientious scruples against the death penalty is not alone sufficient to meet the State's burden to show he will be substantially impaired from honestly answering the special issues of former Article 37.071(b) in accordance with the evidence. In order to meet that burden, the State should directly ask the question of the venireman whether his opposition to the death penalty is such as to cause him to answer one of the special issues in such a way as to assure a life sentence will be imposed, irrespective of what the evidence may be. Once that question is asked, the trial court's task is clear. If the venireman steadfastly maintains he will not consciously distort his answer to the special issues, he has shown no inability to follow the law, and may not be excused on State's challenge for cause. Brown v. State, 913 S.W.2d 577, at 580 (Tex.Cr.App.1996); Riley v. State, supra; Hernandez, supra. A venireman who steadfastly *9 maintains he will consciously distort his answers must be excused on challenge for cause. Brown, supra. Under either contingency, the trial court has no real discretion, for the venireman has unequivocally shown, in the former, that he can follow the law, and in the latter, that he cannot. On the other hand, once the question is asked, the venireman who genuinely equivocates or vacillates in his answer may be excused for cause or not, depending on demeanor, intonation, or expression. Here the trial court's discretion comes fully into play. Hernandez, supra, at 753. However the trial court exercises its discretion under these circumstances, it will be upheld on appeal. Brown, supra; Riley, supra, at 299; Perillo v. State, 758 S.W.2d 567, 577 (Tex.Cr.App.1988).
Under questioning by the State, Jones testified she was "somewhat" against the death penalty on moral grounds, but that her opposition was "more religious." She even acknowledged that she "would ... find [herself] wanting to vote in such a way so that the death penalty was not assessed so that God could take care of it." But all of this was before the operation of the special issues was explained to her. In fact, the State neither explained the capital punishment procedure to Jones nor made the critical inquiry whether her apparent preference to "let God take care of" deciding who should suffer the death penalty would affect her ability honestly to answer the special issues without conscious bias or distortion in accordance with the evidence. Only appellant's counsel even came close to asking that question. Moreover, when he did, Jones answered unequivocally that she could follow the court's instructions and answer the questions even if that resulted in imposition of the death penalty. Under these circumstances the trial court could not rationally have concluded that the State had discharged its burden to show that Jones was unable to abide by the statutory scheme, notwithstanding her preference to "let God" make that kind of ultimate decision. Hernandez, supra, at 754; Riley, supra, at 301.[2] The trial court thus abused its discretion to grant the State's challenge for cause against her.
Finally, this case is distinguishable from Staley v. State, 887 S.W.2d 885 (Tex.Cr.App. 1994). There is an important difference between venireman Jones in this cause and venireman Chandler in Staley, whom we held to be subject to a State's challenge for cause. Id., at 893-94. It is true that, as in Staley, the trial court in this cause gave an additional jury instruction at the punishment phase to accommodate the Eighth Amendment limitations on imposition to the death penalty announced in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). We made it clear in Staley that the trial court did not violate the Sixth Amendment by granting a State's challenge for cause against a venireman who indicated he would always answer the Eighth Amendment special issue in such a way as to block imposition of the death penalty. Even in this context, however, mere opposition to the death penalty, even categorical opposition, does not alone suffice to justify granting the State's challenge for cause. The State must establish further that the venireman's opposition would cause him invariably to answer the Eighth Amendment issue in such a way as to insure that the sentence of death would not be imposed. See Riley, supra, at 301, n. 4.[3]*10 The State did not even approach asking Jones whether her less-than-categorical opposition to the death penalty was substantial enough to cause her to answer the Penry special issue so as to foreclose the death penalty under any circumstances. Therefore, the State failed to satisfy its burden to show Jones was challengeable for cause on the basis we recognized in Staley either. The trial court erred to grant the State's challenge for cause against venireman Jones.
We have recently held that error in granting a State's challenge for cause against a venireman for inability to follow some facet of the law applying only at the punishment phase of trial constitutes "error affecting punishment only," and does not alone call for reversal of the conviction, but only a remand for a new punishment proceeding under Article 44.29(c), V.A.C.C.P. Ransom v. State, 920 S.W.2d 288 (Tex.Cr.App.1996) (Opinion on State's motion for rehearing). Therefore, while we need not reach appellant's other points of error alleging error at the punishment phase of trial, or error during voir dire that only affects punishment, we must address appellant's points of error alleging error at the guilt/innocence phase of trial, in order to determine whether the cause should be reversed and remanded for a whole new trial.[4] There are two such points of error, neither of which presents reversible error.
In his fifth point of error appellant contends that the jury charge on guilt/innocence was fundamentally defective in that the definition of "reasonable doubt" was not included in the application paragraph. While appellant concedes that a proper definition of "reasonable doubt" was submitted, as required by Geesa v. State, 820 S.W.2d 154 (Tex.Cr.App.1991), he contends that the trial court committed fundamental error not to apply that definition to the facts of the case.
It is true that a theory of law must be applied to the facts of a case, even though it may be defined in the abstract portion of the charge. Jones v. State, 815 S.W.2d 667, 668-69 (Tex.Cr.App.1991); Garrett v. State, 749 S.W.2d 784 (Tex.Cr.App. 1986). However, the language of which appellant complains involves the definition of a concept. General instructions and definitional instructions need not be applied to the facts of a case. Turpin v. State, 606 S.W.2d 907, 910 (Tex.Cr.App.1980). The application paragraph plainly required that the State prove each element of the offense "beyond a reasonable doubt." This was sufficient to refer the jury to the definition of "reasonable doubt" appearing elsewhere in the jury charge,[5] and to require them to apply it in their deliberations at the guilt phase. This point of error is overruled.
In his sixth point of error appellant complains that the trial court erred in overruling a motion to suppress the clothing he was wearing at the time of his arrest. He contends the arrest was made sans warrant, and without justification for a warrantless *11 arrest. As the fruit of this illegality, he contends, the clothing should have been suppressed pursuant to Article 38.23, V.A.C.C.P.
Appellant did not challenge the admissibility of the clothing until trial. Prior to trial, a hearing was held on his motion to suppress the product of an allegedly suggestive pretrial identification procedure. At that hearing, and during the trial itself in the jury's presence prior to the trial court's ruling on the admissibility of the clothing, the following facts were elicited pertaining to appellant's arrest: On May 11, 1991,[6] Officer D.B. Goley was called and told to meet other officers at the 900 block of Jefferson Street in Fort Worth. Once at that location, Goley was informed that they were serving an arrest warrant on appellant who was presently at a friend's house located at 920 E. Allen Street. At approximately 11:00 a.m., Goley noticed an individual matching appellant's description leave the house and walk in his direction. As appellant approached Goley's position, Goley stepped out of his car, identified himself, and arrested appellant. Subsequently, Officer Larry Steffler arrived on the scene with the physical warrant in hand. Steffler testified that appellant's son, Alzie Davis, had called "911" at 6:45 a.m. the morning of May 11, 1991, to report that his father had confessed to him to having committed the robbery and murder in this cause. Steffler stated that he obtained the necessary information from Davis in order to draft the arrest warrant, then immediately proceeded to find a magistrate to sign the warrant. At the suppression hearing, Steffler testified the warrant issued between 11:00 and 11:30 a.m. that same day. At trial he testified it issued between 10:30 and 11:00 a.m.
Appellant adduced no additional facts at the time he objected to the introduction of the clothing. He now suggests that the warrant had not issued at the time he was arrested, and that the arrest did not satisfy any of the justifications for warrantless arrest in Chapter 14 of the Code of Criminal Procedure. We disagree with appellant's premise. By his own testimony at the pretrial suppression hearing, appellant established that he was arrested sometime between 11:30 and 12:00 noon. This indicates that the warrant had been issued by the time appellant was arrested. That the warrant was not physically present before the arrest was made does not matter under Article 15.26, V.A.C.C.P.[7] Thus it appears that appellant did not satisfy his "initial burden" to establish that a warrantless seizure even occurred. Russell v. State, 717 S.W.2d 7, 9 (Tex.Cr.App.1986). We cannot say the trial court abused its discretion to admit the clothing. Consequently we overrule appellant's sixth point of error.
Finding no error requiring a new trial in this cause, we vacate the judgment of the trial court and remand the cause to that court for a new punishment proceeding pursuant to Article 44.29(c), supra.
MANSFIELD, J., dissents.
MEYERS, J., not participating.
NOTES
[1] The offense occurred on May 10, 1991, and trial commenced in February of 1992. The procedure applicable to the punishment phase of appellant's trial was therefore governed by Article 37.071 as it read prior to amendment by Acts 1991, ch. 838, §§ 1 & 5, pp. 2898-2901, eff. Sept. 1, 1991. Presumably any capital punishment proceeding on retrial will be conducted under current Article 37.0711, V.A.C.C.P. See Acts 1993, ch. 781, §§ 2 & 6, pp. 3060-3062, eff. Aug. 30, 1993.
[2] Moreover, that Jones' religious scruples "would affect her ability to be a fair and impartial juror," as the trial court concluded, even if supported by the record, would not necessarily render her exclusion acceptable under the Sixth Amendment. The trial court might simply have meant he believed "that the potentially lethal consequences of [Jones'] decision would invest [her] deliberations with greater seriousness and gravity or would involve [her] emotionally." Adams v. Texas, 448 U.S. 38, at 49, 100 S.Ct. 2521, at 2528, 65 L.Ed.2d 581, at 592 (1980). That would not be sufficient to insulate her exclusion from Sixth Amendment censure. Id., U.S. at 50-51, S.Ct. at 2529, L.Ed.2d at 593.
[3] Again, the most expedient method for the State to discharge its burden would be simply to ask the venireman point-blank whether his categorical opposition to the death penalty will cause him always to answer the Penry issue in such a way as to insure death will not be doled out, irrespective of the facts. The venireman who unswervingly maintains he will not invariably answer the Penry issue to prevent an execution may not be excused for cause, consistent with the Sixth Amendment. The venireman who maintains just as adamantly that he will must be excluded upon the State's challenge. And the venireman who genuinely equivocates or vacillates in his answer to this question is subject to challenge for cause, at the trial court's discretion. See Brown v. State, supra.
[4] In points of error one through four appellant complains that the trial court's jury instructions at the punishment phase of trial allowed the jury to assess the death penalty in violation of Penry v. Lynaugh, supra. Points of error seven through ten allege error in admitting certain evidence at the punishment phase of trial. Appellant contends in points of error eleven and twelve that Article 37.071 is invalid. In view of our remand for a new punishment hearing, we need not address these issues. In points of error thirteen and fourteen appellant claims the trial court erred to deny his challenges for cause against a pair of veniremen he contends harbored a bias in favor of the death penalty. And in points of error sixteen and seventeen he complains that trial court erred to deny challenges for cause against veniremen who would not consider certain evidence in mitigation of punishment. Like the error we reverse upon today, these alleged voir dire errors would only "affect" punishment in contemplation of our holding in Ransom on rehearing. Because we have sustained appellant's fifteenth point of error, and remand the cause for a new punishment hearing under Article 44.29(c), we need not reach these contentions either.
[5] The Geesa definition appears after the application paragraph rather than before it. Although appellant alludes to this fact, he does not specifically complain of it. In any event, appellant did not object to this positioning at trial, and we are not inclined to believe that placing the definition after the application paragraph rather than before amounts to egregious error under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1985) (Opinion on rehearing).
[6] The instant offense occurred on May 10, 1991.
[7] Article 15.26 reads:
"In executing a warrant of arrest, it shall always be made known to the accused under what authority the arrest is made. The warrant shall be executed by the arrest of the defendant. The officer need not have the warrant in his possession at the time of the arrest, provided the warrant was issued under the provisions of this Code, but upon request he shall show the warrant to the defendant as soon as possible...."
Emphasis added. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1644888/ | 994 So.2d 313 (2008)
PEREZ
v.
STATE.
No. 2D08-5336.
District Court of Appeal of Florida, Second District.
October 30, 2008.
Decision without published opinion. Hab.Corp.denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556688/ | STATE OF LOUISIANA
v.
K. J. C.
No. KA 09-931.
Court of Appeals of Louisiana, Third Circuit.
March 10, 2010.
Not Designated for Publication
J. PHILLIP HANEY, District Attorney, Counsel for Plaintiff/Appellee: State of Louisiana.
G. PAUL MARX Counsel for Defendant/Appellant: K. J. C.
K. J. C., Rayburn Correctional Center, JEFFREY J. TROSCLAIR, Assistant District Attorney Sixteenth Judicial District Court, Counsel for Plaintiff/Appellee: State of Louisiana.
Court composed of COOKS, PETERS, and EZELL, Judges.
EZELL, JUDGE.
On August 9, 2007, the Defendant, K.J.C.,[1] was charged by bill of information with committing the following offenses: (1) forcible rape, a violation of La.R.S. 14:42.1; (2) aggravated incest, a violation of La.R.S. 14:78.1; (3) aggravated incest, a violation of La.R.S. 14:78.1; and (4) molestation of a juvenile, a violation of La.R.S. 14:81.2. Also, on December 10, 2007, the Defendant was charged by bill of information with possession of marijuana with intent to distribute, a violation of La.R.S. 40:966(A)(1).
Pursuant to a plea agreement, the Defendant pled guilty to forcible rape, aggravated incest, and possession with intent to distribute marijuana on December 9, 2008. In exchange for his plea to these charges, the State agreed to dismiss the remaining charges and to waive the filing of a habitual offender bill. The State also agreed to concurrent sentences.
The Defendant was sentenced on April 29, 2009, to serve thirty-two years at hard labor for forcible rape, without benefit of probation, parole, or suspension of sentence. For aggravated incest and possession with intent to distribute marijuana, the Defendant was sentenced to twenty years at hard labor on each conviction. The sentences were ordered to run concurrently with each other. The Defendant's motion to reconsider his sentences, filed on May 6, 2009, was summarily denied.
Pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), appellate counsel has filed a brief alleging the record contains no pre-plea errors to support reversal of the Defendant's convictions and sentences in this matter. For the following reasons, we affirm the Defendant's convictions and sentences and grant counsel's motion to withdraw.
FACTS
The following facts were set forth at the Defendant's guilty plea and sentencing hearings. The Defendant first began molesting the Victim, his biological daughter, when she was eight years old. The Victim was impregnated in the summer of 2001 and on March 24, 2002, at thirteen years of age, the Victim gave birth to a son by caesarean section. About five years after the child's birth, after the Victim reached eighteen years of age, she reported the sexual abuse so that she could collect child support from the Defendant. The paternity of the child was confirmed through DNA analysis to be that of the Defendant.
Additionally, on April 3, 2007, agents with the Iberia Parish Sheriff's Office were monitoring a controlled delivery of marijuana involving the Defendant. The Defendant was intercepted while in route to deliver marijuana to a confidential informant and was found in possession of a bag containing one ounce of marijuana.
ANDERS ANALYSIS:
Pursuant to Anders, 386 U.S. 738, the Defendant's appellate counsel has filed a brief stating he has made a conscientious and thorough review of the trial court record and could find no errors on appeal that would support reversal of the Defendant's convictions or sentences. Thus, counsel seeks to withdraw.
In State v. Benjamin, 573 So. 2d 528, 531 (La.App. 4 Cir. 1990), the fourth circuit explained the Anders analysis:
When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court's review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.
Pursuant to Anders and Benjamin, we have performed a thorough review of the record, including pleadings, minute entries, the charging instrument and the transcripts. The Defendant was properly charged in a bill of information, was present and represented by counsel at all crucial stages of the proceedings, and entered a free and voluntary guilty plea after properly being advised of his rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969). Additionally, the Defendant received legal sentences in conformity with his plea agreement.
The Defendant's sentence for forcible rape, thirty-two years, was on the upper end of the sentencing range; his sentence for aggravated incest, twenty years, was the maximum possible sentence; and his sentence for possession with intent to distribute marijuana, twenty years, was a mid-range sentence. The Defendant, however, received a substantial benefit from his plea agreement. Not only did he receive concurrent sentences, two charges, aggravated incest and molestation of a juvenile, were dismissed in exchange for his guilty plea, significantly reducing his sentencing exposure. He was also spared a possible total fine of up to $100,000. Prior to his plea agreement, the Defendant faced up to an additional forty years of imprisonment and additional fines exceeding $50,000. La.R.S. 14:78.1 and 14:81.2. Further, the Defendant was not charged as a habitual offender under La.R.S. 15:529.1. Lastly, the Defendant's guilty plea waived all non-jurisdictional defects in the proceedings prior to the plea. State v. Crosby, 338 So. 2d 584 (La.1976).
We have found no issues that would support an assignment of error on appeal. Therefore, the Defendant's convictions and sentences are affirmed and counsel's motion to withdraw is granted.
CONVICTIONS AND SENTENCES AFFIRMED. MOTION TO WITHDRAW GRANTED.
On Appeal from the Sixteenth Judicial District Court, Docket Number 07-1635, Parish of Iberia, State of Louisiana, Honorable Keith Rayne Jules Comeaux, Judge.
ORDER
After consideration of appellate counsel's request to withdraw as counsel and the appeal presently pending in the above-captioned matter;
IT IS HEREBY ORDERED that appellate counsel's motion to withdraw is granted.
NOTES
[1] Pursuant to La.R.S. 46:1844(W), the Defendant's initials are used to protect the confidentiality of the Victim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556664/ | 30 So. 3d 505 (2010)
YOUNGBLOOD
v.
STATE.
No. 2D09-1504.
District Court of Appeal of Florida, Second District.
March 19, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556643/ | 30 So. 3d 355 (2009)
Claudine BROWN, Individually and as Administratrix of the Estate of Charles Brown, Deceased and on Behalf of All Wrongful Death Beneficiaries of Charles Brown, Deceased, Appellant,
v.
PROGRESSIVE GULF INSURANCE COMPANY, Appellee.
No. 2008-CA-00028-COA.
Court of Appeals of Mississippi.
August 11, 2009.
Rehearing Denied December 8, 2009.
Certiorari Denied March 18, 2010.
*356 James W. Nobles, Jackson, James Kevin Littleton, Travis T. Vance Jr., for Appellant.
Cecil Maison Heidelberg, Ridgeland, Ginny Y. Kennedy, for Appellee.
EN BANC.
IRVING, J., for the Court.
¶ 1. Claudine Brown (Brown), administratrix of the Estate of Charles Brown, appeals from the judgment of the Yazoo County Circuit Court granting Progressive Gulf Insurance Company's (Progressive) motion for summary judgment and denying hers. Brown asserts that the circuit court erred in finding that an insurance policy issued by Progressive to S & S Trucking, Inc. (S & S Trucking), with Scott Penn, Inc. (Scott Penn) named as an additional insured, did not provide any coverage for her decedent, Charles Brown.[1]
¶ 2. Finding no reversible error, we affirm.
FACTS
¶ 3. Charles and Jessie Woods[2] were killed on November 8, 2005, when the tractor-trailers that they were driving collided. At the time of the accident, Woods was an employee of Alma Frances McLean (Frances) and was driving a tractor-trailer that she owned. Frances's husband, Henry McLean, operated a logging business, and the truck that Woods was driving was used in that business, although neither Frances nor Henry had liability insurance on the truck. As part of the business operation, Henry produced and hauled wood for Scott Penn. Scott Penn had an arrangement to sell wood to International Paper Company (International Paper) pursuant to a Master Wood Purchase and Service Agreement.[3]
*357 ¶ 4. The agreement reads, in pertinent part, as follows:
[Scott Penn] undertakes and agrees to sell, deliver, cut, controvert, and/or transport to [International Paper] or other designated destinations, and [International Paper] undertakes and agrees to purchase and/or accept from [Scott Penn], those certain quantities of pulpwood, saw timber, in-wood chips, residual chips, chip mill chips, fiber fuel, poles, pulling or other forest products....
The agreement also provides as follows: "[w]hen [Scott Penn] is transporting [w]ood, pursuant to this Agreement, [Scott Penn] agrees to furnish a sufficient number of safe and operationally sound tractors, trailers, and other transportation equipment of sufficient capacity, together with licensed, and insured, competent drivers." Further, as it relates to insurance, the agreement states in pertinent part:
Insurance: [Scott Penn] shall carry, with insurers satisfactory to [International Paper], during the term hereof, Auto Liability Insurance, including either "owned, hired and non-owned vehicles" or "hired, non-owned and scheduled vehicles," with limits of not less than $1,000,000, combined single limit, for both bodily injury liability and property damage liability each occurrence.... Prior to commencing operations hereunder, a Certificate of Insurance evidencing such coverage, satisfactory to [International Paper], shall be furnished to [International Paper], which shall specifically state that such insurance shall provide for at least ten (10) days' notice to [International Paper] in the event or cancellation or any material change in such insurance policies.
¶ 5. To meet its insurance obligations under the agreement, Scott Penn purchased an insurance policy from Ed Sanford Insurance Agency (Ed Sanford), an agent for Progressive. Christine Somrak, manager of administrative claims support for Progressive, testified by deposition that Ed Sanford did not request coverage for hired and non-owned vehicles in the application that it submitted for Scott Penn. Somrak further testified that the policy issued by Progressive, which was for the period of April 4, 2005, to April 4, 2006, did not contain hired and non-owned vehicle endorsements.[4] Additionally, neither Woods nor the truck that he was driving at the time of the accident was listed on any of Scott Penn's insurance policies with Progressive.[5] Nevertheless, Ed Sanford issued two certificates of liability insurance to International Paper, one to International Paper's Vicksburg, Mississippi facility and the other to its Canton, Mississippi facility. Both of the certificates indicated that "hired" and "nonowned" vehicles were covered by the policy.[6] Somrak testified that Ed Sanford had *358 no authority to issue the certificates and that Progressive was not aware that the certificates had been issued by Ed Sanford.
¶ 6. On December 6, 2005, Brown filed a wrongful death action, individually, and on behalf of Charles's beneficiaries. Brown sought damages for Charles's death based on her assertion that Woods negligently caused the accident by driving his tractor-trailer into the southbound lane and colliding head-on with the tractor-trailer being driven by Charles.[7] After several amendments, the complaint finally listed the following defendants: Frances, the Estate of Jessie Woods, Progressive, and Scott Penn. In the complaint, Brown alleges that Frances and Scott Penn are liable for Woods's negligence under the doctrine of respondeat superior.[8] She sought a declaratory judgment that "[the] [Progressive] automobile liability insurance policies... which named [Scott Penn] as an additional named insured, provided automobile liability insurance indemnity to [Scott Penn], Frances McLean and Jessie Woods, Deceased as `insureds' under said policy for the wreck in question."
¶ 7. All defendants responded by filing their separate answers in which they generally denied the material allegations of the complaint and asserted affirmative defenses. Progressive and Scott Penn later filed motions for summary judgment. Brown also filed a motion for summary judgment, contending that no genuine issue of material fact existed as to whether the tractor-trailer that she owned, which Woods was driving at the time of the accident, was covered by the policy issued to S & S Trucking for the benefit of Scott Penn.
¶ 8. The circuit court denied Brown's motion for summary judgment, granted Scott Penn's motion, and dismissed the action against Scott Penn with prejudice, finding that "Defendant Scott Penn, Inc., has no liability to Plaintiff for the accident and/or death at issue." The circuit court also granted Progressive's motion, dismissing all of Brown's claims against it. The circuit court found that no genuine issue of material fact exists as to either Brown's claims of coverage under the policy issued to S & S Trucking or to Progressive's claim of non-coverage. The court then entered a judgment in favor of Progressive pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure. It is from this judgment that Brown now appeals.
¶ 9. Additional facts, as necessary, will be related during our analysis and discussion of the issue.
ANALYSIS AND DISCUSSION OF THE ISSUE
¶ 10. Our standard of review as it relates to summary judgment is well settled:
[An appellate court] conducts de novo review of orders granting or denying summary judgment and examines all the evidentiary matters before it admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The *359 evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt. McCullough v. Cook, 679 So. 2d 627, 630 (Miss.1996).
Henderson v. Un-Named Emergency Room, 758 So. 2d 422, 424(¶ 7) (Miss.2000).
¶ 11. Brown's core argument is that the policy issued to S & S Trucking covered hired and non-owned vehicles and that the vehicle that was owned by Frances and driven by Woods at the time of the accident qualifies as either a hired or non-owned vehicle, subject to coverage under the policy. In support of her argument, Brown relies on three things: (1) the certificates of liability insurance issued by Ed Sanford to S & S Trucking indicating that hired and non-owned vehicles were covered under the policy for the period of April 4, 2005, to April 4, 2006; (2) a letter from Progressive to S & S Trucking, dated March 14, 2006, acknowledging the loss that occurred on November 8, 2005, involving Woods, an unlisted operator, and advising that it had added Woods to the policy and assessed a surcharge for the accident; and (3) a renewal declarations page for the policy in question, listing Woods as a rated driver for the renewal period: April 4, 2006, to April 4, 2007.
¶ 12. Before we begin our analysis, we make a few pertinent observations and recount some relevant undisputed facts. First, as we have already noted, there is a disclaimer on the face of each of the certificates of liability upon which Brown relies. The disclaimer clearly states: "This certificate is issued as a matter of information only and confers no rights upon the certificate holder. The certificate does not amend, extend or alter the coverage afforded by the [policy]...." Second, the March 14, 2006, letter is silent as to retroactivity. Third, notwithstanding the renewal declarations page that was sent to Scott Penn, Scott Penn did not renew the policy that added Woods as an insured driver. Fourth, it is not disputed that Ed Sanford was an agent for Progressive and that he had the apparent authority to issue the certificates. Fifth, Woods was not, and had never been, an employee of Scott Penn. Sixth, at the time of the accident, Scott Penn was not leasing or renting the vehicle that Woods was driving. Seventh, the policy issued by Progressive does not contain a hired vehicle endorsement. Eighth, Scott Penn was dismissed from the lawsuit, and International Paper was never made a party to the lawsuit. Mindful of these observations and undisputed facts, we now address Brown's contention that the circuit court erred in denying her motion for summary judgment and granting Progressive's.
¶ 13. We first observe that if it were International Paper making a claim for indemnification against Scott Penn or Scott Penn making a claim for coverage, our decision would be more difficult. This is because Scott Penn paid the policy premium and is listed as an additional insured on the policy and the certificates of liability insurance in question were issued to facilitate Scott Penn's ability to conduct business with International Paper and to protect International Paper from this type of damage claim. However, resolution of this case does not require that we delve into this issue, so we will not engage in dicta.
¶ 14. As stated, Brown contends that coverage is extended to her decedent under *360 the policy because of (1) the certificates of liability insurance issued by Ed Sanford to S & S Trucking indicating that hired and non-owned vehicles were covered under the policy for the period of April 4, 2005, to April 4, 2006; (2) a letter from Progressive to S & S Trucking, dated March 14, 2006, acknowledging the loss that occurred on November 8, 2005, involving Woods, an unlisted operator, and advising that it had added Woods to the policy and assessed a surcharge for the accident; and (3) a renewal declarations page for the policy in question, listing Woods as a rated driver for the renewal period: April 4, 2006, to April 4, 2007.
¶ 15. We find that Brown's reliance is misplaced. First, Somrak stated in her deposition that Ed Sanford did not request coverage for hired and non-owned vehicles in the application that he submitted on behalf of Scott Penn, and no such coverage was provided in the policy that was submitted pursuant to the application. Second, it is clear from the face of the certificates of liability insurance that Ed Sanford issued that they do not expand the coverage afforded under the policy because they are not endorsements. Rather, they are intended merely as an explanation of coverage, even though in this instance, they misstated the scope of the coverage. Nevertheless, even if we were to accept that the certificates of liability insurance bound coverage, Brown still cannot prevail. We explain.
¶ 16. Chris Scullin, a commercial automobile casualty manager at Progressive, testified via deposition that although the certificates show coverage for hired and non-owned autos, it is Progressive's position that the vehicle that was driven by Woods does not qualify as an insured vehicle under the definition of a non-owned auto, as defined in the policy, or as a hired vehicle as defined in Progressive's hired auto endorsement. We have carefully examined the definition of non-owned auto that is contained in the policy and the definition of hired auto as provided in the specimen hired-vehicle endorsement. We agree with Progressive.
¶ 17. The hired vehicle endorsement defines a hired auto as "an auto which is not owned by [Progressive], registered in [Progressive's] name, or borrowed from [Progressive's] employees and which is obtained under a short-term rental agreement not to exceed thirty (30) days." Clearly, the vehicle driven by Woods is not covered by this definition. Therefore, there is no need for further discussion of the "hired auto" provision as it relates to coverage. We look now to see whether coverage is provided under the provision for non-owned auto. The policy defines a non-owned auto as follows:
"Non-owned auto" means any auto which is:
a. not owned by or registered to you, your nonresident spouse or a resident of the household in which you reside;
b. not hired, owned by or borrowed from your employees or members of their households; or
c. Not hired by you or an employee of yours, and if you are a person, not hired by a resident of the household in which you reside unless it is specifically listed on the policy Declarations.
Clearly the vehicle driven by Woods fits within the description of a non-owned auto. However, this is not the end of the discussion, as the policy contains the following rider:
EMPLOYERS NON-OWNERSHIP LIABILITY
We agree with you that the insurance provided under the Bodily Injury and Property Damage Coverages of the Policy *361 for your insured auto applies to any non-owned auto used in your business by any of your employees, subject to the following provisions:
1. Insureds. The "insured" provisions under the Bodily Injury and Property Damage Coverages apply to the insurance provided by this endorsement except that none of the following is an insured with respect to a non-owned auto:
a. the owner of a non-owned auto and any agent or employee of that owner.
b. an executive officer of yours with respect to an auto owned by him or a member of his household.
¶ 18. It is unquestionably clear that, although the vehicle which was involved in the accident in question is a non-owned auto as defined in Scott Penn's policy, coverage for the vehicle is excluded by the policy because it was owned by Frances and driven by her employee. The non-ownership liability rider specifically provides that the owner of a non-owned auto and the employee of the owner, with respect to the bodily injury and property damage provisions of the policy, are not insureds as that term is defined in the policy.
¶ 19. We next address Brown's contention that the renewal declarations page of the proposed renewal policy and the letter that Progressive sent to Ed Sanford and S & S Trucking raise genuine issues of material fact regarding insurance coverage for Frances's vehicle that was involved in the accident. We find that there are several reasons why these two facts are not material to the question of whether coverage existed on Frances's vehicle on the date of the accident. First, as noted, the renewal declarations page that Brown references is for a policy that was set to commence five months after the occurrence of the accident in question. Second, the policy was not renewed. It is true, as Brown argues, that the declarations page lists Woods as a rated driver. However, the policy that was in force on the date of the accident does not list Woods as a rated driver. When the renewal declarations page was prepared on March 15, 2006, it is clear that Progressive was not aware that Woods was deceased because it listed him as a rated driver for a policy period to begin on April 4, 2006, and end on April 4, 2007.[9] The fact that Woods was listed prospectively does not mean that he was covered retroactively, as Brown contends. The question regarding retroactivity brings the discussion to the letter, dated March 14, 2006, that was sent by Progressive to S & S Trucking. The letter reads, in pertinent part, as follows:
A loss occurred on the above referenced policy on 11/08/05. Our investigation revealed that the driver at the time of [the] loss was Jesse Woods, an unlisted operator. We have added this driver to the policy along with a surcharge for the accident.
¶ 20. Somrak testified that Progressive did not extend coverage to Woods for the accident and that he was added by a customer service representative when the policy came up for renewal. Somrak explained as follows: "The policy was coming up for renewal at this time and that is when our customer service [representative] reviews the policy and noted that there was a loss and there was a loss with an unlisted driver and they were adding him going forward." Somrak further explained that the customer service representative did not know that Woods was deceased. As for Brown's contention that *362 Woods was added to the policy retroactively, Somrak was asked the following question: "Okay. Now, before this customer service department issued document 1619, that's the document whereI'm sorry, 1609, that's the document where Jesse Woods was added to the policy retroactively for the accident in question?" Somrak responded, "He was not added retroactively." There is nothing ambiguous about the letter regarding the effective date of coverage for Woods. While the letter stated that a loss had occurred on the policy and that a surcharge had been added, this language merely indicates that a claim had been made against the policy as a result of an accident by an unlisted driver. In no way does this language raise a material issue regarding coverage at the time of the accident.
¶ 21. Lastly, Brown has cited several cases that speak to the issue of the proper treatment of ambiguous contracts. We see no need to discuss the holding in any of those cases because we see nothing ambiguous about the policy provisions in question. Additionally, Brown also has cited cases from another jurisdiction which construe the phrases "hired auto" and "non-owned auto" in policies that provide bodily injury and property damage to persons engaging in logging operations. It is sufficient to say that we have examined each of those cases and find that they are easily distinguishable in that they do not contain the employer's non-ownership liability rider as does the policy in the case before us.
¶ 22. In conclusion, we find that the circuit court did not err in finding that no genuine issue of material fact exists with respect to whether Frances or her employee, Woods, are covered under the policy issued to S & S Trucking with Scott Penn listed as an additional insured. We further find that the circuit court did not err in finding that the policy issued to S & S Trucking provides no coverage for Frances or Woods. Therefore, we affirm the judgment of the circuit court granting summary judgment in favor of Progressive and denying Brown's motion for summary judgment.
¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., MYERS, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON and MAXWELL, JJ., concur. LEE, P.J., Not Participating.
NOTES
[1] Hugh Scott Penn, owner of Scott Penn, testified that S & S Trucking was one of several entities created by Sanford Insurance Agency to avoid putting too many trucks on a single insurance policy because there was a limit on the number of trucks that Progressive would insure on a single policy. The S & S Trucking policy named Scott Tenn, Inc. rather than Scott Penn as an additional insured. However, all parties agree that the intended additional insured was Scott Penn, and there is no allegation that Scott Penn was not covered under the S & S Trucking policy.
[2] Although Woods's first name is spelled throughout the pleadings as "Jessie," the insurance documents and the witnesses for Progressive, which will be discussed later, have his first name listed as "Jesse." We have chosen to leave the spelling as indicated.
[3] The accident occurred shortly after Woods had delivered a load of wood to International Paper's facility in Redwood, Mississippi. Hugh testified at a deposition that there was no written contract between Henry and Scott Penn.
[4] A copy of the form commercial vehicle policy, along with the policy declarations page, that was issued to S & S Trucking was attached to Progressive's motion for summary judgment. Neither the form policy nor any of its endorsements provided coverage for hired vehicles.
[5] At the time of the accident, Progressive insured a number of commercial vehicles specified on several policies of insurance that listed Scott Penn as an additional insured.
[6] Although the certificates indicate that coverage was in place for hired and nonowned vehicles, it should be noted that the face of each certificate bears the following disclaimer: "This certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage provided by the polices below."
[7] Prior to the filing of the lawsuit, neither Scott Penn nor Frances had reported the accident to Progressive. The record reflects that Brown's attorney notified Progressive about the accident on or about February 15, 2006, which was more than three months after the accident.
[8] Brown alleged that the McLeans and Scott Penn were involved in a joint venture to produce wood for International Paper. Later, in a memorandum in support of her motion for summary judgment, Brown abandoned her joint venture argument and stated that "[Scott Penn] is not needed to reach the liability insurance coverage [issue], [since] there is no need to prove agency or joint venture. [Scott Penn's] Motion for Summary Judgment is confessed as to those issues."
[9] As already noted, Woods was killed in the accident on November 8, 2005. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556649/ | 876 F. Supp. 850 (1995)
J. Meg OLSON, Individually and on behalf of all others similarly situated, Plaintiffs,
v.
AMERICAN ARBITRATION ASSOCIATION, INC., and Molly Bargenquest, Defendants.
No. 3:94-CV-2080-T.
United States District Court, N.D. Texas, Dallas Division.
January 31, 1995.
Wilmer Dallam Masterson, III, Kilgore & Kilgore, Dallas, TX, for plaintiff.
Mark A. Shank, Clark West Keller Butler & Ellis, Dallas, TX, for defendants.
ORDER GRANTING MOTION TO DISMISS AND DECLARING MOOT ALTERNATIVE MOTION FOR SUMMARY JUDGMENT
MALONEY, District Judge.
Before the Court are Defendants' Motion to Dismiss and Alternative Motion for Summary Judgment. The motions are opposed. After consideration of the motions, response, and reply, the Court is of the opinion that the Motion to Dismiss should be granted and the Alternative Motion for Summary Judgment should be declared moot.
Olson was formerly employed by NCR, a Maryland corporation which was subsequently acquired by American Telephone & Telegraph. In conjunction with her employment at NCR, Olson signed a written employment agreement which provided that any controversy or claim arising out of or relating to the employment agreement will be settled by *851 arbitration. On August 4, 1993, Olson instituted a lawsuit in state court against NCR and some individual defendants seeking damages for intentional infliction of emotional distress. Defendants filed a motion to compel arbitration which was granted by the trial court. The arbitration hearing was scheduled for December 12, 1994, but no decision has yet been rendered.
On August 30, 1994, Olson filed the instant suit, on behalf of herself and others similarly situated, against the American Arbitration Association and Bargenquest. Olson alleges that the AAA and Bargenquest misrepresented the AAA's services in violation of the Texas Deceptive Trade Practices Act. Specifically, Olson alleges that Defendants have represented to the public that the AAA provides impartial arbitration services through neutral arbitrators who are neither biased nor have a presumption of bias. Olson contends that the arbitration panels are biased in favor of employers in employment disputes because (1) the panels are unfairly stacked with lawyers who primarily represent employers in employment disputes; (2) a vast majority of the panelists are men; (3) a vast majority of the panelists are white; (4) a vast majority of the panels are comprised of lawyers who do not represent a cross-section of society; and (5) the AAA receives substantial contributions from employers.
On September 29, 1994, Defendants removed the case on the basis of diversity of citizenship alleging that Defendant Bargenquest was fraudulently joined. Alternatively, they removed the case on the basis of federal question jurisdiction. On October 26, 1994, Olson filed her motion for remand disputing the allegations of fraudulent joinder and federal question jurisdiction. The Court found that Defendant Bargenquest was fraudulently joined and denied Olson's motion for remand.
Defendants move to dismiss the case for failure to state a claim. They alternatively move for summary judgment. They argue that Olson fails to state a claim upon which relief can be granted under the Deceptive Trade Practices Act. Specifically, they argue: (1) Olson has not been damaged because she has not yet arbitrated her claims against her former employer; (2) Olson is not a consumer within the meaning of the DTPA because she entered into the arbitration agreement in connection with her employment contract; (3) even if the allegations about the arbitrators were true, they would not establish as a matter of law that the arbitrators are biased; (4) Olson has not given Bargenquest the required demand letter before initiating suit under the DTPA; (5) Bargenquest had no involvement in selecting arbitrators for the arbitration panels; (6) that they are immune from this type of suit under the doctrine of judicial, quasi-judicial, or arbitral immunity; and (7) Olson's suit is preempted and premature.
Olson responds that the Motion to Dismiss should be denied because Defendants rely on information extrinsic to the pleadings. She also argues that the Motion for Summary Judgment should be denied or continued under FED.R.CIV.P. 56(f). Olson contends that discovery is necessary to respond effectively to the Motion for Summary Judgment.
A motion under Rule 12(b)(6) tests the legal sufficiency of claims stated in the complaint and must be evaluated solely on the basis of the pleadings. Jackson v. Procunier, 789 F.2d 307 (5th Cir.1986). The court must decide whether the material facts alleged would entitle a plaintiff to offer evidence regarding the legal remedy it requests. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). Unless the answer is unequivocally no, the motion must be denied. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957).
The United States Court of Appeals for the Fifth Circuit has established two primary considerations for a court's analysis of the propriety of dismissal under Rule 12(b)(6). First, the court must accept as true all well pleaded facts in the complaint, and the complaint is to be liberally construed in favor of the plaintiff. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.1982), cert. denied, 459 U.S. 1105, 103 S. Ct. 729, 74 L. Ed. 2d 953 (1983). However, the court will not accept conclusory allegations in the complaint as true. Id. Second, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can *852 prove no set of facts that would entitle it to relief. Id.
Although Defendants request the Court to consider attached exhibits in support of its motions, the Court finds that the evidence is unnecessary and that the Motion to Dismiss can be considered based on Olson's pleadings. Olson argues that the arbitration panels are biased because (1) the panels are stacked with lawyers who primarily represent employers in employment disputes; (2) a vast majority of the panelists are men; (3) a vast majority of the panelists are white; (4) a vast majority of the panels are comprised of lawyers who do not represent a cross-section of society; and (5) the AAA receives substantial contributions from employers. Accepting these allegations as true, these allegations do not as a matter of law show bias. Olson speculates based on stereotypical characteristics that the arbitration panel in this case is biased. Olson's conclusion that the panel is biased is unsupported by her remaining allegations in her complaint. Accordingly, Defendants' Motion to Dismiss should be granted and the Alternative Motion for Summary Judgment should be declared moot.
It is therefore ORDERED that the Motion to Dismiss filed by Defendants on November 22, 1994, is granted.
It is FURTHER ORDERED that the Alternative Motion for Summary Judgment filed by Defendants on November 22, 1994, is declared moot.
FINAL JUDGMENT
This action came before the Court, Honorable Robert B. Maloney, presiding, and the issues having been duly considered and a decision having been rendered.
It is ORDERED and ADJUDGED that Plaintiff's complaint is dismissed with prejudice.
It is FURTHER ORDERED and ADJUDGED that all relief not specifically granted herein is denied.
Signed this 31st day of January 1995. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556756/ | 30 So.3d 504 (2010)
TAYLOR
v.
STATE.
No. 2D10-667.
District Court of Appeal of Florida, Second District.
March 10, 2010.
Decision Without Published Opinion Belated Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/412038/ | 696 F.2d 296
Roland ANDERSON, # 115181, Appellee,v.WARDEN, MARYLAND PENITENTIARY, Appellant.Roland ANDERSON, # 115181, Appellant,v.WARDEN, MARYLAND PENITENTIARY, Appellee.
Nos. 81-6626, 81-6627.
United States Court of Appeals,Fourth Circuit.
Heard En Banc Oct. 5, 1982.Decided Dec. 15, 1982.
Bruce C. Bereano, Annapolis, Md., for appellee/cross-appellant.
Patricia E. McDonald, Asst. Atty. Gen., Baltimore, Md. (Stephen H. Sachs, Atty. Gen. of Md., Baltimore, Md., on brief), for appellant/cross-appellee.
Before WINTER, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN and CHAPMAN, Circuit Judges, and FIELD, Senior Circuit Judge, sitting en banc.
SPROUSE, Circuit Judge:
1
Roland Anderson was found guilty of rape, felony murder and burglary by a jury in the State of Maryland and sentenced to life imprisonment by the state court in 1970. The convictions for rape and burglary were later vacated by a state court applying double jeopardy principles barring multiple punishments, but Anderson remains incarcerated on the felony murder conviction. The United States District Court for the District of Maryland in 1981 granted a writ of habeas corpus to Anderson, finding constitutional error committed by the trial judge in the conduct of Anderson's trial, and the State of Maryland appeals. A divided panel of this court reversed the district court and ordered the case remanded for a denial of the writ of habeas corpus. After an en banc hearing, we now affirm the district court. 670 F.2d 1339.
2
The circumstances of the crime are discussed in the panel opinion and are here only summarized, since it is not the constitutional insufficiency of the evidence that supports the habeas corpus attack, but the egregious conduct of the trial judge.
3
The victim was a 62-year-old white widow, who lived in the same neighborhood in Annapolis, Maryland, as Anderson. Anderson, at the time of the crime, was a fifteen-year-old black who had reached the seventh grade.
4
At trial, the state presented strong circumstantial evidence pointing to Anderson as the perpetrator of the crimes, and also a written confession signed by Anderson. Anderson disputed the conclusiveness of the circumstantial evidence, and disavowed the confession; but an alibi comprised practically his entire defense, and if believed would have made it highly unlikely that Anderson had committed the crime. The alibi was presented by Anderson's testimony, and by the testimony of two of Anderson's friends, Phyllis Cook and Clinton Roberts. The gist of the alibi was that Anderson had been visiting Phyllis Cook's house, approximately 10 miles away from the scene of the murder, during the time in which the crime occurred.
5
During cross-examination of Cook and Roberts, the state's attorney asked both witnesses if they were aware of the penalty of perjury. The trial court instructed Roberts in the presence of the jury that the penalty was 10 years' imprisonment, and that Roberts should bear that in mind in answering questions.
6
Immediately following the testimony of Cook and Roberts, it appears that the state's attorney approached the bench and the trial judge asked whether the state's attorney wanted witness Roberts held; the state's attorney replied in the affirmative and the sheriff was directed to take Roberts into custody. While the record is unclear, it seems likely that the jury was present in the courtroom during this exchange and possibly saw Roberts (and Cook) taken into custody by the sheriff.
7
Cook and Roberts testified in post-trial proceedings that following Roberts' cross-examination they were taken from the courtroom and detained elsewhere in the courthouse. Cook testified that a person who she believed to be a bailiff detained her in a small room, accused her of lying, and threatened her with a ten-year jail sentence for perjury. Roberts testified that a policeman took him from the courtroom to a small room with bars, where someone came and talked to him about perjury. The two witnesses were then brought to the judge's chambers and were "given quite a lecture" by the trial judge, who was "upset," concerning the falsity of their testimony. The witnesses then returned to the courtroom and testified a second time. Their response to the "lecture" is not indicated in either the original trial transcript or the record of the habeas corpus proceedings. The defendant was not present in chambers; but the defendant's attorney and the state's attorney were there. The proceedings were not recorded.
8
Following the conference in chambers, the court reconvened, and the judge addressed the jury as follows:
9
Mr. Foreman, ladies and gentlemen of the jury, at the conclusion of this case two of the witnesses who testified have indicated to the Court that they told an untruth in their testimony and desire an opportunity to correct that before you ladies and gentlemen before this case concludes. As a matter of law, the Court must afford a witness an opportunity to purge himself or herself of perjury. For that purpose we are recalling these two witnesses to the stand to give them an opportunity to revise their stories to what they are now saying is the correct testimony.
10
As Cook prepared to testify, the trial judge told her, in the presence of the jury:
11
You have indicated to the Court that a portion of the testimony that you previously gave under oath in this case was false. The Court now affords you an opportunity to correct that testimony by telling the truth and to purge yourself of the perjury you have committed. This is the last chance you will be given in this trial to tell the truth.
12
To Roberts, as he commenced his testimony, the trial judge said:At the conclusion of the testimony in this case you indicated to the Court that some portions of the testimony you had given before this jury were false. You asked the Court for an opportunity to purge yourself of this crime by being afforded an opportunity to tell the truth to the jury. This is your opportunity to tell the truth. It is the last one you are going to get in this trial.... You better make good use of it.
13
The subsequent testimony of Cook and Roberts varied from their original testimony and considerably weakened the alibi.
14
The trial court's conduct invaded at least two areas of protection to which Anderson was entitled under the Constitution--his sixth amendment right to call witnesses in his behalf, and to the effective assistance of counsel; and his fourteenth amendment right to a fair trial.
15
The judge openly and successfully pressed defendant's two key witnesses to change their testimony. This blatantly interfered with Anderson's sixth amendment right to freely present the testimony of the two alibi witnesses. See Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Nor can we ignore the effect of the court's forcefully expressed opinion on defendant's counsel. When a trial judge's comments are as emphatic, and as one-sided as in this trial, not only is there a strong possibility that the witnesses might be intimidated, but also that defense counsel's freedom of action might be stifled. The possibility that the effectiveness of Anderson's assistance of counsel was prejudicially reduced is demonstrated by counsel's failure to object to Anderson's absence while the judge lectured the witnesses in chambers; and by counsel's failure to object and request a mistrial after the judge's improper remarks before the jury.
16
Anderson had a fourteenth amendment due process right to a fair trial, which minimally means a fair and impartial judge and jury. This right was violated. The trial judge's remarks clearly indicated his disbelief of the witnesses' first testimony and unquestionably influenced the jury's appraisal of their credibility. The jury, having been advised directly that Cook and Roberts had lied and having heard the judge's strong language addressed to the witnesses, could have only come to one conclusion--that the initial testimony of the witnesses was false and contrived to save Anderson.
17
Rules governing comments of trial judges during criminal trials do not by themselves determine the due process parameters of fairness. When the fairness of such comments is in issue, however, the doctrine expressed by those rules is illuminating.
18
Although there is no Maryland statutory provision regarding the freedom of a state trial judge to comment on the evidence, it is well established that the trial judge should endeavor to maintain an impartial attitude, refrain from unnecessary comment and avoid singling out the testimony of any particular witness for comment. Western Maryland Dairy Corp. v. Brown, 169 Md. 257, 181 A. 468 (1935). Federal trial judges usually are more freely empowered than state judges to comment on the evidence, but they also must take special care to maintain an appearance of impartiality. Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). The purpose of judicial comment is to assist the jury in arriving at a just conclusion; therefore, the judge's comments must be neutral and not be given so as to intimidate the witnesses or otherwise interfere with the ascertainment of truth.
19
"It was for the jury to determine which of the witness' stories would be given credence, or indeed whether the witness would be believed at all. The comments by the trial judge clearly infringed upon the jury's credibility determining process and appellant was thereby deprived of a fair trial." United States v. Bates, 468 F.2d 1252, 1255 (5th Cir.1972). See United States v. Reed, 414 F.2d 435, 442, (Simpson, J., dissenting), rev'd en banc, 421 F.2d 190 (5th Cir.1969).
20
Maryland acknowledges in its brief that the trial judge's remarks were erroneous, and in argument conceded that the error was of constitutional dimension. The only issue therefore is whether the error was harmless. An error involving the denial of a federal constitutional right in a state criminal case can be held harmless only if the reviewing court is satisfied beyond a reasonable doubt that the error did not contribute to the conviction. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
21
Harm is presumed to have come from the constitutional error, and the state has the "heavy burden" of proving harmlessness beyond a reasonable doubt. Eberhardt v. Bordenkircher, 605 F.2d 275, 280 (6th Cir.1979). See Coles v. Peyton, 389 F.2d 224 (4th Cir.1968). The Chapman test is a "strict" one, United States v. Jones, 542 F.2d 186, 213 (4th Cir.1976). Harmless error analysis essentially involves the question of whether the error is but a "small error[ ] or defect that [has] little, if any, likelihood of having affected the result of the trial." Eberhart v. Bordenkircher, 605 F.2d 275, 279 (6th Cir.1979), quoting Chapman, 386 U.S. at 22, 87 S.Ct. at 827. Both Chapman and a succeeding harmless error case, Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), warn against "giving too much emphasis to 'overwhelming evidence' of guilt," where constitutional error affects substantial rights. Allison v. Gray, 603 F.2d 633, 635 (7th Cir.1979).
22
In gauging, then, the harmlessness vel non of the trial judge's conduct and comments in this case, we look to its reasonably possible effect on the outcome. We must look at the evidence, and the reasonably possible effects of the error on the jury's consideration of that evidence.
23
In the case sub judice, the evidence probative of guilt included Anderson's fingerprints and palmprints which were found inside the victim's bathroom window ledge and on the bathtub beneath the window. However, Anderson claimed he had previously entered the house through the same window for a legitimate purpose.
24
It also is true that Anderson confessed. However, he was fifteen years old and had only a seventh grade education at the time the crime was committed. His interrogation began at about 11:00 P.M. and was not completed until nearly 2:00 A.M. Although Anderson's parents accompanied him to the police station when he was arrested, they soon left, and it was after their departure that Anderson abandoned his earlier strong denials. Anderson repudiated the confession prior to trial, maintaining that he did not remember signing it and that he had been under the influence of drugs at the time of his arrest and interrogation. The officer conducting the interrogation admitted that the confession was essentially in his own words, not Anderson's, and that Anderson had merely agreed with the statements contained therein. The congruence between the text of the confession and the physical facts is undeniable. However, also undeniable is the interrogating officer's clear admission that the method of interrogation was for the officer to repeatedly describe the homicide in detail, as the physical facts painted it, and then repeatedly ask the defendant if that wasn't how he did it. The trial court in an admissibility hearing on the confession acknowledged that this putting words in the defendant's mouth possibly detracted from the weight of the confession, but did not render it inadmissible. The weight of the congruence of confession and physical facts is thus substantially diminished.
25
Forensic experts testified that negroid hairs were found on the victim's nightgown and blanket and that a fragment of caucasian pubic hair was found on trousers taken from Anderson's home. On cross-examination, however, the expert admitted that the negroid head hairs were not specifically identifiable as Anderson's; similarly, the pubic hair could not be identified as the victim's. Blood grouping tests on blood and seminal fluid found on Anderson's clothing and the victim's bed covers did not rule him out as the perpetrator of the crime, but neither did they establish him as such.
26
The alibi testimony from Anderson and his two witnesses was the evidence probative of innocence. The state established that the crime was committed between 10:00 P.M. and 2:00 A.M. Anderson testified to leaving his neighborhood and going to Phyllis Cook's house at about 10:00 P.M. where he visited, played cards and talked until about 3:00 A.M. Phyllis Cook testified initially that Anderson came to her home on the evening of the murder and played cards and talked until approximately 3:00 A.M.
27
The initial testimony of alibi witness Roberts was that on the day of the murder he played baseball and wrestled with Anderson and some other neighborhood boys. Roberts then went home to clean up and eat dinner; later, he met the group, including Anderson, on a corner near his home. Roberts testified that they all stood around on the corner until 9:00 or 9:30 P.M. Then he and Anderson hitchhiked out to Cook's house, where they ate, played cards and talked until about 3:30 A.M.
28
After her detention and lecture by the judge, Cook testified that Anderson had not arrived at her house until about 11:45 P.M., and she was unable to say that Anderson was constantly present until 3:00 A.M. Roberts on retaking the stand placed the time of arrival at Cook's at 10:30 or 11:00 P.M., and Roberts stated that he left, without Anderson, at about 1:00 A.M.
29
At the post-conviction proceedings, Cook testified that she was terrified, and "reworded [her testimony] to satisfy ... the court and judge ... so they wouldn't lock me up." She related difficult personal circumstances making her especially vulnerable to threats of imprisonment. Roberts, also worried about imprisonment, said he "was just scared ... I just would say anything."
30
It cannot be argued that there was not strong evidence probative of Anderson's guilt--there was. The trial judge so dominated the jury's impressions, however, that it is impossible to gauge if the jury could have observed the fourteenth amendment's command to afford the defendant "due process" while weighing the evidence before them.
31
The influence of the trial judge on the jury "is necessarily and properly of great weight" and "his lightest word or intimation is received with deference, and may prove controlling." Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1933), quoted in United States v. Cisneros, 491 F.2d 1068, 1074 (5th Cir.1974) (reversing conviction where trial court said "somebody is lying in this case" and indicated who that person was). The judge in the case sub judice, by having the witnesses held for perjury and admonishing them in front of the jury, told the jury that the witnesses were lying in their initial testimony and being truthful in their subsequent testimony.
32
Unfettered by the trial court's impermissible comments, the jury in the instant case could have considered both the strong evidence of guilt and the alibi evidence and, disbelieving the alibi evidence, could have found Anderson guilty. An attack on such a verdict, grounded on the insufficiency of the evidence, would have failed. Likewise, it is in the realm of possibility that the jury disregarded the judge's comments. There is no way, however, short of surmise to reach the latter conclusion. In light of the conduct and comments of the presiding trial judge the opposite is probably true--that the jury was given a strong incentive to wholly discount the evidence favorable to Anderson. Moreover, the improper judicial comment on the defendant's evidence inescapably tended to spill over and to add greater weight to the circumstantial evidence probative of guilt. Cf. Miller v. North Carolina, 583 F.2d 701, 708 (4th Cir.1978).
33
We cannot conclude beyond a reasonable doubt that the denial to Anderson of an impartial judge and jury, by the impermissible judicial tainting of the defense alibi evidence, had no effect on the verdict.1 The trial court's egregious conduct in this case was not harmless. It was in no way a mere technical error. Anderson did not receive the fair trial he was constitutionally entitled to.
34
The judgment of the district court is affirmed.
35
AFFIRMED.
K.K. HALL, Circuit Judge, dissenting:
36
In writing the majority panel opinion in this case, I stated that the trial judge committed harmless error in the manner in which he handled the perjured testimony of the defendant's alibi witnesses. After hearing the en banc argument of counsel and further consultation with my brother judges, I now conclude that I was wrong. The trial judge did not commit any error at all. Under the circumstances, he acted judiciously and properly. Not to have permitted a recall of the offending witnesses after hearing the truth would have been improper conduct on his part. In all other respects, I stand by my published opinion and adopt it as a dissent to the en banc opinion of this Court.
37
As a further comment on the majority opinion, in my view a majority of this Court has gone beyond the bounds of reason to find a way to reverse the conviction of a murderer. Anyone reading the record in this case cannot reasonably reach any other conclusion but that this defendant is guilty. Setting aside his conviction is an affront to society.
38
DONALD RUSSELL, Circuit Judge, and FIELD, Senior Circuit Judge, join in this dissent.
WIDENER, Circuit Judge, dissenting:
39
I join in Judge Hall's dissent, and I would add a word.
40
The majority correctly notes that the jury could have only come to one conclusion, that the initial testimony of the witnesses was false and contrived to save Anderson. But that was the fault of the witnesses, not of the trial judge. Both the witnesses changed crucial parts of their testimony with respect to Anderson's alibi; the changed testimony concerned times when Anderson was actually with them on the night of the murder.
41
That they were confessed perjurers is shown beyond any doubt by the following question and answer from the witness Phyllis Cook:
42
"Q. All right. Now I want you to tell the jury what we discussed in chambers and where if any error you might have made in the testimony that you gave regarding the time of the arrival of this Defendant, who he arrived with and what time he left. Go slowly, but tell the truth.
43
"A. Just the part where I lied at." (Italics added.)
44
I think the jury was entitled to hear the changed testimony, and not only was the jury entitled to hear it, the trial court had every right to comment on it, and indeed an obligation to see that its proceeding was not corrupted by admittedly perjured testimony.
45
Even in the face of the extreme provocation recounted in the various opinions, the trial judge in his instructions to the jury bent over backward to instruct them that his opinion did not govern which testimony they should have believed:
46
"Anything the Court says about a given witness or a given line of testimony is not meant to say that we think that line ought to be preferred over something that tends to contradict it. That is your job. What we are trying to do is point out to you the real decision that is before you in these facts."
47
* * *
48
* * *
49
"Now you must consider all of the evidence bearing on whether or not this accused was the person who committed these acts. You are free and you are to consider all the evidence which tends to show that he was not. You are free to believe or disbelieve all or any part of any witnesses' testimony."
50
I doubt that the remarks of the trial judge now complained of exceeded permissible bounds under rules of state procedure upon the discovery of admittedly perjured, very crucial testimony, much less were outside constitutional limitations as the majority now holds.
1
"[A]lso inimical to the judicial process ... [are errors] of encroachment by the judge on the province of the jury, or vice versa.... When judicial comment has exceeded fair guidance and attempted to lead the jury to a particular verdict, the comment carries a high risk that it influenced the jury. Even a cautionary instruction ... may not counteract the force of comment attended by the authority of the judge's office. An appellate court might still find it difficult to believe it highly probable that the comment did not influence the verdict." R. Traynor, The Riddle of Harmless Error 71-72, (1970) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1646752/ | 9 So.3d 148 (2009)
Pamela MERRIETT
v.
BUDGET BUILD LUMBER & SUPPLY, INC.
No. 2009-C-0776.
Supreme Court of Louisiana.
May 22, 2009.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1298925/ | 616 S.E.2d 693 (2005)
SOUTHEASTERN OUTDOOR PRODUCTS, INC. v. LAWSON.
No. COA04-1545.
North Carolina Court of Appeals.
Filed August 16, 2005.
Certification Date September 6, 2005.
Case reported without published opinion. Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/469092/ | 789 F.2d 289
Moyer Reed PLASTER, Appellee,v.UNITED STATES of America, Appellant.
No. 85-6503.
United States Court of Appeals,Fourth Circuit.
Argued Dec. 4, 1985.Decided April 29, 1986.
John F. DePue, Dept. of Justice, Washington, D.C. (Jean B. Weld, Asst. U.S. Atty., John P. Alderman, U.S. Atty., Roanoke, Va., on brief), for appellant.
Carr L. Kinder, Jr. (Bird, Kinder & Huffman, Roanoke, Va., on brief), for appellee.
Before WINTER, Chief Judge, WILKINSON, Circuit Judge, and BUTZNER, Senior Circuit Judge.
HARRISON L. WINTER, Chief Judge:
1
In a previous appeal, we remanded the application of Moyer Reed Plaster for a writ of habeas corpus, which the district court had granted, to free him from extradition to the Federal Republic of Germany to stand trial for murder. We ruled that extradition would be in violation of Plaster's constitutional rights if in fact Colonel Hart, who promised Plaster immunity from prosecution and extradition in exchange for testimony against Burt, another suspect, had authority to make the promise. Because there was a conflict in the evidence as to whether Colonel Hart had been told by the State Department that a final decision had been made not to extradite Plaster so as to authorize him to grant immunity, we remanded the case for resolution of this factual issue. Plaster v. United States, 720 F.2d 340 (4 Cir.1983).
2
On remand the district court 605 F.Supp. 1532 found that Colonel Hart had been so advised, and it directed that the writ issue. The government appeals, contending that the finding that Hart was so advised is clearly erroneous and that, in any event, the decision in Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984), decided after the first appeal, requires us now to conclude that Plaster, never having given testimony against Burt, had no constitutional right that would be violated by his extradition and trial in West Germany.
3
We affirm.
I.
4
The facts to the date of our previous decision are set forth in our opinion and need not be repeated here. On remand, the government supplemented the existing record with an affidavit of Colonel Hart. In his affidavit, Hart stated that he erred in his previous testimony that he spoke with Colonel Dennis York, Chief of International Affairs for the United States Army, Europe, about whether Burt and Plaster could be transferred back to West Germany for either court martial by the United States Army or whether the West Germans could recall their waiver of jurisdiction and proceed to a West German trial. He now says that his conversation was with Colonel Al Rakas, then Chief of International Affairs Division, USAREUR, and:
5
I was told by Colonel Rakas that the State and Defense Departments had decided that to then allow West Germany to recall its jurisdiction after it had failed to do so during the time limit set in the Supplementary Convention would set a bad precedent under the NATO SOFA. I was told that it was the United States Government's policy to assert and maintain jurisdiction whenever possible in situations where both the United States and the receiving country had concurrent jurisdiction.
6
In addition, Hart denied any awareness that Rakas discussed granting immunity to Plaster with the International Affairs Division of JAGO, asserting that, under the Uniform Code of Military Justice, the Commanding General had discretionary authority to grant immunity from military prosecution. Hart further denied awareness of anyone discussing any extradition treaty between the United States and the Federal Republic of Germany then in force or later to be concluded, other than NATO Status of Forces Agreement (SOFA). He added:
7
I did not request authority from the International Affairs Division, United States Army, Europe, the State Department, or the Defense Department to offer a grant of immunity to Plaster or to include in such an immunity grant a promise not to extradite him to West Germany. The decision by the Departments of State and Defense, as relayed to me by Col. Rakas, made no mention of my decision to pursue an immunity grant, which was my response to that decision. At the time the grant of immunity was drafted and approved by General Schellman, I did not consider whether the immunity would include immunity from extradition. Therefore, I did not discuss with or ask the approval of General Schellman or anyone to grant immunity from extradition. To the best of my knowledge, I was not delegated any authority by the Department of State to promise Plaster or Burt, as part of any immunity agreement, that the United States Government would not extradite either Burt or Plaster to West Germany. I did not promise Plaster, as part of the immunity agreement, that he would not be extradited to Germany for the 1965 murder of Kurt Pfeuffer.
8
Based upon the evidence of Colonel Rakas, the district court made a factual finding that "the State Department, through its liaison, Colonel Rakas, told Hart that a final decision had been made that Plaster would not be extradited [and therefore] Hart had the requisite authority to promise Plaster freedom from extradition." The government also contended before the district court that the decision in Mabry v. Johnson, supra, required it to reconsider its initial decision to issue the writ, but the district court ruled that that decision did not have that effect.
II.
9
Before us, the government attacks the factual finding that Hart had authority to promise Plaster freedom from extradition, asserting that it is clearly erroneous. It argues that the evidence shows that Hart was informed only that the State and Defense Departments would not accede to a reassertion of the West German government's right to exercise jurisdiction under the NATO SOFA, but that this is far different from advice that "the State Department would not seek enforcement of any extradition request the West German government might make at some time in the future." In that connection, it stresses that the evidence did not show that extradition or immunity from extradition were specifically mentioned or discussed in the communications between Hart and representatives of the Departments of State or Defense.
10
To this argument we think that there are several answers. In the previous appeal, there was a factual finding that Plaster and his then attorney were both told by Hart's deputy, Colonel Rarick, that under the immunity agreement "Plaster would be prosecuted neither by American nor German authorities", 720 F.2d at 345, and this finding was accepted as not clearly erroneous. Since international extradition is a matter committed to the President and his designees, what concerned us in the prior appeal was whether Hart and his deputy had express, implied or apparent authority to commit the government not to extradite Plaster as part of the immunity agreement. We concluded that, given the close ties between extradition and the Executive's power to conduct foreign affairs, a grant of immunity from extradition must be made by one to whom the authority to issue such immunity has actually been delegated. 720 F.2d at 354-55.
11
The evidence adduced on remand clearly showed that the Departments of State and Defense decided not to return Plaster to German jurisdiction upon a recall of West Germany's waiver of jurisdiction, and this discussion was communicated to Hart by Rakas. We think that this is enough to render the district court's finding that Hart had authority to promise Plaster freedom from extradition immune from attack.
12
Although the treaty between the United States and the West German government under which extradition is now sought was not in existence at the time that Plaster entered into the immunity agreement, there was in effect between the two governments a status of forces agreement under which the United States could have ceded criminal jurisdiction to West Germany (by permitting Germany to recall its waiver of jurisdiction), had the United States been so disposed, even though the West German government had initially waived its primary right to exercise its concurrent jurisdiction. It is true, as the government argues, that, under international law, there are technical differences between an extradition treaty and a status of forces agreement. But the fact remains that there was a mechanism to return Plaster to West German criminal jurisdiction when the immunity agreement was entered into by Plaster and the government. There was thus in the broad, generic sense an "extradition" treaty at that time so that the advice to Hart that neither the Departments of State nor Defense would agree to return Plaster was a sufficient indication that he could promise immunity from extradition in an effort to develop evidence to convict someone of the murder of the taxi driver. That a formal extradition treaty came later into being is of no moment because by then the rights of Plaster had been created and the government could not deprive him of them.
13
We attach no significance to the failure to use the precise term "extradition" in the communications between Hart and the executive branches of the government. It would have been extremely unusual for them to have spoken in terms of a treaty yet to be negotiated and ratified. Extradition is the return of an accused to the place at which he allegedly committed a crime to stand trial on the charges made against him. Certainly this is the substance of what was discussed between Hart and the representatives of the Department of Defense and State. It is a mere matter of semantics as to whether the word "extradition" was used or whether parties spoke of returning Plaster to West Germany for trial.
14
In sum, we conclude that the finding of the district court that the promise not to extradite was authorized is not clearly erroneous.
III.
15
Mabry v. Johnson, supra, held that a criminal defendant's acceptance of a prosecutor's proposed plea bargain does not create a constitutional right to have the bargain specifically enforced where the prosecutor withdraws the offer prior to the acceptance of the guilty plea. Stated otherwise, a plea bargain is "a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest", 467 U.S. at 507, 104 S.Ct. at 2546, 81 L.Ed.2d at 442, so that it may be withdrawn. In deciding Mabry, the Supreme Court overruled our decision in Cooper v. United States, 594 F.2d 12 (4 Cir.1979), which we cited in the prior appeal in ruling that the immunity agreement gave rights to Plaster as soon as it was made. 720 F.2d at 351-54.
16
The government argues that an immunity agreement is to be likened to a plea agreement and therefore it may be withdrawn with impunity until the time that the person immunized has acted thereunder to his prejudice by incriminating himself or by giving the testimony against another as promised. The government argues that Plaster did not act under the immunity agreement so that it has remained executory and may be avoided at the government's option.1
17
The district court rejected the government's argument, ruling that a plea agreement and an immunity differ markedly so that the holding in Mabry is inapposite. We agree. As the district court correctly analyzed:
18
[A] grant of immunity is different from a plea bargain in that it can never be formalized by a plea of guilty. On the contrary, the very nature of the agreement is the promise on the part of the government to do nothing. In addition, a grant of immunity differs from a plea agreement in that it in no way involves court approval. In the case of a plea agreement, the court in essence executes the agreement by accepting the plea of guilty. In the case of a grant of immunity, however, only two parties are involved. The government alone makes a decision not to prosecute in exchange for testimony which will, hopefully, lead to a greater number of indictments or convictions. The most that one granted immunity can do is to agree to testify and then await the call of the government. The fact that the government has never called upon Plaster to testify does not now entitle the government to breach its part of the bargain.
19
For these reasons, we agree that Mabry is not dispositive. Further, our reliance on Cooper, now displaced by Mabry, was not the sole basis for our holding that, if authorized, the immunity agreement in this case was binding on the government. Even if we leave aside the enforceability of immunity agreements generally when the person granted immunity is not called upon to incriminate himself, the special circumstances of this case--the government's decision to proceed by an executory agreement, the fact that the immunity agreement was made in the military context and the fact that more than fifteen years has elapsed between the making of the agreement and the government's attempt to withdraw from it--all lead to the conclusion that it may not be avoided now. Since there is a not clearly erroneous finding that the agreement was authorized, we conclude that the writ of habeas corpus to enforce it properly issued.
20
AFFIRMED.
21
WILKINSON, Circuit Judge, concurring separately:
22
I join in the majority's decision to affirm the judgment, but I cannot agree with the majority's decision to rely in part on "the enforceability of immunity agreements generally when the person granted immunity is not called upon to incriminate himself." Ante at 293. This position is both unnecessary and unsound. Unnecessary, because the court recognizes that the extraordinary aspects of Plaster's case independently require issuance of the writ. And unsound, because pledges of immunity--like other prosecutorial contracts--are generally not enforceable unless the recipient has performed his obligation and suffered actual prejudice by some self-incriminating act. Only the extraordinary delay between the offer and withdrawal of immunity justifies a contrary result in this case, and I restrict my concurrence to that narrower ground.
23
If a defendant has not made inculpatory statements on the basis of an offer of immunity, withdrawal of the offer ordinarily will not interfere with the defendant's right to a fair trial. The majority implies that appellate courts may ignore this absence of prejudice and arrest the criminal process simply because government attorneys have repudiated their offer. The Supreme Court has cautioned against this impulse to place the prosecution on trial, Mabry v. Johnson, 467 U.S. 504, 511, 104 S.Ct. 2543, 2548, 81 L.Ed.2d 437 (1984) ("The Due Process Clause is not a code of ethics for prosecutors; its concern is with the manner in which persons are deprived of their liberty."). So long as the accused has not been prejudiced, the government's etiquette is not dispositive. Irregularities that do not affect substantial rights are to be disregarded. See United States v. Mechanik, --- U.S. ----, ----, 106 S.Ct. 938, 942, 89 L.Ed.2d 50 (1986) (and cases cited therein).
24
The correct approach may be found in this court's leading general statement about the enforcement of immunity agreements: "if the promise was made to defendant as alleged and the defendant relied upon it in incriminating himself and others, the government should be held to abide by its terms." United States v. Carter, 454 F.2d 426, 427 (4th Cir.1972) (en banc) (emphasis added); see also Johnson v. Lumpkin, 769 F.2d 630, 633 (9th Cir.1985); Rowe v. Griffin, 676 F.2d 524, 527-28 (11th Cir.1982). Subject to exceptions like the one presented here, the converse of the Carter formulation is equally accurate: if the defendant has not relied upon the promise in incriminating himself, the government should not be held to abide by its terms. United States v. Calimano, 576 F.2d 637, 640 (5th Cir.1978); see also Roe v. United States Attorney, 618 F.2d 980 (2d Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 152, 66 L.Ed.2d 70 (1980).
25
These principles have been most clearly articulated in the closely related context of prosecutorial agreements involving guilty pleas. The Supreme Court has refused to enforce such arrangements after the government has repudiated but before the defendant has been prejudiced:
26
A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of the court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution.
27
Mabry v. Johnson, 467 U.S. at 507-08, 104 S.Ct. at 2546, overruling Cooper v. United States, 594 F.2d 12 (4th Cir.1979). The same analysis applies to a promise to forbear prosecution in order to secure testimony. A grant of immunity standing alone is also "a mere executory agreement" that is "without constitutional significance;" it is the ensuing privileged statement that implicates the Constitution.
28
The majority tries to avoid Mabry v. Johnson by suggesting several purported differences between a plea bargain and a grant of immunity. Ante at 293. As purely descriptive propositions, these contrasts suffer from a tantalizing imprecision. Immunity may be "formalized" by an incriminating statement just as a plea agreement is "formalized" by a capitulating statement. Both arrangements might commit the government to "do nothing" in some sense: to refrain from prosecution, for example, or to abstain from recommendation at sentencing. And the participation of the court will in each situation depend on the nature of the agreement.
29
More important, the majority advances no reason that these proposed distinctions between an immunity offer and a plea agreement should create any difference in enforcement where the defendant has not prejudiced himself. Nor could the majority bridge this analytic gap, for the principle behind Mabry v. Johnson applies equally to the two cases. A grant of immunity, like a plea bargain, sacrifices constitutional protection from self-incrimination in exchange for prosecutorial protection from judicial process. The exchange is in either instance sealed only by the disadvantageous acts of the defendant.
30
Not surprisingly, courts usually see immunity agreements and plea bargains as a single legal category. In many cases, the two covenants are integrated in one deal. See, e.g., United States v. Cooper; United States v. Carter; United States v. I.H. Hammerman, II, 528 F.2d 326 (4th Cir.1975). In other cases, courts rely explicitly on a single set of interchangeable principles to resolve enforcement issues. See, e.g., United States v. Brimberry, 744 F.2d 580, 587 (7th Cir.1984); United States v. Carrillo, 709 F.2d 35, 36 (9th Cir.1983); Rowe v. Griffin, 676 F.2d at 528. Indeed, this court adopted the same analogy in the earlier appeal in this very case. Plaster v. United States, 720 F.2d 340, 351-54 (4th Cir.1983).
31
The Court's earlier reasoning remains correct today. If we must address "the enforceability of immunity agreements generally where the person granted immunity is not called upon to incriminate himself," ante at 293, we should acknowledge that the plea bargain authority is relevant, that Mabry v. Johnson will control most cases, and that, without prejudicial reliance, the defendant usually will not be able to hold the government to its offer. But we need not speak so broadly; we need only decide this case. See Plaster v. United States, 720 F.2d at 353 ("we of course do not decide whether executory immunity agreements generally are enforceable by the defendant"). And this case presents special circumstances that independently justify issuance of the writ. The government promised Plaster immunity approximately fifteen years ago. During that time he has established a home and pursued a career--he has relied on the immunity in making a new life. Fundamental fairness requires that we recognize the long duration of that reliance. For that reason, I concur in the affirmance of the district court's judgment.
1
There is, however, evidence in the record that the government's contention may be factually inaccurate. In the habeas corpus proceeding in the district court, Plaster testified that, after he entered into the immunity agreement on the advice of his then counsel, he was interviewed and gave a detailed accounting of all activities in Germany concerning the charges pending against him and that he did so because he understood that he could never be prosecuted for any information that he gave in the statement, but that he would receive a dishonorable discharge. He said that his interrogators represented that they wanted to settle the matter and make payments to the German family involved. While he does not dispute that he never was called upon to testify against his co-defendants, we were told in oral argument that Burt has been tried and convicted in Germany and that Plaster stated his willingness to testify against him, but Plaster's offer was refused because he asserted his own immunity
The only evidence to controvert the inescapable inference that Plaster incriminated himself when he gave the requested statement is an affidavit of the Chief, Foreign Claims Branch, U.S. Army Claims Service, that his personnel would not have sought such a statement, and that, if one were sought, would have not discussed immunity from criminal prosecution, and that settlement of claims and criminal prosecutions were unrelated activities. The Chief, however, claims no actual knowledge of what Plaster's interrogators said to Plaster. The district court did not resolve this factual issue, and because of our view of the legal effect of the immunity agreement in this case, we find it unnecessary to remand the case for resolution of the conflict. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1538685/ | 4 B.R. 4 (1979)
In re JANMAR, INC., Debtor.
John J. GOGER, Trustee and Plaintiff,
v.
UNITED STATES of America; Georgia Department of Revenue, Withholding Tax Section; Georgia Sales and Use Tax Unit, State of Georgia, Department of Revenue; State of Georgia Central Audit Unit; Georgia Department of Labor, Employment Security Agency; State of Georgia Income Tax Unit; Tax Commissioner, DeKalb County; Tax Commissioner, Butts County; Tax Commissioner, Clayton County; Tax Commissioner, Henry County; Tax Commissioner, Newton County; Jack W. Chancey; Swan Construction Company, Inc.; Bags by Frances, Inc.; Jo Swan; Evelyn Dickman; First Georgia Bank; C.J. Hulsey; David Gilchrist d/b/a Cap's Tavern; T.P. Stewart and Zack Hinton d/b/a SHP Economy Inn; Forest Kelly d/b/a Granny's-Kelly's Kitchen; John R. Mann; the People's Bank; Waffle House, Inc., Defendants.
Bankruptcy No. 79-03139A, Adv. No. 79-0047A.
United States Bankruptcy Court, N.D. Georgia, Atlanta Division.
October 23, 1979.
December 10, 1979.
*5 John J. Goger, Arrington, Rubin, Winter, Kirscher & Goger, Atlanta, Ga., for trustee and plaintiff.
Alvin L. Bridges, Jr., Dunaway, Haas, Broome, Hope & Bridges, Atlanta, Ga., for defendant Hulsey.
John E. Tomlinson, Jones, Tomlinson & Nix, Atlanta, Ga., for defendant Dickman.
James H. Rollins, Cofer, Beauchamp, Hawes & Brown, Robert G. Brazier, Atlanta, Ga., for defendants Gilchrist and Cap's Tavern, Ltd.
October 23, 1979. (Bankruptcy).
December 10, 1979. (Adversary).
STATEMENT OF CASE
W. HOMER DRAKE, Jr., Bankruptcy Judge.
On October 23, 1979, the above-named debtor filed a petition for relief under Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 301. On December 10, 1979, the trustee and plaintiff in this action filed a complaint to sell certain property of the debtor free and clear of any liens. On that same day this Court ordered that all parties in interest show cause at a hearing on December 20, 1979, why the trustee should not be authorized to sell the property of the debtor pursuant to his complaint. The Court further ordered the named defendants and each party asserting a claim with respect to the described property to file a statement of such claim by December 17, *6 1979, to file a motion or an answer to the complaint by December 16, 1979, and to file any objections in writing, setting forth the grounds for the objection by December 16, 1979. The Court also ordered that notice of the hearing be given by mail to all parties in interest, including creditors.
On December 17, 1979, defendant C.J. Hulsey (hereinafter referred to as "Hulsey") filed his answer claiming a security interest in certain property of the debtor's estate. He also filed an objection to the sale free and clear of liens of the fixtures located at Forest Kelly d/b/a Granny's-Kelly's, Cherokee Road, Smyrna, Georgia, and SHP Economy Inn, Locust Grove, Georgia, the reason being that he (Hulsey) had a security interest in these fixtures which equaled or exceeded their value.
On December 20, 1979, defendants David Gilchrist and Cap's Tavern, Ltd. (hereinafter referred to as "Cap's") filed an answer. They stated that Cap's and the debtor had entered into a lease-purchase agreement regarding certain equipment and fixtures now claimed by the trustee; that under this agreement, Cap's was to pay pursuant to the lease-purchase contract $150.00 per month until the purchase of said property, at which time a portion of the lease payments would be applied against the purchase price. As of November 1979, Cap's had paid $1,050.00 under the lease and the lease was not in default.
Cap's further alleged in its answer that certain items of the leased equipment have been installed in the premises so that their removal will cause damage to the building. Cap's also alleged that certain other items of the leased equipment had been repaired and refurbished so that the value added to the equipment exceeds the value of the equipment in an unrepaired condition.
In the alternative Cap's contends that if the fixtures and equipment are removed from Cap's, the estate of the debtor will incur substantial liability to Cap's for damages and that these damages will exceed the value of the leased fixtures and equipment.
Cap's then requested that the trustee's complaint be dismissed, that the trustee be enjoined from removing the leased property and that the Court order the trustee to abandon the fixtures and equipment. On that same day, Evelyn Dickman filed an answer claiming a security interest in plaintiff's property.
On December 20, 1979, a pre-trial hearing on this complaint was held and an Order issued. The Court ordered that the estates of Janmar, Inc. and Julian H. Eady (the President and sole shareholder of Janmar, Inc.) were separate and distinct and were to be treated accordingly. The Court, inter alia, forbade the trustee to sell or remove the restaurant equipment concerning which objections had been filed by defendants Hulsey and Cap's.
On January 7, 1980, trial on the trustee's complaint was set for January 23, 1980.
On January 17, 1980, Cap's filed a motion for the abandonment of property, alleging that the fixtures and equipment were of inconsequential value or benefit to the debtor's estate, that value added to the equipment by Cap's in the form of repair and refurbishment exceeds the value of said property in an unrepaired state, and that the cost of removing the fixtures exceeds their value.
On January 22, 1980, the plaintiff filed a trial brief stating, essentially, that Hulsey had no security interest in the equipment he claimed because he filed U.C.C. financing statements in the counties in which the equipment was located rather than in the county of the principal business of Janmar, Inc.
On January 23, 1980, a trial on the complaint was held and additional briefs ordered. On February 4, 1980, Hulsey filed a brief in support of his position that the pieces of equipment in which he claimed a security interest were fixtures, and that because they were, his filing had been in the proper county. He also cited cases indicating that types of equipment similar to that in which he claimed an interest had been held to be fixtures.
*7 On February 6, 1980, the trustee filed a supplemental trial brief. With this brief, the trustee tendered evidence showing that Janmar, Inc., not Julian Eady, owned the equipment in which Hulsey and Dickman claimed security interests; and that Dickman, having filed a financing statement in the name of Julian Eady, had not perfected her security interest.
The trustee also recapitulated testimony of Eady, Zack Hinton (a lessee of some of the restaurant equipment located at SHP Economy Inn in Locust Grove, Georgia) and David Arwood (a liquidator employed by the trustee to dispose of the property of the estate). All testified that with the exception of the property at Cap's, the property belonging to the estate could all be removed easily from its various locations and without damage to the buildings involved. This testimony was cited in support of the proposition that none of the property (except possibly at Cap's) had become fixtures.
The trustee's brief also reiterated testimony of David Arwood that the value of the equipment at Cap's was higher than the cost of removing walls and renovating them and that it had a "going concern" value of $2,000 and a distress sale value of $1,200. The trustee also claimed that Cap's, as lessee, was liable for the cost of renovation because it had compromised the mobility of the equipment.
The trustee then requested that he be allowed to sell all of the equipment which was the subject of the complaint, free and clear of any liens and that judgment in favor of the trustee be rendered against Cap's for $2,000 (the alleged value of the equipment).
On March 3, 1980, Cap's filed a supplemental brief in support of its motion for abandonment. Cap's stated that the permanent installation of the debtor's equipment had been made in good faith, with the knowledge of the debtor and with the understanding that it would not be removed. Cap's also argued that both § 554(a) and § 542(a) refer to "value" as the value of the property to the estate, not the fair market or going concern value. The value of the property as presently installed in Cap's premises, less the cost of renovation if borne by the trustee, is stated to be inconsequential, and thus abandonment is requested.
A. Evelyn Dickman Security Interest
FINDINGS OF FACT
1.
Janmar, Inc. was at all material times the owner of the personal property in which defendant Dickman claims a security interest.
2.
Defendant Dickman and Julian Eady entered into a security agreement under which a loan by the defendant to the debtor was to be secured by the personal property in question.
3.
The defendant filed a financing statement which bore and was indexed under the name of Julian Eady.
4.
The financing statement did not bear the name of the alleged debtor, Janmar, Inc.
CONCLUSIONS OF LAW
The evidence indicates that Janmar, Inc. was at all material times the owner of the property in which defendant Dickman claims a security interest. Mrs. Dickman claims to have perfected her alleged security agreement by filing a financing statement under the name Julian Eady. The trustee claims that failure to file a financing statement under the name Janmar, Inc. resulted in a failure to perfect her security agreement and results in the subordination of Mrs. Dickman's claim to the claim of the estate.
The Court agrees with the trustee. Ga.Code Ann. § 109A-9-402(1) states, in relevant part, "A financing statement is sufficient if it gives the names of the debtor and the secured party . . ." The defendant here makes no allegation that the name of the alleged debtor, Janmar, *8 Inc., appears on the face of the financing statement. While courts have allowed some minor errors in the debtor's name in both the financing statement and the indexing of it, "the distinction drawn in the reported decisions is whether the name as it appears on the financing statement is only slightly different than the debtor's real name in which case parties searching the records would be placed on notice by such entry." In re Firth, 363 F. Supp. 369, 372 (M.D.Ga.1973) (footnote 5). The difficulty of finding a financing statement filed under "Eady" while searching for a filing under "J" is clear. Therefore, this Court finds that the financing statement filed by Mrs. Dickman was insufficient to perfect a security interest, and consequently her claim is subordinate to that of the trustee.
B. Hulsey Security Interest
FINDINGS OF FACT
1.
Defendant Hulsey entered into security agreements with the debtor by which certain property including counters, tables, updraft units, refrigeration units and sinks were to secure a loan from the defendant to the debtor.
2.
These properties were located on the premises of Dodge House No. 11 located at Locust Grove Road in Henry County, Georgia and a Dodge House located at 1022-18 Cherokee Road, Smyrna, Cobb County, Georgia.
3.
The principal place of business of Janmar, Inc. is located in DeKalb County, Georgia.
4.
The tables, counters and refrigeration units at the above locations were never intended to become fixtures.
5.
The updraft units and sinks at the above locations were intended to become fixtures.
CONCLUSIONS OF LAW
The issue is whether fixture filings in Henry and Cobb Counties were sufficient to perfect Hulsey's alleged security interest in the tables, counters, updraft units, refrigeration units and sinks located on the premises of the restaurant buildings in these counties. The Court must consider the question of whether any of these various pieces of equipment have become fixtures. The trustee offered the testimony of Julian Eady, Hinton and Arwood that "the property belonging to the estate could be removed from its various locations easily and with no damage to the buildings involved" as determinative of the issue.
While one line of cases[1] indicates that the case of removal is the determinative factor, these cases seem to be limited to the "machinery clause" of § 85-105 and are otherwise clearly out of the mainstream of Georgia law which looks to the intent of the parties.
In Georgia "anything intended to remain permanently in its place, though not actually attached to the land, such as a rail fence, is a part of the realty and passes with it. Machinery, not actually attached, but movable at pleasure, is not a part of the realty. Anything detached from the realty becomes personalty instantly on being so detached." Ga.Code Ann. § 85-105.
The Georgia courts have held various items of personalty which could have been easily removed to be fixtures. See, e.g. Pope v. Garrard, 39 Ga. 471 (1869) (counters and drawers in a drug store); Brigham v. Overstreet, 128 Ga. 447, 57 S.E. 484 (1907) (counters, tables and large refrigerators in storehouse).
"[I]n Georgia . . . it is possible for a chattel to become a fixture with only minimal or constructive annexation to the realty . . ." Ga.Reviser's Comment *9 3, Ga.Code Ann. § 109A-9-313. Thus it is clear that the difficulty or ease of the removal of property from the premises is not determinative of its status as a fixture vel non.
The determination of whether or not an object has become a fixture is generally governed by the intent of the parties and is based upon a variety of factors.
"Whether an article of personalty connected with or attached to realty becomes a part of the realty, and therefore such a fixture that it cannot be removed therefrom, depends upon the circumstances under which the article was placed upon the realty, the uses to which it is adapted, and the parties who are at issue as to whether such an article is realty or detachable personalty." Wolff v. Sampson, 123 Ga. 400, 402, 51 S.E. 335, 335-336 (1905); Consolidated Warehouse Co. v. Smith, 55 Ga.App. 216, 189 S.E. 724 (1936). It is also the law in Georgia that this determination is a question of fact. Babson Credit Plan v. Cordele & Ass'n, 146 Ga.App. 266, 246 S.E.2d 1354 (1978). This Court finds from the weight of the evidence presented that the tables, counters and refrigeration units in question were never intended to be fixtures. Therefore, as to these items of property the fixture filings were inadequate to perfect a security interest and the trustee's claim is superior. However, as to the sinks and updraft units, the Court finds that they were intended to be permanently affixed to the realty and thus are fixtures. Therefore, the security interest of the defendant is perfected as to these items. Ga.Code Ann. § 109A-9-401(2).
C. Cap's Tavern
FINDINGS OF FACT
1.
The property in question is property of the estate of Janmar, Inc.
2.
The defendant Cap's and the debtor entered into a "use" only lease agreement.
3.
The defendant installed the equipment on the premises of Cap's Tavern with the knowledge and, at least, tacit consent of the debtor.
CONCLUSIONS OF LAW
Section 554(b) of the Bankruptcy Code, 11 U.S.C. § 554(b) provides that:
"On request of a party in interest and after notice and a hearing, the court may order the trustee to abandon any property of the estate that is burdensome to the estate or that is of inconsequential value to the estate."
Defendant Cap's seeks an order from this Court requiring the trustee to abandon the leased property of the estate which remains in the defendant's possession.
This request brings the issue of abandonment before the Court in an unusual posture. The defendant here is not claiming that his equity in the property is so great that any equity remaining in the trustee is inconsequential. While the defendant has made allegations that he has a claim against the trustee for the value of improvements to property already turned over to the trustee, he has not pressed this claim or any claim of equity. He merely disputes the trustee's exercise of discretion with respect to the question of whether property of doubtful worth to the estate shall be abandoned. The permissive language of § 554(a) indicates the discretionary element in this decision:
"After notice and a hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value to the estate." [emphasis added]
Collier, in describing § 554(a) and (b) states:
"Either the trustee or any other party in interest may apply to the court to approve or order an abandonment. This codifies practice under Bankruptcy Rule 608, which did not specify those entitled to request an abandonment." 4 Collier on Bankruptcy ¶ 554.02, pp. 554-9 (15th ed. 1979)
*10 The language of Rule 608 is even more demonstrative of the discretionary aspect of the decision whether or not to abandon property.
"The court may, on application or on its own initiative . . . approve the abandonment of any property . . ." Bankruptcy Rule 608. [emphasis added]
The use of the word "approve" is a strong indication that, at least under the former law, the power of abandonment is in the nature of a "trustee's power to pick and choose." 4A Collier on Bankruptcy ¶ 70.42, p. 500 (14th ed. 1978).
While the nature of the power of abandonment under the Act is not determinative of the effect of § 554 of the Code, it constitutes some evidence. At least one recent case under the Act characterized abandonment as "by leave of the court," Riverside Memorial Mausoleum v. Umet Trust, 469 F. Supp. 643, 645 (E.D.Pa.1979) indicating that the discretion of the trustee is bounded only by the discretion of the Court. Cases describing a "duty to abandon" have invariably been decided in situations in which the evidence clearly showed that the lien exceeded the value of the collateral and administration of the asset would cause expense to the estate. See, e.g. In re Watts, 19 F.2d 526 (E.D.La.1927). In the recent case of In Re Loiselle, 1 B.R. 74 (Bkrtcy. 1979) (Votolato, B.J.) the Court found as a premise prior to allowing the remedy of abandonment that the secured creditor and the trustee had reached an agreement to the effect that the creditor's lien exceeded the market value of the secured property and that there was no equity for the estate.
While no cases can be found under either the Code or the Act which precisely address this question, one commentator on the Code has said that the primary value of the right of other parties to request an abandonment order will be "where the trustee is willing to stipulate to such an order but, perhaps because of lack of assets in the estate, is unwilling to prepare it." Murphy, Creditor's Rights in Bankruptcy, § 4.12, p. 4-16 (1980). This Court is persuaded that Mr. Murphy's statement outlines the rationale underlying § 554(b). Generally, unless the trustee agrees to abandonment of a particular property of the estate, no order for such abandonment shall be issued at the request of a party in interest. Therefore, the defendant's request for abandonment is denied.
The demand for judgment of $2,000 against Cap's and in favor of the estate of Janmar, Inc. raises another question entirely. That question involves the scope of the duty imposed upon Cap's by the requirement of § 542(a) that it "deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate." The most significant statutory word applicable to the facts of this case is the word "deliver." The trustee claims that Cap's must either return the equipment itself or return in cash the "going concern" value of the equipment standing in place at Cap's Tavern. Cap's claims that "deliver" means only that it must allow the trustee to remove the equipment with all costs of removal and renovation falling on the trustee or that it must pay the trustee the distress value of the equipment as it stands in the tavern, with removal and renovation costs falling on the distress purchaser.
The Code gives no hint as to which meaning of the word "deliver" is proper. Since there is no compelling reason why Federal law should override the law of the state, the Georgia law on leases of personal property will be examined with respect to the concept of delivery.
In Georgia the lessee of personal property is termed a bailee for hire. Southern Bonded Warehouse Co. v. Roadway Express, Inc., 104 Ga.App. 458, 122 S.E.2d 147 (1961). "The engagements of the hirer of things are . . . to redeliver at the expiration of the bailment . . ." Ga. Code Ann. § 12-203. Section 12-205 is titled "Duty as to return and delivery." It states:
"The contract may be for the return of the thing or of like property of the same *11 kind and quality. In the former case . . . the bailor . . . can retake possession immediately at the expiration of the time of hiring." Ga.Code Ann. § 12-205.
This indicates that the duty of returning the property where the same property is to be returned would fall upon the bailor, here the trustee, in the absence of a contractual provision to the contrary. As the Georgia Court of Appeals has said concerning the termination of a bailment of operating lights in a clinic, "the bailor would be entitled to a reasonable length of time to remove the lights." Electro-Medical Devices, Inc. v. Urban Medical Service, Inc., 140 Ga.App. 776, 778, 232 S.E.2d 106, 108 (1976). Thus in Georgia, the duty of redelivery of a leased item, in the absence of agreement to the contrary, means only a duty to tender possession of the item at the premises of the bailee, in this case, Cap's Tavern. There was clearly no agreement as to redelivery in this case since the facts indicate that the parties intended an eventual sale of the property to Cap's. From this analysis it follows that the cost of removal of the property must fall upon the trustee, since the duty of Cap's is merely to tender possession on its premises.
There remains the problem on whom the cost of restoration and repair should fall. Once again, this Court has found no case precisely on point. However, in Buhl v. Sandy Springs Medical Center, 147 Ga.App. 176, 248 S.E.2d 238 (1978), a tenant removed fixtures upon the expiration of a lease. The tenant was held to owe damages for the "cost to repair or restore the building to its condition before the injury." 147 Ga. App. 176, 248 S.E.2d 238. This case is not exactly analogous because apparently the tenant had installed the fixtures in that case. Here, Cap's has installed the fixtures in question. However, it has done so with at least the tacit assent of the debtor. While Mr. Eady, the debtor's President, testified that the lease was "use" only, it is clear that both parties intended that the property be installed in the premises at Cap's Tavern and that it eventually be sold to the defendant. The defendant acted in good faith when it installed the property and has not defaulted upon the lease. This Court finds that the costs of renovation and restoration after removal of the property in question should fall upon the estate. Therefore, the trustee's demand for judgment in the amount of $2,000 is denied.
ORDER
It is ORDERED and ADJUDGED that the claim of the trustee is superior to any claim of Mrs. Dickman and therefore the trustee may sell the claimed property free and clear of any lien alleged to arise from the interest of Mrs. Dickman.
It is FURTHER ORDERED and ADJUDGED that the security interests of defendant Hulsey, perfected by fixture filings, are superior to the claims of the trustee as to the sinks and updraft units in question and that the trustee must deliver said sinks and updraft units or the proceeds from any sale thereof to defendant Hulsey. The trustee shall sell any other property of the estate free and clear of any liens claimed by defendant Hulsey.
It is FURTHER ORDERED and ADJUDGED that the petition for abandonment of property by defendant Cap's shall be and is denied. Defendant Cap's shall deliver possession of all property of the above-referenced estate to the trustee at the premises of Cap's Tavern with all costs of removal, renovation and restoration after removal to fall upon said estate.
IT IS SO ORDERED.
NOTES
[1] Wade v. Johnson, 25 Ga. 331 (1858); Sawyer v. Foremost Dairy Products, Inc., 179 Ga. 809, 177 S.E. 584 (1934); International Clay Machinery Co. v. Moultrie Banking Co., 34 Ga. App. 396, 129 S.E. 877 (1925); Babson Credit Plan v. Cordele & Ass'n, 146 Ga.App. 266, 246 S.E.2d 1354 (1978). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/539837/ | 900 F.2d 779
30 Fed. R. Evid. Serv. 78
UNITED STATES of America, Plaintiff-Appellee,v.Henry TAYLOR, Defendant-Appellant.
No. 89-5158.
United States Court of Appeals,Fourth Circuit.
Argued Jan. 12, 1990.Decided April 10, 1990.
Hunt Lee Charach, Asst. Federal Public Defender (argued), Ira R. Kirkendoll, Federal Public Defender, on brief, Charleston, W. Va., for appellant.
Sanford Benjamin Bryant, Asst. U.S. Atty. (argued), Michael W. Carey, U.S. Atty., on brief, Huntington, W. Va., for appellee.
Before RUSSELL and WIDENER, Circuit Judges, and HOFFMAN, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
WIDENER, Circuit Judge:
1
Henry Taylor was convicted of possessing dilaudid1 with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Taylor appeals, arguing that the government improperly bolstered the credibility of its paid informant with inadmissible extrinsic evidence and improper jury argument; that the district court erred in permitting the government to produce evidence that Taylor was targeted for investigation because of anonymous complaints that Taylor was a dilaudid dealer; and that the district court erred in denying Taylor's motion for a directed verdict because of insufficient evidence identifying the defendant in the courtroom as the perpetrator of the crime. We are of opinion that there was improper bolstering and that the district court erred in admitting evidence as to why Taylor was targeted. We vacate and remand for a new trial.
2
In early May 1988, Donald Black, a member of the Huntington, West Virginia Police Department, began using Tony Phillips as a paid informant. Phillips, on July 18, 1988, informed Black that he had set up a dilaudid purchase from Henry Taylor. Later that day, Black met Phillips, placed a transmitter on him, gave him $1,650 to buy the dilaudid, drove him to downtown Huntington, and permitted him to leave the vehicle unescorted. Phillips then walked away, out of Black's sight, to a place approximately two blocks away from Black. Some thirty minutes later, Phillips returned to Black's car with 292 dilaudid tablets.
3
At trial, the government introduced the tape which turned out to be about eight minutes long and was largely inaudible. Phillips had control of the transmitter which had an on/off switch.3
4
The government also relied on the testimony of Officer Black. Officer Black testified that he did not see Taylor. Neither did he see the drug transaction take place. On direct examination, Black told how he had met Phillips and how Phillips had acted as a buyer for the government on 15 to 18 drug buys. On cross examination, Black first testified that he was not aware of Phillips using drugs at any time while he acted as an informant; later, however, defense counsel was able to get Black to admit that he knew that during the time that Phillips was an informant that Phillips used some of the money he was paid for being an informant to buy himself illegal drugs. On cross examination, defense counsel also asked Black whether he had suggested Taylor's name to Phillips. On redirect examination, over objection, Black testified that Phillips had given reliable information in a particular case which resulted in the seller's conviction. Black further testified that several others either pleaded guilty or were convicted as a result of Phillips' testimony. Continuing on redirect, over objection, the government asked Black why he had targeted Taylor. In answering, Black testified that Taylor's name had come up in anonymous complaints as a dilaudid dealer.
5
Phillips also testified for the government. He testified that he purchased the dilaudid from Taylor. Phillips' testimony was the only direct testimony of Taylor's guilt.
6
During closing argument, the government emphasized Black's testimony to bolster Phillips' credibility, that Phillips had provided reliable information and testimony in the past that had led to convictions. Government counsel also stated that "Tony Phillips is not lying in this business." The jury returned a verdict of guilty and Taylor appeals.
7
Taylor's first argument on appeal is that the government improperly bolstered the credibility of Phillips with extrinsic evidence and improper jury argument. Taylor argues that there were three improper actions by government counsel in bolstering Phillips' credibility. First, he argues that it was error for the district court to admit extrinsic evidence that the informer, Phillips, had provided reliable information and testimony that resulted in several convictions, in order to bolster Phillips' credibility. We agree. Fed.R.Evid. 608(b) says that "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility ... may not be proved by extrinsic evidence." The case of United States v. Austin, 786 F.2d 986, 991-92 (10th Cir.1986), is on point. In Austin, the court rejected the government's argument that it should be able to introduce the criminal conviction of the defendant's co-conspirators in order to rehabilitate the government's principal witness. The court said that under the pertinent case law and rules "it is the testifying witness' own prior conviction that is admissible on cross-examination to impeach his credibility or on redirect to rehabilitate him.... We have found no case, and the government has not cited one, in which a conviction other than that of the witness himself was properly admitted on the issue of his credibility." Austin, 786 F.2d at 992 (citation deleted) (emphasis in original). Another case on similar facts is United States v. Napue, 834 F.2d 1311, 1324-25 (7th Cir.1987), where the court decided that the government's attempt to bolster the credibility of government witnesses by saying their previous testimony resulted in convictions of other defendants was improper. We agree with the Tenth and Seventh Circuits and hold that the admission of other convictions in cases in which Phillips had testified was error.
8
The second action that Taylor argues was improper was the government's use of the convictions in closing argument.4 Having found that it was improper for the district court to have allowed the government to introduce the evidence of the other convictions in the first place, we believe that it only made the error more prejudicial when the government emphasized it in closing argument. We also do not agree with the gist of the government's argument, that since other juries believed Phillips, the current jury should believe him also. This argument is improper because the current jury is to determine the witness' credibility. It may not rely on assumed findings of previous juries in different cases.5
9
The third action by government counsel to bolster Phillips' credibility, which Taylor argues was improper, was that the government counsel personally vouched for Phillips' credibility. In closing, as set out herein in n. 4, government counsel said "Tony Phillips is not lying in this business." While the direct expression of an advocate's opinion as to the veracity of a witness is prohibited, United States v. Moore, 710 F.2d 157, 159 (4th Cir.), cert. denied, 464 U.S. 862, 104 S.Ct. 192, 78 L.Ed.2d 169 (1983), even if the statement in issue in the context in which it was made is a direct expression of the attorney's opinion on credibility, which is doubtful, there was no contemporaneous motion for a mistrial, so we do not consider the question on appeal.
10
Next, Taylor argues that it was improper for the district court to permit Black to testify that he targeted Taylor because of anonymous complaints that Taylor was a dilaudid dealer. The First Circuit, in United States v. Lamberty, 778 F.2d 59, 61 (1st Cir.1985), faced the same issue on almost the same facts6 as here and held:
11
We do not find that the evidence introduced to show the government's motive in setting the trap is in any way relevant to proving the elements of the counts charged. While the jurors may have been curious as to why the inspectors began their operation, enlightenment on this matter had no probative value.
12
To compound the problem of its total irrelevancy, the testimony directly linking Lamberty to the prior thefts was highly prejudicial.
13
We agree with the First Circuit and hold that the reason Taylor was targeted was not relevant to Taylor's guilt. To be admissible, evidence must be relevant. Fed.R.Evid. 402. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Why Black caused Taylor to be investigated does not make it more or less probable that Taylor sold drugs to Phillips. Additionally, the fact that Black received anonymous complaints that Taylor was a dilaudid dealer was highly prejudicial.7
14
Taylor's final argument is that the district court erred in denying Taylor a directed verdict based on the insufficiency of the identification evidence since the government presented no evidence which identified the defendant in the courtroom as the perpetrator of the offense. A witness need not physically point out a defendant so long as the evidence is sufficient to permit the inference that the person on trial was the person who committed the crime. Delegal v. United States, 329 F.2d 494 (5th Cir.1964); see United States v. Darrell, 629 F.2d 1089, 1091 (5th Cir.1980). A review of the record discloses that there was ample evidence for the jury to infer that the Henry Taylor at the defense table was the same Henry Taylor who committed the crime. Phillips testified extensively about his earlier contacts with Taylor and about purchasing the drugs from Taylor. The jury could reasonably infer that the Henry Taylor that Phillips knew and purchased drugs from was the Henry Taylor who stood trial.
15
Having determined that the district court erred both in allowing the improper bolstering of Phillips' credibility and allowing into evidence the reasons as to why Black targeted Taylor, we must now decide if the error resulted in sufficient prejudice to require a new trial. The government relies heavily on the tape as corroboration of Phillips' testimony. However, having reviewed the tape, we do not view it as very probative of the events which took place at the controlled buy. Many parts of the tape are largely inaudible and the difference between the eight-minute tape and Phillips' 30-minute absence remains unexplained. Since Officer Black saw none of the transaction, Phillips was the key to any case the government had against Taylor. Whether the jury found Taylor guilty or innocent depended almost exclusively on whether it believed Phillips. Especially since Phillips was the key witness, improper bolstering of his credibility could only have been quite prejudicial to Taylor. Additionally, the irrelevant evidence admitted as to why Black targeted Taylor added to the prejudice. On the whole case, we are unable to say that "the conviction is sure that the error did not influence the jury, or had but very slight effect"; neither can we say "with fair assurance ... that the judgment was not substantially swayed by the error." Kotteakos v. United States, 328 U.S. 750, 764, 765, 66 S.Ct. 1239, 1248, 1248, 90 L.Ed. 1557 (1946).
16
The conviction must be vacated and the case remanded for a new trial.
17
VACATED AND REMANDED FOR A NEW TRIAL.
1
Dilaudid is a trademark of a brand of dihydromorphinone hydrochloride which is prepared from morphine yet stronger and used to control pain. Schmidt's Attorney's Dictionary of Medicine, 1986
2
According to the earlier arrangements, Phillips was to purchase 30 tablets of dilaudid for $1,650
3
Black testified that it would have been difficult for Phillips to turn the transmitter off because it was on his back and the switch was taped on. It is unclear and not explained as to why the tape was so much shorter than the time Phillips was away from Black
4
The government, in relevant part, said the following about Phillips' credibility:
Whatever you think of the man, he stuck his neck out and made controlled buys from at least 15 different drug dealers, and that information has consistently proven reliable. And you heard testimony about the Fox case and whatever Tony had done or not done in that case. Not that that has anything to do with this defendant, the point is did Tony Phillips lie about this Fox business? No, he did not because Mr. Fox was convicted, as you heard from the evidence. Now, that has nothing to do with Henry Taylor. What it has to do with is a rebuttal to Ira Kirkendoll's suggestion that Tony Phillips is unreliable. Tony Phillips is not lying in this business.
5
There is no way to know, for example, whether the previous juries believed Phillips, or disbelieved Phillips, but nevertheless convicted the defendants on other evidence
6
The government baited a trap for a thieving postmaster because "[t]he information we had received was that ... [the postmaster] was taking out packages...."
7
Finding no relevance in the evidence at all, we do not consider whether the evidence, though relevant, should have been excluded under Fed.R.Evid. 403 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/586381/ | 968 F.2d 768
UNITED STATES of America, Appellee,v.Ronald Lester JOHNSON, Appellant.
No. 91-3719.
United States Court of Appeals,Eighth Circuit.
Submitted April 15, 1992.Decided July 10, 1992.
Alfredo Parrish, Des Moines, Iowa, argued (Andrew J. Dunn, on the brief), for appellant.
Linda R. Reade, Des Moines, Iowa, argued (Gene W. Shepard and Ronald M. Kayser, on the brief), for appellee.
Before J. GIBSON, Circuit Judge, PECK,* Senior Circuit Judge, and BEAM, Circuit Judge.
JOHN W. PECK, Senior Circuit Judge.
1
Ronald Johnson appeals from a guilty verdict in the district court1 on one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846 and two counts of distribution of methamphetamine in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. § 2. Johnson challenges his conviction and sentence on the grounds of insufficiency of the evidence, prosecutorial misconduct, and the district court's application of the Sentencing Guidelines. For the reasons stated below, we reverse and remand for a new trial.
I. FACTS
2
Police informant Jerry Harland purchased methamphetamine from Eric Baxter on several occasions. On September 24, 1991, during a meeting to arrange a purchase, Baxter informed Harland that his source for methamphetamine was appellant Ronald Johnson. Harland returned the next day to purchase the methamphetamine and Baxter told him that it had been supplied by Johnson. Baxter also told Harland to return later in the day because Johnson was going to arrange for Harland to purchase half a gram of methamphetamine. On October 3, 1990, Harland, accompanied by Special Agent Jerry Nelson, again met with Baxter to purchase methamphetamine. Harland, Nelson, and Baxter proceeded to Johnson's home. Baxter took the purchase money into Johnson's house and returned with half a gram of methamphetamine. Baxter told Harland that Johnson had given him a quarter gram of methamphetamine for arranging the purchase. On October 11, 1990, Harland and Agent Nelson returned to Baxter's residence for another drug purchase. The three men again went to Johnson's house and purchased four ounces of methamphetamine.
3
Johnson was indicted on one count of conspiracy to distribute methamphetamine and two counts of distribution of methamphetamine for the October purchases. Johnson pled not guilty and proceeded to trial. He was found guilty on all three counts and sentenced to 72 months imprisonment. He now appeals both his conviction and his sentence.
II. PROSECUTORIAL MISCONDUCT
4
We address Johnson's claim of prosecutorial misconduct first because our disposition of this issue makes it unnecessary to review Johnson's other challenges. During rebuttal closing argument, the prosecutor stated:
5
[The defense attorney] says your decision to uphold the law is very important to his client. Your decision to uphold the law is very important to society. You're the people that stand as a bulwark against the continuation of what Mr. Johnson is doing on the street, putting this poison on the street.
6
Johnson objected on the grounds that the comment was likely to arouse the jury's passion and prejudice. The district court overruled the objection. Johnson moved for a mistrial. In denying the motion, the judge stated that he did not find "the comments were either designed to nor intended to, nor did they cause the jury to let any emotions or passion enter into their deliberations...." Johnson also made motions for judgment of acquittal and a new trial which were denied. On appeal, Johnson alleges that the prosecutor's remarks were so prejudicial that he was deprived of a fair trial.
7
It is well established that prosecutorial misconduct in closing arguments may result in the reversal of a conviction. United States v. Norton, 639 F.2d 427 (8th Cir.1981). However, the trial court has broad discretion in controlling closing arguments and this court will not reverse absent a showing of abuse of discretion. United States v. Segal, 649 F.2d 599, 604 (8th Cir.1981). The facts of each case must be examined independently to determine if the prosecutor's remarks were unduly prejudicial to the defendant. United States v. Splain, 545 F.2d 1131, 1135 (8th Cir.1976). The conviction will be reversed if this court ascertains that the jury verdict could reasonably have been affected by the prosecutor's improper comments. Id. This court has set forth a two-part test for reversible prosecutorial misconduct:
8
(1) the prosecutor's remarks or conduct must in fact have been improper, and (2) such remarks or conduct must have prejudicially affected the defendant's substantial rights so as to deprive the defendant of a fair trial.
9
United States v. Hernandez, 779 F.2d 456, 458 (8th Cir.1985).
10
In this case, the prosecutor exhorted the jurors to "stand as a bulwark against the continuation of what Mr. Johnson is doing on the street, putting this poison on the streets." This court has held that "[u]nless calculated to inflame, an appeal to the jury to act as the conscience of the community is not impermissible...." United States v. Lewis, 547 F.2d 1030, 1037 (8th Cir.1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977). However, after reviewing precedent from the United States Supreme Court and the circuit courts, we conclude that the prosecutor's remarks in this case were unduly inflammatory and improper.
11
More than fifty years ago, the United States Supreme Court established that prosecutors' conduct will be held to high standards. In Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the Government prosecutor's misconduct included misstating facts during cross-examination, bullying witnesses, and making improper insinuations and assertions calculated to mislead the jury during closing argument. The Court stated that a prosecutor is not representing an ordinary party, but a sovereignty whose interest in a criminal prosecution is to see that justice is done. Id. at 88, 55 S.Ct. at 633. The Court noted that jurors are likely to expect the prosecutor to faithfully fulfill his obligations. Id. Thus, "improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none." Id.
12
Several years later in Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734 (1943), the Court again addressed prosecutorial misconduct in relation to closing arguments. Viereck involved the conviction of an individual who failed to disclose certain material facts on a State Department registration form for agents representing foreign principals during World War II. In his closing argument, the prosecutor emphasized the fact that America was involved in a "harsh, cruel, murderous war." Id. at 247 n. 3, 63 S.Ct. at 566. He then stated:
13
The American people are relying upon you ladies and gentlemen for their protection against this sort of crime, just as much as they are relying upon the protection of the Men who man the guns in Bataan Peninsula, and everywhere else.
14
Id. While the Court reversed on other grounds, it specifically stated that the remarks were irrelevant to the facts or issues of the case and had the purpose and effect of arousing passion and prejudice. Id. at 247, 63 S.Ct. at 566. The Court concluded that the remarks prejudiced the petitioner's right to a fair trial. Id.
15
This court has also recognized the problem of improper statements in closing arguments and admonished prosecutors to stay within the proper bounds of their adversarial roles. United States v. Lee, 743 F.2d 1240, 1253 (8th Cir.1984) (citing Llach v. United States, 739 F.2d 1322, 1336 (8th Cir.1984)). In Lee, the prosecutor made improper statements and injected his personal opinion. For instance, the prosecutor stated:
16
All the drug smugglers around should be told by your actions that bringing in marijuana is wrong.
17
* * * * * *
18
What you do as jurors is going to be watched here. You can better believe that each and every drug smuggler is watching what happens here today.
19
Lee, 743 F.2d at 1252-53. This court ruled that the argument constituted "an emotional appeal calculated to persuade the jury to decide the case on other than the facts before it." Id. at 1253. Furthermore, the court ruled that the argument as a whole was reversible error with regard to one of the defendants.
20
Similar arguments resulted in a reversal in United States v. Solivan, 937 F.2d 1146 (6th Cir.1991). In Solivan, the prosecutor urged the jury "to tell [the defendant] and all of the other drug dealers like her that we don't want that stuff in Northern Kentucky...." Id. at 1148. The court found these remarks to be analogous to the ones in Viereck because in each case the prosecutor improperly appealed to national or community interests of the jurors. Id. at 1152. Just as the country was embroiled in World War II when Viereck was tried, it is now "in the midst of an ongoing crisis, popularly termed the 'War on Drugs.' " Id. at 1153. The prosecutor's comments suggested that if the defendant was not convicted, the drug problem in the jurors' community would continue unabated. The court concluded that "[i]t is error for a prosecutor to direct the jurors' desires to end a social problem toward convicting a particular defendant." Id. at 1153.
21
The District of Columbia Circuit in United States v. Monaghan, 741 F.2d 1434 (D.C.Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985), eloquently expressed the same principle by stating:
22
A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence. Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of society's woes is far too heavy a burden for the individual criminal defendant to bear.
23
Id. at 1441. In another case, the court stated that prosecutors are not "at liberty to substitute emotion for evidence by equating, directly or by innuendo, a verdict of guilty to a blow against the drug problem." United States v. Hawkins, 595 F.2d 751, 754 (D.C.Cir.1978), cert. denied, 441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 380 (1979).
24
Clearly, the drug problem is a matter of great concern in this country today. This court is sympathetic to prosecutors' vigorous efforts to prosecute participants in the drug trade. However, we are in agreement with the precedent cited above that the pressing nature of the problem does not give prosecutors license to encumber certain defendants with responsibility for the larger societal problem in addition to their own misdeeds. We conclude that by urging the jury to act as a "bulwark against ... putting this poison on the streets," the prosecutor in this case appealed to the jurors to be the conscience of the community in an improper and inflammatory manner.
25
Having determined that the comment was improper, this court must decide whether the conduct, viewed in the context of the entire trial, was so offensive that it deprived the defendant of a fair trial. Hernandez, 779 F.2d at 460. In determining the prejudicial effect of prosecutorial misconduct, this court considers three factors:
26
(1) the cumulative effect of such misconduct; (2) the strength of the properly admitted evidence of the defendant's guilt; and (3) the curative actions taken by the trial court.
27
Id.
28
Prejudice sufficient to warrant reversal may result from the cumulative effect of repeated improper comments by the prosecutor. Berger, supra; Hernandez, 779 F.2d at 460. The conduct in question here involved only one remark by the prosecutor. However, " 'a single misstep' on the part of the prosecutor may be so destructive of the right to a fair trial that reversal is mandated." Solivan, 937 F.2d at 1150.
29
With regard to the strength of the evidence, this court has stated:One important factor to consider in determining whether a closing argument is so prejudicial to require reversal of the conviction is the amount of evidence indicating defendant's guilt. If the evidence of guilt is overwhelming, an improper argument is less likely to affect the jury verdict. On the contrary, if the evidence of guilt is weak or tenuous, the existence of prejudice is more easily assumed.
30
Splain, 545 F.2d at 1135 (citations omitted).
31
In the present case, the evidence of Johnson's guilt is far from overwhelming. The trial judge conceded that the evidence of conspiracy was "rather thin." Furthermore, there is no direct evidence that Johnson was involved in the October 3rd drug transaction. Although Eric Baxter delivered drugs to the informant outside Johnson's house on that occasion, Johnson was not actually seen. Certainly, a jury could reasonably infer that Baxter received the drugs from Johnson inside the house. In the absence of improper remarks by the prosecutor, we would find the evidence sufficient to sustain Johnson's conviction. However, under the circumstances, we must consider the impact of the prosecutor's improper comments on the jury. Given the fear and concern engendered by the national drug epidemic, we conclude it is likely that the prosecutor's comment urging the jury to strike a blow against the problem and the emotion it stirred "influenced the jury by diverting its attention away from its task to weigh the evidence and submit a reasoned decision...." Solivan, 937 F.2d at 1153. Where the prosecutor's remarks are improper and the evidence is marginal, the conviction will be reversed. See, Splain, 545 F.2d at 1135-36.
32
Finally, there was no curative instruction given. In light of the foregoing discussion, we cannot conclude that the standard instructions were sufficient to cure the error. We agree with the rationale expressed in Newlon v. Armontrout, 885 F.2d 1328, 1337 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990):
33
The State's argument that the standard jury instruction that statements made by counsel during opening and closing argument are not evidence cures any error made by the prosecutor is without merit. Such a broadly sweeping rule would permit any closing argument, no matter how egregious.
III. CONCLUSION
34
Thus, we conclude that the prosecutor's comments constitute an error prejudicial to Johnson's right to a fair trial. While not all constitutional errors require reversal, "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). In light of the tenuous nature of the evidence and the lack of a curative instruction, combined with the fear and concern attendant upon the national drug problem, we cannot declare that the error was harmless beyond a reasonable doubt. Thus, we conclude that the district court abused its discretion in denying Johnson's motion for a mistrial. Accordingly, Johnson's conviction and sentence are reversed and remanded for a new trial.
*
The HONORABLE JOHN W. PECK, Senior United States Circuit Judge for the Sixth Circuit Court of Appeals, sitting by designation
1
The Honorable Charles R. Wolle, United States District Judge for the Southern District of Iowa | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/696580/ | 55 F.3d 943
68 Fair Empl.Prac.Cas. (BNA) 163, 130 Lab.Cas.P 33,240,100 Ed. Law Rep. 848
Thurza STRAG, Plaintiff-Appellant,v.BOARD OF TRUSTEES, Craven Community College; CravenCommunity College, Defendants-Appellees (Two Cases).
Nos. 94-2170, 94-2288.
United States Court of Appeals,Fourth Circuit.
Argued March 9, 1995.Decided June 1, 1995.
ARGUED: David Peter Voerman, Voerman & Carroll, P.A., New Bern, NC, for appellant. William Joseph Austin, Jr., Ward & Smith, P.A., New Bern, NC, for appellees. ON BRIEF: S. McKinley Gray, III, Ward & Smith, P.A., and James R. Sugg and Elliot Zemek, Sumrell, Sugg, Carmichael & Ashton, P.A., New Bern, NC, for appellees.
Before MURNAGHAN and HAMILTON, Circuit Judges, and SPROUSE, Senior Circuit Judge.
Affirmed by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge HAMILTON and Senior Judge SPROUSE joined.
OPINION
MURNAGHAN, Circuit Judge:
1
On September 2, 1993, Appellant, Thurza Strag ("Strag") initiated an action against Appellee, Craven Community College (the "College"), under the Equal Pay Act, 29 U.S.C. Sec. 206(d)(1), in the United States District Court for the Eastern District of North Carolina. Strag alleged that the substantial discrepancy between her salary and that of her selected male comparator, Linwood "Buddy" Swain ("Swain"), was based on gender differences, and thus violative of the Equal Pay Act.
2
After discovery, the College filed a motion for summary judgment, supported by 47 affidavits. On June 29, 1994, Strag filed a motion for an extension of time to respond to the College's motion for summary judgment. The district court denied the motion on the ground that any delay in discovery was due to Strag's own actions, and that extension was therefore unjustified. Strag accordingly filed a response to the College's summary judgment motion on July 5, 1994, and the College filed a reply brief on July 15, 1994.
3
Before the district court ruled on the motion for summary judgment, Strag filed, on July 27, 1994, a "Supplemental Brief in Support of Plaintiff's Response," and an "Argument Incorporating Material Subject to Consent Protective Order." Two days later, the College filed an objection to the supplemental filings on the ground that the filings were not authorized by any procedural rule or court order, and that they defied the district court's previous order denying Strag's motion for an extension of time. On August 11, 1994, the district court struck Strag's supplemental filings and granted summary judgment in favor of the College. The district court also entered an order asking Strag to show cause why she should not be sanctioned for the unauthorized filings. On September 6, 1994, the court entered an order stating that Strag had failed to show cause why sanctions should not be imposed, and on September 26, awarded the College $2,085 in attorneys' fees.
4
On September 7, 1994, Strag filed a notice of appeal from the district court's order granting summary judgment to the College. On October 5, 1994, Strag filed a notice of appeal from the Court's award of attorneys' fees. The appeals were consolidated for briefing on October 12, 1994.
Factual Background
5
The instant action was brought by Strag pursuant to the Equal Pay Act, 29 U.S.C. Sec. 206(d)(1), against Craven Community College. In her complaint, filed in the United States District Court for the Eastern District of North Carolina, Strag alleged that she was paid a salary substantially lower than that paid to her selected job comparator, a male biology instructor named Linwood "Buddy" Swain, based on her gender. Strag had been employed by the College as a mathematics instructor since September 1, 1987.
6
Instructors are paid by the College according to the College's Salary Plan. Instructors are usually employed "on scale," which means that their salaries are determined by a formula that takes into account a base salary, educational status, and years of work experience. The College's Salary Plan, however, also contains a "Special Salary Designation," which allows the College to employ an individual with highly exceptional qualifications at a salary above the usual "on scale" calculation. The provision allows the College to go "off scale" when it cannot obtain an exceptionally qualified teacher's services with an ordinary "on scale" salary.
7
Both Strag and Swain possessed masters degrees when they were hired by the College in 1987. Strag's starting salary at the College was $16,200, a somewhat lower wage than she earned at her prior position as a teacher at the East Carolina University, where she had earned $17,220 a year. Strag stated in her deposition that she took the "on scale" salary at the College, despite that small pay cut, because she did not want to continue making a one hundred-mile-a-day commute from her home to East Carolina University. Swain's starting salary at the College, by contrast, was $33,000, a slightly higher salary than the $28,931 he had earned at his prior job as a high school biology teacher at the New Bern High School. If Swain had continued as a teacher at the New Bern High School for the 1987-88 school year, his salary would have exceeded $30,000.
8
At the time that both Swain and Strag were hired by the College, Swain was very well-known in the County, and was tenured in the public schools by virtue of his years of service. Indeed, as of 1987, Swain had twenty-four continuous years of teaching experience, the last twenty at the New Bern High School. Strag, by contrast, had only nine years of teaching experience at the college level. Swain had established an excellent reputation by the time that he applied for a job with the College. For example, Swain was honored as the Outstanding Biology Teacher in the State of North Carolina in 1971 by the National Association of Biology Teachers, and was well known in the community for his innovative teaching methods. Indeed, many of his supporters, students, and fellow faculty members submitted affidavits in support of the College's motion for summary judgment stating that Swain's skills as a teacher were extraordinary, and were in fact comparable to, if not better than, the skills of university teachers.
9
The hiring of instructors at the College generally takes place pursuant to a standardized procedure developed in accordance with the affirmative action plan developed by the College. Specifically, the College advertises vacancies in full-time faculty positions by public announcement, and allows thirty days for the job applicants to submit applications. In the spring of 1987, the College published a notice of a job opening for a biology teacher. Buddy Swain became aware of the opening, and contacted Dr. Steve Redd, the Dean of the College. At that time, Swain expressed to Redd that he would not accept a position with the College for a pay lower than what he would have received at New Bern High School for the 1987-88 school year, a salary of at least $30,000. It thus became clear to the College that it would have to invoke its "Special Salary Provision" if it wished to hire Swain.
10
The College's Special Salary Provision provides that the College, on certain occasions, can waive the "on scale" Salary Plan salary in order to hire individuals with highly exceptional qualifications. In particular, the Special Provision states:
11
On rare occasions, it may be necessary for the College to seek or retain an employee with highly exceptional qualifications. In these extreme cases, the salary plan may not allow the College to pursue its objective to employ on a competitive basis. In these instances, the president may grant permission to waive the provisions of the salary plan. Such arrangements, including actual salary, would be subject to affirmative recommendation and approval by the College President and Chairman of the College Board of Trustees. This will be documented by memorandum and signatures to the appropriate department head.
12
The Special Provision, however, contained no guidelines as to how a special "off scale" salary would be set.
13
Pursuant to the Special Salary Provision, the College offered Swain a starting annual salary of $33,000. Swain accepted the offer, and began working for the College in September of 1987. Dr. Redd stated in his deposition that the decision to hire Swain was based on his excellent reputation, and on the hope that having Swain on the faculty might help the College recruit more students. At the time he was hired, Swain was therefore paid much more than most teachers at the College, including Jonathan Pharr, the Chairperson of the Science Department.
14
On September 2, 1993, Strag filed a complaint in the United States District Court for the Eastern District of North Carolina under the Equal Pay Act, 29 U.S.C. Sec. 206(d)(1), seeking back pay and injunctive relief. Strag selected Swain as her sole job "comparator" for purposes of her claim. The College answered her complaint, defending on the ground that Strag and Swain were not engaged in work that required similar skill, effort, or responsibility, and that the disparity between their salaries was thus justified on the ground that Swain was an exceptionally qualified instructor and that he had the additional responsibility of teaching lab classes. The College put forth evidence that since joining the faculty, Swain had taught biology lecture classes, biology labs, and independent study classes, as well as general biology courses to students enrolled in the North Carolina Wesleyan College program at the College. Moreover, Swain had several times instructed other faculty at the College in his unique, multimedia approach to teaching biology for which he had become well known.
15
After extensive discovery, the College filed a motion for summary judgment, supported by 47 affidavits and supplementary materials. On June 29, 1994, Strag filed a motion for an extension of time to respond to the motion for summary judgment. The district court denied the motion on the ground that any delay in discovery was caused by Strag. Strag accordingly filed a response to the College's summary judgment motion on July 5, 1994, and the College filed a reply brief on July 15, 1994.
16
Before the district court ruled on the motion for summary judgment, Strag filed, on July 27, 1994, a "Supplemental Brief in Support of Plaintiff's Response," and an "Argument Incorporating Material Subject to Consent Protective Order." Two days later, the College filed an objection to the supplemental filings on the ground that the filings were not authorized by any procedural rule or court order, and that the filings defied the court's previous order denying Strag's motion for extension of time. On August 11, 1994, the district court struck Strag's supplemental filings from the record and granted summary judgment in favor of the College. The district court also entered an order asking Strag to show cause why she should not be sanctioned for the unauthorized filings. On September 6, 1994, the court entered an order finding that Strag had failed to show cause why sanctions should not be imposed upon her, and accordingly awarded the College the $2,085 in attorneys' fees that it had incurred in responding to Strag's unauthorized supplemental filings.
17
On September 7, 1994, Strag filed a notice of appeal from the district court's order of summary judgment. On October 5, 1994, Strag filed a notice of appeal from the Court's September 6th order awarding attorneys' fees. The appeals were consolidated for briefing on October 12, 1994.
I. Grant of Summary Judgment To the College
18
Strag first contends, on appeal, that the district court erred in granting summary judgment to the College, arguing that the district court "improperly invaded the province of the jury by essentially making findings of fact in favor of the College." The College argues, in response, that summary judgment was appropriately granted because (1) Swain was not a proper "comparator" for Strag's Equal Pay Act claim, and (2) the wage differential between Strag and Swain was based on factors other than gender, and was thus not actionable under the Equal Pay Act. Because Strag failed to put forth a proper prima facie case under the Equal Pay Act, and because the College sufficiently bore its burden of setting forth convincing genderneutral justifications for the salary disparity between Swain and Strag, we affirm.
The Equal Pay Act provides:
19
No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex....
20
29 U.S.C. Sec. 206(d)(1) (emphasis added).
21
This Court has held that in order to establish a prima facie case under the Equal Pay Act, the plaintiff bears the burden of showing that she (1) receives lower pay than a male co-employee (2) for performing work substantially equal in skill, effort, and responsibility under similar working conditions. The comparison must be made "factor by factor with the male comparator." Houck v. Virginia Polytechnic Institute, 10 F.3d 204, 206 (4th Cir.1993). Additionally, the plaintiff must identify a particular male "comparator" for purposes of the inquiry, and may not compare herself to a hypothetical or "composite" male. Id. This Court has held, moreover, albeit in dicta, that, in setting forth a prima facie case,
22
isolated incidents or random comparisons demonstrating disparities in treatment may be insufficient to draw a prima facie inference of discrimination without additional evidence that the alleged phenomenon of inequality also exists with respect to the entire relevant group of employees.
23
Id. at 206-07 (emphasis added).
24
Once a plaintiff has sufficiently established a prima facie case of salary discrimination against her employer under the Equal Pay Act, the burden then shifts to the employer to prove, by a preponderance of evidence, that the pay differential is justified by the existence of one of the four statutory exceptions set forth in Sec. 206(d)(1): (1) a seniority system, (2) a merit system, (3) a system that measures earnings by quantity or quality of production, or (4) a differential based on any factor other than sex. Id. at 207. See also Fowler v. Land Management Groupe, Inc., 978 F.2d 158, 161 (4th Cir.1992). If this burden is successfully carried by the employer, the plaintiff's claim must fail unless the plaintiff can satisfactorily rebut the defendant's evidence.
25
In Soble v. University of Maryland, 778 F.2d 164 (4th Cir.1985), this Court addressed the first step in bringing an Equal Pay Act action--establishing a prima facie claim--in a case that presented itself in much the same procedural posture as the instant case. In Soble, the district court had granted summary judgment to the University of Maryland in a case in which Soble, a female assistant professor, brought an action against the University under the Equal Pay Act because she was denied a salary equal to that paid to male faculty members who also held the rank of assistant professor at the University. 778 F.2d at 167. In affirming the grant of summary judgment in favor of the University, we held that Soble had failed to establish a prima facie case because, although she demonstrated the existence of a salary disparity, she failed for three reasons to show that she performed work substantially equal in skill, effort, and responsibility to her male comparators. Id. First, the Court found that Soble, by comparing her salary with salaries of teachers in other departments, failed to make an appropriate wage comparison for the purpose of establishing a prima facie case under the Equal Pay Act; in particular, the Court found that the other departments in the university required distinctive skills, thus "foreclosing any comparison Soble might make." Id. Second, the Court, in comparing Soble's skills to that of other assistant professors in her own department, found that she, unlike the other professors, did not hold a degree in dentistry, and instead held degrees only in sociology and social work; thus, Soble lacked a proper basis on which to make a salary comparison. Id. Finally, the Court held that the only other non-dentist in Soble's department, a male, had a masters in business administration, taught dental management, and carried a considerably heavier teaching load than did Soble. Id. Accordingly, the Court, finding that Soble could not "rest on the bare allegation in her complaint that she is receiving lower pay for work comparable to that performed by male members of the dental faculty," found that a prima facie case was not properly established. Id. Indeed, the Court affirmed the grant of summary judgment in favor of the University on the ground that even viewing the evidence in the light most favorable to Soble, there existed no genuine issue of material fact suggesting that the salary differential in that case was based on gender discrimination. Id.
26
In Equal Employment Opportunity Commission v. Aetna Insurance Co., 616 F.2d 719 (4th Cir.1980), we addressed the second prong of a court's inquiry under the Equal Pay Act--i.e., even if a prima facie case is sufficiently set forth, whether the defendant has properly shown by a preponderance of evidence that the pay differential is motivated by any factor other than sex. In the case, a female insurance writer claimed that she was paid less than a male co-employee because of gender discrimination. 616 F.2d at 720. This Court, in finding that the district court had correctly held that the salary differential was based on a factor other than sex, described the scope of the four statutory "exceptions" to the Equal Pay Act, in particular addressing the most general exception for salary differentials based on any "other factor other than sex":
27
Three specific exceptions and one broad general exception are [ ] listed. It is the intent of this committee that any discrimination based upon any of these exceptions shall be exempted from the operation of this statute. As it is impossible to list each and every exception, the broad general exclusion has been also included. Thus, among other things, shift differentials, restrictions on or differences based on time of day worked, hours of work, lifting or moving heavy objects, differences based on experience, training, or ability would also be excluded.
28
Id. at 725 (emphasis in original), quoting H.R.Rep. No. 309, 88th Cong., 1st Sess. 3, U.S.Code Cong. & Admin.News 1963, p. 687. Under this analysis, the Court found that the differential compensation system in that case was sufficiently based on factors other than sex--in particular, experience and background--such that an Equal Pay Act violation was not made out. Id. at 726. Specifically, the Court stated:
29
If the record were barren of substantial justification or concrete standards for hiring [the male comparator], the argument might be entitled to consideration--but the record amply supports the conclusion of the district court that the decision to hire [the male comparator] rested on a more solid foundation than mere subjectivity. Aetna needed an experienced casualty underwriter to fill the void left by Garrett, but more importantly, it needed an agent to expand its business in the commercial casualty field. [The male comparator] had a strong background in the commercial casualty area; he had supervisory experience; and he demonstrated in his interview that he had the personality traits to succeed as an underwriter and later as a supervisor and a manager. An element of subjectivity is essentially inevitable in employment decisions; provided that there are demonstrable reasons for the decision, unrelated to sex, subjectivity is permissible.
30
Id. (emphasis added). See also Ritter v. Mount St. Mary's College, 814 F.2d 986, 993 (4th Cir.1987), cert. denied, 484 U.S. 913, 108 S.Ct. 260, 98 L.Ed.2d 217 (1987) (finding that a difference in qualifications between the plaintiff and her male comparator can constitute a "factor other than sex" for the purpose of showing that a particular salary difference is not actionable under the Equal Pay Act); cf. Brewster v. Barnes, 788 F.2d 985, 992 (4th Cir.1986) (finding that the defendants could not show that the wage differential was due to a factor other than sex where the defendants never attempted to determine if the plaintiff was eligible for a comparable wage to that of her comparator).
31
In the instant case, the district court awarded summary judgment to the College on the ground that there existed no genuine issue of material fact that the salary discrepancy between Strag and Swain was based on gender discrimination. In particular, the district court found that: (1) Strag failed properly to set forth a prima facie case, and (2) even if a prima facie case were established, the College sufficiently demonstrated that the salary differential was justified by gender-neutral factors. Several considerations support our affirmance of the district court's grant of summary judgment in favor of the College.
32
First, the case law described above makes clear that, in order for a plaintiff initially to establish a prima facie case under the Equal Pay Act, she must show not only that she is being paid lower wages than her male comparator, but also that she is performing work substantially equal in skill, effort and responsibility to her comparator under similar working conditions; i.e., the male job comparator must be properly selected. In Soble, supra, for example, this Court held that a male professor hired to teach in a department other than the one by which the plaintiff was employed, did not constitute a proper male comparator because different departments in universities require distinctive skills that foreclose any definitive comparison for purposes of the Equal Pay Act. Under the same rationale, Strag's choice of Swain as a male comparator is improper in the instant case because: (1) Swain is employed by the Biology department of the College, while Strag is employed by the Mathematics department, two departments requiring different skills and responsibilities, and (2) as noted in the affidavits supporting the College's motion for summary judgment, Swain has more responsibilities than does Strag because he not only teaches normal lecture classes, but also instructs lab classes which require extra preparation. In particular, Swain is responsible for preparing for extra classes, supervising lab assistants, and writing and grading extra exams; moreover, lab classes are generally longer than usual lecture classes. Additionally, the record demonstrates clearly that Swain is the only full-time instructor for several science courses, including biology, botany, zoology and genetics, while Strag shares responsibility with other math teachers for the courses she teaches, and does not teach many of the advanced math courses. Strag, therefore, did not put forth a sufficient prima facie case under the Equal Pay Act because she failed to identify an appropriate comparator in her own department against whom her starting salary could be properly compared by the district court. As stated in Soble, supra, an Equal Pay Act plaintiff "cannot rest on the bare allegation" that she is receiving lower pay for equal work; she must also show that the comparison she is making is an appropriate one. Soble, 778 F.2d at 167. In the instant case, Strag failed to make a proper comparison, and thus did no more than prove that she and Swain are paid different salaries. That, on its own, is not actionable under the Equal Pay Act.
33
Second, this Court has recently suggested, albeit in dicta, that "isolated incidents or random comparisons demonstrating disparities in treatment may be insufficient to draw a prima facie inference of discrimination without additional evidence that the alleged phenomenon of inequality also exists with respect to the entire relevant group of employees." Houck v. Virginia Polytechnic Institute, 10 F.3d at 206-07 (emphasis added). Although the absence of such evidence of systemic discrimination in the instant case may not alone be enough to defeat an Equal Pay Act claim, it, combined with Strag's improper identification of a male comparator, suggests that the district court did not err in granting summary judgment in favor of the College on the ground that a proper prima facie case was not established.1
34
Third, even if a prima facie case has been properly established by Strag, the burden shifts to the College to prove by a preponderance of evidence that the salary disparity is based upon one of the four enumerated statutory factors--here, that the salary difference is based on a factor other than sex; the College has clearly carried that burden here. In the proceedings before the district court, the College, in support of its motion for summary judgment, put forth numerous uncontradicted affidavits detailing the gender-neutral reasons for hiring Swain at a $33,000 starting salary under the Special Salary Provision of the College's Salary Plan. Indeed, the affidavits leave no doubt that Swain was extremely well known and respected in the College community for his innovative Coastal Biology class, that he had established a reputation as an excellent and innovative teacher with a great deal of experience, and that he used state-of-the-art technology in his classes which other teachers do not use. Additionally, the record makes clear that: (1) Swain had 24 years of teaching experience, as compared to Strag's nine years; (2) Swain's salary at the public high school would have been $30,000 for the 1987-88 school year, as compared to Strag's $17,220 salary at the East Carolina University; (3) Swain was unwilling to take a pay cut in order to teach at the College, while Strag was willing to do so in order to avoid a long commute; and (4) Swain was a much better known teacher than Strag, and the administrators felt that hiring him may attract more students to the College. Most significant, the fact that Swain was paid more by the College than even his male colleagues, one of whom was the Chairman of the Science Department, with 14 years more seniority than Swain, clearly suggests that the higher wage paid to Swain as compared to Strag was not based on gender, but rather on the sex-neutral factors detailed above. The record therefore clearly supports the district court's determination that the College sufficiently carried its burden of showing that the salary differential between Strag and Swain was based on factors other than sex. See Fowler, 978 F.2d at 161 (holding that gender-neutral justifications--such as that the male comparator has more experience or that the comparator is considered a "more important" employee--are "persuasive" reasons for salary disparities, though finding that in that case, the evidence supporting such gender-neutral justifications did not rise to such an overwhelming level that a jury verdict in favor of the plaintiff should be reversed).
35
Fourth, Strag fails satisfactorily to rebut any of the gender-neutral justifications for the salary difference put forth by the College. For example, although Strag points to a list of seven "off-scale" instructors within her department, this list includes two female instructors; thus, rather than suggesting that women are not given "off scale" salaries by the College, the list showed only that the College is willing to go "off" the Salary Plan for female as well as male teachers in rare occasions. More significant, Strag failed to put forth any evidence that she possessed "highly exceptional qualifications" that would have justified the College giving her an "off scale" salary.2 Indeed, she provides this Court with no compelling reason suggesting that the College should have paid her $30,000, when the salary at her previous job had only been $17,220. In the absence of such evidence to rebut the College's gender-neutral justifications for the pay differential, summary judgment was certainly warranted.
36
Last, as held in Soble, Strag cannot defeat a motion for summary judgment merely by resting upon allegations in her complaint that she is paid less than Swain. Thus, her failure to rebut the College's evidence of gender-neutrality in its salary decisions suggests that the district court's grant of summary judgment should not be reversed on appeal. Indeed, although a motion for summary judgment generally should not be granted if there exists a genuine issue of material fact that warrants a trial on the issues, such a motion cannot be denied unless the non-moving party puts forth specific facts evidencing that such a genuine issue does exist. See Allstate Financial Corp. v. Financorp, Inc., 934 F.2d 55, 58 (4th Cir.1991); Temkin v. Frederick County Commissioners, 945 F.2d 716, 718-19 (4th Cir.1991), cert. denied, 502 U.S. 1095, 112 S.Ct. 1172, 117 L.Ed.2d 417 (1992). Strag did not sufficiently carry that burden here.
37
II. Denial of Appellant's Motion for Extension
38
Next, Strag contends that the district court abused its discretion in refusing to grant her motion for an extension of time in which to respond to the College's motion for summary judgment. The College, by contrast, argues that such refusal was proper in light of the fact that Strag's need for an extension was caused by her own delay in completing discovery. We find that the Court did not abuse its discretion here.
39
In the instant case, the College had initially moved to extend the discovery deadline so that it could take depositions of nine new witnesses identified by Strag just before expiration of the time allotted for discovery. The College proceeded to serve the subpoenas and deposition notices on the new witnesses. Strag moved for a protective order and for sanctions against the College for attempting to conduct discovery after the noted deadline. Nevertheless, the College made its motion to extend discovery and only then filed the deposition notices, being well aware that if the district court denied its motion, it would have to forego the depositions.
40
At the hearing on the College's motion for an extension and Strag's cross-motion for a protective order and for sanctions, the district court held that it would grant the College's motion to extend the time to allow both parties to take depositions until July 7, 1994. At that time, the College requested an extension of time to file its motion for summary judgment from June 15, 1994 to July 15, 1994, eight days after all depositions would be completed. Strag voiced her opposition to such extension. The Court refused to extend the time for the College to file the motion for summary judgment. At that time, therefore, Strag knew that the College could move for summary judgment as late as June 15, 1994, which would make her response to such a motion due by July 5, 1994, two days before all depositions would be completed under the new July 7th discovery deadline.
41
The College indeed filed a timely summary judgment motion on June 15, 1994, thus making Strag's response due by July 5, 1994. Two depositions--one of Dr. Ben Quinn and the other of Mrs. Betty Quinn--were scheduled on July 6, 1994 by the consent of both parties. In order to accommodate Strag, the College's counsel, on June 20, 1994, informed Strag's counsel that Dr. and Mrs. Quinn would be available for deposition anytime from 8:00 a.m. to 5:00 p.m. on June 27th through July 1st, the week before Strag's response to the summary judgment motion was due. Strag's counsel, however, declined to take those depositions on such an expedited schedule.
42
After the Quinns' deposition had been set for July 6, and less than one week before Strag's response was due, Strag moved for an extension of time to file her response, primarily basing her motion on the allegation that the two Quinn depositions would not occur until after her response was due, and that some of the earlier depositions had not yet been fully transcribed. Moreover, by an affidavit submitted by one of her attorneys, Strag argued that the extension of time was necessary in light of a delay in receiving from the College certain discovery requests containing privileged information which Strag had obtained pursuant to a consent protective order; this delay occurred because the College was late in gathering all of the requested privileged information that it had agreed to release, purportedly because the College's Director of Personnel had left for a week's vacation.
43
On July 1, 1994, the district court denied Strag's motion for an extension of time in which to respond to the College's summary judgment motion. On July 5, 1994, Strag accordingly filed a timely responsive brief. On appeal, Strag now alleges that the district court's denial of her motion for an extension of time amounted to an abuse of discretion. We do not agree.
44
Rule 56(f) of the Federal Rules of Civil Procedure provides:
45
Should it appear from the affidavits of a party opposing the motion [for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
46
Fed. R. Civ. Pro. 56(f). In Nguyen v. CNA Corp., 44 F.3d 234 (4th Cir.1995), this Court recently articulated the standard under which district courts should consider motions for extension made under Rule 56(f). In that case, the appellant argued that the district court erred in denying his request to continue the opposing party's motion for summary judgment. 44 F.3d at 241-42. In discussing the threshold considerations in reviewing such a denial, this Court noted that the nonmoving party's duty to respond specifically to a summary judgment motion is expressly qualified by Rule 56(f)'s requirement that summary judgment be refused where the non-moving party has not had the opportunity to "discover information that is essential to his opposition." Id. at 242 (citations omitted). Noting that the denial of a Rule 56(f) motion is reviewed under an abuse of discretion standard, the Court held that in that case, the appellant had not filed affidavits specifying which aspects of discovery required more time to complete, and thus held that a continuance was not warranted; specifically, this Court held:
47
[A] party may not simply assert in its brief that discovery was necessary and thereby overturn summary judgment when it failed to comply with the requirement of Rule 56(f) to set out reasons for the need for discovery in an affidavit.
48
Id. (citations omitted). Accordingly, this Court affirmed the trial court's denial of the Rule 56(f) motion, holding that although the appellant's brief on appeal offered numerous vague assertions as to matters upon which the district court should have allowed discovery to continue before deciding the motion for summary judgment, the appellant at no point properly focused the Court's attention on any affidavit presented to the district court that "particularly specifie[d] legitimate needs for further discovery." Id. Accordingly, the Court found that the district court did not abuse its discretion in denying the appellant's motion for continuance pursuant to Rule 56(f). Id.
49
Likewise, in Lone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922 (4th Cir.1995), this Court found that an extension of time for summary judgment was inappropriate where the delay in conducting discovery was not the fault of the moving party. In that case, the district court had required all discovery to be completed by July 9, 1993, and required the summary judgment motions to be filed by June 24, 1993. 43 F.3d at 929. The moving party had concluded its discovery and filed a motion for summary judgment on June 24, 1993, but the non-moving party had neglected to serve any written discovery until June 8, 1993, making its responses due as the discovery period was ending. Id. Moreover, the non-moving party had scheduled certain depositions even later in the discovery period than when the summary judgment motion was due, thus making its failure to complete discovery by that time inevitable. Id. In affirming the district court's denial of the non-moving party's motion to compel discovery before the time for summary judgment, this Court held that the non-moving party's delay in beginning discovery and the fact that a "district court [has] substantial discretion in managing discovery" suggested that the district court did not abuse its discretion. Id. Particularly, this Court found that a district court acts wholly within its discretion in denying additional discovery where the delay in discovery is due to the fault of the complaining party. Accordingly, the Court affirmed the district court's decision, finding that the appellant had caused the unwarranted delay in beginning discovery, and that the appellant had adequate time to complete discovery before the district court granted summary judgment. Id.
50
Under the case law described above, we accordingly find that the district court did not err in refusing to extend the time during which Appellant Strag could respond to the College's motion for summary judgment. Several considerations compel this result.
51
First, the primary basis of Strag's motion for extension under Rule 56(f) was that the two depositions of Dr. and Mrs. Quinn were scheduled for the day after her response to the College's motion for summary judgment was due. Because this scheduling decision was Strag's own doing, however, that decision cannot properly form the basis for a Rule 56(f) extension in the instant case. Indeed, the facts suggest that the College explicitly informed Strag that the Quinns would be available for deposition before the response date, but that Strag decided to wait until the scheduled deposition day. More significant, it is unclear that the Quinns' depositions on their own would have created a genuine issue of material fact such as to defeat the College's motion for summary judgment; thus, even if the district court abused its discretion in denying the 56(f) motion, it certainly did not result in prejudicial error in light of Strag's inability to point to any information the Quinns would have given her in their depositions that could have been used to defeat the summary judgment motion. The denial of a Rule 56(f) motion for extension should be affirmed where the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment.
52
Second, Strag also alleges that the extension should have been granted because the transcriptions of earlier depositions were not yet available to her by the time she was to respond to the College's motion for summary judgment. The argument is unconvincing, however, because: (1) many of the persons whose depositions had yet not been transcribed were Strag's own witnesses, and thus she could have obtained affidavits from them rather than wait for the transcriptions if she wished to use their testimony in responding to the College's motion for summary judgment; (2) Strag's delay in beginning the depositions and in getting transcriptions was not the fault of the College; and (3) even without the transcriptions, Strag's counsel had access to what was said during the depositions. As stated in Lone Star, supra, where the delay is not the fault of the moving party, a district court's decision to deny an extension of time for further discovery is wholly appropriate.
53
Third, Strag additionally appears to allege in her Brief that the reason for her delay was that the College did not timely turn over certain materials pursuant to the protective order obtained from the Court. While it is true that denial of time for extension may be inappropriate where the materials sought are the object of outstanding discovery, the information sought was ultimately turned over to Strag before her July 5th response deadline. Thus, it is unclear that the delay by the College was the reason why Strag sought extension; indeed, Strag's Rule 56(f) motion for an extension of time was filed before the date on which the College was to turn over the materials, therefore suggesting that the College's delay could not have been the motivating factor for Strag's 56(f) motion. Thus, the College's delay did not necessitate a granting of an extension within the particular facts of the instant case.
54
Finally, district courts have great discretion over the discovery process and over the mechanics of the trial process. Such decisions should therefore not be overturned unless there is a clear abuse of discretion, or unless there is a real possibility the party was prejudiced by the denial of the extension. Here, there was no such abuse of discretion because the delay in discovery was not the College's fault, and because Strag did not specifically allege why the information sought would have been sufficient to create a genuine issue of material fact such that it would have defeated summary judgment.3 Thus, the district court's error, if any, was certainly harmless.
III. Sanctioning of Appellant
55
Last, Strag contends that the district court abused its discretion in sanctioning her for the filing of a supplemental brief by assessing attorneys' fees and by striking her supplemental filings from the record. Because such a decision to impose sanctions is wholly within the discretion of the district court, we affirm.
56
In the proceedings below, Strag filed a motion for an extension of time in which to respond to the College's motion for summary judgment, which the district court denied. Strag accordingly filed a responsive brief in opposition to the summary judgment motion on July 5, 1994, and the College filed a timely reply brief on July 15, 1994. Twelve days later, on July 27, 1994, just as the district court was to begin considering the motion for summary judgment, Strag filed a "Supplemental Brief in Support of Plaintiff's Response" and an "Argument Incorporating Material Subject to Consent Protective Order." These supplemental filings were not accompanied by any motion requesting leave to file such documents, and were filed despite the district court's earlier decision to disallow an extension of time to Strag to respond to the summary judgment motion. The supplemental filings, by Strag's own admission, were limited to information that came into her possession after the time her first responsive brief was due. The district court accordingly struck the supplemental filings from the record.
57
On August 11, 1994, when the district court entered summary judgment in favor of the College, the court directed Strag to show cause why sanctions should not be imposed in the form of an award of defendant's costs, expenses, and reasonable attorneys' fees incurred by the College in responding to the supplemental brief. Strag argued that no sanctions should be imposed because: (1) the court's order denying her an extension made no explicit reference to a prohibition against filing supplemental briefs, (2) the supplemental brief contained facts not in her possession when she first responded to the College's motion, (3) the supplemental brief was "necessary to preserve the record," and (4) the district court's inherent power to sanction must be exercised with restraint and discretion. The district court nevertheless imposed sanctions. Strag now appeals this decision.
58
The case law is well established that district courts have the inherent power to sanction parties for certain bad faith conduct, even where there is no particular procedural rule that affirmatively invests the court with the power to sanction. In Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991), the Supreme Court addressed a case in which a district court had sanctioned a party and assessed attorneys' fees and expenses because the party had used harassment and delay tactics, and had filed false and frivolous pleadings. In affirming the imposition of the sanctions, the Supreme Court held that district courts are "vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates." 501 U.S. at 43, 111 S.Ct. at 2132 (citations omitted). In finding that the sanctions in that case amounted to a proper exercise of that inherent sanctioning power, the Court noted that "[b]ecause of their very potency, inherent powers must be exercised with restraint and discretion. A primary aspect of that discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process." Id. at 44-45, 111 S.Ct. at 2132-33. In so holding, the Court held that the special sanction of attorneys' fees is appropriate in three circumstances: (1) where a party's litigation efforts directly benefit others, (2) where a party has willfully disobeyed a court order, and (3) where a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. Id. at 45-46, 111 S.Ct. at 2133-34. Cf. United States v. Shaffer Equipment Co., 11 F.3d 450, 461-62 (4th Cir.1993) (recognizing a district court's inherent power to impose sanctions, but finding that the dismissal of the case altogether was too severe a sanction in that particular instance).
59
In the instant case, the sanctions imposed upon Strag--the assessment of attorneys' fees and the striking of the supplemental brief--were wholly appropriate for several reasons. First, in the exercise of its inherent power to sanction, the district court did exercise great discretion and restraint, as cautioned by the Supreme Court in Chambers. Indeed, the sanctions served only to punish Strag for the actual actions taken concerning the submission of the supplemental briefs: the supplemental briefs were struck and attorneys' fees were assessed only to the extent such fees were incurred in responding to the actual supplemental briefs. The district court did not take any excessive measures against Strag such as assessing general attorneys' fees or litigation costs, or dismissing the case entirely.
60
Second, although Strag contends that she did not violate any rules or court orders by submitting the supplemental briefs, she fails to account for the fact that the supplemental briefs were filed despite an earlier order by the district court expressly disallowing any extension of time in which to respond to the College's motion for summary judgment. Strag makes the argument, on appeal, that because the court did not specifically prohibit supplemental briefs in its denial of extension, that the filing of such supplemental briefs must have thus been permitted. The argument is unconvincing, however, in light of the fact that the logical inference of the denial of the motion to extend was that Strag's reply to the summary judgment motion necessarily was to be received by July 5, 1994, and could not be submitted after that date; by filing a supplemental brief after July 5, Strag attempted to circumvent the district court's denial of her request for extension.
61
Third, and related, Strag argues that neither the Federal Rules nor the local rules of procedure explicitly prohibit the filing of supplemental briefs. The argument is again unconvincing since there are many filings that are not specifically prohibited by these rules but are nonetheless not usually permitted in civil litigation. As noted by the district court, "that which is not expressly prohibited is not, thereby, implicitly allowed."
62
Fourth, Strag argues that her intent in filing the supplemental briefs was to provide the Court with information that she did not have at the time of her initial response. However, the Court, in denying her motion to extend, had already decided that such information was not to be included in her response since the delay in discovery was not due to any fault on the part of the College. Strag is not allowed, by introducing such evidence in her supplemental filings, thereby to circumvent the district court's earlier decisions ordering when discovery was to cease and when responses were to be filed.
63
Fifth, under Chambers v. NASCO, supra, it is clear that the district court had the inherent power to impose such sanctions. Because the conduct of a trial falls within the sound discretion of the district court, an appeals court should generally not disturb such a sanction, particularly if there is no prejudice to the party. Here, it is undeniable that striking the supplemental briefs meant that evidence obtained by Strag from the last few depositions was not before the district court when it made its decision to grant summary judgment to the College. However, as noted by the district court, the additional evidence could have been put before the district court if it had been done properly; that is, Strag's counsel should have moved for leave to file the supplemental brief, with the supplemental brief attached thereto. Instead, Strag filed the supplemental brief without requesting leave to file the same, and it was immediately made a part of the record by the Clerk of the Court; the College was therefore forced to argue against the merits of the brief, and thus forced to bear the burden of Strag's improper actions. In such a context, the imposition of sanctions was wholly appropriate.
Accordingly, the judgment is
64
AFFIRMED.
1
Strag attempts to support her argument that the salary discrepancy is gender-motivated by stating that another female instructor, Donna Durham, has also filed an Equal Pay Act lawsuit against the College. As noted by the College in its brief, however, the two plaintiffs cannot "bootstrap" themselves past summary judgment simply by asserting that they have both made the same claims against the same employer
2
As pointed out by the College in its Brief, Strag repeatedly states that she was voted Teacher of the Year by the faculty for the 1993-94 academic year, and that Swain has never won the award. However, Swain has been nominated for the award every year since the nomination process has been in effect, while Strag had never been nominated before the year that she won
3
Strag argues that the information sought contained data regarding the number of men and women teachers who were paid "off scale" by the College, and thus could have been used to defeat the College's motion for summary judgment. However, the information actually contained in those documents simply showed that both men and women were paid "off scale" by the College; it did not establish that the College only gave men "off scale" salaries | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1644899/ | 994 So.2d 1104 (2008)
HARVEY
v.
STATE.
No. SC08-1943.
Supreme Court of Florida.
October 15, 2008.
Decision without published opinion. App.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/416571/ | 704 F.2d 139
10 Ed. Law Rep. 103
Bertell OLLMAN, Appellant,v.John S. TOLL, President, University of Maryland (in hisofficial and personal capacities); and The Board of Regentsof the University of Maryland; and Wilson H. Elkins, FormerPresident, University of Maryland, Appellees.
No. 81-1907.
United States Court of Appeals,Fourth Circuit.
Argued Jan. 12, 1983.Decided April 6, 1983.
David Bonderman, Washington, D.C. (Richard S. Ewing, Gerald L. Hawkins, Arnold & Porter, Washington, D.C., Andrew Jay Graham, Kramon & Graham, P.A., Baltimore, Md., on brief), for appellant.
Paul F. Strain, Deputy Atty. Gen., Baltimore, Md. (Stephen H. Sachs, Atty. Gen. of Md., Diana G. Motz, Asst. Atty. Gen., Susan B. Blum, Asst. Atty. Gen., Baltimore, Md., on brief), for appellees.
Before PHILLIPS and ERVIN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.
PER CURIAM:
1
Bertell Ollman is a political scientist and, with regard to his personal political views, a Marxist. In 1978, he was offered the position of chairperson of the department of government and politics at the University of Maryland at College Park, subject to approval by the university's president. The president, John S. Toll, ultimately disallowed Ollman's appointment, and Ollman brought this action under 42 U.S.C. Secs. 1983, 1985(c), and 1986, alleging that he was denied the position because of his political beliefs in violation of his fourteenth amendment privilege of free expression.
2
After a bench trial in which extensive evidence was introduced, the district court found that defendants Toll, Wilson H. Elkins (Toll's predecessor), and the university Board of Regents, were not motivated by an improper animus against Ollman or his Marxist opinions. The court also found that Toll's disapproval of Ollman's appointment was based on legitimate academic considerations which would have led him to the same decision even if Ollman had not been a Marxist, and that in making his decision Toll did not succumb to the considerable public pressure brought to bear on the university by those opposed to Ollman's appointment. 518 F. Supp. 1196 (D.Md.1981).1
3
These findings are not clearly erroneous and support the district court's conclusion that Ollman failed to prove any infringement on his constitutional right.2 Ollman's challenge on appeal to several evidentiary rulings of the district court is similarly without merit.
The judgment of the district court is
4
AFFIRMED.
1
We agree with Ollman that a different set of findings could have been made on the written record before us. Cf. Cooper v. Ross, 472 F. Supp. 802 (E.D.Ark.1979) (despite university's proffer of legitimate reasons for failure to renew appointment of professor with leftist political opinions, the court found as a fact that the university was swayed by public controversy over professor's employment). However, where, as here, the crucial question of intent depends in large part on the credibility of the witnesses' oral testimony, the appellant shoulders a heavy burden in challenging the district court's findings. The opinion of the court below reflects an admirably thorough analysis of the evidence, and a correct application of the test of causation laid down for such cases in Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977)
2
Because we discern no infirmity in the district court's factual finding that none of the defendants were impermissibly motivated, we need not reach Ollman's challenge to the district court's legal conclusions that Elkins and the Regents could not in any event be liable, and that Ollman failed to state a cause of action under sections 1985(c) and 1986 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3037064/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1473
___________
Tyrone Buckley, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Correctional Medical Services, Inc.; *
Unknown Hallazgo, Dr.; Gary * [UNPUBLISHED]
Campbell, Dr., *
*
Appellees. *
___________
Submitted: March 7, 2005
Filed: March 16, 2005
___________
Before BYE, RILEY, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Former Missouri inmate Tyrone Buckley appeals the district court’s1 adverse
grant of summary judgment as to Correctional Medical Services, Inc. (CMS) in his
42 U.S.C. § 1983 action. In the lawsuit, Buckley claimed that CMS had been
deliberately indifferent to his serious medical need in that recommended elbow
1
The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
surgery had been repeatedly cancelled and delayed.2 Following our de novo review,
we conclude that summary judgment as to CMS was proper. See Jolly v. Knudsen,
205 F.3d 1094, 1096 (8th Cir. 2000) (standard of review).
While the twenty-month delay in scheduling the surgery once it was
recommended is troubling, the record shows that the delay was due to staff members’
misunderstanding and miscommunication concerning the scheduling process and
failure to follow through--not to a CMS policy or action, or to an action by those
representing CMS official policy. See Burke v. N.D. Dep’t of Corr. & Rehab., 294
F.3d 1043, 1044 (8th Cir. 2002) (per curiam) (corporate liability under § 1983).
Further, although Buckley testified that he experienced some pain, he did not counter
the testimony of two CMS physicians that the surgery was elective and not a medical
emergency, and he admitted that no one had told him the delay was detrimental. See
Sherrer v. Stephens, 50 F.3d 496, 496-97 (8th Cir. 1994) (per curiam) (to show
deliberate indifference, plaintiff must submit evidence that, inter alia, defendants
ignored acute or escalating condition, given type of injury in his case).
Accordingly, we affirm.
______________________________
2
Buckley named other defendants, but on appeal he is challenging the ruling
only as to CMS.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1564698/ | 34 So. 3d 61 (2010)
KT HOLDINGS USA, INC., etc., et al., Appellants,
v.
AKERMAN, SENTERFITT & EIDSON, et al., Appellees.
No. 3D07-1767.
District Court of Appeal of Florida, Third District.
March 24, 2010.
Rehearing and Rehearing En Banc Denied May 18, 2010.
*62 Sweetapple, Broeker & Varkas and Douglas C. Broeker, Miami, for appellants.
White & Case and Rudolph F. Aragon and James N. Robinson, Miami, for appellees.
Before RAMIREZ, C.J., and SHEPHERD and SALTER, JJ.
SALTER, J.
KT Holdings USA, Inc., and KT Trading USA, Inc., appeal a final summary judgment in favor of Akerman, Senterfitt & Eidson, P.A., and two of its attorneys in a circuit court action alleging legal malpractice. The issue is whether the law firm and lawyers negligently allowed KT Trading's recently-purchased $4.8 million private jet aircraft to become part of an asset purchase transaction. Because the salient facts were not in dispute and the controlling legal principles support summary disposition, we affirm the final summary judgment.
The Asset Purchase Transaction and the Separate Aircraft Purchase
MacKnight Smoked Foods, Inc. (Smoked Foods), operated a profitable food business. Jonathan Brown was president of Smoked Foods and president of MacKnight Holdings, Inc. (Holdings). Holdings owned all of the stock of Smoked Foods. In early 2002, Smoked Foods and Holdings entered into a letter of intent whereby Smoked Foods would sell all of its assets to MSF Acquisition Corp. (MSF).[1] Smoked Foods and Holdings retained *63 the Akerman law firm to provide legal representation to them in the transaction.
Shortly after entering into the letter of intent to sell the assets of Smoked Foods to MSF for $44,000,000, but before the closing of that transaction, Brown and other owners of Holdings decided to buy a new "Premier One" corporate jet from Raytheon. Brown did not retain Akerman or its attorneys to guide him in the negotiation of the purchase contract with Raytheon, to represent him at the closing of the $4,780,000 purchase of the jet, or to review the written conveyance document executed by Raytheon for filing with the Federal Aviation Administration. Brown did tell attorneys at Akerman that he and the other shareholders of Holdings did not want to disclose the purchase of the jet to MSF, and one or more of the Akerman attorneys told Brown that he should not place title to the aircraft in Smoked Foods.[2]
When the asset purchase transaction closedonly about two weeks after Brown closed the purchase of the aircraft in the name of Smoked Foodsthe jet was not listed on the schedule of excluded assets. The jet was purchased with funds obtained from Holdings and the shareholders of that entity, and it was never used in connection with the business of Smoked Foods. Smoked Foods never intended to sell the jet to MSF, MSF never intended to buy it, and the asset purchase price was computed on the basis of financial statements and appraisals that did not include the aircraft.
Brown and his newly-hired pilot did not deliver the aircraft to MSF following the closing, and for almost a year after closing MSF made no inquiry, much less a demand, regarding the jet. When other post-closing disputes arose between Smoked Foods and MSF in 2003, however (about eleven months following the asset purchase closing), MSF sued Smoked Foods, Holdings, Brown, and other parties in the circuit court in Tampa. MSF then learned that the jet was titled in Smoked Foods on the date of the 2002 asset purchase closing and included a claim for "recovery" of the aircraft in that Tampa lawsuit.
The Malpractice Lawsuit
In 2004, Smoked Foods and Holdings (then known by their post-closing names, KT Trading USA and KT Holdings) sued Akerman and two of its shareholders for legal malpractice in the circuit court in Miami, claiming that the defendants' legal malpractice caused KT Trading to pay millions of dollars of damages and incur legal expenses (in the Tampa litigation brought by MSF) in order to keep the aircraft. After extensive discovery, the law firm defendants moved for and obtained a final summary judgment in the Miami lawsuit. The trial court reasoned that the true cause of any losses by the KT entities regarding the aircraft was their failure to assert "mutual mistake" as an affirmative *64 defense in the Tampa lawsuit. This appeal followed.
Analysis
The issue here, just as it was below, is whether the movants for summary judgment successfully established that there is no genuine issue as to any material fact and that they are entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.2000). Our consideration of the asset purchase transaction is governed by the parties' contractual choice of law (New York), while our analysis of the legal malpractice claim is based on Florida law.
The undisputed facts that control this analysis are:
1. The KT entities did not intend to include the new jet aircraft as part of the corporate assets being sold to MSF.
2. MSF did not intend to purchase that new jet aircraft. Indeed, MSF was completely unaware that KT Trading had acquired the aircraft until a dispute over other issues began months after the sale of assets by KT Trading to MSF. The negotiated price for the assets sold to MSF was established before KT Trading acquired the aircraft, and on the basis of appraised values and prior-period financial results that were wholly unrelated to the aircraft.
3. The president of KT Trading and KT Holdings, Mr. Brown, admitted that he made two key decisions regarding the aircraft: (1) he did not retain the Akerman law firm or its lawyers to participate with him in the closing of the purchase of the aircraft; and, (2) he placed title to the aircraft in KT Trading despite specific advice to title the aircraft in KT Holdings or in a new single-asset company.
4. Brown intended that MSF be unaware of the purchase of the multi-million dollar aircraft. An experienced business person, he understood that the purchaser of KT Trading's assets might sense additional leverage if it knew that the seller needed several million dollars for the aircraft closing right around the time of the asset sale. Adding the aircraft to KT Trading's "excluded asset" schedule in preparation for closing would have telegraphed the aircraft purchase to MSF.
5. KT Trading had record title to, and its parent company operated, the aircraft from June 22, 2002 (the date of the aircraft purchase), through the July 9, 2002, asset sale to MSF, and continuously thereafter through June 2003, when MSF amended its post-sale complaint in the Tampa lawsuit to claim that the aircraft should have been included in the asset sale. This further illustrates that MSF understood that the $4.78 million aircraft was never a part of the $44 million asset purchase. Gimlet-eyed business executives do not "forget" to take possession at closing (much less, for eleven months thereafter) of a corporate jet they expect to be included in an acquisition.
6. KT Trading did not provide the funding for the aircraft, nor was the aircraft used in furtherance of the income-producing activities of the company before the asset sale. All of the millions of dollars paid to Raytheon for the purchase of the aircraft were funded by the ultimate owners of KT Holdings (which sold no assets to MSF).
As these undisputed facts illustrate, it is difficult to determine who has overreached moreMSF, by enthusiastically pursuing a complete windfall because Mr. Brown economized on legal fees in the aircraft transaction and tried the do-it-yourself approach; or the KT entities and Brown, who reacted to MSF's predatory legal claim by suing the very lawyers who warned Brown not to do what he ultimately did, unaccompanied by any lawyer from *65 the law firm, at the separate closing of the aircraft purchase from Raytheon.
New York law, like the law of any civilized state or country, includes well-recognized equitable principles to assure that the courts are not used as instruments to validate overreaching and never-intended windfalls. The application of these rules to undisputed, admitted facts is a matter of law and is not dependent here upon any triable question of fact. In this case, the trial court correctly concluded that New York law would not countenance a result never bargained for by seller and purchaser, and that New York law would not ignore the undisputed fact that another party (KT Holdings) provided all of the purchase money for the aircraft. Whether the mechanism is reformation of the asset purchase agreement to include the aircraft as an excluded asset,[3] a corrective FAA conveyance to change legal title to comport with the name of the true buyer and beneficial owner (KT Holdings),[4] or "mutual mistake" as between KT Holdings and MSF,[5] the outcome clearly should have been the same.
The same conclusion is also reached by considering the scope of work to be performed by the law firm under the written engagement letter signed by the appellants. It is undisputed that the law firm was to advise Brown and KT Trading regarding the asset sale to MSF, and that the law firm was not retained or paid to accompany Brown to the aircraft closing, to review the FAA conveyance document, or to attempt to change title following the KT Trading-MSF asset sale. While it is true that Brown asked questions of one or more attorneys within the law firm regarding certain aspects of the aircraft purchase, Brown himself testified that he thought buying a jet was similar to buying a car, and that he could therefore handle the Raytheon aircraft closing without an attorney. It is also undisputed that Brown was advised in writing not to place title in KT Trading (though he admits he later did exactly that), and that he did not want to list the aircraft in a schedule to the asset purchase agreement or otherwise make that transaction known to MSF.
This brings us to the unusual result in the Tampa litigation. As noted, MSF sued the KT entities and Brown there in June 2003, eleven months after the asset purchase closing. MSF claimed that KT had fraudulently induced MSF to purchase the assets, that Brown and others "sabotaged" the business after closing, and that the sellers breached the agreements by *66 (among other things) failing to deliver the aircraft to MSF.
Interestingly, the parties stipulated that the aircraft issue could be tried separately from the other claims. In April 2004, the Tampa court held that the aircraft was in fact the property of MSF.[6] Although this result seems incomprehensible in light of the undisputed facts and the applicable New York law already described, several additional undisputed facts in the record provide some insight into why the Tampa court may have ruled as it did.
First, the law firm which defended the KT entities and Brown in Tampa is the same firm that represented them in the subsequent lawsuit in Miami against Akerman and two of its shareholders. Second, the Tampa judgment was quickly followed by a settlement among the KT entities, Brown, and MSF. As part of that settlement, other claims in the lawsuit were dropped, KT Trading repurchased assets previously sold to MSF, KT Trading kept its aircraft, and the parties to the settlement apportioned a value of $4.5 million of the amount paid by KT Trading to MSF as compensation for the "repurchase" of the jet aircraft.[7] This essentially optimized the damages claim of the KT entities and Brown for purposes of a lawsuit against Akerman Senterfitt, and that Miami lawsuit followed the Tampa settlement by a month. The Tampa settlement also assured that there would be no rehearing, and no direct appellate review, of the unusual Tampa judgment relating to the aircraft.
It matters not whether the judgment in Tampa was a collusive settlement document (part of a joint effort by KT/Brown and MSF to maximize the involuntary financial participation of a non-party, Akerman Senterfitt, or its insurers), resulted from KT/Brown's failure to specifically plead "mutual mistake" (as the trial court found), or resulted from a legal error by the Tampa court. Under any of those scenarios, the trial court in the Miami case was correct in its evaluation of the undisputed facts and well-settled New York law. The trial court in this case correctly concluded that:
[The KT entities and Brown], as defendants in the Tampa Lawsuit, had an irrefutable claim for reformation under New York law. There is no question that [KT Trading and Brown] never intended to convey to the Purchaser [MSF] the Airplane through the Asset Purchase Agreement, and thus, to the extent that the language of that agreement resulted in transfer of the Airplane, it failed to express [KT Trading's and Brown's] intent. Further, the Purchaser confirmed that it never intended to purchase the Airplane.
Conclusion
Most reformation, "mutual mistake," and "beneficial title" cases involve disputed facts and are inappropriate for summary disposition. In this case, however, the undisputed facts controlled the trial court's analysis and our review. MSF's claim to the aircraft was refuted as a matter of law by the simple facts that it did not know about, bargain for, or pay for the jet. *67 There is no justicenonein MSF's attempt to turn Brown's simple mistake into an early multi-million dollar holiday gift to itself.
As to the KT entities' and Brown's claim against the law firm and its lawyers, the undisputed facts simply underscore the hazards of self-representation in a multi-million dollar aviation transaction. Brown's attempt to turn his own mistake into a claim for millions of dollars of damages (against the law firm that correctly warned Brown not to title the aircraft in the name of KT Trading) was correctly rejected.
Affirmed.
RAMIREZ, C.J., concurs.
SHEPHERD, J., dissenting.
The only issue before the trial court was whether the failure of the KT entities to raise mutual mistake in the Tampa lawsuit was an intervening cause of the loss of the aircraft. As the law firm and attorney defendants describe in their answer brief:
In the trial court, Akerman and two of its shareholders who were also sued in this action, Carlos J. Deupi ("Deupi"), and Stewart H. Lapayowker ("Lapayowker") (collectively, the "Akerman Attorneys") moved for summary judgment on grounds that the MacKnight Companies caused their own damages by failing to present the winning defense of mutual mistake in the Tampa Lawsuit. Solely to avoid manufactured issues of fact, and to narrow the issues before the trial court to the single issue of the circumstances of the Tampa Lawsuit, the Akerman Attorneys conceded for purpose of their Motion for Summary Judgment only negligence in allowing the Asset Agreement to convey the Airplane. (Emphasis added).
The trial court granted summary judgment to the Akerman Attorneys[8] on that narrow ground:
Because Plaintiffs failed to raise the mutual mistake in the Tampa Lawsuit, Defendants are granted partial summary judgment on Counts I and II of the Complaint, and Plaintiffs shall not recover any damages resulting from the Final Judgment entered against them in the Tampa Lawsuit, including, without limitation, Plaintiff's damages from the loss of title to, and the right to legal possession of the Airplane. (Emphasis added).
The majority, however, exceeds its review authoritylimited to conducting a de novo review of the order appealedand grants appellate summary judgment to the Akerman Attorneys on an incomplete record. The majority justifies its decision with the comment "[t]here is no justice" in any other result. See Maj. Op. at 67. I would reply that there is no justice in granting appellate summary judgment against a party without notice and due process, which is what this Court is doing today, contrary to the tenets upon which this Court has operated since its formation.
This may be a thin liability case. The KT Holdings plaintiffs admit as much, alleging only the Akerman Attorneys are comparatively responsible for the loss of their airplane. While the Akerman Attorneys advised Mr. Brown not to title the airplane in the name of MacKnight Smoked Foods, evidence also exists in the record that the Akerman Attorneys considered *68 it their responsibility to be sure the aircraft did not need to be scheduled. For example, three weeks before the Smoked Foods closing, Carlos Deupi, the Akerman partner in charge of the transaction, called Stewart Lapayowker, an Akerman aviation specialist, to follow up on the jet. Mr. Lapayowker responded with an e-mail stating:
Sorry, I listened to your voicemail. I'll touch base with Jon [Brown] and confirm. I think he was going to take the path of least resistence (sic) and put the aircraft in the Holding Company even if it cost him a bit more in sales/use tax. He didn't seem to want to apply any infrastructure/personnel to administering the other suggested structures. Again, I'll confirm. SHL.
As Mr. Lapayowker admitted in his deposition, he never spoke with Mr. Brown and never followed up with Mr. Deupi. Likewise, Mr. Deupi never followed up with Mr. Lapayowker and never did anything further to be certain the jet did not need to be scheduled.[9] The majority fails to mention this testimony from the record. It also overlooks the KT entities were not required to negate any evidence that the Akerman Attorneys were not negligent.
The majority finds the final judgment in the Tampa lawsuit, awarding the aircraft to MSF, so "incomprehensible in light of the undisputed facts and the applicable New York law" that it finds it necessary to floatbut, tellingly, falls short of taking ownership ofa post-Tampa Aircraft Final Judgment conspiracy theory to, in its own words, "provide some insight into why the trial court may have ruled as it did." See Maj. Op. at 66. At the same time, the majority fails to relate a significant fact namely the trial judge made an express finding of fact that the [Smoked Foods Asset Purchase A]greement "is complex, but it is not ambiguous, and by the specific terms thereof, ownership and title to the aircraft is vested in Plaintiff [MSF]." (Emphasis added). Sanctity of contract, when unambiguous, is a first principle of our jurisprudence. See Perry Banking Co. v. Swilley, 154 Fla. 221, 17 So. 2d 103, 104 (1944) ("Sanctity of contract is fundamental in the law of this country, so much so that it is protected by the Constitution."). It yields only under the most exacting of circumstances.
Reformation is one of those circumstances, and for the reason just stated, the proof required is accordingly not only exacting but rigorously scrutinized. Under New York law, just as under Florida law, reformation is permitted where there is a mutual mistake, e.g., "where the parties have a real and existing agreement on particular terms and subsequently find themselves signatories to a writing which does not reflect that agreement." Harris v. Uhlendorf, 24 N.Y.2d 463, 301 N.Y.S.2d 53, 248 N.E.2d 892, 894 (1969); see also Circle Mortgage Corp. v. Kline, 645 So. 2d 75, 78 (Fla. 4th DCA 1994) ("A mistake is mutual when the parties agree to one thing and then, due to either a scrivener's error or inadvertence, express something different in the written instrument."). The rationale for reformation is that a court sitting in equity does not alter the parties' agreement, but allows the defective instrument to be corrected to reflect the true terms of the agreement the parties actually reached. N.E. Shares Corp. v. Int'l Ins. Co. of N.Y., 240 A.D. 80, 269 N.Y.S. 351, 354 (N.Y.App.Div. 1934); see also Circle *69 Mortgage Corp., 645 So.2d at 78. In addition, to further assure the sanctity of contracts, the reformation proponent must prove the existence of the prior agreement by clear and convincing evidence. Migliore v. Manzo, 28 A.D.3d 620, 813 N.Y.S.2d 762, 764 (N.Y.App.Div.2006) ("A party seeking to invoke equity to reform a written agreement based upon a purported mistake bears the burden of showing a mutual mistake by clear and convincing evidence."); see also BrandsMart U.S.A. of W. Palm Beach, Inc. v. DR Lakes, Inc., 901 So. 2d 1004, 1006 (Fla. 4th DCA 2005) ("Due to the strong presumption that a written agreement accurately expresses the parties intent, the party seeking reformation based on a mutual mistake must prove its case by clear and convincing evidence.").
In this case, the instrument was not defective. MacKnight Smoked Foods intended to sell all of its assets except those on the "Excluded List." MSF contracted to buy all of the assets of Smoked Foods, unless the asset was listed on the "Excluded List." Only Jon Brown knew about the aircraft. It was his mistake, allegedly worsened through a lack of diligence by the Akerman Attorneys, in failing to list the aircraft on the "Excluded List." Under New York law, "[t]o reform a written instrument based upon mutual mistake, the proponent of reformation must show, by clear and convincing evidence, not merely that a mistake exists, but exactly what the parties agreed upon." Miller v. Seibt, 13 A.D.3d 496, 788 N.Y.S.2d 126, 127 (N.Y.App.Div.2004). There is no definition of "mutual" that can be stretched to encompass these facts.
A careful reading of the majority opinion reveals the majority improperly reached the merits of the KT entities' case. The majority concludes, "MSF's claim to the aircraft was refuted as a matter of law by the simple fact that it did not know about, bargain for or pay for the jet." See Maj. Op. at 66. That conclusion, of course, does not equate to the doctrine of mutual mistake under New York law. See supra pp. 63-64. It is simply the majority's evaluation of the evidence, which is contradicted by the core provision of the purchase agreement that the trial court in the Tampa case found unambiguous:
"[A]t the Closing, the Buyer [MSF] shall purchase from MacKnight [Smoked] Foods and MacKnight [Smoked] Foods shall sell, transfer, assign and deliver to Buyer, all of the right title and interest in and to all of the tangible and intangible assets, business, goodwill and rights of MacKnight [Smoked] Foods, other than the Excluded Assets ... as the same shall exist immediately prior to Closing." (Emphasis added).
It is also contradicted by the testimony of MSF's representative and chief negotiator, Felix Wong, that while he admittedly was "not aware of the airplane pre-closing, when I valued the business and made the offer, it was for all of the assets, regardless of what they were or whether we knew about them."[10] Even if the appellate *70 summary judgment was permissible under our Rules, it would be error to grant summary judgment to the Akerman Attorneys on the record in this case.
It may have been, upon a trial of this case, a jury would have exonerated the Akerman Attorneys. It also may be (put me in the doubtful category), that the Akerman Attorneys have a meritorious basis for summary judgment on a ground other than the one on which they erroneously prevailed below. If so, however, it is our duty to require the Akerman Attorneys to accomplish itas we require of all litigantsthe old-fashioned way; they should earn it.
I would reverse this case for further proceedings.
NOTES
[1] As in many corporate asset transactions, the names of the entities changed over the course of the transaction. Smoked Foods' corporate name was changed to KT Trading USA, Inc. after the asset sale, and Holdings' corporate name was changed to KT Holdings USA, Inc., at that time. The name of the asset purchaser, MSF, was changed to MacKnight Smoked Foods after the closing.
[2] The closing of the purchase of the jet occurred before the closing of the asset purchase transaction. If title to the jet was to be taken in the name of Smoked Foods, the aircraft would have to be scheduled as an "excluded asset," and MSF would be alerted to the purchase before the asset purchase transaction closed. Accordingly, an Akerman shareholder recommended to Brown that he arrange for the aircraft to be conveyed to Holdings or a new single-purpose entity. Brown admitted that, despite that advice, he participated in the aircraft purchase closing without counsel, and he directed or allowed Raytheon to convey the jet to Smoked Foods.
[3] As cited by the trial court, Harris v. Uhlendorf, 24 N.Y.2d 463, 301 N.Y.S.2d 53, 248 N.E.2d 892, 894 (1969), and Miller v. Seibt, 13 A.D.3d 496, 788 N.Y.S.2d 126 (N.Y.App.Div. 2004), explain this principle and apply it to analogous facts.
[4] Because KT Trading remained in existence following the asset sale, it could have conveyed the aircraft to KT Holdings in an instrument reciting the pertinent facts that KT Holdings paid for the aircraft and that the original conveyance was simply an error by Mr. Brown in the separate closing with Raytheon.
[5] KT Holdings was also a party to the asset purchase agreement with MSF, KT Trading, and other entities. The trial court correctly relied upon U.S. Bankruptcy Judge A. Jay Cristol's application of New York law to similar facts: "Where a contract fails to reflect the true agreement reached by the parties, based on their mutual mistake in failing to enter into a writing reflecting their true agreement, it is appropriate that the contract be reformed to properly reflect the agreement reached by the parties." PMI Inv., Inc. v. Rose (In re Prime Motor Inns, Inc.), 167 B.R. 261, 286-87 (Bankr.S.D.Fla. 1994). Here, as in PMI Investment, the parties' intentions have been established by "clear, convincing, and overwhelming evidence." Id. In this case, that evidence happens to be undisputed.
[6] The record below does not disclose whether the Tampa court was presented an agreed form of final judgment or whether the Tampa court prepared the final judgment itself. The record does disclose that there were active settlement negotiations between KT/Brown and MSF in the days before the non-jury trial was to end.
[7] KT then sold the aircraft to an unrelated buyer for $3.75 million, a value used in a pretrial settlement communication between KT/Brown and MSF.
[8] For the reader's convenience, I will include the law firm in this appellation throughout this dissent.
[9] As Akerman aviation specialist Lapayowker must have known, an electronically assisted aircraft title search of the records of the Federal Aviation Administration (FAA) in Oklahoma City, Oklahoma, prior to the closing also would have readily revealed how the aircraft was titled.
[10] Any intimation by the majority that MSF valued MacKnight Smoked Foods based upon any "appraised values" of assets is incorrect. See Maj. Op. at 64. In response to the question, "Tell me how you came up with the price for MacKnight," Wong replied:
What we did was we looked at the historical performance of the company on an adjusted basis. We did as much industry research that we could on the consumption of salmon, consumption of smoked salmon, examined all kinds of information, anything that we could get our hands on to give us a clue as to, you know, how quickly the company might grow during our ownership period if we were successful in buying it.
Wong further testified unequivocally that MSF did not perform an investigation of all of the assets of Smoked Foods. He was asked:
Q. But at the time that you did your valuation, did you perform some investigation of the assets of significant value?
A. No.
Q. Why Not?
A. We don't value businesses based upon assets.
Q. Okay. As part of the due diligence was anything done to confirm value, condition or title to the significant assets?
A. A lien search would have been conducted, but that would have been done primarily by the attorneys to make sure we have good title to the various assets. No attempt was made to identify every asset that was being acquired. The assumption was that everything was being conveyed...." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919637/ | 660 So. 2d 996 (1995)
John Thomas TERRY
v.
Martha S. McWhorter TERRY.
2940027.
Court of Civil Appeals of Alabama.
April 14, 1995.
On Application for Rehearing May 26, 1995.
*997 Beverly J. Howard, Montgomery, for appellant.
Floyd Minor and John Olszewski of Floyd Minor, Montgomery, for appellee.
THIGPEN, Judge.
This is a post-divorce case.
The parties divorced in August 1990, and this court has previously affirmed the trial court's divorce judgment, particularly regarding the matter of the father's support obligations. See Terry v. Terry, 581 So. 2d 1114 (Ala.Civ.App.1991). The litigious nature of these parties is exhibited by the numerous post-divorce proceedings included in the record; however, only those matters pertinent to this appeal will be discussed.
In November 1991, the father again sought a modification to reduce his child support obligation of $1120 per month. He alleged that he had been unemployed since December 1990, and that he had not been able to find suitable employment. After other proceedings, delays, and temporary orders, the trial court received additional ore tenus evidence. It ultimately entered an order in June 1994, which, inter alia, reduced the father's child support obligation to comply with the guidelines of Rule 32, Ala.R.Jud.Admin., based upon his reemployment at a lower salary, and ordered the father to be responsible for one-half of the costs of his children's health insurance and of their orthodontic treatment. Additionally, the trial court relieved the father, effective June 1, 1994, of his obligation for the second mortgage payments, which had been ordered as additional family support. A judgment favoring the wife for an arrearage in that regard was ordered. The father appealed.
The father contends that the trial court erred in ordering him to pay one-half of the amount of the health insurance premiums and of the orthodontic costs for his children. He also contends that the trial court erred in relieving him of the second mortgage payments effective June 1, 1994, rather than November 1991, the date he filed this petition to modify, or in February 1992, when the trial court temporarily reduced his child support obligation of $1120 per month to $100 per week. He argues that he suffered a substantial and continuing material change in circumstances before June 1, 1994, and that his obligation for the second mortgage should have been modified earlier.
The divorce judgment, which is contained in the record, expressly states:
"[I]n accordance with the stipulation of the parties, the [father] shall continue to maintain medical and dental insurance covering the parties' minor children during their minority, and each party shall be liable for and shall pay one-half of all medical and *998 dental expenses not covered by said insurance. Dental expenses shall specifically be interpreted to include orthodontic treatment."
The record discloses that after the father failed to meet his obligation to provide insurance coverage for his children, the trial court ultimately ordered him to reimburse the wife for one-half of the costs she incurred when she purchased insurance for the children's benefit. The trial court also ordered the father to pay one-half of the costs of the orthodontic expenses for his children.
The father argues that his obligations regarding insurance and payment of one-half of the costs of medical and dental expenses not covered by insurance were suspended during his unemployment. In particular, he references an order of February 1992, which provided him partial relief by temporarily reducing his child support payments from $1120 monthly to $100 weekly, pending further orders. That order expressly states that "immediately upon employment, the [father] shall enroll the minor children as beneficiaries under any health insurance plan which is offered by said employer." The order is silent, however, regarding the father's duty to provide insurance and his obligation to pay one-half of the medical and dental expenses that were not covered by insurance during his interim of temporary unemployment. There is simply no indication in the record that the father was ever relieved of those obligations, temporarily or otherwise.
Although the record contains numerous pleadings and orders, our review of the record reveals nothing to modify the original order regarding the father's responsibility for insurance and one-half of the dental expenses not covered by insurance"specifically... orthodontic treatment." The father offers nothing to support his position that he has no obligation to pay for orthodontic treatment. On the contrary, the divorce judgment expressly refers to the parties' stipulation regarding the father's specific obligation and responsibility for orthodontic treatment. Nothing in the record indicates that those provisions of the divorce judgment have ever been modified, and the father offers nothing more than his argument to show otherwise.
A trial court has broad discretion in support modification proceedings, and its judgment in such a proceeding, when based on ore tenus evidence, is clothed with a presumption of correctness. Absent an abuse of discretion, the judgment will be affirmed. See Stewart v. Kelley, 587 So. 2d 384 (Ala.Civ. App.1991); Conradi v. Conradi, 567 So. 2d 364 (Ala.Civ.App.1990). See also, Kieltyka v. Kieltyka, 541 So. 2d 29 (Ala.Civ.App.1989), and Waltman v. Waltman, 480 So. 2d 594 (Ala.Civ.App.1985). Our review of the record discloses no abuse of discretion in the court's ordering the father to pay one-half of the costs of the insurance and unpaid medical and dental expenses of his children. It appears that the trial court was simply ordering the father to meet the obligations previously ordered. A trial court is without the authority to discharge an obligated parent from the payment of past-due support. Mann v. Mann, 550 So. 2d 1028 (Ala.Civ.App. 1989). The father has failed to show error in this regard.
Next, the father contends that the trial court abused its discretion in modifying the provision regarding the second mortgage payments effective June 1, 1994, rather than November 1991 or February 1992. He argues that when he became unemployed in December 1990, he suffered a substantial and continuing material change in circumstances that warranted a modification.
The law is clear that the modification of a support order, even upon a showing of changed circumstances, remains a matter within the trial court's discretion. Thistlethwaite v. Thistlethwaite, 590 So. 2d 317 (Ala. Civ.App.1991). Furthermore, a trial court's judgment based upon ore tenus evidence is presumed correct. Cadle Co. v. Friedman, 631 So. 2d 962 (Ala.1994). The deference traditionally given to the trial court by the application of the ore tenus rule is due, in part, to the trial court's unique position to see or hear something that may not be readily apparent on the face of a written record. Hall v. Mazzone, 486 So. 2d 408 (Ala.1986). Additionally, when a trial court bases its *999 judgment upon ore tenus evidence that is not contained in the record on appeal, that judgment comes to this court clothed with a conclusive presumption that the absent testimony supports the judgment. Rudolph v. Rudolph, 586 So. 2d 929 (Ala.Civ.App.1991).
It is noteworthy now, as it was to this court in the first appeal, that this father has indicated an intention to avoid his financial responsibility to his children, even prior to the final divorce judgment. See Terry, 581 at 1115, where Presiding Judge Robertson, writing for this court, states: "[W]e point out that the [father] failed to pay the child support ordered by the trial court's pendente lite order and was in arrears more than thirty days at the time of the [divorce] hearing."
Within months after the divorce judgment, the father was unemployed. He immediately petitioned for a modification and obtained a court order temporarily suspending his monthly child support obligation. As noted by the trial court in its June 1994 order, on at least two occasions since the divorce, the trial court has considered the father's petitions for modification based on his unemployment in December 1990, and on each occasion, it has determined that the father's employment status was not a change in circumstances justifying modification.
The order of February 12, 1992, which was based upon ore tenus evidence that is not contained in the record on appeal, expressly ordered that the father's support obligation that is based upon payment of the second mortgage would continue to accrue. That order expressly found that the father's unemployment did not justify a modification. The order temporarily lowered his child support payments and expressly ordered that the cause was "deemed CLOSED, subject to the further review and reservation of jurisdiction herein and re-establishment on the active docket to further determine child support based on re-establishment of employment." Although the trial court held open the recalculation of child support pending the father's employment, it appears that the order effectively denied his petition to modify his support obligation based upon his employment status. The trial court's express reservation of jurisdiction permitting this case to be reestablished on the active docket was merely superfluous wording regarding its inherent jurisdiction during the minority of the parties' children. While it is unclear whether this order was a final, appealable order, the matter that was held open, i.e., the recalculation of child support based on the father's employment, was later resolved by an order in December 1992. There was no post-judgment motion or appeal filed after either of those orders.
As noted by the June 1994 order, the father was still involved in the bankruptcy proceedings in December 1992, when the trial court ratified the parties' agreement regarding child support, and therefore, at that time, the court did not address the father's arrearages or payment of the second mortgage. Furthermore, in spite of the litigious nature of this father, exhibited by his constantly attempting to escape his support obligations to his family, and his shrewd cognizance that his support obligation based upon payment of the second mortgage was continuing to accrue, the record contains nothing further regarding this obligation until the June 1994 order. That order relieved him of future responsibility and determined his arrearage for the second mortgage.
In August 1993, the wife petitioned for the matter to be restored to the active docket for a determination of her amended counterclaim, asking that the father be found in contempt, and asking for a determination of the various arrearages. The trial court's order of June 1994 was based upon the presentation of additional ore tenus evidence. The trial court's lengthy and comprehensive order detailed the history of this "arduous and protracted matter," and the trial court specifically addressed the father's support responsibility based upon payment of the second mortgage. Inter alia, that order relieved him of future responsibility for the second mortgage, based upon changed circumstances "regarding the ownership of the former marital home," and the court entered a judgment for the wife for the amount of the father's accrued arrearage on that support obligation.
The trial court's February 1992 order clearly articulated a deliberate grant to the father of only partial relief from his monthly support obligations to his family, based upon his limited expenses and his ability "to obtain *1000 at least part-time employment, at minimum wage, pending permanent employment and after unemployment benefits cease." In June 1994, when the trial court relieved the father of only future support based upon the second mortgage, it did so by expressly finding a change in circumstances relating to the ownership of the house, not relating to the father's employment status. To relieve the father of this support obligation, effective in February 1992, as he asks for, rather than June 1, 1994, would effectively negate an order that was based upon ore tenus evidence that is not contained in the record, which deliberately granted the father only partial relief, and which expressly continued his liability regarding the second mortgage.
Before modifying the father's support obligation effective June 1, 1994, the trial court found that the father's liability on that obligation continued to accrue from the date of the divorce, and that the wife was entitled to a judgment for the arrearage on such. The record contains ample evidence supporting that finding and is devoid of evidence indicating any intention to modify that provision earlier. The father has shown no abuse of discretion by the trial court in relieving him of his obligation to pay the second mortgage beginning in June 1994.
The wife's request for an attorney fee on appeal is granted in the amount of $1000.
AFFIRMED.
ROBERTSON, P.J., and YATES, MONROE and CRAWLEY, JJ., concur.
On Application for Rehearing
THIGPEN, Judge.
The appellee's motion to dismiss the application for rehearing is granted. A.N.C. v. F.Y., 646 So. 2d 87 (Ala.Civ.App.1995), and Gulf Electric Co. v. Kelley, 646 So. 2d 78 (Ala.Civ.App.1995).
APPLICATION FOR REHEARING DISMISSED.
ROBERTSON, P.J., and YATES, MONROE and CRAWLEY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2694383/ | [Cite as Rhodes v. Paragon Molding, Ltd.,, 2011-Ohio-4295.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
ROY RHODES, et al. :
Plaintiffs-Appellants : C.A. CASE NO. 24491
v. : T.C. NO. 06CV1427
PARAGON MOLDING, LTD., et al. : (Civil appeal from
Common Pleas Court)
Defendants-Appellees :
:
..........
OPINION
Rendered on the 26th day of August , 2011.
..........
RONALD J. KOZAR, Atty. Reg. No. 0041903, Kettering Tower, Suite 2830, 40 N. Main
Street, Dayton, Ohio 45423
Attorney for Plaintiffs-Appellants
ROBERT J. SURDYK, Atty. Reg. No. 0006205 and KEVIN A. LANTZ, Atty. Reg. No.
0063822, 1 Prestige Place, Suite 700, Miamisburg, Ohio 45342
Attorneys for Defendants-Appellees
..........
DONOVAN, J.
{¶ 1} Plaintiff-appellant Roy Rhodes appeals from a decision of the Montgomery
County Court of Common, General Division, sustaining in part and overruling in part a
motion for summary judgment filed by defendant-appellees Paragon Molding, Ltd.
Plaintiff-appellant filed his timely notice of appeal on February 16, 2011.
2
I
{¶ 2} Plaintiffs Roy and Jimmie Rhodes were the member-owners of a limited
liability company called Huntin’ Buddy Industries (hereinafter “Huntin’ Buddy”). Huntin’
Buddy manufactured and sold turkey and duck calls designed by Roy Rhodes. When
Jimmie Rhodes decided to retire from the hunting call business, the Rhodeses put Huntin’
Buddy’s assets up for sale. In September 2004, Huntin’ Buddy was purchased by Paragon.
Paragon is a limited liability company owned by Jim and Vicki Miller, with its principal
place of business in West Milton, Ohio.
{¶ 3} Paragon and the Rhodeses entered into two separate agreements in relation to
Huntin’ Buddy’s assets and Roy Rhodes’ employment with Paragon. The assets were
purchased pursuant to the “Contract for Purchase of Corporate Assets” (hereinafter
“purchase contract”). The purchase price for the assets was $250,000. According to
paragraph 6 of the purchase contract, Paragon was to pay $200,000 at the time of closing,
with $50,000 due at a later time. Roy Rhodes was to maintain a 35% value in the “Roy
Rhodes Championship Call division” (hereinafter “RRCC”) of the Paragon company. If
RRCC was sold, Roy Rhodes would have been entitled to 35% of the net purchase price of
that division. If Paragon, the parent company, was sold, Roy Rhodes would only have been
entitled to 35% of the net value of RRCC. In addition, Roy Rhodes would have been
entitled to 35% of any distributed profits after taxes. Furthermore, paragraph 6 of the
purchase contract states that RRCC would be a division separate from Paragon.
{¶ 4} Paragon and Roy Rhodes also signed an “Employment and Relationship
Agreement” (hereinafter “Employment Agreement”) whereby Rhodes became employed by
3
Paragon as the VP of Marketing and R & D. Paragon, however, was still managed solely by
the Millers. The Employment Agreement, signed on September 25, 2004, was to run for
five years, beginning October 1, 2004. Rhodes was to be paid an annual salary of $44,000,
and was to receive full benefits and two weeks of paid vacation each year. Rhodes was also
guaranteed 5% sales commission for bringing in any new molding business to Paragon. In
addition, if Paragon secured any endorsements for Rhodes, Paragon was to receive 20%
commission for those endorsements.
{¶ 5} On December 9, 2005, Paragon terminated Rhodes. In February 2006, Rhodes
filed several claims against Paragon pursuant to his termination: breach of the employment
contract, unpaid salary, breach of fiduciary duty, wrongful discharge, conversion, and claims
relative to a promissory note. On November 13, 2008, Paragon filed a motion for summary
judgment on Rhodes’ retaliation claims, the breach of fiduciary duty claim, and the claims
relative to the promissory note. On December 15, 2008 Rhodes filed his response to that
motion, and Paragon filed a reply on January 5, 2009. On February 6, 2009 the trial court
granted the motion for summary judgment in favor of Paragon on the claims for retaliatory
discharge and the breach of fiduciary duty, as well as, all the claims relative to Jim and Vicki
Miller as individual defendants. However, Paragon’s claims as to the promissory note were
overruled.
{¶ 6} All other claims that were not decided on summary judgment proceeded to a
jury trial, which resulted in a verdict for Rhodes on February 13, 2009, with a judgment
awarded in the amount of $258,125.00 Following the trial, Rhodes filed a notice of appeal.
The only issue before this court on appeal is the trial court’s finding in the summary
4
judgment decision that the defendants owed no fiduciary duty to Rhodes.
II
{¶ 7} Rhodes’ sole assignment of error is as follows:
{¶ 8} “THE TRIAL COURT’S ENTRY OF SUMMARY JUDGMENT IN FAVOR
OF DEFENDANTS JAMES AND VICKI MILLER ON PLAINTIFF ROY RHODES’
CLAIM FOR BREACH OF FIDUCIARY DUTY WAS ERROR.”
{¶ 9} In his sole assignment, Rhodes contends that the trial court erred when it
sustained Paragon’s motion for summary judgment regarding his claim that Jim and Vicki
Miller breached their fiduciary duties to him since he was a thirty-five percent co-owner of
RRCC. Specifically, Rhodes asserts that a genuine issue of material fact exists as to
whether a partnership was formed between he and the Millers when Paragon purchased
Rhodes’ hunting business and gave him an ownership interest in the newly formed company
such that a fiduciary relationship existed which required Paragon to act in the best interests
of Rhodes regarding the management of RRCC.
{¶ 10} In its merit brief, Paragon argues that no partnership was ever formed with
Rhodes. While it is undisputed that Rhodes was given a thirty-five percent ownership
interest, Paragon argues that RRCC was merely a division of the larger company, and that
Rhodes was only an employee of RRCC to which no fiduciary duty was owed. Paragon
also asserts that Jim and Vicki Miller cannot be held personally liable to Rhodes in their
capacity as principals and managers at Paragon.
{¶ 11} An appellate court reviews an award of summary judgment de novo. Grafton
v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. We apply the same standard as the trial
5
court, viewing the facts in the case in a light most favorable to the non-moving party and
resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983),
13 Ohio App.3d 7, 12.
{¶ 12} Pursuant to Civil Rule 56(C), summary judgment is proper if:
{¶ 13} “(1) No genuine issue as to any material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence
that reasonable minds can come to but one conclusion, and viewing such evidence most
strongly in favor of the party against whom the motion for summary judgment is made, that
conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977), 50 Ohio St.2d
317, 327. To prevail on a motion for summary judgment, the party moving for summary
judgment must be able to point to evidentiary materials that show that there is no genuine
issue as to any material fact, and that the moving party is entitled to judgment as a matter of
law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The non-moving party must then
present evidence that some issue of material fact remains for the trial court to resolve. Id.
{¶ 14} Because “every business relationship is unique, no single fact or circumstance
can operate as a conclusive test for the existence of a partnership.” In re Estate of Nuss
(1994), 97 Ohio App.3d 191, 195. Partnership contracts also need not be in writing, but
may “ ‘be proven by showing acts and conduct of the parties from which the fact may be
inferred that the parties have agreed to become partners.’ ” Brewster v. Bigham, Lake App.
No. 2004-L-113, 2005 -Ohio- 6071, at ¶ 16 (citation omitted).
{¶ 15} A partnership exists where there is “(1) an express or implied contract
between the parties; (2) the sharing of profits and losses; (3) mutuality of agency; (4)
6
mutuality of control; (5) co-ownership of the business and of the property used for
partnership purposes or acquired with partnership funds.” Grendell v. Ohio EPA (2001), 146
Ohio App.3d 1, 13. In the absence of a written partnership agreement, an implied
partnership can be found from the totality of attendant facts and circumstances. Madden
Investment Co. v. Stephenson’s Apparel, 162 Ohio App.3d 51, 53, 2005-Ohio-3336.
{¶ 16} A fiduciary duty is generally defined as “ ‘ [a] duty of utmost good faith, trust,
confidence, and candor owed by a fiduciary * * * to the beneficiary * * *; a duty to act with
the highest degree of honesty and loyalty toward another person and in the best interests of
the other person.’ ” In re Trust of Bernard, Summit App. No. 24025, 2008-Ohio-4338, at ¶
20, quoting from Black's Law Dictionary (8 Ed.Rev.2004) 545. For example, “[p]artners
in Ohio owe a fiduciary duty to one another.” Dunn v. Zimmerman, 69 Ohio St.3d 304,
306, 1994-Ohio-351. We note that the law governing partnerships closely resembles that of
close corporations. Schafer v. RMS Realty, 138 Ohio App.3d 244, 273; citing Crosby v.
Beam (1989), 47 Ohio St.3d 105, 108. Controlling shareholders in close corporations owe
fiduciary duties to minority shareholders.
{¶ 17} In Busch v. Premier Integrated Med. Assoc., Ltd., Montgomery App. No.
19364, 2003-Ohio-4709, we stated that “like partners, controlling shareholders of a close
corporation owe a fiduciary duty to minority shareholders, a duty which is violated when the
majority takes action it is authorized to take which nevertheless operates to the disadvantage
of the minority and was not undertaken in good faith and for a legitimate business purpose.”
Id. at ¶ 79, citing Schafer v. RMS Realty (2000), 138 Ohio App.3d 144.
{¶ 18} Good faith is “defined generally as ‘honesty in fact in the conduct or
7
transaction concerned.’ ” Casserlie v. Shell Oil Co., 121 Ohio St.3d 55, 57, 2009-Ohio-3, at
¶ 10, quoting from R.C. 1301.01(S). The Supreme Court of Ohio has also defined the term
as follows:
{¶ 19} “ ‘A lack of good faith is the equivalent of bad faith, and bad faith, although
not susceptible of concrete definition, embraces more than bad judgment or negligence. It
imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known
duty through some ulterior motive or ill will partaking of the nature of fraud. It also
embraces actual intent to mislead or deceive another.’ ” Hoskins v. Aetna Life Ins. Co., 6
Ohio St.3d 272, 276 (citation omitted).
{¶ 20} It is undisputed that the parties did not enter into an express partnership
agreement regarding the ownership and management of RRCC. The purchase contract
containing the terms of the sale of RRCC, however, states in pertinent part:
{¶ 21} “6. Purchase Price: The purchase price is $250,000. ***
{¶ 22} “c. Roy Rhodes will maintain 35% of the value of the Roy Rhodes
Championship Call division only of Paragon Molding Limited.
{¶ 23} “d. Should [RRCC] be sold, Roy Rhodes will be entitled to 35% of the net
purchase price related to the [RRCC] division.
{¶ 24} “e. Should Paragon Molding Limited be sold as an entirety including [RRCC],
Roy Rhodes will be entitled to 35% of the net value of the [RRCC] division only.
{¶ 25} “f. Should any profits be distributed from the [RRCC] division of Paragon
Molding Limited, Roy Rhodes will be entitled to 35% of said profits after taxes.”
{¶ 26} Based on its interpretation of “Paragraph 6" of the purchase contract, the trial
8
court held that no fiduciary duty was owed to Rhodes by Paragon because “there [was] no
ownership in a classic stock or partnership sense.” The trial court further held that 35%
interest contemplated by the purchase contract was merely “designed to incentivize [sic]
[Rhodes] to enhance the value of the acquired assets, this in connection with his continued
employment, rather than an ownership interest in the company.”
{¶ 27} Construction of written contracts is “a matter of law that we review de novo.
*** Our primary role is to ascertain and give effect to the intent of the parties. * * * We
presume that the intent of the parties to a contract is within the language used in the written
instrument. * * * If we are able to determine the intent of the parties from the plain language
of the agreement, then there is no need to interpret the contract.” Saunders v. Mortensen,
101 Ohio St.3d 86, 88, 2004-Ohio-24, at ¶ 9 (citations omitted). Accord, Courtyards of
Crystal Lake Homeowners Assn. v. Bradesca, Cuyahoga App. No. 90966, 2008-Ohio-6157,
at ¶ 24.
{¶ 28} Upon review, we conclude that the trial court’s interpretation of the purchase
contract ignores the plain language in the document which affirmatively states that Rhodes
“will maintain 35% of the value” of RRCC. “Maintain” is variously defined as “bear the
expense of; carry on; commence; continue; furnish means for subsistence or existence of;
hold; keep in an existing state or condition; keep in existence or continuance ***.” Black's
Law Dictionary (5 Ed.1979) 859. In the context of the purchase contract, the only plausible
interpretation of “maintain” is that the parties intended that Rhodes retain ownership of
thirty-five percent of RRCC after Paragon purchased the company. This interpretation is
supported by the clause in the purchase contract which states that Rhodes is entitled to
9
thirty-five percent of any profits distributed by RRCC. While the purchase contract does
not affirmatively state that Rhodes owns thirty-five percent of RRCC, the document
essentially makes Rhodes a minority shareholder in RRCC, with the majority shareholder
being Paragon. While we agree with the trial court that the thirty-five percent interest was
designed to entice Rhodes to sell RRCC to Paragon, the practical effect of the offer was to
provide Rhodes with a minority ownership interest in RRCC.
{¶ 29} This interpretation is further supported by the following deposition testimony
provided by one of the owners of Paragon, Jim Miller:
{¶ 30} “Plaintiff’s Counsel: *** And isn’t it also true that you also gave [Rhodes] a
thirty-five percent interest in the [RRCC] division?
{¶ 31} “Jim Miller: That is true also.” (Trans. p. 189, lines 13-17)
{¶ 32} ***
{¶ 33} “Q: Well, we talked before about how a thirty-five percent interest was
reserved to [Rhodes], right?
{¶ 34} “A: Uh-huh.
{¶ 35} “Q: Is that a yes?
{¶ 36} “A: Yes.
{¶ 37} “Q: And so someone other than Paragon Molding owned thirty-five percent of
Roy Rhodes Championship Calls business?
{¶ 38} “Defense Counsel: Objection. Calls for a legal conclusion. But go ahead.
{¶ 39} “Jim Miller: Yes.”
{¶ 40} As the excerpt clearly establishes, even the owner of Paragon intended for
10
Rhodes to retain a thirty-five percent ownership interest in RRCC. Accordingly, this
evidence supports a conclusion that an implied partnership existed between Rhodes and
Paragon such that Rhodes was entitled to ownership of thirty-five percent of the company
itself, thirty-five percent of any profit distribution instituted by the company, and thirty-five
percent of the net profits generated during the sale of the company. It, therefore, follows
that a genuine issue exists regarding whether Paragon owed a fiduciary duty to Rhodes, who
was, ostensibly, a minority owner of RRCC.
{¶ 41} The trial court also held that, assuming a fiduciary relationship, Rhodes failed
to establish that breach of that relationship had occurred. Upon review, ample evidence
exists in the record which creates a genuine issue regarding whether Paragon engaged in
conduct which breached its fiduciary duty to Rhodes. Specifically, Rhodes points out that
Jim Miller admitted in his deposition that he essentially stripped Rhodes of his thirty-five
percent ownership interest in RRCC when he terminated his employment. Additionally,
Rhodes argues that he was excluded by Paragon from any involvement in or information
regarding his thirty-five percent interest in the company. These allegations are sufficient to
create a genuine issue with respect to whether Paragon breached its fiduciary duty to Rhodes.
Thus, the trial court erred when it sustained Paragon’s motion for summary judgment with
respect to Rhodes’ claim for breach of fiduciary duty.
{¶ 42} Lastly, the trial court held that the individual defendants, Jim and Vicki
Miller, could not be found personally liable for the actions of Paragon, the company which
they managed and directed. A corporation is a separate legal entity from its shareholders
even where there is only one shareholder in the corporation. Zimmerman v. Eagle Mtge.
11
Corp. (May 3, 1996), 110 Ohio App.3d 762, 771. Therefore, shareholders, officers, and
directors will generally not be held personally liable for the acts of a corporation. Charvat v.
Farmers Ins. Columbus, Inc., 178 Ohio App.3d 118, 133, 2008-Ohio-4353. In Belvedere
Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc (1993), 67 Ohio St.3d 274, the
Ohio Supreme Court recognized a limited exception to that rule, holding that the corporate
veil could be pierced to allow creditors to personally reach shareholders who had used the
corporation for criminal or fraudulent purposes. Specifically, the Belvedere court held that
the corporate form may be disregarded and individual shareholders held liable for wrongs
committed by the corporation when (1) control over the corporation by those to be held
liable was so complete that the corporation had no separate mind, will, or existence of its
own; (2) control over the corporation by those to be held liable was exercised in such a
manner as to commit fraud or an illegal act against the person seeking to disregard the
corporate entity; and (3) injury or unjust loss resulted to the plaintiff from such control and
wrong.
{¶ 43} Ohio courts have recognized that there is no precise test to determine whether
the elements required to pierce the corporate veil have been satisfied, and each case should
be “regarded as ‘sui generis’ and decidable on its own facts.” RCO Internatl. Corp. v.
Clevenger, 180 Ohio App.3d 211, 214, 2008-Ohio-6823; quoting Bucyrus-Erie Co. v. Gen.
Prods. Corp. (C.A.6, 1981), 643 F.2d 413, 418. Because “[o]ne of the purposes of
incorporation is to limit the liability of the individual shareholders,” the party seeking to
have the corporate form disregarded bears the burden of proof. Univ. Circle Research Ctr.
Corp. v. Galbreath Co. (1995), 106 Ohio App.3d 835, 840, citing Section 3, Article XIII of
12
the Ohio Constitution.
{¶ 44} Most recently, however, in Dombroski v. WellPoint, Inc., 119 Ohio St.3d 506,
2008-Ohio-4827, the Ohio Supreme Court held that control of a corporation must have been
exercised to commit fraud or an otherwise illegal act, and not merely an unjust act or act
committed in bad faith, in order to permit piercing of the corporate veil. In the instant case,
Rhodes does not argue nor has he presented any evidence which establishes that Jim Miller
or Vicki Miller committed fraud or an illegal act. Rhodes simply asserts that the Millers, as
the owners and principal officers of Paragon, “stripped” him of any value or benefit
associated with his thirty-five percent interest in RRCC. Thus, Rhodes has failed to meet
his burden of proof in order to disregard the corporate form and pursue the Millers in their
individual capacities. Accordingly, the trial court did not err when it held that Rhodes was
precluded from taking such an action.
{¶ 45} Rhodes’ sole assignment of error is sustained in part and overruled in part.
III
{¶ 46} Rhodes’ sole assignment of error having been sustained in part and overruled
in part, the judgment of the trial court is reversed in part, affirmed in part, and the matter is
remanded to the trial court for proceedings consistent with this opinion.
..........
FAIN, J. and VUKOVICH, J., concur.
(Hon. Joseph J. Vukovich, Seventh District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Ronald J. Kozar
13
Robert J. Surdyk
Kevin A. Lantz
Hon. Gregory F. Singer | 01-03-2023 | 08-01-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/483819/ | 812 F.2d 810
55 USLW 2584, 8 Employee Benefits Ca 1495
Abbey E. BLATT, Plaintiff-Appellant,v.MARSHALL AND LASSMAN (formerly known as Marshall, Lassmanand Company), a partnership, Louis V. Marshall andJoseph I. Lassman, Defendants-Appellees.
No. 176, Docket 86-7421.
United States Court of Appeals,Second Circuit.
Argued Nov. 26, 1986.Decided Feb. 27, 1987.
Kenneth L. Robinson, Mitchel Field, N.Y. (Levine & Robinson, P.C., Carl S. Levine and Timothy Mulcahy, Mitchel Field, N.Y., of counsel), for plaintiff-appellant.
Robert M. Milner, New York City (Javits, Robinson, Brog, Leinwand & Reich, P.C., of counsel), for defendants-appellees.
Before TIMBERS, PRATT and ALTIMARI, Circuit Judges.
ALTIMARI, Circuit Judge:
1
Abbey E. Blatt appeals from an order of the United States District Court for the Eastern District of New York granting summary judgment for defendants on the ground that they could not be considered fiduciaries under Section 3(21)(A) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Sec. 1002(21)(A). We reverse and remand for the entry of summary judgment in favor of appellant.
BACKGROUND
2
Abbey Blatt joined the accounting firm of Marshall, Dym and Lassman in 1968. He became a partner in 1977 and remained with the firm, which is now known as Marshall and Lassman, until October 3, 1983, when he left the firm.
3
During the entire period of Blatt's association, Marshall and Lassman (and its predecessors in interest) participated in a retirement plan sponsored by the American Institute of Certified Public Accountants ("AICPA"). The plan is administered by an AICPA Retirement Committee and is insured by the Mutual Life Insurance Company of New York ("MONY"). The plan allows employees of different accounting firms to pool their funds toward retirement.
4
An accounting firm that wishes to make the AICPA plan available to its employees must apply to the Retirement Committee. If the firm's application is accepted, employees who wish to take advantage of the plan may become participants. An employee's participation in the plan terminates upon the termination of that employee's services with the particular employer.
5
In its application to the Retirement Committee an employer must make several elections regarding the plan's applicability to its particular firm. These elections include: (1) the formula by which employer contributions are to be computed, and the frequency of those contributions; (2) the number of years of service required for an employee to be eligible to participate; (3) whether employees have the option to make voluntary contributions; (4) the formula for determining number of hours of service performed by employees; and (5) whether to adopt a minimum contribution provision.
6
The employer's contributions must be paid in cash to MONY at least once a year. The employer also must pay entry fees and a share of the administrative expenses, as determined by the Retirement Committee. All contributions are exclusively for the benefit of employee-participants; no plan assets ever revert to the employer. The employer may defer paying its contributions for up to one year and may, subject to conditions established by the Retirement Committee, direct MONY to transfer all the accounts of its employee-participants into another retirement plan. Finally, the employer must agree to furnish all information necessary for the convenient administration of the plan.
7
Appellant Blatt had been a participant in the AICPA plan sponsored by Marshall and Lassman. On December 9, 1983, Blatt wrote to MONY, informing them that he had left the employ of Marshall and Lassman and requesting a lump-sum distribution of the amount in his AICPA retirement account. MONY informed Blatt that no funds would be released to him until Marshall and Lassman delivered to MONY a "Notice of Change" form reflecting Blatt's status as a former member of the firm. MONY subsequently sent a Notice of Change form to Marshall and Lassman, but despite repeated requests by both Blatt and his attorney, Marshall and Lassman never executed the form. After Blatt commenced the instant federal action in April 1985, Marshall and Lassman finally executed the Notice of Change on May 17, 1985, more than one and one-half years after Blatt had left the firm.
8
Blatt's complaint alleged that the defendants were fiduciaries under ERISA, 29 U.S.C. Sec. 1001 et seq., and that they had breached their fiduciary duty to Blatt by intentionally failing to execute the Notice of Change, thereby preventing Blatt's access to his fully vested retirement funds. See 29 U.S.C. Sec. 1104. According to Blatt, the defendants' refusal to execute the Notice of Change was motivated by a desire to gain advantage over him in an unrelated suit then pending in state court which defendants had filed shortly after Blatt left the firm.
9
In a memorandum and order dated May 1, 1986, 633 F.Supp. 712, the district court found that Marshall and Lassman could not be considered fiduciaries with respect to the AICPA retirement plan under 29 U.S.C. Sec. 1002(21)(A). The opinion first notes that Marshall and Lassman did not render investment advice to the plan for a fee, or have the authority to do so, see 29 U.S.C. Sec. 1002(21)(A)(ii). Second, appellees had no discretionary role in administering the plan, see id. Sec. 1002(21)(A)(iii). After reviewing the various elections which Marshall and Lassman made in their application to the Retirement Committee, the court concluded that appellees' responsibility for making a limited number of choices respecting contributions to the plan was merely a ministerial one. The court found no other provision of the plan which conferred any discretionary authority over plan administration. Finally, appellees were found not to possess any discretionary authority with respect to management of the plan or disposition of its assets, see id. Sec. 1002(21)(A)(i). Accordingly, the court directed that summary judgment be entered for defendants.
DISCUSSION
10
The term "fiduciary" is defined in Section 3(21)(A) of ERISA:
11
[A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.
12
29 U.S.C. Sec. 1002(21)(A).
13
Congress intended the term to be broadly construed. "[T]he definition includes persons who have authority and responsibility with respect to the matter in question, regardless of their formal title." H.R.Rep. No. 1280, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 4639, 5038, 5103. According to an interpretive bulletin issued by the Department of Labor, someone who performs purely "ministerial" functions for a benefit plan is not a fiduciary. See 29 C.F.R. Sec. 2509.75-8. Such ministerial functions include the application of rules determining eligibility for participation, calculation of services and benefits, and collection of contributions. Id.
14
Thus, whether or not an individual or entity is an ERISA fiduciary must be determined by focusing on the function performed, rather than on the title held. See Amato v. Western Union International, Inc., 773 F.2d 1402, 1416-17 (2d Cir.1985), cert. dismissed, --- U.S. ----, 106 S.Ct. 1167, 89 L.Ed.2d 288 (1986); Anderson v. Ciba-Geigy Corp., 759 F.2d 1518, 1522 (11th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 410, 88 L.Ed.2d 360 (1985); Donovan v. Mercer, 747 F.2d 304, 308 (5th Cir.1984). An entity need not have absolute discretion with respect to a benefit plan in order to be considered a fiduciary, see Sixty-Five Security Plan v. Blue Cross and Blue Shield, 583 F.Supp. 380, 386-87 (S.D.N.Y.1984); rather, fiduciary status exists with respect to any activity enumerated in the statute over which the entity exercises discretion or control, see, e.g., Gelardi v. Pertec Computer Corp., 761 F.2d 1323, 1325 (9th Cir.1985).
15
We conclude that Marshall and Lassman acted as fiduciaries in this case because they exercised actual control over the disposition of plan assets. The definition of "fiduciary" under ERISA focuses on the exercise, as well as the possession, of authority or control. Thus, "a person is a fiduciary with respect to a plan to the extent (i) he exercises ... any authority or control respecting ... disposition of its assets." 29 U.S.C. Sec. 1002(21)(A)(i) (emphasis added).
16
The return of contributions to plan participants is one method of disposition of plan assets. See Sixty-Five Security Plan, 583 F.Supp. at 385 (disposition of plan assets primarily consisted of payments to plan subscribers). When Marshall and Lassman ignored Blatt's requests and delayed executing the Notice of Change form, they effectively prevented the Retirement Committee from returning Blatt's vested contributions to him. Therefore, within the plain meaning of the statute, Marshall and Lassman exercised actual control respecting disposition of plan assets. We hold that Marshall and Lassman are indeed fiduciaries to the extent of this actual control.
17
We now consider whether Marshall and Lassman breached their fiduciary duty to Blatt when they delayed executing the Notice of Change for one and one-half years. There is no need for us to remand for consideration of this issue, even though the district court did not reach it, because all parties agree on the pertinent facts.
18
An ERISA fiduciary is obligated to "discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and ... for the exclusive purpose of ... providing benefits to participants and their beneficiaries." 29 U.S.C. Sec. 1104(a)(1)(A)(i). The fiduciary is held to a "prudent man" standard of care, id. Sec. 1104(a)(1)(B).
19
A fiduciary breaches his Sec. 1104 duty to a plan participant by preventing or interfering with the receipt of benefits to which the participant is entitled. See Kann v. Keystone Resources, Inc., 575 F.Supp. 1084, 1091 (W.D.Pa.1983) (company pension plan's decision to withhold payment of benefits to which former executive was entitled was made with only the company's interest in mind, and was therefore breach of fiduciary duty); Frary v. Shorr Paper Products, Inc., 494 F.Supp. 565, 569 (N.D.Ill.1980) (pension plan manager's refusal to pay vested benefits to former employee because employee had accepted job with competitor was breach of fiduciary duty).
20
We therefore conclude that Marshall and Lassman breached their fiduciary duty to Blatt by failing to deliver the Notice of Change form to MONY until more than one and one-half years after Blatt left the firm. Appellees' unreasonable delay in performing such a simple function was decidely not "solely in the interest of [Blatt]," nor did it serve "the exclusive purpose of providing benefits to [Blatt]." 29 U.S.C. Sec. 1104(a)(1)(A)(i).
21
We reverse and remand for entry of summary judgment in favor of Blatt on the issue of liability, and for consideration of any fees, costs, and damages to which Blatt may be entitled. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1538734/ | 4 B.R. 444 (1980)
In re GEIGER ENTERPRISES, INC., Debtor in Possession.
No. Civ-80-134.
United States District Court, W.D. New York.
March 3, 1980.
As Amended March 12, 1980.
Gary F. Amendola, Rochester, N.Y., for Central Trust Co., Rochester, N.Y.
Angelynn C. Hall, U.S. Dept. of Justice, Tax Div., Washington, D.C., for the U.S.
Robert M. Spaulding, Buffalo, N.Y., for Amico Oil Inc.
*445 Daniel Evans Brick, North Tonawanda, N.Y., for Geiger Enterprises, Inc. (debtor in possession).
Donald P. Sheldon, Buffalo, N.Y., for Official Creditors Committee.
MEMORANDUM and ORDER
ELFVIN, District Judge.
Central Trust Company of Rochester, N.Y. ("Central Trust") and the United States of America ("the government") appeal from an order of the Honorable Beryl E. McGuire, United States Bankruptcy Judge, entered February 8, 1980. The order dismissed a then pending bankruptcy proceeding commenced by Geiger Enterprises, Inc. ("Geiger").
The factual background is not in dispute.
On August 15, 1979 Geiger filed a petition for relief under Chapter XI (formerly 11 U.S.C. § 701 et seq.) of the Bankruptcy Act of 1898 ("the Old Act"). After the October 1, 1979 effective date of the Bankruptcy Reform Act of 1978 ("the New Act") seven corporations, which are affiliates or subsidiaries of Geiger, and Harold and Patricia Geiger filed petitions for relief under Chapter 11 of the New Act. At some point, various of the parties determined that a substantive consolidation of the petitions was desirable but found that such was impracticable because Geiger's petition was subject to Chapter XI of the Old Act ("Old Chapter XI"), whereas the other petitions were subject to Chapter 11 of the New Act ("New Chapter 11"). To alleviate this obstacle, Geiger moved to dismiss its petition under Old Chapter XI with the representation that it would immediately refile a petition under New Chapter 11.
Following hearings on January 30, 1980 and February 4, 1980, Judge McGuire, in an order entered February 8, 1980, granted Geiger's motion to dismiss. In an accompanying Memorandum, Judge McGuire stated in part:
"The debtor has offered evidence of the probable necessity for substantive consolidation of the above cases and three (3) others because of the condition of the debtor's financial affairs. Indeed, the Government concedes the probability of the need for substantive consolidation.
"In the Court's view, substantive consolidation of the subsidiaries, affiliates and/or principals filed under the new Bankruptcy Code with Geiger Enterprises, Inc., if it remains in the former Chapter XI, clearly is impossible. Even a cursory review of the differing substantive provisions and distribution rules renders this conclusion inescapable.
"The motion is governed by the provisions of 11-42 of the Rules of Bankruptcy Procedure. It is unique in that the purpose of dismissal is to permit refiling under compatible substantive law provisions and distribution rules and, thus, permit substantive consolidation. In opposing the motion, the parties have argued that Congress did not intend to permit this result. To the contrary, there is no reason to believe that the Congress even envisioned a problem such as that at hand.
"Practical, economical and expeditious administration and the avoidance of unnecessary and costly litigation by the alternative approach suggested by the Government [piercing the corporate veil of the affiliate and subsidiary corporations and bringing them under Old Chapter XI] render dismissal to permit refiling to be in the best interest of this estate."
Immediately after the entry of the February 8, 1980 order, Geiger filed a petition for relief under New Chapter 11. Thereafter, several additional corporations, which are also affiliates or subsidiaries of Geiger, filed petitions for relief under New Chapter 11.
Central Trust, a secured creditor of Geiger, and the government, possessor of a lien against Geiger for unpaid taxes, appealed the February 8, 1980 order under Bankruptcy Rule 801 and thereafter moved to stay said order pending appeal under Bankruptcy Rule 805. The motion for a stay was argued February 8, 1980 and, in an Order entered February 11, 1980, I granted the stay and further ordered that the parties *446 appear before me February 15, 1980 to argue the merits of the appeal. The appeal was argued on said day and the matter was taken under advisement.
It is agreed that the instant appeal turns upon the proper construction of section 403(a) of the New Act (11 U.S.C. prec. § 101) which provides:
"(a) A case commenced under [the Old Act], and all matters and proceedings in or relating to any such case, shall be conducted and determined under such Act as if [the New Act] had not been enacted, and the substantive rights of parties in connection with any such bankruptcy case, matter, or proceeding shall continue to be governed by the law applicable to such case, matter, or proceeding as if [the New Act] had not been enacted."
Central Trust and the government argue that the February 8, 1980 dismissal of an Old Chapter XI proceeding upon the representation that the debtor would immediately refile under New Chapter 11 violates section 403(a) in that the bankruptcy court will apply the New Act to a case commenced under the Old Act and the substantive rights of the parties thereto will be governed by the New Act, rather than by the Old Act. Appellants primarily rely upon the plain meaning of section 403(a) and its legislative history. Appellees assert that Congress did not envision the situation where, as here, petitioners were filed by debtors before and after October 1, 1979 and a substantive consolidation of said petitions is in the best interest of the debtors and creditors. They urge that I fill such alleged gap in section 403(a) by creating a narrow exception permitting a debtor to voluntarily dismiss its Old Chapter XI petition in order to refile its petition under New Chapter 11.
Under the so-called plain meaning rule, "the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, * * * the sole function of the courts is to enforce it according to its terms." Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 194, 61 L. Ed. 442 (1917). See, 2A Sutherland on Statutory Construction 48 (4th Ed. 1973). In the instant case, the plain meaning of section 403(a) is that the bankruptcy court must apply the Old Act to cases filed prior to October 1, 1979 and that such cases shall proceed as if the New Act had never been enacted.
When confronted with a statute which is plain and unambiguous on its face, courts ordinarily do not look to legislative history as a guide to its meaning. See, Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 n. 29, 98 S. Ct. 2279, 2296, 57 L. Ed. 2d 117 (1978); 2A Sutherland on Statutory Construction, supra, at 186-87, 98 S. Ct. at 2297-98. However, the legislative history of section 403(a) merely confirms the above plain meaning of said section. H.R.Rep. No. 595, 95th Cong.2d Sess. 287-88, 459, reprinted in [1978] U.S.Code Cong. & Admin.News, pp. 5963, 6244, 6414-15. See, S.Rep. No. 989, 95th Cong.2d Sess. 20, 166-67, reprinted in [1978] U.S.Code Cong. & Admin.News, pp. 5787, 5806, 5952-53; 1 Collier on Bankruptcy ¶ 7.03[1] (15th ed. 1979).
Given the plain meaning of section 403(a) and its legislative history, I find that Judge McGuire erred in permitting Geiger to voluntarily dismiss its Old Chapter XI petition in order to refile under New Chapter 11. Such dismissal and refiling would permit the bankruptcy court to apply the New Act to a petition filed under the Old Act and therefore said actions constitute an impermissible circumvention of section 403(a).
Additionally, I am unpersuaded by appellees' argument that a narrow judicial exception should be created because Congress did not consider the situation presented by this case. Had Congress intended that a bankruptcy judge be given discretion in determining what law should be applied to cases commenced under the Old Act, it could have done so. Compare, former 11 U.S.C. § 676(c). Instead, Congress established a clear and simple rule to wit, apply the Old Act to cases commenced under the *447 Old Act. While such rule may render a desirable substantive consolidation difficult or impossible in this case, the bankruptcy court must apply the provisions of Old Chapter XI to Geiger's petition for relief inasmuch as such action was filed prior to October 1, 1979 under the Old Act.
It is therefore hereby
ORDERED that the February 8, 1980 order of the Honorable Beryl E. McGuire, United States Bankruptcy Judge, is reversed.
And it is further hereby
OPINED that the instant Memorandum and Order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from said Memorandum and Order may materially advance the ultimate termination of the litigation pending in the United States Bankruptcy Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/553855/ | 922 F.2d 1146
59 USLW 2435, Bankr. L. Rep. P 73,776
In Re Charles G. RAYNOR, Sr., aka/dba fdba AAA Distributorsand Associates, New Bern Drag Strip, Inc., AMISAuto Supply, Auto Parts Distributors ofHavelock, Debtor.M & M TRANSMISSIONS, INC., Plaintiff-Appellee,v.Charles G. RAYNOR, Sr., Defendant-Appellant.
No. 89-3356.
United States Court of Appeals,Fourth Circuit.
Argued Oct. 3, 1990.Decided Jan. 10, 1991.
Keith E. Fountain (argued), Lanier & Fountain, Jacksonville, N.C., for defendant-appellant; Gordon E. Robinson, Jr., on brief.
Stephen Graham Inman (argued), Singleton, Murray & Craven, Fayetteville, N.C., for plaintiff-appellee; Ocie F. Murray, Jr., on brief.
Before CHAPMAN and NIEMEYER, Circuit Judges, and BUTZNER, Senior Circuit Judge.
BUTZNER, Senior Circuit Judge:
1
The narrow issue in this appeal is whether the district court properly denied discharge of a debtor by accepting as res judicata a prior default judgment awarding damages for fraud. We conclude that the default judgment provides an insufficient basis for the denial of discharge. We reverse and remand the case with directions to the bankruptcy court to conduct an adversary evidentiary proceeding on the issue of fraud in order to decide whether the debtor should be discharged.
2
* M & M Transmissions, Inc. (M & M) contracted with AAA Distributors and Associates, Inc. (AAA) to purchase automobile repair equipment. Subsequently, M & M sued AAA and its agent, Charles G. Raynor, Sr., in a North Carolina court. Raynor engaged counsel to represent him and paid a retainer of $300. His counsel did not file a formal appearance or an answer.
3
The state court set the case for trial on October 2, 1986. During the preceding six months Raynor and his attorney did not have any contact. Just before trial the attorney attempted to phone Raynor twice but was unable to reach him. Since nobody answered Raynor's phone, his attorney left no message. On the day of the trial Raynor's attorney moved to withdraw. The trial court granted the motion. This left Raynor with no notice of the trial and no representation. The trial court entered a default judgment against AAA and Raynor jointly and severally in the sum of $226,000 for breach of contract and express and implied warranties, fraud, punitive damages, and unfair or deceptive trade practices. The trial court also awarded M & M a $15,000 attorney fee.
4
After receipt of a motion to claim exempt property, Raynor learned of the default judgment and his counsel's withdrawal. Raynor moved for relief from judgment, but the trial court denied his motion. Finding no abuse of discretion on the part of the trial court, the North Carolina Court of Appeals affirmed the judgment in part but remanded with directions that M & M elect a remedy under either the unfair trade practices claim or the fraud claim. M & M elected the fraud remedy, and the trial court entered judgment for breach of contract, fraud, and punitive damages in the amount of $144,000.
II
5
Raynor voluntarily petitioned for bankruptcy. M & M filed a complaint initiating an adversary proceeding to determine whether Raynor should be discharged from the judgment debt. Raynor, represented by different counsel, filed an answer protesting that he had not had an opportunity to present his defense when the trial court entered judgment against him. M & M then filed a motion for summary judgment. Raynor filed an affidavit setting forth his version of the transaction, disputing the finding of fraud on which M & M's judgment was based.
6
The bankruptcy court stated that the only evidence it had in support of the motion for summary judgment was the record in the state district court. This included the complaint, the trial court's judgment, the trial court's order denying relief from judgment, and the court of appeals' opinion holding that the trial court did not abuse its discretion by denying Raynor's motion for relief from the judgment and remanding the case to require an election. M & M also presented a long list of Raynor's prior judgments.
7
The bankruptcy court properly held that North Carolina law and bankruptcy law were similar with respect to the elements of fraud and the standard of proof. It then concluded:
8
This court, in its own independent judgment, concludes that the determination that the defendant was guilty of fraud, rendered by the District Court of New Hanover County, North Carolina, was proper. In the interest of justice and judicial economy, this court chooses not to look behind the state court findings, but instead applies the doctrine of res judicata in refraining from relitigating those issues aptly disposed of in the lower court.
9
The bankruptcy court entered summary judgment for M & M in the amount of $226,000 and denied dischargeability.
10
Raynor appealed to the district court which, affirming the bankruptcy court, held that the default judgment was res judicata on the issue of fraud and that the debt was not dischargeable. It corrected the judgment entered by the bankruptcy court, reducing it to $144,000. This appeal followed.
III
11
Brown v. Felsen, 442 U.S. 127, 128, 99 S.Ct. 2205, 2207, 60 L.Ed.2d 767 (1979), reiterates that although discharge is intended to provide the debtor with " 'a new opportunity in life,' " this opportunity is limited "to the 'honest but unfortunate debtor.' " (Citations omitted.) For this reason, the Act does not discharge an individual debtor from "any debt ... for money, property, [or] services ... to the extent obtained by false pretenses, a false representation, or actual fraud...." 11 U.S.C. Sec. 523(a)(2)(A) (1988). Brown v. Felsen in some respects is the converse of the controversy between M & M and Raynor, but the principles it explains are relevant. In that case the parties settled a suit by consenting to a judgment based on a stipulation. Neither the stipulation nor the judgment disclosed the nature of the liability of the debtor, who subsequently filed a petition for bankruptcy. The creditor sought to prevent the debtor's discharge on the ground of fraud. The debtor resisted, arguing that the judgment, which lacked any indicia of fraud, was res judicata. Reversing the court of appeals, the Court said:
12
Refusing to apply res judicata here would permit the bankruptcy court to make an accurate determination whether respondent in fact committed the deceit, fraud, and malicious conversion which petitioner alleges. These questions are now, for the first time, squarely in issue. They are the type of question Congress intended that the bankruptcy court would resolve.
13
442 U.S. at 138, 99 S.Ct. at 2212.
14
Brown v. Felsen does not preclude reliance on an underlying judgment in all cases concerning the question of discharge. This circuit's leading case, Combs v. Richardson, 838 F.2d 112 (4th Cir.1988), involved the question of discharge under Sec. 523(a)(6) for assault. The reasoning of the court clearly states the rule of this circuit:
15
We hold that the judgment debtor here may be precluded from relitigating an issue that was actually litigated and decided in an earlier proceeding and that was necessary to the decision. However, the determination that an issue was actually litigated and necessary to the judgment must be made with particular care. Here an examination of the jury instructions and verdict in the earlier tort action clearly demonstrates that the willful and malicious nature of [the debtor's] actions was actually and necessarily litigated.
16
838 F.2d at 113 (citation omitted).
17
We have consistently applied the principles explained in Combs. In Long v. West, 794 F.2d 928 (4th Cir.1986), the issue was whether a lump-sum payment was alimony or a property settlement. Examination of the instructions, the verdict, and the divorce decree showed that the parties litigated the issue, that the court instructed on the difference between alimony and a property settlement, and that the jury returned a verdict establishing that the payment was alimony. Consequently, we held that the bankrupt could not be discharged from the debt under Sec. 523(a)(5).
18
In Whitson v. Middleton, 898 F.2d 950 (4th Cir.1990), the issue was whether Sec. 523(a)(9) precluded discharge of a debtor from a state court default judgment arising out of a motor vehicle accident because the debtor's intoxication caused the accident. The debtor argued that since the judgment creditors' complaint in state court alleged only negligence, he was entitled to a discharge. The bankruptcy court properly rejected this argument and heard evidence proving that the debtor had been intoxicated. Its denial of a discharge was affirmed on appeal.
19
In re Myers, 52 B.R. 901 (Bankr.E.D.Va.1985), dealt with a controversy similar to the dispute between M & M and Raynor. The Commonwealth of Virginia obtained a default judgment in state court against Mr. and Mrs. Myers to recover the proceeds of hunting and fishing licenses that they sold as agents of the Commonwealth. After the Myers filed a petition in bankruptcy, the Commonwealth sought to preclude their discharge under Sec. 523(a)(4), which bars discharge of a bankrupt from debts incurred by "fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny." With respect to the issue of collateral estoppel, the bankruptcy court said:
20
The [Commonwealth] asserted that this Court should be bound by the issues determined in the state court proceeding, and that the debtor in this case is barred by the doctrine of collateral estoppel from denying there was a breach of fiduciary duty. However, the doctrine of collateral estoppel only precludes relitigation of issues actually and necessarily decided, and it is well established that a state court default judgment does not have collateral estoppel effect because it is not the result of actual litigation.
21
52 B.R. at 903-04 n. 1 (citations omitted). After hearing evidence, the bankruptcy court decided that the Myers' obligation was a simple debt, not defalcation or embezzlement, and granted discharge.
22
The common denominator of these four discharge cases is their recognition that an indispensable requirement of res judicata (more precisely, issue preclusion or collateral estoppel) is actual litigation of the issue. See Restatement (Second) Judgments Sec. 27 (1982). They illustrate the law of the circuit: To preclude a debtor from litigating an issue dispositive of discharge, the record of the case giving rise to the judgment debt must show that the issue was actually litigated and determined by a final valid judgment in an earlier proceeding and that it was necessary to the decision. Combs v. Richardson, 838 F.2d at 113; see also Restatement (Second) Judgments Sec. 27. Moreover, the bankruptcy court must determine whether the issue was actually litigated "with particular care." Combs v. Richardson, 838 F.2d at 113.
IV
23
The record of the state court proceedings discloses that the issue of fraud was not actually litigated. Raynor was not aware of the proceeding. The court's findings of fact and conclusions of law supporting its judgment were prepared by M & M's counsel. The record contains no transcript of the evidence or depositions.
24
Raynor was present when the court heard his motion to be relieved of the judgment. The court found that Raynor was at fault because he failed to keep in touch with his counsel. It also found that he presented no meritorious defense to fraud. In the exercise of its discretion the court denied Raynor's motion for relief of the judgment. The issue of fraud was not actually litigated at the hearing on the motion. The record discloses no cross-examination of M & M's witnesses, and the court placed the burden of showing a defense to fraud on Raynor. This allocation of the burden of proof is contrary to the rule in bankruptcy that the party who challenges discharge--in this instance M & M--must prove the dispositive statutory factor for nondischarge. See Long v. West, 794 F.2d at 930.
25
In the state appellate court, the issue of fraud was not actually litigated. That court held that the trial court had not abused its discretion in denying relief from the default judgment. The error that the appellate court corrected in the judgment dealt with election of remedies and not with the question of the existence of fraud.
V
26
Because the issue of fraud was not actually litigated, M & M cannot invoke the default judgment to bar Raynor's discharge by relying on res judicata or issue preclusion. See In re Myers, 52 B.R. at 903-04 n. 1; Restatement (Second) Judgments Sec. 27 comment e (default judgment cannot support issue preclusion).
27
The judgment of the district court is reversed, and this case is remanded with directions that the bankruptcy court conduct an evidentiary hearing on the issue of fraud to determine whether Raynor should be discharged.
28
REVERSED AND REMANDED.
NIEMEYER, Circuit Judge, dissenting:
29
I believe the record of the North Carolina state court proceedings adequately demonstrates that, as the product of actual litigation, Raynor was adjudged to have obtained money by fraud when incurring the debt that he now seeks to discharge in bankruptcy. Therefore, I would affirm the judgment of the district court which concluded that the debt is not dischargeable.
30
The record in this case demonstrates that the defendant, Raynor, was served with process issuing from the North Carolina district court, in connection with a complaint filed by M & M Transmissions, Inc., charging him with breach of warranty, fraud and deceptive trade practices. J.A. 42. On receipt of suit papers he retained Donald E. Britt, Jr. as his counsel and paid him a retainer. Because settlement discussions were ongoing, Britt never entered his appearance formally, but there is no dispute that Britt acted as Raynor's attorney. Britt attended several meetings with Raynor and negotiated a settlement agreement on his behalf, which Raynor signed. J.A. 44. Because of difficulties in communication between Britt and Raynor and Raynor's refusal to abide by what he had undertaken to do, settlement failed and Britt withdrew his appearance before trial. J.A. 46-47.
31
When the case was called for trial on October 2, 1986, neither Raynor nor Britt appeared. The plaintiff, M & M Transmissions, did appear and presented testimony and documentation in support of its claim. J.A. 20. Approximately 45 days later the district court judge, Judge Charles E. Rice, entered findings of facts and conclusions of law based on the evidence presented. Whether or not the form of those findings was prepared by counsel, it is apparent that Judge Rice reviewed and adopted them. He signed them on November 17, 1986, J.A. 36, and reviewed them again at a post-judgment hearing at which Raynor and the attorneys involved testified. J.A. 37-41.
32
In the findings of fact Judge Rice confirmed that he heard testimony and received other evidence which detailed facts justifying fraud. Over some fifteen single-spaced pages, Judge Rice described how Raynor sold used equipment as new and how Raynor misrepresented to M & M Transmissions that he had purchased the equipment when in fact he had leased it without ever making payments on the lease. J.A. 18-34. Judge Rice found that Raynor made numerous misrepresentations about the source of the equipment, its financing, its value, its warranties and its capabilities. He concluded from the facts:
33
That the representations and statements of the defendant, Charles G. Raynor, individually and as agent for the Defendant AAA, were known by the Defendant, Raynor, to be false at the time the same were made to the Plaintiff, through its President, Milton M. Dobbins.
34
That said actions, representations and statements on the part of the Defendant, Charles G. Raynor, individually and as agent for the Defendant, AAA, were done with the intent to induce the Plaintiff to purchase and accept delivery of the machinery.
35
That the Plaintiff relied on these representations made by the Defendants, and said reliance was reasonable on the part of the Plaintiff.
36
That relying on such representations, the Plaintiff was induced to accept the machinery delivered to it by the Defendants.
37
That as a result of the fraud perpetrated on the Plaintiff by the Defendant, Raynor, individually and as agent for the Defendant, AAA, the Plaintiff has suffered damages in the sum of $50,000.00.
38
J.A. 35.
39
After the entry of judgment, Raynor appeared through another attorney and moved to set aside judgment on the ground that Raynor did not appear because he was unaware of the trial date. Judge Rice conducted another hearing in July 1987 at which Raynor personally testified on the issue of whether the judgment should be set aside and on any defense that he might have to the findings of fraud. Judge Rice concluded, on the completion of that hearing:
40
That nothing about this file, nor any of the evidence presented by the Defendants in support of the Motions filed herein, support[s] any finding of mistake, inadvertence, surprise or excusable neglect, or any other reason that would justify relief for the Defendants from the operation of the Judgment of October 2, 1986, filed on November 17, 1986.
41
That there does not appear, in pleadings filed herein, that the Defendants have a meritorious defense to this action, and the Court simply cannot find from the facts adduced at this hearing, that there is any meritorious defense, as the Defendants merely deny that they owe the Plaintiff any sum of money.
42
J.A. 47-48. In reaching his conclusions the trial judge observed that Raynor was no stranger to lawsuits, citing to eleven pages of judgments that had been entered against Raynor and his companies. J.A. 42. The court had earlier found that after suit was served on Raynor, he contacted the president of M & M Transmissions and told him to "take his best shot." Raynor further informed the president that any judgment against Raynor "would be meaningless." J.A. 31. It is noteworthy, moreover, that Judge Rice explicitly found that at the hearing in July 1987 Raynor was not truthful. J.A. 46.
43
The judgment of the district court of North Carolina was appealed to the Court of Appeals of North Carolina. In a written opinion affirming the district judge, the North Carolina Court of Appeals concluded that the district judge did not err in refusing to vacate the judgment. It stated:
44
The trial court's findings and conclusions contained in the order are amply supported by evidence in the record.... No meritorious defense can be found in the pleadings or facts adduced at the hearing to support their motion for relief from final judgment.
45
J.A. 52-53. The court observed that the trial court had found that the plaintiff "successfully proved its claim of fraud and also its claim of unfair and deceptive trade practices." J.A. 53. The court concluded, however, that based on North Carolina law, the plaintiff could not have a remedy for both actions and required the plaintiff to elect whether to proceed on the count for fraud or on the count for deceptive trade practices. J.A. 54-55. M & M Transmissions elected to proceed on fraud.
46
There can be no doubt that the judgment entered by the North Carolina state courts is based on the fraud of Raynor in misrepresenting the equipment that he sold to M & M Transmissions. The facts reveal that the fraud was pervasive and was repeatedly covered up by Raynor. Moreover, it was also the judgment of the North Carolina courts that Raynor's failure to appear for trial was no defense.
47
On this record the North Carolina judgment is a proper judgment for which due recognition may be given by a bankruptcy court. Although Raynor did not appear to present his own evidence and to cross examine, the judgment entered was based on duly admitted evidence at a scheduled trial. That Raynor did not appear may have been a matter of defense, but he raised that point and was permitted to present all the evidence he had available at a later hearing to justify his position, including evidence of any defense to the fraud claim. The court again ruled against him and an appellate court affirmed.
48
Collateral estoppel will bar relitigation of an issue previously decided if the party against whom the decision is asserted had "a full and fair opportunity" to litigate that issue in the earlier case. Allen v. McCurry, 449 U.S. 90, 94-95, 101 S.Ct. 411, 414-415, 66 L.Ed.2d 308 (1980). When applied to bankruptcy proceedings, the Supreme Court has admonished that res judicata effect will not be afforded dischargeability issues which could have been, but were not, litigated in an earlier proceeding. Brown v. Felsen, 442 U.S. 127, 138-39, 99 S.Ct. 2205, 2212-13, 60 L.Ed.2d 767 (1979). See also Combs v. Richardson, 838 F.2d 112, 115 (4th Cir.1988) (collateral estoppel bars relitigation of those issues actually and necessarily litigated).
49
Applying those principles here, I believe that the issues were actually and necessarily litigated and that, under the holding of Combs, Raynor should not now be given another opportunity to litigate them.
50
Accordingly, I respectfully dissent and vote to affirm. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/606332/ | 992 F.2d 1329
21 Media L. Rep. 1426
CHURCH OF SCIENTOLOGY INTERNATIONAL, Plaintiff-Appellant,v.Mitchell DANIELS, Defendant-Appellee.
No. 92-1752.
United States Court of Appeals,Fourth Circuit.
Argued March 2, 1993.Decided May 4, 1993.
Jonathan W. Lubell, Morrison, Cohen, Singer & Weinstein, New York City, argued (Arlene R. Smoler, Michael L. Hertzberg, on brief), for plaintiff-appellant.
David Alan Rudlin, Hunton & Williams, Richmond, VA, argued (Thomas G. Slater, Jr., R. Hewitt Pate, on brief), for defendant-appellee.
Before ERVIN, Chief Judge, MURNAGHAN, Circuit Judge, and RESTANI, Judge, United States Court of International Trade, sitting by designation.
OPINION
MURNAGHAN, Circuit Judge:
1
In June of 1991, the Church of Scientology International (CSI) ran a series of full page advertisements in USA Today Newspaper. Several of the ads spoke out against the use of drugs for the treatment of mental illness and depression, and targeted in particular the drug Prozac and its manufacturer Eli Lilly & Company. "Eli Lilly: Purveyor of dangerous drugs," read one caption. "What U.S. Drug Company Produced a Drug Named After Adolf Hitler?" asked another. "How much more human misery will occur before Eli Lilly & Company is held accountable for the effects of its dangerous drugs?" queried a third.
2
Shortly thereafter, CSI and Mitchell Daniels, Vice President of Eli Lilly, wound up in court. Not surprisingly, the issue presented to the court involved the tension between the right of an individual or corporation to protect its reputation and the conflicting right to free speech under the First Amendment. The allegedly defamatory statement at issue, however, was one made not by Church of Scientology International, but by Mitchell Daniels.
3
Daniels of Eli Lilly had responded to the USA Today advertisements run by CSI attacking the company by requesting an audience with the editorial board at USA Today. The following day the paper quoted him as saying:
4
The source of virtually everything you've heard about Prozac has come from the Scientologists, with a boost from trial lawyers whose self-interest is obvious. One thing we want you to understand is that the Church of Scientology is no church. It's a commercial enterprise. Every judge and every investigative journalist who has ever looked at it has come away with that conclusion. It is organized for only one purpose, which is to make money.
5
CSI brought suit against Daniels in the United States District Court for the Eastern District of Virginia, demanding $50,000 in compensatory damages and $20 million in punitive damages. It claimed that Daniels' quoted statement could be construed as meaning that "every judge" who had ever considered the question had concluded that the Church of Scientology International was "no church," and that such a statement was false and defamatory. Defendant Daniels moved for summary judgment. After hearing oral argument, the district court granted Daniels' motion from the bench on the grounds that the challenged statement was not defamatory as a matter of law and that plaintiff had failed to present evidence upon which a reasonable jury could find actual malice by clear and convincing evidence. CSI has appealed.
I.
6
Appellant CSI contends on appeal that summary judgment was error because a jury could find that the challenged statement prejudiced CSI in the conduct of its religious affairs and thus was defamatory per se. Defendant-appellee Daniels advances three reasons why CSI's claim of defamation per se is unsupported. First, Daniels contends that his statement was not "of and concerning" the plaintiff. CSI is but one member of a loosely related group of entities that espouse Scientology. The statement, Daniels contends, pertained to the Church of Scientology as a movement and did not target CSI. See Gazette, Inc. v. Harris, 229 Va. 1, 37, 325 S.E.2d 713, 738 (1985) (plaintiff must show that the defamatory statement was intended to refer to him and would be so understood by persons reading it who knew him); Ewell v. Boutwell, 138 Va. 402, 409, 121 S.E. 912, 915 (1924) (defamatory statement about a large group cannot support a libel action by a member of the group).*
7
Second, Daniels argues that the statement is not defamatory as a matter of law. The defamatory meaning sued upon by CSI--"every judge has concluded that the Church of Scientology is no church"--is constructed only by leaving out significant portions of the actual quoted statement, he contends. Daniels takes the position that even if the plaintiff's version of the statement is accepted, the statement does not contain, as it must, an "imputation that is 'necessarily hurtful' in its effect upon plaintiff's business and [ ] affect[s] him in his particular trade or occupation." Fleming v. Moore, 221 Va. 884, 889-90, 275 S.E.2d 632, 636 (1981) (citations omitted). Daniels points out that under CSI's religious practices, parishioners are required to purchase all services according to a fixed price schedule. Any damages to the reputation of the entity, he contends, would necessarily show up in CSI's financial statements. But CSI has conceded that it has suffered no actual damages. Accordingly, Daniels maintains, the statement could not have been "necessarily hurtful" to the plaintiff's trade or business.
8
Finally, Daniels argues that CSI has not presented evidence upon which a jury could find actual malice. CSI has admitted that it is a public figure, and as such, it must prove that the defendant published the defamatory statement with actual malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (constitutional guarantees require that a public official, in order to recover in defamation, must prove that the statement was a falsehood made with actual malice); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (public figures as well as public officials must prove actual malice to recover for defamation). Daniels contends that he based his statement on a substantial volume of reputable information, and that CSI's allegations of fabrication, purposeful avoidance of the truth, and hostility do not constitute evidence of actual malice (knowing falsity or reckless disregard of the truth) as defined and applied by the Supreme Court.
9
Because the issue of actual malice is dispositive of the case, we need not decide the questions of whether or not the alleged statement was of and concerning CSI and whether or not it contained an imputation necessarily hurtful to the business of CSI. For purposes of the discussion of actual malice, we will assume that a jury could find a defamatory meaning in Daniels' statement, and that a jury could find that the statement was of and concerning CSI. However, we need not and do not so hold. A decision on the issue of defamation as a matter of law would require an extended discussion of whether a reader would construe Daniels' statement as referring to CSI rather than to the entire Scientology movement; whether CSI could derive the defamatory meaning sued upon from an edited version of the actual statement; whether the statement constituted protected opinion, rhetorical hyperbole, or fact capable of being proved true or false; whether an organization such as CSI may claim defamation per se and therefore allege no actual damages; and whether the statement was necessarily hurtful to CSI's religious business. Such a discussion would be superfluous to our resolution of CSI's claims.
II.
10
In order to defeat a motion for summary judgment, a public figure libel plaintiff must present evidence to raise a jury question over whether a defendant published a false and defamatory statement with actual malice. While a plaintiff must meet a "clear and convincing" standard of proof of actual malice, the court must draw all possible inferences in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986). Defendant Daniels must demonstrate the absence of genuine issues, but with regard to actual malice, an issue on which the plaintiff bears the burden of proof, he may obtain summary judgment if CSI fails to produce evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
11
Actual malice is defined as either knowledge of falsity or reckless disregard for the truth or falsity of the statement. New York Times v. Sullivan, 376 U.S. at 280, 84 S.Ct. at 726. CSI's allegation that Daniels knew of the falsity of his statement derives from Daniels' deposition testimony that he had read two published court opinions before making his comment. CSI claims that neither opinion supports Daniels' statement and that they in fact directly refute it. The cases, CSI claims, both recognize CSI as a religious institution. Thus when Daniels said that "every judge" had found the Church of Scientology to be "no church," he was deliberately falsifying and concocting wholly untrue accusations. See Curtis Publishing Co., 388 U.S. at 153, 87 S.Ct. at 1990 (deliberate falsification constitutes actual malice); Hudnall v. Sellner, 800 F.2d 377, 382 (4th Cir.1986) (evidence supported finding of actual malice where the legitimate inference drawn from testimony was that defendant "knowingly concocted the accusations out of whole cloth"), cert. denied, 479 U.S. 1069, 107 S.Ct. 960, 93 L.Ed.2d 1008 (1987). See also Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1071 (5th Cir.1987) (when acknowledged source of a defamatory statement does not contain the information supposedly derived from it, reckless fabrication can be inferred).
12
CSI's charge that Daniels had knowledge of the falsity of his statement because he had read two court opinions does not stand up under scrutiny of those opinions. The opinions are susceptible to more than one interpretation as to whether they concluded that the Church of Scientology was a "church"--within the meaning of Daniels' statement--or indeed whether they addressed that question at all. In each case, the issue before the court was whether the Church of Scientology of California conformed to the requirements for tax exempt status under I.R.S. Code § 501. In both cases the courts noted that they accepted the Church's contention that it was organized as a religious institution. See Church of Scientology v. Commissioner, 83 T.C. 381, 385 (1984) ("the parties have stipulated that petitioner was organized exclusively for religious purposes.... The Court adopts this stipulation and finds that petitioner was organized to propagate the faith of Scientology, a religion founded by L. Ron Hubbard"); Church of Scientology v. Commissioner, 823 F.2d 1310, 1315 (9th Cir.1987) ("Neither the [Tax] Commissioner, nor the Tax Court, nor this court questions that the Church of Scientology of California was organized for a bona fide religious purpose.") Nevertheless, the Tax Court upheld the Tax Commissioner's determination of tax deficiencies and late filing penalties against the Church of Scientology of California. The Court held that the Church did not qualify for tax exempt status under §§ 501(a) and 501(c)(3) because it was operated for a substantial commercial purpose, its earnings inured to the benefit of its founder, and it violated well-defined standards of public policy.
13
On appeal, the Ninth Circuit addressed the Church's expressed concern that the Tax Court had failed to recognize it as a bona fide religion. Under the applicable subsection, the court explained, an organization, in order to be exempt, must show that it is both organized and operated exclusively for religious or charitable purposes. The fact that the entity was organized for a religious purpose did not end the inquiry. The court went on to uphold the revocation of tax exempt status claimed by the Church on the basis that the entity did not operate exclusively for religious or charitable purposes since part of its net earnings inured to the benefit of private individuals. Church of Scientology, 823 F.2d at 1315.
14
A conclusion, based upon those two opinions, that courts had determined that the Church of Scientology was "no church" is perhaps, in legal terms, not wholly accurate. However, CSI's assertion that these two opinions definitively refute Daniels' statement and show that courts have determined that CSI is indeed a bona fide "church," is an equally imprecise conclusion. We point out first that the cases do not involve the Church of Scientology International, but rather the Church of Scientology of California (CSC). Second, church status was not involved. The opinions merely decided that, although CSC had been organized for religious purposes, it did not operate exclusively for religious purposes. A reading of the two judicial opinions, then, fairly permits the conclusion that the courts decided that CSC was a church as well as the conclusion that it was not. While both statements are, speaking in absolute precision, arguably incorrect, neither rises to the level of deliberate falsification. Some slight inaccuracy when describing the background of a case does not equate to deliberate misrepresentation or knowing fabrication.
15
CSI has emphasized, however, that Daniels, who is a lawyer, stated affirmatively that he had knowledge of what "every judge" who had ever looked at the matter had concluded, when in fact he had read only two court opinions dealing with the religiosity of the Church of Scientology. Numerous other opinions, according to CSI, have recognized Scientology as a religion. CSI has asserted that Daniels made a broad statement without exhaustively researching the subject. His failure to inform himself before making the accusation constituted purposeful avoidance of the truth. Purposeful avoidance of the truth, CSI maintains, has been found evidence of a reckless disregard for the truth, and should be so found here. See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 692, 109 S.Ct. 2678, 2698, 105 L.Ed.2d 562 (1989).
16
Daniels testified that before meeting with the editorial board of USA Today and making his statement, he had read, in addition to the two court cases, numerous articles about Scientology published in magazines and newspapers. The articles he reviewed and supplied for the record--some of which received awards for journalistic excellence--came from a wide variety of reputable publications and comprised an impressive collection of research about Scientology. The articles detailed criminal convictions of a number of the Church's leaders for extortion, forgery, breaking into government offices, bugging the IRS building, and planting Scientology agents in drug-control and intelligence agencies of the government. They reported accusations of mind control by ex-churchmembers and members' families, and chronicled the story of an ex-member who sued the organization--and was awarded $30 million--for mental anguish suffered while a member. They discussed the exorbitant rates charged by the Church to its members in exchange for services, "auditing," and training courses designed to facilitate the spiritual quest. The articles related the transformation of the organization from a "precision science," to a form of psychotherapy, to a religion, a transformation variously described as "expedient," "skillful propaganda," and "a sweeping and sophisticated campaign to gain new influence." Many of the articles quoted court opinions. Virtually all of the articles mentioned the lengthy legal battle that the Church of Scientology of California engaged in when it claimed tax-exempt status, the same battle that resulted in the two court opinions previously discussed. The revocation of tax-exempt status was a recognition on the part of the courts, several of these articles reported, that the Church of Scientology had "made a business out of selling religion." See, e.g., The Scientology Story: Shoring Up its Religious Profile, Los Angeles Times, June 25, 1990 (quoting Church of Scientology, 83 T.C. 381 (1984)).
17
The issue before us is not whether the Church of Scientology is a legitimate church or whether its image, beliefs, and behavior conform to a mainstream perception of what a church should be. We need not decide whether the court cases revoking the Church's tax-exempt status deny or confer any judicial sanction upon the organization, nor whether the articles that accuse the Church of nefarious motivations are fair or are merely evidence of "a running dog press" and the "forces of evil," as Scientology's former leader Ron Hubbard once stated. Courts have no authority to determine what is or is not a religion, and no legal formula by which to measure the truth or philosophical acceptability of an entity's spiritual beliefs. See United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 863-64, 13 L.Ed.2d 733 (1965) (the proper judicial task is limited to determining if a claimant's belief's "are sincerely held and whether they are, in his own scheme of things, religious"); United States v. Lee, 455 U.S. 252, 257, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127 (1982) (courts may not evaluate religious truth). Likewise, journalists--even reputable or prizewinning ones--are not the final arbiters of what constitutes a church and do not always write the gospel truth. Thus, we do not quote the court opinions and articles as evidence of the truth or falsity of Daniels' statement. Rather, we review them as support for Daniels' lack of reckless disregard for the truth or falsity of his statement.
18
What constitutes reckless disregard for the truth or falsity of a statement, the Supreme Court noted in St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), "cannot be fully encompassed in one infallible definition." Id. at 730, 88 S.Ct. at 1325. However, a public figure plaintiff faces a significant burden in proving actual malice. The Supreme Court has made it clear that a "defendant must have made the false publication with a high degree of awareness of ... probable falsity." Harte-Hanks Communications, 491 U.S. at 667, 109 S.Ct. at 2685-86 (quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215-16, 13 L.Ed.2d 125 (1964)). "[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant, 390 U.S. at 731, 88 S.Ct. at 1325-26 (1968). In Reuber v. Food Chemical News, Inc., 925 F.2d 703 (4th Cir.1991) (en banc ), we thoroughly discussed the standard of reckless disregard for the truth, and stressed the Harte-Hanks requirement that the plaintiff must show that the defendant acted with a high degree of awareness of probable falsity. Reuber made it clear that actual malice cannot be established merely by showing a departure from accepted journalistic or professional practices. The case emphasized that the failure to investigate, "where there was no reason to doubt the accuracy of the sources used ... cannot amount to reckless conduct." Id. at 716.
19
Given the volume of published commentary on the Church of Scientology reporting the findings of various courts that the Church was not eligible for tax exemption, depicting some of the organization's leaders as unscrupulous or criminal, characterizing the entity as a cult or a money making enterprise, portraying its endeavor to style itself as a religion as misleading and opportunistic--in short, describing the organization in terms that are at odds with a common understanding of what a "church" is--it is impossible to conclude that Daniels entertained serious doubts as to the truth of his statement or spoke with a high degree of probable falsity. His failure to read every court case involving the Church of Scientology does not constitute purposeful avoidance of the truth. See St. Amant, 390 U.S. at 733, 88 S.Ct. at 1326-27 (1968) (reliance on an unverified affidavit and failure to take steps to investigate did not constitute actual malice where the publisher entertained no serious doubts as to truth of the publication). Moreover, the fact that Daniels couched his statement in terms of what "every judge" had found is not indicative of actual malice. See Greenbelt Cooperative Publishing Ass'n. v. Bresler, 398 U.S. 6, 13-14, 90 S.Ct. 1537, 1541-42, 26 L.Ed.2d 6 (1970) (literal inaccuracy in a colloquial or hyperbolic statement is not actionable); Ryan v. Brooks, 634 F.2d 726, 733 (4th Cir.1980) (incorrect interpretation of a report or use of stronger language than the source itself used is not proof of actual malice). Finally, CSI's claim that it produced evidence to show that Daniels bore ill will toward CSI does not help its claim. See Hotchner v. Castillo-Puche, 551 F.2d 910, 914 (2nd Cir.1977) (ill will or hostility, by itself, does not prove actual malice), cert. denied sub nom. Hotchner v. Doubleday & Co., Inc., 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977). Accordingly, we hold that CSI has not presented evidence upon which a jury could find, by clear and convincing evidence, that Daniels' statement, if defamatory, was made with actual malice.
III.
20
CSI makes an additional complaint that the Magistrate Judge erred in denying it the ability to obtain discovery material from USA Today. Although CSI failed to object to the status of discovery as part of its opposition to summary judgment, it filed a motion to compel production by USA Today of all materials relating to the June editorial board meeting, including editors' notes, tapes, and draft articles.
21
The Magistrate Judge ruled that CSI failed to make the required showing for a need for the privileged materials, a ruling that is reviewable only for abuse of discretion. See La Rouche v. National Broadcasting Co., 780 F.2d 1134, 1139 (4th Cir.), cert. denied, 479 U.S. 818, 107 S.Ct. 79, 93 L.Ed.2d 34 (1986) (in determining whether a journalist's privilege will protect the source, a court must balance whether information is relevant, can be obtained by other means and whether there is a compelling interest in the information; determination is committed to the discretion of the district court). Nothing in the record shows that there was an abuse of discretion in the denial of discovery of the materials. In fact, the consideration that Daniels offered to stipulate to the accuracy of the quotation that appeared in USA Today makes the relevance of the materials CSI seeks questionable, rather than critical to the case, as the law requires. See id. 780 F.2d at 1139 (the fact that the plaintiff already knew the names of sources made need for information less than compelling). Although Daniels has stated that he does not recall the exact wording of the statement at the editorial board meeting, the statement being sued upon is that which ran in the paper--not that which was made to the board. Moreover, the Magistrate Judge correctly observed that CSI had made no effort to pursue alternative sources of information concerning the meeting. In short, the Magistrate Judge did not err in refusing to permit additional discovery of privileged material from USA Today.
The judgment is accordingly
22
AFFIRMED.
*
The district judge did not base his ruling on a difference between the exact corporate names of the person bringing suit and the one named in the statement | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2338130/ | 175 Pa. Super. 387 (1954)
Kobierowski, Appellant,
v.
Commonwealth Mutual Insurance Co. of Pennsylvania.
Superior Court of Pennsylvania.
Argued March 15, 1954.
May 21, 1954.
*388 Before RHODES, P.J., HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.
Donald M. Bowman, with him Gold & Bowman, for appellant.
J. Webster Jones, for appellee.
OPINION BY WOODSIDE, J., May 21, 1954:
This comes to us on appeal from the refusal of the Municipal Court of Philadelphia to take off a compulsory nonsuit.
The action was based upon a policy of collision insurance.
The undisputed facts are as follows: The defendant, through its duly authorized agent, Sneyd Underwriters Co., issued an insurance policy to the plaintiff, William C. Kobierowski, for comprehensive coverage of a 1942 Lincoln Sedan for a period of time from December 19, 1951 to December 19, 1952.
On January 16, 1952, plaintiff traded the said Lincoln Sedan for a 1947 Chevrolet Club Coupe. The defendant was duly notified of this transaction and issued an endorsement transferring the insurance coverage to the Chevrolet Club Coupe and added a provision for collision insurance with a Fifty ($50) Dollar deductible clause. Thereafter, on April 8, 1952, *389 plaintiff purchased a 1950 Chevrolet Sedan, for which he traded in his 1947 Chevrolet Club Coupe. The next day, April 9, 1952, plaintiff notified the defendant's agent, Sneyd Underwriters Co., by telephone of this new transaction and asked that a new endorsement be issued transferring his insurance coverages to the new car. The defendant insurance company was notified of the purchase of the 1950 Chevrolet Sedan and issued an endorsement transferring the insurance coverage to plaintiff's sedan.
On May 21, 1952, plaintiff's Chevrolet Sedan was almost completely demolished in an automobile collision. Immediately thereafter plaintiff notified the defendant insurance company and made demand for payment of damages, as set forth in his insurance policy and the endorsements attached thereto. The defendant, however, refused to pay anything to the plaintiff for the repair of his said automobile, claiming as its only basis for denial of liability that it had not been notified of an encumbrance against the 1950 Chevrolet Sedan held by the Willard Chevrolet Co. There was such an encumbrance.
The only disputed fact in issue at the trial was whether the insurance agency had been informed of the encumbrance. The plaintiff testified that he called the Sneyd Underwriters Company, dialing the telephone number appearing on the face of the policy as that of the said company. He then testified as follows: "A. A girl answered the phone, I said,[1] `Sneyd Underwriters Company.' I told them my name was William Kobierowski, I want to make a change in the policy, I gave her the number . . . The number of the *390 policy . . . FA 19190 . . . She said, `Just a moment'. She is gone a couple of seconds, came back, said, `All right, Mr. Kobierowski'. I told her I just purchased a 1950 Chevrolet two door sedan, gave her the number, told her it would be financed from the Willard Chevrolet, `Please send them notice. It will be covered by insurance?' She said, `Yes. We will take care of everything.' `Anything else you need?' She said, `No, that's all'. I said, `Thank you', and hung up."
That the plaintiff called the Sneyd Underwriters, spoke to a girl there and asked to have the insurance transferred is not disputed. Neither is it disputed that the defendant received information concerning the transfer and issued an endorsement to the policy covering the car.
The plaintiff called as his witness, Pearl Grace, an employe of the insurance agency, who admitted receiving the call and the information concerning the transfer. She denied that anything was said about an encumbrance.
Counsel for defendant admitted that there was an endorsement placed on the policy covering the 1950 Chevrolet Sedan for which an additional premium was charged.
The only dispute was whether the plaintiff told Pearl Grace during the telephone conversation that the 1950 Chevrolet Sedan was encumbered. He says he did; she says he did not. That is a jury question.
There cannot be the slightest doubt that the telephone call was made to the insurance agency and that information concerning the 1950 Chevrolet Sedan was given during the telephone conversation to the defendant's agent and subsequently received by defendant. Despite this fact counsel for the insurance company cross examined the plaintiff at great length in an apparent *391 effort to discredit plaintiff's testimony that the call was ever received by defendant's agent.
A number of pages of the testimony was devoted to cross examining the plaintiff on the sole question of whether the girl who answered the telephone mentioned the name of the insurance agency. Insisting that at a previous hearing the plaintiff had testified he didn't remember whether the girl who answered the telephone said, "Sneyd Underwriters," while at this hearing he testified she did say, "Sneyd Underwriters", counsel for defendant kept pressing for an explanation. After defendant testified he didn't remember making such a statement at the prior hearing and that he was sure now that she did mention the agency, and that he may have been confused before, the counsel for the defendant then asked, "The fact you told something differently at the time of the hearing does that have any effect on your mind now?" The plaintiff replied, "Yes" and to the final question, "What effect does it have?" he replied, "I could have been lying there, or I could have been lying here."
On the basis of this statement alone Judge BONNIWELL, the trial judge, entered a nonsuit saying he could not permit the jury to guess which time the plaintiff was "lying".
It should be noted that the only "difference", if there was any, in the plaintiff's testimony, and the only circumstance to which he could have been referring in his testimony was whether the girl answered, "Sneyd Underwriters."
It was immaterial whether she did or not. Even if she did not so answer, the testimony concerning the telephone conversation was admissible.
It appears from the evidence that the plaintiff dialed the telephone number shown on the policy to be that of defendant's agent; that the person answering *392 took the information about the policy; that the defendant acted upon information given during the telephone conversation; and that an employe of defendant's agent admitted receiving the telephone call in question.
Ordinarily the identity of the person with whom the witness carried on a telephone conversation must be established. This is generally done by recognition of the party's voice. But there are many other ways in which it can be established. Where the witness has called for a designated person at his place of business and the one carrying on the conversation claims to be the person called for, the conversation, if otherwise competent, is admissible. Pennsylvania Trust Company v. Ghriest, 86 Pa. Super. 71, 74 (1926). Another satisfactory method of identification exists in the introduction of the telephone company records. Smithers et al. v. Light, 305 Pa. 141, 145, 157 A. 489 (1931). A telephone conversation with an unidentified person has been received in evidence where the circumstances following the conversation indicated that the person who spoke was speaking with authority. Reach v. National Bedding Co., 276 Pa. 467, 471, 120 A. 471 (1923).
A telephone conversation was admitted where the call was placed for a Mr. McDonough and another unidentified person said Mr. McDonough was not there but he would take "whatever information was necessary", and after taking the information said, "All right, we will take care of it." Wahl v. State Workmen's Insurance Fund et al., 139 Pa. Super. 53, 56, 11 A.2d 496 (1939).
Where the witness is the recipient of the call the rule is more stringent. See Burton v. Pacific Mutual Life Insurance Company, 368 Pa. 613, 617, 84 A.2d 310 (1951), Midland Credit Company v. White, 175 Pa. Super. 314, 104 A.2d 350 (1954).
*393 As Professor John Henry Wigmore says: "There is much to be said for the circumstantial trustworthiness of mercantile custom by which, in average experience, the numbers in the telephone-directory do correspond to the stated names and addresses, and the operators do call up the correct number, and the person called does in fact answer. These circumstances suffice for some reliance in mercantile affairs; and it would seem safe enough to treat them in law as at least sufficient evidence to go to the jury, just as testimony based on prices-current is received. This view has received judicial support." Wigmore on Evidence, Third Edition, Pages 617, 618, § 2155.
Certainly when it is admitted by the recipient that the telephone call in question was received, the witness who made the call may testify as to what was said in that telephone conversation.
As the telephone conversation in this case was clearly admissible, it is immaterial whether the recipient of the call identified either herself or the company for which she worked.
Thus, even putting the plaintiff's testimony in the worst light, he admitted lying about an immaterial matter.
It is true as stated by the court below that where the burden of proof is upon the plaintiff to establish certain facts before a recovery can be had, the court may not submit evidence which will merely enable a jury to guess at a fact in favor of a party who is bound to prove it. But, as all the cases cited by the lower court clearly indicate, the "fact" must be one which the plaintiff is bound to prove. Musleva v. Patton Clay Manufacturing Company (No. 1), 338 Pa. 249, 12 A.2d 554 (1940), Lemak et al. v. Pittsburgh, 147 Pa. Super. 62, 23 A.2d 354 (1941), Zenzil et al. *394 v. Delaware, Lackawanna & Western Railroad Company, 257 Pa. 473, 101 A. 809 (1917).
The plaintiff here was not bound to prove that the girl answering the telephone replied "Sneyd Underwriters Company." Assuming he admitted he lied about this point in this case, his other testimony would still be for the jury.
Where a plaintiff himself is the witness, and his uncorroborated testimony is so conflicting as to render it impossible to make an essential finding therefrom it is proper for the court to instruct against the plaintiff, but only where the unreconcilable testimony refers to a subject as to which the burden of proof was on the plaintiff. Mundano v. Phila. Rapid Transit Co., 289 Pa. 51, 59, 137 A. 104 (1927).
Even one convicted of perjury, if not yet sentenced, may testify. Commonwealth v. Billingsley, 160 Pa. Super. 140, 147, 50 A.2d 703 (1947).
It has long been held to be error for a court to grant a nonsuit because plaintiff's testimony is contrary to that which he gave in a former trial. Creachen v. Bromley Brothers Carpet Company, 209 Pa. 6, 57 A. 1101 (1904).
The plaintiff's final answer might well have caused the jury to conclude that his testimony on the disputed point was not worthy of belief. On the other hand it might have concluded that the answer was facetious or that the plaintiff used the word "lying" not in its true dictionary sense of deliberate falsehood but in its quite commonly used, although less accurate, sense of merely "not true."
The jury should have been permitted to pass upon this case.
The judgment is reversed with a procedendo.
NOTES
[1] The questions of counsel and the answers of the witness, which followed this testimony indicate this was meant to be "she said". At least it seems all parties proceeded upon that assumption both at trial and argument. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2486480/ | 68 So. 3d 244 (2011)
SUGGS
v.
UNIVERSITY OF SOUTH FLORIDA.
No. 2D10-565.
District Court of Appeal of Florida, Second District.
August 24, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2689896/ | [Cite as State v. Foust, 105 Ohio St. 3d 137, 2004-Ohio-7006.]
THE STATE OF OHIO, APPELLEE, v. FOUST, APPELLANT.
[Cite as State v. Foust, 105 Ohio St. 3d 137, 2004-Ohio-7006.]
Criminal law — Aggravated murder — Death penalty upheld, when.
(No. 2002-1350 — Submitted October 12, 2004 — Decided December 29, 2004.)
APPEAL from the Court of Common Pleas of Cuyahoga County, No. CR-406021.
__________________
O’DONNELL, J.
{¶ 1} In this appeal, defendant-appellant, Kelly Foust, raises 13
propositions of law. Finding none meritorious, we affirm his convictions. We
have independently weighed the aggravating circumstances against the mitigating
factors and have compared his sentence to those imposed in similar cases, as R.C.
2929.05(A) requires. As a result, we affirm Foust’s sentence of death.
{¶ 2} During the early morning of March 31, 2001, Foust broke into the
home of 54-year-old Jose Coreano in Cleveland. Foust entered Jose’s first-floor
bedroom and killed him with a hammer blow to the head. Foust then went
upstairs and repeatedly raped Jose’s 17-year-old daughter, Damaris Coreano.
After stealing items from the house, Foust tied Damaris to the bathtub and set the
house on fire; despite her situation, Damaris managed to escape.
{¶ 3} A three-judge panel convicted Foust of the aggravated murder of
Jose, the kidnapping, rape, gross sexual imposition, and attempted murder of
Damaris, and aggravated burglary, aggravated robbery, and aggravated arson.
Foust was sentenced to death. To establish Foust’s guilt, the state introduced
Foust’s pretrial confession, testimony from Damaris identifying Foust as her
assailant, and the murder weapon containing Foust’s DNA.
SUPREME COURT OF OHIO
State’s case
{¶ 4} Foust was distraught after his relationship with his girlfriend,
Janira Acevedo, came to an end. Damaris and her sister, Cheyla Coreano, were
friends with Acevedo. After Foust and Acevedo broke up, Acevedo began
staying at the Coreano home.
{¶ 5} Sometime before March 28, 2001, Foust broke into the Coreano
home. On March 28, Jose, Cheyla, and Acevedo went to the police, seeking a
restraining order against Foust. They did not receive a restraining order, but the
police offered to send a patrol car to their residence. Jose, however, refused this
offer.
{¶ 6} During the early morning hours of March 31, Foust had been
drinking beer and wine and “getting pretty wasted.” At some point, Foust went
looking for Acevedo at a home on Sackett Avenue, where he thought she was
staying. Foust peeked into a window of that home and realized that Acevedo was
not there. Foust later explained, “I got really mad because [Acevedo] told me she
stays there every night and doesn’t go anywhere.”
{¶ 7} Foust then went to the Coreano home and gained entry through an
open basement window. Foust found Damaris sleeping upstairs but did not locate
Cheyla or Acevedo. Foust then went to Jose’s bedroom on the first floor and
struck Jose on the head with a claw hammer.
{¶ 8} Foust returned to the second-floor bedroom where Damaris was
sleeping and got on top of her. When she awakened, Foust put a knife to her
neck, shoved her face into the pillow, and ordered her to lie on her stomach. She
tried to grab the knife, but Foust told her not to be a hero because “in reality
heroes die.” Foust asked Damaris for “the money,” and she said, “[W]hat
money?” Foust threatened to kill her if she did not tell him where the money was,
and as a result, she said that she had a dollar and told him where he could find it.
2
January Term, 2004
{¶ 9} Foust asked Damaris if she was a virgin. Damaris told Foust that
she was not, hoping that he would leave her alone. Foust removed Damaris’s
clothing and tied her hands behind her back. Foust then ordered her to perform
oral sex. When she refused, he pointed his knife at her neck and asked her if she
wanted her father to live. Damaris then performed oral sex on him.
{¶ 10} After this, Foust untied her hands and ordered her to lie on her
back. He vaginally raped her multiple times and also touched her breasts and put
his fingers on her vagina. She saw his face during these rapes. When he finished,
he ordered her not to move and left the bedroom.
{¶ 11} Shortly thereafter, Foust returned to the bedroom and vaginally
raped her again. Damaris asked why he was “doing this to a Christian,” and he
replied that if she was a real Christian, she would forgive him. Foust then ordered
her to get on her knees and pray out loud for him. While on her knees, Damaris
prayed that God would help him realize what he was doing. Foust told Damaris
to shut up, put her back on the bed, and raped her again.
{¶ 12} After that, Foust took Damaris into her sister’s bedroom. Although
Foust had placed a shirt over her head, Damaris saw Foust take several things
from her sister’s room. Foust then forced Damaris into the bathroom and tied her
hands and feet together with shoestrings. He then tied Damaris to the bathtub leg
with a chain belt, told her not to move, and left the bathroom.
{¶ 13} Later, Foust returned to the bathroom and accused her of moving
around. He said, “[Y]ou think I’m playing with you,” and cut one of her braids
off. Foust also touched her vagina with his knife and threatened to slice her open
if she moved.
{¶ 14} While Damaris was tied up in the bathroom, Foust started fires in
Jose’s downstairs bedroom and in the upstairs bedrooms of Cheyla and Damaris.
Afterwards, he took Jose’s car keys, left the house, and drove Jose’s car about two
blocks, parked it on the street, and walked to a friend’s house.
3
SUPREME COURT OF OHIO
{¶ 15} While tied up in the bathroom, Damaris smelled smoke, managed
to move the shirt from her face, and saw that the house was on fire. She freed
herself by wiggling the belt loose from the bathtub leg. She then crawled into her
bedroom, maneuvered herself onto her bed, and let the fire on her mattress burn
the shoelaces off her ankles and wrists. Damaris put the fire out in her room and
went downstairs to look for her father but could not find him. She then left the
smoke-filled house and ran to a neighbor’s home for help.
{¶ 16} Police and firefighters arriving at the scene found the home
engulfed in flames. Jose’s body, burned beyond recognition, was found on his
bed. Damaris told Patrolman William Hyland that “Kelly” had attacked her and
started the fire. Although she was unsure of his last name, she thought it was
“Foster or something like that.” Hyland noticed that Damaris had shoelaces tied
to her wrists.
{¶ 17} After the fire was extinguished, police and fire personnel began
collecting evidence from the house. Lt. Victor Gill, an arson investigator,
determined that the fire had originated in the first-floor bedroom and the two
second-floor bedrooms. Investigations revealed two spent matches: one next to a
box of matches on the kitchen floor and another on the carpet next to Damaris’s
bed. Lt. Gill concluded that “there were at least three fires and each [had been]
separately and intentionally set.”
{¶ 18} In the basement, police found Foust’s left thumbprint on a water
pipe near the basement window. During a search of the house on April 6, 2001,
police found a claw hammer underneath Damaris’s bed.
{¶ 19} After identifying Foust as the primary suspect, police began
searching for him. On April 7, 2001, the police arrested Foust, and around 10:30
a.m., Detectives Denise Kovach and Michael Cipo interviewed Foust at the police
station. After waiving his Miranda rights, Foust confessed to breaking into the
home, hitting Jose, and raping Damaris. However, Foust claimed that he “didn’t
4
January Term, 2004
intentionally want to do any harm” and said, “I really don’t know what I was
doing, just trying to find out where Janita [sic, Janira] was.”
{¶ 20} At trial, Julie Heinig, a DNA analyst, testified that a preliminary
examination of the hammer revealed blood on the hammer claw. According to
Heinig, “The DNA profile obtained from the blood on the hammer matched the
DNA profile of Jose Coreano.” The handle of the hammer was also tested and
revealed a DNA mixture to which Foust could not be excluded as a contributor.
{¶ 21} Joseph Serowik, a scientific examiner for the Cleveland Police
Department, examined a rape kit containing blood, hair, and swab samples
obtained from Damaris. Examination of the vaginal swab sample revealed sperm
cells and seminal fluid. Testing of rectal swabs showed the presence of seminal
fluid and blood. Due to administrative problems at the lab, however, DNA testing
was not conducted on this evidence.
{¶ 22} Dr. William Bligh-Glover, a deputy coroner for Cuyahoga County,
performed an autopsy on Jose Coreano and concluded that Jose had fourth-degree
burns over 100 percent of his body and had “suffered blunt force trauma to his
head with soft tissue skull and brain injuries.” He further testified that the
hammer found in Damaris’s bedroom could have caused the circular fracture on
Jose’s skull. Dr. Bligh-Glover concluded that Jose’s death was caused by the
blunt impact to the head and that the burns occurred after death. He reached this
conclusion because no carbon monoxide had been found in Jose’s blood, and high
levels of carbon monoxide would normally be found in the blood of a person who
had died from smoke inhalation. Also, he found no soot in Jose’s lungs.
{¶ 23} The defense presented no evidence during the guilt phase of trial.
Trial result
{¶ 24} The state charged Foust with one count of aggravated murder,
alleging he had caused Coreano’s death with prior calculation and design, five
counts of aggravated murder, alleging he had caused Coreano’s death while
5
SUPREME COURT OF OHIO
committing a felony, and 20 related felony counts. Foust waived his right to a
jury trial, and a three-judge panel heard his case. He pleaded not guilty to all
charges. The following chart summarizes the charges and the court’s findings and
sentence:
Count Specifications Verdicts Sentence
(count and
specifications)
1. Aggravated R.C. 2929.04(A)(5), Not guilty of 15 years to
murder of Coreano course of conduct, and aggravated life
(murder committed five (A)(7) murder; guilty
with prior specifications: of lesser
calculation and aggravated burglary, included
design) aggravated robbery, offense of
kidnapping, rape, and murder
aggravated arson
2. Aggravated R.C. 2929.04(A)(5), Guilty Death
murder of Coreano course of conduct, and
(felony murder— five (A)(7)
aggravated specifications:
burglary) aggravated burglary,
aggravated robbery,
kidnapping, rape, and
aggravated arson
3. Aggravated R.C. 2929.04(A)(5), Guilty
murder of Coreano course of conduct, and
(felony murder— five (A)(7)
aggravated robbery) specifications:
aggravated burglary,
aggravated robbery,
kidnapping, rape, and
aggravated arson
4. Aggravated R.C. 2929.04(A)(5), Guilty
murder of Coreano course of conduct, and
(felony murder— five (A)(7)
kidnapping) specifications:
aggravated burglary,
aggravated robbery,
kidnapping, rape, and
aggravated arson
6
January Term, 2004
5. Aggravated R.C. 2929.04(A)(5), Guilty
murder of Coreano course of conduct, and
(felony murder— five (A)(7)
rape) specifications:
aggravated burglary,
aggravated robbery,
kidnapping, rape, and
aggravated arson
6. Aggravated R.C. 2929.04(A)(5), Guilty
murder of Coreano course of conduct, and
(felony murder— five (A)(7)
aggravated arson) specifications:
aggravated burglary,
aggravated robbery,
kidnapping, rape, and
aggravated arson
7. Attempted Guilty 10 years
murder of Damaris
Coreano
8. Aggravated Guilty 10 years
burglary
9. Aggravated Not Guilty
robbery
10. Aggravated Guilty 10 years
robbery
11. Kidnapping Guilty 10 years *
(Damaris Coreano)
12. Rape (Damaris Guilty 10 years **
Coreano)
13. Rape (Damaris Guilty 10 years **
Coreano)
14. Rape (Damaris Guilty 10 years **
Coreano)
15. Rape (Damaris Guilty 10 years **
Coreano)
16. Rape (Damaris Guilty 10 years **
Coreano)
17. Rape (Damaris Not Guilty
Coreano)
18. Rape (Damaris Not Guilty
Coreano)
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19. Rape (Damaris Not Guilty
Coreano)
20. Gross sexual Guilty 1 year **
imposition
(Damaris Coreano)
21. Gross sexual Guilty 1 year **
imposition
(Damaris Coreano)
22. Gross sexual Guilty 1 year **
imposition
(Damaris Coreano)
23. Aggravated Not Guilty
arson (risk of harm
to Jose Coreano)
24. Aggravated Guilty 10 years
arson (risk of harm
to Damaris
Coreano)
25. Aggravated Not Guilty
arson (risk of harm
to fireman)
26. Aggravated Guilty 10 years
arson (physical
harm to occupied
dwelling)
Various sexual- Not Guilty
motivation and
sexual-predator
specifications
* Sentence for kidnapping (Count 11) to be served consecutively with sentences
for rape (Counts 12-16), gross sexual imposition (Counts 20-22), and attempted
murder (Count 7).
** Sentences for rape (Counts 12-16) and gross sexual imposition (Counts 20-
22) to be served concurrently with one another.
{¶ 25} Foust now appeals to this court as a matter of right.
Pretrial issues
{¶ 26} Missing elements in the indictment. In proposition of law II,
Foust argues that the indictment is defective because the felony-murder counts
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January Term, 2004
and the R.C. 2929.04(A)(7) specifications do not set forth every element of the
charged offenses.1 Foust also claims that his indictment for aggravated burglary
in Count 8 is defective because the count fails to specify the offense that Foust
intended to commit inside the house.
{¶ 27} Foust never challenged the sufficiency of the indictment before or
during trial. Under Crim.R. 12(C), “[d]efenses and objections based on defects in
the indictment” must be raised before trial. As stated in Crim.R. 12(H), “[f]ailure
by the defendant to raise defenses or objections” within the time required “shall
constitute waiver of the defenses or objections,” although the court may grant
relief from the waiver. Accord State v. Williams (1977), 51 Ohio St. 2d 112, 117,
5 O.O.3d 98, 364 N.E.2d 1364; State v. Carter (2000), 89 Ohio St. 3d 593, 598,
734 N.E.2d 345.
{¶ 28} No reason exists to grant Foust relief from his failure to object. In
fact, no deficiency in the indictment exists. Under Crim.R. 7(B), an indictment
“may be made in ordinary and concise language without technical averments or
allegations not essential to be proved. The statement may be in the words of the
applicable section of the statute, provided the words of that statute charge an
offense, or in words sufficient to give the defendant notice of all the elements of
the offense with which the defendant is charged.” See, also, State v. Childs
(2000), 88 Ohio St. 3d 558, 564, 728 N.E.2d 379.
{¶ 29} Felony-murder counts. The indictment language for the
aggravated felony-murder counts follows the wording of R.C. 2903.01(B), the
felony-murder provisions of the aggravated-murder statute. Thus, these counts
were properly worded in the indictment. See State v. Murphy (1992), 65 Ohio
St.3d 554, 583, 605 N.E.2d 884; State v. Landrum (1990), 53 Ohio St. 3d 107,
119, 559 N.E.2d 710. Moreover, the indictment included separate counts for the
1. Foust concedes that the R.C. 2929.04(A)(5) course-of-conduct specifications are correctly
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underlying felonies – Counts 8 through 19 and Counts 23 through 26 – and these
counts set forth the elements for these offenses. Reading the felony-murder
counts in pari materia with the related felony counts provided ample notification
of the elements of the underlying felonies—aggravated burglary, aggravated
robbery, rape, kidnapping, and aggravated arson—that the state had to prove. See
State v. D’Ambrosio (1993), 67 Ohio St. 3d 185, 197, 616 N.E.2d 909.
{¶ 30} R.C. 2929.04 specifications. R.C. 2941.14(C) governs the form of
death-penalty specifications in indictments and provides that “[t]he aggravating
circumstance may be stated in the words of the subdivision in which it appears or
in words sufficient to give the accused notice of the same.” Here, the R.C.
2929.04(A)(7) specifications in the indictment tracked the language of R.C.
2929.04(A)(7), and each of the specifications named the underlying felonies that
Foust allegedly committed. See State v. Joseph (1995), 73 Ohio St. 3d 450, 456,
653 N.E.2d 285 (R.C. 2941.14[C] “clearly provides that the specification is
sufficient if the accused knows which subsection, or which aggravating
circumstance * * * listed in R.C. 2929.04[A] has been alleged”). Thus, we find
no defect in the R.C. 2929.04(A)(7) specifications.
{¶ 31} Aggravated-burglary count. The state also correctly presented
the aggravated-burglary charge in the indictment—Count 8. The wording of the
indictment tracked the language for aggravated burglary in R.C. 2911.11 and did
not need to allege the particular felony that Foust had intended to commit. See
State v. Frazier (1995), 73 Ohio St. 3d 323, 331, 652 N.E.2d 1000; State v.
Waszily (1995), 105 Ohio App. 3d 510, 516, 664 N.E.2d 600, abrogated in part on
other grounds by State v. Fontes (2000), 87 Ohio St. 3d 527, 721 N.E.2d 1037.
{¶ 32} We also reject Foust’s constitutional arguments. An indictment
meets constitutional requirements if it, “first, contains the elements of the offense
charged in the indictment.
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January Term, 2004
charged and fairly informs a defendant of the charge against which he must
defend, and second, enables him to plead an acquittal or conviction in bar of
future prosecutions for the same offense. * * * ‘Undoubtedly the language of the
statute may be used in the general description of an offence, but it must be
accompanied with such a statement of the facts and circumstances as will inform
the accused of the specific offence, coming under the general description, with
which he is charged.’ ” (Emphasis added.) Hamling v. United States (1974), 418
U.S. 87, 117-118, 94 S. Ct. 2887, 41 L. Ed. 2d 590, quoting United States v. Hess
(1888), 124 U.S. 483, 487, 8 S. Ct. 571, 31 L. Ed. 516. Review of Foust’s
indictment shows that the aggravated-murder counts, the R.C. 2929.04(A)(7)
specifications, and the aggravated-burglary count met these criteria.
{¶ 33} Nevertheless, Foust argues that Ring v. Arizona (2002), 536 U.S.
584, 122 S. Ct. 2428, 153 L. Ed. 2d 556, and Apprendi v. New Jersey (2000), 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435, require that every element of an
offense be set forth in the indictment. In Apprendi, the Supreme Court held that
the Sixth Amendment does not permit a defendant to be “expose[d] * * * to a
penalty exceeding the maximum he would receive if punished according to the
facts reflected in the jury verdict alone.” (Emphasis sic.) Id. at 483, 120 S. Ct.
2348, 147 L. Ed. 2d 435. In Ring, a capital case, the Supreme Court held that a
trial judge may not make findings of fact on an aggravating circumstance
necessary to impose the death penalty, as this determination is within the province
of the jury. Ring, 536 U.S. at 609, 122 S. Ct. 2428, 153 L. Ed. 2d 556. However,
neither case stands for the proposition that there is a constitutional requirement
that every element of a criminal offense must be set forth in an indictment.
{¶ 34} Foust also argues – citing Esparza v. Mitchell (C.A.6, 2002), 310
F.3d 414 – that an indictment of a capital specification must include all the
essential elements necessary to establish the specification. In Esparza, the grand
jury returned an indictment on an R.C. 2929.04(A)(7) specification that failed to
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allege that he was the principal offender or, if not the principal offender, that he
had acted with prior calculation and design. However, in Mitchell v. Esparza
(2003), 540 U.S. 12, 124 S. Ct. 7, 157 L. Ed. 2d 263, the Supreme Court held that
the failure to allege that the defendant acted as the principal offender did not
constitute a fatal error.
{¶ 35} Based on the foregoing, we reject Foust’s argument that there is a
constitutional requirement that the indictment specify every element of the
offense in either the felony-murder counts or the R.C. 2929.04(A)(7)
specifications.
{¶ 36} Finally, Foust has not shown that he was prejudiced in the defense
of his case or that he would have proceeded differently if each of the felony-
murder counts, the R.C. 2929.04(A)(7) specifications, and the aggravated-
burglary count had been worded differently. See State v. Joseph, 73 Ohio St. 3d at
457, 653 N.E.2d 285.
{¶ 37} In summary, we find that the issue was waived and there was no
plain error because the wording of the felony-murder counts, the R.C.
2929.04(A)(7) specifications, and the aggravated-burglary count in the indictment
were not defective. Thus, we overrule proposition II.
{¶ 38} Jury waiver. In proposition of law I, Foust contends that his
waiver of a jury trial was not voluntary and intelligent, and was hence invalid,
because the trial court did not inform him that (1) if he was tried by a jury and
found guilty of a capital crime, the jury would recommend his sentence, (2) a
jury’s vote for a death sentence must be unanimous, and (3) the waiver would be
valid for both the guilt phase and the penalty phase of trial.
{¶ 39} Foust signed a jury waiver, which was filed and journalized and is
in the record. The written waiver contains the following acknowledgment: “I,
Kelly Foust, the defendant in the above cause, hereby voluntarily and knowingly
waive and relinquish my right to a trial by jury, and elect to be tried by a panel of
12
January Term, 2004
three judges of the court in which said cause may be pending. I fully understand
that under the laws of this state I have a constitutional right to a trial by jury.”
{¶ 40} After Foust signed the jury waiver, the trial court conducted the
following colloquy with him:
{¶ 41} “The Court: Mr. Foust, this is your signature on this jury waiver;
correct?
{¶ 42} “The Defendant: Yes, sir.
{¶ 43} “The Court: Okay. Your attorneys have advised you that you
have a right to a jury of 12 men and women; correct?
{¶ 44} “The Defendant: Yes, sir.
{¶ 45} “The Court: And obviously, then, they advised you that you can
waive that right and have your case tried by three judges instead of a jury. You
understand that, sir?
{¶ 46} “The Defendant: Yes, sir.
{¶ 47} “The Court: Okay. Did anybody put any pressure on you to give
up your jury right and have this tried by three judges instead of a jury?
{¶ 48} “The Defendant: No.
{¶ 49} “The Court: Okay. Was this your own free-will decision to
do that?
{¶ 50} “The Defendant: Yes.”
{¶ 51} Following this colloquy, the trial court found that Foust’s waiver
was knowingly, intelligently, and voluntarily made.
{¶ 52} A jury waiver must be voluntary, knowing, and intelligent. State v.
Ruppert (1978), 54 Ohio St. 2d 263, 271, 8 O.O.3d 232, 375 N.E.2d 1250. Waiver
may not be presumed from a silent record. However, if the record shows a jury
waiver, the conviction will not be set aside except on a plain showing that the
defendant’s waiver was not freely and intelligently made. State v. Fitzpatrick, 102
Ohio St. 3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 37, citing Adams v. United
13
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States ex rel. McCann (1942), 317 U.S. 269, 281, 63 S. Ct. 236, 87 L. Ed. 268.
Moreover, a written waiver is presumptively voluntary, knowing, and intelligent.
United States v. Sammons (C.A.6, 1990), 918 F.2d 592, 597; State v. Bays (1999),
87 Ohio St. 3d 15, 19, 716 N.E.2d 1126.
{¶ 53} Although the trial court did not fully advise Foust of all the
implications of his jury waiver, “[t]here is no requirement for a trial court to
interrogate a defendant in order to determine whether he or she is fully apprised of
the right to a jury trial.” State v. Jells (1990), 53 Ohio St. 3d 22, 559 N.E.2d 464,
paragraph one of the syllabus. “The Criminal Rules and the Revised Code are
satisfied by a written waiver, signed by the defendant, filed with the court, and
made in open court, after arraignment and opportunity to consult with counsel.
While it may be better practice for the trial judge to enumerate all the possible
implications of a waiver of a jury, there is no error in failing to do so.” (Citation
omitted.) Id. at 26, 559 N.E.2d 464; see, also, State v. Thomas, 97 Ohio St. 3d
309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 26; State v. Bays, 87 Ohio St. 3d at 20,
716 N.E.2d 1126 (trial court’s failure to explain that a single juror can block a
death recommendation did not invalidate a jury waiver).
{¶ 54} We also reject Foust’s claim that his jury waiver was invalid
because the trial court failed to advise him that the waiver applied to both the guilt
and the penalty phases of trial. The waiver of the right to trial by jury in a capital
case applies to both the guilt phase and the penalty phase of the trial. Contrary to
Foust’s contentions, the record demonstrates that he knew that his waiver applied
to both phases of trial: during a colloquy with counsel after accepting Foust’s
waiver, the court stated, “[W]e will leave the date for December 12th before a
panel of three judges. You should all be aware, in the event any discussions about
a plea to reduced charges should be done, that we still have to convene the three-
judge court in order to take that plea and impose a sentence.” (Emphasis added.)
Thus, the record reflects that all were aware—including Foust—that his waiver of
14
January Term, 2004
a jury trial meant that the three-judge panel would impose sentence during the
penalty phase.
{¶ 55} Further, nothing in the record suggests that Foust’s jury waiver was
not knowingly, intelligently, and voluntarily made. When the trial court accepted
Foust’s written waiver, Foust affirmed that his decision was voluntary. Moreover,
his trial counsel did not request that the trial court ask any further questions or
clarify any of the other rights associated with Foust’s waiver.
{¶ 56} Based on the foregoing, we overrule proposition I.
{¶ 57} Admissibility of confession. In proposition of law IV, Foust
argues an inadequate Miranda advisement because he asserts police did not
advise him that he could request counsel at any time during the interrogation and
that police questioning would stop if he requested counsel. Because of this
alleged failure, Foust contends that his Miranda waiver was not knowingly and
intelligently made and thus his confession should not have been admitted into
evidence.
{¶ 58} However, Foust did not raise these specific issues in the trial court.
Instead, Foust filed a motion to suppress challenging the voluntariness of his
confession based on his youth and his being intimidated by police. Because Foust
did not attack the adequacy of the Miranda warnings before the trial court, he has
waived that issue absent plain error. State v. Peagler (1996), 76 Ohio St. 3d 496,
499-501, 668 N.E.2d 489 (on appeal, a defendant cannot introduce a new basis for
a challenge made at trial). Moreover, no plain error exists because the police
properly apprised Foust of his Miranda rights.
{¶ 59} The record reveals that on April 7, 2001, the police arrested Foust,
and, at that time, Detective Frank Costanzo advised Foust of his Miranda rights.
Foust stated that he understood those rights.
{¶ 60} Around 10:00 a.m. on April 7, at the police station, Detectives
Michael Cipo and Denise Kovach interviewed Foust. Before the interview,
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Detective Cipo again advised Foust of his Miranda rights. Using an advisement-
of-rights card issued by the police department, Detective Cipo advised Foust:
{¶ 61} “You have a right to remain silent. Anything you say can and will
be used against you in Court. You have a right to consult with a lawyer before
answering any questions and to have a lawyer with you during any questioning.
If you cannot afford a lawyer, one will be provided for you free of cost.”
{¶ 62} According to Detective Cipo, there was also a large placard with
these same warnings posted on the wall in the interview room. After being
advised of his Miranda rights, Foust said that he understood his rights and did not
need a lawyer, and then he talked with the police and confessed to the crimes.
{¶ 63} After his oral confession, Foust agreed to provide a written
statement. After the written statement was prepared, but before Foust signed it,
Detective Kovach again read Foust his Miranda rights, using the preprinted
advisement of rights on the first page of the statement. Detective Kovach advised
Foust:
{¶ 64} “Before making any written statement that may be used against
you at the time of your trial, we wish to repeat the instructions issued prior to oral
interrogation; that you have the right to counsel, appointed or retained, before
interrogation, that you have the right to remain silent, and that anything you say
may be used against you. You have the right to have an attorney present while
making this statement.”
{¶ 65} Following this advisement of rights, Foust was asked, “Do you
understand your rights as stated above?” and “Do you care to make any written
statement?” Foust answered yes to both questions, marked his agreement on the
form, and signed his name underneath the advisement of rights. Foust then signed
each page of his written statement. On the last page of his statement, Foust
answered no to the question “Did anyone threaten you or promise you anything to
make this statement?” He answered yes to the question “Having read your
16
January Term, 2004
statement, do you find it to be true?” Foust then signed the last page of his
confession.
{¶ 66} Adequacy of the Miranda warnings. Foust claims that the police
provided him inadequate Miranda warnings because they did not tell him he could
ask for an attorney at any time, including after the questioning began, and that if
he asked for an attorney once the questioning had started, all questioning would
stop.
{¶ 67} Miranda v. Arizona (1966), 384 U.S. 436, 478-479, 86 S. Ct. 1602,
16 L. Ed. 2d 694, requires that before questioning a suspect in custody, law-
enforcement officials must inform the suspect (1) that he or she has the right to
remain silent, (2) that his or her statements may be used against him or her at trial,
(3) that he or she has the right to have an attorney present during questioning, and
(4) that if he or she cannot afford an attorney, one will be appointed.
{¶ 68} The Supreme Court has never insisted that Miranda warnings be
given in the exact form described in that decision. Instead, the court has stated
that “ ‘the “rigidity” of Miranda [does not] exten[d] to the precise formulation of
the warnings given a criminal defendant,’ and that ‘no talismanic incantation [is]
required to satisfy its strictures.’ ” Duckworth v. Eagan (1989), 492 U.S. 195,
202-203, 109 S. Ct. 2875, 106 L. Ed. 2d 166, quoting California v. Prysock (1981),
453 U.S. 355, 359, 101 S. Ct. 2806, 69 L. Ed. 2d 696. “Reviewing courts therefore
need not examine Miranda warnings as if construing a will or defining the terms
of an easement. The inquiry is simply whether the warnings reasonably ‘conve[y]
to [a suspect] his rights as required by Miranda.’ ” Duckworth at 203, 109 S. Ct.
2875, 106 L. Ed. 2d 166, quoting Prysock at 361, 101 S. Ct. 2806, 69 L. Ed. 2d 696.
{¶ 69} Police do not have to provide additional warnings to a suspect
beyond what Miranda requires. Indeed, in State v. Edwards (1976), 49 Ohio
St.2d 31, 39-41, 3 O.O.3d 18, 358 N.E.2d 1051, we found that Miranda warnings
were adequate even though the defendant was not explicitly asked whether he
17
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wanted an attorney. Similarly, in State v. Dailey (1990), 53 Ohio St. 3d 88, 90-91,
559 N.E.2d 459, Miranda warnings were deemed adequate even though they did
not explicitly refer to “appointment of counsel.”
{¶ 70} Federal courts have also rejected challenges to the adequacy of
Miranda warnings based on the absence of additional warnings. See, e.g., United
States v. Ricks (C.A.6, 1993), 989 F.2d 501, unpublished opinion, 1993 WL
78781 (suspect need not be informed that he has the right to stop answering
questions at any time); United States v. Lares-Valdez (C.A.9, 1991), 939 F.2d 688
(suspect need not be advised of the right to have questioning stopped at any time,
of the option to answer some questions but not others, or that some questions may
call for incriminating responses); United States v. Caldwell (C.A.8, 1992), 954
F.2d 496, 501-504 (suspect need not be explicitly advised of his right to counsel
before and during questioning); United States v. DiGiacomo (C.A.10, 1978), 579
F.2d 1211, 1214 (no express requirement under Miranda to advise suspects of the
right to terminate questioning).
{¶ 71} In this case, the police fully advised Foust of his rights as required
by Miranda. Foust was advised of (1) his right to remain silent (and was warned
that any statement he made could and would be used against him in court), (2) his
right to have a lawyer present prior to and during interrogation, and (3) his right to
have a lawyer appointed at no cost if he could not afford one. However, police
were not required to also advise Foust of his right to ask for a lawyer and stop
questioning at any time after the interrogation was underway. Indeed, “[t]here are
numerous circumstances and ways in which the right to silence may be invoked
and officers could not possibly warn of all of them. Having advised of the
essential rights, the officers are not obliged to warn of any or all of the
circumstances or manners in which the right may be invoked.” United States v.
Alba (D.Conn.1990), 732 F. Supp. 306, 310. Moreover, when he was advised of
18
January Term, 2004
his Miranda rights, Foust never asked for a further explanation of them. Thus, the
Miranda warnings Foust received were proper.
{¶ 72} Voluntariness. The “totality of the circumstances” surrounding
Foust’s confession also shows that Foust voluntarily waived his Miranda rights
and that his confession was knowingly, intelligently, and voluntarily made. See
Moran v. Burbine (1986), 475 U.S. 412, 421, 106 S. Ct. 1135, 89 L. Ed. 2d 410.
First, the police never subjected Foust to threats or physical abuse or deprived him
of food, sleep, or medical treatment. Nor did the police make any promises to
Foust in return for his cooperation. Foust was in police custody for only two and
one-half hours prior to being interviewed. Furthermore, the interview lasted only
two hours.
{¶ 73} Second, Foust appeared to be mentally alert and not under the
influence of drugs or alcohol at the time of the interview. During the police
interview, Foust stated that he had completed a GED course and had the highest
score in his class. Thus, we find no evidence of police coercion or overreaching
showing that Foust’s confession was involuntary. See State v. Eley (1996), 77
Ohio St. 3d 174, 178-179, 672 N.E.2d 640.
{¶ 74} Based on the foregoing, we overrule proposition IV.
Guilt-phase issues
{¶ 75} Ineffective assistance of counsel. In proposition of law III, Foust
argues that he received ineffective assistance of counsel. Reversal of a conviction
for ineffective assistance of counsel requires that the defendant show, first, that
counsel’s performance was deficient and, second, that the deficient performance
prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v.
Washington (1984), 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674; State v.
Bradley (1989), 42 Ohio St. 3d 136, 538 N.E.2d 373.
{¶ 76} Failure to challenge Heinig’s expert qualifications. Foust
argues that his counsel provided ineffective assistance by failing to object to Julie
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Heinig’s testifying as a DNA expert. Heinig, a forensic DNA analyst with the
Cuyahoga County Coroner’s Office, conducted DNA analysis of blood found on
the suspected murder weapon, the hammer found underneath Damaris’s bed.
Heinig testified that DNA from the blood matched the DNA of Jose Coreano.
She also testified that a DNA analysis of a swab used to collect matter from the
hammer’s handle showed a “mixture” of DNA from more than one person and
that Foust’s DNA profile was “visible” within this mixture.
{¶ 77} Evid.R. 702(B) provides that a witness may qualify as an expert by
reason of his or her “specialized knowledge, skill, experience, training, or
education regarding the subject matter of the testimony.” Neither special
education nor certification is necessary to confer expert status upon a witness.
“The individual offered as an expert need not have complete knowledge of the
field in question, as long as the knowledge he or she possesses will aid the trier of
fact in performing its fact-finding function.” State v. Hartman (2001), 93 Ohio
St.3d 274, 285, 754 N.E.2d 1150; State v. Baston (1999), 85 Ohio St. 3d 418, 423,
709 N.E.2d 128.
{¶ 78} Contrary to Foust’s assertions, Heinig qualified to testify as an
expert in DNA analysis. She holds a bachelor of science degree in biology, a
master’s degree in zoology, and a Ph.D. degree in anatomy and cell biology.
Heinig also received six months of training on various testing procedures
involving DNA analysis and has testified as a DNA expert on other occasions.
See State v. Bryan, 101 Ohio St. 3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 32
(Heinig testified that the defendant’s DNA was found in the getaway vehicle);
State v. Fluellen, Cuyahoga App. No. 78532, 2002-Ohio-3262, 2002 WL
1397128, ¶ 14 (Heinig found “well-qualified to serve as an expert in the area of
forensic DNA analysis”). Thus, Heinig possessed the necessary qualifications to
provide expert testimony at Foust’s trial.
20
January Term, 2004
{¶ 79} Given the strong presumption that counsel’s performance
constituted reasonable assistance, we find that his defense counsel were not
ineffective for failing to challenge Heinig’s qualifications as an expert witness.
See State v. Thomas, 97 Ohio St. 3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 51;
State v. Hartman, 93 Ohio St. 3d at 297, 754 N.E.2d 1150.
{¶ 80} Failure to object to Heinig’s testimony. Foust contends that his
counsel provided ineffective assistance by failing to object to Heinig’s testimony
because she allegedly did not adequately establish the scientific method used to
conduct DNA testing of the hammer. Heinig testified that DNA material from the
hammer was tested using the Short Tandem Repeat (“STR”) method. Heinig
explained that the STR method examines “13 different regions of DNA” to obtain
a person’s DNA profile. Using the STR method, Heinig found that “each of the
13 loci” from Foust’s DNA was visible in the mixture on the hammer.
{¶ 81} Thus, contrary to Foust’s claims, Heinig explained the scientific
method used in conducting DNA analysis in this case. Moreover, we recognized
in State v. Pierce (1992), 64 Ohio St. 3d 490, 497, 597 N.E.2d 107, that “the
theory and procedures used in DNA typing are generally accepted within the
scientific community.” Accordingly, “the failure to challenge the admissibility of
such evidence cannot be considered ineffective assistance of counsel.” State v.
Nicholas (1993), 66 Ohio St. 3d 431, 437, 613 N.E.2d 225.
{¶ 82} Foust also claims that his counsel provided ineffective assistance
by failing to object to Heinig’s testimony because she did not actually perform the
DNA testing herself. During her direct examination, Heinig said, “For the most
part another analyst did the testing and I did the DNA typing at the end of the
analysis.”
{¶ 83} The defense counsel’s failure to object to Heinig’s testimony as
hearsay was a tactical decision. By not objecting to Heinig’s testimony, the
defense counsel avoided forcing the prosecution to call the other DNA analyst as
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a witness. The other DNA analyst would likely have elaborated upon Heinig’s
findings and bolstered the prosecution’s case. Thus, we find that counsel’s failure
to object to Heinig’s testimony did not constitute ineffective assistance. See State
v. Bradley, 42 Ohio St. 3d at 144, 538 N.E.2d 373; cf. State v. Thomas, 97 Ohio
St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, at ¶ 51.
{¶ 84} Finally, Foust argues that his counsel provided ineffective
assistance by failing to challenge the foundation for Heinig’s testimony on the
statistical probability that the DNA profile of the blood that matched Jose
Coreano’s DNA profile would match another person’s DNA profile. Heinig
testified that the probability that another person’s DNA profile would match the
DNA profile obtained from the blood on the hammer was one in 140 trillion for
southwestern Hispanics, one in 980 trillion for southeastern Hispanics, and one in
four quadrillion for Caucasians.
{¶ 85} DNA evidence expressed in terms of population frequency is
admissible if it is relevant. Questions regarding the reliability of DNA evidence
in a given case, including DNA statistics on population frequency, go to the
weight of the evidence rather than its admissibility. See State v. Pierce, 64 Ohio
St.3d 490, 597 N.E.2d 107, paragraph two of the syllabus. Moreover, expert
witnesses are allowed to testify to statistical conclusions about DNA evidence
without being experts in statistical analysis. See State v. Rowe (Dec. 26, 2001),
Hamilton App. No. C-000727, 2001 WL 1887770; State v. Martin (Aug. 14,
2000), Brown App. No. CA99-09-026, 2000 WL 1145465. Thus, we find that the
defense counsel were not ineffective for failing to object to Heinig’s testimony
about DNA frequency statistics.
{¶ 86} Adequacy of cross-examination of Heinig. Foust asserts
ineffective assistance of counsel in their cross-examining of Heinig on her DNA
findings.
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{¶ 87} This court has recognized that “ ‘[t]rial counsel need not cross-
examine every witness * * *. The strategic decision not to cross-examine
witnesses is firmly committed to trial counsel’s judgment.’ ” State v. Campbell
(2000), 90 Ohio St. 3d 320, 339, 738 N.E.2d 1178, quoting State v. Otte (1996), 74
Ohio St. 3d 555, 565, 660 N.E.2d 711.
{¶ 88} Foust claims that counsel did not properly prepare to cross-
examine Heinig, because they did not understand DNA terminology. According
to Foust, counsel’s inadequacy is exemplified by the following cross-examination
question: “Is it possible that at that first stage of his alleles, whatever you’re
calling it, someone could have a 17, too?”
{¶ 89} Foust’s claim that his counsel did not understand DNA
terminology and rendered ineffective assistance in cross-examining Heinig about
her findings is purely speculative. Given the “strong presumption” that counsel’s
performance constituted reasonable assistance, we reject this allegation. State v.
Bradley, 42 Ohio St. 3d at 144, 538 N.E.2d 373.
{¶ 90} Foust also fails to explain how further cross-examination of Heinig
would have made a difference in his case. If challenged, Heinig would likely
have elaborated on the reliability of DNA testing procedures and clarified her
testimony. However, such clarification may not have worked in Foust’s favor.
Thus, counsel may have decided to forgo further cross-examination to avoid the
danger of reiterating the state’s evidence and clarifying expert testimony that
might not come out in Foust’s favor. We find that counsel made a legitimate
“tactical decision” and were not ineffective. See State v. Hanna, 95 Ohio St. 3d
285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 121-123.
{¶ 91} Failure to object to fingerprint evidence. Foust also claims that
his counsel provided ineffective assistance by failing to challenge the reliability of
fingerprint evidence or object to testimony that his fingerprint matched the
fingerprint found in the basement. Foust also claims that his counsel should have
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objected to the admissibility of the lab report based on discovery violations and
the report’s inadmissibility as a public record.
{¶ 92} At trial, Jill Ryan, a fingerprint examiner with the Cleveland Police
Department, testified that Foust’s left thumbprint matched a print found on a
basement water pipe in the Coreano home.
{¶ 93} Counsel’s failure to object to the fingerprint evidence falls within
legitimate trial strategy. Foust confessed to entering the Coreano home on the
night of the murder through a basement window. Thus, fingerprint evidence of
Foust’s thumbprint found in the basement is not critical. Furthermore, the
reliability of fingerprint evidence is well established. See State v. Payne, Franklin
App. Nos. 02AP-723 and 02AP-725, 2003-Ohio-4891, 2003 WL 22128810, ¶ 54-
55; State v. Hamilton (Apr. 12, 2002), Lake App. No. 200-L-003, 2002 WL
549841; see, also, 1 Giannelli & Snyder, Evidence (2d Ed.2001) Section 702.27.
Here, then, counsel could have reasonably determined it unwise to challenge
fingerprint evidence and unnecessary to object to the lab report. State v.
Hartman, 93 Ohio St. 3d at 300, 754 N.E.2d 1150 (failure to challenge bloodstain
evidence was a legitimate trial strategy because the defendant admitted that police
would find the victim’s blood on his boots). Accordingly, we have concluded that
Foust has not demonstrated ineffective assistance of counsel in their failure to
challenge fingerprint evidence in this case.
{¶ 94} Failure to request defense experts. In addition, Foust argues that
his counsel provided ineffective assistance by failing to request funds for a DNA
expert, an alcohol- and substance-abuse expert, a fingerprint expert, and an arson
expert.
{¶ 95} DNA expert. Foust claims that he needed a defense DNA expert
to challenge DNA testing procedures, to demonstrate the unreliability of DNA
evidence, and to assist counsel in challenging the state’s DNA evidence.
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January Term, 2004
{¶ 96} Foust claims that a DNA expert was crucial to his defense because
he never admitted striking Coreano with a hammer. Nevertheless, in his
confession, Foust admitted “pick[ing] up something by the door and hit[ting
Coreano] with it.” Moreover, the coroner testified that the circular fracture on the
top of Coreano’s skull was consistent with Coreano’s having been hit by the
round striking face of a hammer.
{¶ 97} As an initial matter, “the failure to call an expert and instead rely
on cross-examination does not constitute ineffective assistance of counsel.” State
v. Nicholas, 66 Ohio St. 3d at 436, 613 N.E.2d 225, citing State v. Thompson
(1987), 33 Ohio St. 3d 1, 10-11, 514 N.E.2d 407. Here, the record reveals that
trial counsel’s decision to rely on cross-examination appears to have been a
legitimate “tactical decision,” particularly since the results of defense DNA
testing might not have turned out to be favorable to the defense. See State v.
Hartman, 93 Ohio St. 3d at 299, 754 N.E.2d 1150.
{¶ 98} Moreover, Foust’s argument that his counsel needed a DNA expert
to adequately prepare for trial is purely speculative. Despite Foust’s assertions,
the record does not establish a deficiency in his counsel’s knowledge about DNA
terminology and procedures.
{¶ 99} For the foregoing reasons, we reject Foust’s claim that his counsel
were ineffective by failing to utilize a DNA expert.
{¶ 100} Alcohol- and substance-abuse expert. Foust asserts that his
counsel should have challenged the constitutionality of R.C. 2901.21(C)2 and
claims that his counsel provided ineffective assistance by failing to retain an
alcohol- and substance-abuse expert to challenge the statute. Foust also claims
that counsel’s failure to present expert testimony on alcohol and substance abuse
deprived him of relevant mitigation evidence.
2. R.C. 2901.21(C) states: “Voluntary intoxication may not be taken into consideration in
determining the existence of a mental state that is an element of a criminal offense.”
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SUPREME COURT OF OHIO
{¶ 101} In his confession, Foust claimed that he had been drinking beer
and wine for a couple of hours before breaking into the Coreano home and was
“getting pretty wasted.” He claimed, “I didn’t mean to hurt anybody, my mind
was just messed up.” Damaris testified that she had smelled alcohol on Foust’s
breath while he was raping her.
{¶ 102} Counsel’s decision not to challenge the constitutionality of R.C.
2901.21(C) was a legitimate tactical decision. Cf. State v. Cornwell (1999), 86
Ohio St. 3d 560, 569, 715 N.E.2d 1144 (not ineffective assistance of counsel to
forgo challenging the constitutionality of Ohio’s death-penalty statute). Thus,
counsel were not ineffective for failing to challenge the constitutionality of R.C.
2901.21(C). And Foust failed to explain how expert testimony on alcohol and
substance abuse would have aided such a challenge.
{¶ 103} Second, we reject Foust’s claim that counsel’s failure to call a
substance-abuse expert deprived him of mitigating evidence. Dr. James
Karpawich, a clinical psychologist, testified as a mitigation witness, and the
defense introduced his written evaluation into evidence. Dr. Karpawich testified
that Foust was diagnosed with “alcohol dependence.” In his written evaluation,
Dr. Karpawich’s reviewed Foust’s history of alcohol and marijuana abuse and
mentioned that Foust reported “abusing alcohol heavily around the time of the
present offenses.” Thus, the defense presented “alternative devices that * * *
fulfill[ed] the same functions as the expert assistance sought.” State v. Jenkins
(1984), 15 Ohio St. 3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph four of the
syllabus; State v. Nields (2001), 93 Ohio St. 3d 6, 12-13, 752 N.E.2d 859.
{¶ 104} Fingerprint expert. As discussed, counsel were not ineffective
for failing to object to the state’s fingerprint evidence, because Foust admitted
entering the Coreano home through the basement window. Thus, counsel were
not ineffective for failing to obtain a defense expert to contest this evidence.
26
January Term, 2004
{¶ 105} Arson expert. Foust also claims that his counsel provided
ineffective assistance by failing to request a defense arson expert to assist them in
challenging the state’s arson expert.
{¶ 106} Lt. Victor Gill, a fire investigator, investigated the cause of the
fire at the Coreano home. He concluded that there were “at least three fires and
each [had been] separately and intentionally set.” Investigators located a box of
matches and a spent match on the kitchen floor and another spent match on the
carpet near the point of origin of the upstairs-bedroom fire. Moreover, Foust
confessed that he had been striking matches and “throwing them down” in the
house.
{¶ 107} In view of overwhelming evidence that Foust started the fires at
the Coreano home, counsel could have determined it unnecessary to hire a
defense arson expert to challenge Lt. Gill’s findings. Thus, counsel exercised
professional judgment in refraining from requesting a defense arson expert. See
State v. Hartman, 93 Ohio St. 3d at 300, 754 N.E.2d 1150. As we have noted, “
‘[a]ttorneys need not pursue every conceivable avenue; they are entitled to be
selective.’ ” State v. Murphy (2001), 91 Ohio St. 3d 516, 542, 747 N.E.2d 765,
quoting United States v. Davenport (C.A.7, 1993), 986 F.2d 1047, 1049.
{¶ 108} Finally, resolving this issue in Foust’s favor would be purely
speculative. Foust does not indicate how the testimony of a defense arson expert
would have made any difference in the outcome of the case.
{¶ 109} Cumulative error. Foust argues that even if individually his
counsel’s errors did not rise to the level of ineffective assistance of counsel, the
cumulative effect of those errors necessitates reversal. Foust received a fair trial,
no error occurred, and the “cumulative error” argument is rejected. Based on the
foregoing, we reject proposition III.
{¶ 110} In proposition of law V, Foust asserts that his counsel provided
ineffective assistance by failing to effectively advocate the motion to suppress his
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SUPREME COURT OF OHIO
confession. He also claims that counsel were ineffective in that they failed to
object to Judge Robert Glickman’s presence on the three-judge panel because he
had recently served as a prosecutor.
{¶ 111} Adequacy of the motion to suppress. In a pretrial motion,
defense counsel filed a motion to suppress Foust’s confession “on the grounds
that Defendant did not knowingly, voluntarily, and intelligently waived [sic] his
rights before making such oral statements.” During the presentation of the state’s
evidence on the motion, Detective Michael Cipo testified that Foust was advised
of his Miranda rights prior to making a statement. Foust then waived his
Miranda rights and agreed to provide a statement. According to Detective Cipo,
Foust did not appear to be under the influence of alcohol or drugs and provided
coherent responses to police questioning. Moreover, Foust never informed the
police during the interview that he wanted to talk to a lawyer.
{¶ 112} Foust argues that his counsel were deficient in failing to
introduce any evidence to support their assertion that he had asked the police to
let him speak to an attorney. However, the record supports the voluntary element
of Foust’s confession. Thus, it would be highly speculative to conclude that other
evidence could have been presented to show that Foust’s confession was
involuntary or that he had asked for a lawyer. See State v. Hartman, 93 Ohio
St.3d at 299, 754 N.E.2d 1150. Moreover, Foust’s contention of ineffective
assistance of counsel in not calling him as a witness to support the motion is not
well taken. Counsel’s decision “fell within the realm of trial strategy.” State v.
Gross, 97 Ohio St. 3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 121.
{¶ 113} Foust also claims that his counsel were deficient by failing to
cross-examine Detective Denise Kovach about the voluntariness of Foust’s
confession. During the state’s case-in-chief, the prosecution introduced Foust’s
confession through Detective Kovach’s testimony. Detective Kovach, who had
not testified at the hearing on the motion to suppress, testified that police had
28
January Term, 2004
advised Foust of his Miranda rights and that he had waived those rights prior to
making his confession. At the conclusion of the state’s case, defense counsel
renewed the motion to suppress the confession, which the court overruled.
{¶ 114} Foust argues that his counsel provided ineffective assistance by
failing to ask Detective Kovach during cross-examination whether Foust had
requested a lawyer before making his confession. However, Foust’s confession
was determined to be admissible evidence before Detective Kovach testified.
Both Detective Cipo’s testimony and Foust’s written waiver of his Miranda rights
had earlier established that Foust had waived his right to a lawyer prior to
confessing. Given the strong presumption that counsel’s performance constituted
reasonable assistance, the decision to forgo further cross-examination on this
issue represented a valid “tactical decision.” See State v. Thomas, 97 Ohio St. 3d
309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 51; State v. Hartman, 93 Ohio St. 3d at
297, 754 N.E.2d 1150.
{¶ 115} Finally, it is highly speculative whether further cross-
examination of Detective Kovach would have made any difference in the outcome
of the reasserted motion to suppress. Indeed, counsel may have decided to forgo
further cross-examination of Detective Kovach to avoid eliciting testimony that
might not come out in Foust’s favor. See State v. Hanna, 95 Ohio St. 3d 285,
2002-Ohio-2221, 767 N.E.2d 678, ¶ 123. Moreover, Foust’s counsel had no duty
to cross-examine Detective Kovach about the voluntariness of Foust’s confession
solely because they had reasserted the motion to suppress at the end of the state’s
case.
{¶ 116} Failure to object to Judge Glickman. Foust claims that his
counsel provided ineffective assistance by failing to object to Judge Glickman’s
presence on the three-judge panel. Foust also claims counsel deficiency in their
failing to consult with him on the record before informing the court that the
defense had no objection to Judge Glickman’s presence.
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SUPREME COURT OF OHIO
{¶ 117} During pretrial motions, the trial court informed the parties that
Judge Glickman had recently been appointed to the bench after serving as an
assistant Cuyahoga County prosecutor. The trial court stated, “Counsel have
advised me that the mere association with Judge Glickman and his prior
experience with the Prosecutor’s Office * * * would not in and of itself be a
matter of concern provided that Judge Glickman had not had any involvement in
any prior actions involving Mr. Foust.”
{¶ 118} After opening statements, Judge Glickman disclosed his former
position as an assistant county prosecutor “assigned to the major trial unit, but at *
* * no time * * * ever assigned any case regarding this particular defendant.”
Further, Judge Glickman stated that he could never recall talking with Mr. Del
Balso, the prosecutor, about Foust’s case. In response, Foust’s trial counsel
stated, “We’re satisfied that the Court has made a complete inquiry into that
situation and we have no objection.”
{¶ 119} After the second witness testified, Judge Glickman reiterated that
he did not know anything about this particular case from his time at the
prosecutor’s office but felt he should disclose that he had worked with Dr. Bligh-
Glover (the deputy coroner who testified in this case) in previous cases, that he
had helped train several members of the coroner’s DNA lab – although not Ms.
Heinig, and that he had worked with Detectives Cipo and Kovach on a number of
homicide cases. Again, Foust’s trial counsel agreed that there was “no problem.”
{¶ 120} “The prior professional activities of a judge are not grounds for
disqualification where the record fails to demonstrate the existence of a
relationship or interest that clearly and adversely impacts on a party’s ability to
obtain a fair and impartial trial.” In re Disqualification of Cross (1991), 74 Ohio
St.3d 1228, 657 N.E.2d 1338. Because Judge Glickman had no prior involvement
with Foust’s case as a prosecutor, counsel had no basis for objecting to his
presence on the three-judge panel. Thus, counsel cannot be deficient for failing to
30
January Term, 2004
object to Judge Glickman’s presence on the panel or in failing to file an affidavit
of disqualification against him. See R.C. 2701.03. Moreover, counsel did not
need to consult with Foust on the record about not objecting to Judge Glickman.
{¶ 121} Based on the foregoing, we overrule proposition V.
{¶ 122} In proposition of law VI, Foust argues ineffective assistance of
counsel for failing to raise various guilt-phase issues.
{¶ 123} Failure to cross-examine Serowik. Foust contends his counsel
failed to cross-examine Joseph Serowik, a scientific examiner for the Cleveland
Police Department, as to why no DNA analysis was performed on the rape-kit
swabs. Serowik testified that he had examined swabbings taken from the victim’s
oral, rectal, and vaginal cavities. Microscopic examination of the vaginal swab
revealed sperm cells and seminal fluid, and testing of the rectal swab showed
seminal fluid.
{¶ 124} Serowik testified that “DNA analysis was started,” but “due to
various issues it was unable to be completed.” Serowik explained that DNA
analysis was not completed because the senior DNA analyst went on maternity
leave on the day the evidence was submitted to the lab. Additionally, the lab was
“unable to obtain a reagent necessary for DNA analysis.”
{¶ 125} Because Serowik demonstrated why DNA analysis had not been
conducted on the swabs, counsel may have concluded it was futile to question
further on this issue. Moreover, whether further questioning would have
unearthed any useful information is a matter for speculation only. Indeed, the
lack of DNA testing on the swabs was more favorable to the defense than the
reasons why such tests were not completed – particularly when the reasons
involved administrative miscues. Thus, counsel’s decision to forgo cross-
examination of Serowik on the reasons why the state did not conduct DNA
analysis on the swabs constituted a legitimate “tactical decision.” See State v.
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SUPREME COURT OF OHIO
Hanna, 95 Ohio St. 3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 123; State v.
Campbell, 90 Ohio St. 3d at 339, 738 N.E.2d 1178.
{¶ 126} Adequacy of cross-examination. Foust also asserts that his
counsel provided ineffective assistance by eliciting testimony concerning other
acts that Foust had committed.
{¶ 127} First, Foust complains that counsel elicited information from
Damaris that Foust had been physically violent and that Damaris had seen Foust
hit Acevedo. During cross-examination, defense counsel asked Damaris whether
she had told Acevedo that she should stop going out with Foust. Damaris’s
response, “He was physically violent,” was nonresponsive to counsel’s question.
Counsel then asked, “Did you see any incidence of that?” and Damaris said, “I
seen him hit her.”
{¶ 128} This cross-examination of Damaris was intended to demonstrate
bias on the part of Damaris because she had expressed her dislike of him before
the night of the murder. It is not ineffective assistance to fail to anticipate a
nonresponsive answer to some questions. Moreover, “this case was tried to a
three-judge panel, which was capable of drawing the correct conclusion” from the
evidence. State v. Frazier (1991), 61 Ohio St. 3d 247, 254, 574 N.E.2d 483;
accord State v. Post (1987), 32 Ohio St. 3d 380, 384, 513 N.E.2d 754 (judges
presumed to know the law and expected to consider only relevant, material, and
competent evidence during deliberations).
{¶ 129} Second, Foust complains that his counsel provided ineffective
assistance by eliciting from Damaris that her friendship with Acevedo had ended
because of Foust’s “actions and the things we knew he did.” This comment about
Foust was a nonresponsive answer to the appropriate question “Where did Janira
live at the time that all this came down?” Moreover, Foust did not suffer any
prejudice, particularly because a three-judge panel tried the case. State v. Frazier,
61 Ohio St. 3d at 254, 574 N.E.2d 483.
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January Term, 2004
{¶ 130} Third, Foust claims that counsel’s cross-examination of Damaris
improperly elicited Damaris’s comment that Foust had mocked her about being a
Christian. This response followed a line of questioning about previous
discussions Damaris and Foust had had about religion. We find that counsel’s
decision to pursue this line of questioning was a legitimate tactical decision, even
though some of Damaris’s answers resulted in negative information about Foust.
State v. Bradley, 42 Ohio St. 3d at 144, 538 N.E.2d 373.
{¶ 131} Fourth, Foust argues that his counsel provided ineffective
assistance by eliciting testimony that Foust had made sexual advances toward
Damaris before the night of the rapes. Foust asserts that this testimony supplied a
motive for the state’s case: revenge of a spurned suitor. However, the record does
not support Foust’s assertion. During cross-examination, Damaris testified that
Foust had expressed some romantic interest toward her but that Foust knew
Damaris did not like him and that she had a boyfriend.
{¶ 132} Contrary to Foust’s claims, Damaris’s testimony did not supply a
motive for the crimes. By Foust’s own admission, he was looking for Acevedo,
not Damaris, on the night of the crimes. Thus, the “spurned suitor” motive
applied to Foust’s relationship with Acevedo, not Damaris. Damaris’s testimony
does not establish that Foust had a romantic interest in Damaris to support a
motive for committing murder. Counsel cannot be considered ineffective for
eliciting such testimony.
{¶ 133} Fifth, Foust claims that his counsel’s cross-examination of
Damaris harmed him by eliciting that Foust had “used her to purchase an
automobile, to enable [Foust] to drive illegally.” During cross-examination,
Damaris stated that she had allowed Foust to buy cars and put them in her name
because he had told her she would be able to drive them. However, Damaris
never got to drive these cars.
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SUPREME COURT OF OHIO
{¶ 134} Counsel’s cross-examination showed that Damaris and Foust
knew each other better than she had indicated under direct examination.
Moreover, the fact that Damaris was never allowed to drive the cars titled in her
name helped establish bias of the witness. Counsel’s decision to ask these
questions was a reasonable trial strategy and did not constitute ineffective
assistance. State v. Durr (1991), 58 Ohio St. 3d 86, 96, 568 N.E.2d 674; State v.
Bradley, 42 Ohio St. 3d at 144, 538 N.E.2d 373.
{¶ 135} Sixth, Damaris’s comment that she was never told that Foust did
not have a license or that it might have been suspended was a nonresponsive
comment to one of counsel’s questions. Again, this case was presented to a three-
judge panel, capable of disregarding nonresponsive comments from the witness.
State v. Post, 32 Ohio St. 3d at 384, 513 N.E.2d 754.
{¶ 136} Finally, Foust claims that counsel’s cross-examination of
Patrolman William Hyland was ineffective in that it elicited that Foust had once
forced Damaris to drink an alcoholic beverage that he often drank and that she
had recognized the smell of that beverage on his breath while he raped her. Such
testimony was not prejudicial because this case was tried before a three-judge
panel. Id.
{¶ 137} Other acts of alleged ineffective assistance of counsel. Foust
raises other instances of alleged ineffective assistance of counsel, but even if we
assume deficient performance by counsel, Foust cannot show prejudice.
Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674. As
we discussed in response to proposition I, Foust knowingly, intelligently, and
voluntarily waived his right to a jury trial and he suffered no prejudice from his
counsel’s failure to ensure its validity. Moreover, Foust was not prejudiced by
counsel’s failure to object to the indictment (see discussion corresponding to
proposition II) or by his counsel’s failure to consult with him on the record before
waiving any objection to Judge Glickman’s presence on the panel (proposition V).
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January Term, 2004
Foust was also not prejudiced by his counsel’s decision not to challenge the
constitutionality of R.C. 2901.21(C) (proposition III), or by his counsel’s failure
to request merger of the offenses of rape, kidnapping, and gross sexual imposition
(proposition VII).
{¶ 138} Based on the foregoing, we reject proposition VI.
{¶ 139} Allied offenses. In proposition of law VII, Foust argues that his
separate convictions for kidnapping, rape, and gross sexual imposition violate the
Double Jeopardy Clause because the offenses are “allied offenses of similar
import” under R.C. 2941.25.3 Foust asserts that the state failed to prove separate
animus for these offenses and that they should have been merged into a single
offense. However, the defense failed to raise this issue at trial and thus waived all
but plain error. See State v. Williams, 51 Ohio St. 2d 112, 5 O.O.3d 98, 364
N.E.2d 1364, paragraph one of the syllabus; State v. Comen (1990), 50 Ohio St. 3d
206, 211, 553 N.E.2d 640.
{¶ 140} Kidnapping and Rape. The test for determining whether
kidnapping and rape were committed with a separate animus as to each is
“whether the restraint or movement of the victim is merely incidental to a separate
underlying crime or, instead, whether it has a significance independent of the
other offense.” (Emphasis added.) State v. Logan (1979), 60 Ohio St. 2d 126,
135, 14 O.O.3d 373, 397 N.E.2d 1345. Moreover, “[w]here the asportation or
restraint of the victim subjects the victim to a substantial increase in risk of harm
separate and apart from that involved in the underlying crime, there exists a
separate animus as to each offense sufficient to support separate convictions.” Id.
at subparagraph (b) of the syllabus.
3. R.C. 2941.25(A) provides, “Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment * * * may contain counts
for all such offenses, but the defendant may be convicted of only one.”
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SUPREME COURT OF OHIO
{¶ 141} In Logan and subsequent cases, we held that prolonged
movement, secretive confinement, or substantial movement of the victim are facts
that establish a separate animus for kidnapping. Id. at subparagraph (a) of the
syllabus; State v. Lynch, 98 Ohio St. 3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶
134.
{¶ 142} Here, the facts showed substantial movement and restraint as
Foust forced Damaris into the bathroom after raping her. Foust then tied her
hands and feet together and tied her to the leg of the bathtub with a belt. These
actions subjected Damaris to a substantial increase in risk of harm because after
he chained her to the bathtub, he set the house on fire. Cf. State v. Hartman, 93
Ohio St. 3d at 280-281, 754 N.E.2d 1150 (separate animus for kidnapping when
victim had been tied to a bed, gagged, stabbed 138 times, and strangled and had
had her throat slit). Based on these facts, we find that Foust committed
kidnapping with an animus separate from the rapes.
{¶ 143} Gross Sexual Imposition and Rape. Gross sexual imposition is
a lesser included offense of rape. State v. Johnson (1988), 36 Ohio St. 3d 224, 522
N.E.2d 1082, paragraph one of the syllabus. Consequently, a defendant may not
be convicted of both gross sexual imposition and rape when the counts arise out
of the same conduct.
{¶ 144} One of the three counts of gross sexual imposition that Foust was
found guilty of committing was based upon evidence that Foust touched
Damaris’s vagina with his knife. Damaris testified that Foust left the bathroom
after he tied her to the leg of the bathtub. However, he returned to the bathroom
after hearing Damaris move around. According to Damaris, Foust cut off one of
her braids, touched her vagina with a knife, and threatened to slice her open if she
moved. This constitutes conduct separate and distinct from rape. Under these
facts, the crimes of gross sexual imposition differ from rape, and, therefore, Foust
could be convicted of each.
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January Term, 2004
{¶ 145} The two other counts of gross sexual imposition are premised on
Damaris’s testimony that Foust had touched her breasts and put his fingers on her
vagina. There is no evidence that Foust committed these acts while he was raping
Damaris. We conclude that these acts were distinct and separate from each other
and from the rapes, and, therefore, Foust could be convicted of each in addition to
the rapes.
{¶ 146} Based on the foregoing, we overrule proposition VII.
Penalty-phase issues
{¶ 147} In proposition of law VIII, Foust argues that his counsel provided
ineffective assistance of counsel during the penalty phase.
{¶ 148} Failure to develop Dr. Karpawich’s testimony. Foust claims
that his counsel were deficient in failing to develop Dr. Karpawich’s testimony to
show that Foust suffered from a mental disease or defect that qualified as an R.C.
2929.04(B)(3) mitigating factor. Foust claims that his counsel were obligated to
present such testimony because counsel had “indicated” in opening statement that
“mitigation was based in part upon R.C. §2929.04(B)(3).”
{¶ 149} R.C. 2929.04(B)(3) applies when “at the time of committing the
offense, the offender, because of a mental disease or defect, lacked substantial
capacity to appreciate the criminality of the offender’s conduct or to conform the
offender’s conduct to the requirements of the law.”
{¶ 150} Dr. Karpawich testified that Foust suffered from a major
depressive disorder and alcohol dependence. Additionally, Dr. Karpawich’s
conclusions were included in his written evaluation that was introduced into
evidence. Counsel’s questioning of Dr. Karpawich addressed the mitigating
features of Foust’s mental illnesses as follows:
{¶ 151} “Q: And your interviews with Kelly Foust in the jail since
you’ve had a chance to meet with him and the information that you obtained by
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way of history * * * leads you to believe that that’s what he was suffering from
and he does suffer from a major depressive disorder; is that correct?
{¶ 152} “A: That is my opinion, yes.
{¶ 153} “Q: How would that affect his ability to conduct his everyday
life with respect to making judgments as to the rightness or wrongness of what
he’s doing or what he’s not doing?
{¶ 154} “A: Again, depends on the severity of the depression at any
given time, it depends. Unfortunately in this case when depression is mixed with
alcohol then someone’s judgment is even more significantly impaired. It depends
on what other stability he has in his life to cling on to.”
{¶ 155} Nevertheless, Foust argues that his counsel provided ineffective
assistance by failing to elicit testimony from Dr. Karpawich that Foust lacked the
substantial capacity to appreciate the criminality of his conduct and thus failed to
trigger the language of R.C. 2929.04(B)(3). Because it is highly speculative
whether Dr. Karpawich could have so testified, Foust’s counsel were not
ineffective by failing to elicit such testimony. See State v. Braden, 98 Ohio St. 3d
354, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 116, 121 (counsel not ineffective for
failing to show that the defendant’s paranoid schizophrenia qualified as an R.C.
2929.04(B)(3) mitigating factor).
{¶ 156} However, counsel’s questioning of Dr. Karpawich established
that Foust suffered from a mental illness that qualified as a mitigating factor under
the R.C. 2929.04(B)(7) catchall factor. Cf. State v. Seiber (1990), 56 Ohio St. 3d
4, 9, 564 N.E.2d 408 (“psychological and mental problems, though not qualifying
under R.C. 2929.04[B][3], are directly relevant under R.C. 2929.04[B][7]”).
Thus, counsel were not ineffective in questioning Dr. Karpawich.
{¶ 157} Failure to object to the reintroduction of guilt-phase
evidence. Foust asserts that his counsel provided ineffective assistance by failing
to object to the reintroduction of all guilt-phase exhibits in the penalty phase.
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January Term, 2004
However, Foust does not specify which exhibits he believed prejudiced him.
Nevertheless, counsel were not ineffective by failing to object to this evidence.
The reintroduction of evidence from the guilt-phase in the mitigation phase is
allowed by R.C. 2929.03(D)(1). State v. DePew (1988), 38 Ohio St. 3d 275, 528
N.E.2d 542, paragraph one of the syllabus; State v. Jackson (2001), 92 Ohio St. 3d
436, 447, 751 N.E.2d 946.
{¶ 158} Based on the foregoing, we reject proposition VIII.
{¶ 159} Merger. In proposition of law IX, Foust argues that the three-
judge panel failed to merge the aggravated-murder counts and the duplicative
aggravating circumstances prior to sentencing him. He also claims that the trial
court considered nonstatutory aggravating factors as part of the course-of-conduct
specification.
{¶ 160} Aggravated-murder counts involving the same victim are to be
merged for sentencing. State v. Lynch, 98 Ohio St. 3d 514, 2003-Ohio-2284, 787
N.E.2d 1185, ¶ 132; State v. Lawson (1992), 64 Ohio St. 3d 336, 351, 595 N.E.2d
902. Here, review of the sentencing journal entry reveals that the three-judge
panel imposed a death sentence “as to each of counts 2, 3, 4, 5, and 6,” pursuant
to each conviction, but obviously considered these counts as merged.
{¶ 161} As to the multiple aggravating circumstances, the rule is that
“where two or more aggravating circumstances arise from the same act or
indivisible course of conduct and are thus duplicative, the duplicative aggravating
circumstances will be merged for purposes of sentencing.” State v. Jenkins, 15
Ohio St. 3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph five of the syllabus.
However, in the case at bar, the five R.C. 2929.04(A)(7) aggravating
circumstances (rape, kidnapping, aggravated burglary, aggravated robbery, and
aggravated arson) are not duplicative because none arose from the same act or
indivisible course of conduct as another. Moreover, as discussed in proposition
VII, the facts established that Foust, after breaking into the Coreano home, raped
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SUPREME COURT OF OHIO
and kidnapped Damaris with a separate animus for each offense. The facts also
showed that Foust’s theft of property from inside the house, his setting the house
on fire, and his theft of Jose’s car constituted separate and distinct acts, each
committed with a separate animus. See State v. Jones (2001), 91 Ohio St. 3d 335,
349, 744 N.E.2d 1163.
{¶ 162} Furthermore, the course-of-conduct specification, R.C.
2929.04(A)(5), and the R.C. 2929.04(A)(7) specification need not be merged.
The R.C. 2929.04(A)(7) specifications alleged that the aggravated murder of Jose
occurred during the course of rape, kidnapping, aggravated burglary, aggravated
robbery, and aggravated arson. In contrast, the course-of-conduct specification
alleged that Jose’s murder was part of a course of conduct in which Foust also
attempted to kill Damaris. Thus, the R.C. 2929.04(A)(5) and (A)(7)
specifications did not arise from the same course of conduct and are not
duplicative. See State v. Franklin, 97 Ohio St. 3d 1, 2002-Ohio-5304, 776 N.E.2d
26, ¶ 51-52; State v. Robb (2000), 88 Ohio St. 3d 59, 85, 723 N.E.2d 1019; State v.
Frazier, 61 Ohio St. 3d at 256, 574 N.E.2d 483.
{¶ 163} Finally, Foust points out that the panel considered nonstatutory
aggravating factors as part of the course-of-conduct specification. In its
sentencing opinion, the panel stated, “[T]he killing of Jose Coreano was part of a
course of conduct that included all the other crimes committed by the defendant
that night: the aggravated burglary of the home, rape and gross sexual imposition
upon Damaris Coreano, aggravated robbery, and aggravated arson. These are no
longer separate crimes, but have been tied together in a Gordian knot of perversity
and brutality.”
{¶ 164} The R.C. 2929.04(A)(5) specification applies only to “a course
of conduct involving the purposeful killing of or attempt to kill two or more
persons by the offender.” Thus, the panel improperly referred to other felony
offenses that Foust committed as part of a course of conduct, an error that we will
40
January Term, 2004
correct during our independent review. See State v. Fox (1994), 69 Ohio St. 3d
183, 191-192, 631 N.E.2d 124.
{¶ 165} Based on the foregoing, proposition IX has some merit but does
not result in error sufficient to warrant a reversal or retrial.
{¶ 166} Sentencing opinion. In proposition of law X, Foust contends
that the sentencing panel failed to adequately address and give weight to
mitigating factors presented at trial.
{¶ 167} First, Foust argues that the three-judge panel failed to consider
evidence that he suffered from depression and alcohol dependence as a mitigating
factor under R.C. 2929.04(B)(7), the catchall provision.
{¶ 168} The sentencing panel evaluated Foust’s history of depression and
alcohol dependence to determine whether it qualified as a mental disease or defect
under R.C. 2929.04(B)(3). The panel stated that “the defendant indeed suffers
from a mental disease or defect (depression and alcohol dependence). The report
and testimony of Dr. Karpawich confirm earlier diagnoses to this effect, and Dr.
Karpawich’s testimony further suggests that these conditions may have played a
role in the defendant’s conduct on the night of March 31, 2001.” Nevertheless,
the panel concluded that no evidence established that these conditions affected
Foust’s “ ‘capacity to appreciate the criminality of [his] conduct or to conform
[that] conduct to the requirements of the law.’ ” Panel opinion, quoting R.C.
2929.04(B)(3).
{¶ 169} The panel erroneously failed to discuss whether Foust’s mental
illness had any weight as a (B)(7) factor. We consider this factor during our
independent review. See State v. Mink, 101 Ohio St. 3d 350, 2004-Ohio-1580, 805
N.E.2d 1064, ¶100; State v. Fears (1999), 86 Ohio St. 3d 329, 345, 715 N.E.2d
136.
{¶ 170} Second, Foust argues that the panel did not properly weigh as a
mitigating factor the tragic losses of his older brother and younger sister. In the
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SUPREME COURT OF OHIO
sentencing opinion, the panel considered evidence that “[t]he defendant’s one
significant role model, an older brother, was murdered, execution-style” as a
possible R.C. 2929.04(B)(7) mitigating factor. However, the panel concluded that
“sympathy for the tragic manner in which the defendant lost his older brother and
younger sister may help explain his conduct but does not support mitigation of the
sentence.”
{¶ 171} Examination of the sentencing opinion reveals that the panel
considered the tragic deaths of Foust’s brother and sister as mitigating evidence
but chose to give it no weight. “There is ‘no requirement’ that the trial court
‘explain how it decides how much weight to give any one factor.’ ” Moreover,
‘[t]he weight, if any, given to a mitigating factor is a matter for the discretion of
the individual decisionmaker.’ ” State v. Thomas, 97 Ohio St. 3d 309, 2002-Ohio-
6624, 779 N.E.2d 1017, ¶ 81, quoting State v. Filiaggi (1999), 86 Ohio St. 3d 230,
245, 714 N.E.2d 867. Thus, the panel could reasonably assign whatever weight,
if any, it deemed appropriate for that mitigating evidence. Accordingly, we reject
proposition X.
Cumulative errors
{¶ 172} In proposition of law XI, Foust contends that errors, individually
and collectively, deprived him of a fair trial and necessitate the reversal of his
death sentence. However, our review of the evidence shows that Foust received a
fair trial. Any error was nonprejudicial. We reject proposition XI.
Settled issues
{¶ 173} Proportionality. In proposition of law XII, Foust challenges the
constitutionality of Ohio’s proportionality review. However, we summarily reject
these arguments. See State v. LaMar, 95 Ohio St. 3d 181, 2002-Ohio-2128, 767
N.E.2d 166, ¶ 23; State v. Smith (1997), 80 Ohio St. 3d 89, 118, 684 N.E.2d 668;
State v. Steffen (1987), 31 Ohio St. 3d 111, 31 OBR 273, 509 N.E.2d 383,
paragraph one of the syllabus.
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January Term, 2004
{¶ 174} Constitutionality. In proposition of law XIII, Foust attacks the
constitutionality of Ohio’s death-penalty statutes. We have previously rejected
similar claims. See State v. Carter, 89 Ohio St. 3d at 607, 734 N.E.2d 345; State
v. Jenkins, 15 Ohio St. 3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph one of the
syllabus.
{¶ 175} Foust also argues that Ohio’s death-penalty statutes violate
international agreements to which the United States is a party. However, we also
reject this argument. State v. Bey (1999), 85 Ohio St. 3d 487, 502, 709 N.E.2d
484; State v. Phillips (1995), 74 Ohio St. 3d 72, 103-104, 656 N.E.2d 643.
INDEPENDENT SENTENCE EVALUATION
{¶ 176} Having considered Foust’s propositions of law, we are required
by R.C. 2929.05(A) to independently review Foust’s death sentence for
appropriateness and proportionality. The evidence at trial established that Foust
murdered Jose Coreano and attempted to murder Damaris Coreano as part of a
course of conduct involving the purposeful attempt to kill two people, R.C.
2929.04(A)(5). The evidence also established that Foust murdered Jose while
committing or attempting to commit aggravated burglary, aggravated robbery,
rape, kidnapping, and aggravated arson, R.C. 2929.04(A)(7).
{¶ 177} Against these aggravating circumstances, we are called upon to
weigh the mitigating factors contained in R.C. 2929.04(B). Foust presented three
mitigation witnesses and personally made an unsworn statement.
{¶ 178} Gary William Foust Sr., the defendant’s father, testified that
Foust was the sixth oldest of his eight children, that he and his wife, Barbara,
frequently argued and fought with each other in front of their children, and that he
was an alcoholic. Foust was eight years old when his parents were divorced in
1985. Foust did not do well in school and never graduated from high school.
{¶ 179} In 1987 or 1988, Foust’s mother was sent to prison. Thereafter,
Foust, who was then 11 years old, and three of his siblings lived with their father.
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SUPREME COURT OF OHIO
Because Gary was working, he hired a woman to look after the children. In 1990,
Foust’s mother was released from prison and assumed custody of the children.
Thereafter, Gary lost contact with Foust, and Gary had not seen him since 1990.
{¶ 180} Terence, Foust’s brother, was shot and killed when he was 18 or
19 years old. Terence lived with two people who were dealing drugs when he
was shot. According to Gary, “the people who executed him went there to
execute them two people, [and Terence] just happened to be there.” In 1981,
Foust’s two-year-old sister died from a carbon monoxide leak.
{¶ 181} Barbara Ann Foust, the defendant’s mother, testified that Gary
had been “very violent” and “very unstable.” According to Barbara, Gary treated
the children very badly. “[I]f he wasn’t hitting, he was screaming, he was
threatening, he was ridiculing, berating them. [E]verything they ever did wasn’t
good, nothing they ever did was okay.” Gary often physically abused Barbara,
and she went to the hospital several times after he had beaten her. Gary also hit
Foust and his brothers with “[h]is fist, whatever he could pick up, [and] he’d kick
them.”
{¶ 182} Barbara stated that “[u]p until seventh grade [Foust] was my very
best child. * * * He was always on the merit roll, always on the honor roll, I don’t
remember every [sic] having to discipline him.” However, in the seventh grade,
Foust “just totally changed.” According to Barbara, “[h]e wouldn’t go to school.
When he did he was just there roaming the hall. He’d be out all night. He’d
disappear for a day or night on end.”
{¶ 183} Foust had had a close relationship with Terence, his older
brother. However, Terence was involved in car theft. When Foust was 15 years
old, he got into trouble and was sent to the Riverview School for Boys. In 1994,
while Foust was at Riverview, Terence was shot and killed. Shortly afterward,
Foust tried to kill himself. About a year later, Foust was released from Riverview
and moved back in with his mother. However, Foust “very rarely spoke to
44
January Term, 2004
anyone. You know, he’d go for days coming and going and not speak to anyone
in the house.”
{¶ 184} Foust’s relationship with Acevedo was “very bad on both their
parts.” According to Barbara, “[w]hen he first started seeing her he was actually
living with her at her mother’s apartment. And there was some kind of a problem
between [Foust] and [Acevedo’s] brother so he moved back home and brought her
with him.” However, Foust and Acevedo were constantly fighting. But Barbara
did not “know who hit who the most or who argued the most.”
{¶ 185} Barbara said she has been angry with her son since these offenses
were committed. However, she hoped that Foust would not receive a death
sentence because “we now have the choice of life without parole.”
{¶ 186} Dr. James Karpawich, a clinical psychologist, described Foust’s
upbringing as “very traumatic as well as very chaotic.” Foust’s family members
told Dr. Karpawich that Foust’s father had been “physically abusive towards all
members of the family. On the other hand, Mr. Foust, Kelly’s father, indicated
that Kelly’s mother was unstable. He also alleged that [she] would have men
come into the home when he went to work and that she was committing adultery.”
{¶ 187} Because of the lack of stability in the home, Foust never
developed a strong sense of security. Foust “experienced violence throughout his
upbringing, which has an impact on the way he would interact with other people,
especially women.” Moreover, Foust lacked positive role models during his
formative years. Foust had looked up to his older brother Terence as a role model
before he was shot and killed.
{¶ 188} Dr. Karpawich reviewed a report prepared by Dr. Feldsher of the
Court Psychiatric Clinic on Foust’s mental state. Although the report was not
introduced at trial, Dr. Feldsher diagnosed Foust as suffering from a depressive
disorder with a secondary diagnosis of alcohol dependence. Dr. Karpawich
concurred with the finding that Foust “has a significant problem that qualifies for
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SUPREME COURT OF OHIO
alcohol dependence.” Moreover, Dr. Karpawich believes that Foust was
“suffering from a major depressive disorder at the time since both [Foust] and his
family had reported that he had been suffering from depression and suicidal
thoughts for several months prior to the offense.”
{¶ 189} Intelligence tests indicated that Foust’s IQ is “in the average
range and he does not have any severe clouded deficits.” As reported in Dr.
Karpawich’s written evaluation, other tests showed that Foust’s memory was
intact, he had mild problems with his complex reasoning ability, and his reading
skills were at the high school level.
{¶ 190} Finally, Dr. Karpawich indicated that Foust has “abided by the
rules and regulations since he’s been in the Cuyahoga County Jail.” Although
other inmates have given Foust “a hard time because of the high publicity of the
trial, * * * he’s been able to maintain his control over his anger.” Moreover,
“he’s not gotten into any violence * * * [and] he’s been a very appropriate
prisoner.”
{¶ 191} Foust’s unsworn statement. On the date of the offenses, Foust
was drinking alcohol with a friend. Foust said that his purpose in going to the
Coreano house was to see Acevedo, who “was one of the only individuals that
[he] had at the time to talk to or to listen to [him].” According to Foust, “I don’t
know what exactly triggered everything off, but it was just a lot of unstable
emotions and mixed feelings that was going through my head at the time.”
{¶ 192} Foust told the Coreano family, “I’d like to just say I’m sorry. It
should have never happened.” He also said, “I didn’t mean to hurt nobody. I
wasn’t intentionally trying to do harm to anybody. When I went there it had
nothing to do with the Coreano family at all, but when I arrived there everything
in my mind just changed that one split second.” In closing, Foust said, “You
know, if there’s a way I can change that I would, but I don’t think there’s, you
know, anything within my power that I can actually do to help any of the pain or
46
January Term, 2004
change anything that happened. The most I can do is just, you know, tell them
that I’m sorry for it and hope that one day * * * maybe they can learn to forgive
me for it.”
{¶ 193} We find nothing in the nature and circumstances of the offenses
to be mitigating. Foust broke into the Coreano home and murdered Jose Coreano
while he was sleeping. Foust also repeatedly raped Damaris Coreano, chained her
to the leg of the bathtub, and then tried to kill her by setting the house on fire.
Furthermore, Foust stole property from inside the house and stole Jose’s car in
fleeing from the scene.
{¶ 194} Although Foust’s character offers nothing in mitigation, we give
some weight to his history and background. Foust was raised in a very unstable
family environment. His father was an alcoholic, and his mother spent time in
prison while Foust was growing up.
{¶ 195} We find that the statutory mitigating factors are generally
inapplicable here, including R.C. 2929.04(B)(1) (victim inducement), (B)(2)
(duress, coercion, or strong provocation), and (B)(6) (offender was accomplice
only).
{¶ 196} Foust’s mental disorders do not qualify as an R.C. 2929.04(B)(3)
factor because there was no testimony that Foust, by reason of a mental disease or
defect, lacked substantial capacity to appreciate the criminality of his conduct or
to conform his conduct to the requirements of the law.
{¶ 197} We give little weight to the R.C. 2929.04(B)(4) mitigating factor
(youth of the offender) because Foust was 23 years old at the time of the offenses.
See State v. Hartman, 93 Ohio St. 3d at 306, 754 N.E.2d 1150; State v. Dunlap
(1995), 73 Ohio St. 3d 308, 319, 652 N.E.2d 988; State v. Ballew (1996), 76 Ohio
St.3d 244, 257, 667 N.E.2d 369.
{¶ 198} The R.C. 2929.04(B)(5) mitigating factor (lack of significant
criminal history) is entitled to only some weight because Foust has a prior felony
47
SUPREME COURT OF OHIO
conviction for receiving stolen property. Foust was also sent to the Riverview
School for Boys from September 1992 to February 1995.
{¶ 199} Under the catchall provision, R.C. 2929.04(B)(7), we also give
some weight to Foust’s mental problems. Foust was diagnosed with “Depressive
Disorder” and “a significant problem with Alcohol Dependence.” Nevertheless,
there was no evidence of any significant connection between Foust’s mental
disorders and Coreano’s murder. Moreover, we have previously rejected the
argument that a defendant’s alcoholism ought to receive much weight as a
mitigating factor. See State v. Slagle (1992), 65 Ohio St. 3d 597, 614, 605 N.E.2d
916.
{¶ 200} We also give some weight as a (B)(7) mitigating factor to
evidence suggesting that Foust will adapt well to prison life. State v. Madrigal,
87 Ohio St. 3d at 397, 721 N.E.2d 52. Additionally, we give weight under (B)(7)
to Foust’s cooperating with the police after he was arrested. State v. Mink, 101
Ohio St. 3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 125.
{¶ 201} Finally, we give weight to Foust’s apologies to the victims’
family and his expressions of remorse. See State v. Hughbanks, 99 Ohio St. 3d
365, 2003-Ohio-4121, 792 N.E.2d 1081, at ¶ 143; but, see, State v. Keene (1998),
81 Ohio St. 3d 646, 671, 693 N.E.2d 246 (remorse entitled to little weight in
mitigation). The evidence does not reveal any other mitigating factors under R.C.
2929.04(B)(7).
{¶ 202} Upon weighing the aggravating circumstances against the
mitigating factors, we find that the aggravating circumstances as to Jose
Coreano’s murder outweigh the mitigating factors beyond a reasonable doubt.
Foust murdered Jose Coreano during the course of an aggravated burglary,
aggravated robbery, rape, kidnapping, and aggravated arson, which are grave
aggravating circumstances. Similarly, his course of conduct in killing Jose and
attempting to kill Damaris Coreano is also a serious aggravating circumstance. In
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January Term, 2004
contrast, Foust offered no significant mitigating evidence. Thus, we find that the
death penalty is appropriate.
{¶ 203} We also find that the penalty imposed in this case is both
appropriate and proportionate when compared to other course-of-conduct murders
for which the death penalty was imposed. See State v. Filiaggi, 86 Ohio St. 3d
230, 714 N.E.2d 867 (one murder and one attempted murder); State v. Dennis
(1997), 79 Ohio St. 3d 421, 683 N.E.2d 1096 (one murder and one attempted
murder); State v. Beuke (1988), 38 Ohio St. 3d 29, 526 N.E.2d 274 (one murder
and two attempted murders).
{¶ 204} The death penalty is also appropriate and proportionate when
compared to death sentences approved for other burglary-murder and robbery-
murder cases. See State v. Williams, 99 Ohio St. 3d 439, 2003-Ohio-4164, 793
N.E.2d 446; State v. Thomas, 97 Ohio St. 3d 309, 2002-Ohio-6624, 779 N.E.2d
1017; State v. Stallings (2000), 89 Ohio St. 3d 280, 731 N.E.2d 159. It is also
appropriate and proportionate when compared with the sentence in other
kidnapping-murder cases. See State v. Scott, 101 Ohio St. 3d 31, 2004-Ohio-10,
800 N.E.2d 1133; State v. Hartman, 93 Ohio St. 3d 274, 754 N.E.2d 1150; State v.
Ballew, 76 Ohio St. 3d 244, 667 N.E.2d 369. Additionally, the death penalty is
appropriate and proportionate when compared to other rape-murder cases. See
State v. Carter, 89 Ohio St. 3d 593, 734 N.E.2d 345; State v. Phillips, 74 Ohio
St.3d 72, 656 N.E.2d 643; State v. Mason (1998), 82 Ohio St. 3d 144, 694 N.E.2d
932. Finally, the death penalty is appropriate and proportionate when compared
to death sentences approved in other arson-murder cases. See State v. Franklin,
97 Ohio St. 3d 1, 2002-Ohio-5304, 776 N.E.2d 26; State v. Wilson (1996), 74 Ohio
St.3d 381, 659 N.E.2d 292.
Conclusion
{¶ 205} We affirm Foust’s convictions and his sentence of death.
Judgment affirmed.
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SUPREME COURT OF OHIO
MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, LUNDBERG STRATTON and
O’CONNOR, JJ., concur.
__________________
William D. Mason, Cuyahoga County Prosecuting Attorney, Gail D.
Baker, Perry M. Kendall Jr., and Carol M. Skutnik, Assistant Prosecuting
Attorneys, for appellee.
David L. Doughten and Alan C. Rossman, for appellant.
_____________________
50 | 01-03-2023 | 08-01-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/717460/ | 82 F.3d 436
317 U.S.App.D.C. 192
UNITED STATES of America, Appellee,v.Oscar ANDERSON, Jr., Appellant.
Nos. 95-3109, 95-3123.
United States Court of Appeals,District of Columbia Circuit.
Argued Feb. 29, 1996.Decided April 16, 1996.Rehearing and Suggestion for Rehearing In Banc Denied June 26, 1996.*
Appeals from the United States District Court for the District of Columbia (No. 93cr00188-01) (No. 94cr00369-01).
Carmen D. Hernandez, Assistant Federal Public Defender, argued the causes for appellants. With her on the briefs were A.J. Kramer, Federal Public Defender, and Valencia R. Rainey, Assistant Federal Public Defender. Santha Sonenberg, Assistant Federal Public Defender, entered an appearance.
Elizabeth H. Danello, and Chun T. Wright, Assistant United States Attorneys, argued the causes for appellee. With them on the briefs were Eric H. Holder, Jr., United States Attorney, John R. Fisher, Elizabeth Trosman, and Jennifer M. Anderson, Assistant United States Attorneys.
Before: WALD, WILLIAMS and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
Concurring Opinion filed by Circuit Judge TATEL.
Dissenting Opinion filed by Circuit Judge WALD.
STEPHEN F. WILLIAMS, Circuit Judge:
1
In establishing minimum mandatory penalties for drug offenses in the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207, Congress adopted a 100:1 ratio as between amounts of cocaine powder and cocaine base, generally known as crack. 21 U.S.C. § 841(a) & (b). The five-year mandatory minimum kicks in, for distribution or possession with intent to distribute, at 500 grams of cocaine powder but at only five grams of crack. 21 U.S.C. § 841(b). The ten-year minimum starts at five kilograms of cocaine or 50 grams of crack. Id. In its effort to grade penalties in accordance with the severity of the offense, as measured for drug offenses in part by the quantity of drugs, the Sentencing Commission incorporated the statutory ratio, both for lower and higher quantities. Thus drug convictions involving at least 500 but less than 2000 grams of cocaine, or at least 5 but less than 20 grams of crack, equally produce a base offense level of 26. U.S. Sentencing Guidelines ("U.S.S.G.") § 2D1.1. Absent any further adjustments, this would lead to a sentencing range of 63 months (just above the five-year statutory minimum) to 78 months. Id. at Ch. 5, Pt. A. The next quantitative step up, 2-to-3.5 kilograms of cocaine or 20-to-35 grams of crack, would take the offense to level 28 and a range of 78 to 97 months. And so on. The Commission explained that "[t]he base offense levels in § 2D1.1 are either provided directly by the Anti-Drug Abuse Act of 1986 or are proportional to the levels established by statute.... Levels 32 and 26 in the Drug Quantity Table are the distinctions provided by the Anti-Drug Abuse Act; however, further refinement of drug amounts is essential to provide a logical sentencing structure for drug offenses." U.S.S.G. § 2D1.1 (commentary, background).
2
The 100:1 ratio has been subject to severe attack, particularly because the use and marketing of cocaine powder and crack appear to follow a racial fault line, with blacks being characteristically subject to the far more draconian crack penalties. See, e.g., United States v. Thompson, 27 F.3d 671, 678 (D.C.Cir.1994); United States v. Armstrong, 48 F.3d 1508, 1511-12, 1515 (9th Cir.), cert. granted, --- U.S. ----, 116 S.Ct. 377, 133 L.Ed.2d 301 (1995). The widespread concern has led to an exchange between Congress and the Sentencing Commission, as yet inconclusive, but which appellants claim establishes that the flaws in the 100:1 ratio amount to a "mitigating circumstance ... not adequately taken into consideration" by the Sentencing Commission, thereby authorizing a departure under 18 U.S.C. § 3553(b) below the otherwise indicated Guidelines range.
3
In the Omnibus Violent Crime Control and Law Enforcement Act of 1994, Congress directed the Commission to produce a report on the difference in penalty levels, along with any recommendations for change. Pub.L. No. 103-322, § 280006, 108 Stat. 2097. The Commission duly produced a report that--after reviewing the varieties of cocaine, examining the health effects of their use, describing how they are distributed, and attempting to measure their effect on crime--concluded, rather hesitantly and cautiously, that "a policymaker could infer that crack cocaine poses greater harms to society than does powder cocaine." Special Report to the Congress: Cocaine and Federal Sentencing Policy 195 (Feb. 1995). But the Commission concluded that the 100:1 ratio was not logically supportable. Some of the concerns that had led to its adoption by Congress, such as the greater association with gun-carrying, violence, and offenders' prior criminal records, were the subject of enhancements under the Guidelines, making it inappropriate to use them also as a basis for greater severity for crack across the board. Id. at 196. Other concerns, however, such as crack's greater addictiveness and (because of its cheapness) availability to "a broader and more vulnerable part of the population," id. at 197, were not separate bases for adjustment, and accordingly remained grounds for some differential. Thus, although the Commission "strongly" recommended against retention of the 100:1 ratio, it declined to recommend any particular alternative. Id. at 198. In May 1995, however, the Commission bit the bullet and proposed a 1:1 ratio, also specifically suggesting that Congress drop the 100:1 ratio from its own mandatory minimums. See United States Sentencing Commission, Amendments to the Sentencing Guidelines for United States Courts, 60 Fed.Reg. 25074, 25075-76 (1995).1 Congress rejected the 1:1 ratio proposal on October 30, 1995, Pub.L. 104-38, § 1, 109 Stat. 334, but at the same time told the Commission to try again, with the guidance (rather obvious under the circumstances) that "the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of powder cocaine...." Id. § 2(a)(1)(A).
4
Both appellants here pleaded guilty to offenses involving at least five but less than 20 grams of crack, leading to initial classification of their offenses at level 26. Both calculations were subject to further adjustments that are not in dispute here, so that, even though they were sentenced at the very bottom of their Guidelines range, both received sentences well above the five-year mandatory minimum; thus, despite Congress's retention of the 100:1 ratio in those minimums, for them a downward departure would have been feasible (i.e., would not have bumped into the mandatory floor) if it had been permissible under the Guidelines. Both were sentenced after the Commission made its 1:1 proposal to Congress but before the congressional rejection, and both asked the district judge (the same one, as it happened) to depart downwards on the theory that the Commission's report and recommendation proved the inadequacy of the Commission's prior "consideration" of the cocaine-crack relationship. The district court declined, expressly stating that it lacked authority, and reasoning that the proposed amendment was "not a law" but "just a recommendation to Congress." We agree that the Commission's and Congress's ongoing and inchoate efforts to alter the status quo do not give district Judges authority to depart.
5
* * *
6
District courts have statutory authority to depart from sentencing levels established in the Guidelines if
7
the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.
8
18 U.S.C. § 3553(b); see also U.S.S.G. § 5K2.0 (policy statement). We reject the appellants' contention that the Commission's Special Report and later recommendation to Congress show that it did not "adequately" consider the cocaine-crack issue when it adopted the 100:1 ratio, as the term "adequately" is used in § 3553(b).
9
We question whether one could read "adequately" as used in § 3553(b) to permit courts to find the Commission's "consideration" of a factor inadequate unless the Commission has not officially considered the factor at all--"circumstances of a kind"--or has not addressed the extremity of the case--"or to a degree." In its statement of purposes for establishment of the guidelines and the Commission, interestingly, Congress in fact used a formula omitting the word "adequately" altogether, saying that its goal was to avoid sentencing disparities "while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices." 28 U.S.C. § 991(b)(1)(B).
10
In any event the Commission has explained that it intends the district courts to "treat each guideline as carving out a 'heartland,' a set of typical cases embodying the conduct that each guideline describes," and to consider departing only if the court "finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm." U.S.S.G. Ch. 1, Pt. A, § 4(b) (policy statement) (emphasis added); see also United States v. Dyce, 78 F.3d 610, 612 (D.C.Cir.1996) (explaining atypicality requirement). This interpretation is an entirely reasonable reading of the statute. See United States v. Doe, 934 F.2d 353, 359 (D.C.Cir.1991) (courts defer to reasonable interpretations by Sentencing Commission under Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984)); cf. Williams v. United States, 503 U.S. 193, 201, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341 (1992) (policy statements limiting district court discretion to depart are "authoritative guide[s]" to meaning of Guidelines).2 In United States v. Rivera, 994 F.2d 942 (1st Cir.1993), then-Chief Judge Breyer elaborated on the link between atypicality and the definition of "kind" and "degree":
11
The district court's decision that circumstances are of a "kind" or "degree" that warrant departure will not involve a "quintessentially legal" interpretation of the words of a guideline, but rather will amount to a judgment about whether the given circumstances, as seen from the district court's unique vantage point, are usual or unusual, ordinary or not ordinary, and to what extent.
12
Id. at 951 (emphasis added). This reading assures fulfillment of the Guidelines' effort to structure sentencing coherently. Non-Guidelines sentences will occur only where the Commission has completely overlooked a factor (an event that is presumably rare and almost inconceivable for a characteristic typical of a crime or of defendants) or where the defendant's case manifests a circumstance that was considered but which is present in such an extreme form that the Guidelines' adjustment for it is inadequate.
13
Appellants cite United States v. Smith, 27 F.3d 649 (D.C.Cir.1994), to prove the absence of any atypicality requirement. But in that case, holding that a downward departure was permissible where defendant would serve his sentence under harsher conditions solely because he was a deportable alien, neither the majority nor the dissent could find any suggestion that the Commission had considered that circumstance at all in establishing the Guidelines. (Although the Commission's complete lack of consideration was not mentioned explicitly, it is clear from the discussions in the opinions.) Nor can it be said that an expectation of especially severe conditions of incarceration due to being a deportable alien is typical of defendants. Our more recent decision in Dyce emphasizes the other form of inadequate consideration--a factor manifest in an extreme degree in the defendant's case. There we rejected the district court's grant of a downward departure for family responsibilities to a single mother of three, pointing out that the Guidelines discourage consideration of family circumstances in sentencing and that such consideration therefore was allowed only in an "extraordinary" situation, which Dyce did not present. Dyce, 78 F.3d at 613.
14
In their briefs appellants try to get around these limitations on the meaning of adequate consideration by stressing that the Commission itself found that its earlier decision failed to take adequate account of the (lack of) differences between powder cocaine and crack. But 18 U.S.C. § 3553(b) states: "In determining whether a circumstance was adequately taken into account, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." As the Commission has not so characterized its report and recommendation to Congress on crack, they would seem to have no more weight for these purposes than a report by a learned society.3 There is no logical distinction between them for purposes of measuring adequacy of consideration; indeed, at oral argument counsel urged that a report of the latter sort would equivalently undermine the adequacy of the Commission's consideration of an issue. The Commission presented new findings, as any group or individual might do, that it claimed undermined the policy basis for part of the Guidelines. But it refrained from any effort to assign the report and recommendations official status under § 3553(b)--to do so would have been to engage in rather vehement self-contradiction--and merely proposed an amendment to Congress. Because Congress rejected it, the proposal never moved from astute critique into the realm of legal effectiveness.
15
Insofar as appellants try to escape this reasoning, they argue that Congress didn't just reject the proposal, it invited the Commission to reconsider and to come up with an alternative. But a direction to study a matter, even from Congress, cannot be said to change the state of the law (here, the legal fact that the Commission has considered the "circumstance"--the difference between crack and powder cocaine). If it could, then directions to study, which often accompany legislation, see, e.g., Natural Gas Policy Act, Pub.L. No. 95-621, § 123, 92 Stat. 3350, 3371 (1978) (calling for Department of Energy to produce reports on "competitive conditions and market forces in the natural gas industry in the United States"), might be deemed to change the interpretation of the statute to which they are ancillary--and evidently to change it in completely random ways, in accordance with whatever the interpreting judge might expect to flow from the study.
16
Acceptance of appellants' argument would logically allow every sentencing district judge to select his or her personal crack-cocaine ratio, at any level between 100:1 (by denying departure) and 1:1. It is hard to imagine a more flagrant violation of the Guidelines' purpose to avoid "unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct." 28 U.S.C. § 991(b)(1)(B); see also United States v. Williams, 980 F.2d 1463, 1467 (D.C.Cir.1992) ("The very purpose of the Guidelines ... was to eliminate disparity in the sentences of similarly situated defendants.").
17
Apart from those disparities, appellants' theory would greatly exacerbate a problem that the mandatory minimums already entail. A defendant guilty of distributing exactly five grams of crack, and whose treatment under the Guidelines calls for no upward adjustment, must get a minimum of five years. 21 U.S.C. § 841(b). Under appellants' view, a defendant guilty of the same crime, but with a host of aggravating factors, could readily get exactly the same sentence. Similar distortions are possible even now. A defendant with a base offense level equal to a mandatory minimum, plus some mitigating circumstances, can get no benefit from the latter, whereas a similar crack defendant, with the same mitigating circumstances and a host of aggravating ones, can do so--he can have the former offset the latter. Because acceptance of defendants' claim here would greatly expand the incidence of these distortions, it is significant that the Commission's reform proposal included an explicit invitation to Congress to change the mandatory minimums themselves. It is thus unclear whether the Commission has even favored (we know it has not enacted) a crack/cocaine ratio for the Guidelines out of sync with that of the statute. So far as appears, it has not altered its original view that "a logical sentencing for drug offenses" requires refinements coordinated with the mandatory minimums. U.S.S.G. § 2D1.1 (commentary, background).
18
Insofar as Hogan makes any separate argument (which his counsel disclaimed at oral argument), it runs roughly as follows: In the commission of my offense I did not engage at all in certain aggravating conduct (e.g., causing death or injury, possession or use of weapons, or sales of drugs to juveniles) that the Commission has (1) specifically identified as appropriate grounds for upward adjustments and (2) used in its crack report as part of the explanation for its adoption of the 100:1 ratio for crack. In other words, the Commission double-counted by considering the same factors in setting both the base offense level and upward adjustments. Accordingly, he implicitly argues, it is appropriate in context to treat the absence of these factors in his case as special mitigating circumstances "not adequately taken into consideration" by the Commission.
19
The difficulty with Hogan's position is that it underscores why the Commission as a realistic matter could not classify its crack report and recommendations among the official materials to be considered under § 3553(b). To do so would have been to render those official materials hopelessly self-contradictory, saying on the one hand that crack deserves truly draconian treatment because of its statistical association with special characteristics, but also that those special characteristics are to be handled on a retail, individualized basis.
20
None of our analysis is dependent on any assumption that the Commission and Congress will not, ultimately, modify the 100:1 ratio. The Commission has effective power to make its decisions retroactive. This is because Congress has authorized the courts to reduce a sentence where the Commission has lowered the sentencing range after a defendant's sentencing and the reduction would be consistent with the Commission's "applicable policy statements." 18 U.S.C. § 3582(c)(2). The Commission lists its amendments for which it intends retroactivity, explaining that reduction under § 3582(c)(2) on the basis of amendments not so listed would not be "consistent with [its] policy statement" on the subject. U.S.S.G. § 1B1.10. This is the method that the statute contemplates for change, a method that, unlike appellants' proposed analysis, enables the Commission to make systematic efforts to minimize sentencing disparities.
21
As we understand our dissenting colleague's opinion, it turns on a proposition not advanced by either appellant, namely, that the 100:1 ratio "violate[s] § 3553(a)'s instructions that a court impose a sentence 'sufficient, but not greater than necessary' to 'reflect the seriousness of the offense' and 'provide just punishment.' " Dissent at 7. Because the issue was not raised by appellants, we do not pass on it, but we must note a few problems. First, it is far from clear that § 3553(a) provides a standard by which the Guidelines themselves are to be judged. It is in terms an instruction to the sentencing court, and, given § 3553(b)'s express provision for going outside the "range" determined by application of the Guidelines, would seem presumptively directed to the court's exercise of its discretion within that range. Second, if (1) § 3553(a) is a standard for evaluation of the Guidelines themselves, and (2) the 100:1 ratio violates that standard, then Congress has at best sent rather contradictory signals in itself insisting on the 100:1 ratio in the mandatory minimum provisions of 21 U.S.C. § 841. Finally, if the Guidelines' 100:1 ratio is unlawful, then we should think the proper remedy would be to strike it down and substitute a lawful ratio, or at any rate the largest ratio that the Commission could lawfully adopt (rather than licensing every district judge to make individual adjustments); such a remedy would preserve a coherent treatment as between crack and powder offenders, at least within this circuit.
22
* * *
23
The district court correctly decided that Congress's and the Commission's actions gave it no power to depart. The judgments are therefore
24
Affirmed.
25
TATEL, Circuit Judge, concurring in part and concurring in the judgment:
26
I join the judgment of the court and that portion of Judge Williams's opinion finding the appellants' position inconsistent with the Sentencing Commission's interpretation of 18 U.S.C. § 3553(b) as permitting departure only in atypical cases. I write separately because I do not entirely agree with Judge Williams's interpretation of § 3553(b) and because I wish to explain more fully why I am unpersuaded by a separate argument that appellant Hogan appears to have made in his briefs.
27
Section 3553(b) requires a sentencing court to impose a sentence within the applicable Sentencing Guidelines range "unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." Although I agree with Judge Williams that we should defer to the Commission's interpretation of § 3553(b), I do not share his view that § 3553(b) permits departures only when "the Commission has completely overlooked a factor ... or [when] the defendant's case manifests a circumstance that was considered but which is present in ... an extreme form." Opinion of Williams, J., at 439 (emphasis added). In my view, this interpretation ignores the word "adequately." Quite apart from the degree to which a circumstance exists in a particular defendant's case, the statute leaves open the possibility that departure may be warranted for circumstances "of a kind" to which the Commission gave some consideration, but not adequate consideration.
28
I would instead affirm the district court by relying exclusively on the Commission's policy statement interpreting § 3553(b). The Sentencing Commission has explained:
29
The Commission intends the sentencing courts to treat each guideline as carving out a "heartland," a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.
30
U.S.S.G. Ch. 1, Pt. A, § (4)(b) (policy statement). As for the standard governing our review of this policy statement, Judge Williams views the statement as an interpretation of a statute, § 3553(b), thus suggesting that our review is governed by the standards set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984). Judge Wald, in contrast, views the policy statement as an interpretation of the sentencing guidelines and thus suggests a more deferential standard of review. Cf. Stinson v. United States, 508 U.S. 36, 44-45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (stating that the Commission's official commentary on guidelines is entitled to the same level of deference as that given to an agency's interpretation of its own regulation). To me, the question is close. Although the policy statement styles itself "an aid to understanding the guidelines," U.S.S.G. Ch. 1, Pt. A, § (4)(b) (policy statement), the statement's "heartland" discussion follows a quotation from § 3553(b) and could reasonably be viewed as interpreting that statutory provision. We need not decide precisely which standard of review applies, however, for we all agree that, under either standard, courts must defer to the Commission's "heartland" interpretation of § 3553(b) if it is reasonable and not contrary to the Constitution, a statute, or a sentencing guideline.
31
On its face, § 3553(b) does not indicate whether each guideline should be viewed as carving out a "heartland" of cases in which departure will not be warranted or whether, instead, district courts may base departures on circumstances that are present in every case for an offense described by a particular guideline. The statute speaks merely of "an aggravating or mitigating circumstance ... that should result in a sentence different from that described." Because the language of the statute does not speak directly to the question whether departure should be reserved for atypical cases--and is not inconsistent with an interpretation restricting departure to such atypical cases--we must defer to the Commission's interpretation if it is reasonable and not contrary to law.
32
By virtue of its requirement of atypical circumstances, the Commission reads the statute to mean, at the very least, that a circumstance present in every case for an offense described by a particular guideline is not a "circumstance ... that should result in a sentence different from that described." This reading of § 3553(b) is reasonable. Allowing departure in every case for an offense described by a particular guideline would be equivalent to having no guideline at all for that offense. Under the Commission's reading, § 3553(b) does not give defendants a tool for attacking a guideline itself, but rather affords them an opportunity to demonstrate that their cases should not be treated as falling within a particular guideline. Although Anderson and Hogan advance a reasonable interpretation of § 3553(b), our task is not to choose among plausible readings of that provision, but to defer to the Commission's permissible and reasonable interpretation.
33
In light of the Commission's "heartland" interpretation of § 3553(b), I would distinguish United States v. Smith, 27 F.3d 649 (D.C.Cir.1994), differently than Judge Williams does. Whether the Commission completely failed to consider alien status--the suggested ground for departure in Smith--is not the relevant distinction between that case and this one. Instead, what differentiates the basis for departure in Smith from the basis on which the appellants in this case seek departure is that permitting departures based on alien status leaves in place a "heartland" of cases described by a sentencing guideline. In contrast, Anderson and Hogan propose a basis for departure that would apply to all crack cocaine defendants.
34
Relying on the Commission's special report on cocaine sentencing, our dissenting colleague argues that application of the Commission's "heartland" interpretation of § 3553(b) to bar downward departures on the ground suggested by the appellants in this case would violate 18 U.S.C. § 3553(a), which provides that a sentencing court "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of sentencing set forth in § 3553(a)(2). According to the dissent, § 3553(b), read in conjunction with § 3553(a), authorizes departures from Guidelines sentences even in cases that are typical for a particular offense if Guidelines sentences would be "greater than necessary" to serve the statutorily identified purposes of sentencing. Like Judge Williams, I disagree. In my view, § 3553(a) does not itself provide a standard for determining when departure is appropriate. See United States v. Davern, 970 F.2d 1490, 1492-93 (6th Cir.1992) (en banc), cert. denied, 507 U.S. 923, 113 S.Ct. 1289, 122 L.Ed.2d 681 (1993). Section 3553(b) provides that absent inadequately considered mitigating or aggravating circumstances, a sentencing court "shall impose" a sentence within the appropriate Guidelines range, and § 3553(a) itself instructs a sentencing court to consider the sentencing range for "the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines," 18 U.S.C. § 3553(a)(4)(A) (1994). Therefore, I read § 3553(a) as simply instructing a sentencing court how to select a sentence within an applicable Guidelines range or how to choose a sentence if departure is warranted under the standard set forth in § 3553(b).
35
The Commission's requirement of atypical circumstances may not completely answer what appears to be Hogan's separate argument. Although his position is not entirely clear, Hogan's briefs seem to claim that the Commission's special report discloses several factors--such as lack of violence--present in his case but not adequately considered by the Commission in establishing the sentencing guidelines for crack cocaine offenses. Although Hogan's counsel appeared to abandon this claim at oral argument, I address it separately because the interests of Hogan and Anderson, who were jointly represented at oral argument, may have differed with respect to this claim.
36
In my view, Hogan's argument fails because the relevance of the special report to a district court's inquiry under § 3553(b) is limited. Section 3553(b) states: "In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." The Sentencing Commission ordinarily identifies its policy statements and official commentary as such, but has not so identified its special report on crack cocaine. Documents such as the report on crack cocaine still may be relevant to judicial determinations under § 3553(b). Like any other evidence, such reports may point out a factor that courts should examine as a possible mitigating or aggravating circumstance. Such reports may also contain information against which a court may measure the adequacy of the Commission's consideration of a factor. In the end, however, a court trying to decide whether and to what extent the Sentencing Commission did in fact consider an alleged mitigating or aggravating factor may rely for the answer to that question on the guidelines, policy statements, and official commentary only.
37
Hogan argues that the Commission failed to consider several mitigating factors present in his case. His offense, he asserts, did not involve violence, juveniles, large quantities of cocaine, or proximity to schools. As is clear from the materials that Congress has instructed courts to consult to determine whether the Commission adequately considered these factors, the Commission based sentences in part on the quantities of cocaine involved in an offense and identified violence, weapon use, and involvement of juveniles as circumstances justifying sentences higher than the base offense level sentences. Specifically, the Commission authorized upward adjustments for causing injury or death, U.S.S.G. § 5K2.1, p.s.; § 5K2.2, p.s.; for possession or use of weapons, § 2D1.1(b)(1); § 5K2.6, p.s.; for leadership in criminal activity, § 3B1.1; and for involvement of juveniles or drug sales near protected locations, § 2D1.2. The guidelines and policy statements thus demonstrate that the Commission predicated the base offense levels on the absence of these factors. Accordingly, the Commission did consider the kinds of circumstances that Hogan identifies and determined that the base offense level was appropriate under such circumstances. Hogan has not demonstrated that the Commission's consideration of these types of circumstances was inadequate. Although Hogan suggests that in setting the base offense levels for crack cocaine the Commission relied on assumptions about higher rates of violence and other evils associated with crack cocaine, he has not pointed to anything in the sentencing guidelines, policy statements, or official commentary to support this claim.
38
* * *
39
From the appellants' perspectives, their sentences undoubtedly seem unfair. After all, the Sentencing Commission has essentially conceded that their prison terms are unjustifiably high in comparison to the prison terms of similarly situated powder cocaine defendants. But neither appellant has questioned the power of Congress or of the Sentencing Commission to establish the sentencing ranges that currently exist for crack cocaine offenses. The question before us, therefore, is whether district courts possess legal authority to depart downward in sentencing defendants charged with crack cocaine offenses on the ground that the Sentencing Commission failed adequately to consider certain information indicating that the existing differences in sentences for powder cocaine and crack cocaine offenses are unwarranted. Unfortunately for defendants such as Anderson and Hogan, under the structure established by the sentencing statutes and guidelines, the answer is no. District courts lack authority to depart in these circumstances.
40
As Judge Williams explains, Anderson and Hogan may yet find relief. Congress has instructed the Sentencing Commission to "propose revision of the drug quantity ratio of crack cocaine to powder cocaine under the relevant statutes and guidelines in a manner consistent with the ratios set for other drugs and consistent with the objectives set forth in [28 U.S.C. § 3553(a) ]." Pub.L. No. 104-38, 109 Stat. 334, § 2(a)(2) (1995). If the sentencing range for crack cocaine offenses were in fact lowered, district courts would have authority under 18 U.S.C. § 3582(c)(2) to reduce the sentences of defendants already serving prison terms "if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Absent such a development, however, we must affirm the appellants' sentences.
WALD, Circuit Judge, dissenting:
41
Appellants Oscar Anderson and Samuel Hogan asked the district court to grant a downward departure under § 5K2.0 of the Sentencing Guidelines1 from their sentences of 121 and 78 months, respectively, for possession with intent to distribute crack cocaine. In support of these requests, both appellants argued that the findings in the Sentencing Commission's Special Report to Congress on Cocaine and Federal Sentencing Policy ("Special Report," reprinted in Anderson Joint Appendix at A-42) regarding the unfairness of the 100:1 crack/cocaine sentencing differential constituted a mitigating circumstance warranting departure. The majority correctly points out that the Commission's policy statement restricting § 5K2.0 departures to "atypical cases" would seem to rule out a departure request like this one, which rests on grounds that are common to an entire class of offenders. But I do not believe that the Commission's policy statement on atypicality should or can prohibit departure in this case. Although generally considered an authoritative interpretation of the Sentencing Guidelines, a policy statement does not bind federal courts if it violates the Constitution, a federal statute, or the underlying guidelines. Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 1919, 123 L.Ed.2d 598 (1993). Here, the Commission itself has concluded that the crack/cocaine guidelines do not adequately reflect the relative culpability of crack offenders. A defendant sentenced under the current crack guidelines is therefore likely to receive a sentence which both the Commission and Congress admit is substantially greater than necessary to "reflect the seriousness of the offense" and "provide just punishment"--a result which violates § 3553(a) of the Sentencing Reform Act. 18 U.S.C. § 3553(a)(2) (1994). Since wooden adherence to the atypicality requirement in the face of these findings would prevent the district court from granting a departure even in the face of a violation of a federal statute, I do not see how it can be binding here and I conclude a departure is authorized.
42
In ruling that the policy statement on atypicality prohibited the district court from granting appellants a § 5K2.0 departure,2 the majority defends the requirement as a reasonable gloss on § 3553(b) of the Sentencing Reform Act. Section 3553(b), my colleagues contend, permits departure only when a defendant (or the government, in the case of an upward departure) establishes that he should not be sentenced within the otherwise applicable guidelines range because the facts of his case are so unusual as to make the offense substantially and meaningfully different from the "heartland" of cases on which the relevant guidelines range was based. The atypicality requirement serves the Act's goal of uniform sentencing by forcing courts to abide by the Commission's guidelines, rather than using their departure authority to make an end-run around them. In all but the most extraordinary case, I take no issue with this view that the atypicality requirement acts as a permissible constraint on how the courts may exercise their departure authority and appropriately operates to deny a § 3553(b) departure where the defendant proffers only "typical circumstances" in support of his request. Like any policy statement or official commentary issued by the Commission, we defer to the atypicality requirement as an "authoritative guide to the meaning of the applicable guideline." Williams v. United States, 503 U.S. 193, 201, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341 (1992). In elaborating on this dictate, the Supreme Court has instructed us to review policy statements and official commentary which interpret or explain the guidelines with the same degree of deference accorded an agency's interpretation of its own legislative rules--a standard of review somewhat more deferential than the Chevron-style deference we accord the guidelines themselves as the Commission's interpretation of the Sentencing Reform Act. Stinson, 508 U.S. at 45, 113 S.Ct. at 1919 (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945)); see also United States v. Smaw, 22 F.3d 330, 333 (D.C.Cir.1994) ("We owe the Sentencing Commission's commentary on its own guidelines the same treatment as we afford 'an agency's interpretation of its own legislative rules.' " (quoting Stinson )). Since the Commission's policy statement on atypicality explains how sentencing courts are to apply the various policy statements governing departures, see U.S.S.G. Ch. 1, Pt. A, § (4)(b), it strikes me as more like an interpretation of the guidelines, rather than a direct interpretation of the Sentencing Reform Act, and thus, like the official commentary in Stinson, reviewable as an agency's interpretation of its own legislative rules. But regardless of whether the appropriate standard of review is that applied in Stinson or the less deferential standard employed in Chevron, my colleagues and I agree that the atypicality requirement must be respected and departures denied if the circumstances upon which a defendant relies are common to an entire class of offenders--except, however, in those rare instances where its application would violate the Constitution, a federal statute, or the underlying guidelines.
43
The majority's analysis of this case is flawed because it stops short of asking the critical question: whether these cases fit into that very narrow category of circumstances where a policy statement or official commentary is not binding upon a sentencing court because it violates constitutional or statutory dictates.3 In light of the findings in the Special Report, it seems to me that applying the atypicality requirement to deny departure authority would violate a federal statute--the Sentencing Reform Act itself. Section 3553(a) of the Sentencing Reform Act sets forth the factors a court must consider when sentencing under the guidelines, directing courts to impose a sentence which is "sufficient, but not greater than necessary" to achieve the goals of sentencing.4 To guide the courts in determining when a sentence is "sufficient," § 3553(a) lists four purposes of sentencing:
44
(2) the need for the sentence imposed--
45
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
46
(B) to afford adequate deterrence to criminal conduct;
47
(C) to protect the public from further crimes of the defendant; and
48
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
49
18 U.S.C. § 3553(a)(2). Although the Commission does not expressly provide a specific vehicle for weighing these purposes in the sentencing process it outlines, see, e.g., Kenneth R. Feinberg, The Federal Guidelines and the Underlying Purposes of Sentencing, 3 FED.SENT.R. 326 (1991), it is clear from the legislative history of this provision that Congress took the four purposes set out in the law seriously, and intended sentencing courts to do so as well.5 In usual cases, it is reasonably assumed that the Commission's guidelines adequately reflect these purposes. But that assumption falls apart in the exceptional situation where the Commission itself admits that its guidelines do not accomplish the four purposes of § 3553(a). To blindly adhere to the atypicality requirement even if doing so would plainly violate the mandates of § 3553(a) is to give no meaning at all to that provision--an interpretation which would be at odds with basic tenets of statutory construction. See, e.g., Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, --- U.S. ----, ----, 115 S.Ct. 2407, 2413, 132 L.Ed.2d 597 (1995) (expressing "reluctance to treat statutory terms as surplusage").
50
The nub of the problem here, of course, is that the Special Report is a startlingly forthright admission by the Sentencing Commission that its crack guidelines violate § 3553(a)'s instructions that a court impose a sentence "sufficient, but not greater than necessary" to "reflect the seriousness of the offense" and "provide just punishment." In the Special Report, the Commission stated, inter alia, that there was "sparse empirical evidence" supporting the proposition that crack was 100 times more dangerous to society than cocaine. Special Report at 195. The Commission further stated that contrary to Congress' intent to punish offenders in proportion to the quantity of drug sold, the 100:1 ratio resulted in higher penalties for street dealers, who are more likely to possess the drug in its crack form, than for suppliers, who are more likely to have larger amounts of the drug, but in its cocaine form: "Issues of 'fairness' or 'just punishment'--not to mention frustration of some congressional objectives--result when relatively low-level crack retailers receive higher sentences than the wholesale-level cocaine dealer from whom the crack sellers originally purchased the powder to make the crack." Id. at 193. In summary, the Commission concluded that
51
[E]ven while agreeing that crack may be more harmful than powder cocaine,.... the Commission firmly concludes that it cannot recommend a ratio differential as great as the current 100-to-1 quantity ratio. Several factors lead the Commission to [this] conclusion.... First, when Congress established the quantity ratio in 1986, there were no sentencing guidelines; rather, the guidelines took effect in 1987 and were not fully implemented until 1989. Accordingly, Congress had only the possibility of an enhanced ratio to look to in capturing, in a sentencing structure, the additional harms that legislators felt inhered in crack cocaine. Therefore, to the extent that the guidelines now provide a punishment for some of those same factors subsumed in the ratio, those factors generate an enhancement both through an increased ratio differential and through guideline adjustments.... Accordingly, if Congress believed that certain factors [such as carrying a gun or prior criminal activity] warranted a 100-to-1 quantity ratio and if the subsequently adopted guidelines provided a punishment for some of those factors, then, as a logical matter, the ratio should be lowered by an amount commensurate with the extent to which these factors are addressed by the guidelines.... Another central basis for the Commission's rejection of this ratio is the extreme anomalies in sentencing produced by such a high differential in penalties between two easily convertible forms of the same drug.... Similarly, although evidence suggests that the trafficking and use of crack cocaine have engendered more violence associated with marketing the drug than has powder cocaine, the evidence does not indicate that the increased level of violence and crime justifies a ratio as large as 100-to-1.
52
Id. at 196-97. Additionally, in the Commentary accompanying a proposed amendment which the Commission submitted to Congress that would have eliminated the sentencing disparity, the Commission stated that
53
[S]ufficient policy bases for the current penalty differential do not exist. Instead of differential treatment of crack and powder cocaine defendants based solely on the form of the drug involved in the offense, the Commission concluded that fairer sentencing would result from guideline enhancements that are targeted to the particular harms that are associated with some, but not all, crack cocaine offenses. Harm-specific guideline enhancements will better punish the most culpable offenders and protect the public from the most dangerous offenders, while avoiding blanket increases for all offenders involved with the crack form of cocaine.
54
60 Fed.Reg. 25,074, 25,076 (1995).
55
These acknowledgments by the Commission itself--that crack sentences raise "[i]ssues of 'fairness' or 'just punishment' " because they punish less culpable crack dealers far more severely than more culpable cocaine dealers and suppliers, and that no policy basis for the present 100:1 sentencing differential exists--make it impossible to square the crack guidelines with the sentencing purposes of § 3553(a).6 For this reason, I believe a district court is authorized to disregard the atypicality requirement and, though it should proceed cautiously in this largely unchartered terrain, to grant a departure if it determines that application of the crack guidelines to the case before it will, in fact, plainly violate § 3553(a).
56
Several courts have already followed a similar course in parallel situations, setting aside commentary or policy statements as inconsistent with the Constitution, federal statutes, or the guideline provisions to which they refer. See, e.g., United States v. Stevens, 66 F.3d 431, 434-36 (2d Cir.1995) (declining to follow commentary to U.S.S.G. § 2J1.7, which requires sentence enhancement for persons who commit an offense while on release from prison, on the grounds that the commentary is inconsistent with the underlying guideline and statutory provision); United States v. Powell, 6 F.3d 611, 613-14 (9th Cir.1993) (courts must ignore commentary to U.S.S.G. § 3A1.2 in situations where the underlying crime is felon in possession of a firearm, because in such circumstances the commentary and guideline are inconsistent); United States v. Lamb, 6 F.3d 415, 420 (7th Cir.1993) (court not bound by commentary to U.S.S.G. § 3B1.3, "abuse of public trust" guideline, because it conflicts with guideline itself). One of our Third Circuit colleagues has gone even farther, suggesting that the statutory directive to impose a sentence "sufficient, but not greater than necessary" to meet the sentencing purposes set forth in § 3553(a) may even override the trial court's otherwise unfettered discretion in deciding whether to grant a departure,7 and concluding that the district court may be required to grant a departure under § 3553(b) if a sentence is "plainly unreasonable" in light of § 3553(a)'s dictates. United States v. Denardi, 892 F.2d 269, 272 (3d Cir.1989) (Becker, J., dissenting). Cf. United States v. Davern, 970 F.2d 1490 (6th Cir.1992) (en banc) (reversing panel's decision that § 3553(a) requires courts to make an explicit determination in every case as to whether application of the guidelines is appropriate in light of the sentencing purposes set forth in the Sentencing Reform Act, before proceeding to calculate guidelines range and departures), cert. denied, 507 U.S. 923, 113 S.Ct. 1289, 122 L.Ed.2d 681 (1993).
57
Naturally, I do not suggest that a court should be permitted to depart whenever it decides that a sentence is greater than necessary to satisfy the purposes set forth in § 3553(a). Such a result would gravely undermine one of the central goals of the guidelines--restricting the discretion accorded sentencing judges, in the interests of eliminating unwarranted disparity in sentences. But this case is sui generis in the history of the guidelines. Here, the Commission itself has acknowledged that its crack guidelines bear no meaningful relationship to the culpability of defendants sentenced pursuant to them.8 To my knowledge, the Commission has never before made such an extraordinary mea culpa acknowledging the enormous unfairness of one of its guidelines. For this reason, authorizing departures based on the Special Report could not conceivably start courts down the slippery slope of granting departures every time a defendant claims the guideline for his type of offense is unfair. Nonetheless, I realize the consequences of my position. Permitting departures by sentencing judges based on the Commission's Special Report has the potential for eroding the uniformity of sentences meted out to crack offenders. Although such a ruling would not require departures in the event a sentencing court found a plain violation of § 3553(a), a substantial number of district court judges might well find a departure appropriate, and they might not agree on how much to depart. The ensuing disruption in sentencing uniformity could be held in check, however, by limitations set on the extent of such departures by the appellate courts on review or on an interim basis by the Commission itself. Additionally, I would not anticipate that authorizing departures based on the Special Report would interfere in any way with the ongoing efforts by Congress and the Commission to develop a permanent solution to this disparity; regardless of what significance the courts assigned to the Special Report in the short term, any resolution of the issue which did not violate the Constitution, federal law, or the guidelines would presumably bind federal courts from that point forward.
58
Imposing a criminal sanction on defendants is a grave matter--perhaps the most serious act in our judicial system, which appropriately surrounds it with a wide array of procedural protections. Yet, ironically, if this were a run-of-the-mill administrative law case, I predict that we would not hesitate for a moment to vacate an agency's legislative rule, if the agency itself admitted that the rule was arbitrary, capricious, unfair, and violative of a federal statute, and then documented that admission with credible evidence. Defendants like appellants Anderson and Hogan, faced with inordinately lengthy terms in prison, should be treated similarly. Although we must give heed to Congress' goal of eliminating sentencing disparities in interpreting the Sentencing Reform Act, it seems to me the ultimate triumph of form over substance to base prison sentences on guidelines which have now been repudiated as irrational by the authors of those guidelines themselves. I would therefore find there is authority on the part of a district court to depart from the current guidelines governing crack cocaine offenses.
*
Circuit Judge Wald would grant the petition for rehearing
1
The Commission did make an effort to explain why its former conclusion about crack's greater addictiveness--a factor not captured in the Guidelines apart from the ratio--did not justify a sentencing disparity: because, although powder cocaine cannot be smoked and is usually taken by the less addictive method of snorting, "powder cocaine may be injected and injection is even more likely to lead to addiction than is smoking." 60 Fed.Reg. at 25077. But the Commission dismissed another factor not captured elsewhere in the Guidelines, crack's comparative cheapness, simply by saying: "Nor does the fact that crack cocaine is typically sold in smaller amounts, which may make it more readily available among lower-income groups, justify increased punishment compared to a form of the drug that is more commonly sold in amounts available only to more affluent persons." Id
2
As the Dissent observes, the Court in Stinson v. United States, 508 U.S. 36, 44-45, 113 S.Ct. 1913, 1918-19, 123 L.Ed.2d 598 (1993), said that commentary should be treated as an agency's interpretation of its own legislative rule, see Dissent at 2-3, which is more deferential than Chevron review, see Stinson, 508 U.S. at 44, 113 S.Ct. at 1918. But Stinson involved commentary on a guideline, as the Court stressed, id. at 42-43, 113 S.Ct. at 1917-18, whereas the key policy statement embodying the atypicality requirement, U.S.S.G. Ch. 1, Pt. A, § 4(b), is an interpretation of a statute, 18 U.S.C. § 3553(b), so it is not clear why greater-than-Chevron deference would be suitable under the principles of Stinson. In any event, the point is clearly not critical here, as the Dissent, asserting a greater level of deference than we do, finds the Commission's view not worthy of deference as applied to this set of facts
3
Section 3553(b) is not entirely clear as to how a court is to determine from the specified documents "whether a circumstance was adequately taken into account." Although § 3553(b) instructs courts to consider only guidelines, policy statements, and official commentary to determine whether the Commission adequately took into account a factor, it does not specify how or against what courts are to measure the adequacy of the Commission's consideration of a factor
1
Section 5K2.0 authorizes departures if "the court finds that an aggravating or mitigating circumstance exists that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines and that should result in a sentence different from that described." U.S.Sentencing Guidelines ("U.S.S.G.") § 5K2.0 (quoting 18 U.S.C. § 3553(b))
2
Judge Williams offers several other reasons for affirming the district court's determinations in both appellants' cases that it lacked authority to grant a § 5K2.0 departure. See Majority opinion ("Maj. op.") at 438-42. Because Judge Tatel's concurrence identifies the atypicality requirement as the fatal flaw in appellants' departure requests, see Tatel, J., concurring in part and concurring in the judgment, at 442, I take this point to be the grounds upon which a majority of this panel agrees the district court should be affirmed
3
I do not disagree with the majority's conclusion that appellants' requests for departure fail the atypicality test. As compared with circumstances present in other crack offenses, the circumstances for which appellants seek departure are typical; the conclusions of the Special Report will apply as readily to the majority of crack cases as to the two cases before us. Appellants' arguments to the contrary are not availing. They claim that while the findings of the Special Report may be a circumstance common to all crack cases, they are not common to all federal drug offenses, which obviously include drugs other than crack. See Anderson Reply Br. at 6. This characterization inevitably raises the question, "typical, as compared to what?" The answer implicit in the majority's opinion seems the right one: typical, as compared to other similar offenses. Since each type of controlled substance listed in the guidelines presents fairly unique risks of harm to the user and the surrounding community, the relevant group of similar offenses for determining the typicality of a circumstance is possession or sale of the same controlled substance which the defendant possessed or sold, not possession or sale of all controlled substances. Appellants' stated grounds for departure are typical, then, because they are common to all crack offenses, even if not to all federal drug offenses
4
As my colleague Judge Tatel points out, § 3553(a)'s mandate to sentencing courts cannot be read in isolation from § 3553(a)(4), which instructs courts to consider the applicable guidelines range as one of the factors in determining sentence, as well as § 3553(b), which states that a sentencing court "shall impose a sentence ... within the [guidelines] range," unless it finds an aggravating or mitigating circumstance warranting departure. See Tatel, J., concurring, at 443-44. Judge Tatel would interpret § 3553(b) as governing the question of whether a court must sentence within the applicable guidelines range, and § 3553(a) as relevant only to the question of where within that range the sentence should be. Id. I see the intended interplay between these two provisions differently. Although a sentencing court should consider the factors set forth in § 3553(a) in determining where within the guidelines range a sentence should fall, those factors are also relevant to whether a departure under § 3553(b) is warranted in the first place. See United States v. Clark, 8 F.3d 839, 842 (D.C.Cir.1993) ("To qualify as 'mitigating' a circumstance must be linked to one of the stated purposes of sentencing, i.e., just punishment, adequate deterrence, public protection, or rehabilitation." (citing § 3553(a)(2) and United States v. Mason, 966 F.2d 1488, 1494-97 (D.C.Cir.), cert. denied, 506 U.S. 1040, 113 S.Ct. 829, 121 L.Ed.2d 699 (1992))). And just as with any other statutory provision, § 3553(a) is also relevant in deciding if application of a particular guideline, policy statement, or official commentary of the Commission--here, the policy statement on "atypicality"--is inappropriate because it would violate the Constitution or a federal statute
5
In its section-by-section analysis of amendments to the Sentencing Reform Act, the House set forth its understanding of § 3553(a):
Section 3553(a) as enacted by the Sentencing Reform Act of 1984 requires that the court (1) consider several factors, including the purposes of sentencing, and (2) "impose a sentence sufficient, but not greater than necessary, to comply with" the purposes of sentencing. Thus, if the court finds that the sentence called for is greater than necessary to comply with the purposes of sentencing, section 3553(a) would seem to require the court to impose a more lenient sentence.
Such an interpretation, it might be argued, is inconsistent with the Sentencing Reform Act's intention to limit judicial discretion in sentencing. That argument, however, is not convincing. The Sentencing Reform Act of 1984 limited, but did not eliminate, judicial sentencing discretion. Section 3553(a) does not give the court unlimited discretion in sentencing, but rather authorizes the court to depart from the guidelines only if the court finds that the sentence called for by the guidelines is greater than necessary to serve the purposes of sentencing.
133
CONG.REC. 31947 (Nov. 16, 1987). In fact, the House analysis of § 3553(a) goes even farther, suggesting that it may provide independent grounds for departure. Id. For additional remarks contemporaneous with passage of § 3553(a), see S.REP. NO. 225, 98th Cong., 1st Sess. 52 ("The bill requires the judge, before imposing sentence, to consider the history and characteristics of the offender, the nature and circumstances of the offense, and the purposes of sentencing. He is then to determine which sentencing guidelines and policy statements [and mitigating circumstances] apply to the case."); 68 ("each of the four stated purposes should be considered in imposing sentence in a particular case"); 75 (same); 77 ("The intent of subsection (a)(2) is ... to require that the judge consider what impact, if any, each particular purpose should have on the sentence in each case") (1983), reprinted in 1983 U.S.C.C.A.N. 3182
6
Judge Williams maintains that if this conclusion is correct, then Congress sent "rather contradictory signals" by enacting both mandatory minimums with a ratio of 100:1, and a standard for evaluating sentences (§ 3553(a)) which that very ratio arguably violates--implying that such a construction of § 3553(a) cannot possibly be correct. That argument ignores the chronology of these events. Congress enacted both § 3553(a) and the mandatory minimums before the research data which informed the Commission's findings in its Special Report became available. Although that research might indicate that the mandatory minimums, as passed by Congress, violate another statutory directive--the sentencing instructions contained in § 3553(a)--the two provisions were not in conflict at the time of enactment. The fact that Congress passed mandatory minimums, then, has no bearing on whether it intended § 3553(a) to operate as a substantive sentencing standard
7
A district court's exercise of its discretion to deny departure is unreviewable unless the record indicates that the judge mistakenly thought she lacked authority to grant a departure. United States v. Foster, 988 F.2d 206, 208 (D.C.Cir.) (citations omitted), cert. denied, 508 U.S. 945, 113 S.Ct. 2431, 124 L.Ed.2d 651 (1993)
8
Judge Williams claims that a report authored and submitted to Congress by the Commission stands on exactly the same footing as "a report by a learned society." Maj. op. at 440. My colleague's position on this issue, quite frankly, makes no sense to me. Although it is true that a court may consider only the guidelines themselves, policy statements, and commentary in determining to what extent the Commission has "adequately considered" a circumstance, see § 3553(b), this provision certainly was not meant to bar judicial consideration of other statements by the Commission for purposes of identifying whether there were significant circumstances the Commission should have but did not consider. Cf. Tatel, J., concurring, at 443-44 ("such reports may point out a factor that courts should examine as a possible mitigating or aggravating circumstance"). That is, the courts may look to Commission statements other than those listed in § 3553(b) to ascertain what circumstances are relevant to formulation of a guideline, but then must confine its inquiry to the § 3553(b) sources when determining the adequacy with which the Commission considered those circumstances. One would think such consideration would be mandatory, not prohibited; surely the Commission as a data collection body must have significant expertise concerning the impact of its own guidelines, more so than an outside organization. In any event, this rule (whatever its proper construction) places no constraints on the use of other statements by the Commission for the purpose of determining whether a sentence would plainly violate § 3553(a), and thus is inapposite here | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/714891/ | 79 F.3d 14
UNITED STATES of America, Plaintiff-Appellee,v.Steven HOLT, Defendant-Appellant.
No. 95-5057.
United States Court of Appeals,Fourth Circuit.
Argued Dec. 6, 1995.Decided March 15, 1996.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, District Judge. (CR-94-320-A)
ARGUED: David Alan Hirsch, Mendelsohn & Ishee, P.C., Fairfax, Virginia, for Appellant. Kathleen Marie Kahoe, Assistant United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Alexandria, Virginia, for Appellee.
Before RUSSELL, WILKINS, and HAMILTON, Circuit Judges.
Affirmed by published opinion. Judge RUSSELL wrote the opinion, in which Judge WILKINS and Judge HAMILTON joined.
OPINION
PER CURIAM:
1
Steven Holt appeals the district court's judgment of conviction entered upon the jury's verdict finding Holt guilty of being an inmate in possession of a weapon in violation of 18 U.S.C. § 13 (assimilating Va.Code Ann. § 53.1-203(4)).* Holt assigns as error the district court's refusal to instruct the jury that his possession of a weapon could be justified by self-defense, and the court's failure to accord him a downward adjustment for acceptance of responsibility. Rejecting both contentions, we affirm Holt's conviction and sentence.
2
* On June 21, 1994, while Lorton Corrections Officer Grenada was patrolling a walkway between dormitories, he overheard a passing inmate state that "they" were trying to injure him. Officer Grenada then saw inmates Willie James and Steven Holt coming up the walkway. James was holding his waistband as though he was trying to conceal something. Officer Grenada asked James to submit to a search, and James and Holt fled down the walkway where James dropped a knife. Officer Grenada picked up this knife, and when he caught up with them, Holt was holding a closed pocket knife in his right hand. As several officers approached, Holt opened up the knife and held the blade down by his leg. The officers asked Holt several times to drop the knife, at which point Holt complied by closing the blade and handing the knife to one of the officers.
3
Holt conceded at trial that he possessed the knife. Holt testified, however, that he came into possession of the knife only after three unknown inmates attacked him in one of the dormitories. According to Holt, his attackers dropped the knife and fled the dormitory because corrections officers were approaching. Afraid his attackers would return, Holt contended he picked up the knife and ran past several corrections officers until he was intercepted by Officer Grenada and others. Holt testified he did not immediately stop and report the attack to the first officer he encountered because he was searching for a particular officer whom he trusted.
4
Holt sought an instruction from the court informing the jury that his conduct in possessing the knife could have been justified if it was done in self defense. The district court denied this request, reasoning that no such defense was available to the strict liability offense of inmate possession of a weapon and, alternatively, that even if such a defense were available, there was no evidence to justify the instruction. Holt was convicted, and he noted a timely appeal.
II
5
The question of whether an inmate can argue common law affirmative defenses for violating the strict liability offense of inmate weapons possession is one of first impression in this court. Because of the potential for uncontrolled violence within a prison, courts considering the issue consistently refuse to allow the defense to inmates arming themselves for protection against a future attack. These courts reason that:
6
[a] jail in which the prisoners could assert a court approved "right" to possess deadly weapons for protection would be impossible to administer humanely and safely. The very existence of the weapons inevitably invites their use on other inmates and correctional officers. That is why our statutes prohibiting such possession by prisoners have always been construed to be absolute, and to permit no defense based on a claim of protection against future attack.
7
People v. Velasquez, 158 Cal. App. 3d 418, 422, 204 Cal. Rptr. 640 (Cal.Ct.App.1984); accord State v. Vandiver, 757 S.W.2d 308, 312 (Mo.Ct.App.1988); Carter v. State, 312 So. 2d 494 (Fla.Dist.Ct.App.1975). Nonetheless, some courts recognize that affirmative defenses may be asserted by inmates charged with weapons possession, but only under very narrow circumstances. These courts generally allow affirmative defenses to be raised where an unarmed inmate is attacked by an armed inmate and the unarmed inmate temporarily uses the other inmate's weapon in self-defense. See State v. Vandiver, 757 S.W.2d at 311-12; People v. Perry, 145 Mich.App. 778, 377 N.W.2d 911, 914-15 (1985); Mungin v. State, 458 So. 2d 293, 297 (Fla.Dist.Ct.App.1984). An affirmative defense is available for the moment when the inmate is attacked and he fears imminent threat of death or serious bodily injury.
8
In an analogous context, we have considered the applicability of common law affirmative defenses to defendants charged with the strict liability offense of being a felon in possession of a handgun. In United States v. Crittendon, 883 F.2d 326, 330 (4th Cir.1989), we indicated that a defendant might be able to assert justification as a defense to such a charge. The defendant in Crittendon was a felon who possessed a revolver for protection because he had been shot one evening as he returned home from work, and he feared his attackers might return. He was arrested and charged with felon in possession of a handgun. Without specifically deciding whether the defense of justification was available for that offense, this court held that the defendant could not receive such an instruction because the evidence did not reveal an imminent fear of death or bodily injury at the time of the possession. Id.
9
Similarly, although a case may exist in which a defendant could raise self defense as a justification for possessing a weapon in prison, we need not decide the issue here. Like the defendant in Crittendon, Holt has failed to produce any evidence that he was under imminent threat of death or bodily injury when he possessed the knife. True, if Holt's account of events is believed, a reasonable juror could conclude that Holt was indeed under threat of death or bodily injury at the moment he actually procured the knife. But, even under Holt's account, the procurement of the knife was, both spatially and temporally, far removed from the point at which he was charged with possession. In other words, by the time corrections officers confronted Holt as he clutched the knife at his side, he was no longer under an imminent threat of death or bodily injury so as to justify his possession of the knife. Holt testified that he picked up the knife as his attackers fled the scene, and that he continued possessing the knife only because he was afraid they would return. Like the defendant's proffered justification in Crittendon, however, Holt's generalized fear of a repeat attack cannot qualify as an imminent threat of death or injury.
10
If that testimony was not enough to defeat his assignment of error, Holt also conceded that he had earlier opportunities to report the incident and turn the knife over to correctional officers. Although Holt's stated reason for not doing so was because he was looking for a particular officer whom he trusted, we think it reasonable to require of defendants seeking a self-defense instruction that they first proffer evidence demonstrating a lack of reasonable legal alternatives to committing the crime. See Crittendon, 883 F.2d at 330. Holt clearly had reasonable legal alternatives to possessing the knife, and he gave no reason why these alternatives were ineffectual. See United States v. Harper, 802 F.2d 115, 118 (5th Cir.1986) (holding that to establish a lack of legal alternatives, the defendant must show that he actually tried the alternatives or had no time to try them, or that a history of futile attempts revealed the illusory benefits of the alternatives).
11
Accordingly, without deciding whether a defendant can ever argue a common law affirmative defense to an inmate weapons possession charge, we find that Holt was not entitled to such an instruction under the facts of this case.
III
12
Holt also contends the district court erred in failing to accord him a downward adjustment in his offense level for acceptance of responsibility under United States Sentencing Commission, Guidelines Manual, § 3E1.1 (Nov.1994). We review the factual findings supporting the district court's refusal to grant a downward adjustment for clear error. United States v. Reavis, 48 F.3d 763, 768 n. 1 (4th Cir.), cert. denied, --- U.S. ----, 115 S. Ct. 2597, 132 L. Ed. 2d 844 (1995).
13
The district court understood that Holt could obtain a downward adjustment for acceptance of responsibility even after putting the government through its burden of proving its case at trial, as long as Holt went to trial to preserve issues unrelated to factual guilt. See U.S.S.G. § 3E1.1, comment. (n. 2). The court did not believe, however, that Holt had gone to trial to preserve issues unrelated to factual guilt. Instead, the court believed Holt's affirmative defense was meritless and that his attempt to minimize his culpability was not an acceptance of responsibility. We find no clear error in this regard. See United States v. Beal, 960 F.2d 629, 636 (7th Cir.) (holding that district court did not clearly err in considering inmate's justification for carrying contraband as conduct inconsistent with an affirmative acceptance of responsibility), cert. denied, 506 U.S. 880, 113 S. Ct. 230, 121 L. Ed. 2d 166 (1992).
14
For the foregoing reasons, Holt's conviction and sentence are
15
AFFIRMED.
*
The Virginia statute makes it a felony for a prisoner to "[m]ake, procure, secrete or have in his possession a knife, instrument, tool or other thing not authorized by the superintendent or sheriff which is capable of causing death or bodily injury." Va.Code Ann. § 53.1-203(4) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/693482/ | 52 F.3d 283
UNITED STATES of America, Plaintiff-Appellee,v.Johnny Eugene GLOVER, Defendant-Appellant.
No. 94-5129.
United States Court of Appeals,Tenth Circuit.
April 3, 1995.
Thomas Scott Woodard (Stephen C. Lewis, U.S. Atty., with him on the brief), Asst. U.S. Atty., Tulsa, OK, for plaintiff-appellee.
Stanley D. Monroe, Tulsa, OK, for defendant-appellant.
Before BRORBY and EBEL, Circuit Judges, and BRATTON,* District Judge.
BRORBY, Circuit Judge.
1
Mr. Glover pled guilty to violating 18 U.S.C. Sec. 1623, False Declarations Before the Court, and now appeals his sentence. Specifically, Mr. Glover pled guilty to making two irreconcilable sworn statements on two different occasions. See 18 U.S.C. Sec. 1623(c). One statement was testimony given in court during his brother's criminal trial; the other was a sworn affidavit given to help his brother get a new trial. Mr. Glover appeals his sentence claiming (1) the district court erred by applying a cross-reference provision in the sentencing guidelines which directed the court to sentence Mr. Glover as an accessory after the fact, (2) the district court erred in using the entire quantity of methamphetamine from the underlying offense in calculating Mr. Glover's base offense level, and (3) the district court erred in calculating Mr. Glover's criminal history. We find no error in the sentencing; therefore, we affirm Mr. Glover's sentence.
BACKGROUND
2
Mr. Glover was serving time in prison when he was indicted on a charge of Continuing Criminal Enterprise. Mr. Glover agreed to enter a plea of guilty to the charge and to testify against his brother, Roy Glover, in exchange for a reduced sentence. Mr. Glover testified, during his brother's trial, that his brother operated a methamphetamine laboratory and delivered methamphetamine to another coconspirator. The brother was subsequently convicted of conspiracy to manufacture, possess, and distribute methamphetamine.
3
Later, when the brother moved for a new trial, Mr. Glover executed an affidavit under oath stating his brother was never physically present at the site of the methamphetamine laboratory, his brother never participated in the operation of the laboratory, and his brother never received any of the proceeds from the sale of the methamphetamine. The affidavit stated Mr. Glover's trial testimony to the contrary was false. As a result of this affidavit and his trial testimony, Mr. Glover was indicted on five counts of making irreconcilably contradictory sworn declarations in violation of 18 U.S.C. Sec. 1623(c).
4
Mr. Glover pled guilty to violating Sec. 1623, and the prosecution dropped the remaining four counts. Using U.S.S.G. Sec. 2J1.31 and Sec. 2X3.1,2 the sentencing court calculated Mr. Glover's base offense level to be 30.3 The court granted a three point reduction for acceptance of responsibility pursuant to guideline Sec. 3E1.1(b)(2) (Acceptance of Responsibility) but increased Mr. Glover's criminal history to a category of III pursuant to Sec. 4A1.1(d)4 and (e).5 These calculations resulted in a sentence of sixty months incarceration, three years supervised release, a fine of $2,000, and a special assessment of $50. Section Sec. 1623(a) restricts the maximum sentence for violating 18 U.S.C. Sec. 1623 to a fine of "not more than $10,000 or imprisonment not more than five years, or both." Mr. Glover thus received the maximum length of imprisonment allowed under the statute.
5
* We review a sentencing court's interpretation of law de novo and its factual findings under a clearly erroneous standard. United States v. Lowder, 5 F.3d 467, 470 (10th Cir.1993). We must accept the plain meaning of the language of the guidelines as we would in interpreting a statute. United States v. Agbai, 930 F.2d 1447, 1449 (10th Cir.1991).
6
Mr. Glover claims the district court erred in calculating his sentence in accordance with the method prescribed in Sec. 2X3.1, "Accessory After the Fact," because he was not convicted of being an accessory after the fact. Section 2J1.3 provides:
7
Perjury or Subornation of Perjury; Bribery of Witness
8
(a) Base Offense Level: 12
9
...
10
(c) Cross Reference
11
(1) If the offense involved perjury, subornation of perjury, or witness bribery in respect to a criminal offense, apply Sec. 2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above.
Section 2X3.1 states:
Accessory After the Fact
12
(a) Base Offense Level: 6 levels lower than the offense level for the underlying offense, but in no event less than 4, or more than 30. Provided, that where the conduct is limited to harboring a fugitive, the offense level shall not be more than level 20.
13
....
Application Notes:
14
1. "Underlying offense" means the offense as to which the defendant is convicted of being an accessory. Apply the base offense level plus any applicable specific offense characteristics that were known, or reasonably should have been known, by the defendant; see Application Note 10 of the Commentary to Sec. 1B1.3 (Relevant Conduct).
15
As the plain language of Sec. 2J1.3 indicates, a defendant charged with perjury is to be sentenced according to the method set forth in Sec. 2X3.1 (Accessory After the Fact). Guideline Sec. 2J1.3 requires the base level offense to be calculated under Sec. 2X3.1 if (1) perjury was part of the violation, (2) the underlying offense was a criminal offense, and (3) the resulting offense level would be greater than the offense level calculated by Sec. 2J1.3 alone. U.S.S.G. Sec. 2J1.3(c). The sentencing court found these conditions were met. Therefore, the court correctly sentenced Mr. Glover using Sec. 2X3.1 even though Mr. Glover may not have been an accessory after the fact. This reading of the Guidelines is consistent with the application of the Sec. 2J1.3 cross-reference by some of our sister circuits. See United States v. Gay, 44 F.3d 93 (2d Cir.1994); United States v. Bertoli, 40 F.3d 1384, 1402 (3d Cir.1994) (in dicta, the court notes an identical cross-reference from Sec. 2J1.2(c) to Sec. 2X3.1 applies even though the declarant was obstructing investigations into his own unlawful activities).
16
Mr. Glover claims Sec. 2X3.1 can only be used if the declarant is an accessory after the fact because the application notes of Sec. 2X3.1 define "underlying offense" as the offense "as to which the defendant is convicted of being an accessory." U.S.S.G. Sec. 2X3.1 comment. (n. 1). Since he was not convicted of being an accessory, Mr. Glover maintains there is no underlying offense. However, the application notes of Sec. 2X3.1 relate to the substantive crime of accessory after the fact. The application notes are not relevant in this case because Sec. 2X3.1 is being used simply as a formula for the perjury offense.
17
Regardless of the plain language of the statute, Mr. Glover persists in his argument by relying on cases in which the cross-reference from Sec. 2J1.3 to Sec. 2X3.1 did not apply. The Fourth and Eleventh Circuits have carved out an instance where the cross-reference is inappropriate. See United States v. Pierson, 946 F.2d 1044 (4th Cir.1991); United States v. Huppert, 917 F.2d 507 (11th Cir.1990).6 The Pierson and Huppert opinions hold that the cross-reference to Sec. 2X3.1 cannot be invoked when the perjury was committed for the purpose of helping the declarant as opposed to assisting a third party. Pierson, 946 F.2d at 1047-49; Huppert, 917 F.2d at 510. These courts implicitly required the declarant to actually be an accessory after the fact in order to apply the calculation of Sec. 2X3.1. Although the Sixth Circuit had used the cross-reference when a declarant benefitted himself by perjury, see United States v. Gomez-Vigil, 929 F.2d 254 (6th Cir.1991), it too has stated the issue to be determined before applying the cross-reference to Sec. 2X3.1 is "whether the defendant was an accessory after the fact to the [underlying offense]," United States v. Colbert, 977 F.2d 203, 208 (6th Cir.1992).
18
We are unpersuaded by the cases of the Fourth, Sixth, and Eleventh Circuits. None of these cases analyzes the plain language of the Guideline provisions, which we find dispositive. Rather, each seems to be influenced by the heading of Sec. 2X3.1, "Accessory After the Fact." The sentencing guidelines must be interpreted as though they were a statute, see United States v. Smith, 900 F.2d 1442, 1446 (10th Cir.1990), and under the general rules of statutory interpretation, the title to a statutory provision is not part of the law itself, although it can be used to interpret an ambiguous statute. See Oklahoma v. United States Civil Serv. Comm'n, 153 F.2d 280, 283 (10th Cir.1946), aff'd, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794 (1947). Because we conclude Sec. 2J1.3 and Sec. 2X3.1 are unambiguous as applied to this case, reliance on the title is unnecessary and inappropriate. Moreover, because the sentencing guidelines do not address the significance of section titles as it does the significance of commentary, see U.S.S.G. Sec. 1B1.7, we see no reason to stray from the general rules of statutory interpretation.
19
The Huppert and Pierson courts were also influenced by the background commentary to Sec. 2J1.2, "Obstruction of Justice":
20
The specific offense characteristics reflect the more serious forms of obstruction. Because the conduct covered by the guideline is frequently part of an effort to assist another person to escape punishment for a crime he has committed, an alternative reference to the guideline for accessory after the fact is made.
21
U.S.S.G. Sec. 2J1.2, comment. (backg'd) (1990). However, this commentary was amended in 1991. U.S.S.G. App. C Sec. 401 at 289-90. The Sentencing Commission deleted the phrase "assist another person to escape punishment for a crime he has committed, an alternative reference to the guideline for accessory after the fact is made." In its place, the Commission inserted:
22
avoid punishment for an offense that the defendant has committed or to assist another person to escape punishment for an offense, a cross reference to Sec. 2X3.1 (Accessory After the Fact) is provided. Use of this cross reference will provide an enhanced offense level when the obstruction is in respect to a particularly serious offense, whether such offense was committed by the defendant or another person.
23
Id. (emphasis added). It is clear from the commentary in effect at the time of Mr. Glover's sentencing that the sentencing court did not err in applying the cross-reference.7
II
24
Mr. Glover argues that even if the court properly used the cross-reference to Sec. 2X3.1 (Accessory After the Fact), it erred in calculating his base offense level by using the quantity of methamphetamine associated with his brother's conviction. Mr. Glover asserts the sentence must be limited to the drug quantities about which he testified during his brother's trial.
25
Mr. Glover's testimony at his brother's trial related to six pounds of methamphetamine. Using six pounds of methamphetamine would result in a base offense level of 12 (equivalency of 2.6 kilograms of marijuana), minus 6 levels as prescribed in Sec. 2X3.1, thus ending with a base offense level of 6. However, his brother was convicted of crimes involving 17.69 kilograms of methamphetamine. This amount established a base offense level of 36. U.S.S.G. Sec. 2D1.1(c)(2). Therefore, the base level offense for Mr. Glover, pursuant to Sec. 2X3.1, was 30, rather than 6.
26
Mr. Glover cites no law in arguing the sentencing court erred in using the full amount of methamphetamine from the underlying offense. He simply argues that for a fair and consistent application of the cross-reference, the base offense level should stem from his testimony. He claims the dangers of the sentencing court's interpretation of the Guidelines would be revealed if the third party were acquitted of the underlying offense. If this happened, Mr. Glover asserts, Sec. 2X3.1 would have no application because there would be no underlying offense. However, neither Sec. 2J1.3 nor Sec. 2X3.1 require the third party be convicted of the underlying offense.
27
Mr. Glover's irreconcilable statements were not limited to six pounds of methamphetamine. His affidavit broadly claimed his brother did not participate in the operation of the methamphetamine laboratory and received no profits from the sale of the drugs. Because Mr. Glover's statements relate to his brother's entire underlying offense and are not purely limited to six pounds of methamphetamine, we need not decide whether the content of a perjurer's statement can limit the sentence imposed under Sec. 2X3.1. We find no support in the Guidelines to limit the sentencing calculations in Mr. Glover's case to the quantity of drugs attributed only to the amount in his trial testimony. Therefore, the sentencing court was correct in using the entire underlying offense to calculate Mr. Glover's base offense level.
III
28
Mr. Glover's final issue on appeal is whether the sentencing court properly calculated his criminal history category. The court increased his criminal history by three points because he committed the present offenses while serving a sentence for the charge of Continuing Criminal Enterprise (case No. 91-CR-050-001-C). See U.S.S.G. Sec. 4A1.1(d) and (e). Mr. Glover contends this was an error because his crime of making irreconcilable sworn statements began before he was sentenced on his guilty plea to Continuing Criminal Enterprise.
29
It is undisputed that Mr. Glover executed the affidavit for his brother while he was serving this sentence. It was the affidavit that completed Mr. Glover's crime of perjury. If he had not given the affidavit, then he would not have violated Sec. 1623(c) by making, under oath, "irreconcilably contradictory declarations material to the point in question in any proceeding before or ancillary to any court." 18 U.S.C. Sec. 1623(c). Thus, Mr. Glover committed the crime while serving his sentence for case No. 91-CR-050-001-C.
30
Mr. Glover also argues the increase was improper because the prior conviction used to increase his criminal history was vacated by reason of double jeopardy implications. However, it was not the conviction for case No. 91-CR-050-001-C that was vacated. It was an earlier conviction, case No. 89-CR-056-001-E, that was vacated because that offense was deemed to be included in the conviction for case No. 91-CR-050-001-C. The sentencing court did not give Mr. Glover any criminal history points for case No. 89-CR-056-001-E. Therefore, Mr. Glover's argument is without merit.
CONCLUSION
31
Section 2J1.3 directs the sentencing court to use Sec. 2X3.1 (Accessory After the Fact) to calculate the base offense level if perjury was committed "in respect to a criminal offense" and results in a higher offense level. The sentencing court found these conditions were met and, therefore, correctly applied the cross-reference to Sec. 2X3.1 (Accessory After the Fact). Also, we find no error in the court's calculations of the base offense level and the criminal history category. Accordingly, we AFFIRM Mr. Glover's sentence.
*
The Honorable Howard C. Bratton, Senior United States District Court Judge for the District of New Mexico, sitting by designation
1
"Perjury or Subornation of Perjury; Bribery of Witness.... If the offense involved perjury ..., apply Sec. 2X3.1 (Accessory After the Fact)." U.S.S.G. Sec. 2J1.3(c)(1)
2
"Accessory After the Fact (a) Base Offense Level: 6 levels lower than the offense level for the underlying offense, but in no event less than 4, or more than 30." U.S.S.G. Sec. 2X3.1
3
The court sentenced Mr. Glover in May of 1994
4
"Criminal History Category.... Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including ... imprisonment." U.S.S.G. Sec. 4A1.1(d)
5
"Criminal History Category ... Add 2 points if the defendant committed the instant offense ... while in imprisonment.... If 2 points are added for item (d), add only 1 point for this item." U.S.S.G. Sec. 4A1.1(e)
6
Huppert dealt with the cross-reference from Sec. 2J1.2(c), "Obstruction of Justice," to Sec. 2X3.1 (Accessory After the Fact). The commentary to the perjury section suggests that the perjury section should be interpreted like the obstruction of justice section. U.S.S.G. Sec. 2J1.3, Background Commentary. Therefore, the Huppert decision is relevant
7
In fact, these changes to the commentary have caused the Fourth Circuit to question its holding in Pierson. See United States v. Jamison, 996 F.2d 698, 701 n. 3 (4th Cir.1993) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/692996/ | 51 F.3d 663
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.Joseph D. FONES, Defendant-Appellant.
No. 94-1210.
United States Court of Appeals,Seventh Circuit.
Argued Dec. 14, 1994.Decided March 30, 1995.
Patrick J. Chesley, Elizabeth L. Collins, (argued), Asst. U.S. Attys., Springfield, IL, for plaintiff-appellee.
Bruce D. Locher, Springfield, IL, (argued), for defendant-appellant.
Before COFFEY, RIPPLE and KANNE, Circuit Judges.
KANNE, Circuit Judge.
1
Joseph D. Fones was convicted of conspiracy, wire fraud, possession of surreptitious interception devices and other related offenses. Fones appeals the district court's decision to increase his sentence under U.S.S.G. Sec. 3B1.1(b). For the following reasons, the sentence is vacated and the case is remanded for further sentencing proceedings.
I. FACTS
2
Co-defendant Harry L. Daly owned and operated Beach Craft, Inc., a factory located in Hannibal, Missouri. Beach Craft began as a legitimate manufacturer and seller of fiberglass satellite dishes. However, because of the increasing amount of "scrambled" programming, the appeal of these satellite dishes declined. As a result, in the spring of 1987, Daly, with the help of Fones, began using the facilities at Beach Craft to illegally modify satellite television descramblers. This was accomplished by changing the internal circuitry of legitimate descramblers and programming the descramblers so that, with the modified descrambler, an owner of a satellite dish would be able to intercept the contents of scrambled programming without paying any access fee. With the aid of a computer, Fones was able to modify chips in the descramblers to enable the descramblers to receive unauthorized programming. Daly, with the help of some of his employees, removed the original chips in the descramblers and replaced them with the chips modified by Fones.
3
In the summer of 1986, co-defendants Stephen L. Shriver and Joseph R. Denman formed a company called Midwest Satellite Communications, Inc. (hereinafter "Midwest") with Shriver as the president and Denman as the vice president. After the first six months, Shriver became the sole owner of Midwest. Initially, the company sold satellite television systems and legitimate satellite descramblers. Shriver was in charge of sales and Denman was in charge of installation and service. In order to boost sales, Shriver contacted Maurice Ballard about modifying the satellite television descramblers to illegally intercept scrambled programming. Ballard modified some descramblers for Shriver and, in the spring of 1987, Midwest began selling these modified descramblers to customers along with its satellite television systems.
4
Meanwhile, both Daly and Fones contacted retailers in order to sell their modified descramblers. Fones contacted Midwest in the spring of 1987. Since there had been some problems with the descramblers supplied by Ballard, Midwest decided to purchase most of its descramblers from Fones. Between the spring of 1987 and December of 1987, Midwest purchased between 125 and 200 descramblers from Fones. Since Midwest was Fones' account, the sales of descramblers to Midwest were organized by Fones.
5
In an indictment filed on September 26, 1991, Fones, Shriver, Denman, and Daly, were charged with manufacturing, assembling, possessing, selling and transporting modified satellite television descramblers. Although not named as defendants, Tom Woolridge, Ken Toepke, Chester Price and Billie Gates were listed as co-conspirators.1 Denman, Daly and Shriver pleaded guilty. Both Denman and Daly agreed in their plea agreements that their applicable offense levels should be increased three levels for their role in the offense as manager or supervisor. Shriver agreed in his plea agreement that his applicable offense level should be increased four levels for his role as leader or organizer. Fones pleaded not guilty and after a five day jury trial, he was convicted on all counts. The probation officer recommended that Fones receive a four-level enhancement as an organizer or leader of the offense under U.S.S.G. Sec. 3B1.1(a). The government agreed and Fones objected. The district court found that Fones was not an organizer or leader. However, the sentencing hearing was continued to consider whether Fones could qualify as a supervisor or manager under Sec. 3B1.1(b). The district court subsequently found that Fones was a manager or supervisor and enhanced his offense level by three levels pursuant to Sec. 3B1.1(b). On January 19, 1994, Fones was sentenced to a term of 21 months of imprisonment to be followed by a three year term of supervised release.2 Fones appeals the adjustment of his sentence under U.S.S.G. Sec. 3B1.1(b).
II. ANALYSIS
6
We review a district court's findings of fact at sentencing for clear error. United States v. Young, 34 F.3d 500, 504 (7th Cir.1994); United States v. Abdelkoui, 19 F.3d 1178, 1183 (7th Cir.1994). We review its interpretation of the sentencing guidelines de novo. Young, 34 F.3d at 504; United States v. Haynes, 969 F.2d 569, 571 (7th Cir.1992). Section 3B1.1 of the Sentencing Guidelines provides:
7
Based on the defendant's role in the offense, increase the offense level as follows:
8
(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.
9
(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.
10
(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.
11
U.S.S.G. Sec. 3B1.1.
12
Under U.S.S.G. Sec. 3B1.1(b), a defendant who acted as a manager or supervisor within a criminal activity involving five or more participants is subject to a three-level increase. Fones does not challenge the district court's finding that there were five or more participants to the criminal activity. Fones argues, however, that he was not a supervisor or manager. While the Guidelines do not define the terms "manager" or "supervisor," note 4 to Sec. 3B1.1 provides that in distinguishing a leadership and organizational role from one of management or supervision, the following factors should be considered:
13
Factors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
14
U.S.S.G. Sec. 3B1.1, comment. (n. 4). This court has relied upon these factors in determining whether a defendant qualifies as a supervisor or manager. Young, 34 F.3d at 507; United States v. Skinner, 986 F.2d 1091, 1096 (7th Cir.1993); United States v. Brown, 944 F.2d 1377, 1380 n. 1 (7th Cir.1991). See also United States v. Bell, 28 F.3d 615, 617 (7th Cir.1994); United States v. Ramos, 932 F.2d 611, 618 (7th Cir.1991).
15
The central purpose of Sec. 3B1.1 is to punish a defendant for his relative responsibility within a criminal organization. Young, 34 F.3d at 508; Brown, 944 F.2d at 1382. See also United States v. Vargas, 16 F.3d 155, 160 (7th Cir.1994); Skinner, 986 F.2d at 1097. Hence, no single factor is essential to determining whether a sentence should be adjusted under Sec. 3B1.1. See Skinner, 986 F.2d at 1097. In fact, this court has upheld a Sec. 3B1.1 increase where less than all factors are present. See, e.g., Young, 34 F.3d at 508 (although only three of the seven factors were present, defendant nonetheless found to be a manager or supervisor for the purposes of Sec. 3B1.1(b)). Of particular importance in determining relative responsibility, though, is that the defendant has control over other participants in the criminal activity. Vargas, 16 F.3d at 160; Skinner, 986 F.2d at 1097; Brown, 944 F.2d at 1381.
16
We have held, nonetheless, that control over others is not a prerequisite to an adjustment under Sec. 3B1.1. Young, 34 F.3d at 507; United States v. Young, 997 F.2d 1204, 1213 (7th Cir.1993); United States v. Rivero, 993 F.2d 620, 624 (7th Cir.1993) (3B1.1(c)); Skinner, 986 F.2d at 1097 (3B1.1(c)). Even where a defendant does not have control over others, his " 'extensive management responsibilities over property, assets, or activities of the criminal organization [can] justif[y] increasing his offense level pursuant to Sec. 3B1.1(b).' " United States v. Carson, 9 F.3d 576, 592 (7th Cir.1993) (quoting United States v. Chambers, 985 F.2d 1263, 1268 (4th Cir.1993)), cert. denied, --- U.S. ----, 115 S.Ct. 135, 130 L.Ed.2d 77 (1994). See also Vargas, 16 F.3d at 160 ("The fact, however, that the defendant did not exercise ... control [over others] does not necessarily disqualify the defendant for a Section 3B1.1 increase. Rather, in some cases it may be enough that the defendant 'orchestrated' or simply 'coordinated' the activities of others.") (citing Skinner, 986 F.2d at 1099; Rivero, 993 F.2d at 624).
17
In finding that Fones was not a leader or organizer of the conspiracy, the district court stated:
18
At no time during the conspiracy did Defendant exercise any type of control over any co-defendants. Defendant worked in Co-Defendant Daly's building which indicates that if either party were to have control over another it would be Daly over Defendant.
19
It is true that Defendant recruited Co-Defendants Shriver and Denman as customers. At the time Defendant contracted Shriver and Denman they were already engaged in selling illegally modified descramblers obtained from a different source. Shriver and Denman owned their own satellite company and merely order[ed] inventory, albeit illegal inventory, from Defendant. Defendant simply filled Shriver and Denman's orders, he did not control how many descramblers were ordered or what happened to the descramblers once they were delivered. Accordingly, the 4 level enhancement is not proper.
20
(R. 149 at 2-3.)
21
However, the district court found that Fones qualified as a manager or supervisor:
22
As discussed above, Defendant did not have any control or authority over any of the other members of the conspiracy. Defendant cannot, however, be classified as a mere rank and file member of the conspiracy. The PSR makes clear that Defendant was the member of the conspiracy who did the actual modifying of the legal descramblers into illegal descramblers. Furthermore, Defendant was the party that recruited Defendants Shriver and Denman into the conspiracy. Defendant also set the terms of the relationship between himself, Shriver, and Denman, i.e. the price of the descramblers, the method of payment (cash only), and how many descramblers would be available. From these facts, Defendant cannot be classified as a mere middleman. A three level enhancement under Sec. 3B1.1(b) is, therefore, appropriate.
23
Id.
24
In holding that Fones was a manager or supervisor, the district court relied upon three of the seven factors listed in note 4. Specifically, the district court stated that Fones recruited Shriver and Denman, that Fones' participation in organizing the criminal activity was significant, (Sentencing Tr. at 21) (where the district court noted that Fones "started this whole baby and this whole show on the road."), and that, by setting the terms of sale with Shriver and Denman and having sole responsibility for modifying the descramblers, Fones' continuing participation in the conspiracy was significant. Because Fones' relative responsibility in the conspiracy was greater than that of other conspirators and, as stated by the district court, crucial to the existence of the criminal activity, the pre-1993 Guidelines law of this circuit would support the district court's finding that Fones was a manager or supervisor under Sec. 3B1.1(b).3
25
Fones argues that even if he is more culpable than other participants in the conspiracy, since he did not "coordinate" or "orchestrate" the activities of others, an enhancement under Sec. 3B1.1(b) is not appropriate. In support of this claim, Fones cites Vargas, 16 F.3d 155, where this court held as follows:
26
An increase under Section 3B1.1 is appropriate for those defendants whose "relative responsibility" for the offense is found to have been greater than that of its other participants. In determining relative responsibility, a significant factor to be considered is whether the defendant exercised authority or control over others in the criminal operation. The fact, however, that the defendant did not exercise such control, in the sense of having the power to tell others what to do, does not necessarily disqualify the defendant for a Section 3B1.1 increase. Rather, in some cases it may be enough that the defendant "orchestrated" or simply "coordinated" the activities of others.
27
Less than that, however, will not do. Supplying drugs and negotiating the terms of their sale do not by themselves justify a Section 3B1.1 increase, for these things do not indicate that the person who does them has a greater degree of responsibility for putting together the drug operation or a particular deal than anyone else involved, including the customer....
28
Vargas might have earned a Section 3B1.1 increase had he been principally responsible for arranging the logistics of cocaine deliveries or payments, because this would have required him to dictate to some extent, or at least coordinate, the actions of Favela and Lira.
29
Vargas, 16 F.3d at 160 (citing United States v. Skinner, 986 F.2d 1091, 1097, 1099 (7th Cir.1993); United States v. Brown, 944 F.2d 1377, 1381-82, 1385-86 (7th Cir.1991); United States v. Rivero, 993 F.2d 620, 624 (7th Cir.1993)).
30
Fones contends that Vargas mandates that where a defendant does not have control over others, a defendant must have at least "orchestrated" or "coordinated" the activities of others in order to be subject to an increase under Sec. 3B1.1. Fones maintains that since the record does not demonstrate that he orchestrated or coordinated the actions of Shriver and Denman, the Sec. 3B1.1(b) adjustment was in error. Indeed, if we were to interpret our holding in Vargas so narrowly, Fones might have a valid claim. Regarding Fones' coordination of the activity of Shriver and Denman, the district court's findings demonstrate no more than that Fones set the terms of sale between himself and Shriver and Denman. Under Vargas, this would not be enough to establish that Fones "coordinated" or "orchestrated" the activities of Shriver and Denman. Vargas, 16 F.3d at 160 (supplying contraband and negotiating the terms of the sale does not demonstrate that the defendant coordinated or orchestrated the activities of other participants). However, a showing that Fones had the principal responsibility for arranging the logistics of the delivery of the descramblers could support such a finding under Vargas. Since Vargas was decided after Fones' sentence was imposed, such a finding might have been made by the district court.4
31
Vargas, however, does not require that a defendant without control over others must be found to coordinate or orchestrate the activities of others in order to be subject to an offense level increase under Sec. 3B1.1. We have long held that relative responsibility is the central concern in determining whether an adjustment under Sec. 3B1.1 is appropriate. To this point, this court has held that where a defendant does not supervise people, his management over the assets, property or activities of the criminal organization may support a Sec. 3B1.1(b) adjustment. Carson, 9 F.3d at 592. While a defendant's coordination of the activities of others may demonstrate relative responsibility, so too may other factors.
32
Fones points out that Vargas expressly states that, while coordinating or organizing the criminal activity of others may be enough for sentence adjustment where the defendant does not exercise control over other participants in the sense of having the power to tell others what to do, "less will not do." However, there is no indication that Vargas intended to exclude the consideration of other factors which demonstrate relative responsibility. Rather, the Vargas court's intent was to make clear that the defendant's sales, without more, would not demonstrate sufficient relative responsibility to support an offense level increase under Sec. 3B1.1. While an increase would have been proper if the defendant had at least coordinated the activities of others in conducting the sale, because the defendant only set the price of sale and delivered the contraband, we held that an increase was not justified. In Young, 34 F.3d 500, we cited Vargas for the proposition that relative responsibility, rather than control, is the key determination to be made in deciding whether to adjust a sentence under Sec. 3B1.1. Because the Young court upheld an offense level increase under Sec. 3B1.1(b) without explicitly finding that the defendant "coordinated" or "orchestrated" the activities of others, it did not interpret Vargas as limiting this court's definition of relative responsibility. Accordingly, under the pre-1993 Guidelines law of this circuit, the district court's adjustment of Fones' sentence under Sec. 3B1.1(b) was not clearly erroneous.
33
However, under the November 1, 1993 version of note 2 to Sec. 3B1.1, the district court's adjustment under Sec. 3B1.1 would constitute an incorrect application of the sentencing guidelines. Note 2 (1993) provides:
34
To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants. An upward departure may be warranted, however, in the case of a defendant who did not organize, lead, manage, or supervise another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization.
35
U.S.S.G. Sec. 3B1.1, comment. (n. 2).
36
Note 2 (1993) was issued in order to clarify Sec. 3B1.1 because of questions raised by an intercircuit conflict. U.S.S.G., Appendix C, amendment 500. Specifically, while some circuits have held that control over a participant is a prerequisite to classifying a defendant as a leader, organizer, manager or supervisor under Sec. 3B1.1, others have found that management over the property, assets or activities of a criminal activity is enough. This new note provides that an increased sentence may be warranted under either scenario. However, as indicated by the note, the method of sentence enhancement varies depending upon exactly what the defendant has control over. Specifically, where a defendant controls at least one other participant in the criminal activity, he can be classified as a leader, organizer, supervisor or manager for the purposes of an adjustment under Sec. 3B1.1. While an adjustment under Sec. 3B1.1 is not appropriate when the defendant does not have control over a participant, where the defendant is found to have exercised control over assets, property or the activities of the criminal enterprise, note 2 provides that an upward departure from the guidelines may be warranted. Hence, this note now requires that a defendant have control over at least one participant of the criminal activity in order to be subject to a sentencing enhancement under Sec. 3B1.1. United States v. Mustread, 42 F.3d 1097, 1103 (7th Cir.1994).
37
Fones did not specifically mention note 2 (1993) before the district court and he does not do so on appeal. However, in his argument that he was not a manager or supervisor within the meaning of Sec. 3B1.1(b), Fones does place particular emphasis on the fact that he did not have control over any other participants. Accordingly, we will consider note 2 (1993) in our review of this appeal.
38
As a general rule, the district court must apply the guidelines in effect at the time of sentencing which, in the instant action, was January 19, 1994. U.S.S.G. Sec. 1B1.11(a). However, if the district court determines that "use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed." U.S.S.G. Sec. 1B1.11(b)(1). Specifically, the application of a new guideline which would result in the imposition of a more severe sentence would constitute a violation of the ex post facto clause of the Constitution. United States v. Aman, 31 F.3d 550, 557 (7th Cir.1994). Here, the Pre-Sentence Investigation Report provided that the offense level calculations applicable at the time of the commission of the offense--the 1987 guidelines manual, including amendments through March, 1988--were more beneficial to Fones than those in the 1993 edition of the guidelines. Hence, the district court applied the 1987 version of the guidelines and the March, 1988 amendments. However, "if a court applies an earlier edition of the Guidelines Manual, the court shall consider subsequent amendments, to the extent that such amendments are clarifying rather than substantive changes." U.S.S.G. Sec. 1B1.11(b)(2).
39
Because note 2 (1993) requires that a defendant have control over at least one other participant in order to be subject to an offense level increase under Sec. 3B1.1, it effectively nullifies the law of the Seventh Circuit. Nonetheless, it must be viewed as a clarifying rather than substantive change to the application of Sec. 3B1.1. As the United States Sentencing Commission expressly provides, "[t]his amendment clarifies the operation of [Sec. 3B1.1] to resolve a split among the courts of appeal." U.S.S.G., Appendix C, Amendment 500 (Nov. 1, 1993).
40
While the Sentencing Commission's deeming an amendment to be clarifying does not require this court to conclude that it is (to do so would allow the Sentencing Commission to make substantive changes under the guise of clarification), the Commission's interpretation of its own amendment is entitled to deference. United States v. Perdomo, 927 F.2d 111, 117 (2nd Cir.1991) (citing United States v. Guerrero, 863 F.2d 245, 250 (2nd Cir.1988)). Cf. United States v. Montague, 29 F.3d 317, 324 n. 5 (7th Cir.1994) ("Amendment 345 is a clarifying amendment, as is clear from the language in Appendix C."); Ebbole v. United States, 8 F.3d 530, 538 (7th Cir.1993) (where this court found a subsequent amendment to the guidelines to be substantive rather than clarifying, it was pointed out that "[u]nlike its practice on some occasions, the Sentencing Commission did not give courts any guidance whether it considered the 1992 amendment a clarification...."), cert. denied, --- U.S. ----, 114 S.Ct. 1229, 127 L.Ed.2d 573 (1994).
41
Here, the amendment does not change the language of the applicable guideline, Sec. 3B1.1. But see Ebbole, 8 F.3d at 538 ("Based on the language in the 1992 amendment, which replaced the entire text of the pre-existing Guideline, we agree with the government and conclude that the Sentencing Commission made a substantive change or modification to section 3E1.1, rather than a simple clarification."). Moreover, note 2 (1993) is a reasonable interpretation of the plain language of Sec. 3B1.1--that having control or authority over individuals is part of what it means to be a leader, organizer, supervisor, or manager.
42
Accordingly, note 2 (1993) constitutes a clarification of the appropriate application of Sec. 3B1.1 rather than a substantive change to the guidelines. Because Fones was sentenced on January 19, 1994, after note 2 (1993) became effective, note 2 (1993) should have been considered by the district court in sentencing Fones.
43
The district court found that Fones had no control or authority over any other participants. Accordingly, in light of note 2 (1993), the district court's application of Sec. 3B1.1(b) constitutes an incorrect application of the guidelines.5 However, the factors relied upon by the district court in finding an enhancement under Sec. 3B1.1(b) to be appropriate could support an upward departure from the applicable guidelines range. Specifically, the district court's findings demonstrate that Fones had management responsibility over the assets, property and, to some extent, the activity of the criminal organization. A decision to depart, unlike an adjustment under Sec. 3B1.1(b), is within the absolute discretion of the district court. Moreover, if the district court chooses to depart, it has the discretion to determine the amount of increase in the defendant's sentence. Because, therefore, a different sentence might result, we VACATE the sentence and REMAND the case to the district court to determine whether an upward departure is warranted. See 18 U.S.C. Sec. 3742(f)(1) ("If the court of appeals determines that the sentence--(1) was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate").
1
Woolridge, Toepke, Price and Gates were salesmen at Midwest
2
This term of imprisonment was imposed concurrent to a 12 month term of imprisonment for violation of 47 U.S.C. Sec. 605(a)
3
While Fones is no more culpable than Daly, Shriver and Denman, more than one participant may be subject to a sentence adjustment under Sec. 3B1.1. United States v. Ramos, 932 F.2d 611, 619 (7th Cir.1991); U.S.S.G. Sec. 3B1.1, comment. (n. 4) ("There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy."). Clearly, Fones bears a greater responsibility for the criminal activity here than the four Midwest salesmen, Woolridge, Toepke, Price, and Gates. Hence, Fones is more culpable than other members of the conspiracy
4
There is testimony of record that Shriver and Denman picked up the descramblers at Beach Craft--the location where Fones made the descramblers. (Tr. at 25.) Moreover, there is testimony which shows that, at one point during Fones' business relationship with Shriver, he refused to deal with Shriver and required that Midwest salesmen pick up the descramblers. Id. at 26
5
This court has held that " '[e]fforts to marshall other individuals for the purpose of executing the crime' are enough to demonstrate sufficient control over a participant for purposes of Sec. 3B1.1(a)." United States v. Sax, 39 F.3d 1380, 1392 (7th Cir.1994) (citing United States v. Carson, 9 F.3d 576, 585 (7th Cir.1993)). See also United States v. Guyton, 36 F.3d 655, 662 (7th Cir.1994) ("Organizing or enlisting others for the purpose of executing the crime can constitute sufficient control of another under Sec. 3B1.1(a)."). It would follow that efforts of recruitment would likewise be sufficient to establish control over a participant under Sec. 3B1.1(b). The reason that efforts to recruit have been found to demonstrate control over those recruited is that, generally, those recruited are subordinate to the recruiter. Cf. United States v. Brown, 944 F.2d 1377, 1381 (7th Cir.1991) (In order for a defendant to be subject to an increase under Sec. 3B1.1, " 'the defendant must have exercised some degree of control over others involved in the commission of the offense or he must have been responsible for organizing others for the purpose of carrying out the crime. This requirement is implicit in the terms 'organizer, leader, manager and supervisor,' each of which suggests the presence of underlings or subordinates....' ") (emphasis added) (quoting United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir.1990)). Here, Fones recruited Shriver and Denman by appearing at Midwest and offering a supply of modified descramblers. However, Shriver and Denman were anything but subordinates of Fones. (R. at 149) ("At the time Defendant contracted Shriver and Denman they were already engaged in selling illegally modified descramblers obtained from a different source. Shriver and Denman owned their own satellite company and merely order[ed] inventory, albeit illegal inventory, from Defendant. Defendant simply filled Shriver and Denman's orders, he did not control how many descramblers were ordered or what happened to the descramblers once they were delivered."). It is no surprise that the district court explicitly found that Fones had no control or authority over Shriver and Denman. Hence, while Fones' recruiting of Shriver and Denman may have established "control" over them, the district court found that it did not | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1560050/ | 20 So.3d 849 (2009)
RAMOS
v.
STATE.
No. SC08-821.
Supreme Court of Florida.
September 30, 2009.
Decision Without Published Opinion Review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3012358/ | Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
4-3-2002
Amerada Hess Corp v. Zurich Ins Co
Precedential or Non-Precedential:
Docket No. 99-3505
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002
Recommended Citation
"Amerada Hess Corp v. Zurich Ins Co" (2002). 2002 Decisions. Paper 238.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/238
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 99-3505 and 99-3512
AMERADA HESS CORPORATION;
HESS OIL VIRGIN ISLANDS CORPORATION
PAUL THOMPSON; JERAL STOKER; ESTATE OF
ERNEST ISENBERG; JAMES MCKINLEY;
REVEL CHELETTE, JR.; PATRICK BUNCH;
EDDIE BANNON,
Intervenors
v.
ZURICH INSURANCE COMPANY
PAUL THOMPSON; JERAL STOKER; ESTATE OF
ERNEST ISENBERG; JAMES MCKINLEY;
REVEL CHELETTE, JR.; PATRICK BUNCH;
EDDIE BANNON,
Appellants at No. 99-3505
AMERADA HESS CORPORATION;
HESS OIL VIRGIN ISLANDS CORPORATION,
Appellants at No. 99-3512
Appellate Division of the District Court for the
Virgin Islands, Division of St. Croix
Civil No. 97-cv-00035
District Judge: Honorable Raymond L. Finch
Argued: May 14, 2001
BEFORE: McKEE, RENDELL and BARRY, Circuit Judges
_________________________
ORDER AMENDING OPINION
_________________________
Per the direction of the Court, IT IS HEREBY ORDERED that the not precedential
opinion in the above cases, filed March 6, 2002, be amended to read as follows:
ROBERT H. SHULMAN, ESQ. (Argued)
Howrey, Simon, Arnold & White
1299 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
MINDY G. DAVIS, ESQ.
Howrey, Simon, Arnold & White
1299 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
FOR THE COURT,
____________________
Clerk
DATED: April 4, 200 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1557031/ | 30 So. 3d 145 (2009)
Hans WEDE
v.
NICHE MARKETING USA, LLC, A Louisiana Limited Liability Company and Rodney C. Whitney, Jr.
No. 09-CA-146.
Court of Appeal of Louisiana, Fifth Circuit.
December 29, 2009.
Rehearing Denied March 2, 2010.
*146 Mark C. Landry, Newman, Mathis, Brady, & Spedale, Attorney at Law, Metairie, LA, for Plaintiff/Appellee.
James M. Garner, Elwood F. Cahill, Jr., John T. Balhoff, II, Ryan O. Luminais, Sher Garner Cahill Richter Klein & Hilbert, Attorneys at Law, New Orleans, LA, for Defendants/Appellants.
Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and MARC E. JOHNSON.
CLARENCE E. McMANUS, Judge.
Appellants, James and Deborah James, file this appeal from the trial court's grant of Hans Wede's Motion to Authorize Seizure of Property.
STATEMENT OF THE CASE
On November 22, 2005, Hans Wede filed a Petition to Make a Foreign Judgment Executory in the Fortieth Judicial District Court of St. John the Baptist Parish seeking to have a North Carolina judgment made executory against Niche Marketing USA, LLC, a Louisiana limited liability company, and Rodney C. Whitney, Jr. The North Carolina judgment was for $52,000.00 plus interest of 8% from August 19, 2005 until paid, attorney fees of $7,500.00 and court costs. The trial court signed a judgment on November 22, 2005 making the North Carolina judgment executory in Louisiana. Neither Niche Marketing USA nor Whitney made any payments towards this judgment. Wede's Louisiana counsel filed the judgment for recordation in the Mortgage and Conveyance Office of the Clerk of Court for St. John the Baptist Parish on December 8, 2005.
At the time the judgment was recorded, Whitney and his wife owned immovable property in LaPlace, Louisiana. The Whitneys then sold that property to Robert and Deborah James on January 31, 2007. The act of sale was recorded in the conveyance records of St. John the Baptist Parish on February 26, 2007. On May 16, 2007, Wede's counsel sent a letter to the James advising them of the existing judgment against the property they had purchased and recommending that they contact their title insurance company.
Thereafter, Wede's counsel discovered that the judgment against Whitney had been recorded on December 8, 2005, however, it had been filed in the conveyance records, rather than the mortgage records. Therefore, the judgment was not noted when the Whitneys perfected the sale of the property to the James. The Clerk of Court of St. John the Baptist Parish was advised of the problem and the judgment was correctly filed in the mortgage records.
On June 8, 2007, Eliana Defrancesch, the Clerk of Court for St. John the Baptist Parish, executed an affidavit stating that Instrument # 261091, which was the judgment at issue obtained by Wede against Whitney, was recorded in the conveyance records on December 8, 2005 and was not recorded in the mortgage records until May 3, 2007. The affidavit further provided that at the time of recordation of the judgment on December 8, 2005, there were no instructions provided to the clerk of court as to where the document should be *147 recorded. The document was ultimately recorded in the conveyance records at the time of filing on December 8, 2005.
On September 7, 2007, Wede filed a Motion to Authorize Seizure of Property against Robert and Deborah James. Wede asserted he was the judgment creditor of Niche Marketing USA and Whitney based on the November 22, 2005 judgment of the Fortieth Judicial District Court, which was recorded in St. John the Baptist Parish, and thus, he had a judicial mortgage on all immovable property owned by Niche Marketing USA and Whitney, including the property sold to the James.
In his Motion to Authorize Seizure of Property, Wede argued the clerk of court's error of recording the judgment in the conveyance records instead of the mortgage records did not impact the validity of the judicial mortgage, and further, the transfer of the property from the Whitneys to the James didn't impact the judicial mortgage. Wede argued he is entitled to seize the property pursuant to the judicial mortgage.
The James filed an opposition to Wede's motion on October 11, 2007 arguing the judgment was recorded in the conveyance records only and not properly recorded in the mortgage records until after the Whitneys sold the property to the James. Therefore, the James argued Wede's judgment had no effect on their ownership of the property. The James filed a supplemental opposition on September 9, 2008 explaining the computerized process of filing a document into the mortgage and conveyance records in the clerk of court's office of St. John the Baptist Parish. The James explained that the error occurred when the choice of "CO" for conveyance records was made in the clerk's computer, instead of "MO" for mortgage records at the time of filing of the judgment. Since the document had been filed in the conveyance records and not the mortgage records prior to the sale of the property, the James argued Wede had no valid judicial mortgage permitting the seizure of the property they purchased.
An evidentiary hearing was held October 13, 2008 in the trial court. The trial court issued a judgment on November 21, 2008 granting Wede's motion to authorize seizure of the property. For the reasons which follow, we reverse the trial court's judgment granting Wede's motion to authorize seizure of the property.
DISCUSSION
On appeal, the James contend the judgment in favor of Wede and against Whitney was only recorded in the conveyance records and was not recorded in the mortgage records until after they purchased the property from the Whitneys. Therefore, no valid judicial mortgage was effective against the property when it was purchased. The James argue this judgment was not mis-indexed, but rather was mis-recorded only in the conveyance records and not recorded in the mortgage records. Therefore, they contend this judgment is not effective against them as third parties to the judgment.
In opposition to the appeal, Wede argues the judgment was properly recorded in the clerk's office by his counsel. He contends the clerk's office then mis-indexed the judgment under the conveyance records instead of the mortgage records, but this is not a mis-recording or non-recording of the judgment. Wede argues that since the judgment was properly filed with the clerk of court, the judicial mortgage applies to the property, even after the James purchased the property.
First, we agree in part with Wede and find his judicial mortgage was filed and valid upon delivery to the clerk in the mortgage and conveyance office for filing *148 in the records. La. C.C. art. 3347 states, in part, "[a]n instrument is filed with a recorder when he accepts it for recordation in his office." In this case, Wede presented the November 22, 2005 judgment to the St. John the Baptist Clerk of Court's office for recordation on December 8, 2005. Thus, this instrument, or judgment, was properly filed for the purposes of La. C.C. art. 3347.
However, we also find, based on the testimony and evidence presented, that the judicial mortgage did not attach to the property owned by the Whitneys and purchased by the James, because it was mistakenly filed in the conveyance records and not in the mortgage records. The St. John the Baptist Parish mortgage and conveyance office has a specific system in which instruments are categorized into either the mortgage index or the conveyance index. The Clerk of Court, Eliana Defrancesch, and a deputy clerk, Felicia Feist, testified by deposition that the mortgage and conveyance records were all kept by computer and were no longer maintained in paper books. They further explained that once a document is filed, it goes to a recording clerk and is given an instrument number with a time and date that is placed on the document. A clerk then indexes the document by choosing either "CO" for conveyance or "MO" for mortgage in the computer. The document is then verified and released and then scanned, stamped and released to the public. Defransesch believes that in this case, "CO" was chosen in the computer instead of "MO". The trial court characterized this as "mis-indexing" as opposed to "mis-recording". We disagree with the trial court's characterization of this error as "mis-indexing". We find this judgment was simply not recorded in the mortgage records. It was mistakenly recorded in the conveyance records. The affidavit of Defransesch provides that the judgment was recorded in the conveyance records on December 8, 2005 but not recorded in the mortgage records until May 3, 2007.
The James purchased the property in question on January 31, 2007 and that act of sale was recorded in the conveyance records on February 26, 2007. At that time, a search of the mortgage records of St. John the Baptist Parish would not have revealed the November 22, 2005 judgment against Whitney. Therefore, we find that, at the time of the sale of the property, the judicial mortgage was not applicable or attached to the property because it was not filed in the mortgage records, but was only filed in the conveyance records.
We do note that Wede's counsel properly presented the judgment to the clerk's mortgage and conveyance office for recordation. Thereafter, it was mistakenly labeled and placed in the conveyance records due to a clerical error by the clerk's office. Even though Wede's counsel properly presented the judgment for recording, we must find that the James had no knowledge of the existence of the judicial mortgage since it was only recorded in the conveyance records and not in the mortgage records. Since we find the judgment is not effective as to this property at the time it was sold to the James, Wede is not entitled to seizure of the property pursuant to the judgment.
Therefore, we reverse the trial court's judgment and find the judicial mortgage in favor of Wede is not applicable to this property. We note that any cause of action by Wede to recover on this judgment is against the St. John the Baptist Clerk of Court's office.
Accordingly, we reverse the trial court's judgment granting Wede's Motion to Authorize Seizure of Property.
REVERSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557023/ | 30 So. 3d 1094 (2010)
The GREEN CLINIC, L.L.C., Plaintiff-Appellee
v.
James S. FINLEY and James S. Finley, M.D. A Professional Medical Corporation, Defendants-Appellants
James S. Finley, M.D., Plaintiff-Appellant
v.
The Green Clinic, L.L.C., Defendant-Appellee.
Nos. 45,140-CA, 45,141-CA.
Court of Appeal of Louisiana, Second Circuit.
January 27, 2010.
*1095 Breazeale, Sachse & Wilson by Jude C. Bursavich, Emily B. Grey, Carroll Devillier, Baton Rouge, for Appellants.
Bleich & Burnett by E. Joseph Bleich, Ruston, Cook, Yancey, King & Galloway by Sidney E. Cook, Jr., Stephen P. Barker, Michael D. Lowe, Shreveport, for Appellee.
Before WILLIAMS, STEWART and DREW, JJ.
STEWART, J.
James S. Finley (Dr. Finley) and James S. Finley, M. D., A Professional Medical Corporation (the "corporation"), appeal a judgment granting injunctive relief in favor of The Green Clinic, L.L.C., ("TGC"), to enforce a noncompetition clause included in TGC's Operating Agreement. At issue is whether the trial court erred in applying the law in effect on September 1, 2003, when Dr. Finley assigned his interest in TGC to his professional medical corporation, to interpret the noncompetition clause in TGC's Operating Agreement. For reasons explained in this opinion, we affirm the trial court's judgment.
FACTS
Dr. Finley is an orthopaedic surgeon who has practiced with TGC since 1987. Though TGC was first organized as a partnership, it began operating as a limited liability company on January 1, 1994, when its members signed TGC's Operating Agreement. An operating agreement is any written or oral agreement by the members of a limited liability company memorializing its affairs and the conduct of its business. La. R.S. 12:1301(A)(16). TGC's Operating Agreement includes a noncompetition clause at Section 11.3.
Over the years the Operating Agreement has been amended and restated, both in whole and in part, with TGC's members signing each new version or amendment. The version of the Operating Agreement relevant to this dispute became effective as of February 25, 2003. The noncompetition clause at Section 11.3 states:
No individual Member or professional employee of a corporate Member shall engage, directly or indirectly in the ownership, management or operation of a medical office building or provision of physician services at any medical or health care facility providing services substantially similar to those provided by the Organization within Lincoln Parish, Jackson Parish, Bienville Parish, Union Parish, and all of Ouachita Parish West of the Ouachita River for a period twenty-four (24) months after any termination of those Member's interest in the Organization. This noncompetition clause is made by the Members in consideration of the purchase of their interest in the Organization upon withdrawal for any reason and in consideration for the relief from the Organization's liabilities upon withdrawal (other than Member's malpractice liability for the Member's own conduct). The Members acknowledge that a remedy at *1096 law for breach of this covenant is inadequate, and that the Organization shall be entitled to specific performance and injunctive relief against a former individual Member or professional employee of a corporate Member.
On September 1, 2003, Dr. Finley transferred his membership interest in TGC to his corporation. The document entitled "TRANSFER OF INTEREST IN THE GREEN CLINIC, L.L.C.," provides:
WHEREAS, Finley is a Member of the Clinic owning a 3.33% interest in the Clinic; and
WHEREAS, Finley desires to transfer his entire interest in the Clinic to Corporation; and
WHEREAS, the Clinic has no objection to substituting Corporation in place of Finley as a Member of the Clinic in all respects.
NOW, THEREFORE, the parties agree as follows:
1. As of the effective date hereof, Finley has transferred his entire membership interest in the Clinic to the Corporation and the Corporation is substituted as a full Member of the Clinic in Finley's place.
2. Corporation agrees to be bound by all of the terms and conditions of the Clinic's Operating Agreement, as amended.
The transfer agreement is signed by TGC's Medical Director, Randy McWhorter; by James S. Finley, M.D.; and by James S. Finley, M.D., as President of James S. Finley M.D., A Professional Medical Corporation.
By letter dated June 1, 2009, Dr. Finley informed TGC of his intent to resign and to become an "employed physician of Community Health Systems as of 9/1/2009." Community Health Systems owns the Ruston Clinic, L.L.C., where Dr. Finley would be employed as an orthopaedic surgeon, and Northern Louisiana Medical Center, where Dr. Finley would perform the majority of his surgeries. These facilities are located within walking distance from TGC. Dr. Finley would be in direct competition with TGC.
On June 16, 2009, TGC filed a petition for injunctive relief and a declaratory judgment against Dr. Finley and his corporation. TGC alleged that Dr. Finley's plan to become an "employed physician" of Community Health Systems violated Section 11.3 of the February 25, 2003, Operating Agreement. TGC later amended its petition to allege that when Dr. Finley transferred his interest in TGC to his corporation on September 1, 2003, the corporation agreed to be bound by the terms and conditions of TGC's Operating Agreement.
Seeking a declaratory judgment that his employment would not violate Section 11.3, Dr. Finley filed his own petition against TGC. He asserted that the noncompete clause in Section 11.3 is governed by the law in effect February 25, 2003, when he signed that version of the Operating Agreement. Citing La. R.S. 23:921 as interpreted by SWAT 24 Shreveport Bossier, Inc. v. Bond, XXXX-XXXX (La.6/29/01), 808 So. 2d 294, Dr. Finley asserted that he would not be in violation of Section 11.3 if employed as a physician by a competing practice.
The two suits were consolidated for trial, with TGC's request for preliminary and permanent injunctions heard together at the parties' request. Dr. Finley, Dr. Randy McWhorter; and Doug Sills, the CEO of Northern Louisiana Medical Center, testified and numerous exhibits were entered into evidence. Rendering judgment in favor of TGC, the trial court permanently enjoined Dr. Finley from working as an employed physician for a period of 24 months from September 1, 2009, in *1097 compliance with the noncompete clause in TGC's Operating Agreement.
The trial court's written reasons for judgment concluded that "James S. Finley, M.D., A Professional Medical Corporation, was never an original party to the February 24, 2003 agreement." Rather, on September 1, 2003, Dr. Finley's professional medical corporation became a member of TGC and agreed to be bound by the terms and conditions of TGC's Operating Agreement. This created a new contract governed by La. R.S. 23:921 as amended on August 15, 2003. Thus, the noncompete clause in the Operating Agreement prevented Dr. Finley from going to work for TGC's competitor as an employed physician. In a footnote, the trial court concluded that even if SWAT 24, supra, applied, he would find that Dr. Finley would not be an employee in his new position and would still enforce the noncompete clause.
Dr. Finley now appeals the trial court's judgment.
DISCUSSION
Dr. Finley's appeal primarily challenges the trial court's application of the law governing noncompete agreements in effect on September 1, 2003, the date of the agreement transferring Dr. Finley's individual membership in TGC to his corporation. He argues that the Transfer Agreement does not have a noncompete clause and that the parties did not execute a noncompete agreement on that date. Dr. Finley asserts that the only noncompete agreement between the parties is contained in the Operating Agreement dated February 25, 2003. Thus, the law governing noncompete agreements that was in effect on that date, must be applied.
Louisiana's public policy has traditionally disfavored and restricted noncompete agreements. SWAT 24, supra. As stated in La. R.S. 23:921(A), every contract, agreement, or provision that restricts one from exercising a lawful profession, trade or business shall be null and void except as provided in the exceptions set forth in the statute. Noncompete agreements are considered to be in derogation of the common right and must be strictly construed against the party seeking their enforcement. SWAT 24, supra; Action Revenue Recovery, L.L.C. v. eBusiness Group, 44,607 (La.App. 2d Cir.8/19/09), 17 So. 3d 999.
The relevant exception allowing for agreements restraining competition is set forth in La. R.S. 23:921(C), which states, in part:
C. Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment.
When Dr. Finley signed the Operating Agreement of February 25, 2003, La. R.S. 23:921(C) had been interpreted by the supreme court as restricting an employee from engaging in or carrying on his own competing business but still allowing an employee to become employed by a competitor of his former employer. SWAT 24, supra. The supreme court posited that the legislature could not have intended the absurd results that would follow if the statute were read as prohibiting employment by a competitor. One such result referred to in the opinion was that of a doctor employed by a regional hospital being prevented under a noncompete agreement from practicing medicine in any *1098 capacity in the region for two years after terminating employment. SWAT 24, XXXX-XXXX, p. 20, 808 So.2d at 307. This is similar to the situation here. The law in effect on February 25, 2003, would allow Dr. Finley to leave TGC and to become an employed physician at a competing clinic without breaching the noncompete clause of TGC's Operating Agreement.
However, SWAT 24's narrow interpretation of "carrying on and engaging in a business similar to that of the employer" in La. R.S. 23:921(C) was legislatively overruled. By Act 2003, No. 428, effective August 15, 2003, the legislature broadened the scope of noncompete agreements by amending La. R.S. 23:921 to provide:
D. For the purposes of Subsections B and C, a person who becomes employed by a competing business, regardless of whether or not that person is an owner or equity interest holder of that competing business, may be deemed to be carrying on or engaging in a business similar to that of the party having a contractual right to prevent that person from competing.
When the Transfer Agreement was executed on September 1, 2003, the amendment of La. R.S. 23:921 had taken effect and employment by a competing business was now deemed to be carrying on or engaging in a business similar to that of the party with the contractual right to prevent such competition.[1] Because of this change in the law, it is necessary to determine whether the Transfer Agreement resulted in the execution of a new noncompete agreement by the corporation, or whether, as Finley asserts, the corporation simply assumed his pending obligations under the Operating Agreement signed by him on February 25, 2003.
Contracts are interpreted in accordance with the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear, explicit, and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046. When a contract can be interpreted within its four corners, without resort to extrinsic evidence, its interpretation presents a question of law. ScenicLand Const. Co., L.L.C. v. St. Francis Medical Center, Inc., 41,147 (La.App. 2d Cir.7/26/06), 936 So. 2d 247. In such cases, appellate review is limited to whether the trial court was legally correct or incorrect. Lawrence v. Terral Seed, Inc., 35,019 (La.App. 2d Cir.9/26/01), 796 So. 2d 115, writ denied, XXXX-XXXX (La.2/1/02), 808 So. 2d 341.
As shown by the record, including the testimony at trial, the noncompetition clause sought to be enforced is included in Section 11.3 of the February 25, 2003, Operating Agreement signed by Dr. Finley. Though parts of the Operating Agreement have been amended since that date, none of the amendments affect Section 11.3. The Transfer Agreement does not include a specific noncompetition clause within its four corners. However, the Transfer Agreement does state, "Corporation agrees to be bound by all of the terms and conditions of the Clinic's Operating Agreement, as amended." (Emphasis added.) In clear and unambiguous language, the corporation agreed to be bound by TGC's Operating Agreement, which includes the noncompete clause at Section 11.3. By agreeing to be bound by *1099 the terms and conditions of the Operating Agreement, the corporation in effect agreed to be bound by the noncompete clause included in the Operating Agreement.
A party's obligations under a contract are fixed at the time the contract is entered into. Louisiana Smoked Products, Inc. v. Savoie's Sausage and Food Products, Inc., 96-1716 (La.7/1/97), 696 So. 2d 1373; Block v. Reliance Insurance Company, 433 So. 2d 1040 (La.1983). Juridical persons, such as corporations, are distinct from its members. La. C.C. art. 24. When Dr. Finley, on his own behalf as a member of TGC, executed the February 25, 2003, Operating Agreement, his corporation was not yet in existence and not a party to the Operating Agreement on that date. The corporation did not become bound by the Operating Agreement, including the noncompetition clause contained therein, until it became a member of TGC upon execution of the Transfer Agreement on September 1, 2003. On that date it specifically agreed to be bound by the Operating Agreement's terms and conditions. Therefore, the corporation agreed to be bound by Section 11.3, which prohibited both the corporation and Dr. Finley, as its professional employee, from directly or indirectly engaging in the ownership, management or operation of a medical office building or providing physician services at a health care facility under the terms outlined in the clause.
The Transfer Agreement had dual effect. First, it assigned Finley's membership interest in TGC to his professional medical corporation. Second, as a new member of TGC, the corporation agreed to be bound by the Operating Agreement. The corporation did not simply assume pending obligations; rather, it became a member of TGC upon transfer of Finley's membership interest. As a member and as shown by the clear and unambiguous language of the Transfer Agreement, the corporation agreed in its own right to be bound by the Operating Agreement.
A "membership interest" in a limited liability company consists of the member's rights in the company, including his share of its profits and losses, the right to receive distributions of its assets, and any right to vote or participate in management. La. R.S. 12:1301(A)(14). These rights, which are reflected in Dr. Finley's 3.33% interest in TGC, are what Dr. Finley transferred and assigned to his corporation. A membership interest is assignable in whole or in part. La. R.S. 12:1330(A). Assignment of a membership interest does not automatically make the assignee a member. The assignee must be admitted as a member in accordance with the provisions governing limited liability companies set forth in La. R.S. 12:1301 et seq., or as provided in the company's articles of organization or operating agreement. La. R.S. 12:1330(A); La. R.S. 12:1332. "An assignee who becomes a member has, to the extent assigned, the rights and powers, and is subject to the restrictions and liabilities, of a member under the articles of organization, any operating agreement, and this Chapter." La. R.S. 12:1332(B).
TGC's Operating Agreement allows a member to assign his membership interest to a professional corporation with the Medical Director's consent. The corporation is then "submitted as a Member in all respects for the individual Member." Thus, TGC's Operating Agreement permits assignment of a whole membership interest to a professional corporation and admittance of the corporation as a member without the necessity of unanimous written consent of the other members as required by La. R.S. 12:1332(A) or of any formality other than the consent of TGC's Medical Director. The Transfer Agreement accomplished assignment of Finley's entire *1100 membership interest to his corporation and made the corporation a member, in all respects, of TGC. Upon becoming a regular member of TGC on September 1, 2003, the corporation obtained the rights and powers of a member and became subject to the restrictions and liabilities of a member as provided under the Operating Agreement. Thus, as a member, TGC agreed to be bound by the Operating Agreement and became subject to its restrictions and liabilities, including the noncompetition clause. The corporation's obligations as a member of TGC became fixed as of September 1, 2003.
A noncompetition agreement must be strictly construed. Action Revenue Recovery, supra; Kimball v. Anesthesia Specialists of Baton Rouge, Inc., XXXX-XXXX (La.App. 1st Cir.9/28/01), 809 So. 2d 405, writs denied, XXXX-XXXX (La.3/8/02), 811 So. 2d 883 and XXXX-XXXX (La.3/8/02), 811 So. 2d 886. If the action sought to be enjoined pursuant to the noncompete agreement does not fall within the statutory exception of La. R.S. 23:921(C), or the agreement does not conform to the statutory requirements, then the party seeking enforcement cannot prove it is entitled to the relief sought. Action Revenue Recovery, supra; Vartech Systems, Inc. v. Hayden, 2005-2499 (La.App. 1st Cir.12/20/06), 951 So. 2d 247.
Here, the action sought to be enjoined by TGC falls within the exception of La. R.S. 23:921(C) and the noncompete clause appears to conform to the statutory requirements. Strictly construing the language of the noncompete clause, we find that injunctive relief was properly granted. Because the corporation became a member of TGC and bound itself to abide by the terms and conditions of the Operating Agreement on September 1, 2003, the trial court did not commit legal error in applying the law in effect on that date to determine whether TGC was entitled to enforce the noncompete clause included in the Operating Agreement and to obtain injunctive relief.
La. R.S. 23:921, as amended effective August 15, 2003, provides that a person who becomes employed by a competing business, regardless of whether he is an owner or equity interest holder of that business, may be deemed to be carrying on or engaging in a business similar to that of his former employer who seeks to enforce a noncompete agreement. La. R.S. 23:921(D). This is the law in effect on the date the corporation became bound by the Operating Agreement. Thus, under the noncompete clause in the Operating Agreement, Dr. Finley, who is bound as the employee of his professional corporation, is prohibited from being employed as a physician for a competing practice in the designated parishes for a period of 24 months after the termination of the corporation's membership interest in TGC. Injunctive relief enforcing the noncompete clause in the Operating Agreement against Dr. Finley was properly granted.
Appellants also assigned as error the trial court's footnote finding that Dr. Finley would not be an "employee" in his proposed new position with Community Health Systems. However, our decision affirming the application of the law in effect on September 1, 2003, renders this assignment moot.
CONCLUSION
For the reasons explained, the judgment of the trial court is affirmed, with costs of this appeal assessed against the appellants.
AFFIRMED.
NOTES
[1] La. Act 2003, No. 428 is a substantive amendment of La. R.S. 23:921 and is to be applied prospectively only. John Jay Esthetic Salon, Inc. v. Preskitt, XXXX-XXXX (La.App. 4th Cir.2/23/05), 898 So. 2d 538, writ denied, XXXX-XXXX (La.6/24/05), 904 So. 2d 743; Sola Communications, Inc. v. Bailey, 2003-905 (La.App. 3d Cir.12/10/03), 861 So. 2d 822, writ denied, XXXX-XXXX (La.3/19/04), 869 So. 2d 858. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557063/ | 673 F. Supp. 1410 (1987)
Carl FOGARTY, Plaintiff,
v.
UNITED MINE WORKERS OF AMERICA HEALTH AND RETIREMENT FUNDS, Joseph Connors, et al, Trustees, Defendants.
Civ. A. No. 86-0129-B.
United States District Court, W.D. Virginia, Big Stone Gap Division.
November 24, 1987.
Hugh F. O'Donnell, Castlewood, Va., for plaintiff.
Campbell, Young & Crewe, Wytheville, Va., Gerald E. Cole, Jr., Washington, D.C., for defendants.
MEMORANDUM OPINION
GLEN M. WILLIAMS, District Judge.
This suit involves a dispute between a miner and the Trustees of a miners' pension fund. The miner complains that the Trustees wrongfully denied him pension benefits by failing to give his claim a full and fair review. The court finds that the Hearing Officer's decision to exclude nondocumentary evidence was arbitrary and capricious and that her decision to deny a pension was not supported by substantial evidence. Accordingly, the court orders the Trustees to award the miner a pension.
I.
The plaintiff in this suit is Carl E. Fogarty, a 62-year old former miner who worked in the bituminous coal industry between 1941 and 1983. Fogarty applied for a pension under the United Mine Workers of America (UMWA) 1974 Pension Plan. The 1974 Plan requires a person to have ten full years of signatory service in the bituminous coal industry in order to qualify for a pension. The Field Service Office responsible for processing Fogarty's application denied him a pension because he failed to produce evidence that he had ten years of signatory service. The Service Office gave him credit for only 9 and ¾ years of service. Fogarty requested a hearing to appeal the denial.
At the hearing, the dispute centered on the evidence Fogarty presented to gain credit for an additional quarter to fulfill the ten year requirement. The year in question is 1969. The Plan requires a miner to have received at least $3,429.00 for 1969 in order to get a full year of credit. Because Fogarty needed only one more quarter to qualify, he needed only one fourth of that amount, or $857.25. Unfortunately, his classified signatory wages totaled *1411 only $814.76 as shown by Social Security Administration (SSA) records.
Fogarty, however, had non-documentary evidence showing that he had earned more than was reflected by the SSA records. Fogarty states that he worked for the Double M Coal Company for 5½ days in 1969. These wages totalled $162.00, which is enough to place him above the threshold for pension eligibility. Mr. Fogarty also proffered the testimony of two witnesses to further support his claim. One witness was the owner of the Double M Coal Company who verified that Fogarty had earned $167.00 in wages as a welder. The other witness was Charles Stapleton who stated that one of the days in 1969 when Fogarty worked for Double M, Stapleton had found Fogarty on the road in a disabled vehicle. Stapleton stated that he took Fogarty to the mines where he was able to work one-half day, accounting for part of the 5½ day claim.
Fogarty conclusively established that the SSA records relied on by the Hearing Officer were inaccurate. For example, he presented a check from Metco Company dated October 22, 1976 that did not appear in the SSA wage records. Fogarty also presented documentary evidence from Western Mining Company showing wages received but not reflected in SSA records. Finally, Fogarty demonstrated that his copy of his earnings record did not coincide with UMWA's copy. This record stated employment at companies for which he never had worked.
The Hearing Officer obtained more evidence ex parte. She called Clyde Mullins, the owner of Double M, but could only reach the bookkeeper, Patti Needham. Ms. Needham advised the Hearing Officer that Double M did not have any records on Carl Fogarty although they did have records on other employees. Ms. Needham went on to confirm that Clyde Mullins, the owner, did remember that Mr. Fogarty worked for him but did not remember the dates. She further told the Hearing Examiner that, occasionally, when someone only works for a few days, Double M will report wages as miscellaneous wages and, consequently, not pay Social Security taxes. The Hearing Examiner also ex parte contacted the UMWA District 28 Office to ascertain the rate of pay for an underground welder in 1969. She was told that there was no such classification at that time, but that someone classified as an outside welder was paid $4.47 per hour in 1969.
Fogarty's contention that he was not afforded a full and fair hearing is primarily based upon an evidentiary rule adopted by the Hearing Examiner. She ruled she could only accept documentary proof and not sworn testimony. Unless a person could present documentary proof, such as SSA records, actual book records, payroll stubs or other documentary evidence, sworn testimony, including affidavits and statements, was not admissible to prove that a person earned wages toward a pension. Fogarty also claims that he was not afforded a full and fair hearing because he did not have an opportunity to cross-examine Ms. Needham, the bookkeeper for Double M Coal Company, who was contacted ex parte by the Hearing Examiner, and did not have an opportunity to cross-examine or check on the information obtained from UMWA District 28.
II.
When reviewing a decision of the UMWA Pension Fund, a district court is limited to determining whether the decision was arbitrary or capricious, supported by substantial evidence or contrary to law. See Horn v. Mullins, 650 F.2d 35, 37 (4th Cir.1981). Although a court must presume SSA wage records accurately reflect an individual's earnings, see 42 U.S.C.A. § 405(c)(4)(B) (1983), it can consider "additional substantive evidence." See Wilkett v. Davis, 442 F. Supp. 505, 510 (E.D.Okla.1977).
The key issue in this case is whether the Hearing Officer properly excluded non-documentary evidence. She repeatedly stated that she had to go by the Plan and needed check stubs, payroll records, tax records, SSA records, etc., to support her findings. In Paragraph 9 of her decision of July 8, 1986, the Hearing Officer stated:
*1412 Appellant has not established proof of earnings at Double M Coal Company in the year 1969. Credit cannot be given for this alleged employment without proof of earnings of hours worked (Article IV B(1)(a) of the 1974 Pension Plan). Proof of earnings may be established through payroll records, W-2 forms, pay statements or other documents of a similar nature. Affidavits may be used in conjunction with other substantive proof of earnings to verify an applicant's type of work performed. Affidavits, in themselves, do not constitute sufficient proof of employment.
The court believes the Hearing Officer acted arbitrarily and capriciously by excluding non-documentary evidence. There is no support for this rule. The parties have provided the court with copies of the Bituminous Coal Wage Agreement of 1984; the UMWA 1974 Pension Plan, and the Summary Description of the 1974 Pension Plan. Neither these documents nor the defendants' brief discusses this alleged rule. In fact, the record establishes to the contrary that the Hearing Officer is entitled to receive such evidence. On page eleven (11) of the Summary Plan Description,[1] the following quotation is found:
You can bring someone to present your case at the hearing, or you can present your case yourself. You can also bring witnesses to vouch for periods of employment for which you have no written records. (Emphasis added)
Furthermore, case law supports the rule that a statement from an employer is evidence that must be considered as proof of wages. Perzio v. Combs, 2 EBC 2239 (W.D.Pa.1981). In Perzio the Funds disallowed time claimed by Perzio, the pension applicant, because the owner of the mine did not support Perzio's claim, and his evidence was believed over and above evidence presented by the UMWA Local Union 850. In Perzio the court stated as follows:
[T]he 1950 Pension Plan provides that evidence other than employer statements may be credited only if the alternative evidence provides a sufficient basis for calculating pension credit under the Plan.
Id. at 2240. The court, therefore, gave credence to the fact that a statement of an employer is to be credited whereas statements of co-workers who have claimed to work with the claimant are not so credited.
Applying the appropriate evidentiary rule, this court must now consider whether substantial evidence exists to support the finding of the Funds in this case. As previously stated, Fogarty's sworn testimony is supported by both his employer and a witness who has no apparent interest in this case. These statements explain why Fogarty worked only one-half (½) day on one of the days he claims. Fogarty's testimony is also bolstered by the bookkeeper's statement that the records of persons who only work a few days are occasionally included in miscellaneous wages and not subject to individual payroll statements. The bookkeeper also corroborates the statement of the owner. The reason that one would give credence to management testimony and not co-worker testimony is because one may assume that co-workers are more apt to be in collusion with their fellow workers. Management, on the other hand, is generally in opposition to the worker and less likely of collusion. It would therefore appear that a statement of the owner and manager would be the very best of evidence.
Of course, the fact remains that UMWA District 28 furnished an ex parte statement to the Hearing Officer to the effect that the amount of wages that Fogarty claims to have been paid did not coincide with the Union pay scale at that time. However, many small coal companies through the years have signed Union contracts and proceeded to pay their employees less than the Union scale. Wages that do not exactly coincide with the Union records may also *1413 have been paid through mistake or other innocent reasons. Accordingly, the court does not consider this minor wage discrepancy to be of much importance. It certainly does not amount to substantial evidence to overcome the overwhelming evidence supporting this claimant's assertion that he actually had the extra one-fourth year of credit toward his pension.
The court is of the opinion that the claimant has been ill treated in this case. The Hearing Officer found Fogarty to have earnings in the year 1969 in the sum of $814.76, whereas the amount that he needed to receive the one-fourth year credit was $857.25. The claimant cannot be faulted for the fact that no record existed, especially when the Plan provides for a way of obtaining evidence where no other evidence exists. The plaintiff followed that procedure to present evidence in this case. The exclusion of this evidence was arbitrary and capricious, and no substantial evidence exists to support the denial of the pension.
CONCLUSION
The court ORDERS the Trustees to award a pension to the miner in this rather unique case. Although the miner did not have documentary evidence of signatory service in 1969, the evidence that he did have, including the statement of his former employer, is sufficient to meet the stringent burden of proof required. This court's decision is not intended to give credence in every case to non-documentary evidence. Care should be taken to examine the peculiar facts of each case to ensure that justice prevails.
The Clerk is directed to send certified copies of this Memorandum Opinion to counsel of record.
NOTES
[1] 29 C.F.R. 2560.503(1)(b) (1987) provides that a claim procedure will be deemed reasonable only if it is described in the summary plan description. 29 C.F.R. 2520.102-3 requires the summary plan description to accurately reflect the contents of the plan. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557037/ | 30 So. 3d 1066 (2010)
STATE of Louisiana, Appellee,
v.
Brandi Roshell JONES, Appellant.
No. 45,034-KA.
Court of Appeal of Louisiana, Second Circuit.
January 27, 2010.
Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
Jerry L. Jones, District Attorney, Geary S. Aycock, Fred R. McGaha, Assistant District Attorneys, for Appellee.
Before CARAWAY, PEATROSS & DREW, JJ.
PEATROSS, J.
Defendant, Brandi Roshell Jones, was charged with one count of conspiracy to commit armed robbery and one count of armed robbery for an incident occurring on December 23, 2008. Defendant was also charged with one count of conspiracy to commit armed robbery and one count of armed robbery in connection with a separate incident occurring on December 1, 2008. After defendant entered a guilty plea to one count of armed robbery with a firearm, the remaining charges were dismissed. The trial court imposed an agreed upon sentence of 15 years at hard labor to be served without benefit of parole, probation or suspension of sentence. Defendant now appeals. For the reasons stated herein, Defendant's sentence is affirmed.
FACTS
On December 23, 2008, Defendant and two female accomplices robbed Rhonda Naron and Terry Esswein, two employees of a Zales jewelry store, when the employees were attempting to make a deposit in a night deposit box at a Chase Bank in Monroe, Louisiana. During the robbery, Defendant and the two accomplices were *1067 armed with a .9 mm handgun. When they were apprehended by the Monroe Police Department, they tried to flee the scene.
As previously stated, with respect to the events of that evening, Defendant was charged with one count of conspiracy to commit armed robbery, in violation of La. R.S. 14:26 and 14:64, and one count of armed robbery, in violation of La. R.S. 14:64. The bill of information mentions that Defendant was armed with a pistol with respect to the armed robbery count but does not mention the firearm enhancement statute, La. R.S. 14:64.3, as a provision under which Defendant was charged. The bill also charges Defendant with one additional count each of conspiracy to commit armed robbery and armed robbery for a separate incident occurring on December 1, 2008.
After initially entering a plea of not guilty to the charges in the bill of information, Defendant appeared before the trial court on April 20, 2009, and entered a guilty plea to one count of armed robbery committed with a firearm in exchange for the trial court dismissing the remaining charges pending against her and for an agreed upon minimum sentence of 15 years at hard labor. The following exchange took place between Defendant and the trial judge prior to his acceptance of the plea bargain agreement:
BY THE COURT: You won't offend me if you interrupt me, I promise you. On your form it should say, "I" and it'll say "Brandi Jones," hereby plead guilty to the crime of Armed Robbery. Is that correct?
BY MS. JONES: Yes, sir.
BY THE COURT: And that's with a firearm, that's why it's fifteen years. You understand it goes from minimum of ten years to fifteen years when you have a firearm or dangerous weapon. Do you understand that?
BY MS. JONES: Yes, sir.
Additionally, prior to taking the plea, the trial judge asked the State for the applicable statute and penalty, to which the State replied as follows:
Judge, 14:64 on the Armed Robbery and it's not less than ten nor more than ninety-nine years and if a firearm is used then there's an additional five year which has to be consecutive.
After the court informed Defendant of all of her applicable constitutional rights and confirmed with Defendant that she knowingly and intelligently waived those rights, Defendant submitted a guilty plea. Defendant then waived the sentencing delays and the trial judge imposed sentence as follows:
Okay. Then if you're waiving the delays then I will go ahead and sentence you to the agreed upon sentence at this time. In count number one, Armed Robbery with a Firearm, as it's charged, the court will sentence you to the agreed upon sentence of fifteen years at hard labor. That sentence is to be served without benefit of probation, parole or suspension of sentence and you are given credit for time served. The remaining charges are to be dismissed per plea and sentence.
DISCUSSION
Assignment of Error 1 (verbatim). The sentence imposed in this proceeding is an indeterminate sentence.
In Defendant's sole assignment of error, she complains that the sentence imposed by the trial judge is indeterminate because she did not receive a distinct sentence for the armed robbery count followed by a separate sentence for the firearm enhancement and, instead, received one aggregate sentence of 15 years at hard labor. In support of her argument, Defendant cites this court's opinions in State v. White, 42,725 (La.App.2d Cir.10/24/07), 968 So.2d *1068 901, and State v. Birch, 41,979 (La.App.2d Cir.5/9/07), 956 So. 2d 793.
In both State v. White, supra, and State v. Birch, supra, the defendants were convicted by juries of armed robbery with a firearm and received sentences of 35 years at hard labor and 30 years at hard labor, respectively. In neither case did the trial judge specify what portion, if any, of the defendants' sentences were imposed under La. R.S. 14:64.3. As this court stated in State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So. 3d 685, "the majority in White, supra, found the sentences to be indeterminate because of the trial court's failure to impose the additional consecutive terms." The circumstances involving Defendant in the present case, however, are clearly distinguishable.
Defendant's plea and sentencing transcript clearly shows that the trial judge imposed, during sentencing, the additional consecutive term required by La. R.S. 14:64.3. As the transcript excerpts above reflect, Defendant understood that she was pleading guilty to armed robbery with a firearm and that she was to receive the minimum sentence of 10 years for the armed robbery count along with an additional 5 years under La. R.S. 14:64.3 due to the use of a firearm.
La. R.S. 14:64 defines the crime of armed robbery and provides a sentence of imprisonment at hard labor for not less than 10 and not more than 99 years without benefits. La. R.S. 14:64.3 is an enhancement provision which tacks on an additional 5 years at hard labor without benefits when the weapon used in the commission of armed robbery is a firearm. This additional 5 years is to be served consecutively to the sentence imposed under La. R.S. 14:64.
The statutes under which Defendant was sentenced required her to be sentenced to a minimum of 10 years plus a consecutive sentence of 5 years at hard labor. The record reflects that her 15-year hard labor sentence includes the additional 5 years required under La. R.S. 14:64.3. Accordingly, we find that Defendant's sentence of 15 years at hard labor without benefits is not an indeterminate sentence.
CONCLUSION
For the foregoing reasons, the sentence of Defendant, Brandi Roshell Jones, is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557054/ | CHERYLON CRAFT, SHERRY THOMAS DEWEY JACQUELINE CARBINE, AND DEBRA LUMPKIN INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED,
v.
THEOPHILUS THOMAS, CHAIRPERSON OF THE BOARD OF COMMISSIONERS FOR THE MORGAN CITY HOUSING AUTHORITY, AND ITS BOARD MEMBERS; WENDALL BOGAN, EXECUTIVE DIRECTOR OF THE MORGAN CITY HOUSING AUTHORITY, MORGAN CITY HOUSING AUTHORITY, CITY OF MORGAN CITY, ABC AND XYZ INSURANCE COMPANIES.
No. 2009 CA 1431.
Court of Appeals of Louisiana, First Circuit.
March 26, 2010.
Not Designated for Publication
HARRY E. CANTRELL, JR., New Orleans, LA., Attorney for Plaintiffs-Appellants, Cherylon Craft, et al.
JOHN DAVID ZIOBER, BRAD M. BOUDREAUX, Baton Rouge, LA, Attorneys for Defendants-Appellees, Theophilus Thomas, Wendall Bogan, and the Housing Authority of Morgan City.
BEFORE: CARTER, C.J., GUIDRY AND PETTIGREW, JJ.
CARTER, C. J.
Plaintiffs seek review of a judgment of dismissal with prejudice that was based upon abandonment pursuant to LSA-C.C.P. art. 561.[1] The issues for review are: (1) whether the trial court erred in dismissing plaintiffs' case for abandonment using the three-year period as opposed to the five-year period when plaintiffs indicated that their failure to take a step in the prosecution of the matter was caused by or was a direct result of Hurricanes Katrina and/or Rita; and (2) whether the trial court erred in dismissing plaintiffs' case with prejudice. Defendants argued and the trial court found that plaintiffs neither presented testimony nor introduced evidence showing that they did not intend to abandon their lawsuit or that they took some action to prevent abandonment of the suit within the required three-year abandonment period, and plaintiffs provided no evidence that the abandonment period was five years because the hurricanes had prevented them from taking some step in the prosecution of their case. See LSA-C.C.P. art. 561A(1) and (2). The trial court found that plaintiffs "failed to carry their burden of proof[.]"
After a thorough review of the record and relevant jurisprudence, we find that the trial court's oral reasons for judgment adequately explain the decision.[2] We agree with the trial court's findings that plaintiffs failed to prove that their failure to take a step in the prosecution of their case was "caused by or was a direct result of Hurricanes Katrina or Rita," and therefore, the trial court did not err in applying the three-year abandonment period provided in LSA-C.C.P. art. 561 A(1).[3] Thus, we find that the trial court's decision was legally correct. Furthermore, we find no manifest error in the trial court's factual findings. We also note that while the trial court's dismissal of plaintiffs' case with prejudice was partially in error, we recognize that because plaintiffs' suit sounds in tort, the dismissal whether with or without prejudice results in no different outcome. A dismissal without prejudice is considered as if suit has never been filed, but any new suit that plaintiffs might file would be prescribed. Accordingly, we do not exercise our authority under LSA-C.C.P. arts. 2164 to amend the trial court's judgment to substitute the words "without prejudice" for the words "with prejudice." See Jackson v. Moock, 08-1111 (La. App. 1 Cir. 12/23/08), 4 So. 3d 840, 846; Liner v. Ippolito, 08-0208 (La. App. 4 Cir. 8/20/08), 991 So. 2d 1150, 1152 n. 1, writ denied, 08-2288 (La. 1/9/09), 998 So. 2d 727.
For all these reasons, the trial court's judgment of dismissal due to abandonment is hereby affirmed in this summary opinion in accordance with Uniform Rules Courts of Appeal, Rule 2-16.2A(2), (5), (6), (7), and (8). All costs of this appeal are assessed against plaintiffs-appellants.
AFFIRMED.
NOTES
[1] Plaintiffs actually filed this appeal after their motion for new trial was denied following the rejection of their motion to set aside the judgment of dismissal. We consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits when it is clear from appellants" brief that the appeal was intended to be on the merits. See Carpenter v. Hannan, 01-0467 (La. App. 1 Cir. 3/28/02), 818 So. 2d 226, 228-229, writ denied, 02-1707 (La. 10/25/02), 827 So. 2d 1153. It is obvious from plaintiffs' brief that they intended to appeal the judgment on the merits of the dismissal for abandonment. Thus, we will treat the appeal accordingly.
[2] The issue of whether plaintiffs proved that the failure to take formal steps in the prosecution of their case was a direct result of Hurricanes Katrina and/or Rita is a mixed question of law and fact, which is subject to the manifest error standard or review. See Liner v. Ippolito, 08-0208 (La. App. 4 Cir. 8/20/08), 991 So. 2d 1150,1152, writ denied. 08-2288 (La. 1/9/09), 998 So. 2d 727. See also Hutchison v. SeaRiver Maritime, Inc., 09-0410 (La. App. 1 Cir. 9/11/09), 22 So. 3d 989, 992, writ denied. 09-2216 (La. 12/18/09), 23 So. 3d 946; Brown v. Kidney and Hypertension Associates, L.L.P., 08-0919 (La. App. 1 Cir. 1/12/09), 5 So. 3d 258, 264.
[3] The right to the five-year abandonment period in LSA-C.C.P. art. 561A(2) requires proof by a preponderance of the evidence that either Hurricanes Katrina or Rita directly caused the delay. Compensation Specialties, L.L.C. v. New England Mut. Life Ins. Co., 08-1549 (La. App. 1 Cir. 2/13/09), 6 So. 3d 275, 283, writ denied. 09-0575 (La. 4/24/09), 7 So. 3d 1200; Liner, 991 So.2d at 1153. Mere allegations of being affected by Hurricanes Katrina or Rita are insufficient to sustain the burden of proof under LSA-C.C.P. art. 561A(2). Compensation Specialties, 6 So.3d at 283; Brown, 5 So.3d at 268; Lambert v. Roussel, 07-1109 (La. App. 1 Cir. 5/2/08), 991 So. 2d 8, 13, writ denied. 08-1193 (La. 9/19/08), 992 So. 2d 933. In this case, the trial court record contains only the allegations of plaintiffs' current counsel that his and the former counsel's practices were affected by Hurricane Katrina; no evidence of these assertions was introduced into the record as required by LSA-C.C.P. art. 561A(2). Therefore, plaintiffs have not established entitlement to the longer period of abandonment provided by LSA-C.C.P. art. 561 A(2). See Compensation Specialties, 6 So.3d at 283. See also Liner, 991 So.2d at 1153-55; Fontenot v. Tidewater, Inc., 08-0180 (La. App. 4 Cir. 7/30/08), 990 So. 2d 1280, 1282. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3039737/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-2360
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Khounxai Phimvongsa, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: February 3, 2006
Filed: February 8, 2006
___________
Before ARNOLD, BYE, and SMITH, Circuit Judges.
___________
PER CURIAM.
Khounxai Phimvongsa pleaded guilty to being a felon and an unlawful user of
controlled substances in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
and (g)(3), and possessing marijuana with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1). The district court1 sentenced him to 46 months in prison and 3 years of
supervised release. On appeal, Phimvongsa’s counsel has moved to withdraw and
filed a brief under Anders v. California, 386 U.S. 738 (1967).
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
Phimvongsa’s plea agreement contains a valid appeal waiver. See United States
v. Andis, 333 F.3d 886, 889-90 (8th Cir.) (en banc), cert. denied, 540 U.S. 997 (2003).
Having reviewed the record independently pursuant to Penson v. Ohio, 488 U.S. 75
(1988), for any nonfrivolous issues not covered by the appeal waiver, we enforce the
waiver, dismiss this appeal, and grant counsel’s motion to withdraw.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1557231/ | 30 So.3d 271 (2010)
Larry BURNS
v.
INTERSTATE BRANDS CORPORATION.
No. WCA 09-705.
Court of Appeal of Louisiana, Third Circuit.
February 3, 2010.
*273 James Felix Scott, III, Guillory, Scott & Associates, Metairie, LA, for Defendant/Appellant Interstate Brands Corporation.
Maria Anna Losavio, Losavio Law Firm, Alexandria, LA, for Plaintiff/Appellee Larry Burns.
Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
EZELL, Judge.
Interstate Brands Corporation appeals a judgment from the Office of Workers' Compensation alleging the workers' compensation judge erred in the awards of certain penalties and the assessment of court costs. The claimant, Larry Burns, answered the appeal claiming the workers' compensation judge erred in failing to find that he is permanently disabled and in finding that vocational rehabilitation was not raised as an issue at trial. He also claims the trial court erred in failing to award legal interest and asks for additional attorney fees.
FACTS
Larry Burns injured his back in May 1996, while loading bread when he was employed by Holsum Bakery, an Interstate Brands Corporation company. A 1998 judgment ruled that Mr. Burns was entitled to temporary total disability (TTD) benefits and all reasonable and necessary medical expenses.
On January 26, 2000, Dr. Louis Blanda, Mr. Burns' treating orthopedic surgeon, performed a three-level discectomy and decompression at L3-4, L4-5, and L5-S1. The surgery was necessitated by the work injury. Immediately after surgery, Mr. Burns complained of numbness in his left arm and hand with neck pain. Dr. Blanda suspected that Mr. Burns may have carpal tunnel syndrome which could have been caused by IV fluids creating swelling in the wrist and pinching a nerve. He explained that it might be a double crush syndrome in which you have lesions in two parts of the body which give you symptoms in the same part of the body. In this case, it was pinched nerve in the neck from the previous injury and a pinched nerve in the wrist.
On August 24, 2004, Mr. Burns filed a disputed claim for compensation claiming that recommended bilateral facet injections for cervical and upper extremity *274 pain had not been authorized. Thereafter, Mr. Burns amended his claim several times to add additional claims.
On May 18, 2006, Interstate Brands also filed a disputed claim for compensation claiming that Mr. Burns was no longer entitled to indemnity benefits because he had been released to return to work. Interstate Brands further claimed that it had paid more than the 520 weeks of maximum supplemental earnings benefits (SEB) payable under law.
A trial was held on November 18, 2008. The workers' compensation judge (WCJ) made several rulings following the trial. He first determined that any cervical problem that Mr. Burns was having was neither related to the 1996 accident nor the 2000 surgery. The WCJ found that there was a showing of symptoms early on in the left wrist of carpal tunnel syndrome, that the problems were associated with the 2000 surgery, and that the employer failed in its investigation of this matter. The WCJ awarded a $2,000 penalty.
The WCJ also found that Interstate Brands established that Mr. Burns was at maximum medical improvement. The WCJ concluded that Mr. Burns failed in proving that he could not perform any type of work, so the employer was entitled to convert TTD benefits to SEB. The WCJ further found that Mr. Burns had received in excess of 520 weeks of SEB and he was no longer entitled to any type of benefits.
The WCJ also determined that Mr. Burns made a demand for Viagra at least by the filing of the fourth amended petition. There was no evidence the employer had ever explored the relationship of the erectile dysfunction to the work injury. A $2,000 penalty was awarded.
A $2,000 penalty was also awarded for the failure of Interstate Brands to pay the bill of Dr. Joseph Gillespie, a pain management specialist. An additional $2,000 penalty was awarded for failure to pay the proper rate for medical mileage reimbursement.
The WCJ finally held that Mr. Burns never raised the issue of failure to provide vocational rehabilitation. The WCJ further found that, regardless, Mr. Burns would not have been entitled to a penalty because the law does not allow a penalty for failure to provide vocational rehabilitation. An attorney fee in the amount of $4,500 was awarded to Mr. Burns.
Interstate Brands appealed the judgment. It argues that the WCJ erred in assessing penalties for failure to authorize treatment for Mr. Burns' left-hand pain and for failing to authorize Viagra. It also claims that the trial court abused its discretion in assessing all costs to it.
Mr. Burns answered the appeal. Mr. Burns asserts that the WCJ erred in failing to find that he is permanently and totally disabled. He claims that the WCJ erred in finding that the issue of vocational rehabilitation was not raised at trial and in not ordering proper vocational rehabilitation and penalties and attorney fees. He also claims that the WCJ erred in failing to award legal interest. Mr. Burns also requests an increase in attorney fees.
DISABILITY
Mr. Burns admits that he is no longer temporarily and totally disabled but claims that he is now permanently and totally disabled. Mr. Burns suggests that not only does he have physical and psychological issues that impede his ability to return to work, he is also restricted by his educational limitations. He points out that he has had two back surgeries and remains in constant pain. His lumbar spine injury has affected his left leg and caused radiculopathy. He has also experienced sleep disturbance, bladder urgency, and *275 sexual dysfunction problems. Since the second surgery, his left arm and hand have been affected.
A WCJ's finding regarding a claimant's disability is a factual finding that is entitled to great weight and should only be overturned when there is manifest error. Winford v. Conerly Corp., 04-1278 (La.3/11/05), 897 So.2d 560; Vermilion Parish Police Jury v. Williams, 02-12 (La. App. 3 Cir. 7/3/02), 824 So.2d 466.
In order to prove entitlement to temporary total disability benefits or to permanent total disability benefits, a claimant must demonstrate by clear and convincing evidence that he is physically unable to engage in any employment, including working while in any pain. La.R.S. 23:1221(1)(c) and (2)(c). Disability is a question of fact. Jones v. Universal Fabricators, 99-1370 (La. App. 3 Cir. 2/9/00), 758 So.2d 856, writ denied, 00-742 (La.5/12/00), 762 So.2d 13
Gibson v. Shaw Global Energy Servs., 04-547, p. 6 (La.App. 3 Cir. 10/27/04), 885 So.2d 707, 712, writ denied, 04-2920 (La.2/4/05), 893 So.2d 876.
The evidence indicates that Mr. Burns had functional capacity evaluations (FCE) in 2002 and 2005. Both evaluations indicated that Mr. Burns could perform medium-duty work.
In his deposition of October 5, 2007, Dr. Blanda indicated that he had seen Mr. Burns on three occasions since the last deposition on July 14, 2006. In both depositions, Dr. Blanda testified that Mr. Burns was at maximum medical improvement and that he could return to work at medium duty with the restrictions set forth by the FCEs. Dr. Blanda also opined that the pain Mr. Burns was experiencing in his left arm and hand did not limit him from working. Dr. Blanda explained that Mr. Burns is better since the surgery but he is still going to have back pain and his back will never be normal. He continued to express his opinion that medium-duty work was appropriate for Mr. Burns.
At Dr. Blanda's referral, Mr. Burns started seeing Dr. Gillespie for pain management in 2002. Dr. Gillespie treated Mr. Burns with cervical epidural injections, SI joint injections, and oral medication. In a letter dated September 16, 2004, to Broadspire, the insurer's case manager, Dr. Gillespie noted that Mr. Burns was at maximum medical improvement as of January 2004 and was placed on light to sedentary duty. Dr. Gillespie also thought that Mr. Burns was a good candidate for a conditioning program which should be followed by an FCE. In March 2005, Dr. Gillespie performed an SI joint injection on Mr. Burns. He reviewed the FCE and limited Mr. Burns to medium-duty activities.
Mr. Burns attended a conditioning program at Miller Physical Therapy under the direction of Mr. Wilvan Miller, a licensed physical therapist. During the course of the program, Mr. Miller noted that Mr. Burns had increasing strength and flexibility. For about a month, Mr. Burns did tolerate all exercises well with mild complaints of pain and aches. After about a month, Mr. Burns did not attend the sessions on a frequent basis. Mr. Burns explained that the exercises started aggravating him after a while. Mr. Miller stated that Mr. Burns' body was very deconditioned when he started the program. Mr. Miller did not think that Mr. Burns could have performed medium or light-duty work but did agree that he could perform sedentary work. During his testimony, Mr. Burns even admitted he could perform a job in which he could alternate between standing and sitting.
*276 Dr. Michael Berard is a psychologist who has been treating Mr. Burns since 2007 for depression. Dr. Berard testified that Mr. Burns could not resume full-time employment when he initially began seeing him. However, Dr. Berard further stated that Mr. Burns' mental status subsequent to treatment does not prohibit him from working.
The evidence is clear that Mr. Burns is capable of working. Consequently, he was entitled to SEB and has exhausted his right to those benefits. La. R.S. 23:1221(3)(d).
VOCATIONAL REHABILITATION
Mr. Burns argues that the trial court erred in finding that vocational rehabilitation was not raised at trial. Mr. Burns claims that the issue was raised at trial without objection by the defense attorney, and therefore, the pleadings were expanded to include this issue.
Louisiana Code of Civil Procedure article 1154 provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended. LSA-C.C.P. art. 1154. However, according to the editor's notes to Article 1154, this sentence does not contemplate the adding of an issue not pleaded, but rather allows the pleading of material facts for an issue pleaded only generally or as a legal conclusion. A timely objection to an attempt to enlarge the pleadings, coupled with the failure to move for an amendment to the pleadings, is fatal to an issue not raised by the pleadings. Barker v. Loxco, Inc., 432 So.2d 975 (La.App. 1st Cir.1983); Gar Real Estate & Ins. Agency v. Mitchell, 380 So.2d 108, 109 (La.App. 1st Cir.1979).
For introduction of evidence to automatically enlarge the pleadings under Article 1154, the evidence admitted must not be pertinent to any other issue raised by the pleadings. If the evidence was admissible for any other purpose, it cannot enlarge the pleadings without the express consent of the opposing party. Bourque v. Koury, 95-286 (La.App. 3rd Cir.11/2/95), 664 So.2d 553, 555; Snearl v. Mercer, 99-1738 (La.App. 1st Cir.2/16/01), 780 So.2d 563, 572, writs denied, 01-1319 & 01-1320 (La.6/22/01), 794 So.2d 800 & 794 So.2d 801. When a particular claim has not been alleged, even if evidence supporting that claim is admitted without objection, if that evidence has relevance to another issue, it cannot be said to have enlarged the pleadings to allow the court to rule on such a claim. See Harris v. Cola, 98-0175 (La.App. 1st Cir.5/14/99), 732 So.2d 822, 825; Boudreaux v. Terrebonne Parish Police Jury, 477 So.2d 1235 (La.App. 1st Cir.1985), writ denied, 481 So.2d 133 (La.1986).
Barham & Arceneaux v. Kozak, 02-2325, pp. 16-17 (La.App. 1 Cir. 3/12/04), 874 So.2d 228, 241-42, writ denied, 04-930 (La.6/4/04), 876 So.2d 87 (emphasis in original).
Neither the initial claim form nor any amending petitions filed by Mr. Burns requested vocational rehabilitation or pled the failure of the employer to provide vocational rehabilitation. The only mention at the hearing itself was a question to Mr. Burns about whether a vocation rehabilitation counselor had ever provided him with a list of jobs. While there may be some mention in the medical records of possible vocational rehabilitation, these records *277 were introduced regarding Mr. Burns' disability status.
No direct evidence or testimony on the issue of vocational rehabilitation was offered. Although an employee is entitled to vocational rehabilitation when he cannot earn wages equal to what he earned before the accident pursuant to La. R.S. 23:1226, there is no indication that Mr. Burns ever requested vocational rehabilitation. The issue was not raised until a post-trial brief was filed on Mr. Burns' behalf. The WCJ was correct in his ruling that the issue of vocational rehabilitation was not pled and should not be considered at this time.
PENALTIES
Interstate Brands contests the award of penalties for both the failure to authorize treatment for the left-hand pain and the failure to authorize payment of the Viagra prescription.
The purpose of imposition of penalties and attorney fees is to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41. This court, in Johnson v. Transamerica Waste Co., 99-190, pp. 9-10 (La.App. 3 Cir. 6/2/99), 741 So.2d 764, 770, stated the following:
In order to avoid the imposition of penalties, an employer must reasonably controvert the workers' compensation claimant's right to benefits. La. R.S. 23:1201(F). The test to determine if the employer has fulfilled its duty is whether the employer or his insurer had sufficient factual and medical information to reasonably counter the factual and medical information presented by the claimant. Brown v. Texas-La. Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885; Thibodeaux v. L.S. Womack, Inc., 94-1375 (La.App. 3 Cir. 4/5/95), 653 So.2d 123.
The determination of whether an employer or insurer should be cast with penalties and attorney fees in a workers' compensation action is essentially a question of fact subject to the manifest error or clearly wrong standard of review. Authement v. Shappert Eng'g, 02-1631 (La.2/25/03), 840 So.2d 1181.
Left-Hand Pain
Interstate Brands alleges that it reasonably controverted Mr. Burns' claim for benefits for his left-hand pain because there are two different physicians who did not relate his symptoms of hand pain to the original accident.
The WCJ recognized these two doctors' opinions but stated that there was nothing in the records to indicate why they came to that conclusion. The WCJ noted that the employer never brought any information to these doctors that indicated that Dr. Blanda thought it could be a complication associated with the insertion of the IV. The WCJ observed that the expert orthopedic surgeon he appointed to examine Mr. Burns, Dr. Karl Bilderback, testified that anything that causes swelling can cause carpal tunnel syndrome.
It must also be recognized that the record is clear that Mr. Burns awoke from the 2000 surgery complaining of numbness in his left arm and hand. This was not a symptom that he had experienced before the surgery. As of the trial, he continued to have pain and discomfort in his left hand. We find no error in the WCJ's decision to award a $2,000 penalty for failure to properly investigate Mr. Burns' claim that the surgery caused his left arm and hand problems.
Viagra
Interstate Brands argues that the trial court erred in assessing it with penalties *278 for failure to authorize payment of a Viagra prescription prescribed by Dr. Blanda. Interstate Brands claims that there is no evidence that the claims for Viagra were presented to it for approval.
We have reviewed the record and agree with the WCJ that Dr. Blanda discussed the possibility that Mr. Burns' erectile dysfunction problem was associated with the surgery. Dr. Blanda's records also indicate that a request for Viagra, among other prescriptions, was sent to Juanita Mixion at Broadspire on June 22, 2005. The records also include a letter dated July 10, 2001, from an attorney who represented Mr. Burns previously. The letter was written to Dr. Blanda indicating that the employer was refusing to approve the Viagra prescription. There was sufficient evidence in the record for the WCJ to determine that the employer knew about the need for Viagra and its relation to the injury. We find no error in the WCJ's award of a $2,000 penalty for failure to approve the Viagra prescription.
COSTS
Interstate Brands claims that the WCJ erred in assessing it with all the costs. It claims that costs were assessed against it for issues raised by Mr. Burns on which he did not prevail.
Pursuant to La.Code Civ.P. art. 1920 the trial court may render judgment for costs against any party as it may consider equitable. A trial court's assessment of costs may be reversed by an appellate court only upon a showing of an abuse of discretion. Lambert v. Brookshire Grocery Co., 06-1001 (La.App. 3 Cir. 12/20/06), 945 So.2d 918.
Taking into consideration that Mr. Burns prevailed on a number of his claims, we find no abuse of discretion in the WCJ's assessment of all costs against Interstate Brands.
LEGAL INTEREST
Mr. Burns claims that the trial court erred in failing to award legal interest. He notes that the judgment is silent as to legal interest, so it is considered rejected by the trial court.
"It has long been the rule that interest cannot be recovered on a judgment which is silent as to interest." Smith v. Quarles Drilling Co., 04-179, p. 7 (La.10/29/4), 885 So.2d 562, 567. "An exception exists when interest is provided by statute." Id. Louisiana Revised Statutes 23:1201.3(A) does provide that an award for compensation carries with it an award for interest due from the date of each installment. However, La. R.S. 23:1201.3 "does not govern the calculation of interest on penalties and attorney fees in a workers' compensation judgment" because it is not considered compensation. Smith, 885 So.2d at 567. In order to receive interest on penalties and attorney fees, a party must pray for interest in his pleadings. Id.; Olivier v. Olivier Builders, 09-208 (La.App. 3 Cir. 9/9/09), 19 So.3d 573.
Mr. Burns' first supplemental and amending petition did specifically request legal interest on court costs, penalties, and attorney fees. Therefore, we award him legal interest on the judgment.
ATTORNEY FEES
Mr. Burns has asked for an increase in the attorney fees awarded in the trial court and also asks for additional attorney fees for the work performed in preparation of the appeal. The trial court awarded attorney fees in the amount of $4,500.
An award of attorney fees is within the discretion of the WCJ as long as it is supported by the record. Glaze v. Wal-Mart *279 Stores, Inc., 05-72 (La.App. 3 Cir. 6/1/05), 904 So.2d 944. A number of factors are used in determining the amount of attorney fees to be awarded which include the degree of skill and ability exercised, the amount of the claim, the amount recovered, and the amount of time devoted to the case. Id.
Although numerous depositions were taken and pleadings filed during the fouryear pendency of these disputed claims by the parties, we cannot say the WCJ abused its discretion in the award of attorney fees.
We do find that Mr. Burns is entitled to an additional amount of attorney fees for work necessitated by successfully defending Interstate Brands' appeal. We also find that while Mr. Burns was not successful on some of his issues raised by his answer to the appeal, he was successful on his claim for legal interest. We award an additional $3,500 in attorney fees for the work performed on appeal.
For the reasons stated, the judgment of the Office of Workers' Compensation is amended to include an award for legal interest. The judgment is also amended to include an award of $3,500 in additional attorney fees for the work necessitated by this appeal. Otherwise, the judgment is affirmed. All costs of this appeal are assessed against Interstate Brands Corporation.
AFFIRMED AS AMENDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858105/ | Woods v. Plaza Bank
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-021-CV
HENRI A. WOODS AND MARIA IRMA WOODS, INDIVIDUALLY,
AND HENRI A. WOODS, INC.,
APPELLANTS
vs.
PLAZA BANK, N.A. OF NEW BRAUNFELS, FORMERLY KNOWN AS
MBANK NEW BRAUNFELS, N.A.,
APPELLEE
FROM THE DISTRICT COURT OF COMAL COUNTY, 274TH JUDICIAL DISTRICT
NO. C91-322C, HONORABLE FRED A. MOORE, JUDGE PRESIDING
Appellants Henri A. Woods, Maria Irma Woods and Henri A. Woods, Inc.
(collectively, "the Woods"), appeal a deficiency judgment rendered against them in favor of
appellee Plaza Bank, N.A. of New Braunfels, F/k/a M-Bank New Braunfels, N.A. ("the Bank"),
for $27,076.99 in a suit on a commercial promissory note which the Woods signed and
guaranteed. In a single point of error, the Woods challenge the sufficiency of the evidence to
support the court's ruling that the Bank gave adequate notice to the Woods of the disposition of
certain collateral pursuant to section 9.504(c) of the Texas Business and Commerce Code. Tex.
Bus. & Com. Code Ann. § 9.504(c) (West 1991). We will affirm the trial court's judgment.
FACTS
Henri Woods and his wife, Maria Woods, decided to open a restaurant in New
Braunfels, Texas. At that time, the Woods already owned a restaurant in San Antonio, Texas,
and had been in the restaurant business for twenty-eight years. The Woods sought financing for
the new restaurant from Randall Haugh, president and loan officer of the Bank. The Bank
extended a secured loan to the Woods in the principal amount of $55,363.23, and the Woods
executed a promissory note ("the Note"). Additional collateral for the loan consisted of security
agreements covering a $38,000 certificate of deposit owned by Henri Woods' mother and all the
restaurant equipment owned by the Woods. The Bank also required personal guarantees on the
note from Henri and Maria Woods, individually.
The note was due on January 2, 1991. The Woods defaulted on the note and the
Bank eventually redeemed the certificate of deposit and sold the equipment collateral for $4,000
in a private sale. The Bank then filed suit against the Woods for the deficiency.
STANDARD OF REVIEW
The Bank had the burden of proving it acted in a commercially reasonable manner
in disposing of the collateral and in notifying the Woods of the proposed disposition. Gray v.
Federal Deposit Ins. Corp., 841 S.W.2d 72, 84 n.13 (Tex. App.--Houston [1st Dist.] 1992, writ
granted); see Greathouse v. Charter Nat'l Bank, 851 S.W.2d 173, 176-77 (Tex. 1992). Whether
notice pursuant to section 9.504(c) is "reasonable" is ordinarily a question of fact. Siboney Corp.
v. Chicago Pneumatic Tool Co., 572 S.W.2d 4, 6 (Tex. App.--Houston [1st Dist.] 1978, writ ref'd
n.r.e.); but cf. Wright v. Interfirst Bank Tyler, N.A., 746 S.W.2d 874, 876 (Tex. App.--Tyler
1988, no writ) (holding that whether notice of a public sale constitutes reasonable notice of a
private sale is a question of law).
Here, the Woods allege that any notice given did not indicate whether the sale was
to be public or private, and therefore it was legally insufficient to satisfy the statute. However,
the statute does not require that the notice specify which type sale will be employed. Hall v.
Crocker Equip. Leasing, Inc., 737 S.W.2d 1, 3 (Tex. App.--Houston [14th Dist.] 1987, writ
denied). The trial court found that the Bank reasonably notified the Woods pursuant to section
9.504(c). (1)
A "trial court's findings of fact are reviewable for legal and factual sufficiency of
evidence to support them. . . ." (2) Kinabrew, 589 S.W.2d at 146. In deciding a legal sufficiency
point, we must consider only the evidence and inferences tending to support the finding of the
trier of fact and disregard all evidence and inferences to the contrary. Alm v. Aluminum Co. of
Am., 717 S.W.2d 588, 593 (Tex. 1986), cert. denied, 498 U.S. 847 (1990); Garza v. Alviar, 395
S.W.2d 821, 823 (Tex. 1965). When considering factual sufficiency questions, we are required
to review all the evidence in the record, including any evidence contrary to the finding of the
court, and decide whether the judgment is so against the great weight and preponderance of the
evidence as to be manifestly unjust. Beltran v. Groos Bank, N.A., 755 S.W.2d 944, 945 (Tex.
App.--San Antonio 1988, no writ) (citing In re King's Estate, 244 S.W.2d 660 (1951)).
DISCUSSION
In their sole point of error, the Woods contend the trial court erred in finding that
the Bank gave reasonable notification of the disposition of the equipment collateral as required by
section 9.504 (c) of the Texas Business and Commerce Code. (3) Specifically, the Woods argue that
certain letters from the Bank regarding the liquidation of the collateral did not constitute
"reasonable notification" under this section, and that the Bank's evidence of oral notification is
irrelevant because section 9.504(c) does not provide for oral notification.
The record reflects that the Bank mailed a letter to the Woods on January 15, 1991,
stating its purpose to establish a ten-day period for payment in full or for making other satisfactory
arrangements for the loan's repayment. The letter then stated:
Please be advised that you have until 3:00 p.m. on Friday, January 25, 1991, to
pay the principal balance plus accred [sic] interest on the note referenced above or
make other arrangements for the payment of the note. If the debt has not been
satisfied by 3:00 p.m. on Friday, January 25, 1991, then it is my intention to begin
the process of liquidating collateral securing said debt.
On January 29, 1991, the Bank mailed another letter to the Woods and to Henri's mother
informing them that because there had been no response to the previous letter, the Bank had
redeemed the certificate of deposit and applied it to the outstanding balance on the loan. The
letter then stated:
I am available for discussion of payment of the remaining balance plus interest of
the note as well as any possible sources that you might have for purchasing the
remaining collateral. Should the balance plus interest due not be paid in full from
the sale of collateral, the note will then be referred to our attorney, Mr. Kenneth
D. Brazle, for suit.
By letters dated March 26, 1991, the Bank informed the Woods that it had liquidated all the
equipment collateral by accepting the highest bid received as a result of private solicitation, and
had applied that amount to the outstanding balance.
At trial, Mr. Haugh testified that when Mr. Woods came to his office to inform him
he had closed the restaurant and would not be able to repay the loan, Mr. Haugh asked him about
assisting the Bank in finding potential buyers for the equipment collateral, but that Mr. Woods
refused. Mr. Haugh testified that he told Mr. Woods the equipment collateral would have to be
liquidated by offering it for sale. Mr. Haugh testified that as a result of his meeting with Mr.
Woods and the letters he subsequently sent to the Woods, he believed that Mr. Woods understood
that liquidation of the collateral would be through private sale.
Mr. Woods testified that Mr. Haugh never told him he had the right to submit a
private bid or to have others submit bids and that he did not understand he had such a right. He
further stated that he did not know whether there was going to be a public or private sale of the
equipment.
The purpose of the notice provision in section 9.504(c) is to allow a debtor an
opportunity to protect his interests in collateral by redeeming the property himself or by finding
other buyers for the property and otherwise ensuring the sale is reasonable. Knights of Columbus
Credit Union v. Stock, 814 S.W.2d 427, 430 (Tex. App.--Dallas 1991, writ denied). "The
important consideration is not whether the notice is written or oral, but whether it was reasonable
and whether it was received within the prescribed time period." Beltran, 755 S.W.2d at 946
(citations omitted); see MBank Dallas, N.A. v. Sunbelt Mfg., Inc., 710 S.W.2d 633, 635-36 (Tex.
App.--Dallas 1986, writ ref'd n.r.e.); see also Adcock v. First City Bank of Alice, 802 S.W.2d
305, 307 n.3 (Tex. App.--San Antonio 1990, no writ). Thus, "[l]ess than full and complete notice
is required . . . and whether the notice is oral or written is only one factor that should be
considered in deciding whether or not the notice is reasonable." MBank Dallas, 710 S.W.2d at
636.
When collateral is disposed of through private sale, section 9.504(c) merely
requires that the creditor give the debtor notice of the time after which the sale will occur. Tex.
Bus. & Com. Code Ann. § 9.504(c) (West 1991). The creditor is not required to specify whether
the sale will be private or public. Hall, 737 S.W.2d at 3; see Tex. Bus. & Com. Code Ann.
§ 9.504(c) (West 1991).
We find the Woods' argument that there was insufficient evidence to support the
trial court's finding that they were reasonably notified to be without merit. The trial court
reasonably could find from the evidence that the Bank notified the Woods that the equipment
would be sold after January 25, 1991, and that it gave them a fair opportunity to participate in its
disposition. We hold that there was factually and legally sufficient evidence from which the trial
court could conclude that the Woods were "reasonably notified" pursuant to section 9.504(c).
Accordingly, we overrule the Wood's point of error.
We affirm the judgment of the trial court.
Marilyn Aboussie, Justice
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Affirmed
Filed: December 8, 1993
Do Not Publish
1. Although designated a conclusion of law, this finding properly is labeled a finding of
fact. Siboney Corp., 572 S.W.2d at 6.
2. In their sole point of error, the Woods seem to challenge the trial court's finding of
reasonable notification both on sufficiency of the evidence grounds and as error as a
matter of law. This may result from the court's labeling of this finding as a conclusion of
law as opposed to a finding of fact. First Nat'l Bank v. Kinabrew, 589 S.W.2d 137, 146
(Tex. Civ. App.--Tyler 1979, writ ref'd n.r.e.) ("[c]onclusions of law are reviewable when
attacked as erroneous as a matter of law, but not when attacked on grounds of sufficiency of
the evidence to support them, as if they were findings of fact."). Nevertheless, we believe that
the Wood's point of error, read liberally, can be interpreted as properly challenging the trial
court's finding of fact on a factual and legal sufficiency basis. To the extent the Woods
challenge this holding as error as a matter of law, however, the point is overruled.
3. Section 9.504(c) states in relevant part:
(c) Disposition of the collateral may be by public or private proceedings
and may be made by way of one or more contracts. . . . Unless
collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, reasonable notification of
the time and place of any public sale or reasonable notification of the time
after which any private sale or other intended disposition is to be made
shall be sent by the secured party to the debtor. . . .
Tex. Bus. & Com. Code Ann. § 9.504(c) (West 1991) (emphasis added). | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1557308/ | STATE OF LOUISIANA,
v.
BRECK COWPERTHWAITE.
No. KA 09-1248.
Court of Appeals of Louisiana, Third Circuit.
April 7, 2010.
Not Designated for Publication.
JOHN FOSTER DeROSIER, 14th Judicial District Attorney, Carla Sue Sigler, Assistant District Attorney, P. O. Box 3206, Lake Charles, LA 70602-3206 (337) 437-3400, Counsel for Plaintiff/Appellee: State of Louisiana.
G. PAUL MARX, Attorney at Law, P. O. Box 82389, Lafayette, LA 70598-2389 (337) 237-2537, Counsel for Defendant/Appellant: Breck Cowperthwaite.
Court composed of SAUNDERS, DECUIR, and EZELL, Judges.
EZELL, Judge.
On August 24, 2006, the Defendant, Breck Cowperthwaite, was indicted by a grand jury with molestation of a juvenile, a violation of La.R.S. 14:81.2, and failure to register as a sex offender, a violation of La.R.S. 15:542.1. The Defendant pled guilty to molestation of a juvenile on January 27, 2009, and the remaining charge was dismissed. Additionally, the State agreed not to charge the Defendant as a habitual offender. The Defendant was sentenced on April 3, 2009, to serve fifteen years at hard labor with credit for time served.
On July 2, 2009, the Defendant filed a pro se "Motion for Out[-]of[-]Tirne Reconsideration of Sentencing" which was summarily denied. The Defendant subsequently filed a motion for an out-of-time appeal which was granted by the trial court on July 30, 2009.
Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), alleging that the record contains no pre-plea errors to support reversal of the Defendant's conviction and sentence in this matter. Also, appellate counsel asserts that the Defendant's maximum sentence is not excessive considering his prior criminal record and the benefits received from his plea agreement. We find there are no non-frivolous issues in this matter. Accordingly, the Defendant's conviction and sentence is affirmed and counsel's motion to withdraw is granted.
FACTS
At the Defendant's guilty plea hearing, the State established that between December 1, 2004, and September 30, 2005, the Defendant, a family friend of the juvenile Victim, born September 20, 1994, engaged in sexually inappropriate behavior with the Victim. The incidents occurred during times when the Defendant was alone with the Victim at his camper located in Sulphur, Louisiana.
ANDERS ANALYSIS
Pursuant to Anders, 386 U.S. 738, the Defendant's appellate counsel has filed a brief stating that he has made a conscientious and thorough review of the trial court record and could find no errors on appeal that would support reversal of the Defendant's conviction or sentence. Thus, counsel seeks to withdraw.
In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth circuit explained the Anders analysis:
When appointed counsel has filed a brief indicating that no nonfrivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court's review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.
Pursuant to Anders and Benjamin, we have performed a thorough review of the record, including pleadings, minute entries, the charging instrument, and the transcripts. The Defendant was properly charged in a grand jury indictment, was present and represented by counsel at all crucial stages of the proceedings, and entered a free and voluntary guilty plea after properly being advised of his rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969). Additionally, the Defendant received a legal sentence in conformity with his plea agreement.
Further, the Defendant received a substantial benefit from his plea agreement. Prior to his plea, the Defendant faced an additional sentence for failing to register as a sex offender of two to ten years, with or without hard labor, without benefit of parole, probation, or suspension of sentence, and a fine of not more than one thousand dollars. La.R.S. 15:542.1.4(A)(1).
Additionally, the Defendant avoided the possibility of being charged as a habitual offender. The record reflects that in 1988, the Defendant pled guilty to aggravated oral sexual battery, and no contest to two counts of oral sexual battery, all three offenses involving a juvenile. As such, the Defendant's sentence in the instant matter could have been significantly enhanced pursuant to La.R.S. 15: 529.1. Lastly, the Defendant's guilty plea waived all non-jurisdictional defects in the proceedings prior to the plea. State v. Crosby, 338 So.2d 584 (La.1976).
Our review of the record has revealed no issues which would support an assignment of error on appeal. Therefore, we affirm the Defendant's conviction and sentence, and Appellate counsel's motion to withdraw is granted.
CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED.
ORDER
After consideration of appellate counsel's request to withdraw as counsel and the appeal presently pending in the above-captioned matter;
IT IS HEREBY ORDERED that appellate counsel's motion to withdraw is granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557238/ | DIRK ANDREWS
v.
LOUISIANA PAROLE BOARD.
No. 2009 CA 1283.
Court of Appeals of Louisiana, First Circuit.
February 12, 2010.
Not Designated for Publication.
DIRK ANDREWS, Counsel for Plaintiff/Appellant In Proper Person.
JAMES D. "BUDDY" CALDWELL, Attorney General, WENDELL C. WOODS, PATRICIA H. WILTON, Assistant Attorneys General, Counsel for Defendant/Appellee, Louisiana Parole Board.
Before: DOWNING, GAIDRY, and McCLENDON, JJ.
GAIDRY, J.
SUMMARY DISPOSITION
The plaintiff-appellant, Dirk Andrews, a prisoner in the custody of the Louisiana Department of Public Safety and Corrections, filed a petition for habeas corpus in the 19th Judicial District Court, seeking judicial review of the decision of the Louisiana Parole Board (the Board) to revoke his parole. The action was initially referred to a commissioner for review pursuant to La. R.S. 15:1188.[1] Following its de novo review of the record, the trial court adopted the commissioner's recommendation and dismissed the plaintiff's action. We affirm.
Following his arrest for a drug charge while on parole, the plaintiff failed to report his arrest to his parole officer. Although the plaintiff was acquitted of the drug charge, after holding preliminary and final revocation hearings the Board determined that he had violated Condition 8 (engaging in criminal conduct by possession of a controlled dangerous substance) and Condition 18 (violating a special condition by failing to report his arrest to his parole officer) of his parole. The plaintiff admitted to violation of Condition 18, and the Board determined, based upon the evidence and testimony, that the plaintiff violated Condition 8. The Board voted to revoke the plaintiff's parole.
The plaintiff's right to appeal the decision of the Board is limited to the scope set forth in La. R.S. R.S. 15:574.11: whether he was denied a revocation hearing under the procedures set forth in La. R.S. 15:574.9. There is no evidence in the record supporting the plaintiff's claims of denial of due process relating to his revocation hearing. Finding the commissioner's report and the trial court's judgment adequately explain our decision, we affirm the judgment.
DECREE
We accordingly affirm the judgment of the trial court through this summary disposition, in accordance with Rules 2-16.2(A)(2), (4), (5), (6), (8), and (10) of the Uniform Rules of the Louisiana Courts of Appeal. All costs of this appeal are assessed to the plaintiff, Dirk Andrews.
AFFIRMED.
NOTES
[1] The office of the Commissioner of the Nineteenth Judicial District Court was created by LSA-R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. The Commissioner's written findings and recommendations are submitted to a district judge, who may accept, reject, or modify them. La. R.S. 13:713(C)(5). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557280/ | 30 So. 3d 856 (2009)
STATE of Louisiana
v.
Demarco R. WASHINGTON.
No. 09-CA-618.
Court of Appeal of Louisiana, Fifth Circuit.
December 29, 2009.
Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Brandon Kinnett, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
William Noland, Attorney at Law, Brandon, MS, for Defendant/Appellant.
Panel composed of Judges MARION F. EDWARDS, Jude G. GRAVOIS, and MARC E. JOHNSON.
JUDE G. GRAVOIS, Judge.
Appellant, Safety National Casualty Corporation (Safety), appeals the trial court's judgment rendered on April 17, 2009 denying its Motion to Set Aside Judgment of Bond Forfeiture and Petition for Nullity of Judgment. For the following reasons, we vacate the trial court's judgment of April 17, 2009 denying Safety's Motion to Set Aside and remand this matter for the signing of a proper judgment.
FACTS AND PROCEDURAL BACKGROUND
The record reflects that the defendant, Demarco R. Washington, was charged on March 6, 2007 by bill of information with a violation of LSA-R.S. 14:95.1, felon in possession of a firearm. On October 9, 2007, Safety, through its agent, # 1 Bail Bonds, executed an appearance bond with Mr. Washington as principal. Mr. Washington failed to appear for a hearing as noticed on May 27, 2008. On May 30, 2008, Mr. Washington appeared in court. At that hearing, the trial court reset Mr. Washington's case for trial on June 18, 2008.
On June 18, 2008, because Mr. Washington failed to appear in court, the trial court issued an attachment for his arrest. The *857 State then made an oral motion for forfeiture of Mr. Washington's bond. The bond forfeiture hearing was held on that date. According to the minute entry in the record, the State presented at least one witness, a deputy clerk of court, at the bond forfeiture hearing. Following the hearing, because Mr. Washington failed to appear in court on that date, the trial court granted the bond forfeiture. A judgment to that effect was rendered and signed on that date. Notices of the signing of this judgment were mailed to all parties on June 24, 2008, per LSA-R.S. 15:85(3)(a).
Four months later, on October 29, 2008, Safety filed a Motion to Set Aside Judgment of Bond Forfeiture and Petition for Nullity of Judgment. This motion was filed as a summary proceeding in Mr. Washington's criminal matter. This motion argued that Mr. Washington's failure to appear in court on May 27, 2008 required the State to issue a notice to the surety or its agent (Safety or # 1 Bail Bonds, respectively) for Mr. Washington's subsequent court date of June 18, 2008, as required by LSA-C.Cr.P. art. 344(B), and that the State had failed to issue such required notice to Safety or its agent. In an "amended" motion filed by Safety on December 3, 2008, Safety further argued that Mr. Washington failed to appear in court on June 18, 2008 because he was ill, a "nonforfeiture situation" under LSA-R.S. 15:87.
Safety's Motion to Set Aside was briefly argued before Judge Regan, the trial judge, on January 16, 2009, whereupon Judge Regan took the matter under advisement. On January 29, 2009, the parties again appeared before Judge Regan, who, in open court, orally denied Safety's Motion to Set Aside, ruling that the matter was "done properly." A written judgment to that effect was signed by Judge Rowan on April 17, 2009. This timely appeal followed.
On appeal, Safety argues that the trial court erred in not finding that 1) the State was required to issue a notice to the surety of Mr. Washington's court date as per LSA-C.Cr.P. art. 344(B); 2) the trial court erred in finding that the State, at the bond forfeiture hearing, had placed into evidence proof of notice to Safety, or to its Agent, for Mr. Washington's June 18, 2008 court appearance date, as required by LSA-R.S. 15:85(1); and 3) the trial court erred in denying Safety's Motion to Set Aside because the State failed to produce at the bond forfeiture hearing proper evidence of notice given to Safety, or its agent, of Mr. Washington's June 18, 2008 court appearance date.
The State argues in brief that Safety's Motion to Set Aside was untimely under LSA-R.S. 15:85(5) and (9). Regarding the merits of Safety's argument, the State noted that the appellate record was incomplete in that it failed to include the return on the subpoena that established that Safety had in fact received notice of Mr. Washington's June 18, 2008 court date. The State thereupon moved to supplement the appellate record with the return of such subpoena that appears in the district court record. This court granted the State's motion to supplement the appellate record. The State argues that the supplemented appellate record shows that Safety was in fact served with proper notice of Mr. Washington's June 18, 2008 court date.
In its reply brief, Safety opposed the granting of the State's motion to supplement the appellate record, arguing that the return on the subpoena that the State sought to include in the appellate record was not, as required by LSA-R.S. 15:85(1), actually introduced into evidence by the State at the bond forfeiture hearing conducted on June 18, 2008. Safety further argues that the motion to set aside the *858 bond forfeiture was timely, having been brought pursuant to LSA-C.C.P. arts. 2001-2004. Lastly, Safety argues that the April 17, 2009 written judgment that is the subject of this appeal is null and void because it was signed by a judge different from the judge who presided over the hearing on the motion and who orally ruled on the matter in open court.
DISCUSSION
As indicated above, the record clearly shows that Safety's Motion to Set Aside was argued to Judge Regan on January 16, 2009, who took the matter under advisement, and who orally denied the motion in open court on January 29, 2009. On April 17, 2009, the written judgment denying Safety's Motion to Set Aside was, however, signed by Judge Rowan. Citing Louisiana Paving Co., Inc. v. St. Charles Parish Public Schools, 593 So. 2d 892 (La. App. 5 Cir. 1992), Safety argues in its reply brief that the April 17, 2009 judgment signed by Judge Rowan denying its Motion to Set Aside is an absolute nullity because of the fact that it was signed by a judge (Judge Rowan) other than the judge who heard the motion, took the motion under advisement, and orally ruled on the motion (Judge Regan).
Safety's argument on this issue has merit. LSA-C.C.P. art. 1911[1] has been held to require that the judge who heard the matter and took it under advisement is the judge who is required by law to sign the judgment, unless the law provides otherwise. Bankers Ins. Co. v. State, 32,460 (La.App. 2 Cir. 10/27/99), 743 So. 2d 870, for example, held that a judgment of bond forfeiture must be signed by the same judge who ordered the bond forfeited. Though the judgment at issue here is on a motion to set aside a bond forfeiture, the situation here is very similar to that in Bankers. We have found no case or statute that suggests the law provides otherwise for the type of judgment under consideration here. As such, the April 17, 2009 judgment denying Safety's Motion to Set Aside is an absolute nullity. This matter must accordingly be remanded to the trial court for the signing of a proper judgment.
CONCLUSION
For the above reasons, the trial court's judgment of April 17, 2009 denying Safety's Motion to Set Aside is hereby vacated. This matter is hereby remanded to the trial court for the signing of a proper judgment. All other issues raised in this appeal are hereby pretermitted.
JUDGMENT VACATED; REMANDED.
NOTES
[1] LSA-C.C.P. art. 1911 provides, in pertinent part: Except as otherwise provided by law, every final judgment shall be signed by the judge.... | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557276/ | 673 F. Supp. 186 (1987)
AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Plaintiff/Counterdefendant,
v.
Kenneth CUPSTID and Nancy E. Cupstid, Defendants/Counterplaintiffs.
Civ. A. No. J86-0385(L).
United States District Court, S.D. Mississippi, Jackson Division.
August 21, 1987.
*187 Suzanne N. Saunders, Jackson, Miss., H. Michael Bagley, Clayton H. Farnham (admitted pro hac vice) Atlanta, Ga., for plaintiff/counterdefendant.
Phillip M. Nelson, Kirk & Nelson, Ridgeland, Miss., for defendants/counterplaintiffs.
MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
This cause is before the court on the motion of plaintiff/counterdefendant, American Manufacturers Mutual Insurance Company (Manufacturers Mutual), for partial summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. The defendants/counterplaintiffs, Kenneth Cupstid and Nancy E. Cupstid, have timely responded to the motion and the court has considered the memoranda with attachments submitted by the parties.
This declaratory judgment action was initiated by Manufacturers Mutual seeking a declaration that it is not liable to defendants for proceeds under a certain policy of homeowner's insurance issued by plaintiff to the Cupstids. The effective dates of the policy in question, policy number UP 231 082, were January 17, 1986 through January 6, 1987. On March 8, 1986, the property covered by the policy was destroyed by fire. The Cupstids submitted to Manufacturers Mutual a claim for damages sustained, pursuant to the policy, which, following an investigation of the cause and origin of the fire, was denied on June 2, 1986. The investigation conducted by Manufacturers Mutual revealed that the fire was incendiary in origin, indicated that the Cupstids intentionally caused or procured the fire to be set, and further indicated that the Cupstids had made material misrepresentations *188 in both the application for insurance and the proof of loss statement on the contents. After its denial of the Cupstids' claim under the policy, Manufacturers Mutual initiated this action seeking to avoid all liability under the policy and to have the policy declared void. The Cupstids counterclaimed for recovery of proceeds under the policy and for bad faith refusal to pay damages based on their allegation that Manufacturers Mutual's denial of benefits deliberately, willfully and recklessly deprived them of payments rightfully due them under the policy. It is as to the Cupstids' claim for punitive damages that Manufacturers Mutual seeks partial summary judgment.
On a motion for summary judgment, the burden is on the moving party to establish that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. C. Wright, The Law of Federal Courts, § 99, at 668 (4th ed. 1983). If the moving party is able to make out a prima facie showing as to the absence of a genuine issue of material fact, the opposing party cannot rest on the allegations of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. And, the party opposing summary judgment must produce significant evidence tending to support his position. In Celotex Corporation v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986), the United States Supreme Court noted that under the plain language of Rule 56(c), the entry of summary judgment is mandated against a party who, in response to a proper motion, "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." In order to establish a claim for punitive damages, the burden is on the Cupstids to show, by a preponderance of the evidence, both an absence of an arguable reason for Manufacturers Mutual's denial of the claim and malice or gross negligence or reckless disregard for their rights. See State Farm Fire and Casualty v. Simpson, 477 So. 2d 242, 253 (Miss.1985); Aetna Casualty and Surety Company v. Day, 487 So. 2d 830 (Miss.1986).
In Davidson v. State Farm Fire and Casualty Co., 641 F. Supp. 503 (N.D. Miss.1986), on facts substantially similar to those in the case sub judice, the court granted partial summary judgment in favor of the insurer on the issue of punitive damages. The court there recognized that the focus of the inquiry on a motion for summary judgment for punitive damages is "whether there is proof sufficient to raise an issue of material fact regarding the extreme nature of the insurance company's conduct or whether as a matter of law the insurer is entitled to judgment on the `bad faith refusal' claim." Davidson, 641 F.Supp. at 506-07. An arguable reason for the denial of an insured's claim, such as will insulate the insurer from a subsequent claim for punitive damages, has been defined as "one in support of which there is some credible evidence. There may well be evidence to the contrary. A person is said to have an arguable reason for acting if there is some credible evidence that supports the conclusion on the basis of which he acts." Blue Cross and Blue Shield of Mississippi v. Campbell, 466 So. 2d 833, 851 (Miss.1984) (Robertson, J. concurring). One such arguable reason exists where the insurance company, at the time of its denial, knew of substantial facts supporting an arson defense. In such a case, "punitive damages are inappropriate and may be dismissed via the Rule 56 procedure." Davidson, 641 F.Supp. at 507 (citing State Farm Fire and Casualty Co. v. Simpson, 477 So. 2d 242 (Miss.1985)). Elements of a claimed defense of arson consist of evidence that the fire was incendiary, that the insured had a motive for burning his home, and that the insured or his agent had an opportunity to burn the dwelling. Davidson, 641 F.Supp. at 507 (citations omitted).
In the present case, an investigation was commenced by Manufacturers Mutual immediately upon its learning of the Cupstids' loss. Initially, C.W. Satterfield, Branch Claims Manager of Manufacturers Mutual, referred the claim to Joe Kitchens, a claims adjuster, for investigation and adjustment. *189 Kitchens met with the Cupstids at the scene of the fire loss on the morning of March 10, the Monday following the fire, and began an investigation which lasted several days. Kitchens contacted an independent investigation agency, Aid Consulting Engineers, Inc. [Aid], for the purpose of performing an investigation into the cause and origin of the fire. This independent investigation was conducted by John T. Lynch and W.H. Lute, who, at the conclusion of their investigation, determined that the fire was of an incendiary origin, that it was intentionally caused with a petroleum product and that there were at least three points of origin of the fire: the living room, the upstairs den and the dining room.[1] In addition to Aid's investigation, the Jackson Fire Department conducted its own investigation as to the cause or origin of the fire which, according to the deposition testimony of Joseph Graham, an individual with the fire department who was personally involved in the investigation, concluded that the fire was the result of arson and that the Cupstids were the primary suspects.
According to Manufacturers Mutual, it was also learned that the Cupstids had a possible financial motive for burning the dwelling, based on information that three separate accounts obtained by the Cupstids with Unifirst Federal had been forceably closed due to overdrafts by the Cupstids, and that a builders risk policy which the Cupstids had carried on the dwelling had been previously cancelled for non-payment of premiums as the result of their check's having been returned unpaid.
With regard to "opportunity" to burn the dwelling, Joe Kitchens admitted in his deposition testimony that Manufacturers Mutual had no "conclusive proof" that either Kenneth or Nancy Cupstid physically set the fire themselves. In fact, there was some evidence that the Cupstids were in Louisiana at the time of the fire.[2] At the same time, however, Kitchens explained that he had received information from an individual who identified herself to him as Evelyn Duncan, which indicated that the Cupstids were directly involved in the fire and had arranged for the fire to be set. According to Kitchens, Duncan related to him in several telephone calls that she had been at the home of June Richardson, Mrs. Cupstid's mother, on or about the date of the fire and had overheard a conversation in which Mr. and Mrs. Cupstid said that they had to burn their residence since they could no longer make the payments. Duncan also implicated Larry Cupstid, Kenneth Cupstid's brother, and another individual, Verna Riser, as having been involved in the setting of the fire, and Duncan indicated to Kitchens that those two individuals would have been at the scene of the fire. Joseph Graham, in his deposition, explained that although the Cupstids were in Louisiana at the time of the fire, that was not unusual since, in some arson cases, the owner/occupants are absent when the fire is set, and instead, have someone set it for them.
In addition to the events surrounding the actual fire, Manufacturers Mutual asserts that it based its decision to deny benefits in part on certain alleged misrepresentations by the Cupstids in both the application for insurance and their proof of loss statement. With reference to the application misrepresentations, Manufacturers Mutual discovered that construction of the Cupstids' residence was not complete at the time it issued the policy, despite an alleged representation by the Cupstids to the effect that it was complete. Further, the Cupstids failed to disclose on the application that a previous builders risk policy obtained by them had been cancelled for non-payment of premiums. As to the proof of loss statement, the investigation into the fire revealed that certain of the contents items claimed by the Cupstids to have been lost in the fire were not located in the home. That is, the investigators were unable to find any evidence of the location of or existence of certain items of clothing which *190 the Cupstids listed on the proof of loss. These misrepresentations, according to Manufacturers Mutual, void the policy and hence its obligations thereunder.
In response to plaintiff's motion, the defendants have not set forth any facts which demonstrate that triable issues exist on the issue of punitive damages. They have presented no evidence, by affidavit or otherwise, which would tend to establish the absence of a legitimate or arguable reason for denial of their claim or that the conduct of Manufacturers Mutual was so egregious as to justify the imposition of punitive damages or the consideration by the jury of that issue. They simply assert that there exists a material issue of fact as to whether the fire was deliberately set by the Cupstids or unknown parties or whether it was in fact a result of spontaneous combustion of a flammable stored in their residence. They have presented no evidence to support the latter hypothesis and do not dispute the findings of the various investigations conducted of the fire. They do deny having been responsible for the setting of the fire, and in this vein urge that summary judgment is inappropriate inasmuch as Manufacturers Mutual has failed to demonstrate conclusively that they intentionally burned the dwelling. Further, they state that it is a matter of proof as to whether the misrepresentations purported to have been made by them were material and deliberate. They do not deny having made the misstatements, but claim that they were unintentional and inadvertent. All of these issues, they contend, are matters which are in good faith in controversy between the parties and can only be decided by a trial of this case on the merits.
There may well be a dispute between the parties as to whether the fire which caused the loss of the Cupstid residence was intentionally set and, if so, by whom, and further as to issues regarding the materiality or deliberate nature of certain misrepresentations alleged to have been made by the Cupstids. These issues however, while relevant on the issue of the availability of policy proceeds, do not preclude the granting of summary judgment on the issue of punitive damages. In Davidson, supra, the court distinguished between a claim for wrongful denial of benefits and an insurer's bad faith refusal to pay benefits. A denial is wrongful when it is ultimately determined that the insured is entitled to proceeds under the terms of the policy and the facts of the loss. Davidson, 641 F.Supp. at 506. But if the insurer had a legitimate or arguable reason to deny the claim, the suit would still be one for wrongful denial but the insured would be limited to recovering damages available under the policy terms. Id. Conversely, if the insurer had no arguable reason for denying the claim, then the denial amounts to a bad faith refusal and a separate cause of action for punitive damages may exist. Under the facts presented in the case sub judice, Manufacturers Mutual's denial of benefits to the Cupstids may be proven at the trial of this cause to have been wrongful, i.e., it may ultimately be required to pay the policy proceeds. Nevertheless, the question here is not whether the denial of the Cupstids' claim was wrongful, "but whether its conduct amounted to gross negligence so as to be in reckless disregard for the rights of the plaintiffs or whether it acted with malice toward the same." Id. at 510. In this regard, Manufacturers Mutual's denial of benefits on the basis of arson was a denial based on an arguable reason. There was abundant evidence to support its conclusion that the Cupstids, or someone acting on their behalf, were responsible for the fire which caused the loss, including inter alia, reports of three investigations which concluded that the fire had been intentionally set and which pointed to the Cupstids as the prime suspects, information from the individual identified as Duncan that the Cupstids were directly involved in the setting of the fire,[3] and other *191 evidence tending to show various misrepresentations made by the Cupstids in connection with the application for insurance and the proof of loss. And, while Manufacturer Mutual's belief that the fire was the result of arson, and that the Cupstids were responsible for that fire, "may be factually incorrect, it is not an unreasonable one, and the court is of the opinion that it does not rise up to the level of conduct required by law to support a bad faith refusal claim." Davidson, 641 F.Supp. at 510.
Moreover, the Cupstids' assertion that issues as to the origin of the fire and the materiality and/or deliberateness of misrepresentation are matters which are in good faith in dispute between the parties supports this court's conclusion. The Mississippi Supreme Court has held that when an insured is not entitled to a directed verdict on the underlying claim against the insurer, the issue of bad faith punitive damages should ordinarily not be submitted to the jury. See Southern United Life Ins. Co. v. Caves, 481 So. 2d 764 (Miss. 1985). Here, the Cupstids freely admit the existence of a dispute, a "good faith" dispute as to the underlying contract claim. Consequently, they cannot plausibly contend for the existence of a viable bad faith claim. See also Horton v. Hartford Life Insurance Co., 570 F. Supp. 1120 (N.D. Miss.1983) (dispute as to whether claimant disabled arising from conflicting doctor's reports sufficient to bar punitive damages award); O'Connor v. Equitable Life Assurance Society of U.S., 592 F. Supp. 595 (N.D.Miss.1984) (arguable reason may exist where doctor's statement raises factual issue of disability).
At trial, "the plaintiffs will be given the opportunity ... to establish whether the denial of their claim was wrongful and whether they are entitled to contractual damages. But where, as here, there is no issue of material fact as to their entitlement to ... punitive damages, summary judgment is appropriate" and is granted in favor of Manufacturers Mutual.
NOTES
[1] The first report by Aid was dated April 2, 1986 and provided to Manufacturers Mutual before its denial of the Cupstids' claim. A second report by Aid was dated December 9, 1986.
[2] While the whereabouts of the Cupstids at the time of the fire is in dispute, for purposes of this motion, the issue of whether the Cupstids were in Louisiana or in Jackson is immaterial.
[3] The statement by Joseph Kitchens that Duncan told him that the Cupstids had said they were responsible for the fire is hearsay and not admissible on the issue of whether the Cupstids were responsible for the fire. However, "this is not to say that [Manufacturers Mutual] could not consider it in deciding whether to pay the claim." State Farm Fire and Casualty Company v. Simpson, 477 So. 2d 242, 251 (Miss.1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557262/ | STATE FARM FIRE & CASUALTY CO., ET AL.,
v.
JIMMY CHARLES BOSLEY, ET AL.
No. 09-804.
Court of Appeals of Louisiana, Third Circuit.
February 3, 2010.
Not Designated for Publication.
H. ALAN McCALL, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P. Counsel for Defendants/Appellees: Jimmy Charles Bosley Kathleen Rose Jackson Bosley.
BONITA K. PREUETT-ARMOUR, KOBY D. BOYETT, Armour Law Firm Counsel for Plaintiffs/Appellants: State Farm Fire & Casualty Co., Catherine Garr Brumwell, Matthew Brumwell.
Court composed of DECUIR, PETERS, and CHATELAIN, Judges.
CHATELAIN, Judge Pro Tempore.[*]
Insurer and its insureds appeal the trial court's judgment which sustained an exception of no cause of action in favor of the defendants who constructed and sold a home to the insureds and dismissed their claims against the defendants. We affirm the dismissal of the plaintiffs' claims against the defendants, but for reasons other than those contained in the trial court judgment.
FACTS AND PROCEDURAL HISTORY
Catherine and Matthew Brumwell purchased a home from Jimmy and Kathleen Bosley (the Defendants). Mr. Bosley, Gregory Norsworthy, and/or Norsworthy Construction Co., Inc. were the general contractors that constructed the home. Approximately seven months after the Brumwells purchased the home, a fire occurred in the attic which caused extensive fire and smoke damage to the home and its contents. The Brumwells were forced to live elsewhere while the home was repaired and had to replace much of their personal property.
State Farm Fire and Casualty Company (State Farm), which insured the Brumwells' home pursuant to a homeowners' policy, made payments for repairs, replacement of personal property, and living expenses on behalf of the Brumwells. State Farm and the Brumwells (the Plaintiffs) filed suit against the Defendants and others, seeking to recoup the amounts State Farm paid on the Brumwells' behalf and the deductible the Brumwells paid. The Defendants filed exceptions of no right of action, no cause of action. After conducting a hearing, the trial court granted both exceptions but signed a judgment that granted only the exception of no cause of action.
The Plaintiffs appeal the trial court's judgment, contending that the trial court erred in finding that: 1) the New Home Warranty Act (NHWA) precludes recovery for damages and/or losses attributable to contents and interim living expenses; 2) the obligations of a seller are vitiated by the NHWA; and 3) the defect present in the Brumwells' home was susceptible to repair.
DISCUSSION
Relying on La.R.S. 9:3141-3150, the Defendants contend that the provisions of the NHWA excluded all of the Plaintiffs' claims against them. Their peremptory exceptions of no right of action, no cause of action are based on the Plaintiffs' failure to comply with requirements of the NHWA and the exclusivity of the remedies, warranties, and peremptive periods provided in the NHWA.
From the outset, we observe that the Defendants' peremptory exceptions of no right of action, no cause of action are pled in the same pleading with no distinction made between the two. That blending of exceptions was exacerbated when the trial court made no distinction in its oral reasons for judgment between the exceptions and granted both exceptions as though they were one. Notwithstanding the trial court's reasons, the trial court judgment which forms the basis for this appeal only granted the exception of no cause of action; the exception of no right of action was not mentioned.
Where the trial court's judgment differs from its oral reasons, the judgment prevails. Friendship Hunting Club v. Lejeune, 08-671 (La.App. 3 Cir. 12/10/08), 999 So. 2d 216, writ denied, 09-79 (La. 3/13/09), 5 So. 3d 121. Furthermore, when a judgment is silent as to a request for relief, it is presumed that the request was denied. M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La. 7/1/08), 998 So. 2d 16. Accordingly, we must review the trial court's judgment as sustaining the peremptory exception of no cause of action and denying the peremptory exception of no right of action. Defendants did not appeal the trial court's judgment. However, this court may notice on its own motion "the failure to disclose . . . a right or interest in the plaintiff to institute the suit." La.Code Civ.P. art. 927(B). We choose to notice the exception of no right of action.
Our review of the trial court's action with regard to each of these peremptory exceptions is de novo. See Preuett v. Preuett, 08-1060 (La.App. 3 Cir. 2/11/09), 4 So. 3d 260 (review of denial of an exception of no right of action is de novo review); Fink v. Bryant, 01-987 (La. 11/28/01), 801 So. 2d 346 (review of ruling sustaining an exception of no cause of action is de novo review). Because the peremptory exceptions of no cause of action and no right of action have distinct functions and have different evidentiary rules applicable to them, we will analyze these peremptory exceptions separately.
Peremptory exception of no cause of action
As used in the context of the peremptory exception, a "cause of action" refers to the operative facts which give rise to the plaintiff's right to judicially assert the action against the defendant. "The purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition." Scheffler v. Adams and Reese, LLP, 06-1774, p. 4 (La. 2/22/07), 950 So. 2d 641, 646; Fink, 801 So.2d at 348. No evidence may be introduced to support or controvert the exception of no cause of action. La.Code Civ.P. art. 931. The supreme court elaborated in Scheffler, 950 So.2d at 646 (citation omitted):
The exception is triable on the face of the pleadings, and, for purposes of resolving the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.
"The burden of demonstrating that a petition fails to state a cause of action is upon the mover." Id. at 647. The pertinent inquiry is whether, in the light most favorable to the plaintiff, and with every doubt resolved in the plaintiff's favor, the petition states any valid cause of action for relief. Id.
Our review of the Plaintiffs' petition shows neither their compliance nor noncompliance with the provisions of the NHWA. Accordingly, the face of the Plaintiffs' petition does not establish whether the NHWA excluded their claims against these defendants. Accordingly, based upon well-accepted methods of analysis, we find the trial court erred in sustaining the Defendants' exception of no cause of action.
Peremptory exception of no right of action
An exception of no right of action "determine[s] whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit." Indus. Cos., Inc. v. Durbin, 02-665, p. 11 (La. 1/28/03), 837 So. 2d 1207, 1216. The question presented is whether the "plaintiff has a right to bring the suit." Hood v. Cotter, 08-215, p. 17 (La. 12/2/08), 5 So. 3d 819, 829. "[E]vidence may be introduced to support" an exception of no right of action "when the grounds thereof do not appear from the petition." La.Code Civ.P. art. 931.
At the heart of the Defendants' peremptory exception of no right of action is their contention that the Plaintiffs have no right to bring this suit because of the provisions of the NHWA. The NHWA "establish[es] minimum required warranties and shall not be waived by the owner or reduced by the builder." La.R.S. 9:3144(C). It also provides "the exclusive remedies, warranties, and peremptive periods as between builder and owner relative to home construction[,] and no other provisions of law relative to warranties and redhibitory vices and defects shall apply." La.R.S. 9:3150.
The Defendants first argue that the Plaintiffs cannot take advantage of the NHWA because they failed to satisfy the notice requirements provided in La.R.S. 9:3145. Section 3145(A) requires that an "owner give the builder written notice, by registered or certified mail, within one year after knowledge of the defect, advising him of all defects and giving the builder a reasonable opportunity to comply with the provisions of this Chapter."
The Plaintiffs do not contend that they gave the notice required by La.R.S. 9:3145(A). Instead, relying upon four assertions, they argue the NHWA does not govern their claims.
The Plaintiffs first assert that although the items and damages specified in La.R.S. 9:3144 "are excluded from coverage under the NHWA because the NHWA provides the exclusive remedies between builder and owner relative to home construction only . . . these excluded claims/losses may be pursued against the builder outside the mandates of the NHWA" (Emphasis added). We find the Plaintiffs' argument misplaced because it fails to acknowledge that the NHWA "provides the exclusive remedies, warranties, and prescriptive periods as between builder and owner relative to home construction and no other provisions of law relative to warranties and redhibitory vices and defects shall apply." La.R.S. 9:3150. Moreover, it is clear that some of the damages the Plaintiffs seek to recover are specifically excluded by the Act. See La.R.S. 9:3143.
The supreme court addressed the Plaintiffs' claim in the present case in Carter v. Duhe, 05-390 (La. 1/19/06), 921 So. 2d 963. There the court stated that, "[w]ithout notice of defects . . . not only is the owner precluded from recovery under the NHWA, he is also precluded from any other theory of recovery because the NHWA provides the exclusive remedy between owners and new home builders." Id. at 968.
The Plaintiffs next argue the NHWA in no way applies to loss or damage which does not constitute a defect in the construction of the home by the builder. They then proceed to identify losses attributable to contents and rental expenses. Again, the Plaintiffs fail to acknowledge that the NHWA excluded these losses, as it specifically excludes "damage to personal property"; "[a]ny cost of shelter, transportation, food, moving, storage, or other incidental expense related to relocation during repair"; and "[consequential damages." La.R.S. 9:3141(B)(14), (15), and (17), respectively. Furthermore, the Plaintiffs' argument ignores La.R.S. 9:3144(B)(16) which excludes "[a]ny defect not reported in writing by registered or certified mail to the builder."
The Plaintiffs also contend that the Defendants are not a "builder," as defined by the NHWA, because they were identified as "Vendor," not builder, in the Cash Deed, which transferred title to the Brumwells and that their claims are asserted against the Defendants in their capacity as seller, not builder. Contrary to the Plaintiffs' argument, the NHWA contemplates the possibility that the builder and seller might be the same party. It defines builder as " any person . . . joint venture, or other entity which constructs a home . . . including a home occupied initially by its builder as his residence." La.R.S. 9:3143(1). See also Royer v. V. P. Pierret Constr., Inc., 02-263 (La.App. 3 Cir. 10/28/02), 834 So. 2d 1078, writ denied, 02-2880 (La. 1/31/03), 836 So. 3d 73 (holding that an arrangement whereby one entity built homes and another entity sold the homes constituted a joint venture and that the seller was a builder under the NHWA).
The Plaintiffs cite cases which they contend support their position; however, those cases are distinguishable because the builder and the seller were not the same. See Hollingsworth v. Choates, 42,424 (La.App. 2 Cir. 8/22/07), 963 So. 2d 1089 (the builder and seller was a limited liability corporation; however, the plaintiff sued the manager of the corporation in his individual capacity); see also Squyres v. Nationwide Housing Sys., Inc., 98-8 (La.App. 3 Cir. 6/3/08), 715 So. 2d 538 and Coussan v. Jim Tatman's Mobile Homes, Inc., 99-956 (La.App. 3 Cir. 12/15/99), 755 So. 2d 293 (the manufacturers and sellers of the mobile home were separate, unrelated entities).
In their last argument, the Plaintiffs assert that they were not required to give the Defendants notice and an opportunity to repair the damages caused by the defect, as required by La.R.S. 9:3145, because the defect at issue, a staple in an electrical wire, was destroyed in the fire and could not be cured or repaired, as contemplated by the NHWA. This argument ignores the obvious, i.e., defects in home construction often trigger events which destroy the "defects" and necessitate reconstruction of property destroyed as a result of the defect.
After reviewing the Plaintiffs' petition, the NHWA, and applicable jurisprudence, we find the Plaintiffs have failed to establish a right of action. Therefore, we reverse the trial court's denial of the Defendants' peremptory exception of no right of action.
DISPOSITION
The portion of the trial court's judgment that sustained the Defendants' peremptory exception of no cause of action is reversed. The Defendants' peremptory exception of no right of action is granted, and the trial court's dismissal of the Plaintiffs' claims against the Defendants is affirmed. All costs of in the trial court and this appeal are assessed to the Plaintiffs.
AFFIRMED.
NOTES
[*] Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557277/ | STATE OF LOUISIANA
v.
CHRISTOPHER S. GOODWILL
No. 09-996.
Court of Appeal of Louisiana, Third Circuit.
March 10, 2010.
Not Designated for Publication
JAMES E. BEAL, Louisiana Appellate Project, Counsel for Defendant/Appellant, Christopher S. Goodwill.
JOHN F. DeROSIER, District Attorney, CARLA S. SIGLER, Assistant District Attorney, Counsel for State of Louisiana.
Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.
CHATELAIN, Judge Pro Tempore.[*]
This criminal case involves a bare claim of excessiveness of sentence. We affirm.
FACTS
The State set forth the following facts at the time of the defendant's guilty plea. On December 27, 2007, the defendant, Christopher S. Goodwill, robbed a clerk at a Circle K Store in Sulphur, Louisiana, while armed with a knife. Approximately $60 was taken during the robbery. The defendant later gave a videotaped confession, admitting that he had robbed the store.
On February 15, 2008, the defendant was charged by bill of information with armed robbery, a violation of La.R.S. 14:64. The defendant pled guilty to the charge on October 20, 2008, and pursuant to the plea agreement, charges for possession of cocaine, obstruction of justice, and possession of drug paraphernalia in an unrelated docket, 5894-07, were nolle prossed. On February 18, 2009, the trial court sentenced the defendant to eighteen years at hard labor, without benefit of parole, probation, or suspension of sentence. The defendant then filed a motion to reconsider sentence on March 6, 2009, which was denied without a hearing.
DISCUSSION
In his sole assignment of error, the defendant argues that the trial court did not give sufficient consideration to the mitigating factors in the case, resulting in an excessive sentence. However, we note that the defendant did not raise this particularized issue in his motion to reconsider sentence, maintaining only that his sentence was unconstitutionally excessive. The defendant's failure to include a specific ground upon which a motion to reconsider sentence may be based precludes him from "raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review." La.Code Crim.P. art. 881.1(E). Accordingly, the defendant is limited to a bare claim of excessiveness in his appeal.
This court has set forth the following standard to be used in reviewing excessive sentence claims:
La.Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So. 2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So. 2d 124, writ denied, 00-0165 (La.6/30/00); 765 So. 2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So. 2d 957, cert. denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996).
State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So. 2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So. 2d 331.
To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:
[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So. 2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste, 594 So. 2d 1[, 3] (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook, 95-2784[, p. 2] (La.5/31/96), 674 So. 2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So. 2d 786, 789, writ denied, 03-562 (La. 5/30/03), 845 So. 2d 1061.
In the present case, the defendant pled guilty to armed robbery. The penalty for armed robbery is ten to ninety-nine years, without benefit of parole, probation, or suspension of sentence. La.R.S. 14:64. Thus, the defendant's eighteen-year sentence is significantly less than the maximum possible sentence and is on the low end of the sentencing range. Additionally, we observe that the defendant received an appreciable benefit from his plea agreement which resulted in the dismissal of charges for possession of cocaine, obstruction of justice, and possession of drug paraphernalia. As such, the defendant's sentencing exposure was greatly reduced.
At sentencing, the trial court noted that the defendant was a first-felony offender but that he had been arrested on several occasions, some of which were dismissed pursuant to the plea agreement. The trial court heard the testimony of the defendant's uncle and mother. The defendant's uncle asked for leniency because the defendant's mother was ill. He stated that the defendant was a hard worker with two children and three stepchildren and that the defendant was a special education student who was "kind of slow." The defendant's mother also asked for leniency, stating that the defendant was a follower and that he had followed the wrong crowd, one that was dealing with drugs. She testified that the defendant was on drugs at the time of the offense. The trial court agreed that the defendant had a drug problem.
The trial court then reviewed for the record the defendant's prior drug-related charges since 2003, including possession with intent to distribute and manufacture marijuana, possession of cocaine, and possession of marijuana. The trial court noted that the defendant did not take a lot of money during the present offense. However, the trial court also found that the defendant used it to buy drugs. The defendant informed the trial court that he did not have a juvenile record as indicated in his Presentence Investigation Report.
The trial court then concluded:
You remind me of people that I have represented before under similar kinds of circumstances and wondering what would be an appropriate sentence for a first-time offender. You are not actually a first-time offender because you have had some drug problems; but they got dismissed in return for your plea for this, for this charge.
In State v. Davis, 35,480 (La.App. 2 Cir. 1/23/02), 806 So. 2d 929, the second circuit affirmed a twenty-year sentence imposed on a seventeen-year-old, first-felony offender, who pled guilty to a charge of first degree robbery. He had initially been charged with armed robbery. In that case, the defendant donned a mask and, along with two young companions, entered the elderly victim's home from which she operated a store. The victim was held down at knife point and robbed of over $200 and some cigarettes.
In State v. Lewis, 08-1308 (La.App. 3 Cir. 4/1/09), 16 So. 3d 1, the defendant was sentenced to thirty years for the armed robbery of a video store. As reflected in the factual recitation in that case, the defendant robbed the store clerk at knife point and took the clerk's cell phone. In affirming the sentence, this court noted the defendant's prior juvenile record and extensive history of misdemeanor convictions. The defendant had dropped out of school in the tenth grade at the age of eighteen and had begun using marijuana. We further noted that, as a result of defendant's plea agreement, the State dismissed a charge of second degree kidnapping, thereby reducing his sentencing exposure.
After reviewing the record and considering the nature of the offense, the circumstances surrounding this offender, and a comparison of the sentences in similar cases, we conclude that the trial court individualized the sentence to this defendant. Although the defendant is a youthful, first-felony offender, his eighteen-year sentence for armed robbery is in the low range and is comparable to sentences imposed for similar crimes by similar offenders. Moreover, as noted above, the defendant received a significant benefit from his plea agreement. Therefore, we affirm the defendant's sentence.
DECREE
The defendant's sentence is affirmed.
AFFIRMED.
NOTES
[*] Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557247/ | 30 So. 3d 27 (2009)
Frederick GONZALES
v.
BUILD-A-BEAR WORKSHOP, INC. and Zurich North American Insurance Company.
No. 09-CA-368.
Court of Appeal of Louisiana, Fifth Circuit.
December 8, 2009.
*28 Joseph G. Albe, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
Richard L. Seelman, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JUDGE G. GRAVOIS
WALTER J. ROTHSCHILD, Judge.
In this suit for personal injuries, defendant appeals from a default judgment rendered in plaintiff's favor. The issue presented is whether the evidence introduced by the plaintiff, Frederick Gonzales, against defendant HA Logistics to confirm the default judgment was sufficient to establish a prima facie case under La. C.C.P. art. 1702. After reviewing the record and the applicable law, we find that the plaintiff failed to sustain his burden of proof for confirmation of the default judgment and we therefore must vacate the judgment and remand for further proceedings consistent herewith.
Factual and Procedural History
On March 10, 2005, Frederick Gonzales, an employee of Sundown Express, Inc., filed the instant petition for damages against Build-A-Bear Workshop, Inc. ("Build-A-Bear") and its insurer for injuries he sustained while delivering a bale of cotton to defendant's location at Lakeside Shopping Center in Metairie, Louisiana. Build-A-Bear subsequently filed an answer denying the allegations of the petition. Thereafter, the workers' compensation insurer for Sundown Express, Inc. filed a petition to intervene in the proceedings for benefits paid to Gonzales as a result of his injuries.
Discovery proceeded in this matter, and on June 18, 2008, defendant Build-A-Bear filed a third party demand against HA Logistics, Inc. based on a contract between the two entities regarding the movement of supplies for Build-A-Bear's business. Build-A-Bear asserted it was entitled to a defense and indemnity from HA Logistics for plaintiff's claim for personal injury pursuant to the terms of this contract. A copy of the agreement between the parties was attached to the third party demand.
On June 23, 2008, plaintiff filed a Supplemental and Amending Petition naming as defendant "HA Longistics, Inc." "HA Longistics, Inc." was served via certified mail pursuant to the Long Arm Statute on July 12, 2008. No answer was filed on behalf of this defendant, and the trial court entered a preliminary default on August 12, 2008. However, this default was subsequently vacated by the trial court as "HA Longistics, Inc." was not the proper defendant in these proceedings.
*29 The record also contains a Joint Motion for Partial Dismissal which was signed by the trial court on November 6, 2008 indicating that the claims between plaintiff and Build-A-Bear were settled and dismissing those claims, but reserving plaintiff's rights to proceed against HA Logistics, Inc.
On November 18, 2008, plaintiff filed a 2nd Supplemental and Amending Petition correctly naming HA Logistics, Inc. as defendant in the main demand. This defendant was served at its corporate address via certified mail pursuant to the Long Arm Statute on December 1, 2008, and no answer was filed on behalf of this defendant. The trial court entered a preliminary default against HA Logistics, Inc. on January 22, 2008. On January 29, 2009, the trial court confirmed the preliminary default and entered judgment against defendant, HA Logistics, Inc. in the amount of $211,384.65, together with costs and judicial interest from March 10, 2005.
HA Logistics, Inc. now appeals from this judgment on the basis of several assignments of error: that the trial court erred in finding plaintiff met his burden to establish a prima facie case pursuant to La. C.C.P. art. 1702; that the trial court erred in failing to quantify comparative fault of all parties prior to entering judgment; that the trial court erred in holding that judicial interest ran from the date of the original demand. Because we find merit in defendant's first assignment of error which requires us to vacate the judgment, it is unnecessary to reach the remaining assignments.
Applicable Law
A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C.C.P. art. 1702 A. For a plaintiff to obtain a default judgment, he must establish the elements of a prima facie case with competent evidence, as fully as though the defendant denied each of the allegations in the petition. The plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits. Schaff v. Cardinal Services, Inc., 00-1164 (La.App. 5 Cir. 2/14/01), 778 So. 2d 1278, 1280, writ denied, 01-1035 (La.6/1/01) 793 So. 2d 196, citing Thibodeaux v. Burton, 538 So. 2d 1001, 1004 (La.1989). When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment. La. C.C.P. art. 1702(B)(2). When the demand is based upon a claim for a personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony. La. C.C.P. art. 1702(D).
Standard of review
The determination of whether there is sufficient proof to support a default judgment is a question of fact and should not be disturbed on appeal unless it is manifestly erroneous. Ledet v. Moe, 03-745 (La.App. 5 Cir. 12/9/03), 864 So. 2d 643, 644. Where it is uncontested that entry of the default judgment was procedurally proper, appellate review is limited to determining whether there was sufficient evidence introduced at the default confirmation hearing to support the default judgment. Akerman v. Dawes, 94-757 (La.App. 4 Cir. 1/19/95), 658 So. 2d 1270, 1271-1272.
Prima Facie Case
In its first assignment of error, HA Logistics argues that plaintiff did not present *30 a prima facie case of liability or damages, citing La. C.C.P. art. 1702. While we pretermit the issue of whether the evidence submitted by plaintiff with regard to liability is sufficient to prove a prima facie case, we find the medical evidence to be insufficient to meet plaintiff's burden.
At the confirmation hearing, plaintiff submitted the following: excerpts from depositions of the corporate representatives of Build-A-Bear and Sundown Express, Inc., a copy of an agreement between HA Logistics and Build-A-Bear, plaintiff's wage records, certified copies of plaintiff's medical records and plaintiff's own testimony regarding the accident and his injuries.
Plaintiff testified that at the time of the accident herein, he was employed by Sundown Express, Inc. and was making a delivery to Build-A-Bear location in Lakeside Shopping Center. He identified his wage records and stated that he was paid based upon the number of and weight of deliveries he made every day. He stated that the cotton bale he was delivering to Build-A-Bear on the date in question weighed approximately 700 pounds. During this delivery, Build-A-Bear employees furnished him a furniture cart which was smaller than the cart usually used for this delivery and that the weight of the cotton broke the cart and the bale of cotton fell on top of him. Plaintiff was shown a copy of the agreement between HA Logistics, Inc. and Build-A-Bear and he testified he had never seen the agreement and no one had told him of the manner of making deliveries specified in the agreement. He testified he was not given training by HA Logistics on how to deliver the bales of cotton. He also testified that the bales of cotton did not arrive strapped onto a cart as indicated in the agreement.
Plaintiff briefly described the injury to his neck, the medical treatment he received, the amount of time he was out of work and his inability to continue to work as a delivery person. He also testified that he underwent surgery on his neck and described his level of pain as a result of this injury.
Plaintiff also submitted excerpts of the deposition testimony of two corporate representatives from Build-A-Bear. Julie Ann Phillips stated that she completed an accident report for plaintiff's injuries on March 16, 2004 and Jeffery Lynn Fullmer testified that Build-A-Bear entered into a contract with HA Logistics, Inc. in 2002 to deliver their products to their stores. Mr. Fullmer identified the contract in question as a true and correct copy and the contract was attached to his deposition. He stated that pursuant to the agreement, HA Logistics had the duty to communicate the method of delivery contained in the agreement to their independent contractors and failure to do so would be considered a violation of the agreement.
We first consider the issue of whether the medical evidence submitted by plaintiff is sufficient to meet his burden of establishing a prima facie case. To obtain a default judgment, one must establish the elements of a prima facie case with competent evidence as fully as though the defendant denied each of the allegations of the petition. Ventola v. Hall, 03-703 (La. App. 5 Cir. 11/12/03), 861 So. 2d 677. In a claim for personal injuries, La. C.C.P. art. 1702(D) states that "a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony."
None of plaintiff's treating physicians testified in this personal injury case and there were no sworn narrative reports offered in lieu of testimony. The medical records offered into evidence include certified copies of medical bills and statements, pharmacy receipts, health insurance claims, physician progress notes, letters *31 and reports and operating room reports. The only reference to causation in these records is contained in a letter from Dr. Stewart Altman to an insurer dated March 29, 2004, several weeks after the accident, that plaintiff's symptoms of mild spine and shoulder strain are causally related to the accident.
Plaintiff contends that it is not necessary to introduce either testimony or sworn narrative reports of his treating physicians to meet his burden of proof under La. C.C.P. art. 1702(D). Plaintiff relies on Oliver v. Cal Dive Intern., Inc., 02-1122 (La.App. 1 Cir. 4/2/03), 844 So. 2d 942, 945, writ denied, 03-1230 (La.9/19/03), 858 So. 2d 638 and writ denied, 03-1796 (La.9/19/03), 853 So. 2d 648, in which the First Circuit held that a physician's letters in the medical records that plaintiff could no longer continue in his profession were sufficient to establish prima facie proof of the treating physician's professional diagnosis. Plaintiff also relies on Arias v. Stolthaven New Orleans L.L.C., 07-650 (La. App 4 Cir. 3/19/08), 980 So. 2d 791, 803, reversed on other grounds, 9 So. 3d 815 (La.5/5/09), 08-1111, in which the Fourth Circuit adopted the ruling in Oliver and held that a prima facie case concerning medical issues may be made for default purposes under La. C.C.P. art. 1702(B)(2) without either oral physician testimony or a sworn narrative report thereof, depending on the quality of the evidence offered. In that case, the Court found that the trial court committed no error in receiving the certified medical records offered by the plaintiffs in support of the default confirmation.
Although other jurisdictions have found that the lack of a sworn narrative report required by La. C.C.P. art. 1702 does not invalidate a default judgment rendered on other evidence, this Court has repeatedly held otherwise. A line of jurisprudence from this Circuit supports a conclusion that the medical evidence presented in this case does not meet plaintiff's burden of presenting a prima facie case. In a similar factual situation, a panel of this Court held that a sworn narrative report or testimony of plaintiff's treating physician is necessary to establish the causal connection between plaintiff's accident and her injuries. Dufrene v. Carter, 05-335 (La.App. 5 Cir. 11/29/05), 917 So. 2d 1149, 1153. Further, this Court has held that physician's letter reports do not comply with the requirements of La. C.C.P. art. 1702(D). Campbell v. Kendrick, 556 So. 2d 140, 141 (La. App. 5 Cir.1990). The medical bills may be admissible to support the plaintiff's testimony as to the fact that plaintiff had surgery and the costs incurred, but inadmissible to show the services were necessary. Id. See also, Ventola v. Hall, 03-703, (La.App. 5 Cir. 11/12/03), 861 So. 2d 677, 681; Arias v. State Farm Mut. Auto. Ins. Co., 98-978 (La.App. 5 Cir. 3/10/99), 734 So. 2d 730.
We are bound to follow previous holdings from this Circuit that the type of evidence presented herein is insufficient to comply with the codal requirements for a default judgment. In the present case, we find that the evidence submitted by plaintiff with regard to causation and medical damages is not sufficient to prove a prima facie case. We conclude that plaintiff has failed to establish a prima facie case supporting the award of $211,384.65. Accordingly, we vacate and set aside the default judgment rendered in favor of plaintiff and we remand for further proceedings.
VACATED AND REMANDED
WICKER, J., concurs with reasons.
WICKER, J., concurs with reasons:
I agree that the judgment of the trial court should be vacated and that this case *32 should be remanded for further proceedings. However, I respectfully disagree with the analysis of the majority opinion for two reasons.
First, I believe that certified medical records should be sufficient to establish a prima facie default judgment so long as the records are admissible and demonstrate both an injury and a causal link between the plaintiff's injuries and the accident at issue. The First, Third, and Fourth Circuit Courts of Appeal adhere to this rule. See Assamad v. Percy Square and Diamond Foods, L.L.C., XXXX-XXXX (La.App. 1 Cir. 7/29/08), 993 So. 2d 644, 650; Bordelon v. Sayer, XXXX-XXXX (La. App. 3 Cir. 3/13/02), 811 So. 2d 1232, 1235-36; Goldfinch v. United Cabs, Inc., XXXX-XXXX (La.App. 4 Cir. 5/13/09), 13 So. 3d 1173, 1178. This Court does not.
The Fourth Circuit explicitly rejected our approach in Arias v. Stolthaven New Orleans, L.L.C., XXXX-XXXX (La.App. 4 Cir. 3/19/08), 980 So. 2d 791, 801-02, rev'd on other grounds, XXXX-XXXX (La.5/5/09), 9 So. 3d 815. The Arias court determined that the purpose of La. C.C.P. art. 1702(D) is to make it easier for a plaintiff to obtain a default, not to make the process more difficult by requiring sworn narrative reports rather than certified medical records. Arias, 980 So.2d at 802. The Fourth Circuit additionally noted that "there is nothing in [La. C.C.P. art. 1702(D)], expressed or implied, saying that oral physician testimony or a sworn narrative report in lieu thereof is the sine qua non of a prima facie case for default purposes." Id. at 803. I agree with this reasoning and believe that this Court should adopt the rule of the First, Third, and Fourth Circuits.
Second, I respectfully disagree with the majority's conclusion that the plaintiff's certified medical records failed to establish causation. To establish a prima facie case for default judgment, a plaintiff must demonstrate the causal connection between his injuries and the accident by introducing competent evidence establishing that it is more probable than not that the accident at issue caused his injuries. Hall v. Folger Coffee Co., XXXX-XXXX (La.App. 4 Cir. 10/1/03), 857 So. 2d 1234, 1248. If the plaintiff was in good health before the accident, but a disabling condition appeared and continuously manifested itself afterwards, causation should be presumed. Housley v. Cerise, 579 So. 2d 973, 980 (La. 1991).
Here, the plaintiff submitted certified medical records documenting his injuries and the medical treatment he received following the accident. Dr. Altman's certified medical report indicates he found a causal link between the plaintiff's injuries and the nature of the accident. Dr. Altman in his report concluded that the type of injuries suffered by the plaintiff, including strains in the cervical spine, right shoulder, thoracic spine, and lumbar spine, were consistent with the type of accident that occurred. At the hearing on the default judgment, the plaintiff's counsel did not ask the plaintiff whether he experienced shoulder and neck pain before the accident. However, the history portion of the plaintiff's certified medical records with Dr. Richard Hages indicates that the plaintiff had never previously injured his neck or back prior to this incident. In addition, Dr. Bradley Bartholomew drafted an office note on August 30, 2007 indicating that the plaintiff denied any previous medical history on his neck or back. Dr. Hages treated the plaintiff in 2006 and 2007. Dr. Bartholomew treated and performed surgery on the plaintiff in 2008. After considering both the presumption favoring causation and the manifest error standard of review, I believe this Court *33 should defer to the trial court's finding of causation in this case.
Nonetheless, I concur in the disposition of this matter because I believe that the trial court erred in admitting into evidence a deposition of Build-A-Bear's corporate representative and a deposition of Build-A-Bear employee Julie Ann Phillips. Both depositions were taken before HA Logistics was made a party to this suit. Under Louisiana law, depositions "may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof." La. C.C.P. art. 1450(A). To satisfy the reasonable notice requirement, the party desiring to take the deposition must notify every other party to the action before taking the deposition. La. C.C.P. art. 1438. Here, HA received no notice of the depositions because it had not been made a party to the suit at the time the depositions were taken. Accordingly, I believe that the trial court was manifestly erroneous in admitting deposition testimony taken prior to HA's involvement in this suit. See by analogy Silva v. Allen 256 So. 2d 447 (La. App. 4th Cir.1972) (holding that a deposition of the defendant was inadmissible against a co-defendant because the plaintiff deposed the defendant prior to adding the co-defendant to the lawsuit); Davlin v. Smalley, 554 So. 2d 763 (La.App. 3d Cir. 1989) (holding that a deposition was inadmissible against the appellants when the record demonstrated that appellants were not present at the deposition and appellants received no advance notice thereof).
For the foregoing reasons, I respectfully concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557309/ | 673 F.Supp. 723 (1987)
Edwin M. PFEISTER, Plaintiff,
v.
Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant.
Civ. A. 85-2153.
United States District Court, W.D. Pennsylvania.
November 10, 1987.
*724 Robert N. Pierce, Jr., Pittsburgh, Pa., for plaintiff.
Amy Reynolds Hay, U.S. Atty., Pittsburgh, Pa., for defendant.
MEMORANDUM OPINION
COHILL, Chief Judge.
This case is before us on cross-motions for summary judgment. The complaint requests review of the determination of the defendant Secretary of Health and Human Services denying plaintiff Edwin M. Pfeister disability benefits. For the reasons set forth below, the decision of the defendant will be affirmed. We will deny the plaintiff's motion for summary judgment and grant the defendant's motion for summary judgment.
I. BACKGROUND
The plaintiff, Edwin Pfeister, was born February 25, 1936. T.237. He completed high school through the ninth grade. Id. Prior to ceasing employment in 1978, plaintiff worked as a movie projectionist and janitor. Id. Plaintiff was last insured for disability purposes as of December 31, 1983.
Plaintiff originally filed an application for disability insurance benefits and Supplemental Security Income with the defendant on October 4, 1982, alleging disability since June 16, 1978, due to angina, silicosis, *725 diabetes, and a duodenal ulcer. On June 30, 1983, an Administrative Law Judge (ALJ) held that plaintiff was not entitled to benefits. The Appeals Council upheld the ALJ on October 27, 1983. Plaintiff did not further appeal or request a redetermination of the Secretary's final decision that he was not disabled on or before June 30, 1983, and that determination is not now before this court. 20 C.F.R. § 404.955, § 404.988; Domozik v. Cohen, 413 F.2d 5, 7-8 (3rd Cir.1969).
On November 1, 1983, plaintiff reapplied for disability insurance benefits and Supplemental Security Income under sections 216(i), 223, and 1614(a)(3) of the Social Security Act claiming severe angina pectoris, ulcers, and diabetes. 42 U.S.C. § 416(i), § 423, § 1382c(a)(3). An ALJ found plaintiff capable of continuing his janitorial duties and on May 23, 1985, rejected plaintiff's claim for benefits. This decision was affirmed by the Appeals Council on July 24, 1985. Plaintiff then appealed the Secretary's determination to this court.
On November 11, 1985, we granted the defendant's motion to remand for consideration of new mental impairment regulations established by the Social Security Disability Reform Act of 1984. The Appeals Council vacated its denial of benefits on January 31, 1986, and remanded the case to the ALJ. On May 29, 1986, the ALJ held a supplemental hearing and on October 29, 1986, rejected plaintiff's application for disability benefits. The Appeals Council affirmed the ALJ on March 19, 1987. On April 7, 1987, this court granted plaintiff's motion, pursuant to sections 205(g) and 1631(c)(3) of the Social Security Act, to reopen the ALJ's final determination that plaintiff is not disabled. 42 U.S.C. § 405(g), § 1383(c)(3). Thus, presently before this court is the ALJ's determination of October 29, 1986, that plaintiff has not been disabled since June 30, 1983.
II. DISCUSSION
In order to receive disability insurance benefits or Supplemental Security Income, one must be adjudged disabled by the Secretary. 42 U.S.C. § 423(a)(1)(C), § 1382. The Secretary will find a claimant disabled if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A), § 1382c(a)(3)(A).
To assist in evaluating the alleged disability of a claimant, the Secretary has provided the ALJ with a multi-step sequential analysis. 20 C.F.R. § 404.1520(a), § 416.920(a). The ALJ must determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment; (3) if the claimant has a severe impairment, whether it meets or equals the criteria listed in 20 C.F.R., pt. 404, subpt. P, app. 1; (4) if the impairment does not satisfy one of the listings, whether the claimant's impairments prevent him from performing his past relevant work; and (5) if the claimant is incapable of performing past relevant work, whether he can perform any other work which exists in the national economy, in light of his age, education, work experience, and residual functional capacity. 20 C.F.R. § 404.1520, § 416.920. If at any point in the review the ALJ determines that the claimant is or is not disabled, the inquiry must end. Id.; Santise v. Schweiker, 676 F.2d 925, 927 (3rd Cir.1982).
When reviewing a denial of disability benefits under the Social Security Act, we are concerned with two issues: (1) whether the Secretary applied the proper legal standards, and (2) whether the Secretary's findings are supported by substantial evidence. Friedberg v. Schweiker, 721 F.2d 445, 447 (3rd Cir.1983). In his motion for summary judgment before this Court, plaintiff requests a reversal of the ALJ's determination that plaintiff is not disabled and alleges three grounds of error: (1) the ALJ improperly failed to consider the application of impairment listing 12.07, (2) the ALJ improperly disregarded certain I.Q. score evidence resulting in his failure to apply impairment listing 12.05(C), and (3) the ALJ's finding that plaintiff is capable of *726 performing gainful and substantial work is not supported by substantial evidence. The defendant contends that the ALJ's determination is supported by substantial evidence.
Plaintiff's first assignment of error involves the third step in the ALJ's sequential analysis. The ALJ must consider whether the applicant's alleged impairment equals or exceeds in severity the impairments listed at 20 C.F.R., pt. 404, subpt. P, app. 1. 20 C.F.R. § 404.1520a(c)(2), § 416.920a(c)(2). The Listings of Impairments describe, for each of the major body systems, impairments which are considered severe enough to prevent a person from doing any gainful activity. 20 C.F.R. § 404.1525(a), § 416.925. If the ALJ determines that the applicant suffers from a listed impairment and that the requisite duration requirements are met, the applicant must automatically be found disabled without consideration of his age, education, and work experience. 20 C.F.R. § 404.1520(d), § 416.920(d).
Plaintiff argues that the ALJ failed to refer to Listing 12.07 of the Listing of Impairments in his decision and ignored its application to plaintiff's case. Listing 12.-07 provides;
Somatoform Disorders: Physical symptoms for which there are no demonstrable organic findings or known physiological mechanisms. The required level of severity for these disorders is met when the requirements in both A and B are satisfied.
A. Medically documented by evidence of one of the following:
1. A History of multiple physical symptoms of several years duration, beginning before age 30, that have caused the individual to take medicine frequently, see a physician often and alter life patterns significantly; or
2. Persistent nonorganic disturbance of one of the following:
a. Vision; or
b. Speech; or
c. Hearing; or
d. Use of a limb; or
e. Movement and its control (e.g., coordination disturbance, psychogenic seizures, akinesia, dyskinesia); or
f. Sensation (e.g., diminished or heightened).
3. Unrealistic interpretation of physical signs or sensations associated with the preoccupation or belief that one has a serious disease or injury.
B. Resulting in three of the following:
1. Marked restriction of daily activities
2. Marked difficulties in maintaining social functioning
3. Deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks in timely manner (in work settings or elsewhere); or
4. Repeated episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behavior).
20 C.F.R., pt. 404, subpt. P, app. 1.
Plaintiff argues that the facts underlying his application support a finding of condition 3 of part A and condition 1, 2, and 4 of part B, thus warranting a finding that he is disabled.
It is well established that an ALJ reviewing a claimant's request for disability insurance benefits should provide comprehensive and specific findings. Baerga v. Richardson, 500 F.2d 309, 312-13 (3rd Cir.1974), cert. denied, 420 U.S. 931, 95 S.Ct. 1133, 43 L.Ed.2d 403 (1975). See Cotter v. Harris, 642 F.2d 700, 704-05 (3rd Cir.1981). Should the ALJ fail to set forth detailed findings as to the basis of his decision, the case must be remanded. Smith v. Harris, 644 F.2d 985, 989 (3rd Cir.1981). A district judge may not speculate on findings that the ALJ failed to make. Id. Contrary to plaintiff's position, however, these guidelines do not provide the basis for a remand of this case.
There are nine categories of mental disorders, comprising impairment listings 12.01-.09, upon which a finding of disability may be based. 20 C.F.R., pt. 404, subpt. P, *727 app. 1. In order for a listing to be applied, and consequently an automatic finding of disability to be made, it must be determined that both section A and section B of that listing are met. 20 C.F.R., pt. 404, subpt. P, app. 1, para. A (Listings 12.05(a)-(c) and 12.09 provide for different methods of impairment determination).
Section A of each mental disorder listing sets forth symptoms that are uniquely related to that mental disorder "to medically substantiate the presence of a mental disorder" and that must be present in order for that listing to apply. Id. "The purpose of including the criteria in [Section] B ... of the listings for mental disorders is to describe those functional limitations associated with mental disorders which are incompatable with the ability to work." Id. The four functional limitations in Section B of each of the listed mental disorders are identical for Listings 12.01-.04, .05(d), and 12.06-.08. The only difference among the listed disorders is in the number of functional limitations that must be present in order for there to be a finding that the listing's Section B requirements are met. For example, Listing 12.02 relating to organic mental disorders requires a finding of two of the functional limitations in Section B while Listing 12.07 requires that three be present.
The psychiatric review forms attached to the ALJ's opinion in this case indicate that the ALJ reviewed the requirements for each listed mental impairment. For each of the listings, including Listing 12.07, a box is marked indicating that the ALJ found "No evidence of a sign or symptom CLUSTER or SYNDROME which appropriately fits with this diagnostic category." Thus, although the ALJ made no reference to this finding in his opinion, he did find that plaintiff presented no evidence of a somatoform disorder.
It is conceded that an argument could be made that the ALJ's finding that plaintiff demonstrated no symptoms of somatoform disorder is unsupportable. A somatic disorder is a "neurotic illness characterized by the presence of multiple somatic symptoms including those seen in classical conversion hysteria." Merck's Manual of Medical Diagnosis 1446 (1982). The essential features of somatic disorders are "physical symptoms suggesting physical disorder ... for which there are no demonstrable organic findings or known physiological mechanisms and for which there is positive evidence, or a strong presumption, that the symptoms are linked to psychological factors." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 241 (3rd ed. 1980). Plaintiff contends that the evidence of record warrants a finding that part three of Section A of Listing 12.07 is met; that there is medically documented evidence of plaintiff's unrealistic interpretation of physical signs or sensations associated with the preoccupation or belief that one has a serious disease or injury.
The record provides evidence that the plaintiff believes that he is disabled and that he constantly complains of physical problems even though there is no organic basis for such a belief. Plaintiff testified that he experiences daily chest and other bodily pains, T.203, 206, 216, 253, 262, depression, T.210, and nausea, T.207, and that he takes daily doses of Carafate, Isordil, Tagamet, Nitrobid, Ativan and Nitroglycerin, T.204, 205, 210, 240, 784, even though he has never been hospitalized for heart problems, T.223, and has never been diagnosed as having heart problems. T.225, 784. In an April, 1986, examination, Dr. Doo Cho, a psychiatrist, diagnosed plaintiff as having symptoms of somaticization disorder. T.798.
Although there is arguably some factual basis upon which a finding of part 3 of Section A may be made, the ALJ's failure to make that finding is harmless error. As noted, in addition to meeting the Section A requirements plaintiff had to meet the requirements of Section B which are identical for most of the other listed mental disorders. In finding that the Section A requirements of Listing 12.05(D), relating to mental retardation, and Listing 12.06, relating to anxiety related disorders, were met, the ALJ was required to consider the Section B functional limitations. The ALJ concluded that plaintiff did not satisfy the *728 severity levels of any of the functional limitations. Since the identical Section B analysis must be undertaken for the other listed impairments including Listing 12.07, the ALJ's findings, unless unsupported, make unnecessary a remand of this action to reconsider the applicability of Section A of Listing 12.07, or a finding by this court that it applies.
As we previously stated, an ALJ's factual findings are reviewed in terms of whether they are supported by substantial evidence. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Kent v. Schweiker, 710 F.2d 110, 114 (3rd Cir.1983). This court finds that the ALJ's determinations that the requisite severity levels of the Section B functional limitations were not met are supported by substantial evidence.
Listing 12.07 provides that in order for that Listing to be applied, the specified degree of severity must be present for three out of the four functional limitations. The first functional limitation requires marked restrictions of activities of daily living. 20 C.F.R., pt. 404, subpt. P, app. 1, listing 12.07(B)(1). The ALJ found only slight restriction. T.14, 34. The plaintiff's testimony and the reports of treating physicians and psychologists indicate that the plaintiff actively maintains his household, shops for groceries, drives a car, walks his dog several times a day, reads, cooks, and attends church. T.21, 213-14, 236, 246, 255. This evidence reveals that plaintiff is capable of initiating and participating in activities independent of supervision. 20 C.F.R., pt. 404, subpt. P, app. 1, listing 12.00, para. (C)(1). Thus, we conclude that the ALJ's finding that plaintiff suffers only slight restrictions in daily activities is supported by substantial evidence.
The second functional limitation that may be present is marked difficulty in maintaining social functioning. 20 C.F.R., pt. 404, subpt. P, app. 1, listing 12.07(B)(2). The ALJ found only moderate difficulty. T.21-22, 34. The evidence demonstrated that although plaintiff gets along well with his family and small group of friends, T.244, he is nervous around strangers and prefers not to be out in public. T.211, 244. In his psychiatric assessment, Dr. Cho found plaintiff's ability to interact with the public to be adequate. T.801. There was, however, no evidence of a history of altercations, evictions, firings, or other anti-social incidents involving the plaintiff which would demonstrate his inability to interact and communicate effectively with others. 20 C.F.R., pt. 404, subpt. P, app. 1, listing 12.00, para. (C)(2). In fact, the ALJ found plaintiff to be "fairly articulate and polite, [showing] no signs of nervousness" during the course of the proceedings below. T.22. See Torres v. Schweiker, 682 F.2d 109, 112 (3rd Cir.1982), cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1020 (1983) (ALJ properly considered plaintiff's behavior at the hearing). Therefore, we conclude that the ALJ's finding that plaintiff suffers only moderate difficulty in social functioning is also supported by substantial evidence.
Although plaintiff does not take issue with respect to the ALJ's finding on the third functional limitation, we note that these findings are supported by substantial evidence as well. The ALJ found that plaintiff often had deficiencies of concentration and persistence in failing to complete tasks in a timely manner. T.22, 34. The third functional limitation requires at least frequent deficiencies. 20 C.F.R., pt. 404, subpt. P, app. 1, listing 12.07(B)(3). Although Dr. Rhodes, in a March, 1986, psychological evaluation of plaintiff, concluded that plaintiff would have trouble interacting with supervision, functioning independently and remembering and carrying out complex job instructions, he also reported that plaintiff's ability to maintain attention and concentration was fair. T.795. In April, 1986, Dr. Cho concluded that plaintiff would not have problems concentrating on tasks for which he was not under stress. T.803. Dr. Cho additionally found that plaintiff could follow simple instructions, perform scheduled activities, attend to tasks from start to finish and sustain a routine. T.802.
Finding that plaintiff experiences some deficiency in concentration and persistence, *729 the ALJ concluded that plaintiff is only moderately limited in his ability to carry out simple instructions and finish tasks on time provided that he is not subjected to inordinate amounts of stress. Since plaintiff is able to complete tasks of a basic nature, the ALJ justifiably concluded that plaintiff's deficiencies in concentration and persistence did not rise to the required severity level.
The final Section B functional limitation criteria requires a finding of repeated episodes of deterioration in work or work-like settings which cause the plaintiff to withdraw from that situation or to experience exacerbation of symptoms with an accompanying difficulty in maintaining activities of daily living, social relationships and maintaining concentration. 20 C.F.R., pt. 404, subpt. P, app. 1, listing 12.00, para. (C)(1). The ALJ found that the evidence of record revealed no information "suggesting that the claimant has deteriorated when faced with stressful circumstances." T.22. Our review of the record supports this conclusion.
Accordingly, we find no basis upon which to reverse the ALJ's Section B analysis. Since Listing 12.07 requires, in addition to meeting its Section A requirements, a finding of the required severity level for at least three of the four functional limitations in Section B, remanding this case for further review of the Section A requirements of Listing 12.07 is unnecessary. The Section B analysis of the ALJ, as a result of his finding that the Section A requirements of Listings 12.05(D) and 12.06 were met, is supported by substantial evidence and would not be altered by a finding that the Section A requirements of Listing 12.07 were met.
Plaintiff's second assignment of error also involves the third step in the ALJ's sequential analysis. As previously noted, the ALJ must consider whether the applicant's alleged impairment equals or exceeds in severity the impairments listed at 20 C.F.R., pt. 404, subpt. P, app. 1. 20 C.F.R. § 404.1520a(c)(2), § 416.920a(c)(2). Plaintiff argues that the evidence of record supports the application of Listing 12.05(C). The ALJ found that the evidence needed to apply this listing was absent.
Listing 12.05(C) provides that when a claimant is determined to have a "valid verbal, performance, or full scale IQ of 60 to 69 inclusive and a physical or other mental impairment imposing additional and significant work-related limitation of function," he is sufficiently severely mentally retarded to be deemed disabled without an inquiry into the Section B functional limitations. 20 C.F.R., pt. 404, subpt. P, app. 1, listing 12.05(C).
Plaintiff contends that the October 23, 1984, report of Dr. Noel Plummer, a clinical psychologist, establishes that plaintiff has a verbal I.Q. score of 68 which is within the range of severity of Listing 12.05(C). The ALJ rejected Dr. Plummer's finding. Plaintiff argues that the ALJ did not provide a sufficient explanation for doing so. The portion of the ALJ's opinion addressing this issue is as follows;
With respect to the question of the claimant's borderline intellectual functioning, the administrative law judge notes that while one psychologist (Dr. Plummer) noted an intelligence score of 68, that particular score is not consistent with the claimant's generally perceived capacity and is in conflict with the information provided by both a consulting psychiatrist as well as Dr. Rhoades, a psychologist who examined and tested the claimant as recently as March, 1986. The claimant has worked for many years as a custodian, and in the remote past also worked as a movie projectionist despite any intellectual limitations. It is further noted that both Dr. Cho, a psychiatrist, and Dr. Gress have indicated that the claimant has either average intelligence, or is in the dull normal to mildly mentally retarded range. The totality of the evidence fails to suggest that a true test of claimant's intelligence would produce a score below 70. T.20-21.
We find that the ALJ's decision to reject the I.Q. test results provided by Dr. Plummer is supported by substantial evidence and is sufficiently explained in his opinion.
*730 An ALJ may disregard I.Q. scores as unreliable if there is substantial evidence supporting such a conclusion. Soto v. Secretary of Health and Human Services, 795 F.2d 219, 222 (1st Cir.1986). Here, the ALJ was presented with two reported I.Q. scores. Dr. Plummer's report of October 23, 1984, found that plaintiff had a verbal I.Q. of 68, a performance I.Q. of 81, and a full scale I.Q. of 74. T.777. Dr. Kenneth Rhodes' report of March 10, 1986, found that plaintiff had a verbal I.Q. of 75, a performance I.Q. of 92 and a full scale I.Q. of 82, placing him in the low average intelligence range. T.788. The verbal I.Q. score reported by Dr. Plummer is the only score which would provide plaintiff with a disability determination under Listing 12.05(C).
The mere existence of conflicting evidence does not require a remand when disability benefits are denied; conflicts in testimony are to be resolved by the Secretary and not this court. Wolfe v. Califano, 468 F.Supp. 1018, 1022 (W.D.Pa.1979); Green v. Schweiker, 694 F.2d 108, 111 (5th Cir.1982), cert. denied, 460 U.S. 1091, 103 S.Ct. 1790, 76 L.Ed.2d 357 (1983). In light of the conflicting verbal I.Q. scores, the ALJ was required to determine which more accurately reflected plaintiff's mental capabilities. The ALJ concluded that Dr. Plummers's report was not consistent with the plaintiff's "generally perceived capacity" as demonstrated by other credible evidence.
Though not reported in quantitative terms, Dr. Cho, a psychiatrist, found plaintiff to be in the mild to dull normal range of mental retardation. T.799. Dr. Gordon Gress found plaintiff to be of average intelligence. T.824. In light of these reports, the ALJ's first hand exposure to plaintiff, and the lack of evidence supporting Dr. Plummer's reported lower I.Q. score, we must find that the ALJ's decision to accept Dr. Rhodes's verbal I.Q. evaluation is supported by substantial evidence. The ALJ carried out his duty to indicate his reasons for accepting and rejecting the evidence presented. Cotter, 642 F.2d at 705.
Therefore, we conclude that the ALJ justifiably determined that plaintiff's true verbal I.Q. score was not below 70, the required level of severity for an automatic determination of disability under Listing 12.05(C) was not present.
Plaintiff's third allegation of error involves the last step in the sequential analysis. In the final two stages, the ALJ must determine whether plaintiff's impairments prevented him from performing his past relevant work, 20 C.F.R. § 404.1520(e), § 416.920(e), and if so, whether the plaintiff could perform any other work which exists in the national economy in light of his age, education, work experience, and residual functional capacity. 20 C.F.R. § 404.1520(f), § 416.920(f). The ALJ found that plaintiff is unable to perform his past relevant work as a janitor and neither party takes issue with that finding. The ALJ additionally found that plaintiff can perform a significant number of jobs in the national economy. Plaintiff argues that this finding is not supported.
With respect to plaintiff's residual functional capacity, the ALJ concluded that plaintiff has the "physical exertion and nonexertional requirements [for] work except for strenuous physical exertion above the light and medium levels, significantly stressful situations, close interaction with others, the performance of complex and varied job tasks, and casual supervision." T.24. We hold that this finding is supported by substantial evidence.
Although plaintiff's treating physicians opined that plaintiff is incapable of being gainfully employed, these opinions are not consistent with objective medical evidence in the record. In a physical capacity evaluation dated June 6, 1984, Dr. Cassidy reported that plaintiff could not sit, lift, bend, squat or perform other similar physical movements. T.774-75. Dr. Cassidy also summarily concluded, without further explanation, that because of plaintiff's "mental condition, cardiac neurosis, and limited capacity I feel that he is totally and permanently incapacitated from public employment." T.775. The ALJ gave this report no weight because Dr. Cassidy provided no clinical findings to support his functional assessment. T.15. The evidence also reveals *731 that subsequent physical examinations by other physicians disclosed no physical limitations. T.781, 784-85, 824. In fact, evidence of record clearly demonstrates that plaintiff is not severely limited in physical movement. Although plaintiff testified that he has trouble walking and lifting more than 25 pounds, T.213, 239, he regularly does housework, cooks, walks his dog, goes shopping, goes to church, and drives a car. T.213-14, 236, 246, 255. In light of Plaintiff's activities and Dr. Cassidy's failure to support his conclusion that plaintiff's mental condition prevented him from working, the ALJ properly disregarded Dr. Cassidy's opinion.
In his reports of June 23, 1986, and October 7, 1986, Dr. Gress concluded that plaintiff was not gainfully employable. T.824, 833. In neither report did he cite the presence of physical problems, he just noted that plaintiff had chronic recurrent anxiety neurosis and moderately severe somaticization with respect to his cardio-pulmonary system. T.824. The ALJ decided to give these reports little weight because an April 17, 1985, report from Dr. Gress similarly found no symptoms of any organic disease, only anxiety neurosis, and at that time did not find plaintiff disabled. The ALJ found Dr. Gress's subsequent determinations of disability to be of little credibility in that Dr. Gress provided no clinical findings demonstrating that plaintiff's condition had deteriorated since his earlier examinations. T.17. The ALJ added that since Dr. Gress was not a psychiatrist, his opinions regarding plaintiff's mental state were of little value. Id. We find that the ALJ's rejection of Dr. Gress's unsubstantiated findings was proper.
A similar conclusion must be reached as to the ALJ's rejection of the conclusion of Dr. Raymond Scanlan, plaintiff's chiropractor, that plaintiff is disabled. In a four line note written June 25, 1984, Dr. Scanlan asserted that he was treating plaintiff for chronic disability of the lumbar spine and that plaintiff "remains disabled from all types of labor at this time." T.783. The ALJ properly gave this report no weight in that there were no clinical findings suggesting significant orthopedic limitations. T.16. Furthermore, a chiropractor's report is not a medically acceptable source of an individual's impairment. 20 C.F.R. § 404.1513 (1987); Rivera v. Heckler, 598 F.Supp. 203, 207 (E.D.Pa. 1984).
There is substantial evidence of record supporting the ALJ's conclusion that plaintiff is capable of some form of employment, although not without limitation. First, it must be noted that plaintiff suffers no organic disease and has never been hospitalized for cardio-vascular problems. T.221-22, 784-85. Although the evidence supports the ALJ's finding that plaintiff does have a moderately severe anxiety disorder with a cardiac neurosis and diminished intellectual functioning, T.777-78, 784-85, 788, 799, 824, the evidence also demonstrates that this does not preclude plaintiff from engaging in some, albeit limited, form of light to medium work.
Dr. Cho, a psychologist, found that plaintiff could perform work in which no stress was involved, could perform on a schedule, and could attend to a task from beginning to end. T.801-03. He also noted that plaintiff's ability to work in public was adequate. T.803. Dr. Rhodes, also a psychologist, found that plaintiff could carry out simple instructions and follow work rules but would be poor with respect to functioning independently, would require maximum supervision and would find it difficult to participate in a competitive employment market. T.794-6.
Clinical psychologist Dr. Plummer found that due to plaintiff's deficiencies in verbal and intellectual skills, plaintiff could not perform work involving abstract thinking or interaction with other people. T.778. Although Dr. Plummer added that plaintiff's limited motor skills could restrict his functioning in jobs using his hands, T.778, such limitation appears minimal in light of the results of an adapted Gestalt test performed on plaintiff by Dr. Rhodes. Plaintiff completed the test in a manner that was reported as being 98 percent perfect suggesting plaintiff's ability to maintain good pencil pressures and copy simple or *732 complex patterns with accuracy in addition to having good hand-eye coordination. T.789.
Finally, the ALJ took note of plaintiff's apparent obsession with obtaining compensation for his disability. T.20. Dr. Frank Chianese opined that plaintiff's symptomatology is a natural evolution of a disability syndrome, "the more his disability is suspect, the more intense his symptoms become." T.781. Dr. Chianese added "This doesn't mean plaintiff's symptoms are consciously fabricated but are a result of the patient's constant concern with his ill health and his right to compensation." Id. Subjective complaints of pain alone may be disabling but must be supported by evidence of medical impairments which could reasonably be expected to produce such pain. 42 U.S.C. § 423(d)(5)(A); Ferguson v. Schweiker, 765 F.2d 31, 37 (3rd Cir. 1985).
This evidence of record provides substantial evidence supporting the ALJ's finding that plaintiff's residual functional capacity permits him to undertake light to medium work which does not involve significant stress, close interaction with others and the performance of complex and varied job tasks.
Finding that plaintiff's exertional capacity to engage in work was diminished to some extent by his nonexertional limitations, specifically plaintiff's limited intellectual functioning and anxiety problems, the ALJ properly concluded that the medical-vocational grid was not fully applicable to plaintiff's situation. 20 C.F.R., pt. 404, subpt. P, app. 2, § 200.00(e); Santise v. Schweiker, 676 F.2d 925, 934-35 (3rd Cir. 1982). Thus, the grid could only have provided a framework of analysis to be considered in connection with an independent analysis of plaintiff's nonexertional impairments. 20 C.F.R., pt. 404, subpt. P, app. 2, § 200.00(e)(2); Burnam v. Schweiker, 682 F.2d 456, 57-58 (3rd Cir.1982).
The ALJ accordingly proceeded to use the grid as a guide. Since plaintiff was 50 years old at the time of the ALJ's decision, plaintiff was defined as a person approaching advanced age. 20 C.F.R. § 404.1563(c), § 416.963(c). Since plaintiff has a ninth grade education he fell in the limited education educational level. 20 C.F.R. § 404.1564(b)(3), § 416.964(b)(3). Additionally, plaintiff's limited work background places him at the skilled worknot transferable skill level. 20 C.F.R. § 404.1568, § 416.968. Applying these factors, rules 202.10 or 203.18 in Tables 2 and 3 of 20 C.F.R., pt. 404, subpt. P, app. 2, suggest a finding of "not disabled."
In addition, the ALJ obtained the assistance of a vocational expert to determine the vocational impact of plaintiff's nonexertional limitations. 20 C.F.R. § 404.1566(e). The hypothetical given to the expert was an accurate representation of plaintiff's situation as developed in the record:
Assume that the claimant is a 50 year old individual with a 9th grade education and past work experience as a janitor. Assume further that he has a history of chest pain since about 1979, with cardiac complaints that would prevent very strenuous exertion but would allow him to perform light and/or medium exertional job tasks. Assume further that the claimant has a life-long history of nervousness and cannot perform work in circumstances involving significant stress, close interaction with others, complex and varied job tasks, and casual supervision. Assume also that based on recent psychological and psychiatric examinations the claimant has average to low average intellectual functioning. T.826 (emphasis in original).
In his report of September 12, 1986, vocational expert Eugene Hoffman responded to the ALJ's request concluding that occupations exist in significant numbers in the regional market in which plaintiff resides, as well as the national economy, for which the plaintiff would be suitable. T.827. He cited the following examples: a sorter and folder, a packager, housekeeping, simple assembly work, and a stocker in a stockroom. Id. Mr. Hoffman added that these jobs do not require plaintiff to undertake additional training or education and would involve only a short one or two week break-in period. Id.
*733 We conclude that based on the ALJ's residual functional capacity assessment, the "not disabled" guideline from the grid, and the vocational expert, the ALJ's determination that plaintiff is capable of performing gainful and substantial work within the economy is supported by substantial evidence. Accordingly, plaintiff cannot be considered disabled for purposes of disability insurance benefits or Supplemental Security Income. 42 U.S.C. § 423(d)(1)(A), § 1382c(a)(3)(A).
Accordingly, we will deny plaintiff's motion for summary judgment and grant the defendant's motion for summary judgment.
An appropriate order will issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858066/ | Chargois v. State
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-275-CR
AND
NO. 3-90-276-CR
JEFFREY CHARGOIS,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NOS. 103,007 AND 104,066, HONORABLE BOB PERKINS, JUDGE
PER CURIAM
A jury found appellant guilty of two instances of attempted murder. Tex. Penal
Code Ann. §§ 15.01 (Supp. 1992) & 19.02 (1989). The jury assessed punishment in each cause,
enhanced by two previous felony convictions, at imprisonment for 50 years. We will affirm both
convictions.
Brenda Davis testified that she was standing outside at her apartment complex when
she saw appellant, who was across the street, shoot a pistol five times. After appellant crossed
the street and went back toward her apartment complex, Davis found Lonzell Edmonson lying on
the ground. She then saw appellant come back from across the street, raise his pistol, and open
fire again.
Lola White testified that she saw appellant shooting by some cars near her
apartment complex; the person shot turned out to be Lonzell Edmonson. Appellant then crossed
the street and went between the buildings of her complex. She saw appellant shake the shells out
of his gun, reload it, and walk back across the street. Appellant next began to shoot William
Holloway. White identified appellant's gun as a revolver. Austin police officer Renaldo Brown
testified that officers found empty shells and .22-caliber bullets on the ground around the
breezeway of the apartment complex appellant had run through.
Lonzell Edmonson testified that appellant shot him five or six times. William
Holloway testified that appellant shot him in the back of his neck and the back of his right
shoulder; the bullet in his shoulder exited under his right arm. Appellant also shot him in the left
forearm; the bullet from that shot remained in his arm.
Dr. Thomas Coopwood was a general surgeon who helped treat the two gunshot
wound victims. Coopwood testified that William Holloway suffered three gunshot wounds.
Coopwood testified that he found seven injury sites on Lonzell Edmonson, but that he did not
know how many gunshot wounds these represented since some could have been exit wounds.
Bullet fragments were recorded on the X-rays of both complainants, although the fragments might
have been removed later.
In each indictment, the State alleged that appellant shot the complainant with a
firearm. The State was thereby bound to prove that a firearm was the weapon appellant used.
The Penal Code does not define the word "firearm" other than in § 46.01, and that definition is
expressly limited to the offenses in chapter 46 of the Code. (1) Tex. Penal Code Ann. § 46.01
(1989); Ex parte Campbell, 716 S.W.2d 523 (Tex. Crim. App. 1986); Garcia v. State, 791
S.W.2d 279 (Tex. App. 1990, pet. ref'd). Because "firearm" is not defined elsewhere, it is given
its common meaning in accordance with common usage. Campbell, 716 S.W.2d at 526; Garcia,
791 S.W.2d at 283; Tex. Gov't Code Ann. § 311.011 (1988); Tex. Penal Code Ann. § 1.05(b)
(Supp. 1992). "Firearm" means "a small arms weapon, as a rifle or pistol, from which a
projectile is fired by gunpowder." Random House Dictionary of the English Language,
Unabridged (1987).
In point of error one, appellant argues that the trial court erroneously allowed
Coopwood to testify that a .22-caliber weapon is a firearm. Appellant objected to Coopwood's
testimony on the basis that it required him to state a legal conclusion.
Coopwood testified that he had practiced general surgery for twenty years. His
practice included trauma surgery, in which he had treated many victims of gunshot wounds.
Coopwood had treated patients injured by .22-caliber weapons who had died. His testimony that
a .22-caliber weapon is a firearm was based on his experience and was admissible, subject only
to the weight the jury chose to give it in light of any other evidence. We overrule point one.
In point of error two, appellant contends that the trial court erred by advising the
State to ask its witness a question. Outside the jury's hearing, the trial court suggested that the
prosecutor ask a police officer whether a .22-caliber weapon was a firearm. The court stated that
Coopwood was asked that question without being informed of the definition, but that the officer
had been trained in weapons. On redirect examination, the State asked Officer Brown whether
a .22-caliber pistol was a firearm. The witness answered in the affirmative. Appellant did not
object to this testimony.
Providing that the trial judge maintains an impartial attitude, he may address
questions to a witness to clarify any issue before the court. Stewart v. State, 438 S.W.2d 560
(Tex. Crim. App. 1969). The trial court, in this instance, permissibly suggested the question to
clarify the status of a .22-caliber weapon as a firearm. We overrule point two.
In point of error three, appellant challenges the sufficiency of the evidence to prove
that appellant used a firearm. This point is without merit. The testimony previously summarized
is sufficient to establish that appellant assaulted the two victims with a firearm, under both the
general and statutory definition of the term. We overrule point three.
The judgments of conviction are affirmed.
[Before Justices Powers, Jones and B. A. Smith]
Affirmed on Both Causes
Filed: January 8, 1992
[Do Not Publish]
1.
1 Texas Penal Code Ann. § 46.01(3) (1989) defines "firearm" as "any device designed, made,
or adapted to expel a projectile through a barrel by using the energy generated by an explosion
or burning substance or any device readily convertible to that use." The trial court charged the
jury that "`firearm' means a device designed, made, or adapted to expel a projectile through a
barrel by using the energy generated by an explosion or burning substance or any device readily
converted to that use." Appellant did not object to the definition of firearm in the jury charge.
We note that the common meaning of firearm is similar to the definition submitted to the jury. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1557303/ | 673 F. Supp. 332 (1987)
Robert L. MITCHELL and Martha C. Mitchell, Plaintiffs,
v.
MILLS COUNTY, IOWA; Mills County Board of Supervisors, and Mills County Engineer, Defendants.
Civ. No. 86-54-W.
United States District Court, S.D. Iowa, W.D.
October 26, 1987.
*333 Eric H. Leed, Council Bluffs, Iowa, for plaintiffs.
Lee H. Gaudineer, Carlton Salmons, Des Moines, Iowa, for defendants.
ORDER
DONALD E. O'BRIEN, Chief Judge.
This matter comes to the Court on a motion for summary judgment filed by defendants. Briefs were submitted on behalf of each party, and a hearing was held before the Court. For the following reasons, the Court grants the defendants' motion for summary judgment with regard to the plaintiffs' due process claim and dismisses the plaintiffs' takings claim without prejudice for want of subject matter jurisdiction.
The plaintiffs own real estate located in Mills County, Iowa, on the west side of Mills County Road L-31. According to the plaintiffs' complaint, in 1981 Mills County, the County Board of Supervisors and Mills County Engineer Jerry W. Hare changed the route by which surface waters drained from property north of the plaintiffs' land alongside road L-31 so that surface runoff now drains freely onto the plaintiffs' property. Some of the runoff which now drains onto the plaintiffs' land originates from the Aidex Corporation site, which has been high on the Superfund toxic substances cleanup list.[1] Runoff also originates from a cattle feed lot.
Plaintiffs filed their action in this court on July 24, 1986. Their only cause of action is 42 U.S.C. § 1983. They allege that by altering the drainage pattern along county road L-31 in such a fashion as to deposit all surface waters on the plaintiffs' property, the defendants deprived them of property without due process of law and denied them of the enjoyment and value of their property. The defendants and the Court construe these allegations to include a claim that the defendants took their property without just compensation, in violation of the Takings Clause of the Fifth Amendment as incorporated under the Fourteenth Amendment. Plaintiffs also contend that the defendants acted maliciously and recklessly with an intent to harm them.
I. Procedural Due Process.
In their motion for summary judgment, the defendants contend that the plaintiffs' procedural due process claim is invalid as a matter of law because they failed to substantiate their allegations that the defendants acted maliciously and have failed to allege that an "affirmative abuse of power" occurred. The defendants further contend that post-deprivation remedies under Iowa tort law provide the plaintiffs with all process which may be due to them under the Due Process Clause. The plaintiffs respond that because the defendants' actions are alleged to have been malicious and reckless, the cases cited by the defendants do not apply, and summary judgment is not warranted.
In Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), the United States Supreme Court established that post-deprivation remedies provided under state tort law satisfy the procedural requirements of the Due Process Clause *334 where the plaintiffs' loss of property is the result of a random and unauthorized act.[2] 451 U.S. at 541, 101 S.Ct. at 1916. Although Parratt involved a negligent deprivation, the doctrine was extended to cover intentional deprivations in Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984). See also Rheuport v. Ferguson, 819 F.2d 1459, 1465 n. 10 (8th Cir.1987). Therefore, if the plaintiffs' injuries resulted from random and unauthorized acts, Hudson v. Palmer would bar relief under the procedural component of the Due Process Clause.[3]
However, it is not clear that the plaintiffs' injuries resulted from a random and unauthorized act. The sequence of events leading up to the actions which changed the drainage pattern, as set out in the affidavits of the plaintiff and the county engineer, suggest that the changes were undertaken with county authority and were not done randomly. The distinguishing feature of losses resulting from random and unauthorized actions is that "the state cannot predict when that loss will occur," so that "predeprivation procedures are simply impracticable." Hudson, 468 U.S. at 532-33, 104 S.Ct. at 3203. Because it may not have been impossible or impracticable in this case for the county to have provided some kind of process before changing the drainage pattern, Hudson is not dispositive.
Under two more recent Supreme Court decisions, the Court must determine in every due process case whether the conduct in question was no more than "a negligent act of an official causing unintended loss of or injury to life, liberty or property." Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 663, 88 L. Ed. 2d 662 (1986). See also Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 88 L. Ed. 2d 677 (1986). If so, no "deprivation" in the constitutional sense has taken place, even if the negligent conduct was authorized. In this case the plaintiffs have alleged that the defendants acted maliciously and recklessly with intent to harm them. However, "a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials in his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In response to a sworn statement from the county engineer denying that he or any other defendant intended to drain greater amounts of water onto the Mitchells' property than before the reconstruction of the drainage system, the plaintiffs have submitted an affidavit signed by Plaintiff Robert Mitchell which states in relevant part:
16. Since 1982, Mills County officials have not worked with me "cooperatively." I believe that my initial reluctance to cooperate with the proposed drainage district has caused other land owners to harbor ill will towards me. I further believe that the Mills County officials have assisted the other land owners in an effort to alleviate the water problems of the other land owners along county road L-31 to my detriment. I believe that this attitude continues as evidenced by the Mills County engineer's affidavit in support of the defendants' motion for summary judgment in this matter.
(Affidavit of Robert L. Mitchell at 5). The Court believes that these statements, even if true, do not successfully rebut the defendants' motion by establishing a triable issue of fact concerning the defendants' intent. At most, ¶ 16 establishes that the defendants became instruments of the ill will of the plaintiffs' neighbors. It does not provide a suitable basis for a reasonable trier of fact to conclude that the named defendants intended to harm the plaintiffs. For this reason, Daniels, Davidson and Liberty Lobby require the Court to grant the defendants' motion for *335 summary judgment with regard to the due process claim.[4]
II. Takings Claim.
The Fifth Amendment to the United States Constitution provides that "private property [shall not] be taken for public use without just compensation." U.S. Const. Amend. V. This prohibition has been incorporated to apply to the states through the Due Process Clause of the Fourteenth Amendment. See Chicago, B. & Q. Railroad Co. v. City of Chicago, 166 U.S. 226, 235-41, 17 S. Ct. 581, 584-86, 41 L. Ed. 979 (1897).
By its terms, the Fifth Amendment does not flatly proscribe the taking of property; rather, it proscribes "taking without just compensation." Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 194, 105 S. Ct. 3108, 3120, 87 L. Ed. 2d 126 (1985). Under a doctrine enunciated by the Supreme Court in the Williamson case, a taking does not become a "taking without just compensation" until the alleged victim uses any reasonable, certain and adequate provisions for obtaining compensation which exist at the time of the taking, and fails to receive just compensation. Id. This doctrine was anticipated by the Eighth Circuit in Collier v. City of Springdale, 733 F.2d 1311, 1313 (8th Cir.1984), and has been followed in Harrison v. Springdale Water and Sewer Commission, 780 F.2d 1422 (8th Cir.1986), and Harris v. Missouri Conservation Commission, 790 F.2d 678 (8th Cir.1986).
Williamson does not impose an exhaustion requirement in the traditional sense. Rather, the requirement that plaintiffs must first go to state court rests upon a broad reading of the term "just compensation," and reflects a belief by the U.S. Supreme Court that victims of takings should not expect governments to come looking for them with compensation and should not allege an unconstitutional taking without first attempting to use existing adequate mechanisms to seek compensation. This rule is "analogous, although imperfectly so, to the Supreme Court's holding in Parratt v. Taylor." Jacobs v. City of Minneapolis, No. 4-87-397, slip op. at 9 (D.Minn. Aug. 4, 1987) [Available on WESTLAW, 1987 WL 14716]. Unlike Parratt, however, the inadequacy of the state's post-deprivation remedy can be demonstrated through its use, and a takings claim can ripen when the compensation received by the plaintiff after exhausting existing state procedures fails to be "just" under constitutional standards. See, e.g., Nollan v. California Coastal Commission, ___ U.S. ___, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987); First Evangelical Lutheran Church of Glendale v. County of Los Angeles, ___ U.S. ___, ___ n. 6, 107 S. Ct. 2378, 2384 n. 6, 96 L. Ed. 2d 250 (1987) (state court's dismissal of plaintiff's inverse condemnation claim shows that inverse condemnation procedure is unavailable, thereby ripening the plaintiff's constitutional claim). However, until a plaintiff pursues state law remedies, federal courts must assume that state courts will interpret state law in line with the Supreme Court's "fundamental constitutional commands" concerning just compensation. Jacobs, slip op. at 16.
The only remaining question for the Court to resolve is whether Iowa law provides a remedy to which the plaintiffs could resort in order to receive just compensation for any taking by the defendants. The defendants submit that four remedies exista *336 cause of action implied from Article I, § 18, of the Iowa Constitution, a mandamus action to compel the defendant to initiate condemnation proceedings, a condemnation action and a tort claim under the Municipal Tort Claims Act. Iowa Code § 613A (1987). The Court need not decide whether each of these remedies would be sufficient. It is enough to recognize that the cause of action implied from the Iowa Constitution should provide a remedy which is as capable of providing just compensation for any taking as those considered adequate by the Eighth Circuit in other states.[5]See, e.g., Littlefield v. City of Afton, 785 F.2d 596 (8th Cir.1986) (inverse condemnation proceeding to enforce similar clause in Minnesota Constitution deemed adequate). Therefore, no claim that the defendants took the plaintiffs' property without just compensation in violation of the U.S. Constitution will be ripe until the plaintiffs attempt to use this remedy and any other adequate remedy.
This Court will not retain jurisdiction over the takings claim because the Court cannot take jurisdiction over an unripened claim and because it is impossible for the Court to determine at this point whether the plaintiffs could reassert the takings claim in this court in the future. In Paulucci v. City of Duluth, 826 F.2d 780 (8th Cir.1987), plaintiffs who had failed to convince a state court in a condemnation proceeding that the city was taking their property for a non-public purpose subsequently filed a § 1983 takings claim in federal court. The Eighth Circuit ruled that the federal action was barred by both res judicata and collateral estoppel because the non-public purpose issue was considered and decided against them in the condemnation action. 826 F.2d at 784. In this case, the plaintiffs' federal takings claim will not be ripe until the state law claims are litigated, so res judicata would not bar the plaintiffs from bringing a federal takings claim later. However, if the Iowa court fully considers and resolves each particular issue which would be raised in a federal takings claim, Paulucci might permit the defendants to collaterally estop the plaintiffs from relitigating those issues in federal court, even though they were first litigated in part of a state action. With this in mind, the plaintiffs should not litigate their action in state court for the sole purpose of showing that state remedies are inadequate, but should play to win.
Because the Court lacks jurisdiction over the takings claim, it lacks jurisdiction to grant summary judgment to the defendants on that claim. Lloyd v. State, 251 N.W.2d 551, 559 (Iowa 1977). Instead, the Court must dismiss it without prejudice.
IT IS THEREFORE ORDERED that the defendants' motion for summary judgment is granted with regard to the plaintiffs' due process claim.
IT IS FURTHER ORDERED that the plaintiffs' takings claim is dismissed without prejudice for want of subject matter jurisdiction.
NOTES
[1] Problems at the Aidex site have given rise to another action in this court in which the Environmental Protection Agency seeks to recover its cleanup costs from companies which sent their pesticides to Aidex for formulation. United States v. Aceto Agricultural Chemicals Corp., et al., Civil No. 87-21-W. If the plaintiffs have not already done so, they contact the EPA to determine whether they may be entitled to any assistance under the Superfund Act.
[2] The opposite of a random and unauthorized act is an act taken pursuant to an established state procedure. Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982). Parratt does not apply to the latter type of actions.
[3] There is nothing in the plaintiffs' complaint which could be construed to allege a deprivation of substantive due process. See Littlefield v. City of Afton, 785 F.2d 596 (8th Cir.1986).
[4] In so ruling, the Court does not attempt to decide whether "an affirmative abuse of power" occurred, even though the defendants contend this is the new test for any due process violation. While the Supreme Court treated the existence of an affirmative abuse of power as a common element in valid due process claims in Daniels and Davidson, that does not mean that courts can use it as a test. The widely divergent views of Justice Rehnquist and Justice Blackmun in Davidson about what constitutes an affirmative abuse of power shows how slippery the term can become. This Court will treat this portion of Daniels in the same way in which it treats the Supreme Court's declaration that the First Amendment only protects speech"as announcing a conclusion of the court, rather than as summarizing in any way the analytic processes which lead the court to that conclusion." L. Tribe, American Constitutional Law 600 (1978).
[5] This should not imply that a state law takings claim is the claim most likely to produce compensation. Because a taking is generally more difficult to establish than a trespass or a nuisance, the plaintiffs should consider the full range of state law remedies. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557339/ | 30 So. 3d 1260 (2010)
Curtis BURNETT, Jr., Appellant
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE and Lee C. Franklin, Appellees.
No. 2008-CA-01909-COA.
Court of Appeals of Mississippi.
March 16, 2010.
*1261 R. Bradley Best, Tiffany Hatcher Smith, Joshua Paul Moore, Oxford, attorneys for appellant.
John A. Banahan, Scott Corlew, Pascagoula, attorneys for appellees.
EN BANC.
MYERS, P.J., for the Court:
¶ 1. Curtis Burnett, Jr., instituted this civil action in the Circuit Court of Panola County after the denial of his claim for uninsured/underinsured motorist benefits (UM), uninsured motorist property damage (UMPD), and medical payments benefits (MedPay) against his insurance policy with State Farm Mutual Automobile Insurance Company (State Farm). Burnett asserted claims against State Farm for the bad-faith refusal of said benefits, breach of duty of good faith and fair dealing, breach of fiduciary duty, and negligent procurement of insurance coverage. State Farm filed a motion for summary judgment, averring that due to a material misrepresentation regarding ownership of Burnett's vehicle, the policy should be deemed void ab initio, or it should be determined that Burnett was not an insured under Curtis Burnett, Sr.'s (father) policy because he was not a resident relative of his father's household. In the alternative, State Farm sought partial summary judgment on the issue of bad faith and punitive damages.
¶ 2. The circuit court found that there was a material misrepresentation in the purchase of the insurance contract, and granted State Farm's motion for summary judgment. From that judgment, Burnett appeals to this Court.
¶ 3. We conclude, however, that this matter is not properly before the Court because the circuit court's order did not terminate the action against all defendants, and Burnett failed to have the circuit court's judgment certified as a final judgment pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure. Therefore, we dismiss this appeal for lack of jurisdiction.
FACTS
¶ 4. Burnett was injured in an automobile accident that occurred on September *1262 21, 2001. Burnett, who was twenty-three years old at the time, was riding as the passenger in his 1985 Buick Regal, while his girlfriend, Shante Pratt, was driving. The Buick was traveling on Highway 6 in Batesville, Mississippi, when another vehicle, owned by Lee Franklin, allegedly pulled out in front of the Buick. The two vehicles collided, and Burnett suffered injuries as a result.
¶ 5. Shortly thereafter, Burnett obtained legal counsel. Burnett, along with his mother, Mary Burnett, then visited the office of State Farm agent Ronnie Darby and informed an employee working in the office of the accident. According to Burnett, they were turned away, despite having had UM, UMPD, and MedPay coverage on the Buick. Instead, they were instructed to pursue compensation from the people that had caused the wreck.
¶ 6. Through his attorney, Burnett later provided State Farm with medical information pertaining to his injuries. Burnett claimed that his medical records showed that he had suffered a severe left-knee injury as a result of the accident, which eventually would require surgery and could potentially designate him with "a permanent-disability rating." Burnett informed State Farm that he was insured under three separate insurance policies, two of which contained $50,000 in UM coverage. According to Burnett, the third policy, which covered the Buick, did not show any UM coverage; but because no valid rejection documents existed with this policy, he submitted that he was entitled to UM coverage on this policy by default. Based on Burnett's calculations, he had available to him stacked UM limits of $150,000. He thus proposed to State Farm that due to the severity of his injuries, $150,000 was a reasonable settlement value.
¶ 7. State Farm, however, informed Burnett's counsel that it had an issue with regard to the severity of injuries Burnett was claiming, and it wanted to investigate the matter further before submitting payment. According to State Farm, the medical records obtained from Burnett's visit to the emergency room immediately following the accident did not match the medical report from the physician who later diagnosed Burnett as having a "torn anterior cruciate ligament" in his left knee.
¶ 8. State Farm also provided Burnett's counsel with a copy of a UM rejection form from a previous policy covering a 1982 Chevrolet pickup truck. According to State Farm the Chevrolet pickup truck was replaced by the Buick as the coverage vehicle, and no other changes were made to the policy itself.
¶ 9. On April 1, 2003, after having retained new legal counsel, Burnett filed suit against both State Farm and Franklin. He sought extra-contractual and punitive damages from State Farm on the basis that the insurer had engaged in the bad-faith refusal of insurance benefits, breach of duty of good faith and fair dealing, breach of fiduciary duty, and negligent procurement of insurance coverage. Franklin was named as a defendant in the suit for allegedly causing the accident.
¶ 10. At his deposition, Burnett testified that he was the primary driver of the Buick, and it was titled in his name. He said that he paid the monthly insurance premiums owed to State Farm on the Buick through his father. When asked whose name the policy was in, Burnett indicated that he thought the policy was in his father's name, but he was not sure. Burnett also disclosed that at the time of the accident he resided in an apartment in Batesville, Mississippi, with his girlfriend. He added, however, that he continued to periodically live with his parents at their home in Courtland, Mississippi.
*1263 ¶ 11. On August 16, 2006, State Farm filed a motion for summary judgment claiming that each of Burnett's claims must fail as a matter of law due to a material misrepresentation as to the ownership of the subject vehicle. That motion was heard by the circuit court on May 17, 2007. Based on Burnett's disclosures, State Farm argued that the Buick was owned by Burnett, but the policy was procured in the name of his father. State Farm presented an affidavit from, David Hartlein, an underwriting section manager with State Farm, which stated that State Farm issued policy number C20842924A to Burnett's father and charged certain premiums based upon information that he provided. The affidavit stated that had State Farm been provided true and accurate information regarding ownership of the vehicle in question then State Farm would not have agreed to provide coverage on the same terms.
¶ 12. State Farm also submitted that because Burnett lived in an apartment with his girlfriend at the time of the accident, he was not a resident of his father's household as defined by either Mississippi's UM statute or the UM provisions outlined in the insurance policy. State Farm added that even if it could be shown that Burnett was a resident for UM purposes, he still could not qualify as an insured under the MedPay provisions of the policy which require that he reside "primarily" with the policy holder.
¶ 13. Additionally, State Farm argued that there was no evidence to support Burnett's claim that State Farm had acted in bad faith since it had legitimate and arguable reasons for its actions, and that the parties have at all relevant times been involved in an honest dispute over coverage. State Farm said that it had paid the initial, accident-related medical expenses submitted by Burnett's first attorney, and it had reasonably questioned the relationship of other injuries to the accident. State Farm argued that no evidence existed which would show that it acted with malice, wantonness, or reckless disregard for the rights of its insured.
¶ 14. On May 30, 2007, the circuit court granted State's Farm motion for summary judgment. The circuit court found that the deposition testimony of Burnett indicated that he was the owner of the Buick at the time of the accident and that he had never purchased insurance on the vehicle. The circuit court ruled that there was a material misrepresentation in the purchase of the insurance contract as State Farm was entitled to know who the policy was issued to as well as who was the owner of the automobile, and that State Farm had a right to rely upon the information furnished by the applicant, who in this case was Burnett's father. The circuit court held that because there was no valid contract of insurance on the Buick, State Farm was without a duty to compensate Burnett for any of his losses; thus, State Farm was granted summary judgment on all issues claimed by Burnett.
¶ 15. Aggrieved, Burnett filed this appeal.
ANALYSIS
¶ 16. Although neither party raised the issue, we must address, sua sponte, the question of whether the circuit court's order is appealable. Williams v. Delta Reg'l Med. Ctr., 740 So. 2d 284, 285 (¶ 5) (Miss. 1999). Rule 54(b) states:
Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties *1264 only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
¶ 17. "Without the entry of a Rule 54(b) certificate[,] a trial court order, which disposes of less than all the of the claims against all of the parties in a multiple[-]party or multiple[-]claim action, is interlocutory." Owens v. Nasco Inter., Inc., 744 So. 2d 772, 774 (¶ 8) (Miss.1999) (citing Williams, 740 So.2d at 285 (¶ 6)).
¶ 18. This case involves multiple defendants, State Farm and Franklin. The circuit court's order did not terminate the action, did not make any adjudication concerning Franklin, and was not certified pursuant to Rule 54(b) as a final judgment as to State Farm. Williams, 740 So.2d at 285 (¶ 7). Based on the plain language of Rule 54(b), the order is interlocutory and not appealable. Id. Therefore, we dismiss this appeal for lack of an appealable order.
¶ 19. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE, P.J., IRVING, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565585/ | 34 So. 3d 658 (2009)
CENTURY 21 PARAMOUNT REAL ESTATE, INC.
v.
HOMETOWN REALTY, LLC, et al.
1070904.
Supreme Court of Alabama.
September 30, 2009.
William Dudley Motlow, Jr., and Michael R. Lunsford of Porterfield, Harper, Mills, & Motlow, P.A., Birmingham, for appellant.
W.F. Horsley of Samford & Denson, LLP, Opelika, for appellees Hometown Realty LLC; William A. Cleveland; and Cleveland Brothers, Inc.
James D. McLaughlin of Davis, McLaughlin & Muncie, Auburn, for appellee Polo Construction Co., LLC.
J. Tutt Barrett of Dean & Barrett, Opelika, for appellee Stacy Williams Jordan.
Russell C. Balch and John E. Searcy, Jr., of Akridge & Balch, P.C., Auburn, for appellees Michael Allen Homes, Inc.; Allin & Associates, LLC; and Chris Jordan.
MURDOCK, Justice.
Century 21 Paramount Real Estate, Inc. ("Paramount"), appeals from a judgment dismissing its claims against Hometown Realty, LLC; Wayne Gentry Builder, Inc.; Michael Allen Homes, Inc.; Polo Construction Co., LLC; Allin & Associates, LLC; Chris Jordan; William A. Cleveland; and Cleveland Brothers, Inc. We reverse and remand the trial court's judgment.
I. Facts and Procedural History
In 2003, Paramount entered into a business relationship with Cleveland Brothers, a developer in Lee County, whereby Paramount agreed to assist in the marketing of unimproved lots in a subdivision owned by *659 Cleveland Brothers. Specifically, in exchange for Paramount's agreeing to market the lots to builders for the construction of houses, Cleveland Brothers agreed that builders who purchased the lots would be required to list for sale the houses built on those lots with Paramount. William A. Cleveland, as legal counsel for Cleveland Brothers, drafted a contract to be signed by each of the builders requiring those builders to list the houses they built on the lots for sale with Paramount. The pertinent portion of the contract provides:
"The understanding of the parties hereto is that Purchaser [the builder] intends to construct and sell houses on the subdivision lots to be conveyed pursuant to this contract. Purchaser [the builder] agrees that all of the subdivision lots acquired by Purchaser [the builder] pursuant to this contract and which are offered for sale be listed for sale with Paramount Real Estate, Inc."
The following builders signed such a contract with Cleveland Brothers: Michael Allen Homes, Wayne Gentry Builder, Polo Construction, Chris Jordan, and Allin & Associates (hereinafter sometimes referred to collectively as "the builders").
In January 2004, Stacy Williams Jordan ("Jordan") entered into a "Broker-Sales Associate Contract Independent Contractor Agreement" with Paramount. Pursuant to the agreement between Jordan and Paramount, Jordan agreed to "work diligently and with [her] best efforts to sell all real estate listed with [Paramount]." Paramount contends that the agreement also required Jordan to protect proprietary information concerning Paramount's clients, property, and contract terms, and not to attempt to divert customers from Paramount.
Jordan's employment with Paramount was terminated on September 22, 2004. Paramount alleges that, before her employment was terminated, Jordan entered into a business relationship with Cleveland Brothers and that she divulged to Cleveland Brothers proprietary information about Paramount and its clients. According to Paramount, Jordan also began contacting the builders in an effort to have them withdraw their listings from Paramount in contravention of the contracts they had signed with Cleveland Brothers. Paramount also alleges that Cleveland Brothers advised the builders that they were not required to honor the terms of their agreements that required them to list their houses with Paramount because, Cleveland Brothers asserted, the agreements were unenforceable. The builders subsequently listed their properties with Hometown Realty, with whom Jordan allegedly had a business relationship.
On March 30, 2006, Jordan sued Paramount seeking to recover from Paramount $103,737 in real-estate commissions. According to Jordan, on the date Paramount terminated her employment, transactions were pending that she had initiated and that Paramount had subsequently completed, for which Jordan was owed commissions.
On May 18, 2006, Paramount filed its "answer" to Jordan's complaint. On the same date, it filed a separate document, which it titled "Counterclaim and Third Party Complaint." In this latter document, Paramount alleged various contract and tort claims against Jordan, William A. Cleveland, Cleveland Brothers, Hometown Realty, and each of the builders relating to the alleged breach or termination by these parties of their contractual and business relationships with Paramount. Among other things, Paramount alleged in its factual recitations that, prior to the termination of her employment as an agent of Paramount, "Jordan conspired with representatives of Hometown Realty, William *660 Cleveland and others to make misrepresentations concerning Paramount," that these alleged misrepresentations were made "with the intent that third parties would forego doing business with Paramount," and that, as a result, the builders breached their agreements with Paramount and began listing their houses for sale with Hometown Realty.
Among the numbered "counts" alleged by Paramount is one titled "Intentional Interference with Contract," in which Paramount alleges that "Paramount had a contractual business relationship with Gentry Builder, Allen Homes, Polo Construction, Allin & Associates, and ... Chris Jordan." Paramount continues by alleging that "Jordan, Cleveland, Hometown Realty and Cleveland Brothers intentionally interfered with the contract or business relationship between Paramount and the [b]uilders."
In a count titled "Civil Conspiracy," Paramount alleged that Cleveland, Cleveland Brothers, Hometown Realty, each of the builders, and Jordan "conspired together in a concerted action to suppress, misrepresent, defame, and intentionally interfere with the contractual relationships between Paramount and the other parties," thereby causing injury to Paramount.
On June 18, 2006, Jordan answered Paramount's counterclaim. On June 22, 2006, Polo Construction Co. filed an answer and also filed a cross-claim against Jordan, Hometown Realty, and William A. Cleveland. The remainder of the parties that had been sued by Paramount filed motions pursuant to Rule 12(b)(6), Ala. R. Civ. P., to dismiss the claims against them based on an alleged failure by Paramount to state a claim upon which relief could be granted.
On October 23, 2006, Jordan filed a "Motion to Sever Counterclaim and for Separate Trial" in which, among other things, she asserted that a jury would be "confused by a joint trial of the issues raised by the Complaint, Counterclaim and Third-Party Complaint." In its "Reply to Motion to Sever Counterclaim and for Separate Trial" filed on January 11, 2007, Paramount explained as follows:
"In this lawsuit, Jordan has made a claim against Paramount for commissions she contends were owed to her pursuant to an agency agreement executed between her and Paramount. Paramount interposed a counterclaim against Jordan asserting that she had breached the same agency agreement.... Paramount asserted in the Counterclaim that Jordan, acting in concert with William A. Cleveland, Cleveland Brothers, Inc., and Hometown Realty (collectively `the Clevelands') contacted builders who had previously agreed to list properties with Paramount and induced them to breach their agreements with Paramount and list their properties for sale with Hometown Realty. These efforts began while Jordan was still working as an agent for Paramount. Paramount joined as Defendants William A. Cleveland, Cleveland Brothers, Inc., and Hometown Realty, [LLC], alleging that they had conspired with Jordan and had tortiously interfered with the business relationship between Paramount and the builders. Paramount also joined as Defendants to the Counterclaim Michael [Allen] Homes, Inc., Wayne Gentry Builder, Inc., Polo Construction [Co.], LLC, and Allin & Associates, Inc. (collectively, `the [b]uilders'). Those [b]uilders, at the urging of Jordan and the Clevelands, had repudiated and breached the agreements they entered with Paramount which required then to use Paramount to list properties they offered for sale."
*661 Paramount then invoked Rules 13(h) and 20, Ala. R. Civ. P.:
"Rule 13(h) of the Alabama Rules of Civil Procedure states as follows:
"`Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20.'
"Rule 20(a) of the Alabama Rules of Civil Procedure provides that:
"`[A]ll persons may be joined in one action as [defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief and respect of or arising out of the same transaction, occurrence, or series of transactions and occurrences and if any question of law or fact common to all defendants will arise any action.'
"Rule 20 `was intended to abolish the technical objections to joinder previously existing, in order to prevent a multiplicity of actions and allow all parties interested in a controversy to proceed in one action.' Guthrie v. Bio-Medical Laboratories, Inc., 442 So. 2d 92, 96 (Ala. 1983). In Mock v. First City National Bank, 352 So. 2d 1112, 1114 (Ala.1977), the Alabama Supreme Court quoted with approval the following passage from its prior opinion in Hooper v. Huey, 293 Ala. 63, [69,] 300 So. 2d 100 [, 105] (1974):
"`Rules 19 and 20, [Ala. R. Civ. P.], which deal with the joinder and alignment of parties[,] are intended to promote trial convenience, prevent a multiplicity of suits, and expedite the final determination of litigation by inclusion in one suit all parties directly interested in the controversy despite technical objects previously existing in many situations.'
"Because the counterclaim against Jordan is grounded in her breach of the same agreement upon which her claim against Paramount is based, those two claims are clearly based upon the same transaction or occurrence, making Paramount's counterclaim compulsory. See, Ala. R. Civ. P. 12. Because the wrongful act of the Clevelands and the [b]uilders were committed in concert with Jordan, and in breach of their respective contractual and common law obligations to Paramount, the predicate facts underlying the counterclaim with respect to all such defendants clearly amount to a `series of transactions or occurrences,' making joinder of all of those parties to the counterclaim proper. As the Alabama Supreme Court noted in Ex parte Turpin Vise Ins. Agency, Inc., 705 So. 2d 368, 371 (Ala.1997) `[t]here is no absolute rule for determining what constitutes "a series of transactions or occurrences." Generally, that is determined on a case by case basis and is left to the discretion of the trial judge.'"
Paramount then engaged in an in-depth discussion of Ex parte Turpin Vise Insurance Agency, Inc., 705 So. 2d 368 (Ala. 1997).
On September 27, 2007, the trial court conducted a hearing on all pending motions. This Court has not been favored with a copy of a transcript of that hearing as part of the record on appeal; however, it appears that the issue of the dismissal of Paramount's claims against parties other than Jordan was raised in relation to the fact that the claims asserted by Paramount against those parties, though included in a pleading titled "Counterclaim and Third-Party Complaint" in which those parties were referred to as "third-party defendants," were not based on any potential liability by Paramount to Jordan as contemplated by Rule 14, Ala. R. Civ. P.
*662 A few days after the hearing, Paramount filed a "Response to Motion to Dismiss by Third-Party Defendants" in which it again addressed the issue of the inclusion of parties other than Jordan in its "Counterclaim and Third-Party Complaint." Consistent with the position it had taken in its January 11, 2007, filing, Paramount contended:
"At the September 27 hearing, the Clevelands argued that dismissal of the third-party claim against them was proper because they could not be adjudged liable to [Paramount] for all or part of the claim asserted by Plaintiff Stacy Williams Jordan against [Paramount] as is required by Rule 14 of the Alabama Rules of Civil Procedure. However, because the claims asserted against the Clevelands by [Paramount] unquestionably arise out of `the same transaction, occurrence, or series of transactions or occurrences and ... [a] question of law or fact common to [the counterclaim asserted against Jordan by Paramount and the claims asserted by Paramount against the Clevelands] will arise in the action,' [Paramount] clearly acted in accordance with the provisions of Rule 20(a) of the Alabama Rules of Civil Procedure by joining the Clevelands as parties to the counterclaim asserted by [Paramount] against Jordan. That the Clevelands might not technically be `third-party Defendants' as that term is used in Rule 14 of the Alabama Rules of Civil Procedure does not matter. As the Supreme Court has recognized, what is controlling is the substance of a pleading, not the label attached to it by a party. Ex parte Ward, [Ms. 1051818, June 1, 2007] ___ So.3d ___ (Ala.2007).
"While [Paramount] believes strongly that this single action should be allowed to proceed against both Jordan and the Clevelands and other parties joined to the counterclaim asserted against Jordan by [Paramount], [Paramount] requests that this Court exercise its authority under Rule 20(b) of the Alabama Rules of Civil Procedure to order a separate trial of the claims asserted by [Paramount] against the Clevelands and the other parties joined to the counterclaim asserted by [Paramount] against Jordan. By taking such a course of action rather than dismissing what is clearly a proper claim, this Court will avoid penalizing [Paramount] by subjecting it to a possible statute of limitations defense which otherwise could not have been asserted against it. Attached to this response is a pro forma order for consideration by the Court."
(Emphasis added.)
On October 15, 2007, the trial court entered an order dismissing Paramount's claims against William A. Cleveland, Cleveland Brothers, Hometown Realty, and each of the builders, as well as certain pending cross-claims between some of these parties. Paramount subsequently filed a motion to alter, amend, or vacate the trial court's order; the trial court failed to rule on this motion. Paramount appealed to this Court.
II. Analysis
This Court has held that it treats pleadings according to their substance, rather than merely their label. See Water Works & Sewer Bd. of Talladega v. Consolidated Publ'g, Inc., 892 So. 2d 859, 864 (Ala.2004) ("This Court has long held that it may consider court filings according to their substance, not their label."); Ex parte McWilliams, 812 So. 2d 318, 322 (Ala. 2001) (construing a pleading according to its substance rather than its label). Here, the substance of the additional claims filed by Paramount qualifies those claims as claims that properly could be filed under *663 Rules 13(h) and 20(a), Ala. R. Civ. P., in conjunction with Paramount's counterclaim against Jordan, which is exactly how Paramount filed them.
Rule 13(h) provides that persons other than the original parties to the action may be joined in accordance with Rule 20 as additional defendants in connection with a party's filing of a counterclaim. Rule 20(a) provides that all persons may be joined in one action as defendants if the claims against them arise out of the same transactions or occurrences. Here, Paramount's additional claims arise out of the same transactions and occurrences as its counterclaim against Jordan, involving as they do allegations that Jordan and the additional parties conspired with one another to interfere with Paramount's contractual rights and business relationships.[1]
Our caselaw supports Paramount's position that the purpose for which it filed the claims against the additional defendants falls squarely within the policy reasons laid out by Rule 20 for allowing such claims to be joined with a counterclaim. In Guthrie v. Bio-Medical Laboratories, Inc., 442 So. 2d 92, 96 (Ala.1983), this Court stated that Rule 20 "was intended to abolish the technical objections to joinder previously existing, in order to prevent a multiplicity of actions and allow all parties interested in a controversy to proceed in one action." Likewise, in Mock v. First City National Bank, 352 So. 2d 1112, 1114 (Ala.1977), the Court explained that
"`[r]ules 19 and 20, [Ala. R. Civ. P.], which deal with the joinder and alignment of parties, are intended to promote trial convenience, prevent a multiplicity of suits, and expedite the final determination of litigation by inclusion in one suit all parties directly interested in the controversy despite technical objects previously existing in many situations.'"
352 So.2d at 1114 (quoting with approval Hooper v. Huey, 293 Ala. 63, 69, 300 So. 2d 100, 105 (1974), overruled on other grounds, Bardin v. Jones, 371 So. 2d 23 (Ala. 1979)). Moreover, "in exercising its discretion in deciding whether to sever claims, the trial court should consider the prejudice that may result to the parties if the claims are severed.[2] Considerations of practicality, judicial economy, and the possibility of inconsistent results are also relevant in that regard." Ex parte Turpin Vise, 705 So.2d at 371.
The trial court should have permitted Paramount to bring these additional parties into the case under Rules 13(h) and 20(a), Ala. R. Civ. P., and it should have treated Paramount's pleadings according to their substance rather than the nomenclature originally given them by Paramount. According to the allegations, the actions of William A. Cleveland, Cleveland Brothers, Hometown Realty, and the builders were committed in concert with Jordan's actions and they clearly relate to "the same ... series of transactions or occurrences," Rule 20(a), Ala. R. Civ. P., making their joinder proper. The trial court improperly elevated the formthe *664 nomenclature initially placed on its pleading by Paramountover the substance of the pleading, and in the process not only failed to apply the principle that this Court will consider the substance of a pleading, but also overlooked the above-quoted principle from Ex parte Turpin Vise regarding considerations of prejudice, as well as practicality and judicial economy.
For these reasons, we reverse the trial court's order dismissing Paramount's claims against Hometown Realty, Wayne Gentry Builder, Michael Allen Homes, Polo Construction Co., Allin & Associates, Chris Jordan, William A. Cleveland, and Cleveland Brothers, and we remand the action for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
COBB, C.J., and LYONS, WOODALL, and PARKER, JJ., concur.
STUART, SMITH, BOLIN, and SHAW, JJ., dissent.
BOLIN, Justice (dissenting).
I respectfully dissent from the main opinion. It is clear from the record that the trial court dismissed the third-party complaint filed by Century 21 Paramount Real Estate, Inc. ("Paramount"), as well as the cross-claims stemming from the third-party complaint, because the third-party defendants were improperly joined. Rule 14(a), Ala. R. Civ. P., allows a defending party such as Paramount to bring into the original action a nonparty who is or may be liable to the defending party for all or part of the plaintiff's original claims against the defending party. Specifically, Rule 14(a), Ala. R. Civ. P., provides:
"At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claims against the third-party plaintiff."
After Stacy Williams Jordan sued Paramount to recover real-estate commissions she alleges were due under her employment agreement with Paramount, Paramount filed a counterclaim against Jordan and a third-party complaint against Cleveland Brothers, William A. Cleveland, Hometown Realty, LLC, and each of the builders. The pertinent part of the complaint states:
"COUNTERCLAIM and THIRD-PARTY COMPLAINT
"Comes now the Counterclaim Plaintiff and Third-Party Plaintiff, Century 21 Paramount Real Estate, Inc. (hereinafter `Paramount') and files this counterclaim against Stacy Williams Jordan and this third-party complaint against Hometown Realty, LLC, Michael Allen Homes, Inc., Wayne Gentry Builder, Inc., Polo Construction Company, LLC, Allin & Associates, Inc., Chris Jordan, William A. Cleveland and Cleveland Brothers, Inc."
(Capitalization in original.)
It is undisputed that Paramount's third-party complaint does not assert a right of indemnity for any sums Paramount might be forced to pay Jordan. Even assuming Paramount did assert a right of indemnity, the third-party claims are not derivative claims. The third-party claims asserted by Paramount against the third-party defendants are based upon different theories of law than those asserted by Jordan in the original action against Paramount. Specifically, the third-party claims asserted by Paramount against the third-party defendants are based upon separate written instruments. Jordan sued Paramount, to recover real-estate commissions through the enforcement of her employment agreement. *665 Paramount, on the other hand, sued the third-party defendants, seeking enforcement of the contracts between Cleveland Brothers and the various builders. There is simply no way the third-party defendants here can be held liable secondarily to Paramount in the event Jordan recovers real-estate commissions from Paramount. Because the employment agreement between Paramount and Jordan and the contracts between Cleveland Brothers and the builders are separate and distinct agreements, Paramount cannot bring its action under Rule 14(a), Ala. R. Civ. P. See Allstate Ins. Co. v. Hugh Cole Builder, Inc., 187 F.R.D. 671, 674 (M.D.Ala.1999)("Because [Paramount] attempt[s] to assert separate and independent claims and [does] not assert derivative liability on the part of the Third-Party Defendants, [Paramount] cannot bring [its] claims against [the third-party defendants] in the present action under Rule 14(a)[, Fed.R.Civ.P.].").
Following the trial court's hearing on the third-party defendants' motion to dismiss, Paramount filed a "response to motion to dismiss third-party defendants," apparently requesting for the first time that the trial court exercise its authority under Rule 20(b), Ala. R. Civ. P., and order a separate trial of the claims it had brought against the third-party defendants. Specifically, Paramount asserted that the language in its initial complaint joining the third-party defendants was merely nomenclature and that the third-party defendants had been properly joined by virtue of the counterclaim Paramount had asserted against Jordan. For a better understanding of Paramount's argument, I quote the pertinent part of its motion:
"At the September 27 hearing, [the third-party defendants] argued that dismissal of the third-party claim against them was proper because they could not be adjudged liable to [Paramount] for all or part of the claim asserted by [Jordan] against [Paramount] as is required by Rule 14 of the Alabama Rules of Civil Procedure. However, because the claims asserted against [the third-party defendants] unquestionably arise out of `the same transaction, occurrence, or series of transactions or occurrences and... [a] question of law or fact common to [the counterclaim asserted against Jordan by [Paramount] and the claims asserted by [Paramount] against [the third-party defendants]] will arise in the action,' [Paramount] clearly acted in accordance with the provisions of Rule 20(a) of the Alabama Rules of Civil Procedure by joining [the third-party defendants] as parties to the counterclaim asserted by [Paramount] against Jordan. That [the third-party defendants] might not technically be `third-party defendants' as that term is used in Rule 14... does not matter. As the Supreme Court has recognized, what is controlling is the substance of the pleading, not the label attached to it by a party....
"While [Paramount] believes strongly that this single action should be allowed to proceed against both Jordan [as well as the third-party defendants] and other parties joined to the counterclaim asserted against Jordan by [Paramount], [Paramount] requests that this court exercise its authority under Rule 20(b) of the Alabama Rules of Civil Procedure to order a separate trial of the claims asserted by [Paramount] against [the third-party defendants] joined to the counterclaim asserted by [Paramount] against Jordan. By taking such a course of action rather than dismissing what is clearly a proper claim, this court will avoid penalizing [Paramount] by subjecting it to a possible statute of limitations defense which otherwise *666 could not have been asserted against it...."
(Emphasis added.)
Paramount asserts this same argument in its brief on appeal. As noted previously, it does not appear that Paramount made this argument during the hearing on the motions to dismiss the third-party complaint. Paramount seemingly believes that because it filed a compulsory counterclaim against Jordan pursuant to Rule 13(h), Ala. R. Civ. P., the third-party defendants were automatically joined as parties to that counterclaim in accordance with Rule 20(a), Ala. R. Civ. P. The only related authority cited by Paramount in its brief on appeal is Ex parte Turpin Vise Insurance Agency, Inc., 705 So. 2d 368, 371 (Ala.1997). Paramount cites Ex parte Turpin Vise for the proposition that its claims against the third-party defendants are proper because they arise out of the same series of transactions or occurrences as the original action and that "`there is no absolute rule for determining what constitutes "a series of transactions or occurrences" [under Rule 20]. Generally, that is determined on a case by case basis and is left to the discretion of the trial judge.'" 705 So.2d at 371 (quoting Ex parte Rudolph, 515 So. 2d 704, 706 (Ala. 1987)). However, Paramount, in relying on this case, seemingly ignores the fact that it had already served the third-party defendants with a third-party complaint, requiring the third-party defendants to defend that complaint by establishing that they were not secondarily liable to Paramount in the event Paramount was liable to Jordan. The defense to a third-party complaint is not the same defense a defendant would make if joined as an additional defendant to a counterclaim. Certainly Paramount should have realized this fact when the parties filed their answers, stated their defenses, and moved to dismiss the third-party complaint. Paramount cites no authority to demonstrate that the trial court could recharacterize the third-party claims as compulsory counterclaims or that the third-party defendants could be joined under both Rule 14(a), Ala. R. Civ. P., and Rule 13(h), Ala. R. Civ. P. Joinder under these rules is separate and unique.
As previously quoted, Rule 14, Ala. R. Civ. P., provides, in pertinent part:
"(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claims against the third-party plaintiff."
(Emphasis added.)
Rule 13(h), Ala. R. Civ. P., provides:
"(h) Joinder of Additional Parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rule 19 and 20."
Rule 20, Ala. R. Civ. P., provides, in pertinent part:
"(a) Permissive Joinder.... All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action...."
In Allstate Insurance Co. v. Hugh Cole Builder, Inc., supra, the United States District Court for the Middle District of Alabama, discussing the distinction between joinder under Rule 14 and Rule 13 *667 of the Federal Rules of Civil Procedure, wrote:
"Addressing Rule 14(a), the Fifth Circuit held that impleader is permitted `only in cases where the Third Party's liability was in some way derivative of the outcome of the main claim.' United States v. Joe Grasso & Son, Inc., 380 F.2d 749, 751 (1967). Thus, for impleader to be available, the Third Party must be `"liable secondarily to the original defendant in the event that the latter is held liable to the plaintiff."' Id. (citation omitted). `[A]n entirely separate and independent claim cannot be maintained against a Third Party under Rule 14, even though it does arise out of the same general set of facts as the main claim.' Id. ...
"`[T]he test for joinder of a Third Party under the impleader rule is not transactional. Thus, it differs from the standards [under Rule 13(a)] [for] compulsory counterclaims and cross-claims, which are appropriate only if they arise from the same "transaction or occurrence" as the underlying suit. Impleader, in contrast, is narrower. It must involve an attempt to pass on to the Third Party all or part of the liability asserted against the defendant. Thus, it must be an assertion of the third-party defendant's derivative liability to the third-party plaintiff. An impleader claim cannot be used to assert any and all rights to recovery arising from the same transaction or occurrence as the underlying action.'"
187 F.R.D. at 673 (final emphasis added; footnote omitted).
In this case, Paramount sought recovery in a third-party complaint. Paramount recognized late in the game, however, i.e., apparently after the hearing on the motion to dismiss the third-party complaint, that it had used the wrong procedural vehicle to join the third-party defendants. Paramount's after-the-fact attempt to recharacterize the third-party claims as compulsory counterclaims should not be allowed.
Based on the foregoing, I do not believe the trial court exceeded its discretion in dismissing the third-party complaint and all cross-claims stemming from the third-party complaint. Therefore, I dissent.
STUART, SMITH, and SHAW, JJ., concur.
NOTES
[1] To the extent that Paramount has some claims against Jordan that it does not have against the other defendants (e.g., breach of her employment contract), Rule 20(a) makes it clear that persons joined as defendants in conjunction with the filing of a counterclaim by the defendant to the original complaint need not all "be interested in ... defending against all the relief demanded."
[2] Certainly, there would have been no prejudice to the newly named defendants if the trial court had granted Paramount's request that it treat Paramount's pleading according to its substance, rather than its nomenclature. Paramount, however, would be prejudiced by the denial of that request given the fact that the statute of limitations has since run. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565639/ | 40 F.2d 394 (1930)
CHESAPEAKE LIGHTERAGE & TOWING CO., Inc.,
v.
BALTIMORE COPPER SMELTING & ROLLING CO.
No. 2940.
Circuit Court of Appeals, Fourth Circuit.
April 8, 1930.
Harry N. Abercrombie and J. Craig McLanahan, both of Baltimore, Md., for appellant.
William A. Grimes and Robert W. Williams, both of Baltimore, Md. (Janney, Ober, Slingluff & Williams, of Baltimore, Md., on the brief), for appellee.
Before PARKER and NORTHCOTT, Circuit Judges, and HAYES, District Judge.
NORTHCOTT, Circuit Judge.
This is an appeal by Chesapeake Lighterage & Towing Company, Incorporated, from a final decree in admiralty of the District Court of the United States for the District of Maryland, entered on April 25, 1929.
The case originated in a libel filed by Baltimore Copper Smelting & Rolling Company, appellee, against Chesapeake Lighterage & Towing Company, appellant, wherein the appellee claimed damages on account of the cost to which it had been put in salvaging certain copper wire bars which had been loaded on lighter No. 314, which belonged to the appellant, and which sunk in Baltimore Harbor in the early morning of August 31, 1927. In this libel, the appellee alleged that the sinking of the lighter was due to the unseaworthiness thereof.
To this libel the appellant filed an answer denying the unseaworthiness of the lighter and alleging that the sinking thereof was occasioned by the faulty loading of the copper bars by the appellee. The appellant also in its answer sought to limit its liability to the value of the lighter following the accident.
The appellant further filed a cross-libel against the appellee claiming damages for the loss of the lighter and again alleging that its loss was due to the faulty loading of the copper bars by the appellee. To the latter libel, the appellee answered denying its liability on the ground that it was not at fault in loading the lighter.
These two cases were consolidated by order of court and were heard together. A final decree was entered in favor of the appellee, Baltimore Copper Smelting & Rolling Company, directing the Chesapeake Lighterage & Towing Company, Incorporated, appellant, to pay the appellee $4,492.12 (the cost of salvaging the copper) with interest from November 3, 1927. In arriving at this decree, the District Court held: (1) That the copper bars were properly loaded on board the lighter by the copper company; (2) that the lighter was unseaworthy when delivered by the lighterage company to the copper company; (3) that the unseaworthiness of the lighter was the sole cause of the sinking; and *395 (4) that the lighterage company was not entitled to limit liability.
The only questions involved here are questions of fact, all of which questions were determined by the learned trial judge after hearing the evidence. It has been long settled in this court that the finding of the District Court having support in the evidence will not be reversed unless we reach the conclusion that that finding is clearly wrong. In Virginia Shipbuilding Corporation v. United States, 22 F.(2d) 38, 51, Judge Parker, speaking for this court, said: "It is settled that we will not reverse a finding of the District Court having support in the evidence unless we think that the Judge has misapprehended the evidence or gone against the clear weight thereof, or, in other words, unless we think that his finding was clearly wrong."
In other cases this court has laid down the same rule. Pendleton Bros., Inc., v. Morgan (C. C. A.) 11 F.(2d) 67; Standard Wholesale Phosphate & Acid Works, Inc., v. Chesapeake Lighterage & Towing Company, Inc. (C. C. A.) 16 F.(2d) 765; Wolf Mineral Process Corporation v. Minerals Separation North American Corporation (C. C. A.) 18 F.(2d) 483; International Organization, United Mine Workers of America et al. v. Red Jacket Consol. Coal & Coke Co. et al. (C. C. A.) 18 F.(2d) 839.
In Lewis v. Jones, 27 F.(2d) 72, 74, this court said: "On the second question, it is unnecessary to cite authority to sustain the proposition that the finding of the trial judge, who had the opportunity of seeing the witnesses, hearing their story, judging their appearance, manner, and credibility, on the question of fact, is entitled to great weight, and will not be set aside unless clearly wrong."
The judge below, in a well-considered opinion, thoroughly discusses the evidence and gives the reasons for his conclusions. After a careful study of the record, we are of the opinion that the findings of fact of the trial judge were not only not clearly wrong, but were correct, and that he could not have properly reached any other conclusion.
While there is some conflict in the testimony, it seems to us that it was clearly established that the lighter was properly loaded by the employees of the appellee, and that the barge was in an unseaworthy condition at the time it was offered by appellant to appellee for service.
We are also of the opinion that the judge below held properly upon the question of limitation of liability. Section 183, 46 US CA, reads as follows:
"Liability of Owner not to Exceed Interest. The liability of the owner of any vessel, for any embezzlement, loss, or destruction, by any person, of any property, goods, or merchandise, shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred without the privity, or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending."
For authorities on the law that controls the question as to the privity or knowledge of the owner, reference to The Virginia (D. C.) 264 F. 986, Sorenson et al. v. Boston Insurance Co. of Boston, Mass., 20 F.(2d) 640, and Bank Line v. Porter (The Poleric) 25 F.(2d) 843, will show the rule as laid down by this court. Under these decisions the judge below rightly held that the superintendent of the appellant company could, by proper inspection, have discovered the unseaworthiness of the barge, and that the appellant was therefore chargeable with knowledge of such unseaworthiness.
The decree of the court below is accordingly affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557318/ | 30 So.3d 511 (2010)
LOCK
v.
STATE.
No. 5D10-149.
District Court of Appeal of Florida, Fifth District.
March 16, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584350/ | 233 P.3d 817 (2010)
348 Or. 414
STATE
v.
GRAHAM.
(S058339).
Supreme Court of Oregon.
June 11, 2010.
Petition for Review Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560424/ | 18 So.3d 923 (2009)
Sterling PITTMAN, Appellant
v.
DYKES TIMBER CO., INC., Appellee.
No. 2008-CA-00896-COA.
Court of Appeals of Mississippi.
October 6, 2009.
*924 Richard H. Barker, for Appellant.
William Matthew Vines, Jackson, Thurman Lavelle Boykin, for Appellee.
Before MYERS, P.J., ISHEE and MAXWELL, JJ.
MAXWELL, J., for the Court.
¶ 1. A jury in the Circuit Court of Simpson County found Dykes Timber Co., Inc. (Dykes Timber), liable for the wrongful cutting of timber and resulting property damage, and awarded the plaintiff, Sterling Pittman, $3,200. Aggrieved by the amount of the jury's verdict, Pittman appeals and raises the following assignments of error: (1) the trial court erred in entering judgment on the jury's verdict; (2) the trial court erred by refusing to allow Pittman to pursue claims for general damages; and (3) the trial court erred by refusing to allow Pittman to call the defendant's expert witness on cross-examination in his case-in-chief.
¶ 2. Finding no merit to Pittman's arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶ 3. On March 7, 2000, Pittman and Dykes Timber executed a notarized warranty timber deed. The deed reflected that Pittman agreed to sell Dykes Timber "all merchantable timber" on 1.62 acres of Pittman's land in Simpson County, Mississippi. According to the deed, Dykes Timber had eighteen months to harvest the trees. The document also reflected that Dykes Timber was provided full rights of ingress and egress, the right to clear areas of land to use as roads, ramps, and loading areas, and the right to clear trees as necessary to harvest the timber. In exchange for the timber, Pittman received $5,000.
¶ 4. At trial, Pittman maintained that he did not accept the written terms of the timber deed. Rather, he claimed that during negotiations, he and a Dykes Timber employee agreed that the company would harvest only the chip and saw pines on a smaller specified part of the 1.62 acre tract. Pittman also contended that he told a Dykes Timber employee that he wanted to be present at all times during the harvesting. In addition, Pittman testified that although he signed the deed before a notary public, a Dykes Timber employee ran off with the deed before Pittman had the opportunity to read it. Pittman further testified that he has never read the deed and that Dykes Timber refused to give him a copy of it.
*925 ¶ 5. During trial, it was established that Dykes Timber began harvesting trees while Pittman was away working offshore. Pittman testified that when he returned home, he became upset because the company had already begun harvesting and had cut down every tree except the chip and saw pines. Dykes Timber employees returned to the property to continue harvesting timber on January 10, 2001, but left after Pittman threatened them and ordered them to immediately vacate his land. Robert Dykes, the president of Dykes Timber, testified that because Pittman ordered the crew to leave his property, Dykes decided not to have the crew return to Pittman's land, even though Dykes had already paid Pittman $5,000.
¶ 6. On December 27, 2001, Pittman filed suit against Dykes Timber. He alleged that Dykes Timber cut forty small pine trees, four large pine trees, and around thirty oak trees without his consent. He also alleged that Dykes Timber destroyed a new wooden fence, crushed a sewer line and septic tank, created huge ruts on his property, knocked down a power line which resulted in a ruined freezer of venison, destroyed a redwood henhouse, and bulldozed Pittman's barbed wire and chickenwire fences. Pittman sought $300,000 in compensatory and punitive damages for his alleged losses.
¶ 7. At the conclusion of a one-day trial, the jury returned a verdict in favor of Pittman and assessed damages against Dykes Timber in the amount of $3,200. The trial court entered judgment on April 11, 2008, and neither party filed post-trial motions.
ANALYSIS OF THE ISSUES
¶ 8. Pittman raises three issues on appeal but failed to include any supporting authority to substantiate his arguments. Though he includes a "Table of Citations" page at the beginning of his brief, it contains no citations to legal authority. The supreme court instructs that it is Pittman's duty to provide legal authority to support his argument. See Jones v. Howell, 827 So.2d 691, 702(¶ 40) (Miss.2002) (citations omitted). Arguments without supporting legal authority are considered abandoned, and this Court need not consider them. Id. Because Pittman failed to include any legal authority in support of his contentions in his brief, his arguments are all procedurally barred. Notwithstanding the procedural bars, we find Pittman's claims also fail on the merits for the reasons addressed below.
I. Weight of the Evidence
A. Standard of Review
¶ 9. "[I]t is primarily the province of the jury ... to determine the amount of damages to be awarded and the award will normally not be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous." Thompson ex rel. Thompson v. Lee County Sch. Dist., 925 So.2d 57, 72(¶ 23) (Miss. 2006) (quoting Foster v. Noel, 715 So.2d 174, 183(¶ 56) (Miss.1998)).
B. Procedural Bar
¶ 10. Pittman argues that the amount of damages should have been greater, apparently (although not explicitly) arguing that the verdict is against the overwhelming weight of the evidence. However, the record reveals he failed to move the trial court for a judgment notwithstanding the verdict (JNOV) or for a new trial. It is well established that a litigant may not argue on appeal that the verdict is against the weight or sufficiency of the evidence without first presenting such objection to the trial court. See, e.g., Holmes v. State, 798 So.2d 533, 537(¶ 16) *926 (Miss.2001). The purpose of this rule is to ensure that "a trial judge cannot be put in error on a matter which was never presented to him for decision.... [T]he rule applies in both criminal and civil cases...." Cooper v. Lawson, 264 So.2d 890, 891 (Miss.1972) (citation omitted). Therefore, by failing to request a new trial or JNOV, Pittman waived his opportunity to challenge the jury's determination of damages.
C. Damages
¶ 11. Although Pittman is barred from challenging the amount of the jury's award, after reviewing the record, we note that the jury was properly instructed on the various types of damages sought by Pittman. At the conclusion of Dykes Timber's case, the court held a jury-instruction conference. Though Pittman offered no proposed instructions, the court accepted, without objection from Pittman, several of Dykes Timber's instructions which outlined Pittman's burden of proof. The trial court also instructed the jury on the proper calculation of damages in the event that Dykes Timber was found liable.
¶ 12. Mississippi Code Annotated section 95-5-10 (Supp.2008) provides for statutory damages if trees are cut down, destroyed, or taken without consent of the owner. According to section 95-5-10(1):
If any person shall cut down, deaden, destroy or take away any tree without the consent of the owner of such tree, such person shall pay to the owner of such tree a sum equal to double the fair market value of the tree cut down, deadened, destroyed or taken away, together with the reasonable cost of reforestation, which cost shall not exceed Two Hundred Fifty Dollars ($ 250.00) per acre.... To establish a right of the owner prima facie to recover under the provisions of this subsection, the owner shall only be required to show that such timber belonged to such owner, and that such timber was cut down, deadened, destroyed or taken away by the defendant... without the consent of such owner.
In order to collect damages, the owner must show: (1) he owned the timber, and (2) the timber was cut down without his consent. Muirhead v. Vaughn, 878 So.2d 1028, 1032(¶ 12) (Miss.Ct.App.2004).
¶ 13. The jury was informed of the compensatory and statutory damages available if it determined Pittman proved by a preponderance of the evidence that Dykes Timber had cut down his trees without his consent.
¶ 14. Although a will was admitted into evidence which showed that Pittman had inherited the land from his parents, the jury also heard contradictory testimony from his brother, Rockford Pittman. Rockford told the jury that some of the trees cut by Dykes Timber were actually on Rockford's property.
¶ 15. The jury also heard conflicting evidence about the deed. During the trial, Pittman admitted signing a timber deed which reflected that Dykes Timber had paid him $5,000 to cut trees on a 1.62 acre tract of land. However, Pittman's recollection of the deed he thought he had signed and the deed that was offered during trial differed drastically. The deed presented by Dykes Timber at trial reflected a sale of "all merchantable timber" on a 1.62 acre of land without limitation. But Pittman claimed he only granted Dykes Timber permission to cut specific trees on the 1.62 acre parcel. He also contended he was required to be present during the harvesting. The trial judge recognized the discrepancies about the terms of the deed and admitted Pittman's parol evidence because he found: "it's not *927 a foregone conclusion that this is the contract the parties signed which governed their timber transaction. So I'll let that whole question go to the jury."
¶ 16. The jury heard conflicting evidence about the ownership of the timber and whether Pittman had in fact contracted with Dykes Timber to cut "all merchantable timber" on his land and ultimately awarded Pittman $3,200 in damages. It has long been held that "[w]hen the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony." Harris v. State, 970 So.2d 151, 156(¶ 20) (Miss.2007) (quoting Gathright v. State, 380 So.2d 1276, 1278 (Miss. 1980)). Based on the conflict between the terms of the deed and testimony elicited at trial, we cannot find that the jury's verdict was in error or that its award was outrageous or unreasonable.
¶ 17. Pittman also contends he should have been awarded statutory damages under Mississippi Code Annotated section 95-5-10(2) (Rev.2004) for tree removal. Section 95-5-10(2) provides for statutory damages:
If the cutting down, deadening, destruction or taking away of a tree without the consent of the owner of such tree be done willfully, or in reckless disregard for the rights of the owner of such tree, then in addition to the damages provided for in subsection (1) of this section, the person cutting down, deadening, destroying or taking away such tree shall pay to the owner as a penalty Fifty-five Dollars ($55.00) for every tree so cut down, deadened, destroyed or taken away if such tree is seven (7) inches or more in diameter at a height of eighteen (18) inches above ground level, or Ten Dollars ($10.00) for every such tree so cut down, deadened, destroyed or taken away if such tree is less than seven (7) inches in diameter at a height of eighteen (18) inches above ground level, as established by a preponderance of the evidence. To establish the right of the owner prima facie, to recover under the provisions of this subsection, it shall be required of the owner to show that the defendant ... willfully and knowingly, in conscious disregard for the rights of the owner, cut down, deadened, destroyed or took away such trees.
The trial judge instructed the jury on the burden of proof and required elements under section 95-5-10(2). Though Pittman did produce some photographic evidence of trees he claimed were illegally cut, he mainly relied on the testimony of his neighbor, Clinton Thames; his brother, Rockford; and himself.
¶ 18. During trial, Thames testified that some pine trees had been cut down on Pittman's land. However, when Pittman's attorney questioned Thames about the number of pines that had been cut down, Thames told the jury, "there were a number of pines. I can't tell you how many because, you know.... I didn't even want to go out there and look."
¶ 19. Rockford also testified that he did not know the "exact number" of trees that were wrongfully cut from the 1.62 acre tract of land, but that it was "quite a few." We note that neither Thames nor Rockford were able to provide a general number, much less a specific count of the alleged harvested trees.
¶ 20. Finally, Pittman testified that, "guesstimating," forty small pine trees, "like 38 oak trees and four big pine trees" were cut by Dykes Timber without his consent. He also alleged that Dykes Timber caused other property damage to his homestead and gave amounts for this damage.
*928 ¶ 21. Pittman argues that each witness testified about trees that were illegally cut, and he claims their testimonies were "neither impeached nor rebutted by any other witness or evidence." However, it is well settled that "decisions as to the weight and credibility of a witness's statement are the proper province of the jury...." Durdin v. State, 924 So.2d 562, 565(¶ 12) (Miss.Ct. App.2005) (quoting Doe v. Stegall, 757 So.2d 201, 205(¶ 12) (Miss.2000)). During Pittman's testimony, he was reprimanded on numerous occasions by the trial judge for his behavior. Several times Pittman claimed not to remember things because he was "10,000 narcotic pills along." He also testified that he could not count all of the stumps because Dykes Timber had equipment that "was capable of clipping the trees off with pinchers below the surface of the soil." Other testimony revealed that Pittman thought Dykes Timber was only authorized to enter his property "by helicopter." Pittman also testified that he had eaten human flesh. The jury was certainly free to make its own credibility determinations, and it was not required to accept or believe the testimony of Pittman, Rockford, or Thames.
¶ 22. Even though his attack on the amount of the verdict is procedurally barred, we note that the jury did award Pittman $3,200 in damages. Based on the record before us, we do not find that this award was unreasonably or outrageously low. Accordingly, the trial judge did not err by entering judgment on the jury's verdict.
II. Claim for General Damages
¶ 23. Pittman claims he offered sufficient evidence of fraudulent conversion, trespassing, and property destruction, but the trial court erroneously excluded these general damages from the jury's consideration. However, Pittman does not identify which ruling he refers to when he claims that the court erred by its "refusal to admit plaintiff's evidence of general damages." Pittman also fails to include legal authority to support this statement.
¶ 24. Regardless, Pittman's claim for general damages based on fraud and trespass is procedurally barred because he did not preserve the issue for appeal. "The law is well settled in Mississippi that appellate courts will not put trial courts in error for issues not first presented to the trial court for resolution, and that issues not presented in the trial court cannot be first argued on appeal." Purvis v. Barnes, 791 So.2d 199, 202(¶ 7) (Miss. 2001) (citation omitted). At trial, Pittman did not even ask the judge to instruct the jury on general damages. Instead, he offered a boilerplate form of the verdict that had originally been provided and withdrawn by Dykes Timber. Also, when the judge asked Pittman's attorney if this was a property-damage case, the following exchange occurred:
ATTORNEY FOR DYKES TIMBER: Your Honor, we object to this too. This is ... a case governed by a statute, the timber trespass statute.
THE COURT: It is a property damage case; is it not.
ATTORNEY FOR PITTMAN: Yes, it is.
THE COURT: All right. Objection sustained.
Because Pittman did not pursue general damages at trial, we find this issue is without merit.
III. Expert Witness
¶ 25. Finally, Pittman contends the trial court committed reversible error by preventing Les Shelby, a forester, from giving expert opinion testimony during Pittman's case-in-chief. "Our well-established standard ... for reviewing the trial *929 court's [rulings as to the] admissibility of evidence, including expert testimony, is abuse of discretion." Jones v. State, 918 So.2d 1220, 1223(¶ 9) (Miss.2005) (citations omitted). "Unless we can safely say that the trial court abused its judicial discretion in allowing or disallowing evidence so as to prejudice a party in a civil case ... we will affirm the trial court's ruling." Id.
¶ 26. With only an off-the-record discussion held on this issue, the trial court's reasoning behind its ruling was not preserved for our review. However, the record reveals that Pittman did not designate any experts during the discovery phase of this matter and did not indicate his desire to call Shelby as a witness prior to trial, as he was required to do under Mississippi Rule of Civil Procedure 26(b)(4)(A)(i).
¶ 27. Dykes Timber had listed Shelby as an expert witness, but he did not call Shelby at trial. Pittman tried to call Shelby as an expert witness in his case-in-chief, but the trial court refused his request. Under Rule 26(b)(4)(A)(i), a party must "identify each person whom they expect to call as an expert witness at trial, and to state the subject matter and substance of their testimony, as well as a summary of the basis for each opinion." Warren v. Sandoz Pharms. Corp., 783 So.2d 735, 742(¶ 15) (Miss.Ct.App.2000). "Procedural rights created under this rule must be taken seriously." Harris v. Gen. Host Corp., 503 So.2d 795, 797 (Miss. 1986) (citations omitted). "Our trial judges also have a right to expect compliance with their orders, and when parties and/or attorneys fail to adhere to the provisions of these orders, they should be prepared to do so at their own peril." Bowie v. Montfort Jones Mem'l Hosp., 861 So.2d 1037, 1042(¶ 14) (Miss.2003).
¶ 28. Had Pittman wished to preserve this issue for appeal, he was required to make a proffer of the witness's proposed testimony. M.R.E. 103(a)(2). This Court previously held in Redhead v. Entergy Mississippi, Inc., 828 So.2d 801, 812-13 (¶¶ 35-37) (Miss.Ct.App.2001), that a party claiming he should have been permitted to call the other party's expert as an adverse witness during his own case-in-chief was required to make a proffer of the content of the proposed testimony to preserve the issue for appeal. Because Pittman neglected to make a proffer of the proposed expert testimony, the issue was not properly preserved for our review. Therefore, this assignment of error is without merit.
¶ 29. Accordingly, for the reasons cited herein, the judgment of the trial court is affirmed.
¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF SIMPSON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557433/ | 30 So.3d 499 (2010)
CLAPMAN
v.
SCOTT.
No. 2D10-834.
District Court of Appeal of Florida, Second District.
March 8, 2010.
Decision Without Published Opinion Habeas Corpus granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557435/ | 30 So.3d 696 (2010)
James Edward POOLE, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-3211.
District Court of Appeal of Florida, Second District.
March 26, 2010.
*697 James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.
WALLACE, Judge.
James Edward Poole appeals his judgment and sentence for murder in the second degree. After a thorough review of the record, we conclude that the State failed to establish a prima facie case of second-degree murder. For this reason, we reverse Poole's judgment and sentence and remand for the trial court to adjudge Poole guilty of the lesser offense of manslaughter[1] and to resentence him accordingly.
I. THE FACTS
The State obtained an indictment against Poole for the murder in the first degree of Darryl Newsome, one of Poole's drinking companions. Newsome had no fixed address, and his acquaintances referred to him as a "floater." Newsome was a large man; he was six feet tall, weighed 273 pounds, and was very strong. Newsome also had a reputation for violence, especially after he had consumed alcohol or drugs.
Newsome, Poole, and several other men were regular visitors at the recreational vehicle where Jerry Headley lived in Tampa. Newsome frequently bullied Headley. Headley had cancer, and he was debilitated as a result of his illness.
On the afternoon of October 17, 2007, Newsome, G.M., and one or two other men had gathered at Headley's recreational vehicle. The recreational vehicle was quite small, and the men congregated outside drinking beer and whiskey. Before the incident that led to his death, Newsome had also been smoking crack cocaine.
Poole arrived at Headley's recreational vehicle when it was beginning to get dark. The drinking continued. G.M. complained to Poole that Newsome had taken Headley's electric fan. G.M. was lying on the ground because of the effects of his intoxication. Newsome began to kick G.M. in the back and told him that he was going to beat him. Poole cautioned Newsome to leave G.M. alone because G.M. "was too drunk to even mess with." Next, Newsome went inside Headley's recreational vehicle. Taking advantage of Newsome's retreat, G.M. wisely followed Poole's advice to leave.
*698 Later in the evening, all of the men had left the area except Headley and Poole. The two men were inside Headley's recreational vehicle watching a football game on television. Newsome suddenly returned a few minutes after he had departed and sat down inside the recreational vehicle. The incident that led to Newsome's death quickly followed. Thus the only witnesses to the killing of Newsome were Headley and Poole. For reasons unexplained in our record, Headley did not testify at trial. For this reason, Poole provided the only evidence concerning what led to Newsome's death.
According to Poole, when Newsome returned to the recreational vehicle, he was visibly angry. Newsome sat in a chair with his fists balled up, his eyes as "big as half dollars," and moving his lips but not saying anything. Poole had armed himself with a steak knife from Headley's kitchen because he was afraid Newsome was going to hurt either him or Headley. Newsome was a larger man than Poole. Poole was afraid of Newsome; he believed that he would not be able to defeat Newsome in a fight.
Suddenly, Newsome got up and lunged at Poole in the cramped confines of the recreational vehicle.[2] Poole removed the steak knife from his pocket and stabbed Newsome once. Poole testified that when Newsome got up and lunged at him he was in fear that Newsome was going to harm him because Newsome was still angry about the earlier incident when Poole had told Newsome to break off his attack on the obviously intoxicated G.M. Poole said that he was motivated by fear for his own safety, not hatred of Newsome or a wish to kill him. However, there was no evidence that Newsome was armed.
Poole's single strike with the knife punctured Newsome's heart and the left side of his diaphragm. Newsome survived long enough to stagger out of the recreational vehicle to a pay phone at a nearby convenience store. Newsome used the phone and apparently called 911. After he had used the pay phone, Newsome collapsed in the convenience store parking lot. Two Hillsborough County Sheriff's deputies who were conducting an unrelated surveillance operation saw Newsome and came to his aid. Newsome soon died as a result of internal hemorrhaging resulting from the stab wound.
Meanwhile, Poole and Headley remained in the recreational vehicle and awaited the arrival of law enforcement officers. The sheriff's deputies who responded to the scene described both men as having the odor of alcoholic beverages about their persons. Later, a toxicology screen performed on Newsome by the medical examiner showed an alcohol level of .06 percent in his blood and was also positive for the presence of cocaine.
The trial court denied the defense motion for judgment of acquittal and submitted the case to the jury on the charge of murder in the first degree. The jury returned a verdict finding Poole guilty of the lesser-included offense of second-degree murder. The trial court adjudged Poole to be guilty and sentenced him to serve a term of twenty years in prison followed by five years of drug offender probation. This appeal followed.
II. DISCUSSION
In his first point, Poole argues that the evidence was insufficient to support his conviction for second-degree murder. We agree. The evidence showed that Newsome *699 and Poole had socialized and drunk together for several years. On the day Newsome was killed, both men had been drinking with Headley and other men at Headley's recreational vehicle. Later in the evening, Headley and Poole were alone with Newsome inside the small recreational vehicle. Newsome, who had also been smoking crack cocaine, was apparently still angry about Poole's earlier intervention on behalf of G.M. Without warning, Newsome lunged at Poole in an apparent attack. Poole, who had nowhere to retreat, lashed out once at Newsome with the knife. Unfortunately, Poole's single blow mortally wounded Newsome.
Newsome was unarmed, and it did not appear that he was aware that Poole had previously armed himself with a knife. Thus Poole's act of stabbing Newsome through the heart appears excessive, and the jury could reasonably reject his theory of self-defense. However, the State failed to prove that Poole acted out of ill will, hatred, spite, or an evil intent showing the depraved mind essential to establish second-degree murder. Instead, Poole stabbed Newsome because he "knew [Newsome] was fixing to get me." Thus the evidence showed an impulsive overreaction by Poole to Newsome's attack that warrants a conviction for manslaughter but not second-degree murder. See Bellamy v. State, 977 So.2d 682, 684 (Fla. 2d DCA 2008); Light v. State, 841 So.2d 623, 626 (Fla. 2d DCA 2003); Rayl v. State, 765 So.2d 917, 919-20 (Fla. 2d DCA 2000); Williams v. State, 674 So.2d 177, 178 (Fla. 2d DCA 1996); McDaniel v. State, 620 So.2d 1308, 1308 (Fla. 4th DCA 1993); Borders v. State, 433 So.2d 1325, 1326 (Fla. 3d DCA 1983); Pierce v. State, 376 So.2d 417, 418 (Fla. 3d DCA 1979); Martinez v. State, 360 So.2d 108, 109 (Fla. 3d DCA 1978).
Accordingly, we reverse Poole's judgment and sentence for second-degree murder with a weapon. On remand, the trial court shall adjudge Poole to be guilty of manslaughter with a weapon and resentence him on the lesser charge.
Poole raises two additional points in his appeal. At trial, both the defense and the State requested a jury instruction on the lesser offense of third-degree murder. The trial court declined to give the requested instruction. In his second point, Poole argues that the trial court's denial of the requested instruction was error. Once again, we agree with Poole. See Sheridan v. State, 799 So.2d 223, 225 (Fla. 2d DCA 2001); Peterson v. State, 643 So.2d 9, 10 (Fla. 2d DCA 1994). However, our decision to reverse Poole's second-degree murder conviction and to remand for him to be adjudicated guilty of manslaughter with a weapon renders Poole's argument about the jury instruction a moot point. Poole's third point is without merit and does not warrant discussion.
Reversed and remanded with instructions for the entry of a judgment for manslaughter with a weapon and for resentencing.
CASANUEVA, C.J., and NORTHCUTT, J., Concur.
NOTES
[1] § 924.34, Fla. Stat. (2007).
[2] In a taped interview made after he was arrested, Poole told detectives that he believed Newsome was preparing to attack either him or Headley. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557437/ | 673 F.Supp. 880 (1987)
Don TATE, et al., Plaintiffs,
v.
Richard FREY, et al., Defendants/Third-Party Plaintiffs,
v.
George WILSON, et al., Defendants.
Civ. A. Nos. C 75-0031-L(A), C 79-0492-L(A), C 79-0570-L(A) and C 83-0254-L(A).
United States District Court, W.D. Kentucky, Louisville Division.
October 16, 1987.
Eleanor Martin, David Friedman, Legal Aid Soc. of Louisville, Inc., Louisville, Ky., for plaintiffs.
R. Allen McCartney, Louisville, Ky., Barbara Jones, Gen. Counsel, Corrections Cabinet, Frankfort, Ky., W. Waverly Townes, Louisville, Ky., for defendants.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION
ALLEN, Senior District Judge.
This action is submitted to the Court for decision on the motion of the class action plaintiffs and defendant Richard Frey to hold the third party defendants, Commonwealth of Kentucky, by and through its Corrections Cabinet, George Wilson as Secretary of the Kentucky Corrections Cabinet, and Wardens Parke, Kassulke, and *881 Seabold ("The state defendants") in contempt of Court for violating the terms of an order and preliminary injunction of this Court entered in May 1983. A hearing was held on September 25 and October 2, 1987.
In May 1983, the Court ordered that the state defendants be prohibited from housing more than thirty of the state prisoners in the Jefferson County Jail at any time, and also ordered that no prisoner who was an inmate at the Jefferson County Jail be allowed to remain there for more than thirty days. This order and injunction were entered because of the overcrowding of the Jefferson County Jail.
The evidence produced at the hearing reflects that since March 1987, the state defendants have been in constant and consistent violation of both phases of the order. As of the date of the last hearing, October 2, 1987, there were 197 state prisoners housed at the Jefferson County Jail, and the records show that many state prisoners were being kept in the Jefferson County Jail for more than the allowable thirty days.
The evidence also reflects that as of October 2, 1987, there were 48 technical parole violators[1] being held in the Jefferson County Jail without bond pending their preliminary hearing. It is the policy of the state to house these technical parole violators in the County Jail of the county in which they resided when their substantive offenses were committed. There is no statute or regulation that requires such a procedure.
While the state prisoners are housed at the Jefferson County Jail, they receive no classification from the State Correction System and, therefore, when taken by the state from the jail, they must go first to a maximum security institution to be classified. The statistics do not reflect how many of these persons would have been classified as being eligible for minimum security facilities.
The evidence is convincing that the inmates at the Jefferson County Jail are not only suffering from the overcrowding situation directly in that many of them are forced to sleep on the floor or on shelves, but that they also are compelled to forego the advantages offered by the state institutions, as compared to the jail, such as educational and training programs, the right to work in the state prison industry program and the opportunity to have more exercise and recreational opportunities. The evidence also reflects that there has been an increase in altercations and disciplinary incidents at the jail since March 1987.
The record also reflects that in order to prevent overcrowding at the jail, this Court has entered various orders which have resulted in certain types of misdemeanants serving less time than they would have had the overcrowding not existed. Also, Chief Judge Edward H. Johnstone has entered an interim order directing the County to place approximately 100 inmates with the Marion Adjustment Center and the jail has complied with that order.
The evidence is also clear that for some reason, or for no reason at all, the state has not made available to the Jefferson County inmates housed at the Marion Adjustment Center those programs which are made available to the state inmates who are housed there.
As far back as 1981, Chief Judge Johnstone entered orders placing caps on the population of inmates to be housed at the Kentucky State Penitentiary at Eddyville, the Kentucky State Reformatory at LaGrange, and the Women's Correctional Institution at PeWee Valley. No such order exists with reference to other correctional facilities owned by the state such as Northpoint, the farm centers, and Blackburn.
In addition to Judge Johnstone's orders and the orders of this Court, 12 state courts have entered orders placing a ceiling on the number of inmates to be housed in the county jails in which the circuit courts are located. Among these 12 orders are orders from circuit courts located in the most populous counties in Kentucky, such *882 as Kenton, Campbell, Fayette, McCracken and Graves.
The state defendants have been following a policy of treating all inmates held in state institutions, whether under court orders or not, on an equal basis insofar as admission into the state system is concerned. The sole exceptions are that the state chooses five inmates from Jefferson County and also gives priority to any inmate held in any county in Kentucky as to whom there exists a serious mental or physical or emergency problem.
The state defendants contend that it is factually impossible for them to comply with this Court's orders since the number of state held prisoners has increased substantially since 1981 and since the legislature has not supplied sufficient beds with which to house the growth in the criminal population. The state has provided for some 979 additional beds for housing of state prisoners over the past six years, but the evidence is that there are approximately 1100 state prisoners backed up in county jails throughout the state.
The state defendants also contend that any removal of prisoners by them from the Jefferson County Jail in any sizeable number would result in overcrowding at the institutions which are under the orders of Judge Johnstone and which already are filled to capacity.
Testimony was presented at the hearing indicating that the state defendants have a well-developed research unit and has also commissioned expert projections of inmate populations. The state defendants and the General Assembly were thereby placed on notice of the need to address the problem of overcrowding of the facilities without regard to court orders.
It should also be noted that the state defendants have complained about the increased burden that has been put on them because of the passage of what is known as the "seven deadly sins" statute. The state contends that this statute precludes inmates convicted of the offenses listed in KRS 197.140 from being classified as minimum security prisoners. However, Chief Judge Johnstone has held that the statute does not preclude such prisoners from being placed in minimum security institutions. The state has seen fit to obtain a stay of Judge Johnstone's order and appeal is pending before the Sixth Circuit Court of Appeals in spite of the fact that his interpretation would be of assistance to them with regard to the overcrowding problem.
Several cases have addressed the violation by various county and state authorities of court orders designed to prevent jail overcrowding. One of the leading cases is that of Badgley v. Santacroce, 800 F.2d 33 (2d Cir.1986). In that case, a consent decree was entered and an order issued by the Second Circuit Court of Appeals directing the district court to enjoin the county defendants from accepting any persons for confinement at the Nassau County Correctional Center until the inmate population had been reduced to 808 and thereafter from accepting any person if that person would increase the population above 808.
An amended consent decree was subsequently entered setting various caps on inmate population. On October 7, 1985 the county defendants began housing inmates at the corrections center above the in-cell limit of 710. For the next five and one-half months the in-cell maximum was met on only fifteen days. When a contempt motion was brought by the inmates, the district judge denied it on the grounds that it was impossible for the county officials to comply with the judgment without the assistance of state officials and on the grounds that they had made every reasonable effort to comply with the population limit.
The Court of Appeals in reversing stated that nothing made it factually impossible for the sheriff to cease delivering persons to the corrections center or for the warden to refuse to accept such persons until the population requirements were met. The court pointed out that political difficulties did not make it impossible for the defendants to stop adding more prisoners and stated that under New York law, where prison overcrowding renders a jail unsafe, application must be made to the state authorities for an alternate place of confinement *883 of inmates. See Badgley, supra at 37.
The court also pointed out that even if a state court did hold the defendants in contempt for refusing to house inmates at the corrections center, Supremacy Clause considerations require that the judgment of the federal court be respected. In any attempt by the state court to hold defendants in contempt, their taking the actions required by the judge of the district court would provide a complete defense. See Badgley, supra at 38.
Finally, the appellate court directed the district court to enter a judgment requiring the county defendants to give notice that the corrections center would be unavailable to house additional persons over the population cap except to the limited extent permitted by the amended consent decree. The court also ordered the district court to hold the county defendants in civil contempt in the event of any subsequent failure to implement paragraph 31 of the amended consent judgment and in that event to assess compensatory damages in favor of plaintiffs of not less than $5,000 for each person admitted to the corrections center in violation of the amended consent judgment and to order any additional remedies that might be appropriate.
The purpose of civil contempt is to compel a reluctant party to do what a court requires of him. The court's power to impose coercive civil contempt is limited by an individual's ability to comply with the court's coercive order. See Shillitani v. United States, 384 U.S. 364, 371, 86 S.Ct. 1531, 1536, 16 L.Ed.2d 622 (1966); Maggio v. Zeitz, 333 U.S. 56, 72-73, 68 S.Ct. 401, 409-410, 92 L.Ed. 476 (1948). A party may defend against a contempt by showing that his compliance is factually impossible. United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 1552, 75 L.Ed.2d 521 (1983). In raising that defense, the defendant has a burden of production that may be difficult to meet. See Badgley, supra at 36, citing Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 713 (D.C.Cir.1975) and Aspira of New York, Inc. v. Board of Education, 423 F.Supp. 647, 654 (S.D.N.Y.1976). This is particularly true where the defendants have a long history of delay and plaintiffs' needs are urgent. Fortin v. Commissioner of Massachusetts Department of Public Welfare, 692 F.2d 790, 797 (1st Cir.1982).
It appears to the Court that defendants Wilson and the Commonwealth of Kentucky through its Corrections Cabinet are not only in violation of our previous orders of May 1983 but also are in contempt of those orders. As to the three wardens, it would be unfair to find them in contempt since their only functions insofar as this case is concerned are to receive prisoners sent to them by the state. It is not shown that they have any control over the decisions to keep state prison inmates at the Jefferson County Jail, although they may act ministerially in response to orders issued them by the Corrections Cabinet and by Mr. Wilson.
The Court has many options open to it in enforcing a civil contempt. We believe that the following remedies are appropriate:
1. The state contemnors will be ordered to pay to the defendant Metropolitan Correctional Services Department a fine of $100 per day per state inmate in excess of 30 housed in the Jefferson County Jail after December 5, 1987.
2. The state contemnors will be ordered to pay a fine in the amount of $25 to each state corrections inmate in the Jefferson County Jail for each day the state prisoner population at the Jail exceeds the limit of thirty inmates, said provision to take effect as of December 5, 1987.
3. The state contemnors will be ordered to pay a fine in the amount of $25 per day to each state inmate who has been housed at the Jefferson County Jail for more than thirty days, such provision to take effect as of December 5, 1987.
4. The state defendants shall cease placing any technical parole violators in the Jefferson County Jail until such time as the population limits imposed by the Court are no longer being violated. By October 30, 1987, the state defendants are ordered to *884 remove all technical parole violators now held in the Jefferson County Jail. The state defendants shall not present any such persons for incarceration at the Jefferson County Jail until the defendants have brought themselves into compliance with the population caps and the incarceration duration limits of thirty days previously ordered by this Court.
Finally, the Court reserves the right to award attorney's fees to counsel for plaintiffs and for third party plaintiffs. Counsel may make appropriate motion at an appropriate time and submit affidavits and logs in support of their motions. The third-party defendants will have fifteen days to respond if an agreement cannot be reached as to the amount of attorneys fees. Plaintiffs and third party plaintiffs shall also recover their costs herein expended.
An order in conformity herewith has this day entered.
NOTES
[1] The term "technical parole violators" as used herein refers to those persons charged with violation of terms of parole other than commission of additional criminal offenses. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1558245/ | 22 So.3d 467 (2009)
Ex parte Esther M. Kaufman
(In re Esther M. KAUFMAN v. Charles T. KAUFMAN).
1070283.
Supreme Court of Alabama.
May 1, 2009.
Joan-Marie Kettell Dean, Huntsville, for petitioner.
J.R. Herring, Dothan, for respondent.
Prior report: Ala.Civ.App., ___ So.3d ___.
PER CURIAM.
WRIT QUASHED.
LYONS, WOODALL, PARKER, MURDOCK, and SHAW, JJ., concur.
COBB, C.J., and STUART, SMITH, and BOLIN, JJ., dissent.
BOLIN, Justice (dissenting).
I believe the Court of Civil Appeals erred in affirming the trial court's judgment entered after that court had remanded the case for the trial court to fashion an equitable property division and alimony award. Accordingly, I must dissent from quashing the writ of certiorari.
Facts and Procedural History
The wife, Esther M. Kaufman, sued her husband, Charles T. Kaufman,[1] for a divorce. The parties had been married for more than 33 years; no children were born of the marriage. Both parties had children from previous marriages. At the time of the ore tenus hearing in the divorce proceedings in 2004, the husband was 87 years old and the wife was 66 years old. After the trial court entered its final judgment of divorce, the wife appealed. Kaufman v. Kaufman, 934 So.2d 1073 (Ala.Civ.App.2005) ("Kaufman I"). The Court of Civil Appeals held:
"In this case, the parties were married for 33 years. They are both at or nearing retirement age and are receiving retirement income. The trial court's comments made during the course of the hearing indicate that it considered primarily the husband's financial contributions to the marriage and placed little value on the wife's contributions, both monetary or otherwise, to the marriage. The trial court appears to have improperly *468 determined that the assets listed in Exhibit 1 were not all marital assets.[2] In addition, we note that the trial court improperly considered the parties' settlement negotiations in reaching its division of the parties' marital property and in its alimony award. The trial court's property award disproportionately favors the husband, and, given the foregoing and the length of the parties' marriage, we must conclude that the trial court abused its discretion in reaching its property division and alimony award.[3] We reverse and remand for the trial court to enter a judgment fashioning an equitable property division and alimony award.
"As noted earlier in this opinion, the June 3, 2004, divorce judgment contains a provision offering the husband an election between purchasing from the wife her interest in the marital residence and its contents or selling the residence and its contents, as well as a provision requiring that the furnishings be sold and the proceeds divided between the parties. A November 17, 2004, entry on the case action summary indicates that the trial court, among other things, purported to delete the provision requiring the sale of the furnishings. However, because more than 30 days had passed since the entry of the divorce judgment and also because the trial court had already denied the wife's postjudgment motion, the trial court lacked jurisdiction to enter that part of its November 17, 2004, order. Therefore, that order was a nullity and had no effect. See McGiboney v. McGiboney, 679 So.2d 1066, 1068 (Ala.Civ.App.1995) (property-division portion of a divorce judgment is not modifiable after 30 days of the entry of the divorce judgment); and Reaves v. Reaves, 883 So.2d 693, 695 (Ala.Civ.App. 2003) (trial court's purported amendment of a divorce judgment after it had already denied a postjudgment motion was a nullity)."
934 So.2d at 1080-81. The wife also challenged the trial court's order finding her in contempt and imposing sanctions for her purported violation of its order prohibiting the parties from removing property from their marital residence during the pendency of this matter. However, the husband did not submit a filing fee when he filed his motion to impose sanctions, and a motion or petition seeking the imposition of sanctions based on a finding of contempt initiates an independent proceeding that requires the payment of a filing fee. Therefore, the husband did not properly invoke the jurisdiction of the trial court, and the contempt order was void for want of subject-matter jurisdiction. 934 So.2d at 1082. The Court of Civil Appeals reversed the trial court's judgment and remanded the case "for the trial court to enter a judgment fashioning an equitable property division and alimony award." 934 So.2d at 1081.
On remand, the trial judge who had entered the original divorce judgment recused himself, and another trial judge was appointed. It appears that after the trial court had entered its original divorce judgment as well as after the Court of Civil Appeals had released its opinion in Kaufman I, the husband and/or his daughter disposed of certain assets or transferred amounts from the husband's accounts to certain members of the husband's family.
*469 The trial court conducted a hearing on August 21, 2006. At that hearing, the parties discussed the date that should be used in valuing the parties' marital assets. A lunch recess was taken, and, when the hearing resumed, the record does not reflect that the valuation-date issue had been resolved. However, after the hearing resumed, the evidence of the value of the parties' marital assets was not confined to the value at the time of the original divorce, which position the wife was advancing. On October 26, 2006, the trial court entered a judgment that divided the parties' property and awarded the wife periodic alimony and alimony in gross. Apparently, in this second order the wife was awarded less than she was in the original divorce judgment. The wife filed a postjudgment motion, which the trial court denied. The wife timely appealed, arguing that the trial court failed to comply with the Court of Civil Appeals' mandate in Kaufman I when it received additional ore tenus evidence relating to the then current value of the parties' marital assets at the August 21, 2006, hearing and when it considered that evidence in fashioning its October 26, 2006, judgment.
The Court of Civil Appeals agreed with the wife, noting:
"[P]recedent has established that once an appellate court has determined an issue and remanded the cause to the trial court for the entry of a judgment in compliance with its decision, the trial court, unless otherwise directed by the appellate court, must enter such a judgment based on the evidence as originally presented to it.
"'It is well settled that, after remand, the trial court should comply strictly with the mandate of the appellate court by entering and implementing the appropriate judgment. See Walker v. Humana Medical Corp., 423 So.2d 891, 892 (Ala.Civ.App.1982). In Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983), we held:
"`"`It is the duty of the trial court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered.... The appellate court's decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence ....' 5 Am. Jur.2d, Appeal & Error § 991 (1962)."'
"Auerbach v. Parker, 558 So.2d 900, 902 (Ala.1989)."
Kaufman v. Kaufman, [Ms. 2060245, Nov. 2, 2007] ___ So.3d ___, ___ (Ala.Civ.App. 2007) ("Kaufman II") (emphasis added). The Court of Civil Appeals went on to hold, however, that any error by the trial court on remand in taking and considering additional evidence relating to the value of the parties' marital assets as those assets existed at the time of the August 21, 2006, hearing was invited error by the wife and could not be grounds for a reversal of the trial court's judgment when the wife presented much of the additional evidence considered by the trial court. The Court of Civil Appeals also held that the wife failed to present a sufficient record on appeal to indicate that the trial court erred on remand in its property division and alimony award where the only materials before the Court of Civil Appeals were the transcripts from the original ore tenus hearing held in 2004 and the August 21, 2006, hearing on remand and the exhibits from the original divorce hearing.[4] The *470 Court of Civil Appeals noted that the trial court had before it documentary exhibits from the August 21, 2006, hearing and that those exhibits were apparently missing and had not been submitted to the appellate court as part of the record. The Court of Civil Appeals held that it would presume that the missing exhibits would support the trial court's judgment because the wife had the duty to ensure that the record contained sufficient evidence to warrant a reversal of the trial court's judgment. The wife timely sought certiorari review.
Discussion
The wife argues that the Court of Civil Appeals erred in holding that she invited error in acquiescing to the opposing party's position that she should receive only a portion of the assets of the marital estate valued at the time of the August 21, 2006, hearing. It appears that the wife is arguing that the transcript of the August 21, 2006, hearing does not reflect that she agreed that the issue to be resolved on remand was the disposition of the marital assets valued as of August 21, 2006. If, as it appears in the transcript, the parties had an off-the-record discussion and assuming the discussion concerned the wife's objection to the using August 21, 2006, as the valuation date, then the wife could have properly presented the unreported objection, assuming that it was made and was simply omitted from the transcript. Rule 10(f), Ala. R.App. P., provides for the supplementation or correction of the record on appeal to correctly reflect the proceedings at the trial court level.
"By its plain wording Rule 10(f) extends broad coverage and protection to the parties in having material omissions of `what occurred' added to the record.... [We are] mindful that Rule 10(f) provides broad leeway in making the record `conform to the truth' and mindful that the appellate rules `shall be construed so as to assure the just ... determination of every proceeding on its merits.'"
Weaver v. State, 401 So.2d 344, 348 (Ala. Crim.App.1981).[5] The wife made no attempt to correct any omission from the record; therefore, I believe that the wife waived any alleged error based upon the omission from the transcript of her objection to the valuation date. I disagree with Court of Civil Appeals' determination that the wife invited error.
The wife next argues that the Court of Civil Appeals erred in determining that she failed to present a sufficient record on appeal when the exhibits admitted at trial and marked to be included in the record on appeal were missing. Rule 10, Ala. R.App. P., addresses the composition of the record on appeal. Rule 10(b), Ala. R.App. P., provides that the appellant shall designate which parts of the clerk's records the appellant wants to present on appeal or may designate all such records. Rule 10(b) goes on to provide that "[d]esignated documents incapable of being legibly or otherwise photocopied, including those of unusual weight or bulk, and physical exhibits shall be made a part of the clerk's record by reference but placed in a suitable separate container for transmittal to the appellate court."
Rule 11, Ala. R.App. P., addresses the mechanics of completion and transmission of the record on appeal. Rule 11(a) requires that the record shall contain an *471 "index of papers, documents, written charges, exhibits, etc., included in the clerk's record, an index of those documents and exhibits to be filed in the appellate court in a separate container, and also an index of any documents and exhibits omitted from the clerk's record with a full description of each item."[6] Rule 11(e) addresses the custody of any exhibits and provides:
"The court reporter shall file all exhibits, including photographs, with the clerk of the trial court within 14 days (2 weeks) of the notice of appeal in both civil and criminal cases, assembled in a flat file. All exhibits incapable of being assembled in a flat file shall be delivered to the clerk's office in a suitable separate container. An index of the exhibits, including those that are delivered to the clerk of the trial court in a separate container, shall be included in the flat file. The index shall also indicate those exhibits that were offered and not admitted, as well as the exhibits that were admitted."
There is a document in the present case entitled "Plaintiff's Exhibit List," which contains a list of 15 exhibits. I note that the transcript indicates that at least 18 exhibits were discussed during the August 21, 2006, hearing. None of those exhibits are photocopied into the record nor is there an index of the "exhibits to be filed in the appellate court in a separate container." The Court of Civil Appeals' opinion describes telephone calls by personnel in the Court of Civil Appeals' clerk's office to the clerk of the trial court and the parties' attorneys regarding the missing exhibits. It appears that the clerk of the trial court indicated that the exhibits were not with the record and that the court reporter had either lost the exhibits or had shipped the exhibits to the trial court clerk and the exhibits were missing from the shipment.
I recognize that it is the appellant's responsibility to see that the record is prepared and filed in a timely manner, and that an appeal may be dismissed if the appellant does not do so. However, the exhibits were not transmitted, and, as Rule 11(e) makes clear, the exhibits were in the custody of the court reporter who, in turn, was to file the exhibits with the trial court clerk within 14 days of the notice of appeal. I cannot fault the wife or the wife's counsel for the nonfeasance of court personnel.
I also recognize that Rule 10(f), Ala. R.App. P., as discussed earlier, provides for the supplementation of the record when there has been an omission. Rule 10(f) provides that if material that has been designated for inclusion in the record is omitted, the appellant or appellee may file with the trial court a motion to supplement the record on appeal. Any party filing such a motion with the trial court shall file a copy of the motion with the clerk of the appellate court and shall serve a copy on the court reporter, if the reporter's transcript is to be supplemented, and on all parties. The trial court has 14 days to rule on the motion, and, if no action is taken, the motion is deemed denied. After that, any dissatisfied party may seek relief with the appellate court.
In the present case, I do not believe that the wife would have been on notice that the exhibits were missing from the case before the case was submitted to the Court of Civil Appeals because the wife had designated that the exhibits be part of the *472 record and the exhibits were in the custody and control of the court reporter. When the Court of Civil Appeals realized that the exhibits had not been sent along with the record, it attempted an informal supplementation of the record. The Court of Civil Appeals' opinion notes conversations between unnamed members of the clerk's office of the Court of Civil Appeals and unnamed office members of counsel for the wife along with a conversation with the clerk of the circuit court.
Rule 10(f), Ala. R.App. P., provides that an "appellate court may, on motion of a party or on its own initiative, order that a supplemental or corrected record be certified and transmitted to the appellate court if necessary to correct an omission ...." Rule 10(f) further provides that "[e]very order of the ... appellate court directing that the record on appeal be supplemented or corrected shall be filed with the clerk of the court entering the order, who shall forthwith serve a copy of the order on each party [and] on the clerk of the other court involved." The role of the appellate court is to review and correct errors of the proceedings below, and it is bound by the record before it. The Court of Civil Appeal's clerk's office was either attempting to ask the parties to supplement the record or was seeking a supplementation on its own accord. However, the informal manner in which the clerk's office handled the matter did not comply with Rule 10(f), as no written notice was given to the parties.
Under the peculiar facts of this case, I would reverse the judgment of the Court of Civil Appeals and remand the case for that court to determine if the exhibits can be reproduced and, if so, to allow the parties to supplement the record with the reproduced exhibits. See Rule 2, Ala. R.App. P., allowing for a suspension of the Rules of Appellate Procedure where manifest injustice would otherwise result. The Court of Civil Appeals could then review the trial court's disposition of the marital assets following the August 21, 2006, hearing. If the exhibits cannot be reproduced, then the wife would be entitled to a new trial. See, e.g., Ex parte Steen, 431 So.2d 1385 (Ala.1983) (holding that new trial was warranted where defendants had been attempting without success to obtain transcripts of their trials and in which the court reporter who had recorded the proceedings had died and preparation of succinct statements in lieu of the transcripts would not afford the defendants a viable remedy in light of the allegations of error involving most of the testimony).
I believe that the Court of Civil Appeals correctly held that the trial court, in its original award, erred in dividing the marital property and in awarding alimony. The parties were married for 33 years, and the wife was awarded approximately 23% of the parties' marital estate. It now appears that the trial court's award following the Court of Civil Appeals' remand in Kaufman I awarded the wife less than the original award. Nevertheless, the wife is essentially being denied a full review of the award on remand (because there are no exhibits to support the wife's claims) through no fault of the wife's. Therefore, I dissent.
COBB, C.J., concurs.
NOTES
[1] The husband died while the case was pending on appeal from the order entered on the Court of Civil Appeals' remand. Abatement does not occur when the divorce judgment affects property rights, and matters touching the parties' property rights under the divorce judgment are amenable to alteration or modification upon timely motion or upon appeal. Cox v. Dodd, 242 Ala. 37, 4 So.2d 736 (1941); Hill v. Lyons, 550 So.2d 1004 (Ala.Civ.App. 1989).
[2] Exhibit 1 was submitted by the husband and contained a list of the parties' assets and the husband's valuations of those assets.
[3] The trial court awarded the wife approximately 23% of the parties' marital estate and awarded the wife $500 per month in periodic alimony for five years.
[4] The Court of Civil Appeals, ex mero motu, took judicial notice of the records from the appeal of the original divorce judgment in Kaufman I.
[5] In 1991, Rule 10, Ala. R.App. P., was rewritten; Rule 10(f) now applies only to civil cases, and Rule 10(g) was added to govern the supplementation and correction of the record in criminal cases.
[6] An "omitted" exhibits refers to exhibits that have not been designated for inclusion in the record on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1558248/ | 22 So.3d 153 (2009)
Patti Angela WELCH, Wife, Appellant,
v.
Thomas Frederick WELCH, Husband, Appellee.
No. 1D08-5670.
District Court of Appeal of Florida, First District.
November 30, 2009.
*154 Graham Clarke, Panama City, for Appellant.
Carroll L. McCauley, Panama City, for Appellee.
REVISED OPINION ON APPELLANT'S MOTIONS FOR WITHDRAWAL OF OPINION, CLARIFICATION, REHEARING, OR REHEARING EN BANC
BROWNING, JR., EDWIN B., Senior Judge.
Patti Angela Welch, the former wife, has moved for a withdrawal, clarification, rehearing, or rehearing en banc of our previous opinion in Welch v. Welch, 34 Fla. L. Weekly D1503 (Fla. 1st DCA July 24, 2009). We grant relief to the extent that we withdraw our prior opinion and substitute the following clarifying opinion. The motion for rehearing en banc is denied.
The former wife appeals certain findings of fact and conclusions of law made by the trial court in its final judgment dissolving her 23-year marriage to the appellee, Thomas Frederick Welch. Florida Rule of *155 Civil Procedure 1.530(e) states in pertinent part:
When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.
Thus, we review the trial court's determination of the former wife's income for purposes of awarding alimony and child support in light of the former wife's contention that no competent substantial evidence in the record supports the sums.
On the former wife's claim for permanent periodic alimony pursuant to section 61.08, Florida Statutes (2007), the trial court awarded her only $1.00 a year in nominal permanent alimony, thereby reserving jurisdiction to revisit this issue if the circumstances should justify it. See Blanchard v. Blanchard, 793 So.2d 989, 992 (Fla. 2d DCA 2001). The parties' 23-year marriage is considered "long-term," raising a rebuttable presumption of entitlement to alimony. See Rabbath v. Farid, 4 So.3d 778, 784 (Fla. 1st DCA 2009) (revised opinion on the appellee's motion for rehearing). A ruling on a claim for permanent periodic alimony is reviewed for an abuse of discretion. See Alcantara v. Alcantara, 15 So.3d 844, 845-47 (Fla. 3d DCA 2009); Green v. Green, 463 So.2d 510 (Fla. 1st DCA 1985). In the section of the final judgment of dissolution of marriage specifically addressing "Alimony," the court found the former husband earned approximately $140,000.00 per year and the former wife earned approximately $85,000.00 per year. The former wife contends this figure for her yearly income is unsupported by any competent substantial evidence.
Section 61.08(2), Florida Statutes (2007), states that in determining whether to grant alimony to either party, the trial court "shall consider all relevant economic factors, including but not limited to," "[a]ll sources of income available to either party." § 61.08(2)(g), Fla. Stat. (2007). As used in the chapter on dissolution of marriage:
"Income" means any form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions and bonuses, compensation as an independent contractor, workers' compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government, or any unit of local government. United States Department of Veterans Affairs disability benefits and unemployment compensation, as defined in chapter 443, are excluded from this definition of income except for purposes of establishing an amount of support.
§ 61.046(8), Fla. Stat. (2007). Refuting the suggestion that the income figures for the former wife are unsupported by the evidence, the former husband relies on the former wife's salary in 2007 as reported on her federal income tax return, the testimony of the forensic accountant, the annual cost-of-living salary increase received by the employees of her company, the employment benefits paid to her retirement plan, and the significant economic value of employer-paid health, dental, vision, and life insurance benefits. We find no abuse of discretion in the trial court's findings regarding the parties' respective incomes. To the extent the trial court could and should have made more detailed findings to explain its precise calculations of income, we conclude that the former wife failed to preserve this specific issue in a *156 timely motion for rehearing. See Anaya v. Anaya, 987 So.2d 806 (Fla. 5th DCA 2008); Hoffman v. Hoffman, 793 So.2d 128 (Fla. 4th DCA 2001); Broadfoot v. Broadfoot, 791 So.2d 584 (Fla. 3d DCA 2001); Reis v. Reis, 739 So.2d 704, 705-06 (Fla. 3d DCA 1999).
Counsel for the former wife filed a motion for appellate attorney's fees. Florida Rule of Appellate Procedure 9.400(b) states in pertinent part that "[a] motion for attorney's fees ... shall state the grounds on which recovery is sought." The Supreme Court of Florida has strictly interpreted this rule as requiring a party seeking appellate attorney's fees to "provide substance and specify the particular contractual, statutory, or other substantive basis for an award of fees on appeal. It is simply insufficient for parties to only refer to rule 9.400 or to rely on another court's order in support of a motion for attorney's fees for services rendered in an appellate court." United Services Auto. Ass'n v. Phillips, 775 So.2d 921, 922 (Fla.2000); see Hembd v. Dauria, 859 So.2d 1238, 1240 (Fla. 4th DCA 2003). "The `grounds on which' an award is sought require[] a party to identify a source of entitlement to an award of fees." White v. White, 3 So.3d 400, 403 (Fla. 2d DCA 2009). "Virtually all claims for attorney's fees rest on contractual or statutory bases." Rados v. Rados, 791 So.2d 1130, 1132 (Fla. 2d DCA 2001). "Any determination regarding an appropriate award of attorney's fees in proceedings for dissolution of marriage... begins with section 61.16, Florida Statutes," Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997), subsection (1) of which is the statutory authority governing an award of appellate attorney's fees in dissolution of marriage appeals. Inasmuch as no statutory ground whatsoever is cited in the motion for appellate attorney's fees, it must be denied. See Sumlar v. Sumlar, 827 So.2d 1079, 1086 (Fla. 1st DCA 2002); Shuler v. Darby, 786 So.2d 627, 630 (Fla. 1st DCA 2001) (on motion for clarification and/or rehearing).
We AFFIRM the final judgment dissolving the parties' marriage.
PADOVANO and WETHERELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2453618/ | 257 P.3d 666 (2011)
171 Wash.2d 1021
STATE
v.
LARSON.
No. 85884-5.
Supreme Court of Washington, Special Department.
August 8, 2011.
Disposition of Petition for Review Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1538841/ | 4 B.R. 109 (1980)
In re Danny Ray BUREN, Debtor.
Bankruptcy No. 379-01863.
United States Bankruptcy Court, M.D. Tennessee.
March 28, 1980.
C. Kinian Cosner, Jr., Nashville, Tenn., for Debtor.
*110 Keith M. Lundin, Waddey & Lundin Nashville, Tenn., Trustee in Bankruptcy.
Hal D. Hardin, U.S. Atty., Middle District of Tenn., Nashville, Tenn., for Social Security Administration.
ORDER
PAUL E. JENNINGS, Bankruptcy Judge.
This matter is before the Court upon motion of the Social Security Administration for relief from an order of the Court requiring benefits to be paid to the Trustee for the above-named Chapter 13 debtor.
The debtor is a disabled individual receiving certain retirement funds from the U.S. Army and disability benefits under Title II of the Social Security Act. He filed a petition for relief under Chapter 13 of the Bankruptcy Code on October 18, 1979. After confirmation of the debtor's amended plan, the Court entered two amended payroll deduction orders as follows: an order requiring the Commander of U.S. Army Finance and Accounting to pay to the Trustee $153 per month from benefits due the debtor and an order requiring the Social Security Administration to pay to the Trustee $350 per month from benefits due the debtor. Although monthly payments have been received from the U.S. Army, the Social Security Administration has filed a motion for relief from the Court's amended order.
Section 1325(b) of the Code states that after confirmation of a Chapter 13 plan ". . . the Court may order any entity from whom the debtor receives income to pay all or any part of such income to the Trustee." 11 U.S.C. § 1325(b). The concept of "entity" in § 1325(b) is defined in § 101(14) of the Code as follows: ". . . `entity' includes person, estate, trust, governmental unit;." 11 U.S.C. § 101(14). ". . . `Governmental unit" in § 101(14) is further defined in § 101(21) as follows: ". . . `governmental unit' means . . department, agency, or instrumentality of the United States, . . .." 11 U.S.C. § 101(21). The Social Security Administration is a "governmental unit" under § 101(21) and, therefore, is an "entity" under § 101(14).
The definition of "entity" in § 101(14) should be contrasted with the definition of person in § 101(30). Entity includes governmental units, while person does not. The Code carefully uses these terms. For example, note their use in § 109(b) and (c). Congress chose the word in § 1325(b) and intended to include governmental units. Section 1325(b) thus subjects the Social Security Administration to orders of the Bankruptcy Court requiring the payment of a debtor's income to the Trustee in Chapter 13 cases.
The expanded jurisdictional provisions of the new Bankruptcy Code make it clear that the Social Security Administration and other government units are subject to income deduction orders in Chapter 13 cases. If 11 U.S.C. § 1325(b) is not itself sufficient authority to support the income deduction order herein, there can be no doubt that § 105(a) of the Code and §§ 1471(a) and (e) of Title 28 of the United States Code give the Court authority to issue the challenged orders. 11 U.S.C. § 105(a) reads in full as follows:
(a) the bankruptcy court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title.
Section 105(a) is an intentionally broad grant of authority to the United States Bankruptcy Courts to facilitate the orderly administration of bankruptcy cases. This section is much broader than its predecessor, § 2a(15) of the prior Act. Unlike the restriction under prior law that an order of a bankruptcy court must be "necessary for the enforcement of the provisions of this title," § 105 authorizes the bankruptcy court to also issue orders "appropriate to carry out the provisions of this title." The power contained in § 105 is arguably more extensive than that contained in the All Writs Statute, 28 U.S.C. § 1651.
Section 105 complements the all encompassing grant of jurisdiction now *111 contained in 28 U.S.C. § 1471, which provides in part:
(e) the bankruptcy court in which a case under Title 11 is commenced shall have exclusive jurisdiction of all of the property, wherever located, of the debtor, as of the commencement of such case.
As outlined below, the debtor's right to receive social security benefits is property of the Chapter 13 estate. Such property is unquestionably within the jurisdiction of the United States Bankruptcy Court. Section 105(a) authorizes the Bankruptcy Court to issue orders "necessary and appropriate" to carrying out the provisions of the Chapter 13 plan. The plan herein calls for the payment of social security benefits to the Trustee for distribution to creditors.
The Social Security Administration cannot claim the immunity from income deduction orders which may have been available under prior law. As demonstrated in United States v. Krakover, 377 F.2d 104 (10th Cir. 1967), agencies of the United States government had realized some insulation from income deduction orders in Chapter 13 cases under prior law. In Krakover the 10th Circuit reasoned that § 658(2) of the prior Bankruptcy Act, 11 U.S.C. § 1058(2), limited the enforceability of income deduction orders in Chapter 13 cases to an "employer" other than the United States government. The language of § 1325(b) of the Code and the definitions contained in § 101 clearly overrule the immunity analysis in Krakover.
Moreover, 11 U.S.C. § 106 specifically addresses the immunity issue as follows:
Except as provided in subsections (a) and (b) of this section and notwithstanding any assertion of sovereign immunity
(1) a provision in this title that contains "creditor," "entity" or "governmental unit" applies to governmental units; . . .
Congress, thus, contemplated a waiver of the principle of sovereign immunity of the United States at least to the extent of subjecting government agencies to income deduction orders as "entities" under § 1325(b).
Congress contemplated that individuals receiving income from social security could be debtors under Chapter 13 of the new Bankruptcy Code. An "individual with regular income" who otherwise meets the rerequirements of § 109(e) of the Code is eligible to be a debtor under Chapter 13. 11 U.S.C. § 109(e). Section 101(24) of the Code defines "individual with regular income" to mean:
". . . [an] individual whose income is sufficiently stable and regular to enable such individual to make payments under a plan under Chapter 13 of this title . . ." 11 U.S.C. § 101(24).
The legislative history of § 101(24) reveals that Congress presupposed the use of social security benefits as income "sufficiently stable and regular" to provide funding for a Chapter 13 plan. The House Report relating to § 101(24) contains the following observation:
"Thus, individuals on welfare, social security, fixed pension incomes, or who live on investment incomes, will be able to work out repayment plans with their creditors rather than being forced into straight bankruptcy." [Emphasis added]. H.R.Rep.No.95-595, 95th Cong., 1st Sess. at 312 (1977), U.S.Code Cong. & Admin. News 1978 at pp. 5787, 6269.
See, S.Rep.No.95-989, 95th Cong., 2d Sess. 24, 119, 312 (1978). See also, 2 Collier on Bankruptcy ¶ 101.24 (15th Ed.). As demonstrated above, § 1325(b) authorizes the United States Bankruptcy Court in Chapter 13 cases to order any entity from whom the debtor receives income to pay all or a portion of that income to the Trustee. An order to the Social Security Administration to pay social security benefits to the Trustee in a Chapter 13 case was, thus, explicitly contemplated by Congress in the framing of the new Code.
The debtor's future social security benefits are property of the estate in a Chapter 13 case. The expanded notion of "property of the estate" in Chapter 13 cases is unquestionably broad enough to include *112 the debtor's social security benefits. 11 U.S.C. § 1306 reads in part as follows:
(a) Property of the estate includes, in addition to the property specified in § 541 of this Title
(1) all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted . . .
Section 541, 11 U.S.C. § 541, reads in part as follows:
(a) The commencement of the case . . creates an estate. Such estate is comprised of all the following property, wherever located:
(1) Except as provided in subsections (b) and (c)(2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the case. [Emphasis added].
Section 1306 thus expands the definition of property of the estate contained in § 541 to include all legal or equitable interests in property which the debtor acquires after the commencement of the case. Social security benefits to be paid to the debtor in the future would certainly constitute a "legal or equitable" interest in property and would become part of the Chapter 13 estate by operation of § 1306(a)(1).
The government's argument that social security benefits do not become part of the Chapter 13 estate by operation of non-bankruptcy law is refuted by the language of the Code and by the legislative history. In its memorandum, the government argues that the exemption from "execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law" contained in 42 U.S.C. § 407 acts to exempt social security benefits from the definition of property of the estate in Chapter 13 cases. Under § 70(a) of the prior Bankruptcy Act, this argument may well have been correct. Under prior law it was necessary to look to non-bankruptcy law state and/or federal to determine whether a debtor's interest in property became part of the bankruptcy estate. See, e.g., Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966). Section 541 of the new Code eliminates virtually all of this dependence on non-bankruptcy law. Under § 541 the determination of what is property of the estate does not depend on whether non-bankruptcy law permits the debtor to transfer the property involved or would permit the debtor's creditors to reach the property. See, 4 Collier on Bankruptcy ¶ 541.02[1] (15th Ed.). See, also, 4 Collier on Bankruptcy ¶ 541.09 (15th Ed.). Section 541(a) includes as property of the estate all interests the debtor may have in property, without regard to whether the property or the debtor's interest in the property is transferrable or could be seized by creditors. The fact that non-bankruptcy law here § 407 of the Social Security Act may limit the ability of creditors to attach or levy upon social security benefits in the non-bankruptcy context does not affect whether such benefits are property of the estate in a Chapter 13 case.[1]
To further buttress the general definition of property of the estate in § 541 and to further emphasize the abandoned reliance on other laws for a definition of property of the estate, § 541(c)(1)(A) declares that a debtor's interest in property becomes property of the bankruptcy estate "notwithstanding any provision . . . that restricts or conditions transfer of such interest by the debtor . . ." 11 U.S.C. § 541(c)(1)(A). Thus, for purposes of determining what is and what is not property of the Chapter 13 estate, § 541(c)(1)(A) invalidates provisions in agreements or in non-bankruptcy law which pretend to restrict or condition the transfer of the debtor's interest in property. See 4 Collier on Bankruptcy ¶ 541.22 (15th Ed.); S.Rep.No.95-989, 95th Cong., 2nd Sess. at 83 (1978). 42 U.S.C. § 407 is such a provision of non-bankruptcy law and cannot operate to deprive *113 the Chapter 13 estate of social security benefits under §§ 541 and 1306.
The government's argument that 42 U.S.C. § 407 was omitted from the list of legislation specifically repealed by the Bankruptcy Reform Act and therefore still controls is not convincing. Restrictions on assignment, garnishment, attachment and the like are found in numerous other statutes. See, for example, 42 U.S.C. § 1717 protecting injury and death benefits; 38 U.S.C. § 770(g) protecting payments under Servicemen's Group Life Insurance or Veterans' Group Life Insurance; 38 U.S.C. § 3101 protecting payments made under any law administered by the Veterans' Administration; 33 U.S.C. § 775 protecting benefits for widows of lighthouse service personnel; 5 U.S.C. § 8130 protecting payments made under the Federal Employees' Compensation Act. None of these sections was specifically repealed. To hold that recipients of benefits under the above cited statutes are denied eligibility as Chapter 13 debtors is unthinkable. To eliminate availability of Chapter 13 relief to such a substantial segment of the populace does not accord with the obvious intent of Congress.
The government has voiced concern that allowing payment of social security benefits to the bankruptcy trustee may otherwise affect § 407 and the protection it offers the recipient and those dependent on him from claims of creditors. Chapter 13 relief is limited to voluntary petitions by the debtor. The benefits and purposes of § 407 are not altered by this Congressional enactment. The debtor is still protected from creditor action.
The government erroneously contends that the exemption provisions of § 522 of the Bankruptcy Code deprive the United States Bankruptcy Court of authority to order the Social Security Administration to submit social security benefits to the Trustee. There is no exception to the definition of property of the estate in § 541 or in § 1306 for property which may later be declared exempt by the debtor under § 522 or under non-bankruptcy law. As the legislative history demonstrates, Congress contemplated that property of the estate in a Chapter 13 case would include property needed for a "fresh start" which may or may not be exempted by the debtor. See, S.Rep.No.95-989, 95th Cong., 2nd Sess., 82-83 (1978). Though the debtor herein may well be able to exempt his future social security benefits under § 522, the provisions of the section are permissive and the debtor has elected to submit his future social security benefits to the Chapter 13 Trustee for distribution to creditors. The exemption provisions of § 522 are personal to the debtor. Nothing in the Code would appear to permit the Social Security Administration to exercise an exemption on behalf of the debtor. The government's contention that the debtor's social security benefits are exempt property and, thus, are beyond the income deduction orders of this Court is without merit.
The elaborate provisions of § 522 permitting the debtor to exempt social security benefits from property of the estate demonstrate that Congress contemplated social security benefits to be part of the Chapter 13 estate unless and until claimed exempt by the debtor. Section 522(b) and the legislative history thereunder specifically reference the social security statute cited by the government herein 42 U.S.C. § 407. Section 522(b) states that an individual debtor ". . . may exempt from property of the estate either
(1) property that is specified under subsection (d) of this section . . . [or] . . .
(2)(A) any property that is exempt under federal law . . . or State or local law . . ." [Emphasis added].
Under the federal exemptions provided in subsection (d) of § 522, social security benefits are allowed as exempt at the debtor's option under subparagraph (10). Under the non-federal exemptions, the reference to "property that is exempt under federal law" in § 522(b)(2)(A) allows a debtor to take advantage of federal exemption provisions like 42 U.S.C. § 407. In fact, the legislative history to § 522(b)(2)(A) specifically identifies 42 U.S.C. § 407 as a benefit that may be exempted. See S.Rep.No.95-989, *114 95th Cong., 2nd Sess. 75 (1978); H.Rep. No.95-595, 95th Cong., 1st Sess. 360 (1977). There would be no reason for Congress to elaborately provide for the exemption of social security benefits under both the federal and non-federal exemption provisions of the new Bankruptcy Code if social security benefits were not to become property of the estate under §§ 541 and 1306. Obviously, Congress contemplated that social security benefits would become property of the estate, subject to permissive exemption by the debtor. There being no exercise of this exemption in the case at hand, the social security benefits remain property of the estate and remain subject to the income deduction orders of the Court.
Congress in the numerous ways above discussed has indicated recipients of government benefits may elect to obtain the benefits of Chapter 13 and may voluntarily have a portion of their income paid to the Trustee for the benefit of their creditors. Casual reference to the legislative history of Chapter 13 establishes Congressional attitude toward individuals desirous of paying their debts under Chapter 13. The legislative goal was to make it more attractive to debtors by increasing benefits to the debtor. Equally clear is the goal to make it more available.
It is not surprising that Congress clearly and unmistakeably made it available to employees of the government and to others receiving benefits from the government.
The relief sought must be DENIED. The Social Security Administration is directed to comply with the prior order of the Court.
It is so ORDERED.
NOTES
[1] The scheme of the Code is clear both from its provisions and its legislative history. Everything is property. Those items necessary for a fresh start will then be exempted to the debtor under 11 U.S.C. § 522. See page 113 herein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304432/ | Mr. Justice Chattin
delivered the opinion of the Court.
Harlan Ray Moore and Fred David Garland were convicted of burglary in the third degree in the Knox County Criminal Court and were sentenced to not less than three years nor more than eight years in the penitentiary.
On September 5, 1966, petitioner, E. L. Wallace, and Clyde Nelson, who were a.t the time operating a partnership under the name of Nelson Bonding Company, executed an appearance bond to this Court on their appeal. Each bond was in the principal sum of $3,000.00.
The convictions were affirmed in an opinion by Mr. Justice Dyer and released on June 5, 1967. Defendants did not appear as required and a conditional forfeiture was entered against them and their sureties on October 6, 1967.
Final forfeitures were entered on January 11,1968, as to defendants and the Nelson Bonding Company.
A scire facias was issued against both defendants and their sureties. In October, 1968, the writs were returned nulla bona. On December 19, 1968, an alias scire facias was issued and a garnishment in aid thereof was served on the Hamilton National Bank of Knoxville, and the sum of $6,842.20 of the account of E. L. Wallace was attached and paid to the Clerk of this Court on January *25710, 1969. The amount represented the principal, of the bonds, interest and court costs.
On January 3, 1969, petitioner filed a petition in this Court seeking to be exonerated of the principal and interest on the forfeited bonds.
While we realize we have the discretion to exonerate a bondsman in toto or lessen the amount of forfeiture, when a petition for such action is timely filed showing merit; we do not think we have that authority after final judgment, execution and collection of the forfeiture.
“Relief may be granted under Section 5283 (T.C.A. sec. 40-1304) after final judgment, and thus until payment the sureties have air inducement to continue their efforts to apprehend the fugitive.” State v. Frankgos, 114 Tenn. 76, 85 S.W. 79 (1904).
Conditional forfeitures were entered in October, 1967. Petitioner did nothing towards preventing final forfeitures to be entered against him. He did nothing to assist the State in locating the whereabouts of defendants. His petition was not filed until his bank account was attached; and, therefore, too late for us to act.
This record shows the Clerk of this Court did a great amount of work in locating the whereabouts of the defendants and enforcing the forfeitures for which he should be commended.
In the light of this record, should we exonerate petitioner, or even lessen his obligation, would, we think, be an arbitrary gesture in favor of petitioner and against the people of this State. The obligation of a bail bond is not an idle form. Bail is required and made for the purposes therein expressed.
*258“A wise and.sound public policy requires a rigid enforcement of these bonds when breached/’ State v. Frankgos, et al., supra.
The petition is denied at the cost of petitioner.
Burnett, Chief Justice, and Dyer, Ckeson and Humphreys, Justices, concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1557368/ | 673 F. Supp. 1367 (1987)
Edward F. QUINN, III, Plaintiff,
v.
KENT GENERAL HOSPITAL, INC., a Delaware corporation, Dennis E. Klima, James R. Reber, James B. McClements, M.D., T. Noble Jarrell, M.D., J. Robert Fox, M.D., and John C. Sewell, M.D., Defendants.
Civ. A. No. 84-509 CMW.
United States District Court, D. Delaware.
December 3, 1987.
*1368 William J. Wier, Jr., and Joseph G. Krauss, Herlihy & Wier, Wilmington, Del., for plaintiff.
Myron T. Steele, Prickett, Jones, Elliott, Kristol & Schnee, Dover, Del. (Eric W. Springer, Horty, Springer & Mattern, P.C., Pittsburgh, Pa. of counsel), for defendants.
OPINION
CALEB M. WRIGHT, Senior District Judge.
This summary judgment motion arises out of an antitrust suit filed by Dr. Edward F. Quinn, III, against Kent General Hospital, Inc. ("KGH"), and several individual doctors who practice at KGH for denying him active staff privileges at KGH. Quinn requested that the defendants admit that the Sherman Act's interstate commerce requirement had been met, and that this Court thus had subject matter jurisdiction over the dispute, but the defendants refused. Quinn then filed this Motion for Summary Judgment on the interstate commerce issue. The Court grants Quinn's Motion and holds that Quinn has met the Sherman Act's interstate commerce requirement.
I. BACKGROUND
Dr. Quinn is an orthopedic surgeon who practices in the Dickinson Medical Group ("Dickinson"), a professional association of which he is the president and founder. Dickinson has clinics in Georgetown, Milford, and Dover, Delaware. The Dover clinic is located across the street from defendant KGH and contains residential facilities. Quinn and the other doctors of Dickinson reside in Milford, Delaware, more than twenty miles from KGH. KGH is a nonprofit hospital located in Dover, Delaware. The other defendants are members of the active staff of KGH as well as the executive and associate executive directors of KGH.[1]
This dispute arose when Dr. Quinn applied for greater privileges at KGH. He was originally granted the status of a consulting staff member. Because only active staff members can admit patients to KGH, Quinn sought to change his status to that of an active staff member. Quinn's request was denied because the hospital claimed that his primary residence, in Milford, and his primary office, also in Milford, were located too far from KGH. This violated Article II, Part A, of the Hospital Medical Staff Bylaws ("the bylaw") which states that active members must maintain a residence a "reasonable distance" from KGH. The bylaw was interpreted at that time as requiring a residence 10 to 15 miles from the hospital, but is now interpreted as requiring a residence within 12 miles of KGH. Quinn's Reply Brief at 4. Quinn's application was denied despite the fact that Dickinson had a clinic close to KGH. This meant that Quinn could not admit patients *1369 from his Dover clinic to KGH and had to send them to a distant hospital.
Quinn then filed this suit alleging that the defendants' behavior violated the civil rights and antitrust laws. This Court granted summary judgment for the defendants on the civil rights claims and on the antitrust conspiracy claims involving the hospital. Quinn v. Kent General Hospital, Inc., 617 F. Supp. 1226 (D.Del.1985). The Court also held that Quinn had alleged sufficient jurisdictional facts at that stage of the proceeding, when little discovery had been done, to grant Sherman Act jurisdiction. Id. at 1236. Now that further discovery has been completed, Quinn seeks a ruling that he has met the Sherman Act's jurisdictional requirements.
II. INTERSTATE COMMERCE
The Sherman Act regulates "trade or commerce among the several States." Sherman Act, 15 U.S.C. §§ 1, 2. This requirement can be met if "the defendants' activity is itself in interstate commerce or, if it is local in nature, ... it has an effect on some other appreciable activity demonstrably in interstate commerce." McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 242, 100 S. Ct. 502, 509, 62 L. Ed. 2d 441 (1980); Weiss v. York Hospital, 745 F.2d 786, 824 (3d Cir.1984), cert. denied, 470 U.S. 1060, 105 S. Ct. 1777, 84 L. Ed. 2d 836 (1985); Cardio-Medical Assocs., Ltd. v. Crozer-Chester Medical Center, 721 F.2d 68, 71 (3d Cir.1983). Quinn alleges that KGH's bylaw, while local in nature, affects interstate commerce sufficiently to bring his claim within the Sherman Act.
To meet the Sherman Act's jurisdictional requirements, KGH's conduct must be "shown `as a matter of practical economics' to have a not insubstantial effect on the interstate commerce involved." McLain, 444 U.S. at 246, 100 S.Ct. at 511 (citation omitted). Although the Court may "examine the defendant's conduct both as it affects interstate commerce through the person of the plaintiff and as it affects commerce independently," Cardio-Medical Assocs., 721 F.2d at 75, only KGH's challenged conduct is relevant, not its conduct in general. Crane v. Intermountain Health Care, Inc., 637 F.2d 715, 723 (10th Cir.1981) (en banc); P. Areeda & H. Hovenkamp, Antitrust Law 156 (Supp.1986) [hereinafter Areeda] ("Jurisdiction is, of course, established by showing that the challenged conduct is sufficiently linked to an interstate effect.").
Although Quinn must demonstrate a "nexus" between KGH's challenged conduct, the bylaw, and interstate commerce, he need not make a "particularized showing" of the effect. McLain, 444 U.S. at 242, 100 S.Ct. at 509; Crane, 637 F.2d at 723 (requiring only a "logical connection as a matter of practical economics between the unlawful conduct and interstate commerce"); Areeda, supra, at 157 (the challenged conduct must "inherently tend, as a matter of practical economics, to have an interstate effect"). Nor need Quinn demonstrate that the effect of the bylaw is to reduce commerce or even cause a net change in the flow of commerce. Cardio-Medical Assocs., 721 F.2d at 72-73. Quinn must instead demonstrate
the presence in interstate commerce of transactions that, as a result of the anticompetitive conduct, are "substantially" different from the transactions that would otherwise have occurred. There may be differences in the overall number or volume of such transactions, but they may also be differences in the terms of the transactions, or the parties thereto. Such transactions "burden" interstate commerce because they are the result, directly or indirectly, of conduct that violates federal antitrust policy. They are a burden not on the volume of trade, but on the freedom of trade.
Cardio-Medical Assocs., 721 F.2d at 74 (footnote omitted) (emphasis added). Quinn has met this burden.
III. THE NEXUS
The basic interstate commerce effect claimed by Quinn is that he could not admit out-of-state patients, or even local patients, to KGH. This, in turn, altered his use of pharmaceuticals and supplies manufactured *1370 outside of Delaware, as well as his revenue from out-of-state patients and insurers. This effect cannot be precisely quantified. Unlike situations where a doctor loses privileges and can quantify how much business he lost because of a hospital's conduct, Quinn cannot effectively gauge this effect because he cannot know exactly how his practice would fare if he had full privileges at KGH. Instead, he attempted to show that both KGH's and Dickinson's conduct is in interstate commerce, and that the denial of privileges necessarily affects interstate commerce.[2]
Quinn submitted significant evidence to support his claim that KGH's general conduct is in interstate commerce. KGH admitted that the geographical area it serves includes parts of Maryland, and that transient patients from other states are sometimes treated at KGH. Quinn's Brief in Support at 3. KGH also admitted that 50% of the drugs and equipment used there are manufactured outside of Delaware. Id. Furthermore, more than half of KGH's patients are insured by out-of-state carriers. Quinn's Brief in Support, Ex. E.
KGH does not dispute any of these facts. Furthermore, although KGH challenges the relevance of these facts to this motion, other courts have held that these are precisely the factors to be examined in determining whether a hospital's conduct is in interstate commerce. Cardio-Medical Assocs., 721 F.2d at 76 ("Interferences with the interstate travel of patients, the interstate payment of fees and the interstate purchase of medication are well-recognized methods for demonstrating an effect on interstate commerce in antitrust litigation."); see also Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 96 S. Ct. 1848, 48 L. Ed. 2d 338 (1976) (hospital's conduct in interstate commerce because of the interstate movement of medicine, supplies, insurance money, patients, and financing, and because hospital's parent company located in another state); Weiss, 745 F.2d at 824 (interstate commerce found because of interstate movement of drugs, equipment, patients, and insurance money).
In order to demonstrate the nexus between the challenged conduct and interstate commerce, Quinn proffers statistics about Dickinson's practice.[3] Quinn claims that 5.2% of Dickinson's patients, representing $200,000 of gross revenue, are from outside of Delaware and are precluded from being treated by Quinn at KGH because of the bylaw. Affidavit of Joseph R. Stokes, Quinn's Brief in Support, Ex. B. Also, in 1986 alone, Dickinson bought $18,791.14 of pharmaceuticals and $33,876.91 in equipment manufactured outside of Delaware.[4]Id. Finally, 45% of payments to Dickinson are by out-of-state payors. Id. None of these figures are disputed by *1371 KGH. Instead, KGH offers comments about Dr. Quinn's "medical empire" and how "minimal" Dickinson's revenue is.
This case is before the Court on a summary judgment motion. Therefore, the Court must look for factual disputes and determine whether it can rule as a matter of law that the challenged conduct is in interstate commerce. Fed.R.Civ.P. 56(c). KGH has not raised any genuine issues of material fact. Thus, the Court must consider the facts as presented by Quinn.
IV. CONCLUSION
The Court holds that Quinn has made a sufficient showing that the bylaw has a "not insubstantial effect" on interstate commerce, and accordingly, grants Quinn's motion. The presence of the bylaw means that Quinn cannot admit patients to KGH. This means in practical economic terms that out-of-state patients, money, and supplies that would have gone to KGH cannot do so because the patients must be treated elsewhere. Quinn need not prove an absolute dollar amount for the effect on interstate commerce, nor need he show that commerce was reduced. He need show only that KGH's conduct logically affects interstate commerce, which he has done.
An Order will issue in conformity with this Opinion.
NOTES
[1] The defendants will be referred to collectively as "KGH".
[2] Although Quinn is the plaintiff, he submitted and relies on data from Dickinson's practice. He supports the use of this data by saying that, as President, he "has a personal financial stake in the practice of each of the members of the Group. Hence, the interstate commerce inquiry is properly addressed by an examination of the entire Dickinson group." Quinn's Brief in Support at 8. Furthermore, the bylaw affected other members of Dickinson who were also denied full access to the hospital. Id. Although Quinn's practice may have less of an effect on interstate commerce than Dickinson's in terms of amount of revenue or number of patients affected, the two practices are parallel in that actions taken by KGH that have a "not insubstantial" effect on Dickinson's practice also have a "not insubstantial" effect on Quinn's, and vice versa. Therefore, the Court considered the figures submitted about Dickinson.
[3] The Third Circuit authorized the Court to decide the interstate commerce issue by examining how KGH's conduct affects interstate commerce independently of Quinn. Cardio-Medical Assocs., 721 F.2d at 75. The Court cannot do so in this case because Quinn has not demonstrated the interstate commerce effect of the bylaws independent of himself in practical economic terms. He has not submitted data concerning other physicians affected by the bylaw. Thus, the Court must examine how KGH's conduct affected interstate commerce through Quinn, that is, the nexus requirement.
[4] Quinn claims that the bylaw "foreclos[ed] the use of these interstate drugs and equipment at the hospital." Quinn's Brief in Support at 9. KGH correctly points out that these material could not be used in KGH even without the bylaw because KGH provides its own supplies. KGH's Brief in Opposition at 9. The data is still relevant, however, because use of out-of-state supplies on Dickinson's patients by Dickinson rather than by KGH at KGH represents an alteration of interstate commerce caused by the bylaw. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557350/ | 30 So. 3d 1212 (2010)
Jo Carol ALFORD, Individually, and as Executrix of the Estate of Arthur Randall Alford, Deceased
v.
MISSISSIPPI DIVISION OF MEDICAID.
No. 2008-CA-01984-SCT.
Supreme Court of Mississippi.
March 25, 2010.
*1213 Ronald C. Morton, Clinton, A. Elizabeth Whitaker, attorneys for appellant.
Office of the Attorney General, by William H. Mounger, Charles P. Quarterman, attorneys for appellee.
Before WALLER, C.J., LAMAR and PIERCE, JJ.
LAMAR, Justice, for the Court:
¶ 1. This appeal presents a case of first impression and requires us to interpret the "spousal impoverishment" provisions of the Medicare Catastrophic Coverage Act of 1988 (MCCA), codified at 42 U.S.Code Section 1396r-5 (2006). Specifically, this Court must determine whether our state courts have subject matter jurisdiction over petitions requesting relief under Chapter 42 of the United States Code, Section 1396r-5, prior to a determination of Medicaid eligibility. Finding that the chancery court did not have jurisdiction, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. Prior to filing an application for Medicaid, Jo Carol Alford filed a petition in chancery court to increase the community spouse resource allowance (CSRA) and the minimum monthly maintenance needs allowance (MMMNA) under 42 U.S. Code Section 1396r-5. She averred that her husband, Arthur Randall Alford, suffered from multiple sclerosis, and the maximum MMMNA and CSRA allowed by the Mississippi Division of Medicaid (Division) were insufficient to prevent her impoverishment once her husband entered a nursing home and applied for Medicaid. In its answer, the Division averred that no application had been filed on behalf of Mr. Alford for Medicaid eligibility, and that the Alfords had failed to exhaust administrative remedies.
¶ 3. At a hearing on the matter, Mrs. Alford's counsel asserted the court had jurisdiction under 42 U.S. Code Section 1396r-5, as well as equitable jurisdiction to rule on domestic relations matters. Mrs. Alford's counsel also argued that under state regulations, the Division was prohibited from awarding a greater share of resources above the federal maximum, but that the regulations recognized the court's authority to do so. Counsel proceeded to question Mrs. Alford and a certified public accountant regarding the Alfords' finances and the projected depletion of their income and assets once Mr. Alford was placed in a nursing home. At the close of the hearing, counsel for Mrs. Alford requested alternative relief in the form of a qualified domestic relations order (QDRO), transferring Mr. Alford's retirement assets in the amount of $400,000 to Mrs. Alford.
*1214 ¶ 4. The Division did not cross-examine Mrs. Alford or the accountant, maintaining the court lacked jurisdiction. The Division argued that it had sole authority and jurisdiction to consider the matter, and that the chancery court was limited to judicial review of the agency's final decision.
¶ 5. The chancery court found that it had jurisdiction to grant separate maintenance via a QDRO. It further held that it had no authority to grant relief under 42 U.S.Code Section 1396r-5 prior to the Alfords exhausting their administrative remedies. Mrs. Alford timely filed her notice of appeal, objecting to the chancery court's finding that it lacked jurisdiction under 42 U.S.Code Section 1396r-5.
¶ 6. During the pendency of this appeal, Mr. Alford passed away. Mrs. Alford filed a motion to substitute Arthur Randall Alford, individually, with the executrix of his estate, Jo Carol Alford. Mrs. Alford asserted that the "Division of Medicaid will, no doubt, argue that the issues before this Court are moot ... [but] the sole issue of whether subject matter jurisdiction exists in the Chancery Court to increase Community Spouse Resource Allowance and Minimum Monthly Maintenance Needs Allowance remains relevant in this and future cases around the state." This Court granted the motion to substitute.
DISCUSSION
I. WHETHER MR. ALFORD'S DEATH RENDERS THIS CASE MOOT.
¶ 7. The Division asserts that the action is now moot. The Division argues that Mr. Alford failed to apply for Medicaid benefits prior to his death, and that the executrix of Mr. Alford's estate failed to apply "within the appropriate time period after his death." Mrs. Alford concedes the controversy is now moot, but argues the Court should apply the "public-interest" exception and decide the merits of this action.
¶ 8. This Court has ruled that "[c]ases in which an actual controversy existed at trial but the controversy has expired at the time of review, become moot." Monaghan v. Blue Bell, Inc., 393 So. 2d 466, 466 (Miss.1980). "This Court will not adjudicate moot questions." Allred v. Webb, 641 So. 2d 1218, 1220 (Miss. 1994) (citations omitted). However, there is an exception, and the mootness rule will not be applied "when the questions involved are matters affecting the public interest." Id. We have ruled "there is an exception to the general rule as respects moot cases, when the question concerns a matter of such nature that it would be distinctly detrimental to the public interest that there should be a failure by the dismissal to declare and enforce a rule for future conduct." Sartin v. Barlow ex rel. Smith, 196 Miss. 159, 16 So. 2d 372, 377 (1944).
¶ 9. We find that this case presents such a matter of public interest. As our current population continues to age and our state's coffers become more strained, we find that this dispute falls within the public-interest exception. Medicaid impacts many Mississippians, and we therefore find it prudent to "declare ... a rule for future conduct" regarding the jurisdiction of the courts to increase the MMMNA and CSRA. Id.
II. WHETHER OUR TRIAL COURTS HAVE SUBJECT MATTER JURISDICTION UNDER 42 U.S. CODE SECTION 1396r-5 TO INCREASE THE MMMNA AND THE CSRA PRIOR TO AN AGENCY DETERMINATION OF MEDICAID ELIGIBILITY.
A. Background
¶ 10. The Medicaid program is part of Title XIX of the Social Security Act, enacted *1215 in 1965. 42 C.F.R. § 430.0 (2009). It is jointly financed by the state and federal governments to provide "medical assistance to low-income persons who are age 65 or over, blind, disabled, or members of families with dependent children or qualified pregnant women or children." Id. State participation is voluntary, and each state determines eligibility within "broad Federal rules."[1]Id.
¶ 11. In order to be eligible for Medicaid, the applicant must meet certain financial and non-financial criteria. See Miss. Code Ann. § 43-13-115 (Rev.2009). Married applicants who receive long-term care (i.e., institutionalized spouses) have specific limitations on their income and resources.[2] The Division must determine the couple's income and resources and allocate resources between the institutionalized spouse and the community spouse when determining eligibility. See 42 U.S.C. § 1396r-5 (2006). This determination is governed by 42 U.S.Code Section 1396r-5, the statute at issue in this case.
B. 42 U.S.C. § 1396r-5
¶ 12. The spousal-impoverishment provisions of the MCCA affect the allocation of income and resources between the institutionalized and community spouses. See 42 U.S.C. § 1396r-5 (2006). The statute provides rules for treatment of income and resources during the eligibility process and post-eligibility. See id.
¶ 13. In computing resources for purposes of eligibility, the state agency must assess the couple's "total value of the resources."[3] 42 U.S.C. § 1396r-5(c)(1)(A)(I) (2006). The community spouse is allowed to retain a community spousal resource allowance (CSRA), which is excluded from the eligibility calculation and is subject to a statutory cap.[4]Wis. Dep't of Health & Family Servs. v. Blumer, 534 U.S. 473, 482-83, 122 S. Ct. 962, 151 L. Ed. 2d 935 (2002) (citing 20 C.F.R. § 416.1205). The MCCA specifically defines the CSRA as follows:
[T]he "community spouse resource allowance" for the community spouse is an amount (if any) by which
(A) the greatest of
(i) $12,000 (subject to adjustment under subsection (g) of this section [which governs inflation]), or, if greater (but not to exceed the amount specified in clause (ii)(II)) an amount specified under the State plan,
(ii) the lesser of (I) the spousal share computed under subsection (c)(1) of this section, or (II) $60,000 (subject to adjustment under subsection (g) of this section),
*1216 (iii) the amount established under subsection (e)(2) of this section [Fair hearing provision]; or
(iv) the amount transferred under a court order under paragraph (3)[.][5]
42 U.S.C. § 1396r-5(f)(2)(A) (2006) (emphasis added). McCormick's treatise provides the following explanation for understanding the statute's definition of the CSRA:
For example, the Medicaid statute permit[s] the community spouse to keep a "community spouse resource allowance" (CSRA) equal to the greatest of $12,000 adjusted for inflation or one half of the couple's resources up to $60,000 adjusted for inflation. The state may also simply permit the community spouse to retain resources up to the inflation adjusted $60,000 figure. Alternatively, by court order, or by decision of an administrative judge (where additional resources are necessary to produce income to support the community spouse), the community spouse may be permitted to keep a greater amount.
Harvey L. McCormick, Medicare and Medicaid Claims and Procedures § 28:17 (4th ed.2005). "[An] enhanced CSRA will reduce the resources the statute deems available for the payment of medical expenses; accordingly, the institutionalized spouse will become eligible for Medicaid sooner." Blumer, 534 U.S. at 483-84, 122 S. Ct. 962.
¶ 14. Once the institutionalized spouse becomes eligible, the agency must determine the amount of income "that is to be applied monthly to payment for the costs of care in the institution." 42 U.S.C. § 1396r-5(d)(1) (2006). In determining the amount of income that is to be applied for the cost of care, the statute allows various protected amounts to be deducted from the institutionalized spouse's income, one being the community spouse monthly income allowance (CSMIA). 42 U.S.C. § 1396r-5(d)(1)(B) (2006). The CSMIA is calculated based upon the minimum monthly maintenance needs allowance (MMMNA). 42 U.S.C. § 1396r-5(d)(2) (2006). The statute provides the following definition of the CSMIA:
In this section (except as provided in paragraph (5)), the "community spouse monthly income allowance" for a community spouse is an amount by which
(A) except as provided in subsection (e) of this section, the minimum monthly maintenance needs allowance (established under and in accordance with paragraph (3)) for the spouse, exceeds
(B) the amount of monthly income otherwise available to the community spouse (determined without regard to such an allowance).
42 U.S.C. § 1396r-5(d)(2) (2006) (emphasis added). The MMMNA is established by each state based upon the official poverty line and an excess-shelter allowance; however, it is subject to a statutory cap.[6] 42 *1217 U.S.C. § 1396r-5(d)(3) (2006).
¶ 15. The language "except as provided in paragraph (5)" (in the definition of the CSMIA) references the following provision, which is also relevant to this case:
(5) Court ordered support
If a court has entered an order against an institutionalized spouse for monthly income for the support of the community spouse, the community spouse monthly income allowance for the spouse shall not be less than the amount of the monthly income so ordered.
42 U.S.C. § 1396r-5(d)(5) (2006).
¶ 16. The definition of the CSMIA references another relevant provision, subsection (e)(2), which is the fair-hearing provision:
(2) Fair hearing
(A) In general
If either the institutionalized spouse or the community spouse is dissatisfied with the determination of
(i) the community spouse monthly income allowance;
(ii) the amount of the monthly income otherwise available to the community spouse (as applied under subsection (d)(2)(B) of this section);
(iii) the computation of the spousal share of resources under subsection (c)(1) of this section;
(iv) the attribution of resources under subsection (c)(2) of this section; or
(v) the determination of the community spouse resource allowance (as defined in subsection (f)(2) of this section);
such spouse is entitled to a fair hearing described in section 1396a(a)(3) of this title with respect to such determination if an application for benefits under this subchapter has been made on behalf of the institutionalized spouse. Any such hearing respecting the determination of the community spouse resource allowance shall be held within 30 days of the date of the request for the hearing.
(B) Revision of minimum monthly needs allowance
If either such spouse establishes that the community spouse needs income, above the level otherwise provided by the minimum monthly maintenance needs allowance, due to exceptional circumstances resulting in significant financial distress, there shall be substituted, for the minimum monthly maintenance needs allowance in subsection (d)(2)(A) of this section, an amount adequate to provide such additional income as is necessary.
(C) Revision of the community spouse resource allowance
If either such spouse establishes that the community spouse resource allowance (in relation to the amount of income generated by such an allowance) is inadequate to raise the community spouse's income to the minimum monthly maintenance needs allowance, there shall be substituted, for the community spouse resource allowance under subsection (f)(2) of this section, an amount adequate to provide such a minimum monthly maintenance needs allowance.
42 U.S.C. § 1396r-5(e)(2) (2006) (emphasis added).
C. Merits of the Case
¶ 17. When reviewing an issue of subject matter jurisdiction, this Court applies a de novo standard of review. Schmidt v. Catholic Diocese of Biloxi, 18 So. 3d 814, 821 (Miss.2009).
¶ 18. Mrs. Alford contends that the "unambiguous" language of the MCCA provides our state courts with authority to increase the CSRA and the MMMNA. Mrs. Alford points to 42 U.S. Code Section 1396r-5(d)(5) and 42 U.S. Code Section 1396r-5(f)(3) in support of her argument. As noted supra, those provisions provide that:
*1218 (5) Court ordered support
If a court has entered an order against an institutionalized spouse for monthly income for the support of the community spouse, the community spouse monthly income allowance for the spouse shall not be less than the amount of the monthly income so ordered.
42 U.S.C. § 1396r-5(d)(5) (2006) (emphasis added).
(3) Transfers under court orders
If a court has entered an order against an institutionalized spouse for the support of the community spouse, section 1396p of this title shall not apply to amounts of resources transferred pursuant to such order for the support of the spouse or a family member (as defined in subsection (d)(1) of this section).
42 U.S.C. § 1396r-5(f)(3) (2006) (emphasis added). Mrs. Alford argues that the phrase "has entered" indicates that a court order must be entered prior to an application for Medicaid benefits. She asserts that 42 U.S. Code Section 1396r-5 provides for two, alternative mechanisms for increasing the MMMNA and CSRA: (1) by court order prior to filing a Medicaid application, and (2) filing an application for Medicaid and increasing the MMMNA and CSRA through the fair-hearing process under 42 U.S. Code Section 1396r-5(e). In support of her argument, Mrs. Alford cites Blumberg v. Tennessee Department of Human Services, 2000 WL 1586454 (Tenn.Ct. App. Oct. 25, 2000), and M.E.F. v. A.B.F., 393 N.J.Super. 543, 925 A.2d 12 (2007).
¶ 19. In Blumberg, the plaintiff filed a petition in circuit court requesting a transfer of his wife's assets and an increase in the MMMNA. Blumberg, 2000 WL 1586454 at *1. The court ordered the plaintiff's wife to pay all of her monthly income to her husband as a "community spouse allowance." Id. Thereafter, the plaintiff filed a Medicaid application on behalf of his wife. Id. While his wife was approved for Medicaid, the plaintiff was denied an increase in his income allocation. Id. The agency ordered that the wife's monthly income was to be applied to her cost of care. Id.
¶ 20. On appeal, the Tennessee Court of Appeals determined that the agency had exceeded its jurisdiction by reversing the circuit court's order. Id. at *2. In deciding this issue, the appellate court determined that the language of 42 U.S. Code Section 1396r-5(d)(5) and 42 U.S.Code Section 1396r-5(e) of the MCCA provided "two absolute alternative methods of setting a spouse's allowance and we are bound to recognize both procedures." Id. at *2-*3. Accordingly, the court held the agency was without authority to ignore the circuit court's order. Id. In support of its holding, the court reasoned that "had the legislature intended a different interpretation, it could simply have stated in precise language that the administrative process is the only procedure available." Id.
¶ 21. Similar to the Tennessee Court of Appeals, the New Jersey Superior Court has implicitly ruled that the MCCA provides two independent means to increase the MMMNA. M.E.F. v. A.B.F., 393 N.J.Super. 543, 925 A.2d 12 (2007). In M.E.F., the institutionalized spouse had been receiving Medicaid benefits when the community spouse petitioned the family court for separate maintenance under the state's domestic laws. Id. at 15. The family court denied the petition for "lack of factual support and procedural inadequacies." Id. Thereafter, the community spouse petitioned the state agency for an increase in her MMMNA, which the agency granted. Id.
¶ 22. After obtaining an increase in the MMMNA, the community spouse renewed her motion for separate maintenance in family court. Id. At a hearing on the motion, the community spouse argued for *1219 an additional increase in her MMMNA. Id. at 15-16. The family court denied the motion, ruling that the "MCCA's provisions regarding court orders of support applied only to orders already in existence [prior to institutionalization]." Id. at 16.
¶ 23. On appeal, the Superior Court held that the community spouse's effort to obtain a court order after she had requested an increase in the MMMNA from the agency constituted impermissible "parallel litigation and a form of forum shopping." Id. at 20. The court reasoned that, "having embarked upon the administrative path by receiving and challenging the MMMNA provided to her, [the community spouse] is limited to that path until a final administrative determination has been reached." Id. at 22.
¶ 24. While the courts in Blumberg and M.E.F. ruled only upon the issue of jurisdiction to increase the MMMNA, the Superior Court of the District of Columbia has ruled that the MCCA provides two alternative methods of increasing the MMMNA and the CSRA. In re Estate of Tyler, 2002 WL 1274125, *3 (D.C.Super. May 30, 2002). In Tyler, the plaintiff petitioned the trial court for a transfer of all the institutionalized spouse's assets and an order awarding her income and resources for her support as a community spouse. Id. at *1. The plaintiff filed her petition after her spouse had applied for Medicaid, but prior to Medicaid's determination of the spouse's eligibility. Id. at *1-*2. During the pendency of the court proceedings, the state agency denied Medicaid benefits due to excess resources. Id. at *3.
¶ 25. While the trial court denied the petition, it found that, under the MCCA, the community spouse may seek either administrative or judicial relief to increase the MMMNA and the CSRA. Id. at *2-3 (citing 42 U.S.C. § 1396r-5(e) and 42 U.S.C. § 1396r-5(d)(5)). After reviewing the "express language" of 42 U.S.Code Section 1396r-5, the court stated "[t]here can be no doubt ... that Congress intended that spousal support orders for income not only be taken into account [by the agency] in calculating income allowances, but also bypass the standard Medicaid rules regarding resources and income." Id. at *6 (citing 42 U.S.C. § 1396r-5(d)(2) and (A), (d)(5), and (f)(2)(A)(iv) and (f)(3)). In other words, the court found that court orders "preempt the spousal resource and income allowances" under the MCCA. Id.
¶ 26. The Division urges this Court to adopt the holding of Arkansas Department of Health & Human Services v. Smith, 370 Ark. 490, 262 S.W.3d 167 (2007), which is contrary to Blumberg, M.E.F., and Tyler. The Arkansas Supreme Court held that the state agency charged with administering Medicaid is the "sole entity that may determine whether a Medicaid applicant is eligible for Medicaid, as well as for any of the deductions or allowances permitted under the MCCA." Ark. Dep't of Health & Human Servs., 262 S.W.3d at 173 (emphasis added). In reaching its decision, the appellate court analyzed those MCCA provisions that refer to a "court order," 42 U.S. Code Sections 1396r-5(d)(5), (f)(2)-(3). Id. at 172-73. The court agreed with the agency's argument that "reading the statute in its entirety makes it clear that any allocation of a couple's assets can only occur after a determination of Medicaid eligibility has been made." Id. at 172. The court noted that Section 1396r-5(b)(2) "speaks of the attribution of income `for purposes of the post-eligibility income determination'" and that Section 1396r-5(d)(1) "permits deductions or allowances from the institutionalized spouse's income `after an institutionalized spouse is determined... to be eligible for medical assistance.'" Id. (quoting 42 U.S.C. §§ 1396r-5(b)(2), (d)(1)). The court noted that Congress expressly had authorized state and *1220 local agencies to determine Medicaid eligibility under 42 U.S. Code Section 1396(a)(a)(5). Id. Furthermore, the court focused on the language of Section 1396r-5(f)(2)-(3) and provided the following analysis, which we find especially relevant to this case:
[The community spouse] then goes on to argue that Congress used the word "shall" in § 1396r-5(f)(3), thereby making the language mandatory. However, what [the community spouse's] argument fails to recognize is that the word "shall" does not actually appear to direct DHHS to apply the court's order. Reading the statute closely reveals that what the Medicaid-administering agency "shall" do is not apply 42 U.S.C. § 1396p to resources transferred pursuant to such order. Section 1396p deals with liens, adjustments and recoveries, and transfers of assets. That statute discusses when a lien may be imposed against the property of an individual who has been receiving medical assistance.
Moreover, the fallacy in [the community spouse's] reliance on subsections (f)(2) and (f)(3) becomes apparent when one reads § 1396r-5(f)(1), which provides as follows:
An institutionalized spouse may, without regard to section 1396p(c)(1) of this title, transfer an amount equal to the community spouse resource allowance (as defined in paragraph(2)), but only to the extent the resources of the institutionalized spouse are transferred to (or for the sole benefit of) the community spouse. The transfer under the preceding sentence shall be made as soon as practicable after the date of the initial determination of eligibility, taking into account such time as may be necessary to obtain a court order under paragraph (3).
(Emphasis added.) The emphasized language makes it clear that the transfers between an institutionalized spouse and a community spouse, as specified in this statute must, transpire after a determination has been made about the institutionalized spouse's Medicaid eligibility.
Id. at 172-73.
¶ 27. The court further noted that the community spouse could seek administrative review of the CSMIA (the community spouse's monthly income allowance), and the CSRA under the MCCA's fair-hearing provisions and then seek judicial review. Id. at 173-74 (citing 42 U.S.C. § 1396r-5(e)). The court ruled that agencies are "better equipped than courts, by specialization, insight and experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies." Id. The court concluded that the "court order" language was "insufficient to confer jurisdiction, even impliedly, on the circuit court[,]" especially given the fact that "sections 1396r-5(d)(5) & (f)(3) only generally reference an order of spousal support; they do not mention a court-ordered CSRA, CSMIA, or MMMNA." Id.
¶ 28. The Missouri Court of Appeals also has held that its state courts are without jurisdiction under the MCCA. Amos v. Estate of Amos, 267 S.W.3d 761 (Mo.Ct.App.2008); see also Huynh v. King, 269 S.W.3d 540 (Mo.Ct.App.2008). Finding that the agency had primary jurisdiction, the Missouri Court of Appeals found:
The application of Medicaid regulations demands administrative expertise. A single state agency must oversee the program. Uniformity of result is critical. None of these objectives is furthered by conferring parallel jurisdiction on a probate court, and the Act's mere reference to an "amount transferred under *1221 a court order," without further explanation, is insufficient to do so.
Id.
¶ 29. We find that the opinions of the Arkansas Supreme Court and the Missouri Court of Appeals provide a more compelling interpretation of the spousal-impoverishment provisions. Notably, 42 U.S. Code Section 1396r-5(e) specifically provides a mechanism for administrative review and revision of the CSMIA, MMMNA, and CSRA. Furthermore, Mississippi Code Section 43-13-116 sets forth the administrative-hearing process and provides that an aggrieved claimant "is entitled to seek judicial review in a court of proper jurisdiction." Miss.Code Ann. § 43-13-116(3)(e)(xvii) (Rev.2009). This Court previously has ruled that "`where a remedy before an administrative agency is provided, relief must be sought by exhausting this remedy before the courts will act.'" Davis v. Barr, 250 Miss. 54, 157 So. 2d 505, 507 (1963) (quoting 2 Am.Jur.2d Administrative Law, § 595, p. 426). This Court also has described the doctrine of primary jurisdiction, which is relevant to the case sub judice:
the courts cannot or will not determine a controversy involving a question which is within the jurisdiction of an administrative tribunal prior to the decision of that question by the administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience, and services of the administrative tribunal to determine technical and intricate matters of fact, and a uniformity of ruling is essential to comply with the purposes of the regulatory statute administered.
Ill. Cent. R. Co. v. M.T. Reed Const. Co., 51 So. 2d 573, 575 (Miss.1951) (quoting 42 Am.Jur. Public Administrative Law, § 254). However, Mrs. Alford argues that the doctrine of administrative remedies should not apply, as the Division's rule states:
The CS [community spouse] share of total countable resources is the maximum allowed under federal law. In order for a CS to receive a share larger than the federal maximum, a court order would be required granting the CS a greater share of total resources after Medicaid had made a decision regarding spousal shares.
Code Miss. R. 13 000 036 at § 9210 (Rev. 1999) (emphasis added). Mrs. Alford argues that the Division's own rules limit its authority to grant the requested relief, and as such, an administrative appeal is futile and a waste of resources.
¶ 30. We note that this agency rule applies only to "countable resources" and does not specifically address the agency's ability to raise the MMMNA (the needs allowance) above the federal maximum. We reaffirm that the "rule requiring exhaustion of administrative remedies will be applied even though a party contends that the action of the administrative agency is beyond the power and jurisdiction of the agency." Everitt v. Lovitt, 192 So. 2d 422, 428 (Miss.1966). Furthermore, the relevant inquiry concerns the provisions of 42 U.S. Code Section 1396r-5, which the Division is bound to follow.
¶ 31. Keeping in mind the doctrines of exhaustion of administrative remedies and primary jurisdiction, we hold that the statutory language "if a court has entered an order" is insufficient to confer upon the courts parallel jurisdiction to increase the MMMNA and CSRA. We conclude that the plain language of the MCCA does not confer jurisdiction upon our state courts to increase the MMMNA and CSRA prior to an exhaustion of administrative remedies.
*1222 CONCLUSION
¶ 32. We affirm the chancery court's holding that it was without subject matter jurisdiction to increase the MMMNA and CSRA prior to the Alfords exhausting their administrative remedies.
¶ 33. AFFIRMED.
WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, KITCHENS AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CHANDLER, J., NOT PARTICIPATING.
NOTES
[1] The Centers of Medicare and Medicaid Services (CMS) is the federal agency that implements the Medicaid program. See CMS website, located at http://www.cms.hhs.gov (last accessed February 22, 2010).
[2] In 2009, an institutionalized applicant could have a monthly income of up to $2,022 and total resources of up to $4,000. Mississippi Division of Medicaid, Guidelines for the Aged, Blind, and Disabled Living in Nursing Homes, located at http://www.medicaid.ms.gov (last accessed February 22, 2010) (click on Medicaid Eligibility).
[3] The agency will calculate the total amount of the couple's resources and allocate half to each spouse (spousal share). 42 U.S.C. § 1396r-5(c)(1)(A) (2006).
[4] In 2009, this maximum amount was $109,560. CMS website, 2009 SSI and Spousal Impoverishment Standards, located at http://www.cms.hhs.gov/MedicaidEligibility/Downloads/1998-2010SSIFBR122909.pdf (last accessed February 22, 2010). The State standard for the CSRA is the maximum standard permitted by federal law. Mississippi Division of Medicaid website, Mississippi Division of Medicaid State Plan at 26a of Attachment 2.6-A, located at http://www.medicaid.ms.gov/MississippiStatePlan.aspx (last accessed February 22, 2010).
[5] Paragraph (3) relates to "[t]ransfers under court orders" and provides that:
If a court has entered an order against an institutionalized spouse for the support of the community spouse, section 1396p of this title shall not apply to amounts of resources transferred pursuant to such order for the support of the spouse or family member (as defined in subsection (d)(1) of this section). 42 U.S.C. § 1396r-5(f)(3) (2006).
[6] In 2009, the maximum MMMNA was $2,739. Mississippi Division of Medicaid website, Guidelines for the Aged, Blind and Disabled Living in Nursing Homes, located at http://www.medicaid.ms.gov (last accessed February 22, 2010) (click on Medicaid Eligibility). The Division allows the maximum under federal law. Mississippi Division of Medicaid website, State Plan at 4c of Attachment 2.6A, located at http://www.medicaid.ms.gov/MississippiStatePlan.aspx (last accessed February 22, 2010). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557524/ | 30 So. 3d 464 (2008)
M. GREG McCABE
v.
DEANNA McCABE.
No. 2070004.
Court of Civil Appeals of Alabama.
August 29, 2008.
Decision of the Alabama Court of Civil Appeal Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919782/ | 660 So.2d 167 (1995)
Tommy N. EVANS, Jr., Plaintiff-Appellant,
v.
Lynn J. KILBERT, et al., Defendants-Appellees.
No. 27101-CA.
Court of Appeal of Louisiana, Second Circuit.
August 23, 1995.
*168 Comegys, Lawrence, Jones, Odom & Spruiell by James W. Davis, Shreveport, for appellant.
Hicks & Hubley by Craig O. Marcotte, Shreveport, for appellees.
Before SEXTON, NORRIS and HIGHTOWER, JJ.
HIGHTOWER, Judge.
In this personal injury case tried before a jury, plaintiff, Tommy N. Evans, Jr., appeals his awards for past and future general damages. Finding no abuse of discretion, we affirm.
Background
On December 29, 1991, Evans stopped on the Spring Street access ramp to I-20 in Shreveport as he waited for the preceding vehicle to enter heavy, interstate highway traffic. Suddenly, Lynn J. Kilbert rear-ended the automobile driven by plaintiff.
Several months later, plaintiff filed suit against Kilbert and her insurer for various soft-tissue injuries sustained in the accident. Following a two-day trial, the jury awarded general damages totaling $7,500 (encompassing $2,500 for past physical pain, suffering, and mental anguish, together with $5,000 for future physical pain, suffering, and mental anguish). Concerning medical expenses, the verdict further provided $1,500 for past outlays (the insurer had previously paid $5,000 toward the $6,500 total) and $2,700 for future costs. These figures, when combined with $270 for other special damages, resulted in an aggregate judgment of $11,970. Thereafter, regarding the issue of quantum, the trial judge denied plaintiff's motion for JNOV, new trial, or additur. This appeal ensued.
Discussion
Quantum
The first two assignments of error challenge, as inadequate, both elements of the general damage award. In such a case, despite Evans's argument that the verdict inconsistently fixes future damages to exceed past damages, the proper question does not require a belaboring of each individual item but, instead, a decision as to whether the total award constitutes an abuse of discretion. See Sledge v. Continental Casualty Co., Inc., 25,770 (La.App. 2d Cir. 06/24/94), 639 So.2d 805.
In assessing damages in cases of offenses, quasi-offenses, and quasi-contracts, much discretion must be left to the judge or jury. LSA-C.C. Art. 2324.1. Before an appellate court may disturb such an award, the record must clearly reveal that the trier of fact abused its broad discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993); Reck v. Stevens, 373 So.2d 498 (La.1979); Sledge, supra; Underwood v. Dunbar, 628 So.2d 211 (La.App. 2d Cir.1993), writ denied, 94-0026 (La. 02/25/94), 632 So.2d 767. In determining whether the jury abused its discretion by making an inadequate award, the evidence must be viewed in the light most favorable to the defendant. Higginbotham v. Ouachita Parish Police Jury, 513 So.2d 537 (La.App. 2d Cir.1987). Of course, upon observing an award below that which reasonably could be assessed, the reviewing court may increase the general damage total to the lowest amount that could appropriately be granted. Youn, supra; Sledge, supra. It is only after an articulated factual analysis discloses such an abuse, however, that guidance from prior awards will become relevant. Youn, supra; Reck, supra; Sledge, supra.
Plaintiff presently pastors an 1,800 member Methodist church in New Orleans, having transferred there from a similarly large congregation in Shreveport in June 1992. Prior to the accident, according to his testimony, he had a healthy, active lifestyle. Not only did he devote 60-65 hours per week to various church activities, some requiring extensive local and out-of-town driving, but he also engaged in a rigorous daily exercise regime and enjoyed golfing, sailing, and camping.
*169 According to Evans, then age 45, the December 1991 rear-end collision rocked him back in his seat, producing a degree of pain. When he arrived at home, his back, neck, and right foot became very sore. His wife then drove him to Schumpert Medical Center, where an emergency room physician took x-rays, dispensed pain medication, and recommended that he see an orthopedist.
The next day, Evans saw Dr. Edward L. Morgan, an orthopedic surgeon. This expert, later presented by the defense, testified that plaintiff complained only of pain in his neck, middle and lower back, and right ankle. A physical examination and review of the hospital x-rays revealed no objective signs of injury but, relying on the patient's subjective complaints, the physician diagnosed a mild to moderate muscular strain of the neck and back, as well as an arthritic condition causing some minor degenerative disc changes. The doctor continued the pain medications, recommended heat and physical therapy, and restricted repetitive bending, lifting, pushing, or pulling. Three days later another clinical examination revealed the same symptoms, prompting a suggestion that plaintiff secure a lumbar support to assist with his frequent driving, and that he return in ten days if necessary. Although Evans never came back,[1] Dr. Morgan expected him to be feeling much better in two to three weeks and on the road to recovery. Despite questions that would later arise concerning the sacroiliac, the orthopedist further testified that his two examinations disclosed no traumatic injuries in that area.
Apparently concerned about the diagnosis of arthritis, Evans next saw Dr. Susan Williams, a rheumatologist and member of his church. Although this physician did not testify at trial, plaintiff stated that she recommended physical therapy, gave him injections, and changed his medication. But, with the doctor being a church member and friend, Evans soon found it difficult to openly discuss various personal problems stemming from his injuries. Consequently, after only three visits, he stopped seeing her.
Upon the recommendation of Dr. Williams and his physical therapist, plaintiff next went to Dr. Craig Springmeyer, another orthopedic surgeon, on January 17, 1992. At that time, Evans complained of neck pain radiating into both shoulders, back pain with the worst manifestations in the lower region, pain radiating into the left groin and down the leg, pain in the left arm, intermittent tingling in all four extremities, periodic numbness in the little and ring fingers of both hands, and ptosis (drooping) of the left eyelid together with difficulty in focusing. Dr. Springmeyer's initial examination revealed that the patient walked with a normal gait, had some mild limitations of neck and back motion, and could not touch his toes, but showed no signs of a significant injury to his sacroiliac. The resulting diagnosis listed a neck and back strain involving the muscles and ligaments supporting the spine. Most of the reported problems resolved by early April, save the lower back pain, and even that had so markedly improved that the physician decided Evans could return to his normal routine, including running and lifting weights. By June 1, 1992, the date of his last office visit before moving to New Orleans, Evans had regained his normal strength, while presenting few complaints and only nonspecific symptoms in the neck and lower back.
Shortly after transferring to New Orleans, plaintiff began seeing Dr. Edna Doyle, a physiatrist[2] who concentrates on sacroiliac disorders. On his first visit in August 1992, although reporting the ptosis resolved, Evans related many of the same ailments he initially disclosed to Dr. Springmeyer. He further complained about persistent low back pain, aggravated by running or walking, and also described discomfort when sitting or standing for lengthy periods. Analyzing these symptoms, and based upon a physical examination and review of the Schumpert x-rays, Dr. Doyle diagnosed a sacroiliac dysfunction. She explained that in part the left sacroiliac joint had locked, causing a stretching of the *170 ligaments attached to the sacrum. The physician theorized that the condition resulted from the collision force transferring up Evans's right leg to his pelvis, when his foot remained on the brake pedal during the accident. Later, at trial, a physical therapist associated with Dr. Springmeyer acknowledged that plaintiff's earlier complaints had been consistent with a soft-tissue injury to the sacroiliac region, but also noted that he had expected Evans to return to his pre-accident level of activity.
Between August and December 1992, Evans visited Dr. Doyle's office several times, disclosing improvement on each occasion, mostly due to physical therapy and use of a left shoe lift designed to strengthen a sacrum tilt. During this period, the physiatrist encouraged exercise but restricted her patient's activities, such as running or horseback riding, which could produce a bumping-like pressure. On May 10, 1993, after an almost six-month absence, plaintiff again saw the doctor to report he had been doing much better. With Evans swimming a half-mile each day for over two months, walking two miles every other day, and experiencing pain only on driving for long periods, the physician decided his condition had essentially resolved. The next visit occurred on September 2, 1993, just six days before Dr. Doyle appeared for a deposition. Plaintiff felt well, had played golf three times, and had gone sailing even though he experienced soreness afterwards.
Despite these optimistic reports, Dr. Doyle indicated the sacroiliac dysfunction would persist indefinitely and exacerbations would occur for the rest of the patient's life. Even more surprisingly, her diagnosis changed dramatically during the approximate two week interval between the deposition and trial. Previously, she deemed the condition generally resolved and even recommended that Evans join a health club. Yet at trial, she assessed a twenty-five percent functional impairment. Further, during her in-court testimony, she firmly recommended an extremely painful course of treatment requiring up to 100 injections of a sugar solution intended to strengthen the sacral ligaments. That exact procedure, she had considered unadvisable less than two weeks earlier. When challenged on cross-examination, the doctor admitted she reversed her opinion eight days before trial, unaided by any further physical examination, when plaintiff described the numerous activities he could no longer pursue.
According to Evans, his physical limitations impeded his performance of important church duties, prevented him from picking up his young daughter, and generally hindered his everyday activities. Even so, no other lay witnesses directly corroborated these assertions. Plaintiff's college-age son stated that his father engaged in a very active lifestyle prior to the accident, but did not comment on his present condition.
During its presentation, the defense called Dr. George Beach, a neurologist who examined Evans about seven weeks after the accident in connection with his left eye problems. At that time, the patient stated that his neck and back pain had resolved, although some muscle soreness remained. Of greater interest, plaintiff telephoned the doctor's office about two and one-half weeks later, complaining that the resulting medical report contained a "slight" error in failing to reflect that he told the physician of continued pain in his lumbar region. Dr. Beach testified that he dictates such correspondence immediately after completing a clinical examination and that, in this particular instance, his notes contained several patient quotations directly supporting the eventual account. He further observed that such objections "send[] up a red flag because it tells [me] that they're more interested in what my report says than my treatment." Indeed, plaintiff probably did not help his cause when he testified on rebuttal that, in requesting the report change, he acted on the recommendation of his lawyer.
Accordingly, upon applying the previously mentioned appellate standards, the record before us does not disclose that the jury abused its discretion in awarding $7,500 for past and future general damages, even if that sum may arguably be on the low side. Evans's primary contention, that the jurors failed to give adequate weight to the conclusions of Dr. Doyle, fails to recognize that *171 reasonable minds may appraise such evidence very differently. Said more directly, after weighing and evaluating the medical and lay testimony, the jury (or judge) may accept or reject any expert's view, even to the point of substituting its own common sense and judgment for that of an expert witness where, in the fact-trier's opinion, such substitution appears warranted by the evidence as a whole. Lloyd v. TG & Y Stores Co., 556 So.2d 629 (La.App. 2d Cir.1990), and authorities therein; see also Bates v. Willis, 613 So.2d 691 (La.App. 5th Cir.1993). Obviously then, neither is a jury required to accept totally a plaintiff's perception concerning the degree and magnitude of his injuries. See Richard v. Dollar General Store, 606 So.2d 831 (La.App. 2d Cir.1992), writ denied, 608 So.2d 197 (La.1992). This is especially true where, as here, to assist in resolving credibility questions, the trier of fact has been afforded a considerable opportunity to observe the claimant's physical condition during the trial.
The jury clearly felt that plaintiff exaggerated his symptoms. Weighing Dr. Doyle's inconsistent impressions against the promising assessments given by the majority of the other medical experts (including the physical therapist), the panel reasonably could conclude that Evans primarily sustained moderate soft-tissue injuries that resolved prior to trial, excluding minor residual effects. Parenthetically, any consideration of comparative awards would reveal similar results. See, e.g., Chambers v. Graybiel, 25,840 (La.App. 2d Cir. 06/22/94), 639 So.2d 361, writ denied, 94-1948 (La. 10/28/94), 644 So.2d 377 (awarding $10,000 in general damages for soft-tissue injury); Graham v. Edwards, 614 So.2d 811 (La.App. 2d Cir.1993), writ denied, 619 So.2d 547 (La.1993) (raising award for minor soft-tissue injury to $3,500); Marshall v. A & P Food Co. of Tallulah, 587 So.2d 103 (La.App. 2d Cir.1991) (lowering an award to $10,000 for all general damages concerning a minor soft tissue injury); Hastings v. Southern Nat. Ins. Co., 554 So.2d 221 (La.App. 2d Cir.1989), writ denied, 559 So.2d 126 (La.1990) (affirming, but terming arguably high, a trial court award of $14,500 in general damages for a severe whiplash injury); Rabalais v. Wal-Mart of Alexandria, 94-24 (La.App. 3d Cir. 06/01/94), 640 So.2d 785, writ denied, 94-1796 (La. 10/14/94), 643 So.2d 164 (declining to lower a $14,000 general damages award for sacroiliac injury); Veal v. Forrest, 543 So.2d 1121 (La. App. 1st Cir.1989) (making $10,000 general damages award for injury involving sacroiliac strain).
JNOV Motion
In his final assignment of error, Evans contends that the district court erred in denying his motion for JNOV on the quantum issue. For a discussion of the parameters applied in making such a determination, see Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La.1991); Sumrall v. Sumrall, 612 So.2d 1010 (La.App. 2d Cir. 1993). Based on the record, we find no error in the trial judge's conclusion that reasonable minds could have reached different conclusions regarding damages. Thus, the complaint is without merit.
Conclusion
For the reasons assigned, the jury verdict and trial court judgment are affirmed at plaintiff's cost.
AFFIRMED.
NORRIS, Judge, dissenting.
I respectfully dissent.
The jury abused its discretion by awarding general damages of only $7,500, a sum which the majority concedes to be "arguably on the low side." In the case of Chambers v. Graybiel, 25840 (La.App. 2d Cir. 6/22/94), 639 So.2d 361, this court awarded $10,000 to the plaintiff in a mild rear-end collision; she sustained a cervical strain, with soft tissue injury lasting some six to eight weeks. In the case of Marshall v. A & P Food Co., 22699 (La.App. 2d Cir. 9/25/91), 587 So.2d 103, this court awarded $10,000 to an elderly slip-and-fall plaintiff who sustained musculo-ligamentous strain to his back and suffered from residual pain for some six months after the accident. Mr. Evans's complaints were more long-lasting and serious than these plaintiffs'.
*172 In view of the duration of Mr. Evans's complaints and the medical testimony, I find the lowest general damage award the court could affirm is $12,500. I would therefore reverse and grant judgment in favor of the plaintiff for $12,500. plus special damages.
NOTES
[1] Evans testified that he attempted to return to Dr. Morgan's office a third time, but found the physician gone on a trip.
[2] A physiatrist is a specialist in physical medicine and rehabilitation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/511756/ | 857 F.2d 10
Julio LOZADA, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 86-1862.
United States Court of Appeals,First Circuit.
Heard April 8, 1987.Decided Sept. 14, 1988.
Mark L. Galvin with whom Watt & Galvin Providence, R.I., was on brief for petitioner.
James A. Hunolt with whom Richard K. Willard, Asst. Atty. Gen., and Robert Kendall, Jr., Asst. Director, Washington, D.C., were on brief for respondent.
Before COFFIN and TORRUELLA, Circuit Judges, and MALETZ,* Senior Judge.
COFFIN, Circuit Judge.
1
Petitioner is a 52-year-old citizen of the Dominican Republic who entered the United States as a lawful permanent resident on January 1, 1974. He has conceded that he is deportable because of criminal convictions in the United States, but has sought relief from deportation under two provisions of the Immigration and Nationality Act. An immigration judge denied his application for relief, and the Board of Immigration Appeals affirmed that ruling in summary fashion, noting that petitioner had not specified the reasons for his appeal. Petitioner makes two claims to us: first, that the Board erred in failing to review fully the immigration judge's decision, and second, that he was denied due process because of the ineffective assistance of his former counsel, who was responsible for the sketchy nature of his appeal to the Board. Petitioner seeks an order directing the Board to give additional consideration to his request for relief from deportation.
I.
2
On May 8, 1984, the Immigration and Naturalization Service issued an Order to Show Cause charging that petitioner Julio Lozado was deportable under section 241(a)(4) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(a)(4), because he had been convicted of a crime involving moral turpitude committed within five years after entry into the United States and sentenced to confinement for a period of one year or more. Lozado had been convicted during his residency in the United States of receiving stolen property, conspiracy to commit larceny, and obtaining money under false pretenses.
3
Petitioner admitted deportability under section 1251(a)(4), but applied for relief from deportation under sections 212(c) and 244(e) of the Act, 8 U.S.C. Secs. 1182(c) and 1254(e). Under section 212(c), deportation may be waived in the discretion of the Attorney General for aliens deportable because of criminal convictions.1 Section 244(e) gives the Attorney General the discretion to permit an alien to depart the country voluntarily, in lieu of deportation, if the individual meets certain statutory requirements.
4
An immigration judge denied petitioner's application for relief from deportation on March 13, 1985, finding that petitioner was statutorily ineligible for voluntary departure under section 244(e) and that petitioner's case did not merit a discretionary waiver of deportation under section 212(c). That same day, petitioner's former counsel filed a notice of appeal (Form I-290A) with the Board of Immigration Appeals, stating as reasons for the appeal that "[t]he Judge abused his discretion in that; (a) His decision was against the weight of the evidence presented[;] (b) His decision was against the law controlling this case[; and] (c) His decision was arbitrary and capricious." In the notice, petitioner's counsel stated that he intended to file a separate written brief.
5
In May 1986, the immigration court clerk informed petitioner's counsel by letter that a written brief already should have been filed, and suggested that any brief should promptly be submitted directly to the Board. No brief was filed. In a decision dated July 8, 1986, the Board summarily dismissed the appeal pursuant to 8 C.F.R. Sec. 3.1(d)(1-a)(i). That regulation provides:
6
The Board may summarily dismiss any appeal in any case in which (i) the party concerned fails to specify the reasons for his appeal on Form I-290A (Notice of Appeal); ...
7
The Board noted that petitioner had "in no meaningful manner identified the claimed error in the immigration judge's comprehensive ... decision...." The Board, accordingly, affirmed the decision of the immigration judge "for the reasons stated therein."
8
Petitioner filed the present petition for review in September 1986. He claimed that the Board erred in giving his claim only summary attention, and alternatively argued that he was denied due process on the basis of ineffective assistance of his former counsel, who inadequately had completed Form I-290A and who never filed a written brief in support of petitioner's appeal to the Board of Immigration Appeals. In January 1987, while the federal court case was pending, petitioner filed a motion to reopen proceedings before the Board. Although we heard oral argument in April 1987, we entered an order holding the case in abeyance pending the Board's resolution of the motion to reopen proceedings. The Board denied the motion on April 13, 1988. We now turn to the merits of the case.
II.
9
Petitioner's primary argument is that the Board's summary dismissal of his appeal under 8 C.F.R. Sec. 3.1(d)(1-a)(i) was improper. He claims that the reasons given in his Notice of Appeal were "sufficiently clear and descriptive to enable the Board to make a decision on the merits of the appeal." It is his contention that, had the Board given his appeal its full attention, he would have been found eligible for relief from deportation.
10
The Board recently has addressed the purpose of regulation 3.1(d)(1-a)(i):
11
In Matter of Holguin, 13 I & N Dec. 423 (BIA 1969), we noted that this regulation was designed to permit us to deal promptly with appeals where the reasons given for the appeal are inadequate to apprise the Board of the particular basis for the alien's claim that the immigration judge's decision is wrong....
12
... Without a specific statement, the Board can only guess at how the alien disagrees with the immigration judge's decision. It is therefore insufficient to merely assert that the immigration judge improperly found that deportability had been established or denied an application for relief from deportation. ... Where eligibility for discretionary relief is at issue, it should be stated whether the error relates to grounds of statutory eligibility or to the exercise of discretion. Furthermore, it should be clear whether the alleged impropriety in the decision lies with the immigration judge's interpretation of the facts or his application of legal standards. Where a question of law is presented, supporting authority should be included, and where the dispute is on the facts, there should be a discussion of the particular details contested.
13
... In all cases, ... the reasons for an appeal must be meaningfully identified on the Notice of Appeal.
14
Matter of Valencia, Interim Dec. 3006, slip op. at 2-3 (BIA Feb. 14, 1986).
15
We agree with the Board that petitioner's bare complaints--that the judge's decision was "against the weight of the evidence," "against the law controlling the case," and "arbitrary and capricious"--do not meet these requirements, and fail to give the Board any meaningful information about the asserted error or errors in that decision. These three statements are no different in kind from that in Reyes-Mendoza v. INS, 774 F.2d 1364 (9th Cir.1985), where the petitioner gave as his reason for appeal: "Wrongful denial of suspension of deportation." The Ninth Circuit found summary dismissal to be appropriate in that case because the statement on the form was "inadequate to inform the [Board] of what aspects of the [judge's] decision were allegedly incorrect and why." Id. at 1365. See also Townsend v. INS, 799 F.2d 179, 181 (5th Cir.1986) (petitioner stated only that "male respondent has sufficiently established his 'well founded fear of persecution' according to present case law"); Matter of Valencia, Interim Dec. 3006, slip. op. at 2 (petitioner stated: "I respectfully submit that the hearing officer erred in that of the appellant [sic] burden of proving a well-founded fear of persecution in his native Nicaragua."); Matter of Holguin, 13 I & N Dec. at 424 (petitioner stated: "Decission [sic] is contrary to customary and enacted law as it relates to the operative facts in the present matter.").
16
The inadequacy of petitioner's Notice of Appeal is particularly clear when that notice is contrasted with his brief to us. Petitioner's brief gives several specific reasons why he believes the immigration judge abused his discretion in denying relief under section 212(c). For example, he claims that the immigration judge apparently misread his criminal records and, as a result, mistakenly believed that petitioner had a "recent criminal history." In addition, he emphasizes his record of rehabilitation and a positive letter submitted on his behalf by his probation counselor. Specifics such as these should have been included in the notice to the Board. Without them, the Board was left guessing at how and why petitioner thought the court had erred.
17
Petitioner suggests, however, that only "frivolous and dilatory appeals" may be dismissed summarily, and he cites language in Matter of Holguin indicating that section 3.1(d)(1-a) was designed to permit the Board to deal promptly with frivolous appeals, see 13 I & N Dec. at 425. We disagree that this is the regulation's only purpose. The Board in Holguin also emphasized the inadequacies of the Notice of Appeal in that case. And in Matter of Valencia, the Board explained in detail why "the reasons for an appeal must be meaningfully identified" in all cases. See supra pp. 5-6. That petitioner's claim in this case may not have been frivolous does not affect the Board's right to dismiss summarily under section 3.1(d)(1-a)(i ). Compare subsection (i) (failing to specify reasons for appeal) with subsection (iv) ("the Board is satisfied, from a review of the record, that the appeal is frivolous or filed solely for the purpose of delay").
18
We therefore find no error in the Board's decision to invoke 8 C.F.R. Sec. 3.1(d)(1-a)(i) to dismiss summarily petitioner's appeal.2
III.
19
Petitioner also argues that we should order the Board to reopen his case, and to allow him to submit a written brief in support of his appeal, because he otherwise would be denied due process as a result of the ineffective assistance of his former counsel. Specifically, petitioner claims that his prior counsel's inadequate statement on the Notice of Appeal and the lawyer's failure to file a brief in support of the appeal denied him due process by causing a summary dismissal of the appeal.
20
Because deportation proceedings are deemed to be civil, rather than criminal, in nature, petitioners have no constitutional right to counsel under the Sixth Amendment. United States v. Campos-Asencio, 822 F.2d 506, 509 (5th Cir.1987); Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir.1986). See also INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984) ("A deportation proceeding is a purely civil action to determine eligibility to remain in this country.... Consistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing."); Abel v. United States, 362 U.S. 217, 237, 80 S.Ct. 683, 696, 4 L.Ed.2d 668 (1960) ("deportation proceedings are not subject to the constitutional safeguards for criminal prosecutions"). Nevertheless, such petitioners are entitled to due process. "Ineffective assistance of counsel in a deportation proceeding is a denial of due process only 'if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.' " Ramirez-Durazo v. INS, 794 F.2d 491, 499-500 (9th Cir.1986) (quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985)). See also LeBlanc v. INS, 715 F.2d 685, 694 (1st Cir.1983) (no need to remand based on ineffective assistance of counsel where "[t]here has been no violation of fundamental fairness").
21
Even if we assumed that former counsel's failure initially to secure full review by the Board was so harmful as to have caused a denial of due process had the proceedings stopped at that point, the Board's careful attention to petitioner's motion to reopen deportation proceedings negated any possible violation. In rejecting the same challenges to the immigration judge's decision that petitioner raises to us, the Board stated the following about that decision:
22
The immigration judge considered and properly evaluated all the evidence presented, and his conclusions that the respondent did not merit a grant of section 212(c) relief as a matter of discretion and that he was ineligible for voluntary departure as a matter of law are supported by the record.
23
The allegations of error ascribed to the immigration judge in the respondent's motion are unfounded.
24
The Board then responded to petitioner's specific allegations of error, stating that the transcript of petitioner's deportation hearing and the immigration judge's decision show that the judge did not misconstrue petitioner's criminal record, and explaining why petitioner did not meet the statutory requirements for voluntary departure.
25
In effect, as a result of the Board's serious consideration of petitioner's motion to reopen proceedings, he received nearly all the attention to his case that ever potentially was available. In these circumstances, it is clear that petitioner did not suffer ineffective assistance of counsel that rendered his proceeding "fundamentally unfair." His due process claim is, therefore, unavailing.
26
For the foregoing reasons, we deny petitioner's request that we remand this case to the Board for a full review of his claim on the merits.
*
Of the United States Court of International Trade, sitting by designation
1
Petitioner would seem ineligible for relief under the language of section 212(c), which applies on its face only to resident aliens who have travelled abroad temporarily and are excludable upon return to the United States. However, in Francis v. INS, 532 F.2d 268 (2d Cir.1976), the court ruled that Congress could not constitutionally confine this possible relief to aliens who leave the country. After Francis, the Board of Immigration Appeals held that section 212(c) relief also is available in deportation proceedings. Matter of Silva, 16 I & N Dec. 26, 30 (BIA 1976)
2
Petitioner does not ask us to review the merits of the case. We note, however, that the immigration judge correctly determined that petitioner was ineligible for voluntary departure under section 244(e). Under that section, an alien deportable under section 241(a)(4) of the Act is ineligible for voluntary departure unless he has been physically present in the United States, and of good moral character, for a continuous period of 10 years. Petitioner's latest conviction was in 1984 as a result of criminal activity in 1980
As to the judge's discretionary finding that petitioner did not merit section 212(c) relief, the question seems close, but the decision does not appear to be an abuse of discretion. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1557706/ | 493 F.Supp.2d 302 (2007)
Emma JONES, as Administratrix of the Estate of Malik Jones and as Guardian Ad Litem for Priya Jones, Plaintiff,
v.
TOWN OF EAST HAVEN, et al., Defendants.
No. 3:99CV00632 (AWT).
United States District Court, D. Connecticut.
July 6, 2007.
*303 Joseph A. Moniz, Moniz & Associates, Hartford, CT, for Plaintiff.
Hugh F. Keefe, Nicole M. Fournier, Lynch, Traub, Keefe & Errante, New Haven, CT, Lawrence C. Sgrignari, Hamden, CT, for Defendants.
RULING ON PENDING MOTIONS
THOMPSON, District Judge.
Defendant Town of East Haven (the "Town") has filed a renewed motion for judgment as a matter of law, and for the reasons set forth in Part I below, that motion is being denied. Plaintiff Emma Jones has filed a "motion for hearing on compensatory damages," which included a request for a new trial on compensatory damages, and for the reasons set forth in Part II below, that motion is being granted. The Town has filed a motion to set aside the jury's award of punitive damages against it, and for the reasons set forth in Part III below, that motion is being granted. Finally, the court includes, in Part IV below, a written summary of its findings on the plaintiff's Batson claims.
I. RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW
Defendant Town of East Haven has renewed its motion, pursuant to Fed.R.Civ.P. 50, for judgment as a matter of law on the plaintiffs Monell claim. For the reasons set forth below, the renewed motion for judgment as a matter of law is being denied.
A. Legal Standard
The, standard governing motions for judgment as a matter of law pursuant to Rule 50 is well-established. Such a motion should not be granted "unless the evidence, *304 viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in [the opposing party's] favor." Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir.1998); Davis v. Rodriguez, 364 F.3d 424, 432 (2d Cir.2004). The court deciding a Rule 50 motion "must give deference to all credibility determinations and reasonable inferences of the jury, and it may not itself weigh the credibility of witnesses or consider the weight of the evidence." Galdieri-Ambrosini, 136 F.3d at 289 (citations omitted); Advance Pharmaceutical, Inc. v. U.S., 391 F.3d 377, 390 (2d Cir.2004) ("[i]n assessing the sufficiency of the evidence to support a jury verdict, we must view the record in the light most favorable to the opposing party, assuming all reasonable inferences were drawn and all credibility disputes resolved in its favor"). Accordingly, judgment as a matter of law should not be granted unless: (I) "there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture," or (ii) "there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [the movant]." Galdieri-Ambrosini, 136 F.3d at 289 (citations omitted); Mattivi v. South African Marine Corp., "Huguenot,", 618 F.2d 163, 168 (2d Cir.1980); see also Cross v. New York City Transit Authority, 417 F.3d 241, 248 (2d Cir.2005) (noting that "[a] movant's burden in securing Rule 50 relief is particularly heavy after the jury has deliberated in the case and actually returned its verdict" and pointing to (I) and (ii) as set forth in Galdieri-Ambrosini as the only grounds for setting aside the verdict under those circumstances). "In other words, a Rule 50 motion must be denied unless the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached.'" Cross, 417 F.3d at 248 (citations omitted).
B. Factual Background
The evidence at trial included evidence with respect to the East Haven Police Department (the "EHPD") and testimony by and other evidence pertaining to the chief of police in 1997. It also included evidence pertaining to an incident involving an individual named Shane Gray; comments made to an individual named Donald R. Jackman; the wearing of racially offensive T-shirts by members of the EHPD; the shooting of Malik Jones; actions by other EHPD officers immediately following that shooting; and incidents involving an individual named Patricia Snowden.
1. The EHPD
In 1997, James Criscuolo was the chief of the EHPD, having been appointed chief in 1993. There were approximately 52 members of the department. In terms of vehicles, the EHPD had 11 marked units, six unmarked units, and two police vans. These vans were used both for prisoner transport and for patrol. The Town had a minority population of approximately 1.4%, and the EHPD was all white. Several communities along the shoreline east of New Haven were also predominately white.
The EHPD had three staggered shifts. There was an 8 a.m. to 4 p.m. shift, and some people on that shift worked 7 a.m. to 3 p.m. There was a 4 p.m. to midnight shift, and some people on that shift worked 3 p.m. to 11 p.m. Finally, there was a midnight to 8 a.m. shift; And some people on that shift worked 11 p.m. to 7 a.m. Depending on the particular evening, there *305 were five to eight people working from 4 p.m. to midnight and two people working 3 p.m. to 11 p.m. on the evening shift. This included the shift commander, who would be a lieutenant or sergeant, the dispatcher, and detectives. Typically, there would be five to six marked units patrolling during the evening shift.
The Town encompasses approximately 14 square miles, and it is bordered on the west by New Haven, on the south by the Long Island Sound, on the east by Branford and North Branford, and on the north by North Haven. The EHPD had four geographic sectors for patrol purposes. The Town is longer than it is wide, and the southern patrol sector is bordered by New Haven, the Long Island Sound, and Branford; the, center patrol sector is bordered by New Haven and Branford; the north patrol sector is bordered by New Haven, Branford, and North Branford; and the upper north patrol sector is bordered by New Haven, North Haven, and Branford. The New Haven Municipal Golf Course (the "Golf Course"), which lies Mostly in East Haven, straddles the New Haven/East Haven line, and there is no thoroughfare through the Golf Course.
Chief Criscuolo, who had commanded the patrol division from 1985 to 1992, testified that EHPD officers patrolled those sectors and that there was no policy, written or unwritten, of patrolling the borders between New Haven and East Haven. Chief Criscuolo testified that the EHPD had both written and unwritten policies. He also told the jury that, while he was chief of police, he was aware that other communities were talking about the issue of racial profiling, but the EHPD did not have that problem, and he concluded that it was not necessary to address that issue. Chief Criscuolo testified that there was no EHPD policy against discriminating against people based on race.
Chief Criscuolo testified that no African-American individual had ever filed a formal complaint or lawsuit against the EHPD alleging excessive force. Joseph A. Pascarella, who was chief of police from 1964 to 1993, testified that, to his knowledge, no one ever claimed they had been mistreated because of his or her race during his tenure as chief.
The EHPD had a formal, written policy on use of deadly force and use of firearms. It was promulgated under the authority of Chief Pascarella. The policy provides, in part:
* * *
B. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. A police officer may not seize an unarmed non-dangerous suspect by shooting him.
C. Where the officer has probable cause to believe that the suspect poses a threat of deadly physical harm either to the officer or to others, it is permissible to use deadly physical force to defend himself or a third person to prevent escape by using deadly physical force. Thus, if the suspect threatens the officer or another with the use of deadly physical force or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly physical force may be used if necessary to defend himself or another, or to effect an arrest or to prevent escape, and if, where feasible, some warning has been given.
POLICE OFFICERS SHALL NOT USE DEADLY FORCE IN ANY OTHER MATTER INVOLVING A MISDEMEANOR OR TRAFFIC VIOLATION.
* * *
*306 F. MOVING VEHICLES
Discharging a firearm from or at a moving vehicle is prohibited, unless the occupants of the other vehicle are using deadly physical force against the officer or another person.
(Defendant's Ex. 47).
2. The Shane Gray. Incident
The plaintiff introduced evidence from which the jury could have reasonably concluded that on September 15, 1991, Officer Flodquist used excessive force in taking Shane Gray into custody and that, while the EHPD conducted a routine inquiry into Flodquist's discharge of his weapon, that inquiry was deficient and the EHPD ignored and did not investigate at all Gray's complaint that Flodquist used excessive force.
It was undisputed that at approximately 9:15 p.m. that night an East Haven resident, Nicholas Pappacoda, was robbed by three black males in their twenties while trying to buy drugs on Eastern Circle in New Haven. New Haven police were called to the scene. At 11:34 p.m., the New Haven Police Department sent out a bulletin to surrounding police departments that three unknown black males in their early twenties, who were wearing dark clothing, were wanted for robbery with a firearm. The bulletin stated that the incident occurred on Eastern Circle in New Haven, that a silver handgun was displayed, and that gunshots were fired. The bulletin stated that the perpetrators fled in an light blue Oldsmobile Sierra and gave the license plate number. The EHPD dispatcher promptly relayed the information in the bulletin to the EHPD units on patrol. Flodquist testified that there would have been at least five units on patrol at that time.
Eastern Street runs north/south in the City of New Haven, somewhat parallel to the New Haven/East Haven town line. The southern end of Eastern Street crosses the town line, at which point it becomes Laurel Street in East Haven. The northern end of Eastern Street terminates at Quinnipiac Avenue. The last major intersection prior to Quinnipiac Avenue is Route 80, also known as Foxon Road in East Haven and Foxon Boulevard in New Haven. Foxon Boulevard is the first major road crossing the New Haven/East Haven town line north of the Golf Course. If one proceeds from East Haven to New Haven on Foxon Road, turns south at the intersection of Foxon Boulevard and Eastern Street, one eventually arrives at the southern end of Eastern Street and crosses into East Haven, at which point the road becomes Laurel Street. Eastern Circle lies to the east of Eastern Street, is in the shape of a half-circle, and has a southern and a northern intersection with Eastern Street. Eastern Circle lies entirely within the City of New Haven.
Shane Gray testified that he exited his residence on Eastern Circle that evening and saw two Hispanic teenaged brothers from next door taking joyrides in a car on Eastern Circle. When Gray asked if he could take the car for a ride, they let him do so. Gray got into the car and drove towards the northern intersection of Eastern Circle with Eastern Street. As Gray approached Eastern Street, he saw two EHPD cruisers sitting there on Eastern Street, side by side but facing in opposite directions. The two cruisers were blocking the road. Gray panicked and jumped out of the car while it was still moving. The car continued on and crashed into a wooden guard rail next to a parking lot on the northern side of Eastern Circle. Gray ran through the parking lot and out into an open field. Officer Flodquist pursued him in one of the EHPD cruisers.
*307 Also, Gray testified that the cruiser that chased him across the field had not been behind him as he was driving around Eastern Circle. He told the jury that before he saw the two EHPD cruisers parked at the northern intersection of Eastern Street and Eastern Circle, he had not seen any police car at all.
Officer Flodquist's version of how he came to be pursuing Shane Gray across the open field was quite different. Flodquist testified that when the EHPD dispatcher broadcast the information about the robbery on Eastern Circle, he informed the dispatcher that he would check both town lines in the vicinity of Eastern Circle. Flodquist testified that he first checked the New Haven/East Haven town line at the Route 80 end; Flodquist's case/incident report states that the robbery occurred in New Haven on Route 80 near Quinnipiac Avenue. He then went south on Eastern Street and checked the town line at the Laurel Street end. Flodquist testified that Eastern Street was in his normal course of patrol. Flodquist testified that he then observed a blue Oldsmobile heading south on Eastern Street, and that the driver made a sudden U-turn, and that when the car turned around Flodquist saw that it had the marker plates that were reported in the recent broadcast as belonging to the car that had been stolen during the robbery. Flodquist testified that he pursued the vehicle a short while north on Eastern Street, into the southern entrance to Eastern Circle, and around Eastern Circle. He testified that his pursuit of the vehicle was very brief, lasting seconds, not minutes. Flodquist also testified that during the pursuit he activated his lights and sirens and he told the EHPD dispatcher that he was in pursuit of the vehicle, and that he had attempted to pull the vehicle over. He testified that near the northern entrance to Eastern Circle, the driver jumped out of the car while it was still moving. The car continued on and crashed into a wooden guard rail next to a parking lot while the driver ran through the parking lot and out into an open field, with Officer Flodquist in pursuit, driving his EHPD cruiser.
Flodquist testified that he had no communication with Officer Kevin McCarthy prior to pursuing Gray and that at no time while he was pursuing Gray's vehicle that night did he see the EHPD cruiser being driven by McCarthy. He could not say whether McCarthy's cruiser arrived on the scene before or after the automobile driven by Gray hit the guardrail. The plaintiff introduced into evidence the report of the New Haven police officer who investigated the crash of the Oldsmobile into the guard rail. Officer McCarthy told that New Haven officer that McCarthy was in his vehicle on Eastern Street, at the northern intersection of Eastern Circle with Eastern Street, and Gray was driving the Oldsmobile towards him when he suddenly slowed the vehicle and jumped out of the car. The car then went out of control and slammed into the wooden guard rail. The report contains no indication of how McCarthy came to be at the scene and no indication that he was aware of Flodquist pursuing Gray on Eastern Street and around Eastern Circle.
During Flodquist's deposition, he had testified that, once Gray jumped out of the automobile and started running, he pursued Gray in his cruiser, instead of on foot, because there were no other officers on the scene at the time and, in that situation, Flodquist did not want to run out in to a field after an armed person without cover. However, at trial, Flodquist conceded that although he could not say exactly when McCarthy arrived at the scene, he knew at the time he was pursuing Gray across the field in his cruiser that he was not alone at the scene; specifically, he knew that *308 McCarthy was in close proximity. He also testified that it was his intention to get past Gray.
The jury also heard very different accounts from Gray and Flodquist as to what happened during the pursuit across the field. Gray testified that as he ran across the field, Flodquist's cruiser caught up with him "real fast." When Flodquist's cruiser caught up with Gray, it hit Gray and he flipped onto the hood of the cruiser. The cruiser kept going and slid into a ditch. At that point, Gray rolled over, fell off the car, jumped up, and ran. When Gray looked back, Flodquist was still in the cruiser. Without saying "freeze" or anything else, Flodquist shot at Gray. Gray ducked his head and kept running. Gray ran to a neighboring building, knocked on the door, and laid down on the porch. Officers arrived at the porch, placed Gray in handcuffs, and proceeded to take Gray to an EHPD cruiser in the parking lot.
Gray's relatives and other residents of neighboring homes had come outside at the scene, and Gray told them that the officer had hit him with his car and also had shot at him. Gray refused to let the officers place him in the EHPD cruiser until his aunt arrived and calmed him down. At that point, Gray was yelling loudly enough to be heard by everyone at the scene, including all of the police officers on the scene, that Flodquist had hit him with his car and had shot at him. There were both New Haven and EHPD officers at the scene at this time. Gray testified that at no time that day did he have a gun.
Gray testified that he was so mad about being hit by Flodquist's cruiser and about being shot at that he called the officers every name he could think of and that, if he could have gotten the handcuffs off, he would have attacked the officers. He testified that after he had been transported to EHPD headquarters, he continued to be mad. When he was taken to the desk at the station, he was yelling at whomever was around that Flodquist had shot at him and hit him with his car and that his side hurt. Gray testified that there were three or four EHPD officers around the desk at that time and that these officers were different from the ones Gray complained to at the scene of the incident.
Gray told EHPD officers at the station that he needed to go to the hospital because he had been hit by Flodquist's cruiser. The East Haven Fire Department was called and a paramedic checked Gray at approximately 1:53 a.m. Gray was subsequently taken to Yale New Haven Hospital, where he was treated in the emergency room. At the hospital, Gray complained of pain in his left buttock, and he told the staff that he had been hit by a police car at a moderate speed and thrown onto the hood. The hospital staff noted that Gray had a contusion on his left hip. Gray was discharged from the hospital at about 3:40 a.m. and returned to EHPD headquarters. At about 4:40 a.m., Gray was released on a $2,500 bond, having been charged with larceny, carrying a pistol without a permit, interfering with police and reckless endangerment.
Flodquist told the jury that as he pursued Gray across the open field, his cruiser was not directly behind Gray, but rather Gray was in front of the cruiser but off to the left. When Flodquist wrote up his case/incident report, he stated that when he drove up on the grassy area, he saw that the suspect had "an object" in his right hand while he was running. However, when Flodquist testified, he stated that when he saw Gray jump out of the car and start running away, Gray had a chrome object in his hand and that as Flodquist got closer to Gray, he could see that it was *309 a gun. When challenged as to how he could see that the object was a gun from approximately 50 feet away at 11:30 or so at night in the dark, Flodquist testified that he could see that it was a gun because he had all of his lights on as he was chasing down Gray.
Flodquist testified that he then saw Gray disappear and realized that the cruiser was approaching a ditch, at which point he applied his brakes and the cruiser slid. As the cruiser slid down the embankment into the ditch, Flodquist saw Gray going up the far side of the ditch. Flodquist testified that he opened the driver's door of his cruiser and shouted for Gray to stop. Gray, who was on the far side of the ditch, turned towards Flodquist. Flodquist testified that he saw a small chrome gun in Gray's right hand. Before Gray could raise it, Flodquist, having already drawn his weapon, fired two shots at Gray while leaning on the cruiser door for support. Gray fell to the ground and then got up and ran away.
Flodquist testified that he then pursued Gray to the porch of a nearby residence approximately 200 yards away, where he took Gray into custody at gunpoint and placed handcuffs on him. Flodquist then escorted Gray to Officer Peterson's EHPD cruiser, which was parked on Eastern Street. No gun could be found on Gray's person or on the ground where he had been handcuffed. Flodquist conceded that once Gray stood up and while he was running away from the ditch to the porch, Flodquist always had Gray in sight and he did not see a gun in Gray's hand; nor did he see Gray throw a gun away.
A search of the entire area was undertaken by the New Haven and EHPD officers at the scene, but no gun was ever found. Flodquist testified that someone in the crowd must have taken the gun, although he saw no one take it. He wrote in the case/incident report that several persons in the crowd that gathered in the apartment complex were laughing and saying, "Don't bother looking for the gun, you won't find one now." However, Flodquist conceded that he had said or done nothing that would have alerted anyone in the crowd to the fact that he was claiming that he saw Gray with a gun. He also agreed that he was the only police officer who claimed to have seen a gun. Also, when Flodquist testified at trial concerning comments from the crowd about not finding the gun, he indicated that a person from the crowd, who was over near Flodquist's cruiser, yelled out the comment about not bothering to look for the gun and added something like "white boy."
Flodquist testified that he was positive that at no time did his cruiser ever strike Gray and that Gray never rolled up onto the hood of his cruiser. He also testified that Gray never told him that Gray had been hit by Flodquist's cruiser. Flodquist's case/incident report does, however, state that he attempted to stop the cruiser as it caught up with Gray and it began skidding on the wet grass; that Flodquist had already unfastened his seat belt and had his weapon in his hand; and that "the cruiser, officer and suspect went into a large drainage ditch." It also notes that Gray was complaining of pain in his buttocks.
In testifying about this incident, Flodquist disagreed that the EHPD's procedure was that when a crime is committed in New Haven, it would be a New Haven arrest, even if the arrest was made by EHPD officers. Chief Criscuolo had testified if an individual committed a crime in New Haven but was apprehended by the EHPD, the procedure would be to turn the suspect over to the New Haven police, even if the person was apprehended in East Haven by the EHPD.
*310 At the time Flodquist placed Gray in handcuffs, no New Haven officer had arrived on the scene. The only officers there were EHPD officers. When Sgt. DaCosta of the EHPD arrived at the scene, he took possession of Flodquist's weapon because that was part of the procedure to be followed when shots are fired by an EHPD officer. An internal investigation into whether the discharge of the weapon was justified was also part of that procedure. The internal investigation was conducted by Captain Criscuolo, who was Chief of the EHPD in 1997, and Flodquist testified that the conclusion was that his actions were justified. Gray testified that he was never contacted by anyone from the EHPD about the incident.
A report of the investigation of Flodquist's firing his weapon at Gray was prepared. That report was destroyed by the EHPD's keeper of records in accordance with state regulations. However, the EHPD cell card for Shane Gray from the night of the incident had not been destroyed. The cell card is a document that is created and time-stamped when a prisoner arrives in detention. Then additional events, such as when a prisoner makes a telephone call, and the time of the event, are also recorded. Flodquist agreed that if Gray had made a complaint, one could expect to see it on the cell card. When Flodquist was asked by plaintiff's counsel whether Gray's cell card was available, he initially testified that he did not know whether it was or not. Later in the questioning, Flodquist was asked where he had gotten very specific times he gave in his testimony as to when certain events happened during Gray's stay at the station. It came out that Flodquist had gotten the times by reviewing a copy of Gray's cell card. When the cell card was later introduced into evidence, it contained no record of any complaint by Gray just a notation by Flodquist that the Fire Department had been called to check the prisoner.
During Flodquist's pretrial deposition, he remembered Shane Gray's name without being prompted, and he volunteered, without being asked, that Gray was deceased. When asked how he knew that Gray was deceased, Flodquist stated that an investigator from the State's Attorney's Office had called him a few weeks or months after the incident and told him Gray had been the victim of a homicide in New Haven. Flodquist also told the plaintiff s counsel during the deposition that he thought Gray was a juvenile at the time of the incident, and at trial he agreed that he knew that juvenile records are not available to the public; Gray was 21 at the time of the incident. Flodquist also testified during his deposition that he thought the incident happened sometime around 1986 or 1987; Flodquist was notified that he had been hired by the EHPD in February 1985.
3. Comments to Jackman
Donald R. Jackman testified about a comment made by a member of the EHPD in the presence of three other officers, on January 8, 1996, to the effect that Jackman would have been treated differently had he been African-American instead of white.
Jackman, who had had a previous encounter with the EHPD, made a series of telephone calls to the EHPD late on the night of January 7, 1996 and early in the morning of January 8, 1996. Jackman used insulting language during these calls. At approximately 1:00 or 2:00 a.m., a squad car was sent to Jackman's residence. Eventually four members of the EHPD were at the scene. Jackman refused to let the officers, into his residence and refused to tell them whether he had a gun. When the four officers gained entry *311 to Jackman's residence, a violent struggle ensued and they learned that Jackman did have a gun. Jackman bit one of the officers on the hand, causing a serious injury. Jackman testified that he was beaten about the face and head, had teeth knocked out, and needed stitches in his head.
Jackman testified that at the end of the struggle, he was facedown on his bed and one of the officers, who had his weapon to Jackman's head, said to Jackman, "You're lucky you're not a nigger because you'd be fucking dead" and "[i]n three days you will be in Whalley being butt fucked by the niggers." (Transcript, June 5, 2003, at 15). At the time, Jackman did not know what "Whalley" was, but he subsequently learned that it was a jail in New Haven.
The four members of the EHPD who were involved in the Jackman incident were Sgt. Daniel Gihully, and Officers Robert Nappe, Joseph Peterson and Ed Vecellio. Nappe testified at trial that neither he nor any of his fellow officers made any comment of the type claimed by Jackman.
4. The T-Shirt Incident
The jury could have reasonably inferred that substantially contemporaneously with, if not prior to, the Jones shooting, certain members of the EHPD were wearing racially offensive T-shirts in public. The precise time period during which these T-shirts were first worn is unclear, but the situation eventually resulted in a May 27, 1997 memorandum from Chief Criscuolo and a discussion at the regularly monthly meeting of the Board of Police Commissioners that evening.
Chief Criscuolo testified that it came to his attention, around the time of the Jones shooting, that some members of the EHPD were wearing certain T-shirts while playing in softball games, but the team on which these police officers played was not an official EHPD team. The T-shirts depicted police officers holding suspects on the hood of a police car and contained a reference to "boys on the hood." Chief Criscuolo testified that, even though he had never seen the movie "Boyz n the Hood," he thought the T-shirts were in bad taste, and he agreed that they were racially offensive to people of color.
Chief Criscuolo testified that the T-shirt situation was brought to his attention by an individual he passed on the street. Criscuolo could not recall who this person was or even whether the person worked for the EHPD. Criscuolo testified that he expressed his own displeasure about the T-shirts and told the person that he wanted the situation stopped. Criscuolo stated that making that statement to this particular person was, in his view, sufficient action on his part to address the situation. In Criscuolo's view, the situation was insignificant so long as officers stopped wearing the T-shirts.
Criscuolo conceded that, as Chief of the EHPD, having learned about the T-shirt incident, it fell to him to do something in response. He agreed that as chief of police he should take action if members of the EHPD were engaging in off-duty conduct that made it appear to the public that members of the department behaved in a discriminatory fashion.
Criscuolo testified that he did not conduct any investigation into the matter. He took no steps to find out how many members of the EHPD were wearing the T-shirts. He testified that he did not know whether it was ten, twenty, or some other number of officers. Nor did Criscuolo take any steps to determine which members of the EHPD were wearing the T-shirts or how long they had been wearing such racially offensive T-shirts in public. *312 Criscuolo felt that he only wanted to know who had been wearing such T-shirts if the practice continued. Criscuolo testified, however, that he conducted no inquiry within the department to determine if the wearing of the T-shirts had stopped. He simply assumed that it had stopped because he was not told it had continued.
Criscuolo testified that the T-shirts were a topic of discussion around the town, and that he heard about them from people in addition to that person he spoke to on the street and told he wanted the situation stopped. Although Criscuolo never asked to see one of the T-shirts, they were described to him and he may have seen a depiction of them in a newspaper which ran an article about the wearing of the T-shirts by members of the EHPD.
Detective Raccuia of the EHPD, who was president of the police union, testified that certain members of the union he could not say how many had been wearing the T-shirts. He testified that there was no controversy when the T-shirts were first acquired or worn. The T-shirts only became controversial after an article appeared in a newspaper approximately one month prior to May 27, 1997.
On May 27, 1997, Chief Criscuolo distributed the following memorandum to the EHPD:
It was recently brought to my attention that a Tee Shirt that appeared to be representing sponsorship by this Department was being worn by a baseball team comprising of some East Haven Police Officers.
Before any display, inference of sponsorship or representation of the East Haven Police Department is used, permission must first be obtained from the Chief of Police.
(Defendant's Ex. 123). Criscuolo testified that he knew that the Board of Police Commissioners was meeting on the night of May 27, 1997, but he could not recall if he knew that the subject of the T-shirts would be raised at the meeting. The subject of the T-shirts was raised at the meeting. The minutes of the meeting reflect that members of the media and citizens from New Haven were in attendance, in addition to the members of the Board. The minutes reflect that the chairman of the Board commented that the T-shirt incident offended him and asked Chief Criscuolo if he had handled the situation, and that the Chief replied that he had. The chairman stated that the incident was "unexcusable" and that the Board would take quick action if something like that ever happened again. Another of the Board of Police Commissioners also commented that it was "intolerable."
As the plaintiff pointed out to the jury, Chief Criscuolo's memorandum made no mention of offensive T-shirts.
5. The Jones Shooting
On April 14, 1997, at approximately 6:16 p.m., Officer Flodquist of the EHPD reported to the dispatcher that he was trying to catch up with a gray Oldsmobile Cutlass automobile that was eastbound on Route 1. Approximately one minute later, Flodquist gave the dispatcher the license plate number of the automobile and informed the dispatcher that they were doing a U-turn and proceeding west on Frontage and that the driver was "taking off" on him. At a little after 6:18, Flodquist reported that he was pursuing two black males, westbound in a gray Cutlass, coming up to Saltonstall and Forbes and that they were going about 50 miles per hour. At that point, Officer Gary DePalma joined the pursuit, pulling up immediately behind the Oldsmobile; Flodquist was immediately behind DePalma. At approximately 6:19 p.m., the EHPD dispatcher informed the New Haven dispatcher that two EHPD units were *313 inbound into New Haven, trying to stop an automobile.
The pursuit continued onto Interstate 95, and DePalma and Flodquist followed the Oldsmobile when it got off at Exit 2. At that point, the EHPD dispatcher advised the New Haven dispatcher that they should know that if they approached the vehicle, there were "two black, uh, males within." Eventually, DePalma and Flodquist pursued the Oldsmobile eastbound on Grand Avenue, where at 14 seconds after 6:21, Flodquist notified the dispatcher that they were eastbound on Grand Avenue, going at a slow speed and he thought the occupants of the Oldsmobile were looking to bail out. At 31 seconds after 6:21, Flodquist reported that they were into a vacant lot at Murphy Road and Grand Avenue. Officer Flodquist's next transmissions were at 9 seconds after 6:22 p.m., when he stated: "45, there's an Officer involved here. Need Signal One. I've been hit by the vehicle," and at 32 seconds after 6:22 p.m., when he stated, "I've been struck by the suspect's vehicle on foot involved in a shooting."
The pivotal events in this case occurred in the short time between Flodquist's transmission at 14 seconds after 6:21 p.m. and his transmission to the dispatcher at 9 seconds after 6:22 p.m. The evidence considered by the jury included that summarized below.
As the Oldsmobile proceeded east on Grand Avenue, Malik Jones was driving and Samuel Cruz was in the front passenger seat. Jones turned left onto Murphy Road and lost control of the car. The Oldsmobile veered to the right into a vacant lot, and traveled in a semi-circle and exited the lot onto Grand Avenue, but now facing west in the westbound lane.
DePalma had begun to turn left onto Murphy Road, bit when he saw the path being taken by the Oldsmobile, backed up and pulled back onto Grand Avenue near Flodquist's police van, still facing east. Flodquist had not tried to turn and had stopped on Grand Avenue, also facing east. The Oldsmobile came to a stop, its path forward blocked by the two EHPD vehicles.
Flodquist exited the police van and ran between his vehicle and the Oldsmobile to the driver's side door of the Oldsmobile. Witnesses described how Flodquist's face looked during this time, and the jury could have reasonably concluded that he was, at the least, extremely angry. Flodquist had his weapon out by the time he was between the police van and the Oldsmobile. Cruz testified that while Flodquist was between the police van and the Oldsmobile, Jones, who had not turned off the car, shifted gears and put the Oldsmobile into reverse, but did not move the car. Jones' hands were on the steering wheel.
Flodquist testified that as he got out of the police van, he paused and stopped behind the driver's door of the van for 20 to 30 seconds. However, other witnesses testified that Flodquist immediately ran to the driver's door of the Oldsmobile. De-Palma exited his cruiser, and he went to the passenger side of the Oldsmobile.
It is undisputed that after Flodquist arrived at the driver's side of the Oldsmobile, he' used the butt of his gun to break the window in the driver's door. The glass shattered; some of it went into the car and some of it fell outside the car. It is also undisputed that at some point, the Oldsmobile moved backwards following a circular path, and Flodquist was directly in its path, and had he not kept moving backwards, he would have been struck by the car as it circled backwards.
The Oldsmobile moved in a circular fashion, through the open lot, and back onto Grand Avenue, where it came to rest *314 against DePalma's cruiser. The driver's door of the Oldsmobile came to rest against the front left corner of DePalma's vehicle, and consequently that door could not be opened.
It was also undisputed that only four bullets were ever recovered and that four shell casings were found after the halfway point on the circular path the Oldsmobile traveled from its starting point on Grand Avenue facing the police van to its final position against DePalma's cruiser. At the time of the initial investigation, only three shell casings were located. The fourth shell casing was not found until four months later, when the Connecticut State Forensic Laboratory did a forensic reconstruction of the incident. It was undisputed that Flodquist fired four shots after the halfway point on the circular path traveled by the Oldsmobile.
It was undisputed that Flodquist's weapon held 12 bullets, 11 in the clip and one in the chamber. It was also undisputed that, after the incident, there were only seven bullets remaining in the weapon. Flodquist testified that on March 24, 1997, he was dispatched to shoot a sick animal and fired one shot at that time and that he did not know whether he had reloaded his weapon between March 24, 1997 and April 14, 1997.
The defense contended that Flodquist only fired a total of four shots during the incident; that all four shots were fired after the halfway point on the circular path traveled by the Oldsmobile, while the Oldsmobile was moving toward Flodquist; and that when Flodquist shot Jones, he reasonably believed that he was in danger of being seriously injured or killed. The plaintiff contended that Flodquist fired a total of five shots and that he fired the first shot immediately after breaking the glass in the driver's door with his gun and before he ever believed he could not get out of the path of the Oldsmobile.
Based on the evidence submitted, the jury could have reasonably concluded that under the circumstances, the amount of force used by Flodquist exceeded that which a reasonable officer would have used in similar circumstances because the force used was not reasonably necessary to defend himself against the imminent use of force.
Flodquist gave written statements on April 14, 1997 and on April 22, 1997. His April 22nd statement contained more detail. In that statement, he stated that he exited the police van and took cover behind the driver's door and waited there for approximately 20 to 30 seconds, that he had drawn his weapon, that he had given commands to the occupants of the Oldsmobile several times, and that he saw that Jones had his hands on the steering wheel and Cruz was sitting still. Flodquist stated that he concluded that the pursuit was over and that it was time to take the driver into custody, so he approached the driver's side, continuing to give loud commands not to move. The April 22nd statement continues:
I positioned myself at the driver's side door area, just forward of the door hinge and to the rear of the left front tire. I saw the operator's right hand come off the steering wheel and his left hand turn the wheel to the right. Both his movements were very quick. At the same time, the car started to accelerate quickly with the left front tire turned towards me. I reacted by striking the driver's window with a sweeping motion with my right hand and the butt of my service weapon. I am not sure if the car struck me just before breaking the window or just after. The purpose in breaking the window was to stop the operator from driving the car and, striking me. I was *315 going to turn the car off or grab the operator to do this. The operator of the gray Oldsmobile continued to backup rapidly. I continued to shout commands as the car moved. I had to move with the car to avoid being run over by it . If he had backed straight up, he could have escaped without driving into my path. The car made contact with me several times and I tried to escape the path. I tried to escape but the car was going too fast. I turned around to try to run away and saw the left tire coming right at me. Looking at the tire I thought I was going to be killed or seriously injured. Unable to escape I continued to sidestep alongside the car and I was scared for my life without any doubt whatsoever. The car was right on top of me. The car struck me again and I was thrown back. This is when I fired the first shot. By shooting at the operator I was trying to stop the operator from accelerating and running me over. The first shot hit him in the left chest area. The shot appeared to have no effect on the operator and he gave me a defiant, go to hell look. He did not stop the car, it continued to turn in to me. The car continued to accelerate and pick up speed. I then fired several more times after hesitating after the first shot. I do not recall how many more times I fired, but I stopped firing when I saw the operator slump to the right and the car slowed down. I was now able to run towards the rear of the car and out on an angle escaping its path.
(Plaintiff's Ex. 24, at 3-6).
Flodquist testified that although he was in a state of heightened awareness and on alert, he was not angry or upset during the incident. He stated that his face could have been red because he was yelling and he has a fair complexion. Although he had stated in his April 22nd statement that he was unsure about the sequence of events, Flodquist testified that he banged on the driver's window after the Oldsmobile struck him. He also testified that, although he could not be positive, he believed that he broke the window the first time he struck it. Flodquist was bleeding from the head at the end of the incident. He testified that he knows he was cut, but he does not know for certain what hit him, although he believed the cuts were from the glass shattering when the driver's window broke.
Also, Flodquist conceded that he did not try to get away from the Oldsmobile until after the window broke. He testified that the first time he realized he could not get away was when the window broke, and that prior to that point, he tried to move with the car.
Flodquist testified that he did not fire the first shot until he was at least halfway around the circular path traveled by the Oldsmobile. He also testified that he did not know how many shots he fired. Flodquist conceded on cross-examination that if the Oldsmobile posed no risk of harm to him at the time he fired the first shot, then he was not justified in doing so.
Cheryl Bell testified that she was driving on Grand Avenue with her young son and had pulled her car over to the side when she heard sirens and saw police cars. She stopped practically across the street from where the Oldsmobile was when Flodquist exited his police van. Flodquist caught her attention when he jumped out of his van because he pulled his weapon and looked "flaming mad." His face was bright red; Bell explained that he looked "as mad as hell." Bell testified that Flodquist ran to the driver's side of the Oldsmobile, never pausing. She stated that he ran up to the car and immediately started banging on the window. Almost simultaneously with the second or third bang, Bell *316 heard a gunshot. Bell testified that the entire incident happened very fast and took about five seconds.
In addition, Bell testified when Flodquist was about two steps from the driver's door, she saw the white lights in the rear of the Oldsmobile go on, like a flash of the reverse lights. She also testified that while it is possible the car was moving when Flodquist broke the window, her recollection was that she did not see it moving; she stated, however, that she was looking directly at Flodquist. After the first gunshot, Bell put her head down on the steering wheel. She testified that she did not remember how many gunshots she heard after she put her head on the steering wheel, but that she heard at least three or four gunshots throughout the entire incident.
Edwin Velez testified that he was in slow-moving traffic on Grand Avenue near Murphy Drive and that the three vehicles, i.e. the Oldsmobile, DePalma's cruiser, and Flodquist's police van were less than 100 feet in front of him. He testified that, before the window broke, while two officers were yelling at the people in the car, the Oldsmobile went forward a little bit and then backwards a little bit. He stated that the Oldsmobile started to move backwards again and the officer who was standing by the driver's window put his left hand on the hood of the car by the windshield area and the officer on the passenger side was kicking at the door. Velez testified that Flodquist banged on the driver's side window three times and that the first gunshot was fired by Flodquist immediately after he broke the window.
MacArthur Bethea lived on Grand Avenue and was at home at the time of the incident. Bethea testified that he first noticed the Oldsmobile because its engine was so noisy. He stated that he saw the Oldsmobile go into the vacant lot and that he saw the police van come to a stop and Flodquist jump out. He testified that he could see that Flodquist was in a rage because he was red. He stated that the Oldsmobile was coming to a stop, that Flodquist had his gun out, and that as Flodquist got to the car, the car was "into a stop" and Flodquist banged on the window. Bethea testified that the car was not moving towards Flodquist, but rather was going straight. Bethea also testified that when the window shattered, Flodquist shot immediately; he explained that the time between the shattering, of the window and the shooting was "about a second, if that" and that he was about 25 to 30 feet from Flodquist at the time. Bethea testified that after Flodquist fired twice, Bethea left because of concern for his own safety. Bethea also testified that he then heard about three more shots and that, at that point, he came out of his yard and went across the street, where he stayed for a short while until another EHPD officer arrived. After the incident was over, Bethea observed that Flodquist was bleeding from his face.
Mark O'Connor was an off-duty police officer who was traveling east on Grand Avenue. He pulled over to the side of the street at John Murphy Drive after being passed by the Oldsmobile, Flodquist's police van, and DePalma's cruiser. Called as a defense witness, O'Connor testified that he was possibly 50 feet away from where the Oldsmobile first stopped. He testified that he saw Flodquist leave the police van and go to the driver's side of the Oldsmobile and saw DePalma go to the passenger side. He stated that for a few moments it appeared that the situation was over. Then after a few moments, the Oldsmobile started to back up and it went into the field. As it went into the field, he could see that Flodquist was running along with *317 it. He estimated that four or five seconds later, when the Oldsmobile had gone well back into the field, he heard four rapid shots. At that point, he ducked down.
Flodquist's police van and DePalma's cruiser were between O'Connor and the Oldsmobile, and he was facing the rear of the van. O'Connor testified that he had a clearer view of DePalma than of Flodquist, but that he did have a clear view of Flodquist. O'Connor explained that the Oldsmobile was at a bit of an angle, so he did not have a straight-on view; the car was turned so that he could see the entire passenger side, but not the entire driver's side. However, although O'Connor testified that he had a clear view of Flodquist, he stated that he never saw Flodquist bang on the driver's window of the Oldsmobile and that he did not know anything about the window being broken. He confirmed on cross-examination that the officers were at either side of the car with their guns out, that he could tell that they were yelling, and that there was a long moment or moments before the car went backwards. O'Connor testified that when he saw Flodquist after the incident was over, Flodquist was pale and was bleeding from the head.
John Mills was working as a valet parker at the Brewery Restaurant on Grand Avenue. He was standing outside on the sidewalk when the Oldsmobile and the two EHPD vehicles came down the street. Mills was called as a witness for the defense. He testified that he would have noticed if Flodquist had paused for 20 to 30 seconds and he did not remember Flodquist doing that. Looking at where an exhibit showed O'Connor was positioned, Mills stated that he was closer to the Oldsmobile than O'Connor had been and that from his position, he could not see the front wheel on the driver's side. Mills also testified that both officers exited their vehicles and approached the Oldsmobile with their guns drawn and they yelled for the vehicle to stop. When asked what happened next, he stated that the car went into reverse and he heard the engine rev and the tires spin. He saw both officers hitting the windows with the butts of their guns and he remembered the driver's window breaking. At that point, he noticed that one of the officers reached into the vehicle, maybe to grab a suspect and maybe to turn off the ignition. Mills testified that his best estimate was that he heard five or six shots altogether. He stated that the initial shot was fired once the Oldsmobile was about halfway around the circular path it traveled and there was a pause between the first shots and the rest. Mills also testified that had Flodquist not kept moving, he would have been run over by the Oldsmobile.
Cruz testified that when Jones stopped the Oldsmobile in front of Flodquist's police van, Cruz saw Flodquist get out of the van, draw his gun and run to the driver's side of the Oldsmobile. He testified that Flodquist looked mad and that he did not pause at any time before coming to the Oldsmobile. Cruz testified that Flodquist broke the driver's window and started firing, and that the car was in the street on Grand Avenue when the window broke and glass came into the car. Cruz testified that the car was not moving when Flodquist fired the first shot. He testified further that the first shot hit Jones on the left side and Jones looked over to Cruz and told Cruz to duck because the officer was shooting. Cruz stated that he ducked and at the same time, Jones was coming on to him like he was hugging him; then several more shots came. Cruz testified that once the shooting started, the car started rolling by itself because it was in reverse and no one was driving it.
*318 DePalma testified that when he first saw Flodquist after exiting his cruiser, Flodquist was at the driver's side of the Oldsmobile. Thus, he stated he could not recall whether Flodquist paused behind the door of his police van for 20 to 30 seconds before going to the Oldsmobile. Also, De-Palma could not answer whether Flodquist was angry or not. DePalma testified that by the time he reached the passenger side of the Oldsmobile, Flodquist had already broken the driver's window, and that De-Palma then struck the passenger side window with his fist and then with his elbow in an effort to break it. His objective was to reach over Cruz and to try to put the Oldsmobile in park. DePalma testified that that was something he knew how to do and had done in the past.
However, after striking the window twice, DePalma quickly retreated from the Oldsmobile to his cruiser. DePalma testified that he did this while the Oldsmobile was still on Grand Avenue. DePalma agreed that at the time he retreated to his cruiser, he had seen no weapons in the possession of the occupants of the vehicle and that the Oldsmobile was not coming toward him; in fact, it was moving away from him. He conceded that he turned his back away from the Oldsmobile and Flodquist in order to retreat to his cruiser. DePalma testified that he still could not recall to that day why he retreated back to his cruiser. After a recess, DePalma returned to the stand and testified that he had retreated quickly to his cruiser because he believed that he did not have a chance to get inside the car and if the pursuit was going to continue, the best place to be would be inside his car. He also testified that he would not have retreated if he believed Flodquist was in imminent danger.
DePalma denied that the reason he retreated quickly to his cruiser was because
Flodquist fired into the Oldsmobile immediately after breaking the window and De-Palma did not want to be in the line of fire. He testified that four shots were fired, and that the first shot was not fired until the Oldsmobile was at the 50 percent mark on the circular path it traveled before coming to a stop against DePalma's cruiser. However, DePalma conceded that on no prior occasion, including during his interviews when the case was being investigated by the Connecticut State Police, had he ever told anyone that he heard four shots as opposed to several shots. He also testified that he never actually saw Flodquist when Flodquist was discharging his weapon, and he conceded that he knew at the time he testified that Flodquist had had five bullets missing from his weapon once he finished shooting.
The jury could also have reasonably concluded, based solely on the testimony of the medical examiner, Dr. Harold Wayne Carver, and the forensic scientist, Dr. Henry Lee, that Flodquist fired five shots during the incident. Dr. Carver concluded that there were a total of five bullet entrance holes in Jones' body, but that the entrance holes actually represented four shots. Dr. Lee concluded that it was more likely than not that one bullet, which was found in the console of the Oldsmobile, did not hit Jones. He conducted tests on the bullet and could find no trace of blood; he stated that in his opinion, that bullet did not hit a body.
After conducting a reconstruction of the incident based solely on the physical evidence, Dr. Lee concluded that it took from 6.5 to 8 seconds for the Oldsmobile to move from its position on Grand Avenue facing Flodquist's police van to its final position against DePalma's cruiser. He also concluded that the Oldsmobile was moving at a speed in the range of six to nine miles per hour as it followed the *319 circular path. In Flodquist's April 22, 1997 statement, he stated, inter alia, that Jones had then turned the steering wheel quickly and the car started to accelerate quickly about the time Flodquist broke the window, and that after Flodquist shot Jones once, the car continued to accelerate and pick up speed.
Finally, defense expert Emmanuel Kapelson testified that Flodquist had a distorted perception of time if he thought he stayed behind the door of his police van for 20 to 30 seconds. Kapelson attributed this distorted perception of time to a condition known as tachypsychia. He also said that, if in fact there was a pause between Flodquist's first shot and the subsequent shots, it was likely that Flodquist also had a distorted perception of that timing and the length of the pause between his first shot and the subsequent shots. However, Kapelson conceded that even if a police officer is suffering the effects of tachypsychia, shooting without knowing whether or not he is in danger would not be consistent with acceptable police practice. He also conceded on cross-examination that if an officer went up to an automobile not intending to shoot, but only shot when the window broke, striking him in the face, when he was in this condition of tachypsychia, firing under such circumstances would not be consistent with acceptable police practices because there would be no danger to the life of, or risk of serious physical injury to, the officer.
Based on the evidence submitted to it and its evaluation of the credibility of the witnesses, the jury could have reasonably concluded, inter alia, that Flodquist fired a total of five shots during the incident, and that Flodquist banged on and broke the driver's window and fired the first shot, which hit Jones, at a time when the Oldsmobile was moving in such a manner that Flodquist was not exposed to a risk of serious injury.
6. Actions by Other EHPD Officers Immediately Following the Shooting
Officer. Robert Ranfone was driving one of the three EHPD vehicles involved in the pursuit of Jones and Cruz. However, Ranfone never had the Oldsmobile in sight and did not arrive at the scene of the shooting until after all of the shots had been fired and the Oldsmobile had come to a stop.
When Ranfone arrived on the scene, the only police vehicles there were Flodquist's police van and DePalma's cruiser. Ranfone exited his EHPD cruiser and inquired of bystanders whether anyone had seen anything. MacArthur Bethea testified that a "Spanish man" with a "dark complexion", who looked to be about forty-five to fifty years old, responded that he had seen what had happened. Ranfone told the man, "You didn't see nothing. Now get out of here." Ranfone spoke in a loud voice, ordering the man away. The man, who had been sitting in his car at the corner of Grand Avenue and Haven Street, drove away. Bethea, who had been planning to tell Ranfone what he had seen, became fearful and decided not to speak "to the EHPD. Bethea subsequently spoke to members of the New Haven Police Department after his wife reported that he was a witness.
Soon thereafter, Ranfone placed Cruz, who had been removed from the vehicle, in the back of Flodquist's EHPD van. Ranfone then went to the Oldsmobile where he and DePalma removed Jones from the vehicle. Ranfone testified that he entered the Oldsmobile through the passenger side door and reached across Jones to unlock the driver side door; that DePalma entered the vehicle through that door; that although Jones was lying slumped over in *320 the seat, Ranfone could not tell whether Jones was injured and did not know whether he was dead or alive; that Ranfone did not ask Jones if he was okay and did not say anything else to Jones; that Ranfone then put his arms underneath Jones' armpits (i.e. the "fireman carry") while DePalma took Jones by the legs; and that Ranfone and DePalma then placed Jones on his back on the ground outside the vehicle. However, DePalma testified that when Jones' vehicle came to a stop, DePalma's cruiser blocked the driver side door and that door could not be opened. He also testified that Ranfone slid Jones across the seat and that DePalma and Ranfone then placed Jones on the ground outside the vehicle. Both Ranfone and DePalma testified that Jones was placed on the ground so that he was lying on his back and that his hands were cuffed in front of him. Their testimony was contradicted by that of Gregory Liggins, an emergency medical technician from the New Haven Fire Department, who first gave medical treatment to Jones. Liggins testified, and his written report reflected, that when Liggins arrived at the scene, two or three minutes after being dispatched, Jones was lying facedown in the street, his feet were in the vehicle on the passenger side and his hands were cuffed behind his back, and there was blood on his clothing. Liggins removed the handcuffs, using his own keys, assessed Jones' condition, and treated him.
7. The Patricia. Snowden Incident
Patricia Snowden testified that, on the morning of April 27, 1998, she shopped with her sister at Ames Department Store in East Haven. Snowden was a 50-year-old African-American woman who had resided in New Haven since approximately 1960. Prior to two related incidents involving the EHPD, Snowden had had no involvement with any police department in Connecticut other than receiving parking tickets.
After Snowden and her sister left the department store, they proceeded to her car in the parking lot. As Snowden was driving out of the parking lot, she and her sister noticed that they were being followed by a police officer in a marked EHPD cruiser. Snowden testified that she was driving normally and had done nothing that would cause a police officer to follow her. The officer made no effort to pull Snowden over immediately, but followed her for approximately two blocks. When Snowden pulled into a gas station to get gas, the cruiser pulled `in behind her. The officer told Snowden to get out of the car, and he asked her for her registration and license. The stop led to Snowden being charged with misuse of a license plate, operating an unregistered motor vehicle, operating a vehicle with a suspended license, and operating a motor vehicle without the minimum insurance. Snowden testified that although her registration had expired, the other three charges were without foundation and were ultimately thrown out. Based on Snowden's testimony, none of the violations with which she was charged were apparent from simply observing her vehicle. Snowden contended that she was followed and stopped because she is African-American.
Snowden was issued a summons which required her to appear in court on October 15, 1998. Snowden testified that she was ill on that day and did not appear. A warrant for Snowden's arrest for failure to appear was subsequently issued on November 19, 1998.
The second incident involving the EHPD testified to by Snowden occurred on January 7, 2000. That morning, Snowden took, t her two grandsons with her to visit her, son, who was incarcerated in Newtown by *321 the Connecticut Department of Correction. While she was visiting her son, Snowden was taken into custody by a Connecticut State Trooper on an outstanding warrant on the failure to appear charge that had been issued in November 1998. While Snowden was being transported by the trooper and explaining to him that she had heart disease and was a diabetic, Snowden passed out. When Snowden came to, she was at Griffin Hospital in Derby. That night, Officer McCarthy from the EHPD came to Snowden's room in Griffin Hospital and informed her that he would be taking her to jail. Snowden testified that McCarthy informed her that he would warm up the prisoner van first because it was cold outside, and that he also informed her that he was not going to handcuff her. When McCarthy returned to her room, Snowden protested that she did not want to go to jail because her blood pressure was too high. McCarthy placed Snowden in the back of the prisoner van and proceeded to transport her to East Haven Police Headquarters. The prisoner van arrived at police headquarters around 11:42 p.m.
Snowden fell to the ground as she stepped down out of the prisoner van. Snowden testified that she passed out after she fell, and that when she came to, she heard voices coming from different directions, telling her to get up. She was unable to do so. She testified that the voices came from East Haven police officers and that there were probably four or five of them. Snowden testified further that she was taken by her arms and dragged into the police station and put on a bench.
Officer McCarthy gave a very different account of what transpired prior to the time Snowden was placed on the bench. McCarthy testified that he placed a stool at the back of the van and assisted her out of the van. He testified that Snowden then took one or two steps and then fell to the ground for no apparent reason. A photograph showed that the stool referred to by McCarthy does not have a hard surface for stepping onto. Rather, it was a stool with a soft surface and was used as an extra seat by officers when they were executing a search warrant and there were not enough seats in the van. It usually was placed directly behind the driver's seat. McCarthy also testified that after Snowden fell, he called to the shift supervisor, Lt. DaCosta, for assistance. (Lt. Da-Costa had been a sergeant at the time of the Shane Gray incident.) McCarthy told the jury that he and DaCosta picked up Snowden and carried her into the station and that DaCosta had Snowden's legs, while McCarthy held her under her arms. DaCosta initially testified that he had Snowden's ankles and McCarthy had her shoulder and they "pulled" Snowden into the station. When confronted with his use of the term "pulled," DaCosta first denied having used that term and then insisted that he and McCarthy picked up Snowden and carried her into the station to the bench.
Snowden testified that once she was on the bench, officers attempted to rouse her by pulling, poking, or hitting her, but she protested that she could not move because she was sick. She asked them to call her daughter and told them she wanted to go home and take her medicine.
Snowden testified that the officers got very angry with her and that they kept saying that they wanted to go home but could not leave until Snowden had been booked. Snowden testified that at this point she was repeatedly called a "nigger" and a "bitch" and told that the officers did not have time to fool with her; she said that she had not been called any names prior to that point. Snowden was told that *322 if she did not get up, her "ass" would be dragged all the way to the cell. Snowden testified that East Haven police officers then proceeded to do just that, dragging her all the way to a cell on her backside.
Again Officer McCarthy gave a very different account of what occurred. He told the jury that he never mentioned to Snowden that it wag near the end of his shift and he was staying late because of her. He testified that he never called Snowden a "nigger" or a "bitch." He also testified that when Snowden was moved from the bench to another location in the station to be processed, he placed Snowden on a chair and pushed her down the hall while she was in the chair. He testified that Snowden was never placed in a cell. McCarthy conceded that the officers who were present at the station when Snowden arrived were those who were finishing up their shift at midnight, and he had no explanation for how Snowden would have known what time their shift ended. He also `conceded that he stayed late that night and that he processed Snowden after the time his shift was scheduled to end, i.e. midnight.
Snowden testified that Officer McCarthy subsequently removed her from the cell and took her to a small booth to be photographed and fingerprinted; she testified that while they were in the cell, McCarthy called her a "nigger." Snowden testified that when she fell while McCarthy was attempting to take her picture, McCarthy told her that she was making him angry and to get her "ass" back on the stool. After taking her picture and fingerprinting her, McCarthy took Snowden back to the bench on which she had originally been placed, and Snowden stayed there until the bail bondsman arrived. The paperwork in connection with Snowden posting bond was completed around 12:48 a.m. An ambulance was summoned for Snowden at 12:48 a.m. and arrived at approximately 12:59 a.m. Snowden declined to be transported by ambulance, and she subsequently left the East Haven Police Headquarters with her daughter.
Snowden testified that after her time at the East Haven police headquarters on January 7 to 8, 2000, her blouse and her bra were ripped and that she had bruises. Snowden went to the hospital after the incident. five or six days after the incident, after Snowden came home from the hospital, she had her daughter take photographs of the bruises. Snowden produced six photographs, which she testified show bruises on her arms, the upper part of her legs, her knee and her neck that resulted from the incident.
C. Discussion
The plaintiff asserted a variety of Monell theories, some in combination, and the court concludes that, although the evidence in this case is not substantially similar to that in any published decision the court could locate, a reasonable jury could have concluded with respect to at least one of the theories asserted by the plaintiff, and articulated in the plaintiffs complaint with a high degree of specificity, that all of the elements of a Monell claim had been proven, based on the evidence in the case and the instructions on the law the jury received from the court. Such a conclusion by the jury here is consistent with the analysis in analogous cases involving Monell claims brought based on a variety of theories.
The plaintiff alleges, as part of the Monell claim that, as a result of certain policies and customs of the Town, officers of the EHPD, including the individual defendants, "believe that their actions would not properly be monitored and that misconduct would not be investigated or sanctioned but would be tolerated" and that *323 those practices and customs of the Town deprived Jones of his constitutional rights. (Third Amended Complaint, Fourth Cause of Action, at ¶ 44). During oral argument on the Town's initial motion for judgment as a matter of law, the plaintiff was required to identify which Monell theories were still being pursued. The plaintiff pointed to the following four paragraphs of the Third Amended Complaint:
38. On information and belief, defendants Town and Police Department, as a matter of policy and practice, have with deliberate indifference failed to sanction or discipline police officers for the violation of constitutional rights of African Americans and other people of color and were aware of the violations of the constitutional rights of African Americans and other people of color by East Haven police officers, thereby encouraging said officers, including defendants Flodquist and DePalma, to continue to engage in unlawful conduct.
39. On information and belief, the defendants Town and Police Department have a practice, custom or usage of deliberate indifference to the constitutional rights of African Americans and other people of color in East Haven, which caused the violation of Jones' rights. This pattern of conduct, while carried out under color of law, has no justification or excuse in law, but instead is improper and illegal and is unrelated to any activity in which police officers may properly and legally engage in the course of their duties to enforce laws, protect persons and property or insure civil order.
40. On information and belief, defendants Town and Police Department, in pursuit of the aforementioned policies, practices or usages, instructed, encouraged and/or acquiesced in the practice of harassing, stopping or otherwise interfering with the movements of African Americans and other people of color in motor vehicles who were present at or near the neighborhoods or areas of East Haven that border or abut the City of New Haven. Said policy or practice was designed to discourage African Americans and other people of color from entering or remaining in East Haven.
41. On information and belief, the aforementioned policies and/or customs of defendants Town and Police Department were promulgated with deliberate indifference and created a hostile environment for African Americans and other people of color in violation of their constitutional rights.
(Third Amended Complaint, Fourth Cause of Action, ¶¶ 38-41). Paragraph 36, which made reference to a policy, practice, custom and usage of the Town of hiring and retaining police officers without properly screening them as to racial animus and propensity for violence, was not claimed. Nor was paragraph 37, which made reference to a policy, practice, custom and usage of failing to train police officers in the proper use of force, including, without limitation, the use of deadly force and proper pursuit procedures.
The rationale for the Town's liability on the plaintiffs Monell claim was articulated by the Supreme Court as follows:
Local governing bodies, therefore, can be sued directly under §, 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, *324 like every other § 1983 "person," by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not `received formal approval through the body's official decision-making channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168, 90 S.Ct. 1598, 1613, 26 L.Ed.2d 142 (1970): "Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials. . . . Although not, authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a `custom or usage' with the force of law."
Monell, et al. v. Department of Social Services of the City of New York, et al., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (footnotes omitted).
Subsequent cases have interpreted Monell to mean that in order to establish a claim for municipal liability under § 1983, "`a plaintiff must plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.'" Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995) (quoting Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983)); Reed v. Hartford Police Dept., No. 3:03CV2147(SRU)(WIG), 2006 WL 2349591, at *4 (D.Conn. July 25, 2006) (quoting Zahra.)
At issue in Monell was a municipal policy that was itself unconstitutional. In Spell v. McDaniel, the court concluded that:
Two basic theories have emerged for imposing municipal liability in the more typical situation where fault and causation cannot be laid to a municipal policy "itself unconstitutional." The principal theory locates fault in deficient programs of police training and supervision which are claimed to have resulted in constitutional violations by untrained or mis-trained police, officers. A second theory, sometimes imprecisely subsumed within the first, locates fault in irresponsible failure by municipal policy-makers to put a stop to or correct a wide-spread pattern of unconstitutional conduct by police officers of which the specific violation is simply an example.
Spell v. McDaniel, 824 F.2d 1380, 1389 (4th Cir.1987).
Here, the plaintiff's Monell claim focused on a custom or practice of the Town, as distinct from a policy that was itself unconstitutional. The decisions in this area reflect that there is no single methodology for a plaintiff to follow in establishing that there was a pertinent custom or practice on the part of a municipal defendant, but rather that a review of the specific facts and circumstances of each case is required.
As recognized by the court in Spell, one line of cases involves customs or practices of engaging in unconstitutional conduct. For instance, in Bordanaro, et al. v. McLeod, et al., 871 F.2d 1151 (1st Cir. 1989), the plaintiffs established that the Town of Everett, Massachusetts had an unconstitutional practice in the form of "a longstanding, wide-spread, and facially unconstitutional practice of breaking down doors without a warrant when arresting a felon." Id. at 1156. The plaintiff established the existence of this custom by testimonial evidence from a sergeant in the Everett Police Department, from which testimony the jury could have found that the sergeant had been present at somewhere between 20 to 60 situations involving door break-downs during his 24 years as a member of the department; that a 12-pound sledgehammer was provided by *325 the City of Everett for use in breaking down doors; that numerous occasions on which doors were broken down by Everett police officers involved the practice of breaking down doors without a warrant when attempting to arrest a felon; that the scenario followed in connection with the arrest of the plaintiffs was not different from that followed in any of the previous break-downs made over the years; and that in breaking down the door in that case, the officers were following what had been accepted departmental practice in the past. The court noted that "[a]dditional support for the existence of such a practice can be inferred from the event itself." Id. at 1156. The "incident involved the joint actions of the entire night watch of the Everett Police Department" a total of five officers. Id. at 1153. The court also observed that "[w]hile it is true that evidence of a single event alone cannot establish a municipal custom or policy, . . . where other evidence of the policy has been presented and the `single incident' in question involves the concerted action of a large contingent of individual municipal employees, the event itself provides some proof of the existence of the underlying policy or custom." Id. at 1156-57 (citation omitted). The court also noted that it was "mindful of the difficulty plaintiffs encounter in proving the existence of such police department policies and customs. Plaintiffs are likely to encounter hostile witnesses and incomplete documentation of past abuses." Id. at 1157, n. 5 (citations omitted).
With respect to attribution of the custom to the municipality, the court stated that "[a]lthough there was no direct evidence that the Chief of Police had actual knowledge of this policy of breaking down doors without a warrant, the evidence does support a finding of his constructive knowledge of it. Constructive knowledge `may be evidenced by the fact that the practices have been so widespread or flagrant that in the proper exercise of [their] official responsibilities the [municipal policymakers] should have known of them.'" Id. at 1157 (citations omitted). The court concluded that the evidence was sufficient to prove the Chief of Police should have known of the unconstitutional practice.
The Chief's own testimony and that of others was that he oversaw the operations of the department and set much of its policy. The evidence showed that the Chief utilized an extensive report review process to monitor the conduct of his officers and to ensure their compliance with the rules of the department. Such a review process would alert the Chief to practices that transgressed department policy. Knowledge of the practice may thus be imputed to the Chief. And allowing this custom to continue amounted to deliberate indifference to the rights of the citizens of Everett, making a constitutional violation "`almost bound to happen, sooner or later.'" Spell, 824 F.2d at 1391; see also City of Canton v. Harris, 489 U.S. at 389, 109 S.Ct. at 1205. In this case, the jury could conclude that there was "supervisory encouragement, condonation and even acquiescence" in the unconstitutional practice. Voutour, 761 F.2d at 820 (noting absence of supervisory acquiescence in that case). Chief Bontempo's failure to eradicate this facially unconstitutional practice from the police department attributes that custom to the municipality.
Id. at 1157.
In Henry v. County of Shasta, et al., 132 F.3d 512 (9th Cir.1997), the plaintiff created a genuine issue of material fact as to "whether the county had a policy or custom of flagrantly violating the constitutional rights of persons stopped for minor vehicle code infractions who refuse to sign *326 a notice to appear or demand to be taken before a magistrate. . . ." Id. at 518. In that case, the court recognized that the existence of a policy or custom "must be inferred circumstantially from the conduct of individual officers and the police chief. . . ." Id. at 519 (citation omitted).
In Spell, where the plaintiff was assaulted and physically injured by a police officer after the plaintiff had been arrested and was handcuffed, the court discussed the concept of "[u]nconstitutional police practices as municipal `custom or usage' by condonation." 824 F.2d at 1390. The court found that the evidence was sufficient to support a finding by the jury, inter alia, "that the condonation resulted from the deliberate indifference of Chief Dixon and his authorized subordinates to the constitutional rights of persons within the City's jurisdiction who might have encounters with police officers engaging in such practices." Id. at 1395. The court observed that:
Without having been directly authorized, or tacitly encouraged, or inadequately trained in specific ways by responsible municipal policymakers, police officers, like other public employees, may fall into patterns of unconstitutional conduct in their encounters with suspects, arrestees, persons in custody and others involved in law enforcement situations.
Id. at 1390. As to what was required to attribute the custom or usage to the municipality, the court stated:
Municipal fault for allowing such a developed "custom or usage" to continue requires (1) actual or constructive knowledge of its existence by responsible policymakers, and (2) their failure, as a matter of specific intent or deliberate indifference, thereafter to correct or stop the practices. Constructive knowledge may be inferred from the widespread extent of the practices, general knowledge of their existence, manifest opportunities and official duty of responsible policymakers to be informed, or combinations of these. The inculpating knowledge, whether actual or constructive, may be either that of the municipal governing body itself, or of municipal officials having final policymaking authority in municipal law enforcement matters.
Id. at 1391. The plaintiff in Spell had proceeded under alternative theories of a deficient training policy and a condoned custom and usage, and the court concluded that there had been sufficient evidence to support a jury verdict in the plaintiff's favor under each of those theories.
In Dunn v. City of Newton, Kansas, et al., No. 02-1346-WEB, 2003 WL 22462519 (D.Kan. Oct. 23, 2003), the plaintiff contended that the police department had a custom or policy of allowing its officers to use excessive force. Although the plaintiff pointed to five specific incidents in support of his claim, the court granted summary judgment in favor of the municipality. The events on which the plaintiff's claim was based occurred in February 2001. The first incident relied on by the plaintiff had occurred in February 1992, and the court noted that the plaintiff's only evidence was testimony of a witness who had arrived at the scene after officers had already taken the individuals in question into custody and who apparently had no personal knowledge of what had prompted the officers to detain the individuals. The second incident occurred in August 1999 and involved an arrestee complaining that the arresting officer used excessive force. The arrestee's complaint to the chief of police had been referred to an outside agency, which found no wrongdoing on the part of the officer. Also, the court noted that at some point in 1999, the city established a law enforcement advisory board to *327 serve as a sounding board for citizen concerns over law enforcement issues. The third incident occurred in January 2001, i.e. the preceding month. An arrestee had complained to other officers that a particular officer threatened him, whereupon that particular officer had "tried to rephrase his story"; the court noted that the plaintiff did not file his lawsuit until October 31, 2001. Id. at *4. The fourth incident occurred in March 2001 and the fifth incident occurred in November 2001. Both the fourth and fifth incidents involved the same officer, and this officer had been involved in the second and third incidents as well. Following the fourth incident, the officer was reprimanded, and after the fifth incident, the officer was terminated and criminal charges were brought against him. The court found these incidents insufficient to "support the contention that the violation was part of a municipal custom of using excessive force." Id. at *8. See also Lewis v. Meloni, et al., 949 F.Supp. 158, 164 (W.D.N.Y.1996) (plaintiff alleged but failed to create a genuine issue of material fact as to the existence of a municipal policy or custom of deliberate indifference to the possibility of a municipal policy or custom of unconstitutional arrests)
Plaintiffs have also brought Monell claims based on a municipal defendant's alleged custom or practice of deficient hiring or recruiting of police officers, training of police officers, supervision of police officers, and/or investigation of complaints against or disciplining of police officers, where the custom or policy evidenced deliberate indifference to the constitutional rights of those with whom the police would come into contact.
Customs or practices relating to hiring and/or recruitment were addressed in Board of County Commissioners of Bryan County, Oklahoma v. Brown, et al., 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). There, the Court addressed the issue of whether "a single hiring decision by a county sheriff can be a `policy' that triggers municipal liability." The plaintiff brought an action alleging use of excessive force by a member of the sheriff's department. The Court emphasized that there must be a link between the actual background of the person being hired and "the risk that, if hired, he would use excessive force." Id. at 411, 117 S.Ct. 1382. The Court stated:
[A] finding of culpability simply cannot depend on the mere probability that any officer inadequately screened will inflict any constitutional injury. Rather, it must depend on a finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff. The connection between the background of the particular applicant and the specific constitutional violation alleged must be strong.
Id. at 412, 117 S.Ct. 1382. Also, the Court observed that "[c]laims not involving an allegation that the municipal action itself violated federal law, or directed or authorized the deprivation of federal rights, present much more difficult problems of proof." Id. at 406, 117 S.Ct. 1382.
The circumstances under which inadequacy of police training may serve as a basis for section 1983 municipal liability were discussed in City of Canton, Ohio v. Harris, et al., 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). There, the Court held that "[o]nly where a municipality's failure to train its employees in a relevant respect evidences a `deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a city `policy or custom' that is actionable under § 1983." Id. at 389, 109 S.Ct. 1197. The Court explained:
*328 The issue in a case like this one, however, is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent "city policy." It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the `need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.
Id. at 390, 109 S.Ct. 1197 (footnotes omitted). See also Lewis v. Meloni, et al., 949 F.Supp. at 163 ("The existence of a policy or custom which violates constitutional rights may be demonstrated by `evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.'") (citations omitted); Dempsey v. Town of Brighton, et al., 749 F.Supp. 1215, 1228, 1229 (W.D.N.Y. 1990) (rejecting plaintiffs' argument "that insufficient training and supervision has caused the Town of Brighton's police department to harass black persons because of their race, in violation of their civil rights" because the plaintiffs failed to produce any evidence as to deficient training except the incident during which they contended their rights were violated).
The plaintiff established the existence of a policy of non-supervision on the part of the defendant municipality in Fiacco v. City of Rensselaer, New York, et al., 783 F.2d 319 (2d Cir.1986). There, the plaintiff introduced "evidence of the failure of the City defendants to adopt appropriate procedures to deal responsibly with complaints of police brutality, and evidence of their failure to make reasonable investigations of such complaints." Id. at 328. "[A]s to specific allegations of police brutality during the five years before the incident involving Fiacco, Fiacco introduced seven written claims that had been filed, called as witnesses four of the complainants, and elicited testimony from [chief of police] Stark as to his handling of complaints." Id. at 329. The five most recent claims had all been made after Stark became the police chief. The court concluded that:
Drawing all reasonable inferences in favor of Fiacco, the jury could rationally have concluded that during the two years prior to Fiacco's arrest, the City defendants' response to complaints of use of excessive force by City police officers was uninterested and superficial. It could reasonably have inferred that a response to complaints that generally consisted solely of the chiefs speaking to the accused officer with no formal statement being taken from the complainant, no file being created, no notation being made in the officer's file, and no further investigation being made would have been viewed by the officers, and should be viewed by an objective observer, as reflecting an indifference by the City to the use of excessive force. The permissibility of this inference is not diminished by the fact that none of the claims introduced by Fiacco had yet been adjudicated in favor of the claimants. The jury was free to reason that the very failure of the City defendants to conduct a nonsuperficial investigation into civilian claims of excessive force indicated that the City and the chief *329 simply did not care what a thorough investigation would reveal, that they were indeed indifferent to whether or not excessive force was used.
Id. at 331. In Sango v. City of New York, et al., No. 83 CV 5177, 1989 WL 86995, at *14 (E.D.N.Y. July 25, 1989), the court commented on Fiacco, stating that "[c]ontrary to the City's suggestion . . . the Second Circuit's opinion in Fiacco cannot be read to suggest that any showing short of the overwhelming evidence adduced there is insufficient as a matter of law to make out a case against the City."
To prove such deliberate indifference, the plaintiff must show that the need for more or better supervision to protect against constitutional violations was obvious. See Canton v. Harris, 489 U.S. at 390, 109 S.Ct. at 1205. An obvious need may be demonstrated through proof of repeated complaints of civil rights violations; deliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents.
Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.1995). In addition, the court noted that "[d]eliberate indifference may also be shown through expert testimony that a practice condoned by the defendant municipality was `contrary to the practice of most police departments' and was `particularly dangerous' because it presented an unusually high risk that constitutional rights would be violated." Id. at 1049. In Davis v. Lynbrook Police Dept., 224 F.Supp.2d 463 (E.D.N.Y.2002), the court denied the city's motion for summary judgment where the plaintiff presented evidence of nine "criticisms and complaints different people had made regarding [an officer's] conduct as a police officer." Id. at 470. While the court found that three of these criticisms or complaints were irrelevant, "a reasonable jury could infer from [the remaining six] complaints an obvious need for more or better supervision to protect against constitutional violations." Id. at 479. Furthermore, the court found that a reasonable jury could find that there was no "meaningful investigation into any of the claims". Id. at 479.
As to customs or policies with respect to investigation of complaints against police officers or disciplining police officers, in Saviour v. City of Kansas City, Kansas, et al., Civ. A. No. 90-2430-L, 1992 WL 135019 (D.Kan. May 15, 1992), the court denied the city's motion for summary judgment on the plaintiffs claim that his injuries were "the direct result of a policy or custom by the City which amounted to deliberate indifference in the supervision and discipline of officers." Id. at *3. The plaintiff presented extensive statistical evidence with respect to complaints of excessive force against city police officers. The court observed:
Although the plaintiffs statistical evidence is relevant, this court would not find the statistical evidence alone enough to prove the existence of a policy or custom. See McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). In the present case, the plaintiff has challenged the City's investigation of excessive force complaints as cursory and indifferent. The plaintiff proffers witnesses who themselves have filed excessive force complaints that they believe to have been wrongfully determined by the City to be unfounded. The question of whether the City does thoroughly investigate complaints is a question of fact for the jury. Drawing all reasonable inferences in favor of the plaintiff, if the testimony of those witnesses is believed it is possible that a jury could rationally conclude that the City's response to complaints of use of excessive force by City police officers *330 was uninterested and superficial. The permissibility of this inference is not diminished by the fact that many of the complaints have been determined by the City to be unfounded.
Id. at *4. The plaintiff in Saviour "also offered evidence that the police department engages in a practice of destroying internal affairs records." Id. at *5. The court noted that the strength of this argument was "marginal", but that it did provide "at least some evidence in support in support of plaintiff's allegation." Id. at *5. On the other hand, in Dunn, where the plaintiff also contended that five incidents evidenced a "deliberate indifference to or tacit approval of excessive force by the City's policymaking officials after notice of such misconduct," the court observed: "Taken together the incidents point to a possible pattern of questionable behavior by Officer McMichael. But the City did not ignore the problem; it reprimanded the officer and subsequently terminated him." 2003 WL 22462519, at *8.
Three situations, pertinent to the analysis in this case have been the subject of discussion in decisions on Monell claims: (1) situations involving a single incident of its type, out of which the plaintiffs claim arises; (2) situations where the plaintiff relied on incidents occurring subsequent to the incident out of which the plaintiffs claim arises; and (3) situations where the plaintiff claimed there was a custom or policy based on racial discrimination.
In situations where the only incident relied upon by the plaintiff is that out of which the plaintiffs claim arises, it is generally the case that such an incident is not sufficient to impose liability under Monell. In City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), the Supreme Court stated:
Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker. Otherwise the existence of the unconstitutional policy, and its origin, must be separately proved. But where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the "policy" and the constitutional deprivation.
Id. at 823-24, 105 S.Ct. 2427 (footnotes omitted). See also Villante v. Dept. of Corrections of City of New York, et al., 786 F.2d 516, 519 (2d Cir.1986) ("an isolated act of excessive force by a single, nonpolicymaking municipal employee, standing alone, is insufficient evidence. . . ."); Turpin v. Mailet, et al., 619 F.2d 196, 202 (2d Cir.1980) (plaintiff failed to prove any official policy because "the evidence of official policy supposedly authorizing [the officer's arrest of the plaintiff] consisted solely of the Board's failure to discipline [another officer who had allegedly used excessive force on the plaintiff in the past] for a single incident of illegality"); Sarus v. Rotondo, 831 F.2d 397, 402 (2d Cir.1987) ("the only relevant evidence presented by appellees was the manner in which they themselves were arrested.").
An example of where proof of the incident includes proof that it was caused by an existing unconstitutional municipal policy is found in Grandstaff v. City of Borger, Texas, et al., 767 F.2d 161 (5th Cir.1985). There, the court concluded that the plaintiff could not recover pursuant to a theory of a custom or practice of inadequate training, but could recover pursuant to a custom or practice of operating a police force where prevalent recklessness endangered *331 human life and safety what the court referred to as a "policy/custom of dangerous recklessness." Id. at 170. The court stated:
There was no direct testimony of prior misconduct within the Borger police force or of prior knowledge and state of mind of the police chief. We know from Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), that isolated instances of police misbehavior are inadequate to prove the knowledge and acquiescence by a city policymaker in that manner of conduct. That is not our case, however.
* * *
The evidence does prove repeated acts of abuse on this night, by several officers in several episodes, tending to prove a disposition to disregard human life and safety so prevalent as to be police policy or custom. The entire six officers of the night shift of the City of Borger participated in this wild barrage, when the exercise of the least care and the use of any rational and organized plan would have avoided the death of James Grandstaff.
Id. at 171. In Cawthon v. City of Greenville, 745 F.Supp. 377, 384 (N.D.Miss.1990) (quoting Coon v. Ledbetter, 780 F.2d 1158, 1161 (5th Cir.1986)), the court observed that "the Fifth Circuit has expressly limited Grandstaff to `equally extreme factual situations.'" The court summarized the material facts in Grandstaff as follows:
In Grandstaff, the entire night shift of the Borger police department opened fire upon and killed an innocent person after mistaking him for a fugitive. . . . In affirming liability against the city, the Fifth Circuit held that the officers' concerted action indicated a prior existing policy authorizing the reckless use of deadly force, and that a prior unconstitutional policy could also be inferred from the city's subsequent failure to reprimand, discharge or admit error on the part of any of its officers. . . . This additional evidence, concluded the court, allowed a factfinder to reasonably infer a municipal policy based on a single incident of conduct. . . .
Cawthon, 745 F.Supp. at 383 (citations omitted).
Evidence of incidents that occurred subsequent to the incident out of which the plaintiffs claim arises may or may not be probative, depending on the circumstances. It appears that such evidence is probative for purposes of showing the existence of a municipal policy or custom. In Henry, 132 F.3d at 519 (9th Cir.1997), the court stated "we reiterate our rule that post-event evidence is not only admissible for purposes of proving the existence of a municipal defendant's policy or custom, but is highly probative with respect to that inquiry." Although in a different context, the Second Circuit cited Shasta with approval in N.L.R.B. v. Local 46, Metallic Lathers Union, 149 F.3d 93, 104 n. 5 (2d Cir.1998). See also Bordanaro, 871 F.2d at 1166-67 ("The [Supreme Court] has never held that inferences about what customs or policies existed in a city before an event could not be drawn from subsequent actions. Postevent evidence can shed some light on what policies existed in the city on the date of an alleged deprivation of constitutional right."); Foley v. City of Lowell, Massachusetts, 948 F.2d 10, 14 (1st Cir.1991) (to decide if "post-event evidence" is admissible, the court must ask "whether the evidence sufficiently relates to the central occurrence" and noting that there "the lack of restraint the police officers exhibited on both occasions itself suggested the existence of an official policy of tolerating imbrutage."). But see Bemis v. Edwards, et al., 45 F.3d 1369 (9th Cir.1995) ("Whereas evidence of prior incidents of police *332 misconduct may indicate that [a policy of deliberate indifference] exists, it is doubtful that the 911 operator's failure to send an ambulance to help [the plaintiff's companion] after his beating, even if attributable to the city, would be relevant to the claim."); Harvey v. Hankins, et al., 681 F.Supp. 622, 624 (W.D.Mo.1988) ("Logically, [evidence of subsequent allegations of excessive force] would have been irrelevant to show a deliberate indifference to the plaintiff's rights and to show the existence of a policy or custom of police misconduct.").
On the other hand, evidence of subsequent incidents is not probative for purposes of establishing causation of the incident out of which the plaintiff's claim arises. See, e.g., Sango, 1989 WL 86995, at *20 n. 2 ("conduct occurring after the incident at issue lacks the requisite `affirmative link' to plaintiffs' injuries-that is, plaintiffs cannot establish causation. . . . Evidence of a municipal policymaker['s] response to misconduct can be helpful in determining the municipal policy existing before the incident."); Woo v. City of New York, et al., No. 93CIV7007(AJP)(HBD), 1996 WL 457337, at *6 (S.D.N.Y. Aug. 14, 1996) (quoting Sango); see also Dejesus, et al. v. Village of Pelham Manor, et al., 282 F.Supp.2d 162, 176 (S.D.N.Y.2003) (observing that "district courts in this Circuit directly addressing the specific issue of establishing deliberate indifference for the purpose of proving municipal liability have held that subsequent acts, standing alone or even in conjunction with other prior acts, are not probative of a prior municipal policy because they can not provide the necessary causal link between a custom or policy and the conduct at issue", but "not reaching the issue of whether subsequent conduct might not, in some circumstances, be indicative of a prior policy of failing to supervise").
In addition, evidence of subsequent incidents is not probative, in the context of a claim based on deliberate indifference, for purposes of establishing knowledge of the risk of harm to those a police officer would come into contact with. See, e.g., Lewis, 949 F.Supp. at 164 n. 5 ("[S]ince the offensive police conduct alleged in these complaints occurred over two years after the conduct alleged in Lewis' complaint, Lewis can hardly contend these actions support a claim that Sheriff Meloni had prior knowledge of VanThofs alleged propensity to engage in illegal arrests."); Rivera v. City of Rochester, et al., 21 F.Supp.2d 230, 234 (W.D.N.Y.1998) ("1995 complaints are not probative of whether or not the Rochester Police Department had any knowledge in 1992 of MacFall's alleged propensity to commit constitutional violations.").
The instant case is not the first case where the plaintiff has claimed that a municipal defendant had a custom or policy arising out of racial discrimination. However, a review of the reported decisions suggests that plaintiffs typically find it difficult to get past the summary judgment stage with such claims. In Estate of Sinthasomphone v. The City of Milwaukee, et al., 785 F.Supp. 1343, 1350 (E.D.Wis.1992), the complaint alleged "that dating back to 1958, the Milwaukee Police Department has been involved in discrimination against racial minorities." In ruling on a motion to dismiss, the court observed:
[The complaint] asserts that over the years a mind-set has been established in the department: certain discriminatory behavior has been tolerated, giving officers the impression that they can get by with behavior which leads to incidents such as that of May 27. . . . I find that the complaint states a claim that a de, facto custom or policy exists, giving rise to section 1983 liability. Proving the claim may be a difficult task, but the *333 difficulty of proof is not relevant at this stage of the proceedings. A' jury will have to eventually resolve this issue.
Id. at 1350-51.
In Hannah v. City of Dover, et al., No. Civ. 01-312-SLR, 2005 WL 735882, at *3 (D.Del. Mar. 20, 2005), the plaintiff alleged that the City of Dover had "a custom of racial discrimination or permitting its police officers to use excessive force when arresting someone." However, the court granted summary judgment in favor of the city, noting that the only evidence of a custom of racial discrimination identified by the plaintiff was that the State of Delaware had participated in the slave trade. In La v. Hayducka, et al., 269 F.Supp.2d 566, 586 (D.N.J.2003), the plaintiff alleged that the police department "`adopted an unconstitutional policy, custom, practice, and usage of racial animosity and intentional discrimination toward plaintiffs because they are Korean-American.'" The court granted summary judgment in favor of the municipal defendant, observing that the fact that the police department did not have an Asian officer on its force at the time of the shooting did not provide the substance necessary to support the plaintiff's allegations. In Frazier v. City of Philadelphia, et al., 927 F.Supp. 881, 885-86 n. 8 (E.D.Pa.1996), the plaintiff alleged that the "`Philadelphia Police [D]epartment has adopted and maintained for many years a recognized and accepted policy, custom, and practice toward persons of the African American race of systematically shooting them, although they are only suspected of committing crimes and subjecting them to the same type of treatment to which the decedent was subjected, which policy constitutes the use of excessive force.'" While the plaintiff produced statistical evidence, the court found such evidence insufficient and consequently, granted summary judgment in favor of the municipal defendant. The court observed:
To support his claim that the city maintained a policy or custom to shoot African Americans, plaintiff cites statistical data about how frequently the police internal affairs department has investigated Philadelphia police officers for discharging weapons, how frequently these discharges violated police department policy, and when the discharge violated department policy, how frequently that violation related to the department's policy on the appropriate use of deadly force. The statistical data does not, however, specify the racial composition of the citizens involved in these discharge incidents. Thus, the statistics are irrelevant to the question of whether the city maintained a policy of shooting African Americans. Moreover, the plaintiff has produced no other evidence indicating that police are more likely to use deadly force on African Americans than on Caucasians.
Id. at 886.
In Thompson v. City of Meriden, et al., No. 3:94-CV-1950, 1999 WL 301693, at *1 (D.Conn. Apr. 14, 1999), the plaintiff brought a claim against the municipal defendant "based on its deliberate indifference to the mistreatment of African-Americans and its failure to implement policies, procedures, training, and discipline of its police officers concerning racial discrimination and the proper use of force." The court granted summary judgment in favor of the defendant, concluding that the plaintiff had presented no evidence that the City "maintained or condoned a policy or custom of allowing its police department to subject arrestees to excessive force and racial discrimination." Id. at *10. In Rodriguez v. City of New York, et al., No. 85 CV 1873, 1988 WL 68853, at *3 (E.D.N.Y: May 13, 1988), the plaintiffs alleged, inter alia, that the City had a policy *334 or custom of racial discrimination and/or excessive force, which caused the plaintiff's injuries. The court granted summary judgment in favor of the municipality because the plaintiffs stated in their depositions that they had no reason to believe that the beating of one of the plaintiffs was racially motivated and "[t]he only material submitted by the plaintiffs relating to racial motivation is the general material, unrelated to the events of this case," from a congressional hearing and a state senate investigation. Id. at *3. See also House, et al. v. New Castle County, et al., 824 F.Supp. 477, 480 n. 6, 484 (D.Del.1993) (summary judgment granted where plaintiff alleged that defendant "inflicted harm upon black suspects for no just reason other than the fact that they are black", but "admit[ted] having no factual basis" for that claim); Brown, et al. v. City of Camden, et al., Civil No. 03-1303 JBS, 2006 WL 2177320, at *2, at *8 (D.N.J. July 27, 2006) (summary judgment granted where plaintiff alleged defendant had "an unconstitutional policy of racial profiling and excessive force", but failed to present "any evidence of an official policy or practice of racial profiling or excessive force by the City of Camden or its officers."); Dempsey v. Town of Brighton, 749 F.Supp. 1215, 1229 n. 5 (W.D.N.Y.1990) (summary judgment granted where plaintiff failed to specifically identify or offer "proof of a custom or policy which authorizes police officers to harass blacks or to use excessive force in confrontations with citizens, particularly blacks.").
Viewing the evidence in this case in light of the body of law discussed above, the court concludes that the evidence supports a finding by a reasonable jury that all the elements of a Monell claim were satisfied with respect to at least one of the theories claimed by the plaintiff. As noted above, the plaintiff did not claim, during oral argument on the Town's initial motion for judgment as a matter of law, a Monell claim based on hiring and retention of police officers without properly screening them as to racial animus and propensity for violence, nor a Monell claim based on failure to train police officers on the proper use of force.
However, the plaintiff did claim, based on paragraph 38 of the Third Amended Complaint, a Monell claim asserting that the Town, with deliberate indifference, failed to sanction or discipline EHPD officers for violating the constitutional rights of African-Americans and other people of color, even though the Town was aware of those violations, and that such failure encouraged EHPD officers, including Flodquist and DePalma, to continue to engage in unlawful conduct;, the plaintiff further claimed, as alleged in paragraph 41, that the Town's policy or custom was promulgated with deliberate indifference and created a hostile environment for African-Americans and other people of color in violation of their constitutional rights.
It is not readily apparent that the plaintiff produced evidence sufficient for a reasonable jury to conclude that the plaintiff established all of the elements of a Monell claim based on this theory. In establishing that the Town was aware of violations of the constitutional rights of African-Americans and other people of color by officers of the EHPD at the time of the Jones shooting, the plaintiff had to establish, in this case, awareness on the part of the chief of police. In doing so, the plaintiff necessarily relied on incidents that predated the shooting. See Lewis, 949 F.Supp. at 164; Rivera, 21 F.Supp.2d at 234. In addition, the plaintiff had to establish deliberate indifference on the part of the chief of police. See Spell, 824 F.21:1 at 1391; Bordanaro, 871 F.2d at 1157: The incidents the jury reasonably could have concluded predated the Jones shooting *335 were the Shane Gray incident, the comment to Jackman, and the T-shirt incident. However, neither the comment to Jackman nor the T-shirt incident constituted a violation of constitutional rights of African-Americans or other people of color. As to the Shane Gray incident, the jury was presented with evidence that an investigation was conducted, that the conclusion of the investigation was that Flodquist's actions were justified, and that the results were forwarded to the then chief of police, i.e. Chief Pascarella. However, there was no evidence that Chief Pascarella had any knowledge of what transpired during the Shane Gray incident other than what he learned from a report informing him that Flodquist's actions had been justified.
The plaintiff also claimed, based on paragraph 40 of the Third Amended Complaint, a Monell claim asserting that in order to discourage African-Americans and other people of color from entering or remaining in the Town, the Town instructed, encouraged, or, acquiesced in the practice of harassing, stopping, or otherwise interfering with the movements of African-Americans and other people of color in motor vehicles who were in or near areas of the Town that border or abut the City of New Haven; the plaintiff further claimed, as alleged in paragraph 41, that the Town's policy or custom was promulgated with deliberate indifference and created a hostile environment for African-Americans and other people of color in violation of their constitutional rights. During the trial, counsel for the plaintiff referred to this as operation by the Town of a "border patrol."
It is not readily apparent that the plaintiff produced evidence sufficient for a reasonable jury to conclude that the plaintiff established all of the elements of a Monell claim based on this theory. In establishing that a custom or policy of operating what was termed a "border patrol" could be attributed to the Town, the plaintiff could rely on incidents that occurred both prior and subsequent to the Jones shooting. See Henry, 132 F.3d at 519; Bordanaro, 871 F.2d at 1166-67. However, in establishing the third element of a Monell claim, causation of the incident out of which the plaintiffs claim arises, the plaintiff can rely only on incidents that occurred prior to the Jones shooting. See Sango, 1989 WL 86995, at *20 n. 2; Woo, 1996 WL 457337, at *6. Thus, the April 27, 1998 incident involving Patricia Snowden is not pertinent to the issue of causation. The only other evidence concerning stopping African-American motorists related to the Shane Gray incident and the Jones shooting. It is undisputed that Shane Gray was pursued by Flodquist across the field only after he jumped out of a stillmoving car, leaving it to continue on, and crash into a wooden guard-rail, and also undisputed that Jones refused to stop when being directed to pull over by a clearly identifiable police vehicle.
The plaintiff also claimed, based on paragraph 39 of the Third Amended Complaint, that the Town had a custom or practice "of deliberate indifference to the constitutional rights of African-Americans and other people of color in East Haven, which caused the violation of Jones' rights." (Third Amended Complaint, Fourth Cause of Action, at ¶ 39). The plaintiff further claimed, as alleged in paragraph 41, that the Town's policy or custom was promulgated with deliberate indifference and created a hostile environment for African-Americans and other people of color in violation of their constitutional rights. In addition, in paragraph 44, the plaintiff alleged that officers of the EHPD believed that their actions would not be properly monitored and that misconduct would not be investigated or sanctioned, *336 but would be tolerated, and that these practices and customs of the Town deprived Jones of his constitutional rights. Based on the evidence submitted to it and its evaluation of the credibility of the witnesses, the jury could have reasonably concluded that the Town had an official custom or practice of deliberate indifference to the constitutional rights of African-Americans and other people of color, and that the Town's custom or practice caused Jones to be subjected to denial of a. Constitutional right.
As recognized by the court in Estate of Sinthasomphone, proving that discriminatory behavior has been tolerated, thereby giving officers the impression they can get by with improper conduct, is a difficult task. See 785 F.Supp. at 1351. Here, unlike the trial in Bordanaro, no member of the police department testified as to the inner workings of the department. However, there was sufficient circumstantial evidence upon which the jury could have reasonably found that the town had a custom of deliberate indifference to the constitutional rights of African-Americans and other people of color. The jury actually heard testimony from and had the opportunity to observe a significant portion of the EHPD, and it heard about the involvement in various incidents of additional members of the EHPD.
The comments to Donald Jackman on January 8, 1996 were made in the heat of the moment. The jury reasonably could have placed great weight on the statement from one of the four officers to Jackman to the effect that the fact that Jackman was white made a big difference in how the members of the EHPD had treated him, i.e., in substance, that Jackman's rights would not have been respected to the same degree if he were African-American. The jury could reasonably have placed a great deal of weight on this statement for the same reason that excited utterances are an exception to the hearsay rule, i.e. "circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication." Fed.R.Evid. 803 advisory committee's note. The jury could also have reasonably concluded that this member of the EHPD also used a racial epithet as part of the Whalley Avenue comment, and that the comment reflected racial prejudice towards African-Americans. The four officers at Jackman's residence that evening constituted about onehalf of the officers who were on patrol for the EHPD during that shift, and one of them was a supervisor.
Accepting Shane Gray's version of the September 1991 incident involving Officer Flodquist, the jury reasonably could have concluded that Flodquist not only struck Gray with his cruiser while pursuing him across the field, but also that, once Flodquist's cruiser had gone into the ditch, Flodquist fired his weapon twice at Gray without justification, and fortunately missed him. The jury could have reasonably concluded that Flodquist falsified his case/incident report in order to create a justification for shooting at Gray, and that Gray was improperly charged with the offense of carrying a pistol without a permit in order to cover up Flodquist's improper discharge of his weapon. It could have also reasonably concluded that Flodquist and the other members of the EHPD who were on duty that evening ignored Gray's complaints about being struck by the cruiser and being shot at without justification, that the procedure pursuant to which Gray should have been turned over to the New Haven police was not followed, and that a procedure for recording on a prisoner's cell card complaints made by that, prisoner was not followed in Gray's case. Additionally, the jury could have reasonably concluded, based on the fact that two *337 of the five or six EHPD units on patrol that evening were sitting on Eastern Street at Eastern Circle, and based on Flodquist's testimony that Eastern Street was in his normal course of patrol, that the EHPD did have a practice of patrolling that area of New Haven that abutted East Haven and was heavily populated by people of color.
The jury was also entitled to rely on its conclusion that Flodquist used excessive force in shooting Jones in reaching a conclusion that a custom of indifference to the constitutional rights of African-Americans existed. See Bordanaro, 871 F.2d at 1156. In addition, in inferring the existence of such a custom, the jury could have placed weight on the evidence as to Officer Ranfone sending away the dark complexioned Hispanic male who was a witness to the Jones shooting. Based on the testimony of Ranfone and DePalma as to how Jones was handled after the shooting, as opposed to the testimony of other witnesses as to how Jones was handled, the jury could have also reasonably concluded that Ranfone and DePalma handled the fatally injured Jones in a manner that they knew was not appropriate, treating him with a cavalier disregard for his serious injuries.
The jury could have reasonably concluded that the racially offensive T-shirt incident was a reflection of the culture of the EHPD at the time of the Jones shooting. Detective Raccuia, the president of the union, testified that there was no controversy when the racially offensive T-shirts were first worn. Both Detective Raccuia and Chief Criscuolo testified that they had no idea how many members of the EHPD had been wearing the T-shirts, and when Chief Criscuolo was confronted with the question as to whether 10 or even 20 members of the EHPD wore the T-shirts, the jury could have reasonably concluded from his response that he had no basis for denying that 20 members of the department wearing racially offensive T-shirts was something that could happen at the EHPD.
The Patricia Snowden incident also provided evidence that supported a finding of the existence of such a custom. Accepting Snowden's version of events, the jury could have reasonably concluded that the fact that the Snowden incident could happen subsequent to both a public meeting concerning the T-shirt incident and an incident as dramatic as the Jones shooting reflected the presence of a deeply embedded custom.
Finally, Patricia Snowden's testimony about the traffic stop in April 1998 reflected that the only way she thought she had been mistreated was by being followed and stopped because she is African-American, and her testimony about the January 2000 incident reflected that she was treated well until EHPD officers became upset with her. Officer Flodquist only shot at Shane Gray after the occurrence of something the jury could have reasonably concluded was upsetting to him, i.e., having his cruiser go into a ditch. Also, the jury could have reasonably concluded that the officers on the scene at the Jackman incident were upset. Likewise, the jury could have reasonably concluded that at the time Officer Ranfone arrived at the scene of the Jones shooting, he understood from the radio transmissions that Officer Flodquist had been hit by the Oldsmobile and was upset about that fact at the time he ran off the witness with the dark complexion. Thus, the jury could have reasonably viewed the custom as one that was more likely to make itself evident when an officer found himself in an upsetting situation.
The jury could have reasonably concluded that Chief Criscuolo had actual or constructive knowledge of a custom or practice within the EHPD of deliberate *338 indifference to the constitutional rights of African-Americans and other people of color. Criscuolo testified that he joined the EHPD as a patrolman in 1963, was promoted to the rank of Sergeant in 1970, and to the rank of Lieutenant in 1975. He held the rank of Captain and was commander of the patrol division from 1985 to 1992. Thus, Criscuolo served at every level in a relatively small police department over the course of his 35-year career with the EHPD. However, the jury could have reasonably concluded that the most compelling evidence of awareness on the part of Chief Criscuolo was the fact that he investigated the Shane Gray incident.
As to establishing deliberate indifference on the part of Chief Criscuolo, the jury could have reasonably concluded, based on how he responded (or failed to respond) to the T-shirt incident and his testimony pertaining to that incident, that he was deliberately indifferent to a custom or practice within the EHPD of deliberate indifference to the rights of African-Americans and other persons of color. The jury also could have reasonably relied upon his testimony pertaining to the absence of EHPD policies prohibiting discriminating against people based on race.
Based on the foregoing, the jury could have reasonably concluded not only that there existed within the EHPD a custom or practice of deliberate indifference to the constitutional rights of African-Americans, but also reasonably concluded that the Chief of Police was aware of the custom or practice and deliberately indifferent to it. Thus, the jury could have concluded that this custom or practice was an official custom or practice of the Town, which satisfies the first element of a Morrell claim.
To satisfy the second and third elements of a Monell claim, a plaintiff must establish that the official custom or practice caused the plaintiff to be subjected to denial of a constitutional right. The jury was specifically asked to determine whether Officer Flodquist violated Jones' constitutional rights by using excessive force against him, and it concluded that he did. Based on the evidence summarized above with respect to the Jones shooting, the jury could have reasonably reached that conclusion, satisfying the third element of a Monell claim.
The second element requires a plaintiff to establish a causal connection between the official custom and the denial of the constitutional right. The jury could have reasonably concluded that the requisite causal connection was established here. It is undisputed that Flodquist understood that the occupants of the Oldsmobile he was pursuing were African-American. The jury could have reasonably drawn the inference that Flodquist's conduct with respect to Jones was different as a result of Jones' race because, as alleged in paragraph 44 of the Third Amended Complaint, the Town's official custom led Flodquist to believe that misconduct on his part would be tolerated with respect to African-American suspects, particularly in light of the fact that Flodquist was the officer involved in the Shane Gray incident. As recognized by the court in Bordanaro, deliberate indifference to the rights of citizens "make[s] a constitutional violation `almost bound to happen, sooner or later.'" Bordanaro, 871 F.2d at 1157 (quoting Spell, 824 F.2d at 1391).
Accordingly, the court concludes that the Town's renewed motion for judgment as a matter of law should be denied because the jury could have reasonably concluded that the plaintiff established the existence of an official custom or practice that caused Jones to be subjected to the denial of a constitutional right.
*339 II. PLAINTIFF'S MOTION FOR HEARING ON COMPENSATORY DAMAGES
The plaintiff has filed a "Motion for Hearing on Compensatory Damages", which includes a request for a new trial solely on the issue of compensatory damages. For the reasons set forth below, that motion is being granted.
The plaintiff produced limited evidence on compensatory damages. For instance, there was no evidence as to lost earning capacity, or medical, hospital or funeral expenses. However, the plaintiff did introduce evidence in three areas. First, the plaintiff introduced evidence that Jones had a daughter, evidence that he lived with the mother of his daughter at times, and evidence as to his mother. The plaintiff also put into evidence a life expectancy chart, which established a life expectancy of 42.5 years; the parties stipulated that Jones had violated his state probation, that his probation officer would have recommended that he serve approximately two years in prison, and that the state court could have accepted the recommendation or increased or decreased the time. Second, it was undisputed that Jones lost his life. Third, there was evidence that four bullets entered Jones' body in five different locations and that he did not die immediately; although the defendants offered evidence as to the effect of the PCP found in Jones' body on pain, there was evidence that Jones was moaning after he was shot.
The court instructed the jury that the elements of injury or loss for which compensation may be awarded in this case were (I) compensation for the destruction of Jones' capacity to carry on and enjoy life's activities in the way he would have done had he lived, (ii) compensation for the loss of life itself, even if death had been instantaneous, and (iii) compensation for conscious pain and suffering, including any emotional distress suffered by Jones.
The court instructed the jury that it must award nominal damages if it found that a defendant violated Jones' constitutional rights but that Jones suffered, no injury as a result of the violation. Assuming a finding that Jones suffered a deprivation of his constitutional rights, the court further instructed the, jury that either Jones suffered injuries that were unlawfully caused by one or more of the defendants, in which case the jury must award the plaintiff compensatory damages, or he did not suffer any injuries, in which case the jury must award the plaintiff nominal damages.
The jury concluded that the plaintiff had proven that defendant Flodquist violated Jones' constitutional rights by using excessive force against him, but was shielded from liability under the doctrine of qualified immunity. The jury concluded that the plaintiff had not proven that defendant DePalma violated Jones' constitutional rights by failing to intervene to protect Jones from the use of excessive force by Flodquist. It also concluded that the plaintiff had proven that Jones' constitutional rights were violated by defendant Flodquist as a result of an official practice or custom of the Town.[1]
The jury was asked to state whether the plaintiff had proven that Jones sustained injury or damage as a result of the wrongful conduct of a defendant who had been found liable to the plaintiff. The first portion *340 of Part VIII.A. of the verdict form read as follows:
With respect to each of the defendants named below, has the plaintiff proven by a preponderance of the evidence that Mr. Jones sustained injury or damage as a result of the wrongful conduct of that defendant?
The jury answered "Yes" with respect to the Town. The jury also answered "Yes" to that question with respect to defendant Flodquist even though the instruction for that part of the verdict form indicated that the jury should not respond to the question for any defendant the jury had concluded was not liable and the jury had concluded that Flodquist was shielded from liability by qualified immunity.
In Part VIII.B. of the verdict form, the jury was asked, if its answer was "Yes" as to any defendant in Part VII.A., to state the total amount of compensatory damages it determined to be fair, just, and reasonable. On the line for compensatory damages, the jury wrote "0". In Part VIII.C. of the verdict form, the jury was instructed that it must award nominal damages in the amount of $1 if it had not answered "Yes" in Part VIII.A. as to any of the defendants. The jury left the space for nominal damages blank.
After consulting with counsel at sidebar, the court conducted a limited inquiry of the jury. The court confirmed that the jury understood that notwithstanding the fact that it had completed Part VIII.A. of the verdict form with respect to defendant Flodquist, he was shielded from liability by qualified immunity. In addition, the court confirmed with respect to the Town that the jury had concluded that the plaintiff had proven that there was injury or damage sustained, but the value the jury put on it was zero dollars, as opposed to awarding nominal damages of $1.
Citing to Wheatley v. Beetar, 637 F.2d 863 (2d Cir.1980), the plaintiff argues that where liability has been established and damages are more than nominal, the plaintiff is entitled to a new trial on the issue of such damages where the jury failed to award them. In Wheatley, the court concluded that "the jury's rejection of Wheatley's other damages, namely the pain and suffering of the actual beating itself, is unsupportable." Id. at 866. The court stated further:
But on this record we can only infer that, although the jury believed that Wheatley had been beaten, when it came time to award damages it acted on the basis of impermissible considerations, such as an unwillingness to give money to an admitted heroin addict and thief. Despite appellant's character and criminal record, however, he was entitled to be justly compensated for the physical abuse he received. It is clear that at least some actual injury was suffered, cf., Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (in the absence of any proof of actual injury from the constitutional violation found, nominal damages will be appropriate relief in 42 U.S.C. § 1983 actions), and a new trial on the issue of damages resulting from the use of force is thus required.
Id. at 867. The jury's response in Part VIII.A. of the verdict form makes it clear that, here also, some actual injury was suffered.
The Town argues that the jury here could have properly concluded that both justifiable and excessive force were employed, that Jones' injuries arose from the application of the justifiable force employed, and that consequently an award of no compensatory damages was appropriate. In support of the theory on which the Town's argument is based, the Town properly *341 cites to Gibeau v. Nellis, et al., 18 F.3d 107 (2d Cir.1994) and Haywood v. Koehler, et al., 78 F.3d 101 (2d Cir.1996). In Gibeau, the jury found that a corrections officer, Lytle, had used excessive force against the plaintiff, but declined to award any damages. However, prior to Lytle's use of excessive force, the plaintiff had been involved in an altercation with another corrections officer during which the other corrections officer struck the plaintiff. The court concluded that the plaintiff failed to establish that his physical injuries were caused by Lytle. However, the court directed the district court to amend the judgment to award nominal damages to the plaintiff against Lytle. In Haywood, the court concluded "that the jury could reasonably have found that Haywood's injuries resulted from the use of force that was not excessive, and that the use of excessive force caused him no compensable injuries." 78 F.3d at 102. It noted that "conflicting versions permitted the jury to find that Haywood's head injuries were sustained in the dayroom as a result of [defendant] Garcia's use of reasonable force to restore order, and that, after inflicting the injury, [defendant] Garcia, in the course of the continuing struggle, used physical force that was excessive but that caused no compensable injuries." Id. at 105.
However, application in this case of the theory that was relevant to the decisions in Gibeau and Haywood is not supported by the jury's conclusions stated in the verdict form. In Part VIII.A. of the verdict form, the jury, although it was not supposed to complete it with respect to defendant Flodquist, stated its conclusion that the plaintiff had proven by a preponderance of the evidence that Jones sustained injury or damages as a result of the wrongful conduct of Flodquist. In light of that statement from the jury, which was confirmed by the court in its limited inquiry of the jury, one cannot infer that the jury concluded that while Flodquist used excessive force against Jones, the injury or damage sustained by Jones was the result of the use by Flodquist of some other force that was justifiable.
Quoting Curley v. Village of Suffern, 268 F.3d 65 (2d Cir.2001), and Barrett v. Orange County Human Rights Commission, 194 F.3d 341 (2d Cir.1999), the Town also argues that because defendant Flodquist was found to be not liable based on the doctrine of qualified immunity, the Town cannot be held liable unless the plaintiff shows that the "alleged injuries are not solely attributable to the actions of the named individual defendants." Curley, 268 F.3d at 71. However, this argument is based on a misreading of Curley and Barrett. In Curley, the court explicitly stated that "case law further suggests [City of Los Angeles v. Heller, 475 US. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986)] will not save a defendant municipality from liability where an individual officer is found not liable because of qualified immunity. See, e.g., Myers v. Okla. County Bd. of County Comm'rs, 151 F.3d 1313, 1317 (10th Cir. 1998); Barber v. City of Salem, 953 F.2d 232, 237-38 (6th Cir.1992)." Curley, 268 F.3d at 65; see also Cowan v. Breen, et al., 352 F.3d 756, 765 (2d Cir.2003) ("Moreover, because a municipality is not entitled to qualified immunity in § 1983 actions, Owen v. City of Independence, 445 ` U.S. 622, 638, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Catletti v. Rampe, 334 F.3d 225, 227 n. 1 (2d Cir.2003), even if [individual defendant] Breen was entitled to qualified immunity, if Cooper's constitutional rights were violated, the Town could still be liable.").
The language quoted by the Town in support of its argument comes from the following passage in Curley:
*342 Following Heller, we have recognized that a municipality cannot be liable for inadequate training or supervision when the officers involved in making an arrest did not violate the plaintiff's constitutional rights. Amato v. City of Saratoga Springs, 170 F.3d 311, 320 (2d Cir.1999); Ricciuti, 124 F.3d at 132; Dodd v. City of Norwich, 827 F.2d 1, 8 (2d Cir.1987) (on reargument, vacating prior panel opinion). Heller should not, of course, be applied indiscriminately. For example, where alleged injuries are not solely attributable to the actions of named individual defendants, municipal liability may still be found. See Barrett v. Orange County Human Rights Comm'n, 194 F.3d 341, 350 (2d Cir. 1999).
Curley, 268 F.3d at 71. Thus, the Town's argument stands on its head the court's analysis in Curley. The same is true with respect to Barrett, where the court stated that "it is therefore possible that a jury could find the Commission and the County of Orange liable for the alleged violations of Barrett's First Amendment rights even after finding that Lee and Colonna are not liable", Barrett, 194 F.3d at 350, thus recognizing that it was possible that while the named individual defendants did not violate the plaintiffs constitutional rights, the Commission did.
Finally, the defendant argues that during the discussion of the verdict form at sidebar, the plaintiff explicitly accepted and ratified that jury's failure to award compensatory damages, repeatedly defending as correct the jury's award of zero dollars in compensatory damages. However, the transcript of the sidebar conference reflects that first, the court first expressed a concern about whether, in view of the jury's response to Part VIII.A. of the verdict form, the jury could properly answer "0" in Part VIII.B.; the court expressed a view that if the answer was zero dollars with respect to compensatory damages, then $1 in nominal damages had to be awarded. The court then asked whether there could ever be compensatory damages of zero dollars, at which point plaintiffs counsel said it was possible. Defense counsel subsequently commented, inter alia, that the jury should have indicated zero dollars in compensatory damages and $1 in nominal damages. Plaintiffs counsel then observed that he thought what the jury was saying was that the plaintiff had not proven any compensatory damages; the court noted that that would be the equivalent of awarding nominal damages, a point with which plaintiff's counsel agreed. The court then conducted its limited inquiry of the jury.
In response to the court's inquiry, the jury confirmed that the plaintiff had proven by a preponderance of the evidence that Jones sustained injury or damage as a result of wrongful conduct and it understood that with respect to defendant Flodquist, although it had answered "Yes" in Part VIII.A., Flodquist was shielded from liability. With respect to the Town, the jury confirmed that although it had been proven that Jones had sustained injury or damage, the value it put on that injury or damage was zero dollars. Thus, notwithstanding the discussion at sidebar, it was clear that the jury's conclusions did not support an award of nominal damages, but rather one of compensatory damages. In light of how the discussion at the sidebar unfolded and the jury's subsequent responses to the inquiry of the court, the court does not conclude that the plaintiff waived her right to argue that an award of zero dollars in compensatory damages was contrary to the evidence and the law.
Accordingly, the court concludes that the plaintiffs motion for a new trial on the *343 issue of compensatory damages should be granted pursuant to Fed.R.Civ.P. 59(a). PART III: TOWN'S MOTION TO SET ASIDE AWARD OF PUNITIVE DAAGES
The Town has moved to set aside the award of punitive damages against it. For the reasons set forth below, that motion is being granted.
In City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), the Supreme Court held that "a municipality is immune from punitive damages under 42 U.S.C. § 1983" (id. at 271, 101 S.Ct. 2748), but observed in footnote 29 of the opinion that "Bit is perhaps possible to imagine an extreme situation where the taxpayers are directly responsible for perpetrating an outrageous abuse of constitutional rights." (Id. at 267 n. 29, 101 S.Ct. 2748). In Ciraolo v. City of New York, 216 F.3d 236, 240 (2d Cir. 2000), the court observed that "Rio the extent that footnote 29 creates an exception to Newport's general rule against punitive damages, therefore, it is . . . an exception for outrageous abuses for which the taxpayers are directly responsible." Here, the evidence at trial "cannot suffice to place this case within the seemingly narrow exception carved out by footnote 29." Id. at 242.
The Third Amended Complaint originally named Chief Criscuolo in both his individual and official capacities. At the final pretrial conference, the plaintiff agreed that there was no individual capacity claim against Chief Criscuolo, leaving only the official capacity claim. Chief Criscuolo's name was then omitted from the caption of the case in the documents that were submitted to the jury. During the charge to the jury, the jury was informed that the plaintiff had also asserted the Monell claim against Chief Criscuolo in his, official capacity, but that the claim was in substance the same claim as the claim against the Town, so the court was simply referring to a claim against the Town.
Against this backdrop, the plaintiff argues that the only supervisory official from the EHPD who was named as a defendant was Chief Criscuolo, that the reasonable inference to be drawn from the jury's verdict is that it was directed against Chief Criscuolo, and that assessing punitive damages against the Town was the only manner in which the jury could assess them against Chief Criscuolo in his official capacity. This argument fails because "a section 1983 action against a city official in his or her official capacity is treated as an action against the City entity itself." Barber v. City of Salem, Ohio, 953 F.2d 232, 237 (6th Cir.1992); see also Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) ("official-capacity suits `generally represent only another way of pleading an action against an entity of which an officer is an agent.'") (citations omitted); DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) ("We note that this suit, since, it is brought against DuRose in his official capacity, is equivalent to a suit against OCDSS and Oneida County."); Fago v. City of Hartford, No. Civ. 3:02CV1189AH, 2006 WL 860126, at *5 n. 5 (D.Conn. Mar. 31, 2006) ("a § 1983 suit against a municipal officer in his official capacity is considered a suit against the municipality itself").
The plaintiff also argues that the Town failed to timely object pursuant to Fed. R.Civ.P. 51. However, the court finds persuasive the analysis in Chestnut v. City of Lowell, 305 F.3d 18 (1st Cir.2002) (en banc), where the court applied plain error analysis after the municipality failed `to timely object to a jury charge on punitive damages.
Accordingly, the court concludes that the Town's motion to vacate the award. of *344 punitive damages against it should be granted.
IV. PLAINTIFF'S BATSON CLAIMS
During the jury selection process, the plaintiff raised a Batson claim to each exercise of peremptory challenge by the defense. In Barnes v. Anderson, et al., 202 F.3d 150 (2d Cir.1999), the court summarized the framework for analyzing a Batson claim:
Batson, extended to civil cases by Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 630, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), directs courts to apply a three-step, burden-shifting analysis to determine whether a peremptory strike has been exercised in a racially discriminatory manner:
When a Batson challenge is raised, the trial court must decide
(1) whether the [movant] has made a prima facie showing that the [nonmovant] has exercised its peremptory strike on the basis of race,
(2) if so, whether the [non-movant] has satisfied its burden of coming forward with a race-neutral explanation for striking the juror in question, and
(3) if so, whether the [movant] has carried his burden of persuasion of proving purposeful discrimination.
Barnes, 202 F.3d at 155 (citations omitted). A court must make "a finding with respect to the proffered explanation for each challenged strike. . . ." Id. at 156.
The court found that the plaintiff had carried her burden of persuasion on one of the four Batson claims. Each side strenuously objected to the findings that were not in its favor. So the record is clear, the court summarizes here the rationale for its findings on the plaintiff's Batson claims.
The members of the jury panel had been given a written list of questions and were required to answer each question "Yes" or "No" prior to being questioned by the court and counsel at sidebar. Two of those questions have particular significance for purposes of discussion of the Batson claims. Question No. 3 asked "Have you or anyone close to you ever been (a) arrested, or (b) charged with, convicted of, or investigated concerning, a criminal offense, including minor traffic violations?" Question No. 6 asked "Have you, or anyone close to you, ever had an unpleasant or unsatisfactory experience with a law enforcement officer?"
After being questioned at sidebar, 19 members of the jury panel were seated in the expanded jury box. Each juror had a three-digit number, but for the purposes of this summary, the jurors are referred to as Juror Nos. 1 through 19, based on the seat numbers in which they were placed.
The plaintiff challenged two jurors for cause, Juror Nos. 10 and 17. The defense challenged four jurors for cause, Juror Nos. 1, 2, 7 and 12. The court denied all the challenges for cause. At that point, because the parties had agreed on a jury of nine and each side had three peremptory challenges, the parties were working with Juror Nos. 1 through 15. Juror Nos. 1, 2 and 7 were understood to be African-American[2] and Juror No. 11 was Hispanic. The 11 other jurors in the first 15 seats were white.
When it came time to exercise peremptory challenges, the defendants were asked to strike two individuals and they *345 identified Juror No. 1 and Juror No. 2, both of whom were understood to be African-American. The plaintiff made a Batson claim with respect to both peremptory challenges. The process continued and the defendants struck Juror No. 7 with their third peremptory challenge. The plaintiff again made a Batson claim. At that point, there were four persons of color out of the 15 individuals under consideration, or 26.6 percent, and the defendants had used 100 percent of their peremptory challenges to strike persons of color, all of them African-American. At that point, the rate of challenges to minorities supported a statistical inference of discrimination, and the court concluded that the plaintiff had shown that there was a prima facie case sufficient to require the defendants to give a race-neutral explanation. See United States v. Alvarado, 923 F.2d 253, 255-56 (2d Cir.1991) ("Only a rate of minority challenges significantly higher than the minority percentage in the venire would support a statistical inference of discrimination . . . We think a challenge rate nearly twice the likely minority percentage of the venire strongly supports a prima facie case under Batson.")
After discussing the defendants' explanations for the exercise of their peremptory challenges, the court decided to adjourn jury selection so that it could review a transcript of the proceedings. The court met with counsel and called the potential jurors back a few days later.
The court found that the plaintiff had not carried the burden of persuasion with respect to Juror No. 1. Although the court was satisfied the juror could be fair and impartial, based on the fact that the juror had had several experiences where he had been stopped by police officers and thought he had been treated fairly, the juror also stated that he had been stopped by a police officer in a white neighborhood because of his race. During that incident, the juror was told he had been stopped for not having a front license plate. He believed that white motorists had also been driving by without a front license plate, so he told the officer he was going to stay around and watch to see if the officer stopped everyone else who did not have a front license plate, after which the officer stopped white motorists who did not have front license plates. Juror No. 1 conceded that he did not know who the officer had stopped prior to stopping him. Although Juror No. 1 believed the incident involved racial bias, he did not think he could have proved racial bias. In addition, Juror No. 1 had been stopped on several occasions for speeding, sometimes by white officers, and he thought he had been treated fairly during those incidents, as well as during another incident where he had been arrested and fined. The defendants explained that they chose to exercise a peremptory challenge against Juror No. 1 because no other potential juror had stated that he or she had been subjected to racial discrimination by police officers in connection with a motor vehicle stop in a white neighborhood, and that claim was at issue in this case. Under all the circumstances, the court found that explanation to be plausible.
The court also found that the plaintiff had not carried the burden of persuasion with respect to Juror No. 2. Juror No. 2 responded "Yes" to Question No. 3. However, based on the discussion at sidebar, she should have also responded "Yes" to Question No. 6. Juror No. 2 had had two experiences with police officers. On one occasion, she Was stopped for speeding by a police officer, who was white. She did not have any concerns about the situation. She felt that the officer was simply doing his duty. On a second occasion, however, Juror No. 2 was stopped during a blizzard and given a ticket when she was driving home from work by a police officer who *346 claimed the juror had run a stop sign, which she had not. Juror No. 2 reported that the officer, who was white, was very rude to her and gave her a $200 ticket for not having her driver's license with her. The juror sent a letter to the Department of Motor Vehicles with a check paying the fine, and her money was sent back to her. Juror No. 2 was very unhappy about the situation and stated that there could have been racial overtones to this second situation. The defendants explained their reason for exercising the peremptory challenge against Juror No. 2 as concern that she had had an experience somewhat similar to those at issue in the case, and she was very upset about it, thought the officer had harassed her, and believed that the incident could have been racially motivated.
The court evaluated the Batson claim with respect to Juror No. 2 in light of responses given by Juror No. 12 during the jury selection process. Juror No. 12 answered "Yes" to, inter alia, Question No. 3 and Question No. 6. Juror No. 12 had been stopped by police officers on numerous occasions for motor vehicle violations, and when he was younger, had a number of points on his. license. His view of the police officers who gave him tickets was that some were good and some were bad. When asked whether, going into the trial, his view of police officers was favorable or unfavorable, Juror No. 12 stated that he had mixed opinions. During the discussion at sidebar concerning challenges for cause, the defendants stated that they had an overall impression that Juror No. 12 had a negative view of police officers because of his own experiences. On the second day of jury selection, the court explained that it had concluded, based on the defendants' explanation, that striking Juror No. 2 was at least as plausible as striking Juror No. 12.
Juror No. 7 was the subject of the defendants' third peremptory challenge. On the second day of jury selection, in the context of the plaintiff's Batson claim with respect to the defendants' exercise of a peremptory challenge to strike Juror No. 7, the plaintiff discussed Juror No. 11 and Juror No. 12. The points raised with respect to Juror No. 12 are covered by the discussion above. Juror No. 11 answered "Yes" to, inter alia, Question No. 6. Juror No. 11, who was Hispanic, reported that his son had had an unpleasant or unsatisfactory experience with a police officer. His son had been out playing sports and broken an ankle and was driving home to get his wallet and insurance card so that he could go to a hospital. The son was stopped by a police officer who gave him a ticket even though he explained the extenuating circumstances. Juror No. 11 thought his son was treated unfairly. Juror No. 11 also reported that a very good friend and neighbor, who was a police officer in Puerto Rico, was killed in the line of duty. The juror reported that the only unpleasant experience he or anyone in his family had had with a police officer was the incident involving his son, and that the juror had had no favorable experiences with police officers.
During the discussion about Juror No. 7 on the second day of jury selection, the plaintiff pointed by way of contrast to Juror No. 11 and Juror No. 12 as individuals who had had negative experiences with police officers, yet had not been the subject of a peremptory challenge by the defense, even though the defendants had contended in explaining the exercise of their first two peremptory challenges that negative experiences with police officers where there were similarities to this case was an important consideration in exercising the challenges.
*347 Juror No. 7 had also been challenged by the defendants for cause. Juror No. 7 answered "Yes" to Question No. 3 and "No" to Question No. 6. As to Question No. 3, Juror No. 7 stated that she had six adult children, and that two or maybe three of them had been arrested. She did not know when they got arrested. She knew what town they had been arrested in and where they lived, but the arrests occurred after they had moved out of her house. Her children were in their thirties and forties, and they had never told her that anything bad had happened to them in terms of how they were treated by the police. Juror No. 7 stated that she guessed the officers had to do their jobs and if they were fair, they were doing their jobs. Juror No. 7 also reported that a daughter had been a crime victim and the officers who dealt with the juror at the time of that crime treated her very well; the officers were white.
The defendants inquired about Juror No. 7's connection with the "Urban League." The juror was in a senior citizen's program and worked part time at a local store through a program of the Urban League of Greater Hartford, as op posed to working at the office of the Urban, League of Greater Hartford. In 1997, Juror No. 7 was working for the post office, having just been laid off by an insurance company. She had had no contact with the Urban League until approximately nine months prior to jury selection. She did not know when the Jones' shooting had occurred, and she was not aware of what position, if any, any affiliate of the National Urban League had taken on the case.
In making their challenge for cause, the defendants expressed a concern about whether the Urban League was one of the organizations that had participated in marches and demonstrations demanding the firing and prosecution of Officer Flodquist. The defendants could not represent that the Urban League was one those organizations. The plaintiff represented that the Urban League of Greater Hartford, through which Juror No. 7 had obtained her job placement, had not been involved.
When the defendants were asked to give the reason for exercise of the peremptory challenge with respect to Juror No. 7, they stated that parents sometimes have very negative feelings toward police who arrest and incarcerate their children. The court found that the plaintiff had carried the burden of persuasion with respect to Juror No. 7. In explaining their exercise of their first two peremptory challenges, the defendants had emphasized their concern about people who had had negative experiences with police officers that would or could cause them to have a bias against police officers. The greater the extent to which those negative experiences involved situations similar to those at issue in this case, the greater that concern appeared to be on the part of the defendants. The court observed that it had followed the rationale for the exercise of the other peremptory challenges by the defendants and, in light of the record, could see that rationale applying to not only Juror No. 1, but also to Juror No. 2, Juror No. 5, Juror No. 6, Juror No. 11 and Juror No. 12, but could not see that rationale applying to Juror No. 7. The court concluded that there had been a change in the defendants' approach when it came time to exercise the third peremptory challenge, and that there had been no satisfactory explanation proffered, given the fact that Juror No. 12 had been passed over by the defendants.
After the court ruled on the Batson claim with respect to Juror No. 7, it gave the defendants the opportunity to exercise another peremptory challenge. The defendants exercised that peremptory challenge against Juror No. 11, the only Hispanic *348 juror in the group of 15. The court confirmed that the plaintiff was making a Batson claim with respect to Juror No. 11 and then informed the parties that the plaintiff had not carried her burden of persuasion. At that point, the court merely made a general reference to its earlier analysis. That earlier analysis. was the court's analysis with respect to Juror No. 7. In connection with its consideration of Juror No. 7, the court had accepted the defendants' rationale for striking potential jurors who had or should have answered "Yes" to Question No. 6. The court had concluded that Juror Nos. 1, 2, 5, 6, 11 and 12 were all jurors that could reasonably be struck applying that rationale. In addition, the court had in mind the argument made earlier by the plaintiff that Juror Nos. 11 and 12 had had negative experiences with police officers and would be struck before Juror No. 7 if that was what the defendants were genuinely concerned about. In response, the defendants had commented that they were not particularly happy about having Juror Nos. 11 and 12 either. Thus, although the court did not ask the defendants to articulate their reason for exercising the fourth peremptory challenge against Juror No. 11, the court believed it understood what that reason was and had, prior to the defendants' exercise of that peremptory challenge, concluded that Juror No. 11 was among a group of individuals as to whom exercise of the fourth peremptory challenge would have been consistent with the rationale employed by the defendants in striking Juror Nos. 1 and 2. Therefore, the court concluded that the plaintiff had not carried her burden of persuasion with respect to Juror No. 11.
V. CONCLUSION
For the reasons set forth above, the Town's Motion for Judgment as a Matter of Law (Doc. No. 156) is hereby DENIED; the plaintiffs "Motion for Hearing on Compensatory Damages," which includes a request for a new trial solely on the issue of compensatory damages (Doc. No. 162-2) is hereby GRANTED; and the defendants' Motion to Set Aside Jury's Award of Punitive Damages Against the Town of East Haven (Doc. No. 154) is hereby GRANTED.
It is so ordered.
NOTES
[1] The jury also found that the plaintiff had not proven her claim for battery against defendant Flodquist, her claim for intentional infliction of emotional distress against defendant Flodquist, or her claim for negligent infliction of emotional distress against defendants Flodquist and DePalma.
[2] Juror No. 1 was actually a dark-skinned Hispanic individual, but counsel took him to be African-American and agreed for purposes of the discussion of the Batson claims that he' was. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/990199/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DEUTSCHE CREDIT CORPORATION,
Plaintiff-Appellee,
v.
No. 95-2529
CHESAPEAKE YACHT SALES,
INCORPORATED; LEO J. MAURICIO;
DONNA C. MAURICIO,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-92-2377-WN)
Argued: April 3, 1996
Decided: August 12, 1996
Before MICHAEL and MOTZ, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part, reversed in part, and remanded by unpublished opin-
ion. Senior Judge Phillips wrote the opinion, in which Judge Michael
and Judge Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: Alfred L. Scanlan, Jr., Colleen Ann Cavanaugh, SCAN-
LAN & ROSEN, P.A., Baltimore, Maryland, for Appellants. Douglas
Andrew Rubel, PROTAS & SPIVOK, CHARTERED, Bethesda,
Maryland, for Appellee. ON BRIEF: Sander Mednick, Annapolis,
Maryland; Michael P. Darrow, HILLMAN, BROWN & DARROW,
P.A., Annapolis, Maryland, for Appellants.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PHILLIPS, Senior Circuit Judge:
Deutsche Credit Corporation (Deutsche), as holder of two
defaulted notes from Chesapeake Yacht Sales, Inc. (Chesapeake),
sued Leo and Donna Mauricio, alleging that they are liable as guaran-
tors of those notes. On cross-motions the district court granted sum-
mary judgment in favor of Deutsche. The Mauricios now appeal,
contending that the court erred in holding 1) that they were liable as
guarantors on the defaulted notes and 2) that Deutsche could recover
interest on those notes at a rate of three percent above prime rather
than two percent above prime. We affirm as to the Mauricios' liability
on one note, reverse as to the other, and affirm on the question of the
appropriate interest rate.
I.
Leo Mauricio is a part owner of Chesapeake, and, together with his
wife Donna, owns the Maryland marina in which Chesapeake sells
new and used yachts. In order to purchase yachts for resale, Chesa-
peake entered into a number of floor plan financing agreements with
lenders. Transactions relating to two of these floor plans gave rise to
this case.
First, in January of 1988, Chesapeake entered into a"Viking Six
Month Floor Plan" with Centron Financial Services. Under this plan,
Centron was to provide Chesapeake with financing to allow it to pur-
chase new Viking yachts. Later that same month, the Mauricios
2
signed a "Guaranty" agreement, under which they guaranteed pay-
ment of all of Chesapeake's present and future debts to Centron.1
The next fall, Chesapeake entered into another floor-plan agree-
ment with both Security Marine Creditcorp, Inc. (Security Marine)
and Centron. Under Security Marine's "Six Month Floor Plan,"
Security Marine would finance Chesapeake's purchase of new Viking
yachts, and Centron would serve as a "broker," performing various
intermediary duties between Security Marine, Chesapeake, and
Viking. In November of 1989, the Mauricios signed a second guar-
anty, this time in favor of Security Marine, in which they guaranteed
payment of all of Chesapeake's present and future debts to that lender.2
In the summer of 1990, Chesapeake purchased two new yachts
from Viking, one a sixty-three foot model, the other a seventy-two
foot model. Security Marine financed the sixty-three foot yacht under
its 1989 floor plan agreement, taking Chesapeake's note for the full
purchase price. Centron apparently financed purchase of the seventy-
two foot yacht, and simultaneously, on July 31, 1990, assigned to
Deutsche "all of its rights, title and interest in the floor plan account
of Chesapeake Yacht Sales," so that Deutsche was named as payee of
_________________________________________________________________
1 The Centron guaranty read in relevant part:
The undersigned . . . do hereby unconditionally Guarantee the
prompt and punctual payment to you, your successors and
assigns, of any and all present and future indebtedness, absolute
or contingent of [Chesapeake] to you, and of all evidence of such
indebtedness, and of any and all extensions and renewals thereof.
JA 36.
2 The Security Marine guaranty read in relevant part:
[W]e, the undersigned . . . agree to be, . . . jointly, severally and
directly liable to you for the due performance of[Chesapeake's]
Security Obligations both present and future, and any and all
subsequent renewals, continuations, modifications, supplements
and amendments thereof, and for the payment of any and all
debts of [Chesapeake] of whatever nature, whether matured or
unmatured, whether absolute or contingent and whether now or
hereafter existing or arising . . . acquired by you by assignment,
transfer or otherwise.
3
Chesapeake's note for this Yacht's purchase. JA 37. Then, on Octo-
ber 1, 1990, Security Marine assigned to Centron"all of [Security
Marine's] rights, title and interest in the [sixty-three-foot yacht] Note
of Chesapeake Yacht Sales, Inc." and Centron immediately again
assigned to Deutsche "all its rights, title and interest in the wholesale
floor plan account of Chesapeake Yacht Sales, Inc." JA 66.
Because Chesapeake had not yet sold the sixty-three foot yacht
when the first payment on the note became due, it requested and
Deutsche granted an extension of the financing period. Incident to this
extension, the parties agreed to raise the interest rate from the face
rate of two percent above prime to three percent above. JA 640.
In June of 1991, an interested buyer offered to trade in his used
fifty-foot yacht--with cash boot--for the seventy-two foot yacht. All
agreed to the deal. Deutsche then cancelled the seventy-two foot
yacht note and financed Chesapeake's purchase of the trade-in yacht.
At the end of the day, then, Chesapeake had the used fifty-foot yacht
and Deutsche had Chesapeake's note for the purchase price of that
yacht.
Chesapeake ultimately defaulted on the notes secured by the sixty-
three and fifty-foot yachts. Deutsche then demanded that the Mauri-
cios make good on their guarantees of Chesapeake's debts. When the
Mauricios refused to pay, Deutsche repossessed and sold the two
yachts, each sale resulting in a deficiency.
Deutsche then sued Chesapeake and the Mauricios as guarantors of
Chesapeake's debts in the United States District Court for the District
of Maryland, seeking to recover the deficiency on both notes, plus
interest, costs, and attorneys' fees. Default judgment was entered
against Chesapeake. On the remaining parties' cross-motions for sum-
mary judgments, the district court denied the Mauricios' motion and
granted Deutsche's, holding that the Mauricios were liable as Chesa-
peake's guarantors for the deficiencies on both notes. Following a
determination of damages, and entry of final judgment, the Mauricios
took this appeal.
II.
The Mauricios first contend that the district court erred in holding
them liable as a matter of law to Deutsche as guarantors of Chesa-
4
peake's obligations under the notes covering the sixty-three and fifty-
foot yachts, and, accordingly, in granting Deutsche's summary judg-
ment motion. While the Mauricios admit that they did execute two
guaranties of Chesapeake's debts, they contend that no rights under
those guaranties were assigned to Deutsche and that even if some
rights were assigned, they did not apply to the two promissory notes
in question.
Because the material facts are not in dispute this case may properly
be resolved by summary judgment. See Fed. R. Civ. P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Reviewing the district court's judgment de novo, we agree with the
district court that, as a matter of controlling Maryland substantive
law, Deutsche is entitled to recover against the Mauricios for the defi-
ciency on Chesapeake's debt under the defaulted note secured by the
sixty-three foot yacht. We agree with the Mauricios, however, that
they are not liable as guarantors for the deficiency on Chesapeake's
note secured by the fifty-foot yacht.
A.
The district court correctly held that the Mauricios were liable as
guarantors of the note secured by the sixty-three foot yacht. As earlier
noted, in 1989 the Mauricios executed a guaranty to Security Marine
that they would pay any future debts Chesapeake incurred to that
lender. Accordingly, when, in July of 1990, Security Marine financed
Chesapeake's purchase of the sixty-three foot yacht, the Mauricios,
under the terms of their guaranty, became "jointly, severally and
directly liable to [Security Marine]" for the payment of that debt. JA
197. And, because under Maryland law "[a]ssignment of a debt is
held to operate as an assignment of a guaranty of the debt,"
Bachmann v. Glazer & Glazer, 559 A.2d 365, 370 (Md. 1989), Secur-
ity Marine's assignment to Centron of the note secured by the sixty-
three foot yacht note, and Centron's subsequent re-assignment of the
note to Deutsche, transferred to Deutsche the original note holder's
rights under the Mauricio's guaranty. In consequence, Deutsche was
entitled to judgment against the Mauricios for the amount of the defi-
ciency on the defaulted note so secured.
The Mauricios seek to avoid this conclusion by contending that this
guaranty was not intended to apply to loans, such as that secured by
5
this note, that were made under Security Marine's 1989 floor plan
agreement. But the guaranty flatly provides otherwise; by its terms it
plainly applies to all of Chesapeake's future debts to Security Marine,
not just to particular types of debts under particular contracts.
The Mauricios were therefore properly held liable as guarantors for
the deficiency on the note secured by the sixty-three foot yacht.
B.
The district court erred, however, in concluding that as a matter of
law, the Mauricios were liable to Deutsche as guarantors of the
defaulted note secured by the fifty-foot yacht. We hold, to the con-
trary, that, under Maryland law, Deutsche had no guaranty rights
against the Mauricios with respect to loans that Deutsche itself made
to Chesapeake.
Such rights could only have arisen in Deutsche from a direct guar-
anty made by the Mauricios to Deutsche, or by assignment from
someone to whom a guaranty had been made that was legally assign-
able. There is no claim of a direct guaranty to Deutsche, so any rights
it had could only have arisen from a legally valid assignment by Cen-
tron or Security Marine of the Mauricios' guaranties to them. The dis-
trict court concluded that such rights had been validly assigned. We
disagree. Under Maryland law, neither of the assignments made by
Centron to Deutsche in respect of Chesapeake's indebtednesses was
effective to assign any guaranty rights against the Mauricios respect-
ing the note secured by the fifty-foot yacht.
Whether a particular assignment is effective to assign a guaranty
respecting a particular debt depends on two things: (1) whether the
assignment in terms covers the guaranty, and (2) whether the guaranty
is a legally assignable one. Deutsche relies on two assignments as the
source of its right to recover from the Mauricios as guarantors of the
note securing the fifty-foot yacht: (1) Centron's July 31, 1990 assign-
ment to Deutsche and (2) Centron's October 1, 1990 assignment to
Deutsche simultaneously with Security Marine's assignment to Cen-
tron, of their respective "rights, titles, and interests" in Chesapeake's
indebtednesses.
6
1.
Looking first to Centron's July 31, 1990 assignment, we conclude
that, even if it could be interpreted as intended to include the Mauri-
cio guaranty to Centron, the guaranty was not legally assignable.
While, as indicated in Part II.A., an assignment of debt carries with
it an assignment of any guaranty of that debt, this does not mean that
a guaranty may be assigned independently of any underlying debt.
The general rule is, in fact, to the contrary where the guaranty is "spe-
cial," i.e., made only to particular potential lender or lenders. As
expressed in black-letter form:
[I]f a guaranty covers future credit which is to be extended
by a specific individual, it may not be transferred to another
person so as to enable him to become the creditor who is
secured by the guaranty.
38 Am. Jur. 2d Guaranty § 35.3
The Centron guaranty is such an instrument. It specifies that it is
made "to induce . . . Centron Financial Services, Inc. to make loans
and in consideration of loans heretofore and hereafter made by [Cen-
tron] to Chesapeake." JA 36. Further, it promises "prompt and punc-
tual payment . . . of any and all present and future indebtedness . . .
of [Chesapeake] to you," i.e. Centron. Id. (emphasis added). The guar-
anty does contemplate that once Centron extended credit to Chesa-
peake, Centron might assign the debt, for the guaranty was for
payment to Centron, "its successors and assigns." Id. The guaranty
nowhere includes, however, a promise to pay debts arising between
Chesapeake and anyone other than Centron. Under the general rule,
therefore, the Centron guaranty, covering only credit extended by
_________________________________________________________________
3 As a corollary to the general rule that special guaranties are not
assignable, it is commonly said that "general" guaranties--guaranties
made to anyone who extends credit to a particular entity--are assignable.
38 Am. Jur. 2d Guaranty § 35 (1968). This is of course anomalous: By
its terms a general guaranty needs no assignment to be available to any-
one. See id. (noting the anomaly, but reciting the convention).
7
Centron, could not be assigned by Centron so as to enable Deutsche
to become a creditor secured by the guaranty.4
We are satisfied that Maryland courts would so hold, though on a
basis more explanatory of the actual reason for non-assignability of
guaranties independently of consummated debt. Maryland law prop-
erly treats guaranties of future debt as simply a species of "continu-
ing" or "standing" offers to make a series of individual, unilateral
contracts. See Weil v. Free State Oil Co., 87 A.2d 826, 830 (Md.
1956). Under general contract law principles, such offers are accepted
by the extension of credit by the offeree. See id. ("to be accepted from
time to time by [credit extension]"). See generally Restatement (Sec-
ond) of Contracts § 31, cmt. b (1981) ("continuing guaranty" consti-
tutes a "standard example of a divisible offer to make a series of
contracts"). And, until such a continuing offer is accepted, it remains
only an offer of contract which, as with contract offers in general, is
not assignable. See Routzahn v. Cromer, 150 A.2d 912, 915 (Md.
1959) ("an offer made to one person cannot be accepted by another");
Restatement (Second) of Contracts § 52 ("an offer can be accepted
only by a person whom it invites to furnish consideration"); 38 Am.
Jur. 2d Guaranty § 35 ("offer of guaranty is, in and of itself, not
assignable").
_________________________________________________________________
4 There are exceptions to the general non-assignability rule that are rec-
ognized in some jurisdictions. See, e.g. , Essex Int'l Inc. v. Clamage, 440
F.2d 547, 550 (7th Cir. 1971) (under Illinois law, assignment effective
unless it causes "material change" in debtor-creditor-guarantor relation-
ship); Kraft Foodservice, Inc. v. Hardee, 457 S.E.2d 596, 598 (N.C.
1995) (assignable unless inconsistent with statute or public policy, or
unless executed in reliance on personal confidence in original creditor);
Sinclair Marketing, Inc. v. Siepert, 695 P.2d 385, 389 (Idaho 1985) (fact
question dependent upon parties' intent).
While broad language of these decisions implies a rule of general
application, each actually involved assignments incident to corporate
asset sales or contract exchanges between related corporations. Each
therefore rests, at least in part, on a concern that guarantors should not
be released when a creditor merely changes its name or corporate form.
E.g. Essex, 440 F.2d at 550. The assignments here are by contrast
between unrelated entities and not incident to corporate asset sales. The
"mere change in name or form" concern is not, therefore, present here
even were Maryland law accepting of these exceptions.
8
Accordingly, under Maryland law, as generally, Centron's July 31,
1990 assignment to Deutsche of all its "rights, title and interests" in
Chesapeake's indebtedness was ineffective to assign to Deutsche any
power to bind the Mauricios as guarantors of any future debts of
Chesapeake to Deutsche.
2.
The only other possible source of a guaranty right in respect of
Chesapeake's debt to Deutsche for the latter's financing of the fifty-
foot yacht, is Centron's October 1, 1990 assignment to Deutsche of
"all its rights, title and interest in the wholesale floor plan account of
Chesapeake Yacht Sales." JA 66. This assignment was ineffective to
create any power in Deutsche to bind the Mauricios as guarantors of
any future debts arising from Deutsche's own extension of credit to
Chesapeake for the same reason discussed in Part II.B.1. The Mauri-
cios' standing offer of guaranty to Centron was not assignable to
Deutsche to create any power of acceptance.
Nor could Security Marine's contemporaneous assignment to Cen-
tron have somehow altered this conclusion. That assignment, by its
terms, only purported to assign to Centron "all of [Security Marine's]
rights, title and interest in the Note [that securing the sixty-three foot
yacht loan] of Chesapeake Yacht Sales, Inc." JA 67. This of course
had nothing to do with the fifty-foot yacht debt.
For these reasons, Deutsche was not, as a matter of law, entitled to
recover the deficiency on the fifty-foot yacht indebtedness from the
Mauricios as guarantors. The district court's summary judgment for
Deutsche as to that debt deficiency must therefore be reversed.
III.
The Mauricios challenge the district court's ruling, adopting the
magistrate judge's recommendation, that Deutsche was entitled to
recover interest at the rate of three percent above prime rather than
two percent as originally provided. We affirm that ruling as it applies
to the deficiency on the sixty-three foot yacht note.
9
Although the note in issue originally specified a rate of two percent
over prime, the magistrate judge found that, after Chesapeake
defaulted on that note, it had agreed with Deutsche that interest would
thereafter be due at three percent over prime. The Mauricios now
argue that, if such an agreement was made, it amounted to a change
in the terms of that note, which, in turn, would release them from their
obligation as guarantors of the note. See Art Plate Glass & Mirror
Corp. v. Fidelity Construc. Corp., 69 A.2d 808 (Md. 1949) (guarantor
may not, without his consent, be bound beyond original terms of con-
tract). We disagree.
The language of the Mauricio's guaranty to Security Marine--
which applies to the note in question--defeats this argument. In the
Security Marine guaranty, the Mauricios agreed to pay not only all of
Chesapeake's debts to Security Marine, but also"any and all subse-
quent renewals, continuations, modifications, supplements, and
amendments thereof." J.A. 197 (emphasis added). Because the Mauri-
cios agreed from the beginning to guarantee repayment of any of
Chesapeake's debts to Security Marine or any modification of those
debts--like the change in interest rate here--they cannot now argue
that such a modification was a change in the underlying debt that
released them from liability. See Greenwell v. American Guar. Corp.,
277 A.2d 70, 74 (Md. 1971) (where guarantee itself allows for
changes in principal agreement, such changes do not release guarantor
from liability). Accordingly, we reject the Mauricios' challenge to the
interest rate applicable to the debt due under the note on the sixty-
three foot yacht.
IV.
For reasons given, we reverse that portion of the district court's
judgment holding the Mauricios liable as guarantors of the note
financing the fifty-foot yacht; affirm that portion holding the Mauri-
cios liable as guarantors of Chesapeake's obligations under the note
financing the sixty-three foot yacht; and affirm the district court's rul-
ing that interest on the amount recoverable as debt deficiency is com-
putable at three percent above prime. The action is remanded for entry
of a judgment in accordance with this opinion.
SO ORDERED
10 | 01-03-2023 | 07-03-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/595473/ | 979 F.2d 1571
142 L.R.R.M. (BNA) 2001, 298 U.S.App.D.C. 361,123 Lab.Cas. P 10,471
The DAILY NEWS OF LOS ANGELES, A DIVISION OF COOKE MEDIAGROUP, INC., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent,Los Angeles Newspaper Guild, Local 69, AFL-CIO, Intervenor.
No. 91-1456.
United States Court of Appeals,District of Columbia Circuit.
Argued Sept. 11, 1992.Decided Dec. 11, 1992.
Petition for Review of an Order of the National Labor Relations Board (31-CA-17751).
Thomas P. Burke, with whom Jamie L. Johnson was on the brief, for petitioner.
Michael J. Gan, Atty., N.L.R.B. ("NLRB"), with whom Jerry M. Hunter, Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and Paul J. Spielberg, Deputy Asst. Gen. Counsel, NLRB, were on the brief, for respondent.
Ellen Greenstone, David S. Barr, and David Jonathan Cohen were on the brief, for intervenor.
Before: BUCKLEY, WILLIAMS and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
STEPHEN F. WILLIAMS, Circuit Judge:
Since 1986 the Daily News has given each employee an annual performance review, almost invariably on the anniversary of the employee's hire. The review was typically the occasion of a merit raise, but the company denied raises to 18.5% of eligible employees in 1986 and to 17.3% in 1987. Joint Appendix ("J.A.") 409-10. For those receiving raises, the percentage increases were all over the lot, from as low as 2% to as high as 40%. Id. The administrative law judge, in a conclusion that the Board did not overturn, found that "the amount of the increase, if any, is totally discretionary." J.A. at 69.
In May of 1989 the Los Angeles Newspaper Guild, Local 69, was certified as the collective bargaining agent for some of the company's editorial employees. During negotiations in June 1989, the company asked the Guild's opinion on the possible discontinuation of merit increases. The Guild responded that the News should continue to grant the increases as before, and that the Guild would view any failure to do so as an unfair labor practice. While the News continued its annual employee evaluations, it stopped giving merit raises shortly after this exchange. The Guild then filed a complaint with the National Labor Relations Board, claiming the News's conduct violated § 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) (1988), which bars an employer from refusing to bargain collectively with its employees' representatives.
Over the dissent of member Oviatt, the Board found the News to have violated § 8(a)(5). Daily News of Los Angeles, 304 NLRB No. 63 at 1 (1991) (the "Board Decision"). Its reasoning was in essence the following: (1) Under NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962), an employer negotiating with a newly certified bargaining representative is barred by § 8(a)(5) from altering "established terms and conditions of employment without first notifying and bargaining with the union." Board Decision, 304 NLRB No. 63 at 1-2. (2) A merit raise is an "established term" of employment within the meaning of Katz if the timing is settled, even though the amount is discretionary. Id. at 2. (3) Under Katz the employer violates its bargaining obligation whenever it unilaterally (i.e., without bargaining to impasse) either continues or discontinues such discretionary raises. Id. (4) While the union may insist on bargaining over the amounts of (quantitatively) discretionary wage increases, it may waive that right, and where it does so--as the Board found it did here--the employer is obliged to grant the increases and exercise its discretion as to amount. Id. at 3. (5) The remedy--awarded by the Administrative Law Judge and incorporated by reference in the Board Decision--is for the News to pay the affected employees "the difference between their actual wages and the wages they would have otherwise received." Id. at 5 (requiring the action set forth in ALJ's order at 5); see also ALJ Decision, J.A. 97, 101.
1
While virtually every step in the Board's reasoning poses difficulties, the core problem lies in steps 2 and 3. The Board's conclusion--that an employer cannot in the course of negotiations discontinue a practice of granting wage increases whose timing is regular but whose amount is discretionary--is inconsistent with recent Board precedent and is by no means compelled by the logic of Katz. We therefore remand to the Board for reconsideration in light of this opinion.
2
* * * * * *
3
Katz found that an employer's persistence in a program of discretionary merit wage increases violated its good faith bargaining duty (and thus § 8(a)(5)) where the employer failed to bargain in advance about the decision to persist. It carefully distinguished "so-called 'merit raises' which are in fact simply automatic increases". 369 U.S. at 746, 82 S.Ct. at 1113. Because of the employer's discretion in the case before it, the Court said that there "simply is no way ... for a union to know whether or not there has been a substantial departure from past practice, and therefore the union may properly insist that the company negotiate as to the procedures and criteria for determining such increases." Id. at 746-47, 82 S.Ct. at 1113 (citations omitted).
4
The stress on the union's uncertainty built on earlier portions of the opinion. One part had found unlawful a company's complex alteration of its sick leave policy; its complexities would affect different employees different ways, with adverse effects on the bargaining whether it generally helped the employees, generally hurt them, or divided them about equally. Id. at 744, 82 S.Ct. at 1112. A second part, following NLRB v. Crompton-Highland Mills Inc., 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320 (1949), had invalidated a unilateral wage increase that "was considerably more generous than that which had shortly theretofore been offered to and rejected by the union." 369 U.S. at 745, 82 S.Ct. at 1112. Because such a unilateral increase looked like a maneuver to convince workers that they could do better without a union than with one, see Robert A. Gorman, Basic Text on Labor Law 439 (1976), and because the sick leave change suggested a divide-and-conquer strategy, the Court might well have thought that unilateral persistence in a pattern of discretionary wage increases had elements of both tactics. The emphasis on the union's uncertainty suggests as much. As the Katz opinion said not a word about discontinuance of a past pattern of discretionary wage increases, and its focus was on evils that arise from continuance rather than from discontinuance, one can hardly assume that it covers the latter. The Board here offered no explanation of the extension.
5
Rather, it appeared to rest on a faulty assumption that it had already resolved the matter, citing a footnote in Oneita Knitting Mills, 205 NLRB 500 (1973). There as in Katz the employer unilaterally granted discretionary wage increases during negotiations with the union, so the decision is clearly not a holding on the present issue. The Oneita footnote addressed a claim by the respondent that treating a unilateral grant of merit increases as a violation was inconsistent with the Board's decision in Southeastern Michigan Gas Company, 198 NLRB 1221 (1972), where the Board had found discontinuance to be a violation. The Board responded:
6
An employer with a past history of a merit increase program neither may discontinue that program (as we found in Southeastern Michigan ) nor may he any longer continue to unilaterally exercise his discretion with respect to such increases, once an exclusive bargaining agent is selected. NLRB v. Katz, 396 U.S. 736 [82 S.Ct. 1107, 8 L.Ed.2d 230] (1962). What is required is a maintenance of preexisting practices, i.e., the general outline of the program, however the implementation of that program (to the extent that discretion has existed in determining the amounts or timing of the increases), becomes a matter as to which the bargaining agent is entitled to be consulted.
7
205 NLRB 500 n. 1 (1973). But the discontinued wage increases in Southeastern Michigan were part of a "policy upon making such a [performance] review to grant to employees a wage increase of 5 percent." 198 NLRB at 1221. No eligible employee was ever denied the five percent increase. Id. Thus, the authority cited in Oneita that bars discontinuance of increases referred to an established pattern of fixed, nondiscretionary raises. Indeed, Southeastern Michigan conformed to the observation in the text of Oneita that the employer could have unilaterally granted the raises had the amounts been "fixed" or "automatically determined". 205 NLRB at 502; see also Katz, 369 U.S. at 746, 82 S.Ct. at 1113 (distinguishing "automatic increases to which the employer has already committed himself"). And the final sentence of the Oneita footnote, while requiring bargaining as to implementation if the employer proposes to grant discretionary increases (as per Katz ), says nothing about the employer's duty if it does not wish to do so.
8
Thus, while Katz, Oneita, and Southeastern Michigan stand for the propositions that an employer may not unilaterally continue discretionary increases, and may not unilaterally discontinue established and nondiscretionary ones, none of them addresses the discontinuance of discretionary merit increases.
9
It is quite true, as the Board noted, that in certain cases it has applied Katz to an employer's discontinuance of "merit" raises that had normally occurred at regular intervals but as to which the employer retained some discretion. See Board Decision, 304 NLRB No. 63 at 3 (citing Central Maine Morning Sentinel, 295 NLRB 376 (1989); General Motors Acceptance Corp., 196 NLRB 137 (1972); Allied Products Corp., 218 NLRB 1246 (1975); Rochester Institute of Technology, 264 NLRB 1020 (1982), enf. denied, 724 F.2d 9 (2d Cir.1983)). In those cases the range of discretion as to amount appears narrower than here; in Rochester, for example, everyone received between 10 and 25 cents per hour, depending upon performance rating. Further, none of the cases can fairly be said to explain the extension of Katz to discontinuance of merit increases. Most important, the Board has also come out exactly the opposite way, in Anaconda Ericsson, Inc., 261 NLRB 831 (1982), discussed in detail below. If there is a reconciliation of these cases, the Board has nowhere advanced it. While random use of inconsistent precedents may or may not be an agency "swerve[ ]", see Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970), it surely is not reasoned decisionmaking; see also Green County Mobilephone, Inc. v. FCC, 765 F.2d 235, 237 (D.C.Cir.1985); Professional Airways Systems Specialists v. FLRA, 809 F.2d 855, 860 (D.C.Cir.1987).
10
Our own decision in NLRB v. Blevins Popcorn Co., 659 F.2d 1173 (D.C.Cir.1981), suggests some further wrinkles but proves in the end quite ambiguous; this ambiguity may explain why subsequent Board authority has not found Blevins to support the broad rule that the Board now suggests. In Blevins we read Katz as establishing the general proposition that "if the company decides to alter a preexisting practice, it must give the union an opportunity to bargain over the change." Id. at 1189. More particularly, we read it (consistently with Katz, Oneita, and Southeastern Michigan ) to require an employer to grant automatic wage increases unless it first negotiated any change with the union, but to bar it from granting a discretionary increase absent such negotiation. Id. In Blevins itself, the wage increases at issue were ones granted regularly every December and the amounts "apparently depended on an employee's job classification". Id. Thus, they were "not entirely automatic". Id. If the company had proposed to grant the increases, we said, it would have had to "bargain over this discretionary element". Id. Failure to grant the increases, coupled with a statement to the union that the company would not make any increases " 'that the law prohibits' ", would not satisfy its duty under Katz, for it was not "prohibit[ed]" from granting increases if it consulted with the union. Id. at 1190. In the end, we remanded the case to a Special Master, telling him to "direct his attention to the precise nature of the annual wage increase," and noted that if the employer's action was not "justified", "then the company's action may be evidence of an attempt to undermine the union, and indicative of bad faith." Id. (emphasis added).
11
Thus Blevins appears to mean that the Board could lawfully insist that an employer treat a wage increase as "established", and not subject to discontinuance without bargaining, even though it contained some discretionary elements. The court never passed on just how broad the discretion might be. The opinion does not say that Katz works identically for discontinuances as for grants. Nor does it undermine the Board's position, established in American Mirror Co., 269 NLRB 1091, 1094 (1984), that a company may unilaterally refrain from granting a wholly discretionary increase.
12
Accordingly, the issue appears to turn on how to classify an established pattern of increases that is fixed as to timing but discretionary as to amount. In fact, the Board has treated such programs as lacking the character of an established practice, for purposes of rejecting both an employer's attempt to justify a unilateral grant of such increases and a union's attack on unilateral discontinuance.
13
In Oneita, the very case on which the Board purports to rest its decision, it held the employer to have violated the Act by unilaterally granting merit increases in late January in the midst of bargaining. The employer tried to defend the raises on the grounds that it had established a practice of giving them at that time of year. 205 NLRB at 502. The Board rejected the defense, noting that the discretion as to amount created precisely the uncertainty that had concerned the Court in Katz. Id.
14
Consistently with Oneita, the Board held in Anaconda Ericsson, Inc., 261 NLRB 831 (1982), that an employer could unilaterally withhold wage increases that had been granted annually for the past five years but which were "apparently" discretionary as to amount. Id. at 834.
15
Oneita and Anaconda thus suggest a quite coherent line. Where the company unilaterally persisted in a pattern of regular wage increases that were discretionary in amount it lost (Oneita ), and where it unilaterally discontinued such increases it won (Anaconda ). While the outcome here could be reconciled with Oneita on the theory that the employer must bargain whether it wishes to continue or discontinue the practice, it cannot readily be reconciled with Anaconda.
16
The Board makes only a cursory attempt to distinguish this case from Anaconda, repeating verbatim in its brief the three distinctions advanced in its decision below: "in Anaconda ... the employer lawfully withheld wage increases where the amounts were discretionary, the parties during negotiations had begun bargaining over wages, and the union did not unconditionally agree to the wage increase." Board Decision, 304 NLRB No. 63 at 4; Respondent's Brief at 18. None of these three factors seems to explain the different outcomes.
17
First, here as in Anaconda the ALJ found that the raise amounts were discretionary. This is, then, no distinction at all. The Guild argues that here the raises are not in fact discretionary because the company used a standardized rating system to evaluate employee performance. Intervenor's Brief at 3-6. But the rating system would contradict the discretionary character of the raises only if (a) the ratings themselves were substantially free of subjectivity, and (b) specific ratings corresponded systematically with specific percentage increases. In fact, however, the ratings simply involved four vague rankings (Fails to meet standards; Needs improvement to meet standards; Meets standards; and Exceeds standards; see id. at 4), and the Guild does not even claim that each ranking carried a fixed percentage. On this score, then, the case is indistinguishable from Anaconda.
18
Second, the extent of bargaining over wages before the discontinuance appears roughly identical in both cases. In Anaconda the union demanded the discretionary increase, saying that if it were inadequate the union would negotiate for more. The company replied that it would give no increase "unless [it were] negotiated, that the Union had not yet presented its wage demands, and that [the company] would not negotiate on the basis of a retroactive increase." 261 NLRB at 834. The union replied with a demand for an 85-cent wage increase, to which the company responded with a 5-cent offer. Except for a "brief discussion ... concerning the future of the current incentive wage plan", there was no further colloquy. Id.
19
Here, similarly, the parties were directly at loggerheads over the discretionary wage increase but did not get into bargaining over other aspects of potential wage dispute. Although here there was no parallel to the exchange in Anaconda of an 85-cent demand and a 5-cent offer, the cases are similar in that in neither was there anything like bargaining to an impasse, which would have ended the employer's duty to maintain established conditions. See Gorman, supra, at 445-50. Thus the distinction between the two cases appears trivial. Moreover, the Board has nowhere explained why different amounts of pretermination wage bargaining should lead to different outcomes.
20
Third, the Guild no more waived its right to bargain over the increase here than did the union in Anaconda. The Guild's own post-hearing brief explicitly contradicts the Board's finding of waiver, saying, "Although the Guild told the Employer it expected the paper to continue exercising its discretion, the Guild would retain the right to demand to bargain over specific merit raises." J.A. at 60 n. 8. The record is quite consistent with the Guild's claim. Its representative said that it wanted "current ... conditions to prevail. For example, if currently an employee gets four percent, they should not get one percent." Id. at 208-09. This indicates that as stated in the Guild's post-hearing brief, it reserved its right to negotiate over the amounts of individual raises. This seems to closely track the union's position in Anaconda--its insistence that if the discretionary increases were inadequate it would negotiate for more. See 261 NLRB at 834. Even without regard to the Board's traditional position that waiver of a bargaining right can be found only on a "clear and unmistakable" showing, see Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983); Intermountain Rural Elec. Ass'n, 305 NLRB No. 107 (1991) at 4; Leland Stanford Jr. University and United Stanford Workers, SEIU, 307 NLRB No. 8 (1992), we cannot find substantial evidence of the supposed waiver.
21
We note, in any event, that the Board's understanding of the role of waiver is unclear. Since Katz requires the employer to consult the union before granting discretionary wage increases, waiver by the Guild would have allowed the company to do so if it wished. But it is not clear under Katz why such a waiver should force the company to grant the increases against its will, as the Board asserts. Respondent's Brief at 15-16.
22
As none of the three factors named by the Board serves to distinguish Anaconda, the Board appears either to have altered course without the "reasoned analysis" required for such a switch, Greater Boston, 444 F.2d at 852, or, if the Central Maine line of cases has the meaning that the Board now suggests, see above at 1573-74, to have been hopping at random from one view to another. We therefore remand the case to the Board for consideration of whether an employer is bound under Katz to persist in a merit raise program that is entirely discretionary as to amount.
23
* * * * * *
24
There are two issues that no party has raised but that the Board may wish to address on remand because of their obvious bearing on the internal logic of the Board's policy. The first relates to the remedy that the Board may afford if the employer's conduct violated § 8(a)(5), the second to the relation between the rule against unilateral changes (as in Katz ) and the doctrine that both union and employer are free to use economic weapons of their own choice in the bargaining process. See NLRB v. Insurance Agents' International Union, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960); American Ship Building Co. v. NLRB, 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965).
25
1. Remedy. It will be recalled that in Katz Justice Brennan had expressed particular concern that if an employer pressed ahead with discretionary wage increases there "simply is no way ... for a union to know whether or not there has been a substantial departure from past practice." 369 U.S. at 746, 82 S.Ct. at 1113. Given employer discretion over the amount of the increase, the union can find no benchmark against which to measure the raises offered. The ALJ in Anaconda Ericsson noted that the uncertainty had an impact on the remedy, observing that "the General Counsel does not suggest what relief might be appropriate, where, as here, the amount of the increase apparently is discretionary." 261 NLRB at 834. Given the ALJ's finding here that the amounts of raises in the past practice were "totally discretionary", J.A. 69, it is altogether unclear how the ALJ or the Board would enforce its order that the News pay the employees "the difference between their actual wages and the wages they would have otherwise received", id. at 101, as the latter by hypothesis are unascertainable.
26
2. Relation to doctrine on parties' choice of economic weapons. Two leading decisions of the Supreme Court have emphatically denied the Board the power, under the guise of enforcing the duty to bargain in good faith, to "regulate what economic weapons a party [to the bargaining] might summon to its aid." Insurance Agents' Int'l Union, 361 U.S. at 490, 80 S.Ct. at 427. There the Court treated the Board's effort to draw some distinction between "proper and 'abusive' economic weapons" as an impermissible entry of the Board "into the substantive aspects of the bargaining process." Id. at 497-98, 80 S.Ct. at 431-32; see also American Ship Building Co. v. NLRB, 380 U.S. at 317-18, 85 S.Ct. at 967 (quoting above statement).
27
In Insurance Agents' a union had mobilized its members in certain "harrassing tactics" that involved failure to perform substantial parts of their duties and that the Court assumed were not "protected" activities under the Act. See 361 U.S. at 480, 492, 80 S.Ct. at 422, 428. The Board held that the union's activities were a refusal to bargain collectively in violation of § 8(b)(3), but the Court reversed. The obligation to bargain in good faith did not, it found, encompass a duty to refrain from measures putting economic pressure on the employer, even where the measures were not explicitly protected by the Act, as a strike would have been. 361 U.S. at 492-96, 80 S.Ct. at 428-31. The Court emphatically rejected any idea that the Act gave the Board a general power to judge the permissibility of either side's economic weapons.
28
In American Ship Building the Court extended the Insurance Agents' analysis to an employer 's choice of economic weapons, to wit, a lockout. Although the Board's findings related only to claims under §§ 8(a)(1) & 8(a)(3), the complaint had asserted a violation of § 8(a)(5) as well, and the Court went out of its way to state that the Insurance Agents' reasoning "has even more direct application to the § 8(a)(5) question." 380 U.S. at 306 n. 5, 85 S.Ct. at 961 n. 5. We have applied American Ship Building to a lockout occurring before impasse, finding it valid so long as it was justified by " 'legitimate and substantial' business" interests and its impact on employees was "comparatively slight"1 and there was no showing of anti-union motive. Lane v. NLRB, 418 F.2d 1208, 1212 (D.C.Cir.1969). If the legitimacy of a pre-impasse lockout depends upon whether the employer's legitimate and substantial business interests outweigh the resulting impairment of employee rights, i.e., if a pre-impasse lockout is subjected to the balancing test announced in Great Dane, then it makes no sense to have a per se ban on decreasing wages or benefits, which is clearly a less drastic economic weapon. Such a policy defies not only logic but also the Supreme Court's admonition in Insurance Agents' not to distinguish a "greater" economic weapon, such as a strike or lockout, from a "lesser" economic weapon. Although the Board has since struck down employer use of the "lesser" economic weapon of a wage or benefit decrease as per se unlawful, Borden, Inc., 196 NLRB 1170 (1972), and we have upheld a Board order on similar reasoning, see Local 155, Int'l Molders and Allied Workers Union v. NLRB, 442 F.2d 742, 748 (D.C.Cir.1971), the Board, if it addresses this issue, may want to consider Professor Gorman's observations on those decisions:
29
The attempt in these appellate and Board cases to distinguish away the Supreme Court decisions in Insurance Agents' and American Ship Building is not wholly persuasive, and their discussion concerning the "lesser" or "greater" impact of the lockout in comparison to the denial of economic benefits invites the conclusion that the tribunal deciding the case was engaging in the kind of "picking and choosing" among allowable economic weapons for which the Board was reprimanded in those two Supreme Court decisions.
30
Gorman, supra, at 434.
31
* * * * * *
32
The Board's finding of a violation of § 8(a)(5) in the News's discontinuance of periodic but discretionary merit raises conflicts with its precedents; we remand the case for the Board to consider that conflict. We invite the Board in the course of reconsideration to address the consistency of the remedy (if any) with the reasoning of Katz and the relation of its analysis to the doctrine of Insurance Agents' and American Ship Building.
33
So ordered.
1
Thus negating a claim that the lockout was "inherently destructive" of employee rights under NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 27, 87 S.Ct. 1792, 1794, 18 L.Ed.2d 1027 (1967) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/990201/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RACHEL COLLINS, individually and as
Administrator (Personal
Representative) of the Estate of
John Henry Collins,
Plaintiff-Appellant,
v.
No. 95-2805
RJ REYNOLDS TOBACCO COMPANY;
THE AMERICAN TOBACCO COMPANY,
Defendants-Appellees,
and
RJR NABISCO, INCORPORATED,
Defendant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CA-94-1563-3-17)
Argued: June 6, 1996
Decided: August 12, 1996
Before WILLIAMS and MICHAEL, Circuit Judges, and
JACKSON, United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: David Edward Belding, Columbia, South Carolina, for
Appellant. Carl Belden Epps, III, TURNER, PADGET, GRAHAM &
LANEY, P.A., Columbia, South Carolina; Christopher James Daniels,
NELSON, MULLINS, RILEY & SCARBOROUGH, Columbia,
South Carolina, for Appellees. ON BRIEF: William A. Wehunt,
Jonesboro, Georgia, for Appellant. CHADBOURNE & PARKE,
L.L.P., New York, New York, for Appellee American Tobacco;
JONES, DAY, REAVIS & POGUE, Washington, D.C., for Appellee
R.J. Reynolds Tobacco.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Rachel Collins brought a wrongful death and personal
injury action against Appellees after her husband, John Henry Collins
("Collins"), died of chronic obstructive pulmonary disease ("COPD").
She appeals the district court's granting summary judgment against
her. For the following reasons, we affirm the district court's ruling.
I.
Appellant is a Georgia resident, as was her husband. In his capacity
as a truck driver, Collins travelled throughout the United States, occa-
sionally accompanied by his son. Collins began smoking Appellees'
cigarettes in 1949. Appellant claims that Collins bought a significant
amount of Appellees' cigarettes on his weekly truck trips through
South Carolina; she further claims that he smoked some of the ciga-
rettes in that state.
On October 3, 1986, in Georgia, a doctor advised Collins to stop
smoking because Collins had performed poorly on pulmonary func-
2
tion tests. The same year, Collins acknowledged that he had a history
of emphysema. On February 25, 1987, Collins entered a hospital in
Georgia for treatment of respiratory distress. The medical records
show that he exhibited signs of COPD and that doctors advised him
that he must quit smoking. (J.A. at 189-92.) On July 7, 1991, Collins
died of COPD in Atlanta. (J.A. at 179.)
Appellant filed this action on June 2, 1994; service was effective
on July 3 of that year. Appellees are non-South Carolina corporations
that manufacture and market cigarettes in South Carolina. The district
judge granted summary judgment for Defendants-Appellees on the
ground that the South Carolina "door-closing statute" deprived the
court of subject-matter jurisdiction. S.C. CODE ANN. § 15-5-150 (Law.
Co-op. 1977). In the alternative, he found that the action was time-
barred. (J.A. at 164-78.)
The court of appeals reviews the district court's granting of sum-
mary judgement de novo. Farwell v. Un , 902 F.2d 282, 287 (4th Cir.
1990). Summary judgment is appropriate when "the pleadings, depo-
sitions, 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 judgment as
a matter of law." Fed. R. Civ. P. 56(c). We construe all facts and draw
reasonable inferences in the nonmovant's favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
II.
A.
South Carolina's door-closing statute precludes a nonresident of
the state from bringing suit in South Carolina against a foreign corpo-
ration unless the cause of action arises in the state or the state is the
site of the subject of the action. See Nix v. Mercury Motor Express,
Inc., 242 S.E.2d 683, 684-85 (S.C. 1978). The preliminary question
presented is whether the cause of action arose in South Carolina for
purposes of the statute. Appellant claims that Collins's purchase and
use of cigarettes in South Carolina is sufficient to establish jurisdic-
tion. We disagree.
3
This Circuit has not decided the issue of how to analyze contacts
with the forum in this context. We need not reach this question, how-
ever, because we are persuaded that Collins maintained insufficient
contact with South Carolina to overcome application of the door-
closing statute. Collins was a life-long resident of Georgia. He was
treated for COPD in Georgia and died in Georgia. His purchase and
use of cigarettes in South Carolina, which remains unproven except
for an insignificant percentage of the total packages he bought and
consumed throughout the country, is too tenuous to qualify as "caus-
ing" death in the instant case.
To highlight the insufficiency of Collins's contacts with South Car-
olina, Appellees point out that Appellant's deposition proves only that
Collins purchased one carton of cigarettes in South Carolina. (J.A. at
73.) Though Appellant stated in an affidavit that"almost all" of Col-
lins's cigarettes were purchased in that state, she refuted that assertion
at deposition, when she testified that the statement in the affidavit had
not been based on personal knowledge. She testified instead that she
had never observed Collins purchase cigarettes in South Carolina, but
had merely seen him smoking cigarettes at home that he had bought
in South Carolina and saw one carton of cigarettes with a South Caro-
lina stamp on it. (J.A. at 73, 76-78.) Similarly, Appellant's reliance
on the personal knowledge of the Collins's son Dexter is weak. Dex-
ter testified vaguely that he had witnessed his father buy some cartons
of cigarettes in South Carolina. This statement loses its potential
weight by Dexter's failure to distinguish Collins's purchases in South
Carolina from those he witnessed throughout the United States. (J.A.
at 92-105.)
We are further persuaded that Appellant cannot sue in South Caro-
lina by the considerations noted in Szantay v. Beech Aircraft Corp.,
349 F.2d 60 (4th Cir. 1965). In Szantay, we held that courts must bar
actions under the door-closing statute unless they find affirmative
countervailing federal considerations. Id. at 64. We refused to apply
the door-closing statute in that case in light of the following counter-
vailing federal considerations: (1) the purpose in granting diversity
jurisdiction, which was to avoid discrimination against nonresidents;
(2) the policy of encouraging a state to enforce the laws of its sister
states; (3) the inability to serve one of the defendants outside South
Carolina. Id. at 65. The importance of the last factor is paramount. In
4
Bumgarder v. Keene Corp., 593 F.2d 572 (4th Cir. 1979), we barred
an asbestosis action under the door-closing statute when the plaintiff,
a nonresident, could have maintained a suit in North Carolina, where
he lived, worked, and was exposed to asbestos. We barred a personal
injury claim on the same ground in Proctor & Schwartz, Inc. v.
Rollins, 634 F.2d 738 (4th Cir. 1980). We noted that the plaintiff's
choice of forum had been dictated by South Carolina's relatively long
statute of limitations, compared to Georgia, id. at 739, and found it
inconsequential that the statute of limitations in Georgia had elapsed:
"A plaintiff's failure to timely file suit in the more logical, convenient
forum does not constitute a countervailing consideration favoring the
exercise of federal jurisdiction." Id. at 740.
In the instant case, Georgia clearly constitutes an alternative forum
for Appellant, whose husband lived, received medical treatment, and
died there. Following Rollins, we find that the fact that the statute of
limitations in Georgia has lapsed is insufficient to overcome barring
this action under the door-closing statute. The district court properly
held that it lacked subject-matter jurisdiction over Appellees.
B.
Alternative grounds also existed to grant the motion for summary
judgment as to both the personal injury and wrongful death claims.
First, Appellant has no right to bring a claim pursuant to the South
Carolina wrongful death statute. In addition, we agree with the district
court's finding that Appellant's personal injury claim is time-barred.
The South Carolina wrongful death statute tests the right of an
administrator to maintain an action on behalf of a decedent by deter-
mining whether the decedent could have maintained an action for the
injury, had he or she survived. S.C. CODE ANN. § 15-51-10 (Law. Co-
op. 1977); Nix v. Mercury Motor Express, Inc. , 242 S.E.2d 683, 685
(S.C. 1978) (stating rule). This question returns us to our previous dis-
cussion concerning whether the cause of action arose in South Caro-
lina for purposes of the door-closing statute. See supra part II.A. For
the same reasons that we hold that the door-closing statute bars the
action, we find that the Appellant had no right to file a claim against
Appellees under the South Carolina wrongful death statute.
5
As to the personal injury claim, the parties agree that South Caro-
lina law, which provides a statute of limitations of six years for claims
arising prior to April 5, 1988, applies. S.C. CODE ANN. § 15-3-530(5)
(Law. Co-op. Supp. 1995). The parties disagree as to the date of
accrual, which the statute defines as the date the decedent knew or by
exercise of reasonable diligence should have known that he had a
cause of action. S.C. CODE ANN. § 15-5-535 (Law. Co-op. Supp.
1995). Statutes of limitations on personal injury actions concerning
chronic diseases begin to run at diagnosis. Guy v. E.I. DuPont de
Nemours & Co., 792 F.2d 457, 459 (4th Cir. 1986). The time is tolled
for eight months after death. S.C. CODE ANN. § 62-3-109 (Law. Co-
op. 1987).
The district court found that the cause of action accrued on October
3, 1986. It reasoned that Collins effectively learned that he suffered
from pulmonary disease on that date because of his poor pulmonary
function tests and his doctor's advice to stop smoking. Accounting for
the eight-month tolling of the statute, the district judge properly found
that the statute of limitations lapsed on June 3, 1993, one year before
Appellant filed the action.
Appellant argues that Collins did not know that smoking caused his
injury.* However, while it is unclear whether the doctor formally
diagnosed Collins with COPD on October 3, 1986, the medical
records reveal that he told Collins of the poor pulmonary function test
results and that Collins should stop smoking. The inference between
proposed treatment of respiratory distress and the underlying diagno-
sis should have been obvious to Collins. Collins also acknowledged
his history of emphysema that same year. Accordingly, the district
court properly found that the claim was time-barred.
AFFIRMED
_________________________________________________________________
*Collins died of COPD. During his lifetime, doctors discussed Col-
lins's history of emphysema and the pulmonary distress from which he
was suffering. At oral argument, Appellant argued that causes of action
should not accrue until individuals are apprised of the exact disease that
caused death. We are unpersuaded by this argument. Regardless, since
COPD is a form of emphysema, the argument is unavailing.
6 | 01-03-2023 | 07-03-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/990202/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5578
DAVID LYNN ROGERS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Chief District Judge.
(CR-94-38-F)
Submitted: July 30, 1996
Decided: August 23, 1996
Before HAMILTON and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
W. James Payne, POWELL & PAYNE, Shallotte, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Eric Even-
son, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Following a jury trial, David Lynn Rogers was convicted of one
count of conspiracy to distribute and possess with intent to distribute
marijuana in violation of 21 U.S.C. § 841(a)(1) (1988), and one count
of criminal forfeiture pursuant to 21 U.S.C. § 853(a)(1), (2) (1988).
Rogers appeals his conviction on several grounds. We find no merit
to his claims; consequently, we affirm.
From 1990 to 1994, Kenneth Spence, Ronnie Musselwhite, and
others were involved with buying marijuana in Louisiana, Alabama,
and Texas, and bringing it to North Carolina and South Carolina for
distribution. Rogers became involved in 1992 when Musselwhite
introduced him to Spence. Rogers began regularly buying between ten
and thirty pounds of marijuana from Spence. Later, Rogers and his
nephew, Keith Rogers, began meeting with Spence and Spence's girl-
friend, Crystal Lazarus, to make purchases of up to forty pounds of
marijuana at a time. These transactions continued through 1994.
Sometimes, Rogers also bought marijuana directly from Musselwhite
from shipments Musselwhite was delivering to Spence. Rogers con-
tinued doing business with both Musselwhite and Spence even after
Spence stopped dealing directly with Musselwhite.
Rogers also had dealings with other people, including Russell Mil-
ler, who sold him marijuana. At other times, Rogers sold Miller mari-
juana he had obtained from Musselwhite.
In September 1993, Musselwhite became an informant for the
North Carolina State Bureau of Investigation ("NCSBI"). In this
capacity, he tape recorded a conversation with Rogers in which they
discussed Musselwhite's loan of shotguns to an unnamed person later
identified as Spence and the arrest of a man in Wilmington, North
Carolina, who had more than 300 pounds of marijuana and $118,000
2
in his possession at the time of the arrest. Rogers stated that he knew
that the marijuana had come from the same supplier he had used by
the way it had been packaged. During Rogers' jury trial, portions of
the tape recorded conversation were played for the jury.
The criminal investigation continued into 1994. In early December
1994, Spence's source in Texas delivered between 100 and 200
pounds of marijuana to Spence, who in turn gave Rogers and his cou-
sin seventy-five and one quarter pounds for which they were to pay
him $1000 per pound. Rogers paid $25,000 a few days later. When
Spence was arrested shortly thereafter, his billfold contained a record
stating that "KD" owed him $50,250. Spence testified that the nota-
tion meant that Keith and David Rogers owed him $50,250. During
a warranted search of Spence's home, police found David Rogers'
business card with the pager numbers of both David and his cousin.
The jury convicted Rogers of conspiracy to possess with intent to
distribute marijuana and the court sentenced him to 121 months in
prison. Rogers timely appealed.
I.
Pursuant to Fed. R. Crim. P. 29, Rogers filed a motion for a judg-
ment of acquittal, which the trial court denied. The court then
instructed the jury regarding both single conspiracies and multiple
conspiracies. On appeal, Rogers claims that the district erred in deny-
ing his motion for judgment of acquittal because the evidence at trial
established multiple conspiracies rather than the single conspiracy
charged in the indictment.
The Government bears the burden of proving a single conspiracy
charged in an indictment. United States v. Hines , 717 F.2d 1481, 1489
(4th Cir. 1983), cert. denied, 467 U.S. 1214 (1984), and cert. denied,
467 U.S. 1219 (1984). Whether the evidence shows a single conspir-
acy or multiple conspiracies, however, is a question of fact and is
properly the province of the jury. United States v. Banks, 10 F.3d
1044, 1051 (4th Cir. 1993), cert. denied, ___ U.S. ___, 62 U.S.L.W.
3755 (U.S. May 16, 1994) (No. 93-8404), and cert. denied, ___ U.S.
___, 62 U.S.L.W. 3825 (U.S. June 13, 1994) (No. 93-8056); United
States v. Urbanik, 801 F.2d 692, 695 (4th Cir. 1986). "A single con-
3
spiracy exists where there is `one overall agreement,' . . . or `one gen-
eral business venture.' Whether there is a single conspiracy or
multiple conspiracies depends upon the overlap of key actors, meth-
ods, and goals." United States v. Leavis, 853 F.2d 215, 218 (4th Cir.
1988) (citations omitted). Where a jury is properly instructed regard-
ing a single versus multiple conspiracies, a finding of a single con-
spiracy must stand unless the evidence, taken in the light most
favorable to the Government, would not allow a reasonable jury to
reach such a conclusion. United States v. Camps , 32 F.3d 102, 104
(4th Cir. 1994), cert. denied, ___ U.S. ___, 63 U.S.L.W. 3626 (U.S.
Feb. 21, 1995) (No. 94-6853). Here, the record discloses sufficient
evidence for a reasonable jury to find Rogers guilty of participating
in a single conspiracy.
The Government presented several witnesses who testified about
drug trafficking activities from Texas to the Carolinas from 1990 to
1994. Although Rogers claims that nobody participated in the con-
spiracy from beginning to end, Spence testified that his involvement
continued to some extent throughout the entire time span. When Rog-
ers became involved in the drug activities in 1992, he purchased mari-
juana from both Spence and Musselwhite. The evidence showed that
Rogers knew the conspiracy's main purpose and voluntarily partici-
pated in it. A reasonable jury could find from the evidence presented
at trial that all of the co-conspirators in the Carolinas worked with
each other to obtain large quantities of marijuana from Texas. The
fact that the co-conspirators may have competed with one another for
supplies or customers does not disprove the existence of a single con-
spiracy. Banks, 10 F.3d at 1054. Consequently, the district court did
not err by denying Rogers' Rule 29 motion.
II.
Over Rogers' objections, the district court allowed the Government
to introduce at trial the tape recorded conversation between Mussel-
white and Rogers. As the Government notes, Rogers does not object
to the introduction of his portions of the taped conversation; rather,
he objects to the introduction of Musselwhite's statements as inadmis-
sible hearsay.
The taped conversation was introduced as Rogers' statement. Mus-
selwhite's portion of the conversation was needed to enable the jury
4
to comprehend the context in which Rogers made his statements.
Thus, Musselwhite's statements were offered not for the truth of the
matters he asserted, but rather to enable the jury to understand Rog-
ers' statements.
Rogers' taped statements were admissible as statements against
interest under Fed. R. Evid. 801(d)(2)(A). Musselwhite's statements
were admissible to establish the context of Rogers' statements and, as
such, were not hearsay. Therefore, the district court did not exceed its
discretion by admitting the tapes into evidence. United States v.
McDowell, 918 F.2d 1004, 1007 (1st Cir. 1990); cf. United States v.
Whittington, 26 F.3d 456, 465 (4th Cir. 1994) (absent extraordinary
circumstances or clear abuse of discretion, appeals court will not
interfere with trial court's evidentiary rulings).
III.
The district court attributed 2000 pounds of marijuana to Rogers
for sentencing purposes. On appeal, Rogers challenges his sentence
calculations, claiming that the district court attributed too much mari-
juana to him.
In drug cases, a "defendant is accountable for all quantities of con-
traband with which he was directly involved and, in the case of a
jointly undertaken criminal activity, all reasonably foreseeable quanti-
ties of contraband that were within the scope of the criminal activity
that he jointly undertook." United States Sentencing Commission,
Guidelines Manual, § 1B1.3, comment. (n.2) (Nov. 1994). A defen-
dant is liable for the acts of his co-conspirators if those acts "fall
within the scope of" the criminal agreement, even if the defendant and
his co-conspirators have not expressly agreed to undertake any partic-
ular act. United States v. Irvin, 2 F.3d 72, 75 (4th Cir. 1993), cert.
denied, ___ U.S. ___, 62 U.S.L.W. 3552 (U.S. Feb. 22, 1994) (No.
93-7103). The Government must establish by a preponderance of the
evidence that a particular amount of drugs may be attributed to a par-
ticular defendant for sentencing purposes. United States v. McDonald,
61 F.3d 248, 255 (4th Cir. 1995). The government may meet its bur-
den by pointing to evidence adduced at trial, and the sentencing court
may consider other reliable evidence without regard to whether it was
or could have been admitted at trial. Cf. id. On appeal, the sentencing
5
court's determination of the quantity of drugs attributable to a defen-
dant must be upheld unless clearly erroneous. United States v.
Fletcher, 74 F.3d 49, 55 (4th Cir. 1996), petition for cert. filed, ___
U.S.L.W. ___ (U.S. June 24, 1996) (No. 95-9447).
Rogers' claim that the district court attributed too much marijuana
to him is without merit. The court attributed to Rogers only the
amount of marijuana he received from Musselwhite and Spence. At
the sentencing hearing, Agent Netherland of the North Carolina State
Bureau of Investigation testified that Musselwhite said he had distrib-
uted 1000 pounds of marijuana to Rogers and Spence said he had dis-
tributed 1000 to 1500 pounds of marijuana to Rogers. Although
Rogers claims that Netherland was unable to corroborate these esti-
mates, the agent testified that the amount Spence claimed to have dis-
tributed to Rogers was consistent with the amount Musselwhite said
was distributed at that time. Furthermore, he noted that Crystal Laza-
rus witnessed many of the transactions and therefore could corrobo-
rate Spence's estimates, and that Russell Miller, who dealt with
Musselwhite through Rogers, could verify Rogers' participation in the
drug distributions. Finally, Netherland said that the co-conspirators
with whom he spoke had given consistent statements about their par-
ticipation in the conspiracy and that he had "no reason to doubt . . .
that they would be incorrect on this one individual." In light of the
evidence, we find that the district court did not clearly err in attribut-
ing 2000 pounds of marijuana to Rogers.
IV.
Rogers argues that the district court should have granted him a
two-level decrease in his offense level for being a minor participant
in the conspiracy. See U.S.S.G. § 3B1.2(b) (Nov. 1994). He claims he
is entitled to a lower offense level because he did not become
involved in the conspiracy until "very late" in its existence and was
involved only in the lower echelon of the enterprise. These claims are
without merit.
A minor participant, for purposes of U.S.S.G. § 3B1.2(b), is "any
participant who is less culpable than most other participants."
U.S.S.G. § 3B1.2, comment. (n.3). This Court will not disturb a dis-
trict court's denial of a decrease in offense level under U.S.S.G.
6
§ 3B1.2(b) unless that decision was clearly erroneous. United States
v. Terry, 86 F.3d 353, 358 (4th Cir. 1996).
Here, although Rogers did not join the conspiracy until two years
after its inception, he was an active participant from that point on
until his arrest. In general, a drug seller in a drug conspiracy cannot
be considered a minor participant. United States v. Brooks, 957 F.2d
1138, 1149 (4th Cir.), cert. denied, 505 U.S. 1228 (1992). Evidence
presented at trial showed that Rogers' involvement in the conspiracy
included not only buying and selling marijuana, but also arranging for
financing for drug transactions. In light of this evidence, the district
court's refusal to characterize Rogers as a minor participant was not
clearly erroneous.
V.
For these reasons, we affirm Rogers' conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the Court and argu-
ment would not aid the decisional process.
AFFIRMED
7 | 01-03-2023 | 07-03-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560434/ | 945 A.2d 1099 (2008)
John H. BENGE, Jr., Defendant Below-Appellant,
v.
STATE of Delaware, Plaintiff Below-Appellee.
No. 262, 2007.
Supreme Court of Delaware.
Submitted: December 7, 2007.
Decided: January 25, 2008.
Reargument Denied April 4, 2008.
John H. Benge, Jr., pro se.
Loren C. Meyers, Esquire, Department of Justice, Wilmington, Delaware, for appellee.
Before STEELE, Chief Justice, HOLLAND and BERGER, Justices.
HOLLAND, Justice.
The defendant-appellant, John H. Benge, Jr., filed an appeal from the Superior Court's May 2, 2007 order denying his motion for postconviction relief pursuant to Superior Court Criminal Rule 61 and for correction of an illegal sentence pursuant to Superior Court Criminal Rule 35(a). We find no merit to the appeal. Accordingly, we affirm.
Facts
In August 2003, Benge was found guilty by a Superior Court jury of Assault in the Second Degree, Offensive Touching, and Criminal Trespass in the First Degree. The convictions were affirmed on direct appeal.[1] Three charges that had been severed from the original indictment were set for trial in January 2004. On the day of trial, Benge pleaded guilty to all three charges, consisting of two counts of Criminal Contempt of a Domestic Violence Protective Order and one count of Possession of a Deadly Weapon by a Person Prohibited. Benge was sentenced to fifteen days at Level V on each of the criminal contempt convictions. On the weapon conviction, he was sentenced to two years at Level V, to be suspended after six months *1101 for probation. Benge did not file a direct appeal from those convictions.
Issues on Appeal
In this appeal from the Superior Court's denial of his Rule 61 and Rule 35(a) claims, Benge argues that the Superior Court improperly determined that: first, his challenge to his guilty plea was procedurally defaulted and there was no evidence that he had been prejudiced by error committed at the plea colloquy; second, his double jeopardy claim was procedurally defaulted and had been waived at the time the guilty plea was entered; third, his claim of an illegal sentence under Apprendi v. New Jersey,[2] was time-barred and meritless; and fourth, his claim that the prosecutor breached the plea agreement was procedurally defaulted and meritless.
Guilty Plea
Benge's first claim is that the Superior Court improperly ruled that his challenge to his guilty plea was procedurally defaulted and that the procedural default could not be overcome in the absence of any evidence that Benge was prejudiced by error committed during the plea colloquy. The Superior Court correctly determined that Benge's challenge to his guilty plea was procedurally defaulted because it had not been raised on direct appeal.[3] Moreover, the Superior Court correctly determined that Benge had failed to overcome the procedural default. While it is true that the guilty plea form and statements by the sentencing judge erroneously reflected a possible maximum sentence of two, rather than eight, years at Level V, Benge, in fact, was sentenced to only two years at Level V. Thus, in the absence of any evidence of prejudice as a result of the error, the Superior Court properly denied this claim.[4]
Double Jeopardy
Benge's second claim is that Superior Court improperly ruled that his double jeopardy claim was procedurally defaulted and had been waived at the time he entered his guilty plea. Again, the Superior Court correctly determined that Benge's double jeopardy claim was procedurally defaulted because it had not been raised on direct appeal.[5] Moreover, the record reflects that, prior to trial, Benge's attorney filed a motion to dismiss the criminal contempt and weapon charges on the ground of multiplicity. When the judge raised the issue during the guilty plea colloquy, Benge's attorney stated, ". . . we're waiving that. . . ." Likewise, at the sentencing hearing, Benge's attorney stated, ". . . my client has waived . . . those arguments premised upon what he believes is a fair sentencing recommendation by the State. . . ." Under Delaware law, a voluntary guilty plea constitutes a waiver of any alleged errors or defects occurring prior to the entry of the plea, including a multiplicity defect.[6] In the absence of any evidence that his plea was involuntary, and in light of his attorney's express waiver of any multiplicity defect, we conclude that the Superior Court properly denied this claim.
Apprendi Claim
Benge next argues that the Superior Court improperly rejected his claim of an Apprendi violation on the grounds of *1102 untimeliness and lack of merit. The Superior Court correctly determined that Benge's Apprendi claim, which was a claim that his sentence was imposed in an illegal manner, was time-barred[7] and correctly determined that Benge's Apprendi claim was without merit in any case. In Apprendi, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."[8] In Harris v. United States, the Court refined that principle by holding that a jury need not consider facts that impact the length of a sentence that is within the statutory range.[9] In addition, this Court has ruled that Apprendi and its progeny do not impact the Delaware sentencing scheme due to the voluntary and nonbinding character of the Truth in Sentencing guidelines.[10] Thus, for all of the above reasons, we conclude that the Superior Court properly denied this claim.
Plea Agreement
Benge's fourth, and final, claim is that the Superior Court improperly ruled that his claim of a violation of the plea agreement by the prosecutor was procedurally defaulted and meritless. The Superior Court correctly determined that Benge's claim of a violation of the plea agreement by the prosecutor was procedurally defaulted because it had not been raised on direct appeal.[11] Moreover, the record reflects that, in exchange for Benge's guilty plea, the State agreed to recommend, and did recommend, a Level V sentence of two years, to be suspended for one year at Level III, on the weapon charge and a Level V sentence of one year, to be suspended after fifteen days at Level III, on each of the criminal contempt charges. At the sentencing hearing, the prosecutor stated that the purpose of the fifteen-day criminal contempt sentences was to place upon the record the fact that Benge had disobeyed a court order. While Benge argues that the statement violated the plea agreement by placing an "aggravating factor" before the judge, the record more reasonably reflects that the statement merely served to explain to the judge the rationale behind the State's sentencing recommendation.[12] Thus, we conclude that the Superior Court judge also properly denied Benge's fourth, and final, claim.
Conclusion
The judgment of the Superior Court is affirmed.
NOTES
[1] Benge v. State, No. 544, 2003, 2004 WL 2742314 (Del. Nov.15, 2004).
[2] Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
[3] Super. Ct.Crim. R. 61(i)(3).
[4] Super. Ct.Crim. R. 61(i)(3)(A) and (B).
[5] Super. Ct.Crim. R. 61(i)(3).
[6] Hall v. State, No. 649, 2006, 2007 WL 3170467 (Del. Oct.30, 2007) (citing Downer v. State, 543 A.2d 309, 312 (Del.1988) (holding that a curable defect may be waived by a voluntary guilty plea)).
[7] Super. Ct.Crim. R. 35(b).
[8] Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
[9] Harris v. United States, 536 U.S. 545, 563-64, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002); Brown v. State, Del.Supr., No. 196, 2002, 2002 WL 31300027, Berger, J. (Oct. 10, 2002) (citing Harris v. U.S., 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002)).
[10] Quandt v. State, No. 28, 2007, 2007 WL 2229017 (Del. Aug.3, 2007) (citing Benge v. State, No. 137, 2004, 2004 WL 2743431 (Del. Nov. 12, 2004)).
[11] Supr. Ct.Crim. R. 61(i)(3).
[12] United States v. Queensborough, 227 F.3d 149, 157-58 (3d Cir.2000). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560666/ | 171 S.W.3d 135 (2005)
Jonathan R. SHUMAKER, Respondent,
v.
DIRECTOR OF REVENUE, State of Missouri, Appellant.
No. WD 64656.
Missouri Court of Appeals, Western District.
September 13, 2005.
*136 Stephanie Davis-Swischer, Nevada, MO, for respondent.
Jeremiah W. (Jay) Nixon, Attorney General, James A. Chenault, III, Special Assistant Attorney General, Jefferson City, MO, for appellant.
Before HOWARD, P.J., SMITH, C.J., and NEWTON, J.
VICTOR C. HOWARD, Presiding Judge.
Jonathan R. Shumaker's driving privileges were revoked pursuant to section 577.041[1] for his refusal to submit to a breath analysis test. On April 28, 2004, Shumaker filed a petition in the Circuit Court of Vernon County seeking an order permanently restraining the revocation of his driving privileges. After a hearing held on July 12, 2004, the trial court found that the Director of Revenue ("the Director") did not prove that Shumaker operated the motor vehicle in question while intoxicated. Thus, the trial court entered a judgment ordering Shumaker's license reinstated and permanently restraining and enjoining the Director from revoking Shumaker's driving privileges.
On appeal from the trial court's judgment, the Director claims that the trial court erred in setting aside the revocation of Shumaker's driving privileges, because the uncontroverted evidence established that the arresting officer had reasonable grounds to believe that Shumaker had been driving while intoxicated. For the reasons below, we reverse and remand.
Background
On April 17, 2004, Shumaker was involved in a one-car, non-injury accident on Route W, north of the Nevada city limits. The Nevada Police Department's radio log indicated that they received a call at 8:03 p.m. informing them that Shumaker was leaving the AM Vet's bar in an intoxicated condition. The police department was advised of Shumaker's accident at 8:22 p.m., and Officer Anders of the Nevada Police Department arrived at the scene of the accident at 8:29 p.m.
Corporal James Wilde ("Trooper Wilde") of the Missouri State Highway Patrol was notified of the accident at approximately 8:40 p.m., and he arrived at the scene at approximately 8:49 p.m. Officer Anders already had Shumaker in handcuffs on the ground next to a white Ford Ranger pickup truck when Trooper Wilde arrived. Officer Anders indicated to Trooper Wilde that Shumaker would not follow his instructions and had attempted to leave the scene, at which point Shumaker was handcuffed.
Trooper Wilde removed the handcuffs and asked Shumaker what had happened, at which point Shumaker indicated that he had swerved to miss a deer. Trooper Wilde detected an odor of intoxicating beverages on Shumaker's breath, and Shumaker indicated that he had drunk one or two beers. Shumaker then agreed to perform a series of field sobriety tests.
*137 Trooper Wilde's Alcohol Influence Report (AIR) pertaining to Shumaker was admitted into evidence at the hearing on Shumaker's petition. The AIR reflects that Shumaker performed: a horizontal gaze nystagmus test, a finger-to-nose test, a Rhomburg internal balance test, counting backwards, and a portable breath test. Shumaker had difficulty following the directions during the horizontal gaze nystagmus test, but he eventually displayed all six indications of being intoxicated. Shumaker had difficulty following the directions during the finger-to-nose test, and he missed the tip of his nose on all attempts. During the Rhomburg internal balance test, Shumaker swayed back and forth and from side to side, and he did not correctly estimate the time duration of the test. Shumaker could not correctly count backwards from 42 to 32, and he blew "well over .08" on the portable breath test. Based on his observations and Shumaker's statements, Trooper Wilde placed Shumaker under arrest for driving while intoxicated, read him his Miranda rights, and transported him to the Vernon County Sheriff's Department.
At the Sheriff's Department, Shumaker agreed to take a breath test, but failed to give a valid sample on both attempts. Trooper Wilde explained to Shumaker that he needed to blow continuously until told to stop. During the first attempt, Shumaker put the entire mouthpiece in his mouth. Shumaker would blow for a short time, stop, and then continue by blowing around the mouthpiece. This resulted in the first invalid sample. Before the second attempt, Trooper Wilde explained to Shumaker that he should only put the tip of the mouthpiece in his mouth and blow through it like a straw. Shumaker again put the entire mouthpiece in his mouth and blew around it, resulting in a second invalid sample. Trooper Wilde considered Shumaker to have refused the breath test.
When questioned at the Vernon County Sheriff's Department, Shumaker claimed to have been at the accident scene for one hour before anyone had arrived, and he stated that he drank two beers during this time. Shumaker indicated that he also drank one beer at AM Vet's between 5:00 and 5:30 p.m. Shumaker said that it was dark when he started driving, so he had to use his headlights. Trooper Wilde checked with radio dispatch and was advised that sunset was at approximately 7:51 p.m. that day.
Shumaker subpoenaed both Officer Anders and Trooper Wilde for the hearing on his petition. However, Officer Anders did not appear, and, although Trooper Wilde appeared, he did not testify because the trial court entered judgment prior to testimony being heard. Trooper Wilde's AIR was admitted into evidence at the hearing. The trial court found that the Director failed to prove that Shumaker was driving while intoxicated because no corroborating evidence was presented that Shumaker was in fact driving the vehicle. The trial court stated on the record that Shumaker's statement, indicating that he was driving the truck, was not sufficient on its own; the statement needed to be corroborated by other evidence in accordance with the rule provided in Kansas City v. Verstraete, 481 S.W.2d 615, 616-17 (Mo.App.1972). Accordingly, the trial court entered its judgment reinstating Shumaker's driving privileges and granting the permanent injunction.
Standard of Review
We will sustain the trial court's judgment "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously *138 applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
Discussion
The Director claims that the trial court erred in setting aside the revocation of Shumaker's driving privileges, because the revocation was proper, in that the uncontroverted evidence established that Trooper Wilde had reasonable grounds to believe that Shumaker had been driving while intoxicated.
Section 577.020.1 provides in relevant part:
Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to, subject to the provisions of sections 577.020 to 577.041, a chemical test or tests of the person's breath ... for the purpose of determining the alcohol or drug content of the person's blood pursuant to the following circumstances:
(1) If the person is arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while in an intoxicated or drugged condition[.]
Refusal to submit to any test allowed pursuant to section 577.020 results in the revocation of the person's license. § 577.041.1. "If a person's license has been revoked because of the person's refusal to submit to a chemical test, such person may petition for a hearing before a circuit or associate circuit court in the county in which the arrest or stop occurred." § 577.041.4. At a hearing held on a petition filed pursuant to section 577.041.4, the Director has the burden of establishing a prima facie case that (1) "the person was arrested or stopped," (2) the officer "had [r]easonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition," and (3) "the person refused to submit to the test." Id. If the trial court determines that one of the three elements has not been established, "it is required to order the reinstatement of driving privileges." Berry v. Dir. of Revenue, 885 S.W.2d 326, 328 (Mo. banc 1994). If the Director makes a prima facie case, the driver has the burden to rebut the elements. Hamor v. Dir. of Revenue, 153 S.W.3d 869, 872 (Mo.App. E.D.2004).
At the hearing on Shumaker's petition, the trial court found that the Director failed to prove by sufficient evidence that Shumaker was driving because there must be some evidence to corroborate Shumaker's statements in order to prove that he was driving. By its specific reference to Verstraete, supra, the trial court appears to be applying the "corpus delicti" rule by requiring that Shumaker's statements be corroborated by independent proof. However, Verstraete involved a criminal proceeding, and we have previously held that this rule of evidence in criminal cases does not apply to administrative driver's license proceedings. Tolen v. Mo. Dep't of Revenue, 564 S.W.2d 601, 602 (Mo.App.1978); Tuggle v. Dir. of Revenue, 727 S.W.2d 168, 169 (Mo.App. W.D.1987). In administrative proceedings, the trial court may admit and rely on the driver's "extrajudicial statement to prove that police officers had reasonable grounds to believe that a suspect had operated his motor vehicle while intoxicated" without independent proof of the corpus delicti. Tuggle, 727 S.W.2d at 169. The trial court erroneously interpreted and misapplied the law. Shumaker's statements that he was driving, without corroboration, could be sufficient to prove that element of the Director's prima facie case.
Also, under section 577.041.4(2)(a), the Director must prove that Trooper Wilde *139 "had reasonable grounds to believe that [Shumaker] was driving a motor vehicle while in an intoxicated or drugged condition." The Director does not, as the trial court implied, have to prove that Shumaker was in fact driving.
The Director presented sufficient evidence to prove that Trooper Wilde had reasonable grounds to believe that Shumaker was driving a motor vehicle while intoxicated. As evidenced by the AIR, police were advised that Shumaker was leaving the AM Vet's bar in an intoxicated condition and, shortly thereafter, that Shumaker had been in an accident. When Trooper Wilde arrived on the scene, approximately twenty-seven minutes after the Nevada police were advised of the accident, Shumaker was in handcuffs sitting next to a white Ford Ranger pickup truck. Shumaker and Officer Anders were the only people at the scene of the accident. Trooper Wilde confirmed Shumaker's identity and asked him what had happened. Shumaker replied that he had swerved to miss a deer. Trooper Wilde noticed the odor of intoxicants and asked Shumaker if he had been drinking. Shumaker replied that he had. Shumaker performed poorly on several field sobriety tests. Based on Shumaker's statements and actions, Trooper Wilde arrested him for driving while intoxicated.
Shumaker also contends that the Director failed to meet its burden because Officer Anders was the arresting officer, not Trooper Wilde, and there was no evidence that Officer Anders reasonably believed that Shumaker was driving while intoxicated. This argument lacks merit. Even though it was Officer Anders who initially arrested Shumaker, Trooper Wilde retained him in custody and performed all of the procedural steps to arrest him for driving while intoxicated. Thus, Trooper Wilde became the arresting officer within the meaning of section 577.041. See Chapman v. McNeil, 740 S.W.2d 701, 703 (Mo.App. S.D.1987) (finding that a highway patrol officer, who "performed the procedural steps outlined in § 577.041," was the arresting officer within the meaning of section 577.041, even if the defendant had already been stopped and his movements controlled by a deputy sheriff on the scene).
Conclusion
The trial court erroneously declared and misapplied the law by reinstating Shumaker's driving privileges. The Director established a prima facie case under section 577.041.4 that: (1) Shumaker was arrested or stopped; (2) Trooper Wilde had reasonable grounds to believe that Shumaker was driving a motor vehicle while in an intoxicated condition; and (3) Shumaker refused to submit to the test. Thus, the trial court's judgment is reversed. Because Shumaker was not afforded the opportunity to rebut the Director's prima facie case, we remand for a new hearing.
SMITH, C.J., and NEWTON, J., concur.
NOTES
[1] Statutory references are to RSMo Cum. Supp.2004. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/716630/ | 81 F.3d 498
UNITED STATES of America, Plaintiff-Appellee,v.Willie James BLAKE, Jr., Defendant-Appellant.
No. 95-5273.
United States Court of Appeals,Fourth Circuit.
Argued Feb. 1, 1996.Decided April 18, 1996.
Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Sr., District Judge. (CR-94-154).
ARGUED: Gregory Davis, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Paul Alexander Weinman, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF: William E. Martin, Federal Public Defender, Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney, Greensboro, North Carolina, for Appellee.
Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded with instructions by published opinion. Judge WILKINS wrote the opinion, in which Judge LUTTIG and Judge MOTZ joined.
OPINION
WILKINS, Circuit Judge:
1
Willie James Blake, Jr. pled guilty to using unauthorized access devices (stolen credit cards) in violation of 18 U.S.C.A. § 1029(a)(2) (West Supp.1995). Blake now challenges his sentence, arguing that the district court erred by enhancing his offense level based on the vulnerability of his victims, see United States Sentencing Commission, Guidelines Manual, § 3A1.1 (Nov.1994), and in departing upward from the applicable guideline range. He also challenges the restitution order imposed by the district court on numerous grounds. We affirm the sentence of imprisonment and term of supervised release, but vacate the restitution order and remand with instructions.I.
2
Blake pled guilty to a one-count indictment charging that he had knowingly and with intent to defraud used ten unauthorized credit cards to obtain items of value. The indictment listed the card numbers and issuing banks, as well as the names of the individuals to whom the cards were issued. The presentence report prepared after Blake entered his plea recommended that pursuant to U.S.S.G. § 2F1.1 Blake's base offense level should be six. It also noted that two specific offense characteristics made him eligible for a three-level enhancement for loss in excess of $10,000 and a two-level enhancement for more than minimal planning. See U.S.S.G. § 2F1.1(b)(1)(2)(A). And, the report recommended that Blake receive a two-level enhancement for targeting unusually vulnerable victims because he had obtained the credit cards by stealing pocketbooks and wallets from elderly women while they were shopping. See U.S.S.G. § 3A1.1. In addition, the report suggested that because Blake had committed the offense as part of a pattern of criminal conduct engaged in as a livelihood, his offense level should not be less than 13. See U.S.S.G. § 4B1.3. It concluded the offense level calculation by recommending that Blake receive a two-level reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1.
3
Blake's criminal history calculation resulted in the attribution of a total of 35 criminal history points, placing him in Criminal History Category VI. See U.S.S.G. Ch. 5, Pt. A. The report further advised, however, that the court should consider whether his Criminal History Category adequately reflected the seriousness of his past criminal conduct or the likelihood that he would commit other crimes and, if not, whether an upward departure would be appropriate. See U.S.S.G. § 4A1.3. The report recommended restitution to the banks that issued the cards for losses sustained as a result of the unauthorized charges and to the individuals from whom the cards were stolen as payment for expenditures they incurred as a result of the thefts, i.e., expenses related to lost property and document replacement. See 18 U.S.C.A. § 3663 (West 1985 & Supp.1995); U.S.S.G. § 5E1.1.
4
Blake raised several objections to the presentence report.1 First, he challenged the vulnerable victim enhancement, arguing that the individuals from whom he stole the credit cards were not victims of his offense of conviction and that even if these people were victims, they were not unusually vulnerable within the meaning of § 3A1.1. The district court concluded that the individuals were victims under this guideline and that Blake specifically targeted elderly persons because they were less able to defend themselves.2 Accordingly, it applied the two-level vulnerable victim enhancement in calculating Blake's adjusted offense level. See U.S.S.G. § 3A1.1.
5
Blake also objected to the application of § 4B1.3 (Criminal Livelihood). The district court adopted the proposed finding in the presentence report that Blake's conduct in the 12 months preceding his arrest made him eligible for application of this section, which mandated that his offense level not be less than 13. Further, it adopted the recommendation that independent of this provision Blake's offense level with enhancements was also 13. Finally, the court adopted the recommendation that Blake receive a two-level reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1. As a result, Blake's adjusted offense level was 11. See U.S.S.G. § 4B1.3.
6
The district court further concluded that Blake's Criminal History Category VI inadequately represented the seriousness of his past criminal conduct. Rejecting Blake's argument that a departure based on criminal history would constitute impermissible double counting of his past criminal conduct because it had already relied on this conduct in applying § 4B1.3, the district court departed upward to offense level 15 and imposed a sentence of 51 months imprisonment. The district court reached level 15 after making specific findings that offense levels 11, 12, 13, and 14, when combined with Criminal History Category VI, were insufficient to represent the seriousness of Blake's past criminal conduct. See U.S.S.G. § 4A1.3; United States v. Cash, 983 F.2d 558, 561 & nn. 6-7 (4th Cir.1992), cert. denied, 508 U.S. 924, 113 S.Ct. 2380, 124 L.Ed.2d 284 (1993).
7
Blake raised further objections to the restitution recommendations contained in the presentence report. First, he maintained that he lacked the ability to pay restitution, arguing that a potentially life-threatening physical condition prevented him from working. In addition, he asserted that he had no real ability to earn a living due to a lifetime of drug abuse.
8
Although acknowledging that Blake might have a condition that affected his present ability to work, the district court made no finding as to the permanency of this condition. It then adopted the recommendation of the presentence report that even though Blake lacked the present ability to pay restitution, he should have the earning capacity sufficient to pay restitution in the future while in prison or on supervised release because he was able-bodied. The district court made no further findings regarding his ability to pay restitution.
9
Blake also objected to the suggested amount of restitution because it included amounts attributable to the persons from whom he stole the credit cards. He asserted that he could not be ordered to pay restitution to these individuals under 18 U.S.C.A. § 3663 because they were not victims of his offense of conviction. Rejecting this argument, the district court ordered restitution in the amount of $1,922.00 to the robbery victims in addition to $13,824.83 to the card issuers. The subsequently entered restitution order stated that Blake would pay the restitution "at such times and in such amounts as directed by the Bureau of Prisons or the U.S. Probation Officer." J.A. 102.
10
Blake now challenges his sentence on several grounds, essentially asserting that the district court erred in rejecting his objections to the presentence report. We address these arguments in turn.
II.
11
Blake first challenges the manner in which the district court applied the sentencing guidelines. We begin by noting that in reviewing the application of the guidelines by a district court, we examine factual determinations for clear error; legal questions, however, are subject to a de novo standard of review. United States v. Singh, 54 F.3d 1182, 1190 (4th Cir.1995).
A.
12
Blake first contends that the district court improperly enhanced his offense level by two levels based on a finding that he targeted unusually vulnerable victims. See U.S.S.G. § 3A1.1. He argues that the persons from whom he stole the credit cards were not victims of his offense of conviction--fraudulent use of unauthorized access devices--and therefore were not properly considered vulnerable victims for the purposes of § 3A1.1. Alternatively, he maintains that even if these individuals are considered victims, they do not meet the standard of vulnerability required for proper application of this enhancement. We disagree.
13
Section 3A1.1 provides for a two-level enhancement "[i]f the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct." The term "offense" is defined as "the offense of conviction and all relevant conduct under § 1B1.3." U.S.S.G. § 1B1.1, comment. (n.1(l )). And, § 1B1.3(a)(1) includes as relevant conduct, inter alia, all acts committed by the defendant in preparation for the offense of conviction. We therefore reject Blake's argument that, for the purpose of § 3A1.1, "a victim of the offense" is only an individual considered a victim of the specific offense of conviction. See United States v. Lee, 973 F.2d 832, 834 & n. 2 (10th Cir.1992); United States v. Yount, 960 F.2d 955, 958 (11th Cir.1992); United States v. Roberson, 872 F.2d 597, 608-09 (5th Cir.), cert. denied, 493 U.S. 861, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989). But see United States v. Bondurant, 39 F.3d 665, 667-668 (6th Cir.1994). As the record clearly indicates, Blake stole pocketbooks and wallets in order to secure credit cards for use in his plan to defraud the card issuers. Such acts unquestionably were conduct committed in preparation for the offense of conviction. Accordingly, we hold that the individuals from whom he stole the credit cards were victims of the offense within the meaning of U.S.S.G. § 3A1.1.
14
Blake also contends that even if the persons from whom he stole the credit cards properly are considered victims under the guidelines, the district court erred in concluding that they were unusually vulnerable victims pursuant to § 3A1.1. Once an individual has been found to be a victim within the meaning of § 3A1.1, proper application of this enhancement requires the existence of two additional elements. First, the victim must have been unusually vulnerable; and second, the defendant must have targeted the victim because of the unusual vulnerability. United States v. Holmes, 60 F.3d 1134, 1136 (4th Cir.1995); Singh, 54 F.3d at 1191. That a victim is elderly, without more, does not justify application of the vulnerable victim enhancement under § 3A1.1. See Lee, 973 F.2d at 834.
15
The district court found that Blake had specifically targeted elderly people who, by virtue of their age, were less physically able to defend themselves during his robbery attempts. Within this context, we conclude that the district court was not clearly erroneous in finding that Blake's victims were unusually vulnerable because of their age and that Blake targeted them due to this vulnerability. See United States v. Seligsohn, 981 F.2d 1418, 1426 (3d Cir.1992). Accordingly, we find application of the § 3A1.1 enhancement appropriate.
B.
16
Blake next contends that the district court improperly departed upward based on a finding that his Criminal History Category VI was inadequate to reflect the seriousness of his past criminal conduct. See U.S.S.G. § 4A1.3 (Adequacy of Criminal History Category). He maintains that because the district court apparently considered his criminal history in applying § 4B1.3 (Criminal Livelihood), further consideration of his criminal history in deciding to depart constituted impermissible double counting. Again, we disagree.
17
Although both of these guideline sections direct the court to examine past criminal conduct, each provision is designed to penalize a different type of criminal behavior. Section 4B1.3 instructs the court to examine a defendant's conduct during a 12-month period. If it finds that the instant offense was part of a "pattern of criminal conduct engaged in as a livelihood," the district court must adjust the offense level to "not less than 13" or--in the event a reduction for acceptance of responsibility is appropriate--to "not less than 11." On the other hand, § 4A1.3 focuses on serious or repetitive criminal conduct. Under its provisions, the district court is to examine a defendant's entire criminal past; if it finds that a defendant's Criminal History Category does not "adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that[he] will commit other crimes," the court may consider an upward departure. U.S.S.G. § 4A1.3. The former section attempts to assure adequate punishment for those defendants who prey on society for their livelihood. See U.S.S.G. § 4B1.3, comment. (backg'd.). The latter section, however, is designed to deal with defendants who possess an "extensive record" that is not adequately reflected by their Criminal History Category, or those whose criminal background shows them to "pose a greater risk of serious recidivism." U.S.S.G. § 4A1.3, comment. (backg'd.). Because an individual can engage in criminal conduct to provide his livelihood as well as possess a criminal past not adequately represented by his Criminal History Category--or demonstrate a high probability of repeating his behavior--both provisions may apply to the same defendant and both may be used in determining the appropriate sentence. See United States v. Morse, 983 F.2d 851, 852-54 (8th Cir.1993) (affirming application of both provisions).
18
In addition, even if we assume the district court relied on some of the same conduct in applying both provisions, reversal of Blake's sentence is not appropriate. Unless a guideline provision expressly prohibits consideration of a factor previously used in applying another guideline section, the factor may be used to determine whether that provision applies as well. United States v. Curtis, 934 F.2d 553, 556 (4th Cir.1991). Neither § 4B1.3 nor § 4A1.3 includes a provision prohibiting double counting. As a result, even if double counting occurred, it did not result in an improper application of the guidelines. Therefore, we conclude that the district court did not err in departing upward.
III.
19
We next consider Blake's challenges to the restitution order. The decision to order restitution pursuant to the Victim and Witness Protection Act of 1982 (VWPA), as amended, 18 U.S.C.A. §§ 3663-3664 (West 1985 & Supp.1995), is within the discretion of the district court, and we will not disturb that decision absent an abuse of discretion. United States v. Piche, 981 F.2d 706, 718 (4th Cir.1992), cert. denied, 508 U.S. 916, 113 S.Ct. 2356, 124 L.Ed.2d 264 (1993).
A.
20
This court has repeatedly held that in order to ensure effective appellate review of restitution orders, sentencing courts must make explicit findings of fact on each of the factors set forth in 18 U.S.C.A. § 3664(a) (West Supp.1995).3 United States v. Molen, 9 F.3d 1084, 1086 (4th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1649, 128 L.Ed.2d 368 (1994); accord United States v. Plumley, 993 F.2d 1140, 1142-43 (4th Cir.) (per curiam), cert. denied, --- U.S. ----, 114 S.Ct. 279, 126 L.Ed.2d 230 (1993); Piche, 981 F.2d at 717; United States v. Bailey, 975 F.2d 1028, 1031 (4th Cir.1992); United States v. Bruchey, 810 F.2d 456, 458 (4th Cir.1987) (interpreting predecessor to § 3664(a)). Such findings must tie the amount and type of restitution ordered to the financial resources, financial needs, and earning ability of the defendant. See, e.g., Molen, 9 F.3d at 1086. Moreover, the court must make a specific finding that the defendant feasibly can comply with the order without undue hardship to himself or his dependents. Id. The district court may satisfy this requirement by announcing its findings on the record or by adopting adequate proposed findings contained within a presentence report. Id.
21
Despite the clear mandate from this court, the district court failed to articulate on the record specific findings with respect to Blake's earning ability or financial needs. And, it completely failed to make a factual determination that Blake could make the necessary restitution payments without undue hardship to himself or his teenage daughter.4 Nor did the court adopt a presentence report containing adequate findings as to these factors.
22
We do not suggest that the district court will be unable to make findings supporting a restitution award. Rather, it simply failed to do so. As this court has previously admonished, failure to make the required findings necessitates remand. See Molen, 9 F.3d at 1087; Piche, 981 F.2d at 718. Consequently, we vacate the restitution order and remand to allow the district court to make the appropriate findings.
B.
23
Blake also contends that because the persons from whom he stole the credit cards are not victims of his offense of conviction, their losses of $1,922.00 should not have been included in the restitution order. We are compelled to agree.5
24
The VWPA provides that "[t]he [district] court, when sentencing a defendant convicted of an offense under [Title 18] ... may order ... that the defendant make restitution to any victim of such offense." 18 U.S.C.A. § 3663(a)(1). As interpreted by the Supreme Court, the VWPA "authorize[s] an award of restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction." Hughey v. United States, 495 U.S. 411, 413, 110 S.Ct. 1979, 1981, 109 L.Ed.2d 408 (1990).
25
In 1990, following the Hughey decision, the VWPA was amended.6 At present, if the offense involves "as an element" a scheme, conspiracy, or pattern of criminal activity, the definition of "victim" includes any person directly harmed by the defendant's criminal conduct. 18 U.S.C.A. § 3663(a)(2); United States v. Broughton-Jones, 71 F.3d 1143, 1149 (4th Cir.1995). This amendment, however, does not authorize a district court to order restitution to all individuals harmed by a defendant's criminal conduct. See Broughton-Jones, 71 F.3d at 1148-49. For a person to be considered a victim under § 3663, the act that harms the individual must be either conduct underlying an element of the offense of conviction, or an act taken in furtherance of a scheme, conspiracy, or pattern of criminal activity that is specifically included as an element of the offense of conviction. Id.; see United States v. Obasohan, 73 F.3d 309, 311 (11th Cir.1996) (per curiam); Plumley, 993 F.2d at 1142. But, if the harm to the person does not result from conduct underlying an element of the offense of conviction, or conduct that is part of a pattern of criminal activity that is an element of the offense of conviction, the district court may not order the defendant to pay restitution to that individual. See Broughton-Jones, 71 F.3d at 1149; United States v. Ledesma, 60 F.3d 750, 751 (11th Cir.1995); United States v. Neal, 36 F.3d 1190, 1200-01 (1st Cir.1994).
26
Although the result we are compelled to reach represents poor sentencing policy, the statute as interpreted requires the holding that the persons from whom Blake stole the credit cards do not qualify as victims of his offense of conviction, and as such he cannot be ordered to pay restitution to them. Blake's theft of the credit cards represents a pattern of criminal activity that was a necessary step in the accomplishment of his objective, i.e., use of unauthorized access devices. But, the factual connection between his conduct and the offense of conviction is legally irrelevant for the purpose of restitution. See Broughton-Jones, 71 F.3d at 1149. The Government allowed Blake to plead guilty to one count of fraudulent use of unauthorized access devices in violation of 18 U.S.C.A. § 1029(a)(2). "This offense ... has four elements: 1) the intent to defraud; 2) the knowing use of or trafficking in an unauthorized access device; 3) to obtain things of value in the aggregate of $1,000 or more within a one-year period; and 4) an affect on interstate or foreign commerce." United States v. Tunning, 69 F.3d 107, 112 (6th Cir.1995); see also 18 U.S.C.A. § 1029(a)(2). The specific conduct underlying these elements, and thus forming the basis for Blake's offense of conviction, does not include the theft of the credit cards. Nor does the offense include as an element a scheme, conspiracy, or pattern of criminal activity that encompasses such conduct. As a result, the loss to the robbery victims was not caused by Blake's offense of conviction.7 See Broughton-Jones, 71 F.3d at 1149; Ledesma, 60 F.3d at 751; see also United States v. Hayes, 32 F.3d 171, 173 (5th Cir.1994); United States v. Cobbs, 967 F.2d 1555, 1558-59 (11th Cir.1992). The district court, therefore, erred by including the loss attributable to these individuals in its restitution order.
27
We emphasize that this undesirable result can be corrected in the future by congressional action further amending 18 U.S.C.A. § 3663(a) or by a plea agreement that requires a defendant to make restitution to individuals directly harmed by his criminal conduct. Blake's plea agreement did not include a restitution provision, although it easily could have. Moreover, it could have included a specific provision requiring restitution to the persons he robbed in order to obtain the cards. Another 1990 amendment to the VWPA permits a district court to "order restitution in any criminal case to the extent agreed to by the parties in a plea agreement." 18 U.S.C.A. § 3663(a)(3). And, "such agreements may authorize restitution in an amount greater than the loss attributable to the offense of conviction." Broughton-Jones, 71 F.3d at 1147; see also United States v. Soderling, 970 F.2d 529, 534 (9th Cir.1992), cert. denied, 508 U.S. 952, 113 S.Ct. 2446, 124 L.Ed.2d 663 (1993); United States v. Rice, 954 F.2d 40, 44 (2d Cir.1992).
C.
28
Finally, we consider Blake's argument that the district court erred by delegating the determination of the amount and schedule of restitution installment payments to the Bureau of Prisons or U.S. Probation Office. This court recently held that deciding the amount and timing of restitution payments is a non-delegable judicial function. United States v. Johnson, 48 F.3d 806, 809 (4th Cir.1995). As such, the portion of the restitution order that authorized these agencies to determine the amount and schedule of restitution payments was improper. Of course, a district court may receive and consider recommendations as to the amount and schedule of payments from other sources. See id. Final approval, however--as well as decisions regarding future modification--may not be delegated.
IV.
29
In conclusion, we affirm Blake's sentence of imprisonment and term of supervised release. We vacate the restitution order and remand with instructions that the district court make the required findings on the factors listed in § 3664. If the district court then orders restitution, it may not award restitution to the persons from whom Blake stole the credit cards, and it may not delegate its authority to determine the amount of, and schedule for, installment payments of restitution to the card issuers.
30
AFFIRMED IN PART; VACATED IN PART; AND REMANDED WITH INSTRUCTIONS.
1
Although Blake initially challenged the enhancement for more than minimal planning, he did not raise that objection during the sentencing hearing, nor does he object to its application now
2
The district court based this finding on testimony given at the sentencing hearing. The police officer who interviewed Blake shortly after his arrest testified that during the course of the interview Blake said that he preferred to steal from elderly women because they presented less of a threat. Believing this testimony to be credible, the district court found that Blake had targeted elderly victims because they "could not fend for themselves as well as other people might." J.A. 87
3
These factors are "the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate." 18 U.S.C.A. § 3664(a)
4
Although the presentence report noted that Blake did not live with this daughter and presently provided no financial support, it specifically listed her as a dependent and stated that she did need his support
5
Although we have held that the persons from whom Blake stole the credit cards are victims for the purposes of the sentencing guidelines, see supra p. 504, this is not dispositive of the question with respect to restitution orders issued pursuant to 18 U.S.C.A. § 3663. The definition of victim provided in this statute is much narrower than the one in the guidelines, and it is § 3663--not the guidelines--that governs the authority of a sentencing court to require restitution. United States v. Silkowski, 32 F.3d 682, 688 (2d Cir.1994); United States v. Baker, 25 F.3d 1452, 1457 (9th Cir.1994); see also U.S.S.G. § 5E1.1(a)
6
Although this amendment superseded Hughey 's holding in part, this court has recognized that Hughey still applies when, in the absence of an appropriate plea agreement that provides for restitution, a restitution award " 'clearly encompasses an offense for which the defendant was not convicted.' " Broughton-Jones, 71 F.3d at 1147 n. 1 (quoting Bailey, 975 F.2d at 1033 n. 1). Because the plea agreement entered into below did not address restitution, and the theft of the credit cards is not the offense of conviction, Hughey applies
7
The robbery victims' claims for loss included only replacement costs of pocketbooks, wallets, and items of a similar nature. Had they paid the credit card companies for charges made against their credit cards by the thief, as to these amounts they would have been considered victims under the VWPA and thus be entitled to restitution. This is so because this type of loss would be attributable to conduct underlying use of the cards, an element of the offense of conviction, as opposed to injury resulting solely from the theft of the cards | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2396404/ | 702 S.E.2d 9 (2010)
MARCUS
v.
BAC HOME LOANS SERVICING LP.
No. A10A0934.
Court of Appeals of Georgia.
September 21, 2010.
Corine Marcus, pro se.
*10 McCalla Raymer, Adam M. Silver, Melody R. Jones, Atlanta, for appellee.
SMITH, Presiding Judge.
Corine Marcus has filed a timely appeal from a dispossessory order. In order for us to address the merits of this appeal, however, we must have a sufficient record before us. As the appellant, Marcus bears the burden of providing such a record. See Hensley v. Young, 273 Ga.App. 687, 688, 615 S.E.2d 771 (2005). Generally, this requires either a transcript of the evidence or an authorized substitute. See OCGA § 5-6-41(g) & (i). Here, we have neither. The record consists only of the dispossessory warrant, Marcus' answer, in which she alleges a factual defense, scheduling notices, and the court's dispossessory order. Given the paucity of the record before us, we are unable to conduct meaningful appellate review of any alleged error. Under these circumstances, we must assume the trial court ruled correctly. See Harden v. Young, 268 Ga.App. 619, 620, 606 S.E.2d 6 (2004).
Judgment affirmed.
MIKELL and ADAMS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561021/ | 171 S.W.3d 579 (2005)
Kenneth L. RORIE d/b/a Kentex, Appellant,
v.
James R. GOODWIN and Wife, Linda B. Goodwin, Appellees.
No. 12-04-00006-CV.
Court of Appeals of Texas, Tyler.
July 29, 2005.
*581 Tom D. Rorie, for appellant.
Celia S. Flowers, Cooper, Flowers, Fraser & Derryberry, L.L.P., Tyler, Michael W. Janecek, for appellees.
Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
OPINION
JAMES T. WORTHEN, Chief Justice.
Kenneth L. Rorie d/b/a Kentex ("Rorie") appeals the trial court's denial of his motion for new trial following a summary judgment granted in favor of James R. Goodwin and wife, Linda B. Goodwin ("Goodwins"). In four issues, Rorie contends that the summary judgment was improperly granted by the trial court. We reverse and remand.
BACKGROUND
Rorie filed a suit for declaratory judgment against the Goodwins seeking to establish priority of his real estate lien vis-a-vis their lien on the same land. After filing their first Original Answer, the Goodwins filed an Evidentiary Motion for Summary Judgment and No-Evidence Motion for Summary Judgment. Ten days later, on August 7, 2003, the Goodwins filed an Amended Evidentiary Motion For Summary Judgment and Amended No-Evidence Motion For Summary Judgment. With the exception of the word "Amended" *582 in the title, the only change in this new motion was the addition of paragraph seven, which read as follows:
VII.
DATE OF SUBMISSION
7.1 This Motion for Summary Judgment shall carry a date of submission of August 7, 2003, at [sic] and the Court will consider this Motion by way of a hearing on or after September 6, 2003. (Emphasis added.)
Rorie did not file a response. On September 15, 2003, the trial court, after "finding that Plaintiff failed to respond to said motion," entered its order granting summary judgment.
Following the granting of the motion for summary judgment, Rorie filed a motion for new trial. In his motion, he showed that although the Goodwins' amended summary judgment motion had stated that the submission date was August 7, this was, in actuality, only the date of its filing. Rorie also contended that the Goodwins' amended motion violated rule 2.3 of the local Smith County Rules of Civil Trial, which stated as follows:
2.3 Submission. Motions shall state a date of submission at which time the Motion will be considered without a hearing, unless both a request for oral argument and a response are filed. The movant shall select the date of submission which shall be no sooner than the Monday following fifteen (15) days from date of filing, except on leave of Court. The motion will be submitted to the Court for ruling on that date or later.
Submission date on motions for summary judgment shall be no sooner than the expiration of thirty (30) days from the date of filing of the motion for summary judgment. A response, if any, to a motion for summary judgment shall be filed and served seven (7) days before the submission date pursuant to Tex. R. Civ. Proc. Rule 166a. However, the Court will not actually hear oral argument on a motion for summary judgment unless (i) properly requested pursuant to Local Rule 2.7., and (ii) the Court determines that oral argument will substantially aid the Court in ruling on the motion for summary judgment. Counsel are encouraged to include citations and copies of any cases believed to be controlling as part of the motion or response. (Emphasis added.)
Rorie argued that the Goodwins' amended motion did not state a specific date of submission or hearing and that this failure also violated Texas Rule of Civil Procedure 166a. After a hearing, the trial court denied Rorie's motion. This appeal followed.
APPLICABLE LAW
In his first issue, Rorie contends that the trial court erred in denying his motion for new trial because the notice provided by the Goodwins did not advise him that their motion would be heard by submission, rather than an actual oral hearing. In his second issue, he argues that the trial court erred in denying his motion for new trial because there was no notice of a specific submission date in compliance with the local rules of Smith County. In his third issue, Rorie contends that his motion for new trial was denied in error because the local rules of Smith County do not provide that submission of a motion for summary judgment is automatic after thirty days. In his fourth issue, Rorie argues that the trial court erred in denying his motion for new trial because the Goodwins *583 placed a submission date in their amended motion that did not comply with the local rules of Smith County. We will consider these four issues together.
Determining whether to grant or deny a motion for new trial on a summary judgment is a matter that falls within the sound discretion of the trial judge. Mosser v. Plano Three Venture, 893 S.W.2d 8, 10 (Tex.App.-Dallas 1994, no writ). The trial judge does not have unbridled discretion to decide a motion for new trial in a summary judgment case, but instead must rely upon guiding rules and principles to reach his decision. Id.
The right to summary judgment exists only in compliance with Texas Rule of Civil Procedure 166a. Tanksley v. Citi-Capital Commercial Corp., 145 S.W.3d 760, 763 (Tex.App.-Dallas 2004, pet. denied). The movant must comply with all of the requirements of the rule, and proper notice to the nonmovant of the summary judgment hearing is a prerequisite to summary judgment. Id. Summary judgment is a harsh remedy. Id. Reviewing courts will strictly construe summary judgment in procedural and substantive matters against the movant. Id.
A trial court must give notice of the submission date for a motion for summary judgment because this date determines the date the nonmovant's response is due. Aguirre v. Phillips Props., Inc., 111 S.W.3d 328, 332 (Tex.App.-Corpus Christi 2003, pet. denied) (citing Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.1998)). The date of submission has the same meaning as the day of hearing under Texas Rule of Civil Procedure 166a(c). See Martin, 989 S.W.2d at 359. Notice of hearing or submission of a summary judgment motion is required. Id. Without notice of hearing or submission date, the nonmovant cannot know when the response is due. Id.[1]
APPLICATION OF LAW TO FACTS
Rule 2.3 of the local rules of Smith County states that the court "will not actually hear oral argument on a motion for summary judgment unless (i) properly requested pursuant to Local Rule 2.7, and (ii) the Court determines that oral argument will substantially aid the Court in ruling on the motion for summary judgment." Local rule 2.7 states that a motion "shall include a request for oral argument, if desired, in the requesting party's motion." Unless required by the express language or the context of the particular rule, the term "hearing" does not necessarily contemplate either a personal appearance before the court or an oral presentation to the court. See Martin, 989 S.W.2d at 359. In this case, the Goodwins asked that their motion be set for "hearing" after September 7, 2003, but did not specifically request "oral argument." Assuming arguendo that a request for hearing includes a request for oral argument, the plain language of rule 2.3 indicates that oral argument is not automatically granted upon request. Therefore, the Goodwins' request for a "hearing" could not properly be considered as a representation that their motion for summary judgment would be submitted by oral argument.
The Goodwins' failure to provide Rorie with a specific submission or hearing date is more problematic. The Goodwins *584 appeared to leave it to the court to set the submission or hearing date. Under the local rules, the Goodwins had a duty to state a specific date of submission in their motion. Nothing in the record before us indicates that the Goodwins ever took any steps after filing the amended motion with its indefinite language to notify Rorie of a specific submission or hearing date. As a result, no deadline for Rorie to file a response to the Goodwins' amended summary judgment motion was ever established. Without establishing a specific submission or hearing date, the trial court could not enter a summary judgment that complied with either the local rules of Smith County or Texas Rule of Civil Procedure 166a(c). See Aguirre, 111 S.W.3d at 332.
FAILURE TO SHOW A MERITORIOUS DEFENSE
The Goodwins contend that even if the notice in their amended motion was faulty because it did not establish a specific submission or hearing date, Rorie's motion for new trial must fail because he did not establish a meritorious defense as required in Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939). We disagree.
"An elementary and fundamental requirement of due process in any proceeding that is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections thereto." Mosser, 893 S.W.2d at 12 (citing Peralta v. Heights Medical Ctr., Inc., 485 U.S. 80, 84, 108 S. Ct. 896, 898-99, 99 L. Ed. 2d 75 (1988)). Failure to give proper notice violates the most rudimentary demands of due process of law. Id. Thus, a party who has been denied due process of law through lack of notice of a summary judgment hearing is not required to meet the remaining Craddock requirements to be entitled to a new trial. Id. When the record indicates that a party does not have the required notice of a summary judgment hearing, there is no requirement that he present a meritorious defense as a condition to his motion for new trial being granted. See Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex.1988). We conclude that the Goodwins did not provide Rorie with the specific submission or hearing dates for their amended motion for summary judgment and therefore they did not comply with either the requirements of Texas Rule of Civil Procedure 166a(c) or rule 2.3 of the local Smith County Rules of Civil Trial. Accordingly, Rorie's second, third, and fourth issues are sustained. However, his first issue is overruled.
CONCLUSION
Because we have sustained Rorie's second, third, and fourth issues, we reverse the trial court's judgment and remand the case for proceedings consistent with this opinion.
NOTES
[1] The supreme court in Martin stated that failure to give notice of the submission or hearing date was not jurisdictional and therefore could be rendered harmless when the trial court considers the nonmovant's response and reconfirms its ruling. Martin, 989 S.W.2d at 359. However, since Rorie never filed a response, this rule is inapplicable in the instant case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560985/ | 18 So. 3d 132 (2009)
PEYTON PLACE, CONDOMINIUM ASSOCIATES, INC.
v.
Robert P. GUASTELLA, Peyton Place, Inc., and I-10, Inc. (Formerly Known as Management Equities Corporation).
No. 08-CA-365.
Court of Appeal of Louisiana, Fifth Circuit.
May 29, 2009.
*136 Jacob Kansas, Alan F. Kansas, Attorneys at Law, Gretna, LA, for Plaintiff/Appellee.
Stephen D. Marx, Attorney at Law, Metairie, LA, for Defendant/Appellant.
Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and MADELINE JASMINE, Pro Tempore.
FREDERICKA HOMBERG WICKER, Judge.
Peyton Place Condominium Association, Inc.[1] (the "Association") filed this suit against Robert Guastella ("Guastella"), Peyton Place, Inc. ("PPI"), and I-10, Inc.[2] ("I-10"), alleging that each defendant was liable to it for unpaid condominium fees, late fees, and the attorney's fees incurred as a result of this litigation.[3] All three defendants reconvened against the Association, alleging that the Association was liable for unpaid rent on a party room and a recreation room that each of the defendants had owned at one point in time. The suit was consolidated with two separate suits filed by I-10. In both of the consolidated suits, I-10 alleged that the Association recorded illegal statutory privileges on condominium units that it owned. The trial court found that the Guastella defendants were liable to the Association for condominium fees and that the Association was not liable to the Guastella defendants for unpaid rent. In addition, the trial court awarded the Association attorney's fees and costs. The trial court also found that the Association was liable to I-10 for recording an illegal privilege. This appeal ensued.
The Guastella defendants assign as error the trial court's judgment as to liability to the Association for unpaid condominium fees, the denial of their unpaid rent claims, *137 and the trial court's award of attorney's fees and costs to the Association. The Association assigns as error the trial court finding that it is liable to I-10 for recording an illegal privilege, the trial court's ruling that the Guastella defendants were not a single entity, and a judgment of the trial court quashing a subpoena. For the foregoing reasons, we affirm in part, reverse in part, and render. In addition, we grant the Association's Motion for Partial Dismissal, the merits of which are discussed below.
FACTS AND PROCEDURAL HISTORY
The relevant facts are these. In 1969, Guastella incorporated I-10 with his brother and father. I-10 was originally formed to build and develop a Howard Johnson's hotel near the intersection of Veterans Boulevard and Interstate 10 in Metairie. Management Equities Corporation ("MEC-I") was incorporated on February 13, 1976 for the purpose of purchasing and managing an apartment complex located at 1161 Lake Avenue in Metairie. MEC-I purchased the apartment complex on May 27, 1976.
Several years later, Guastella began to investigate the feasibility of turning the 1161 Lake Avenue apartment complex into a condominium complex. Guastella merged MEC-I with I-10 in 1979. Although I-10 was the surviving corporation from this transaction, Guastella changed the corporate name of I-10 back to Management Equities Corporation (hereinafter referred to as "MEC-II"). According to Guastella, the purpose of these transactions was to utilize the losses of I-10 against any profits that were expected to arise from the development of the condominium. Guastella later changed the corporate name of MEC-II back to I-10, Inc., the defendant herein.
Guastella incorporated PPI on September 28, 1979. At that time, Guastella owned seventy percent of the shares of PPI and his former associate Charles Kovacs owned thirty percent of the shares. In addition, Guastella served as the corporation's president and Kovacs served as its secretary and treasurer. On October 18, 1979, PPI purchased the condominium complex from MEC-II in exchange for executing a $2,346,651.00 secured note in favor of MEC-II and assuming a $1,153,348.01 note in favor of Pan American Life Insurance Company.
Guastella filed a condominium declaration with the 24th Judicial District Court Clerk of Court's Office on September 5, 1979, which created the Association. Shortly thereafter, PPI began marketing the condominium units and selling them to consumers (the condominium complex will hereinafter be referred to as "Peyton Place"). When buyers purchased condominium units at Peyton Place, they paid five percent of the purchase price as a down payment, with the rest being financed by PPI. If the purchaser was able to pay off the rest of the note to PPI, PPI would pledge the mortgage of the purchaser's unit to Pan American Life Insurance Company to secure a partial release of its debt on the $1,153,348.01 note.
Guastella had previously lived in the apartment complex before Peyton Place was created. After Peyton Place was created, Guastella, PPI, and I-10 each continued to own Peyton Place units. In 1980, Guastella decided to designate one unit as a party room and one unit as a recreation room to make individual condominium units more desirable to potential Peyton Place buyers. Thus, on May 1, 1980, Guastella purchased two Peyton Place units from PPI to convert into a party room and a recreation room. No money changed hands during this transaction; Guastella used funds from PPI to finance the sale and wrote off $120,000 worth of *138 debt owed to him personally by PPI. Guastella then spent several months renovating the units in order to make them suitable for their designated functions. On November 10, 1980, Guastella sold the party room and the recreation room to MEC-II. Again, no money changed hands; in exchange for receiving title to the party room and recreation room, MEC-II cancelled a $219,000 note which evidenced a debt that Guastella owed to MEC-II.
On the same day he purchased the recreation room and party room from MEC-II, Guastella leased both rooms to the Association for a term of fifty years. The terms of the lease dictated that the Association would pay Guastella $1,260 per month, with rent increases every five years. The Association never paid any rent to MEC-II, Guastella, or PPI, nor did MEC-II, Guastella, or PPI ever pay any condominium fees to the Association. Guastella alleges that he did not require the Association to pay rent for the party room and the recreation room in exchange for not paying condominium fees on Peyton Place units that he owned personally. With respect to four units owned by PPI, Guastella alleges that he did not require PPI to pay condominium fees because PPI provided cash advances to the Association every year to equalize the Association's annual operating deficit. Guastella alleges that MEC-II paid condominium fees for the units it owned but could not provide the trial court with records to verify the allegation.
After Guastella sold the recreation room and the party room to MEC-II, all sales of Peyton Place condominium units were made "subject to" the May 1, 1980 lease. MEC-II owned the party room and the recreation room from November 20, 1980 until October 6, 1986, at which time it sold both units to PPI. PPI owned both rooms until May 12, 1988 when it transferred all title, rights, and interest in both rooms to Pan American Life Insurance Company via a dation en paiement.
Throughout the course of the 1980's, the Peyton Place complex allegedly deteriorated to such an extent that Jefferson Parish officials threatened to condemn the property on several occasions. Guastella had controlled the presidency of the Association since it was created in the condominium declaration. In 1989, Association members declined to reelect Guastella to the Association presidency and installed their own board of directors after Guastella resigned. Guastella continued to own Peyton Place units but had no further role in the management of Peyton Place after 1989. PPI and I-10 also continued to own Peyton Place units.
On December 12, 1992, the Association filed a Petition for Damages against Guastella, I-10, and PPI. The petition alleged that Guastella, PPI, and I-10 had collectively owned eleven Peyton Place units at all pertinent times prior to filing. The Petition sought condominium fees dating back to 1979, late fees, special assessments levied against all Peyton Place owners in 1989, 1990, and 1991, and judicial interest. In addition, the petition alleged that Guastella treated PPI and I-10 as his personal assets and sought to hold Guastella liable in solido with PPI and I-10.
Guastella reconvened against the Association on February 24, 1993 for the rent due under the terms of the May 1, 1980 lease of the party room and the recreation room.[4] The reconventional demand alleged that the Association owed past due rent under the lease and that the rent claims should be treated as an offset on past due condominium fees. Guastella further *139 alleged that the rent owed by the Association exceeded his past due condominium fees. Guastella filed a Motion for Summary Judgment seeking judgment for unpaid rent and future accelerated rental payments. The Association filed a Motion for Partial Summary Judgment/Declaratory Judgment asking the court to rule that Guastella's right to collect rents terminated on November 20, 1980, the day he sold the recreation room and the party room to MEC-II.
On March 15, 1995, the trial court denied Guastella's Motion for Summary Judgment and granted the Association's Motion for Partial Summary Judgment/Declaratory Judgment. The trial court ruled that only the title owner of the party room and recreation room was entitled to collect rent due under the lease. In his Reasons for Judgment, the trial judge noted that the right to collect rentals was transferred in the sale and that the "subject to" language was "insufficient to entitle Guastella to the rentals." Thus, Guastella, MEC-II, and I-10 were only entitled to collect rental payments for the time that each was the title owner of the recreation room and the party room. Guastella appealed the judgment of the trial court. This Court affirmed. Peyton Place Condominium Ass'n, Inc. v. Guastella, 95-396 (La.App. 5 Cir. 1/17/96), 668 So. 2d 1174. On April 21, 1997, PPI and MEC-II filed a Motion for Leave to file a Reconventional Demand regarding their claims for rent due under the terms of the lease agreement. The Motion for Leave was granted by the trial court.
The original case was consolidated with two additional cases. On December 20, 2004, I-10 filed a Petition for Damages against the president and secretary of the Association. The Petition alleged that the Association filed three illegal statutory privileges and an illegal Notice of Lis Pendens on a Peyton Place unit that I-10 owed. I-10, Inc. v. Williams, et al., 615-106 (La. 24th J.D.C.). More specifically, I-10 contended that the privileges and Notice of Lis Pendens were illegal because they were filed by the Association before I-10 became the owner of the unit. This case was consolidated with the original case on April 26, 2005.
On January 23, 2007, I-10 filed a Petition for Damages against the Association and Dalton Truax, the manager of the Peyton Place facility. The Petition alleged that Dalton Truax illegally placed a privilege of $142,242.97 on a Peyton Place unit that I-10 owned. I-10, Inc. v. 1161 Lake Condominium Ass'n, et al., 640-855 (La. 24th J.D.C.). Specifically, I-10 contended that Dalton Truax had failed to comply with La. R.S. 9:1123.115 A(3), which provides that a condominium "association shall, at least seven days prior to the filing for registry of the privilege, serve upon the delinquent unit owner a sworn detailed statement of its claim for the delinquent or accelerated assessment that includes the date said assessment became delinquent or accelerated." The Petition additionally alleged that the Association filed an illegal Notice of Lis Pendens. This case was consolidated with the instant case on August 22, 2007.
After an extensive period of discovery, trial in the original case and the two consolidated cases began on May 4, 2007.[5]*140 Four days of testimony were taken on the original case and one day of testimony was taken on the two consolidated cases. On July 13, 2007, the trial court issued an Interim Judgment and Findings of Fact, wherein the court determined the following: (1) the May 1, 1980 lease between the Association and Guastella was not a nullity, (2) the Association's alter ego and single business enterprise theories were rejected, (3) by virtue of the language in the lease, the owner of the party room and recreation room was not responsible for condominium fees during the months that those units were leased to the Association, (4) the Association was indebted to PPI in the amount of $16,214.40 as of April 30, 1988, (5) the Association's action to recover condominium fees was subject to a ten year prescriptive period.
The trial court requested post trial memoranda regarding the applicable prescriptive period of the Guastella defendants' rental claims against the Association. On July 13, 2007, the trial court issued a Supplemental Interim Judgment and Findings of Fact, which determined that the Guastella defendants' action to recover rent was subject to a three year prescriptive period pursuant to La. C.C. art. 3494(2). The trial court also determined that the Guastella defendants' rent claims could not offset the Association's claims for condominium fees under La. C.C.P. art. 424.
The trial court issued its judgment on October 25, 2007. This was a final judgment following trial on the merits. With respect to the Association's principal demand, the court awarded the Association $304,851.97 in condominium fees, special assessments, and late charges.[6] The court also awarded the Association judicial interest, and thirty-five percent attorney fees on all sums recovered. The court additionally ordered the Guastella defendants to pay an $11,731.25 fee to a court-appointed accountant in solido. In the consolidated case I-10, Inc. v. Williams, et al., 615-106 (La. 24th J.D.C.), the trial court entered judgment against the Association in the amount of $20,000 for refurbishment costs on a Peyton Place unit. The Guastella defendants filed this timely appeal. The Association filed a timely cross appeal.
DIRECT APPEAL ASSIGNMENTS OF ERROR
The Guastella defendants assign six assignments of error to the proceedings below. First, the Guastella defendants claim that the Association did not meet its burden of proof. Second, the Guastella defendants contend that the trial court erred in finding that their claims against the Association for unpaid rent were prescribed. Third, the Guastella defendants *141 allege that the trial court erred in finding that their rent claims could not offset the Association's claims for condominium fees. Fourth, the Guastella defendants aver that the trial court erred in awarding penalties and costs to the Association. Fifth, the Guastella defendants contend that the trial court erred in awarding attorney's fees to the Association. Finally, the Guastella defendants allege that the trial court erred in assessing to them the costs of a court-appointed accountant.
DIRECT APPEAL FIRST ASSIGNMENT OF ERROR
In their first assignment of error, the Guastella defendants contend that the Association did not sustain its burden of proof. More specifically, the Guastella defendants allege that the Association admitted no evidence to establish the precise quantum of condominium fees owed to it.
After filing their Motion for Appeal, the Guastella defendants filed a LSA-C.C.P. Article 2128 Determination of Content for the Record (the "Article 2128 Determination"). In accordance with La. C.C.P. art. 2129, the Guastella defendants filed a "concise statement of the points on which [they intended] to rely" in their appeal. In their first point, the Guastella defendants alleged that the trial court erred by ruling that their claims for condominium fees were prescribed, or in the alternative, that the trial court erred by ruling that the Guastella defendants could not use the claims for rental fees as an offset for the Association's claim for condominium fees. In the Article 2128 Determination's second point, the Guastella defendants alleged that the trial court erred in its award of attorney's fees. In the third point, the Guastella defendants alleged that the trial court erred in assessing the costs incurred by of a court-appointed accountant to them.
In response, the Association filed a Motion for Partial Dismissal, alleging that the first assignment of error should be dismissed because the Article 2128 Determination did not allege that the Association failed to sustain its burden of proof. We agree and grant the Motion for Partial Dismissal.
La. C.C.P. art. 2128 permits the appellant to "designate in a writing filed with the trial court such portions of the record which he desires to constitute the record on appeal." If the appellant fails to do so, "the record shall be a transcript of all the proceedings as well as all documents filed in the trial court."
La. C.C.P. art. 2129 provides:
An assignment of errors is not necessary in any appeal. Where the appellant designates only portions of the record as the record on appeal, he must serve with his designation a concise statement of the points on which he intends to rely, and the appeal shall be limited to those points.
(emphasis added)
In this case, the Guastella defendants chose to designate a portion of the record in accordance with La. C.C.P. art. 2128. Within their Article 2128 Determination, they listed their assignments of error. They filed a Statement of Points in accordance with La. C.C.P. art. 2129. None of the points alleged that the trial court erred because the Association failed to sustain its burden of proof. This appeal is limited to the points relied upon in the Article 2128 Determination pursuant to La. C.C.P. art. 2129.
The Guastella defendants admit that the Article 2128 Determination did not allege that the Association failed to sustain its burden of proof. However, the Guastella defendants contend that we should not grant the Motion for Partial Dismissal *142 because the Association did not suffer any surprise or prejudice. The Guastella defendants rely on Weber v. Press of H.N. Cornay, Inc., 135 So. 2d 925 (La.App. 4 Cir.1962). In Weber, the Fourth Circuit concluded:
Nothing in the Louisiana Article 2129 dictates the dismissal of an appeal for failure to comply herewith, and since no prejudice or surprise to movants is claimed by them, or shown by the record, the motions to dismiss filed by Harris Intertype Corporation and by Commercial Credit Corporation are each denied.
Weber, 135 So.2d at 927 (emphasis added).
Weber is distinguishable from the instant appeal. First, the Association is claiming that they were prejudiced by the addition of the assignments of error. Second, after reviewing the record, we are convinced that the Association was prejudiced by the addition of two assignments of error. We have reviewed the record diligently. After the Association rested, the Guastella defendants orally moved for a directed verdict. The Guastella defendants limited their motion for directed verdict to whether the Association had sustained its burden of proof of showing that the May 1, 1980 lease was a nullity and whether the Association had sustained its burden of proof of showing that the corporate entities of I-10 and MEC-II should be disregarded. In this assignment of error on appeal, the Guastella defendants argue that the association failed to meet its burden of proof because the Association admitted no evidence to establish the precise quantum of condominium fees owed to it. This is not what the Guastella defendants argued on their motion for directed verdict to the trial court. At the close of evidence, the Guastella defendants did not reurge the motion for directed verdict. There is no motion for new trial or post-trial memorandum extant in the record wherein the Guastella defendants alleged that the Association failed to sustain its burden of proof. The Article 2128 Determination did not contain a point alleging that the Association failed to sustain its burden of proof. The Association was entitled to rely on the statement of points contained in the Article 2128 Determination. After the Article 2128 Determination was filed, the Association designated the remainder of the record for appeal at its own expense. If the Association had not made such a request, the Guastella defendants would have had an insufficient basis on the record designated from which to argue sufficiency of evidence. The appellants designated only the testimony of some of the witnesses who appeared at trial and some of the many exhibits introduced into the record. The court of appeal cannot review the record for sufficiency of evidence without all of the testimony and all of the exhibits. The Guastella defendants are therefore essentially using the Associations quest for completeness against the Association. The Guastella defendants cannot seriously contend that the Association has not been prejudiced when they could not have successfully raised this assignment of error before the Association paid to designate the entire record.
We also note Ice v. Dry Klean Carpet Maintenance Co., XXXX-XXXX (La.App. 4 Cir. 12/3/03), 863 So. 2d 596, a case which was decided by the Louisiana Fourth Circuit more than forty years after Weber. In Ice, the plaintiff requested that the appeal be limited to certain points and designated a portion of the record. The defendant requested that the entire record be included for appeal. Ice, 863 So.2d at 598. The Ice plaintiff responded by filing a supplemental motion seeking to enlarge the issues on appeal, which was granted by the trial court. The Fourth Circuit held *143 that granting the supplemental motion was procedurally improper because the trial court did not have jurisdiction to sign a "supplemental" order under La. C.C.P. art. 2088 and because the plaintiff had already designated the issues she wanted to be addressed by the court of appeal. Id. at 598-99.[7] The only essential difference between the instant case and Ice is that in the instant case the Guastella defendants raised their new assignments of error for the first time in their brief, rather than filing a supplemental motion seeking to enlarge the issues on appeal.
Accordingly, we are constrained to grant the Motion for Partial Dismissal. We will not consider the merits of this assignment of error.
DIRECT APPEAL SECOND ASSIGNMENT OF ERROR
In their second assignment of error, the Guastella defendants contend that the trial court erred in finding that their claims against the Association for unpaid rent were prescribed. The trial court found that prescription for unpaid rents was interrupted every year between 1980 and 1989 because the Association acknowledged its obligation to pay rent in the annual budget approved each year by the Association members. The Guastella defendants argue that a June 15, 1992 Compromise and Settlement Agreement executed between Pan American Life Insurance Company and the Association interrupted prescription because the Association acknowledged its obligation to pay rent in the Agreement. Thus, the Guastella defendants' argument follows, the claims for unpaid rent are not prescribed because Guastella filed his reconventional demand for rent on February 24, 1993. We disagree.
The prescriptive period for "arrearages of rent" is three years. La. C.C. art. 3494(2). Prescription runs against all persons unless an exception is established by legislation. La. C.C. art. 3467. Although the party pleading prescription ordinarily has the burden of proof, the burden is shifted to the plaintiff or plaintiff-in-reconvention when the petition on its face reveals that prescription has run. See, e.g., *144 Lima v. Schmidt, 595 So. 2d 624, 628 (La. 1992); Riehm v. State Farm Mut. Auto. Ins. Co., 07-651 (La.App. 5 Cir. 1/22/08), 977 So. 2d 1045. Jurisprudence has recognized three theories upon which a plaintiff may rely to establish that prescription has not run: suspension, interruption and renunciation. Lima, 595 So.2d at 628. "Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe." La. C.C. art. 3464.
In the instant case, the Guastella defendants' right to collect rent from the Association ended on April 30, 1989, the date on which the fiscal year of the last annual budget in the record ended. The Association filed its Petition for Damages on December 12, 1992. Thus, the Guastella defendants' reconventional demand is prescribed on its face. The Guastella defendants contend that a June 15, 1992 Compromise and Settlement Agreement executed between Pan Am Life Insurance Company and the Association interrupted prescription. At most, any acknowledgement in the Compromise and Settlement Agreement would only interrupt prescription between Pan Am Life Insurance Company and the Association, not the Guastella defendants and the Association.
The instant case is akin to Richard Guthrie & Associates v. Stone, 562 So. 2d 1071 (La.App. 4 Cir.1990). In Stone, the plaintiff filed suit against the defendant on an open account for architectural services. The defendant filed an exception of prescription against the plaintiff, arguing that more than three years had elapsed between the plaintiff's final invoice and the commencement of the lawsuit. See La. C.C. art. 3494 ("[t]he following actions are subject to a liberative prescription of three years ... (4) An action on an open account."). The plaintiff filed an opposition to the exception, to which it attached an affidavit of one of the defendant's acquaintances. In the affidavit, the defendant's acquaintance stated that, during a conversation between the defendant and himself, the defendant acknowledged that he owed a debt to the plaintiff before prescription had run. Stone, 562 So.2d at 1072. Moreover, the defendant allegedly assured the affiant that the plaintiff's debt would be paid. Id. at 1072. The trial judge granted the defendant's exception of prescription and dismissed the plaintiffs suit. The plaintiff appealed, alleging that the trial court erred in granting the defendant's exception and in finding that there had been no acknowledgment of the debt by the defendant. Id. The Fourth Circuit affirmed, reasoning that:
[E]ven if it had been clearly shown that [the defendant] had acknowledged the debt in a conversation with [his acquaintance], that acknowledgment would have been meaningless because an acknowledgment has no effect beyond the specific right of the person to whom the debtor makes the acknowledgment. Flowers v. U.S. Fidelity and Guaranty Co., 381 So. 2d 378 (La.1979); Autin v. Parish of Lafourche, 423 So. 2d 98 (La.App. 1st Cir.1982). Because [the acquaintance] was not a creditor of [the defendant], any statement made by [the defendant] to [the acquaintance] could not serve as an acknowledgment of [the defendant's] alleged debt to [the plaintiff]. Therefore, we find that ... the testimony of [the acquaintance] regarding a 1985 conversation with [the defendant] ... was [not] sufficient to show an acknowledgment of the debt by [the defendant] so as to interrupt prescription.
Id. at 1073 (emphasis added).
The same principle applies here. The existence of a Compromise and Settlement Agreement executed between Pan Am *145 Life Insurance Company and the Association is immaterial to the issue of interruption between the Guastella defendants and the Association. See also Flowers v. United States Fid. & Guar. Co., 381 So. 2d 378, 382-83 (La.1980) ("[t]he interruption of prescription has no effect beyond the specific right of the person of which the debtor makes acknowledgment.").
Accordingly, this assignment of error has no merit.
DIRECT APPEAL THIRD ASSIGNMENT OF ERROR
In their third assignment of error, the Guastella defendants allege that the trial court erred in finding that their rent claims did not offset the Association's claims for condominium fees. We disagree.
In support of their position, the Guastella defendants rely upon La. C.C.P. art. 424, which provides:
A person who has a right to enforce an obligation also has a right to use his cause of action as a defense.
Except as otherwise provided herein, a prescribed obligation arising under Louisiana law may be used as a defense if it is incidental to, or connected with, the obligation sought to be enforced by the plaintiff
(emphasis added)
La. C.C.P. art. 424 permits the use of a prescribed claim as a defense. See, e.g., Dixie Building Materials Co., Inc. v. Bob L. Whittington & Associates, Inc., 588 So. 2d 78 (La.1991). However, the Guastella defendants' rent claims and the Association's claims for condominium fees are not "incidental to, or connected with" each other. La. C.C.P. art. 424 is based upon Article 20 of the Louisiana Code of Practice of 1870, which is in turn based on the Roman law maxim quae temporalia sunt ad agendum perpetua sunt ad excipiendum ("things which are temporary for the purposes of attack are permanent for the purposes of defense"). La. C.C.P. art. 424 cmts. (a)-(b). There is a considerable paucity of reported Louisiana cases interpreting this clause of La. C.C.P. art. 424 (or Article 20 of the Louisiana Code of Practice), and many of the reported cases are extremely old. For example, in Girod v. His Creditors, 2 La. Ann. 546 (1847), the Louisiana Supreme Court noted:
The claim of the executors of Nicholas Girod is in the nature of a reconventional demand, tending to establish compensation, and affecting in no manner the rights of the insolvent under the judgment of the Supreme Court of the United States. Reconventional demands are not exceptions within the meaning of the rule Quæ temporalia, as contended by the appellants. If the laws of prescription could be evaded, by thus disguising principal demands, those laws would become in most cases inoperative. The only exceptions to which the rule Quæ temporalia applies, are those which are attached to the action and inseparable from the demand. They must, in the language of commentators, be visceral.
(emphasis added)
Other cases similarly required a "visceral connection" between the obligation sued on by plaintiff and the prescribed obligation interposed as a defense. See, e.g., Chadwick v. Menard, 104 La. 38, 28 So. 933 (1900); Roper v. Monroe Grocer Co., 171 La. 181, 129 So. 811 (1930); Rapides Grocery Co. v. Clopton, 171 La. 632, 131 So. 734 (1930); Wolff v. Warden, 141 So. 821 (La.App.1932).
In the instant case, there is no "visceral" connection between the Guastella defendants' rent claims and the Association's claims for condominium fees. The Guastella *146 defendants admit that the lease of the party room and the recreation room does not provide for an offset of condominium fees against rental fees. The proposed budgets approved at the annual meetings of the Association each indicated that the Association owed rental fees to the owner of the party room and the recreation room, but made no mention of offsets. Moreover, the condominium fees allegedly owed by the Guastella defendants are due on individual Peyton Place units, not the recreation room and the party room. Simply put, there is no documentary evidence in the record that the Guastella defendants intended to offset condominium fees against rental fees owed to the owner of the recreation room and the party room. The only evidence presented to this Court is the self-serving testimony of Guastella who told the trial court that he personally intended to offset condominium fees against rental fees owed to the owner of the recreation room and the party room. This Court of the opinion that such a subjective belief is not enough to constitute a "visceral connection."
Accordingly, this assignment of error has no merit.
DIRECT APPEAL FOURTH ASSIGNMENT OF ERROR
In their fourth assignment of error, the Guastella defendants aver that the trial court erred in awarding penalties and interest to the Association. More specifically, the Guastella defendants contend that their failure to pay condominium fees and the Association's corresponding failure to pay rents constituted "mutual breaches" which should have prevented the trial court from awarding penalties and costs.
The Guastella defendants did not address this assignment of error in their Article 2128 Designation. For the reasons discussed above, we are constrained to grant the Association's Motion for Partial Dismissal. Accordingly, we will not consider the merits of this assignment of error.
DIRECT APPEAL FIFTH ASSIGNMENT OF ERROR
In their fifth assignment of error, the Guastella defendants contend that the trial court erred in awarding attorney's fees to the Association. More specifically, the Guastella defendants allege that the trial court erred in assessing I-10 with attorney's fees because I-10 was the "prevailing party" of the claims between the Association and itself. We disagree.
It is manifest in Louisiana jurisprudence that attorney's fees are not recoverable unless authorized by contract or statute. Cajun Concrete Services, Inc. v. J. Caldarera & Co., Inc., 99-1205 (La.App. 5 Cir. 4/12/00), 759 So. 2d 237, 240. Attorney's fees are not awarded to make the injured party whole, but rather to discourage a particular activity or activities on the part of the other party. Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97) 696 So. 2d 1382, 1386. The trial court is vested with much discretion in determining the amount of attorney's fees, and the amount should not be disturbed on appeal absent an abuse of discretion. Times Picayune Pub. Corp. v. New Orleans Aviation Bd., 99-237 (La.App. 5 Cir. 8/31/99), 742 So. 2d 979, 985, citing Adams v. Franchise Finance Corp. of America, 96-855 (La.App. 3 Cir. 2/5/97), 689 So. 2d 572, writ denied 97-0604 (La.4/18/97), 692 So. 2d 456. Factors which are to be taken into consideration in determining the reasonableness of attorney's fees include the ultimate result obtained, the extent and character of work performed, the responsibility incurred, the number of court appearances made, intricacies of the facts involved, the importance of the litigation, legal knowledge and skill of the attorneys, *147 and the diligence and skill of the attorneys. See, e.g., State, Dept. of Transp. and Development v. Williamson, 597 So. 2d 439 (La.1992).
The trial court entered a judgment against I-10 for $11,725.25 on the Association's principal demand. However, the trial court entered a judgment against the Association in excess of $46,000 on I-10's two consolidated principal demands. The Peyton Place condominium declaration provides that "[i]n any proceeding because of an alleged default by a [Peyton Place] unit owner ... the Association shall be entitled to recover the costs of the proceeding and such reasonable attorneys' fees as may be determined by the Court." However, the Association is only entitled to fees "if [it] should be the prevailing party." Who, then, is the "prevailing party" of the claims between the Association and I-10?
The Louisiana Supreme Court has never addressed which party is the "successful party" or the "prevailing party" for purposes of awarding attorney's fees when both parties prevail on affirmative claims. A review of cases decided in other jurisdictions indicates that some courts have held that when the plaintiff has recovered on his complaint against the defendant and the defendant has recovered on his counterclaim against the plaintiff, the "prevailing party" is the party in whose favor a net judgment was entered. See, e.g., Szoboszlay v. Glessner, 233 Kan. 475, 664 P.2d 1327 (1983); Wise v. DeWerd, 373 F.2d 306 (3d Cir.1967) (applying Virgin Islands law).
Other courts have held that a party recovering on its claim may be entitled to costs or attorney's fees as a "prevailing party" despite the fact that the opposing party received a larger recovery on its affirmative claim. See, e.g., Ramco v. H-K Contractors, 118 Idaho 108, 794 P.2d 1381 (1990) (plaintiff entitled to costs on claim on which it recovered and defendant entitled to costs on its successful counterclaim).
We are of the opinion that the trial court did not abuse its discretion in assessing I-10 with attorney's fees on the Association's principal demand. The trial judge awarded the Association attorney's fees on its principal demand and I-10 attorney's fees on the two consolidated privilege cases. Thus, both parties "prevailed" against the other in the sense that both were successful in their respective demands. This is not a case where the Association filed a principal demand and I-10 filed a reconventional demand. Rather, the Association filed a principal demand, I-10 filed two principal demands against the Association, and I-10's principal demands were consolidated with the Association's principal demand. If the former were true, and I-10's reconventional demand resulted in a net judgment entered in its favor, I-10 would arguably have a stronger argument because it would have been the "prevailing party" against the Association's demand. Here, the Association arguably has a stronger argument because both it and I-10 "prevailed" against each other.
In addition, we are of the opinion that the trial court's ruling is supported by the United States Supreme Court's endorsement of a "prevailing party" standard in Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). In Hensley, the Supreme Court noted that a "typical formulation [of the prevailing party standard] is that `plaintiffs may be considered prevailing parties for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" Hensley, 461 U.S at 433, 103 S. Ct. 1933 (citing Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir.1978)). In the instant case, I-10 succeeded at the *148 trial level by securing a judgment in its favor against the Association for filing illegal privileges. Similarly, the Association succeeded at the trial level by securing a judgment in its favor for unpaid condominium dues and assessments.
Accordingly, this assignment of error has no merit.
DIRECT APPEAL SIXTH ASSIGNMENT OF ERROR
In their sixth assignment of error, the Guastella defendants allege that the trial court erred in assessing them with the costs of a court-appointed accountant. More specifically, the Guastella defendants allege that the trial court erred in assessing I-10 with the costs of the accountant's report in solido because I-10 was the prevailing party of the claims between the Association and itself.
La. C.C.P. art. 1920 provides that the trial court may render judgment for costs against any party. Generally, the prevailing party is not assessed with costs, unless he needlessly incurred additional costs or engaged in some conduct, justifying the imposition of costs against him. Law Offices of Robert M. Becnel v. Ancale, 02-285 (La.App. 5 Cir. 9/30/02), 829 So. 2d 573; Brown v. General Motors Corp., 95-245 (La.App. 5 Cir. 10/18/95), 662 So. 2d 531. That rule denies to a trial judge the power either to refuse to award his or her own costs to a prevailing party or to assess another party's costs against a prevailing party unless some circumstances present in the case justify doing so. Muller Elec. Corp. v. E.I. Dupont De Nemours & Co., Inc., 450 So. 2d 746, 749 (La.App. 5 Cir.1984). On review, a trial judge's assessment of court costs will not be reversed on appeal absent an abuse of discretion. See, e.g., Penton v. Schuster, 98-1068 (La.App. 5 Cir. 3/30/99), 732 So. 2d 597.
Thus, the standard for awarding costs is essentially the same as the standard for awarding attorneys fees. I-10 was the prevailing party between the Association and itself on the consolidated cases. The trial court accordingly awarded fees and costs to I-10 in that litigation. The Association was the prevailing party between I-10 and itself on the principal demand. Based on the discussion above, we do not believe that the trial court abused his discretion in assessing I-10 with the costs of the accountant's report.
Accordingly, this assignment of error is without merit.
CROSS APPEAL ADDITIONAL FACTS AND PROCEDURAL HISTORY
As previously mentioned, Guastella's role in the management of Peyton Place had ended by 1989, but he and his associated entities remained unit owners and remain unit owners to this day. The Association at various times took steps to secure payment of condominium fees, including filing statutory privileges on the units that Guastella or his associated entities owned. The Association filed three such privileges on Peyton Place unit 108. The first was filed on October 2, 1990, the second was filed on August 25, 1994, and the third was filed on December 15, 1998. In addition, the Association filed a Notice of Lis Pendens on unit 108 on January 22, 1999. I-10 purchased Peyton Place unit 108 at a foreclosure sale in 2003. The previous owner of Peyton Place unit 108 was PPI.
On December 20, 2004, I-10 filed a Petition for Damages against the president and secretary of the Association. I-10, Inc. v. Williams, et al., 615-106 (La. 24th J.D.C.). I-10 contended that the privileges and Notice of Lis Pendens were illegal because they were recorded before I-10 became the owner of the units. The trial court agreed, and awarded the I-10 *149 $20,000 in damages for the expense Guastella incurred in preparing unit 108 for sale.
CROSS APPEAL ASSIGNMENTS OF ERROR
The Association assigns five errors to the proceedings below. First, the Association contends that the trial court erred in denying its alter ego and single business enterprise theories. Second, the Association contends that the trial court erred in quashing a subpoena duces tecum issued to the Guastella defendants during the trial. Third, the Association argues that the trial court erred in failing to hold the owner of the party room and the recreation room liable for condominium fees and assessments. Fourth, the Association avers that the trial court erred in ruling that prescription of its rental obligation to the owner of the party room and the recreation room was interrupted by the approval of Peyton Place annual budgets. Finally, the Association contends that the trial court erred in awarding $20,000 to I-10 for improperly filing three statutory privileges.
CROSS APPEAL FIRST ASSIGNMENT OF ERROR
In its first assignment of error, the Association contends that the trial court erred in denying its alter ego and single business enterprise theories. More specifically, the Association contends that the trial court failed "to hold Robert P. Guastella, I-10, Inc., Management Equities Corp. and Peyton Place, Inc., liable in solido." We disagree.
Juridical persons, such as corporations, are distinct from their members. La. C.C. art. 24. Stockholders of a corporation are not normally liable for the debts of a corporation. However, under certain circumstances, a court can pierce the veil of a corporation in order to reach the "alter ego" of the corporate defendant and hold the corporate defendant liable for the debts of the corporation. Due to the beneficial role of the corporate concept, the limited liability attendant to corporate ownership should be disregarded only in exceptional circumstances. See, e.g., F.G. Bruschweiler (Antiques) Ltd. v. GBA Great British Antiques, L.L.C., 03-792 (La.App. 5 Cir. 11/25/03), 860 So. 2d 644. When a party seeks to pierce the corporate veil, the totality of the circumstances is determinative. Id. Factors that courts consider when determining whether to apply the alter ego doctrine include but are not limited to the following: (1) commingling of corporate and shareholder funds, (2) failure to follow statutory formalities for incorporating and transacting corporate affairs, (3) undercapitalization, (4) failure to provide separate bank accounts and bookkeeping records, and (5) failure to hold regular shareholder and director meetings. Id. In determining whether to pierce the corporate veil to impose contractual or legal obligations on an individual, competing policies supporting the recognition of a separate corporate existence and those justifying piercing the veil must be weighed to determine if there is some misuse of the corporate privilege or other justification for limiting it under the facts of a particular situation. Regional Urology, L.L.C. v. Price, 42,789, p. 8 (La.App. 2 Cir. 9/26/07), 966 So. 2d 1087, 1093. A trial court's finding that the corporate entity should be disregarded "is a finding of fact [which] we review ... pursuant to the manifest error standard of review." Dishon v. Pontie, 2005-659 (La.App. 3 Cir. 12/30/05), 918 So. 2d 1132, 1135, writ denied, XXXX-XXXX (La.5/5/06), 927 So. 2d 317.
Two witnesses during the trial testified extensively as to the Guastella defendants' business transactions. Jerome Reso was an attorney who assisted Guastella before the creation of Peyton Place. According *150 to Mr. Reso, I-10 had incurred significant losses prior to Peyton Place's creation. Mr. Reso recommended that Guastella merge MEC-I into I-10. The purpose of this transaction was to utilize the losses of I-10 against profits that were expected to arise from the development of the condominium. Mr. Reso was also involved in the incorporation of PPI and later recommended to Guastella that MEC-II sell Peyton Place to PPI. The purpose of this transaction was to take advantage of an advantageous capital gains tax rate. According to Mr. Reso, these transactions were legal under federal tax law.
Mr. Gary Radelat was (and remains) the Guastella defendants' accountant. He has filed tax returns for Guastella and MEC-II/I-10 since 1983[8] Mr. Radelat testified that he reviewed the books and records of MEC-II/I-10 each year before filing tax returns and that all of the yearly business transactions MEC-II/I-10 conducted were represented on the respective return. According to Mr. Radelat, MEC-II/I-10 and PPI maintained separate bank accounts, books, records, and balance sheets. Mr. Radelat recalled that MEC-II/I-10 and PPI conducted transactions between themselves, and that the Association took many of his records after Guastella resigned the Peyton Place presidency in 1989.
Based on a through reading of the record and the testimony of Messrs. Radelat and Reso, we are of the opinion that the trial court did not abuse its discretion in dismissing the Association's alter ego and single business enterprise theories. It is clear from the documents in the record that the Guastella defendants conducted a large amount of business amongst themselves. However, the Guastella defendants established through firsthand testimony that none of Guastella's associated entities was ever undercapitalized and that each maintained a separate bank account. The Guastella defendants similarly established that each entity's corporate books and records were separately maintained, that a separate tax return was filed for each entity, and that each entity was properly formed pursuant to Louisiana law. Moreover, Mr. Radelat's records evidenced a large portion of the business conducted between the Guastella defendants.
Accordingly, this assignment of error has no merit.
CROSS APPEAL SECOND ASSIGNMENT OF ERROR
In its second assignment of error, the Association avers that the trial court erred in granting a Motion to Quash And For A Protective Order. We disagree.
The Association filed a subpoena duces tecum on May 11, 2007, seven days after the first day of the trial in this matter. The Association subpoena demanded that the Guastella defendants return twenty-eight sets of documents on the second day of trial. The Association requested tax returns, documents evidencing credits between Guastella and his associated entities, documents reflecting the various sales of the party room and recreation room, documents pertaining to a case filed by Guastella in federal court, and various other documents. The Guastella defendants filed the Motion to Quash And For A Protective Order in response. The Motion was granted by the trial court on May 25, 2007.
La. C.C.P. art. 1354 requires that a "reasonably accurate description" be given *151 of the documents to be produced pursuant to a subpoena duces tecum. It further provides that a court may vacate or modify the subpoena duces tecum if it is unreasonable or oppressive. In addition, Louisiana jurisprudence recognizes the trial judge's discretion in quashing an unreasonable or oppressive subpoena. See, e.g., Bank of New Orleans and Trust Company v. Reed Printing & Custom Graphics, Ltd., 399 So. 2d 1260 (La.App. 4 Cir.1981).
When the trial court granted the Motion to Quash, the Association had already propounded discovery requests for the same documents The Guastella defendants had already responded to the discovery requests with all records and documents available; the remaining documents could not be located because they had been seized in an earlier bankruptcy proceeding. The subpoena duces tecum was issued after the first day of the trial in this matter, at which point the case had been pending for fifteen years.
We find that the subpoena was unreasonable and oppressive, especially considering that it was served after the trial had already begun. The Fourth Circuit experienced a somewhat similar situation in Thomas v. Weatherford International, 463 So. 2d 751 (La.App. 4 Cir.1985). In Thomas, the plaintiff was using a water blaster to clean out sugar residue in a large tank at a sugar refinery. Thomas, 463 So.2d at 752. He allegedly suffered injuries to his feet while operating the water blaster. Id. Two weeks prior to trial, the Thomas plaintiff filed two subpoenas duces tecum asking the defendant for "all documents and manuals concerning the sale, operation, maintenance and design of the water blaster machine [which plaintiff was using at the time of the accident] ..." and "for all documentations concerning complaints, design defects, safety defects, or accidents relating to the water blasting machine in question ..." Id. The defendant filed a motion to quash, which was granted by the trial court. The Fourth Circuit affirmed, noting that "[t]he request in the subpoena served for the March trial date is extremely broad and cumbersome, especially when viewed in the light that it was served only two weeks before trial." Id. at 753. Similarly, in the instant case, the Association had years to file a subpoena; waiting until trial had already begun was patently unreasonable.
Accordingly, this assignment of error is without merit.
CROSS APPEAL THIRD ASSIGNMENT OF ERROR
In its third assignment of error, the Association alleges that the trial court erred by failing to hold the Guastella defendants liable for condominium fees and assessments on the party room and the recreation room.
As the Association admits, "[t]his [assignment of error] is only an issue if this Court reverses the Trial Court's rulings on prescription and offset." As we affirm the trial court's rulings on prescription and the Guastella defendants' offset claims, thus, this assignment of error becomes moot.
CROSS APPEAL FOURTH ASSIGNMENT OF ERROR
In its fourth assignment of error, the Association contends that the trial court erred in ruling that prescription of its rental obligation to the owner of the party room and the recreation room was interrupted by the approval of Peyton Place annual budgets. We disagree.
"Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe." La. C.C. art. 3464. Several of the Association's annual operating budgets are contained in the record. The earliest budget in the record was for the period beginning on May 1, 1980 and the last *152 budget in the record was for the period ending on April 30, 1989.[9] In each of the extant budgets, "Lease Club & Party Room" is listed as an operating expense. The budget for the fiscal year beginning May 1, 1985 reflects the fact that the rent of the party room and the recreation room increased that year per the terms of the May 1, 1980 lease. It was established through unrefuted testimony that the members of the Association were presented with the operating budget each year at the Association's annual meeting. It was additionally established through unrefuted testimony that the members of the Association approved each annual budget. Thus, in each annual budget, the Association recognized the right of the owner of the party room and the recreation room to recover rental payments for that particular fiscal year. That is all that is required for an acknowledgment. See, e.g., Flowers, 381 So.2d at 381-82 (discussing La. C.C. art. 3520, the predecessor Civil Code article to La. C.C. art. 3464).
In addition, we note that even if the Guastella defendants' rent claims had not been interrupted by the approval of Peyton Place annual budgets, the claims would still be prescribed. The fiscal year of the last annual budget in the record ended April 30, 1989. Therefore, assuming that no interruption had occurred, the Guastella defendants' rent claims would have prescribed on April 30, 1992. See La. C.C. art. 3494(2) ("arrearages of rent" are subject to a three year prescriptive period). The instant suit was not filed until December 1992.
Accordingly, this assignment of error is without merit.
CROSS APPEAL FIFTH ASSIGNMENT OF ERROR
In its fifth assignment of error, the Association contends that the trial court erred in awarding $20,000 to I-10 for an improperly filed statutory privilege. We agree.
The Louisiana Condominium Act provides that a condominium "association shall have a privilege on a condominium parcel for all unpaid or accelerated sums assessed by the association." La. R.S. 9:1123.115. Moreover, "if the unit owner fails to timely pay the assessments for common elements for a period of six months or more during any eight-month period ... the association may accelerate the assessment on the common elements for a twelve-month period and file a privilege for the accelerated sums." Id. (emphasis added). An [a]ssociation of unit owners or association is defined in the Act as a corporation, or unincorporated association, owned by or composed of the unit owners and through which the unit owners manage and regulate the condominium. La. R.S. 9:1121.103(8).
Based on the language of the Act, it is apparent that a privilege for unpaid or accelerated condominium fees may only be recorded against the owner of the condominium unit. The record indicates that privileges for unpaid dues were recorded against I-10 in 1990, 1994, and 1998 and that a Notice of Lis Pendens was recorded against I-10 in 1999. All of the privileges and the Notice of Lis Pendens burdened Peyton Place unit 108. However, I-10 did not become the owner of unit 108 until 2003. Thus, the privileges were wrongly filed.
While we agree that the privileges were wrongly filed, we cannot agree that the trial court properly awarded I-10 $20,000. There is no statutory basis for an award of damages under the Louisiana *153 Condominium Act. At the trial level, counsel for the Guastella defendants argued that the Association was liable for damages pursuant to La. R.S. 9:4833. La. R.S. 9:4833 B provides:
One who, without reasonable cause, fails to deliver a written request for cancellation in proper form to cancel the claim or privilege ... shall be liable for damages suffered by the owner or person requesting the authorization as a consequence of the failure and for reasonable attorney fees incurred in causing the statement to be cancelled.
(emphasis added)
Counsel for the Guastella defendants argued that the Association failed to provide I-10 with a written request for cancellation, thus, the Association was liable to the Guastella defendants for damages. However, La. R.S. 9:4833 is contained in the Louisiana Public Works Act, which "secure[s]... obligations of the owner [of an immovable] arising out of a work on the immovable." La. R.S. 9:4801. There is no corresponding article contained in the Louisiana Condominium Act; nothing in the Act purports to hold a condominium association liable for damages for wrongfully filing a privilege for unpaid condominium fees. Accordingly, we find that the trial court improperly awarded $20,000 to I-10 for filing an illegal statutory privilege
CONCLUSION AND DECREE
For the foregoing reasons, the Association's Motion for Partial Dismissal is granted. The portion of the trial court's judgment awarding $20,000 to I-10 for an improperly filed privilege is reversed. Judgment is entered in favor of the Association on that claim. In all other respects, the judgment of the trial court is affirmed.
NOTES
[1] The Peyton Place Condominium Association, Inc. is now known as the "1161 Lake Avenue Condominium Association, Inc."
[2] At the time of filing, I-10, Inc. was known as "Management Equities Corporation"
[3] Robert Guastella, Peyton Place, Inc., and I-10, Inc. will hereinafter collectively be referred to as the "Guastella defendants."
[4] I-10 and PPI were not part of the February 24, 1993 reconventional demand.
[5] The parties occasionally refer to the proceedings below as an "evidentiary hearing." We construe the proceedings below to be a trial on the merits because the trial judge ruled on all of the Association's and the Guastella defendants' legal claims. Black's Law Dictionary defines "trial" as "[a] formal judicial examination of evidence and determination of legal claims in an adversary proceeding." BLACK'S LAW DICTIONARY 1510 (7th ed.1999). A "bench trial" is defined as a "trial before a judge without a jury. The judge decides questions of fact as well as questions of law." Id. At the trial court level, exhibits were introduced into evidence, witnesses were examined and cross-examined by both parties, and the order of trial was consistent with La. C.C.P. art. 1632.
We additionally note that the trial court's judgment determined the "merits [of the case] in whole" and is therefore a final appealable judgment under La. C.C.P. art. 1841. In the judgment, the trial court opined that the "matter came before the court for trial on the merits." If the proceedings below had been an evidentiary hearing, the trial court's judgment may well of been interlocutory and the Guastella defendants would have had to file an application for supervisory writs with this Court rather than an appeal. See La. C.C.P. art. 2083 (interlocutory judgments are only appealable when expressly provided by law); Mt. Hawley Ins. Co. v. ADT Sec. Systems, Inc., 02-298 (La.App. 5 Cir. 10/29/02), 831 So. 2d 480, 483 Herlitz Constr. Co. v. Hotel Investors of New Iberia, Inc., 396 So. 2d 878 (La. 1981) (interlocutory judgments are only appealable when they may cause irreparable injury).
[6] Guastella was ordered to pay the Association $138.319.46. PPI was ordered to pay the Association $154,807.26. I-10 was ordered to pay the Association $11,725.25.
[7] La. C.C.P. art. 2088 provides, in pertinent part:
A. 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 and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:
(1) Allow the taking of a deposition, as provided in Article 1433;
(2) Extend the return day of the appeal, as provided in Article 2125;
(3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
(4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132
(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
(6) Grant an appeal to another party;
(7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;
(8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code;
(9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or
(10) Set and tax costs and expert witness fees.
[8] Mr. Radelat filed tax returns on behalf of MEC-II before the corporate name was changed back to I-10. At that point, he began to file tax returns for I-10. For the purposes of this assignment of error only, I-10 will be referred to as "MEC-II/I-10" to reflect that MEC-II was renamed I-10.
[9] There are no annual operating budgets in the record for fiscal years after April 30, 1989. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557516/ | 30 So. 3d 470 (2008)
JAMES WEST
v.
JACKIE GRAHAM, DIR., STATE PERS. BD.
No. 2070840.
Court of Civil Appeals of Alabama.
July 11, 2008.
Decision of the Alabama Court of Civil Appeal Without Published Opinion Dismissed for lack of prosecution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3765722/ | DECISION AND JOURNAL ENTRY
{¶ 1} Appellant, Richard W. Cooey, II, appeals the decision of the Summit County Court of Common Pleas, which dismissed his motion for postconviction relief. This Court affirms.
I. {¶ 2} On December 5, 1986, a three judge panel of the Summit County Court of Common Pleas found defendant guilty of two counts of aggravated murder, two counts of kidnapping, four counts of rape, two counts of aggravated robbery, and one count of felonious assault. The panel sentenced him to death on the two counts of aggravated murder and to 48 to 140 years incarceration on the other counts. Appellant's convictions and sentences were affirmed on direct appeal by this Court in State v. Cooey (Dec. 23, 1987), 9th Dist. No. 12943, and by the Supreme Court of Ohio.State v. Cooey (1989), 46 Ohio St.3d 20, cert. denied, Cooeyv. Ohio (1991), 499 U.S. 954, 113 L.Ed.2d 482.
{¶ 3} On February 6, 1992, appellant filed a petition for postconviction relief pursuant to R.C. 2953.21, alleging sixty-five claims for relief. The Summit County Court of Common Pleas dismissed the petition. This Court affirmed the dismissal.State v. Cooey (May 25, 1994), 9th Dist. Nos. 15895 and 15966.
{¶ 4} Appellant filed a second motion for postconviction relief on July 17, 2003. The State responded with a motion to dismiss said petition on July 18, 2003. The trial court dismissed appellant's petition, holding that it lacked jurisdiction to hear the matter.
{¶ 5} Appellant timely appealed, setting forth seven assignments of error for review. For the reasons set forth below, this Court will not address the merits of appellant's present appeal.
II. {¶ 6} R.C. 2953.21 sets forth the statutory framework governing post-conviction relief. Specifically, this statute provides defendants with a mechanism to petition the trial court for an evidentiary hearing and request relief on the basis that their convictions are void or voidable on state or federal constitutional grounds. R.C. 2953.21. R.C. 2953.21(A)(2) provides, in pertinent part:
"[A] petition under division (A)(1) of this section shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court."
{¶ 7} Furthermore, R.C. 2953.23(A) provides, in pertinent part:
"[A] court may not entertain a petition filed after the expiration of the period prescribed in [R.C. 2953.21(A)] or a second petition or successive petitions for similar relief on behalf of a petitioner unless both of the following apply:
"(1) Either of the following applies:
"(a) The petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief.
"(b) Subsequent to the period prescribed in [R.C.2953.21(A)(2)] or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right.
"(2) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted[.]"
{¶ 8} In the case sub judice, appellant has failed to satisfy the criteria set forth in R.C. 2953.23(A) to allow the trial court jurisdiction to hear his second petition for postconviction relief. Appellant has not demonstrated that he was "unavoidably prevented" from discovery of the facts upon which he must rely to present the claim for relief. R.C. 2953.23(A)(1)(a). Nor has appellant asserted that his claim was based on a new federal or state right recognized by the United States Supreme Court. R.C.2953.23(A)(1)(b). Finally, appellant cannot demonstrate that "but for constitutional error at trial," no reasonable factfinder would have found him guilty of aggravated murder, kidnapping, rape, aggravated robbery, and felonious assault. R.C.2953.23(A)(2). This Court finds appellant failed to satisfy the criteria set forth at R.C. 2953.23(A) governing successive petitions for postconviction relief and, therefore, the trial court was without jurisdiction to consider the merits of appellant's petition.
{¶ 9} As the trial court lacked jurisdiction to consider appellant's petition, it was not required to hold an evidentiary hearing. See State v. Furcron (Feb. 17, 1999), 9th Dist. No. 98CA007089; State v. Flowers (Nov. 12, 1998), 9th Dist. No. 2842-M. Consequently, this Court finds that the trial court did not abuse its discretion in dismissing appellant's second postconviction petition without a hearing.
III. {¶ 10} Accordingly, the decision of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
Whitmore, J. Batchelder, J. concur | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1557631/ | 22 So.3d 547 (2009)
DURHAM
v.
STATE.
No. 2D08-6089.
District Court of Appeal of Florida, Second District.
November 20, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2453628/ | 256 P.3d 1097 (2011)
350 Or. 423
HEINZ
v.
MILLS.
(S059347).
Supreme Court of Oregon.
June 10, 2011.
Petition for review Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557782/ | 22 So.3d 70 (2009)
BETHUNE
v.
STATE.
No. 1D09-1997.
District Court of Appeal of Florida, First District.
October 30, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1558864/ | 644 F.Supp. 986 (1986)
The TORO COMPANY and Toro Credit Company, Plaintiffs,
v.
KROUSE, KERN & COMPANY, INC.; K. Paul Kauffman; and John Doe, Defendants.
Civ. No. F 85-517.
United States District Court, N.D. Indiana, Fort Wayne Division.
October 1, 1986.
*987 Howard B. Sandler and Thomas J. Goeglein, Fort Wayne, Ind., for plaintiffs.
David A. Baugh, Chicago, Ill, Ralph R. Blume, Fort Wayne, Ind., for defendants.
ORDER
WILLIAM C. LEE, District Judge.
This matter is before the court on a motion for summary judgment filed by the defendants, Krouse, Kern & Company, Inc. and K. Paul Kauffman (Krouse). Plaintiffs Toro Company and Toro Credit Company (Toro) have responded to the motion, and Krouse has filed a reply. The court heard oral argument on July 23, 1986. For the reasons which follow, Krouse's motion for summary judgment will be granted.
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may only be granted 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). In making this determination, the court must keep in mind that the entry of summary judgment terminates the litigation, or an aspect thereof, and must draw all inferences from the established or asserted facts in favor of the non-moving party. Munson v. Friske, 754 F.2d 683, 690 (7th Cir.1985). The non-moving party's reasonable allegations are to be accepted as true for purposes of summary judgment. Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1218-19 (7th Cir.1984). A party may not rest on the mere allegations of the pleadings *988 or the bare contention that an issue of fact exists. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983).
Toro commenced this action on December 30, 1985. The dispute concerns certain accounting services provided by Krouse to Summit Power Equipment Distributors, Inc. (Summit), a distributor of Toro products in Indiana. Specifically, the case involves three audit reports issued by Krouse after the examination of Summit's records for the fiscal years involved: (1) the 1981 report, dated February 17, 1982; (2) the 1982 report, dated December 22, 1982; and (3) the 1983 report, dated March 28, 1984.
Toro alleges that in reliance upon representations made in the audit reports, it extended and renewed large amounts of credit to Summit. The complaint further alleges that the reports overstated Summit's assets, and that Summit ultimately became unable to repay these amounts which never would have been extended in the first place had the auditing reports been accurate.
The circumstances regarding the furnishing of the reports, Krouse's knowledge of the uses to which Summit would put them, and the degree and kind of contact between Krouse and Toro are the material issues of fact. Whether these issues preclude the granting of summary judgment at this point depends on the standard of care which accountants are legally bound to meet in this situation, a question which has yet to be addressed in Indiana.
In addition to this substantive legal issue, Krouse raises two other questions. First, it argues that the court may not consider certain portions of the affidavits provided by Toro in support of its opposition to Krouse's motion since they fail to meet the standards set forth in Rule 56(e). Second, Krouse maintains that two of the three reports were issued, and therefore any harm to Toro was suffered, more than two years prior to the filing of the complaint. As a result, argues Krouse, these reports cannot be considered as a basis for any of Toro's claims since they fall outside the applicable statute of limitations.
This order considers the issue regarding compliance with Rule 56(e) first in order to establish what facts may be considered in this motion. Once determined, these facts will be applied to the standard of accountant liability which this court believes the Indiana Supreme Court would find as the law of this state were it to consider the issue. West v. American Telephone & Telegraph Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940); Neofes v. Robertshaw Controls Co., 409 F.Supp. 1376, 1379-80 (S.D.Ind.1976). The statute of limitations issue will be addressed last.
I. Sufficiency of Affidavits
Rule 56(e) is an integral part of the standard set forth in Rule 56(c). It is designed to ensure that only reliable evidence will be considered in determining whether a genuine issue of material fact exists. It reads in part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
. . . . .
This rule has been construed in conformance with its underlying objective of putting only reliable evidence before the court, while loosening the rigid evidentiary requirements necessary at trial where appropriate. For example, the Seventh Circuit has refused to consider exhibits offered in connection with a motion for summary judgment when they were not identified by affidavit or otherwise made admissible in evidence, Matz v. Union Labor Life Insurance Co., 757 F.2d 135, 138 (7th Cir.1985), but has indicated that affidavits themselves may be considered in such a motion even if not in a form that would be admissible as evidence as long as it is clear that their content would be admissible. First Nat'l Bank Co. of Clinton, Ill. v. Insurance Co. of North America, 606 F.2d 760, 766 (7th Cir.1979). This approach is consistent with *989 recent Supreme Court statements on this subject:
We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Obviously, Rule 56 does not require the nonmoving party to depose her own witnesses. Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred.
Celotex Corp. v. Catrett, ___ U.S. ___, ___, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). See 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 2738 (1983).
This court has used a similar standard in testing the sufficiency of affidavits for purposes of a motion for summary judgment:
If the affidavits contain inadmissible allegations, the court must disregard those allegations and consider only "the admissible portion in determining whether to grant or deny the [summary judgment] motion." Lee v. Nat'l Life Assurance Co., 632 F.2d 524, 529 (5th Cir. 1980).
Roberts v. Hochstetler, 592 F.Supp. 703, 706 (N.D.Ind.1983).
Krouse argues that many of the statements contained in the affidavits of Toro which accompany its opposition to Krouse's motion fail to meet this admissibility standard. It claims that many statements found in the three affidavits provided by Toro are either conclusory, hearsay, or not made on personal knowledge, and therefore inadmissible.
An assessment of this argument requires a close examination of the affidavits in question. The first affidavit is that of John Fiedler, bookkeeper and controller of Summit. Paragraph 2 of the affidavit states that "he has personal knowledge of the facts set forth herein, and is competent to testify to such matters." Two subsequent paragraphs qualify this statement by prefacing certain allegations with "to the best of affiant's knowledge and belief." See Fiedler Affidavit, Paragraphs 5, 10. The second affidavit, that of Peter K. McDonough, Sr., president of Summit, has a similar format, and indeed contains many paragraphs which are verbatim reiterations of those in Fiedler's. Paragraphs 5 and 10 contain the same qualifying language. Statements based merely on knowledge and belief do not satisfy the standards of Rule 56(e) requiring personal knowledge. Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1391, 1367 (8th Cir. 1983). The aforementioned paragraphs, which concern Toro's reliance on the reports and Krouse's knowledge of this fact, are therefore not properly considered because of this deficiency.
Defendants object to several other paragraphs in these affidavits on the basis that they are conclusory. In this regard, Rule 56(e) clearly indicates that facts stated in an affidavit must do more than state legal conclusions or even ultimate facts. Rather, to be considered in connection with a motion for summary judgment, facts must be stated with specificity, both to bolster their reliability and avoid the drawing of legal conclusions by persons other than those trained to do so. Because the range of statements which fall between appropriate specificity and improper conclusory statements runs along a continuum, bright lines can be difficult to draw. The Seventh Circuit has discussed this issue thoroughly, however, providing guidance in the instant case. In Pfeil v. Rogers, 757 F.2d 850 (7th Cir.1985), the court considered the adequacy of affidavits in connection with a case brought under 42 U.S.C. § 1983. It upheld the district court's exclusion of certain statements both because they were legal arguments and unsupported suspicion. The plaintiff accused the defendant district attorney of providing inaccurate legal advice to law enforcement officers and that he had conspired with them to kill his son's dogs. The Seventh Circuit reasoned:
*990 Because legal argumentation is an expression of legal opinion and is not a recitation of a "fact" to which an affiant is competent to testify, legal argument in an affidavit may be disregarded. The plaintiff's argument that [the defendant's] advice was incorrect is legal argument and may not be considered as a recitation of fact to which the affiant was competent to testify; thus it may be disregarded. Furthermore, because the plaintiff's conclusion that [the defendant] conspired to illegally destroy the dogs is nothing more than unsupported suspicion and argumentation without foundation in the record, it likewise is without merit.
757 F.2d at 862.
Thus, in this instance, the court found two independent reasons for excluding the questioned statements in the affidavits. They were both impermissible legal argument and unsupported suspicions. Obviously, such statements will also not be made on personal knowledge, giving rise to another basis for exclusion.
Krouse challenges several statements in addition to those already considered in Toro's supporting affidavits on all of these grounds. Paragraph 7 of both the Fiedler and McDonough affidavits state that "Krouse, Kern and Kauffman were well aware that Toro was a major supplier of equipment to Summit Power." Paragraph 8 of both affidavits uses the same language in describing Toro's status as a major creditor of Summit. Paragraph 9 of the affidavits states that "Krouse, Kern and Kauffman well knew that Summit Power intended to supply copies of the 1981, 1982, and 1983 audit reports to Toro...." Beyond these conclusory statements which on their face could not be based on personal knowledge, the affidavits do not further elaborate on how the affiants became aware of the subjective knowledge of the defendants. Consequently, these statements resemble allegations more appropriate for pleadings than specific, nonconclusory facts in an affidavit offered in support of a party's position in a motion for summary judgment.
Other portions of these affidavits make similar allegations regarding the motives of Krouse. Another portion of Paragraph 9 of both the Fiedler and McDonough affidavits states that the defendants supplied multiple copies of the reports at issue "for distribution by Summit Power to its major suppliers and creditors, including Toro." Again, no further indication is provided as to how the affiants personally became aware of Krouse's motives in connection with its distribution of multiple copies of the reports. Paragraph 12 of McDonough's affidavit states that "[a]fter affiant met with [Toro's credit manager], [Toro's credit manager] made a telephone call to Kauffman to discuss the reported loss in the audit report." No indication is given that the affiant actually witnessed this phone conversation, and conspicuous by its absence is any affidavit by the credit manager involved.
All of the aforementioned portions of Toro's affidavits fail to meet the requirements of Rule 56(e). As discussed previously, the standard set forth therein for the adequacy of supporting affidavits is a high one, and the rule places an affirmative duty on the affiant to present statements which would be admissible at trial. It is conceivable that the substance of many of the paragraphs noted above might have been made admissible through a more specific rendition of facts demonstrating the personal knowledge of the affiants. Those paragraphs which state that Krouse knew of Toro's status as a major creditor and supplier of Summit, for example, might have been supported by a recitation of facts showing sufficient contact between the affiants and Krouse to render the statements admissible at trial. Indeed, such contact goes to the essence of this case, and Toro will not be permitted to short circuit its evidentiary burden by supplying statements in their affidavits which resemble pleadings more than actual evidence. The mere fact that introductory paragraphs in the affidavits recite that they are made on personal knowledge will not cure these deficiencies.
*991 Consequently, that portion of Paragraph 5 of both the Fiedler and McDonough affidavits regarding their "knowledge and belief" of Toro's credit practices is not properly considered. This is of little consequence, however, since Borne's affidavit adequately covers the substance of these paragraphs. In addition, Paragraphs 7-10 and Paragraph 12 of the Fiedler affidavit fail to meet the standards of Rule 56(e), as well as the related Paragraphs 7-10 and Paragraph 13 of the McDonough affidavit. Finally, McDonough's statement in Paragraph 12 regarding the telephone conversation discussed therein also is not properly considered by the court.
The evidence properly before the court in connection with this motion for summary judgment, then, includes those portions of Toro's affidavits not excluded above, the affidavit of K. Paul Kauffman in support of defendants' motion for summary judgment, and the answers to interrogatories filed by Krouse on March 14, 1986.
II. Accountant Liability
Toro's complaint alleges, in three counts, that Krouse was negligent, grossly negligent and recklessly indifferent, and that it committed constructive fraud upon Toro. Toro asserts that in reliance upon the Summit audit reports for 1981, 1982, and 1983 prepared by Krouse, it renewed its distributorship agreement with Summit, and extended and renewed large amounts of credit to Summit which Summit was unable to repay to Toro. Toro further asserts that it relied to its detriment upon these audit reports, and was subsequently damaged because they did not accurately reflect Summit's true financial condition.
Each count alleges that Krouse knew, should have known, or should have foreseen that: (1) Summit employed Krouse to provide financial information to various entities to obtain credit; (2) the audit reports prepared by Krouse would be supplied by Summit to such entities who would rely on them; and (3) Summit intended to and did submit these reports to Toro for the purpose and with the effect of inducing extensions and renewals of credit and the distributorship agreement.
The issue in this case is whether the standard of care that would be required of accountants under Indiana law is such that these allegations in conjunction with the evidence properly before the court are sufficient to present a genuine issue of material fact. Three different standards have evolved in various jurisdictions. This court must determine which of these the Indiana Supreme Court would adopt if presented with the issue.
The most restrictive standard, and the one urged upon the court by Krouse, was announced in Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931). The opinion, authored by Chief Judge Cardozo, disallowed a cause of action in negligence against a public accounting firm for inaccurately prepared financial statements which were relied upon by a plaintiff having neither contractual privity with the accountants, 174 N.E. at 448, nor a relationship "so close as to approach that of privity," id. at 441. That this is still the law of New York was confirmed recently in Credit Alliance Corp. v. Arthur Anderson & Co., 65 N.Y.2d 536, 493 N.Y.S.2d 435, 483 N.E.2d 110 (1985). In elaborating upon the reasoning of Ultramares, Credit Alliance developed a set of criteria to determine whether the "privity or near-privity" standard had been met:
Before accountants may be held liable in negligence to noncontractual parties who rely to their detriment on inaccurate financial reports, certain prerequisites must be satisfied: (1) the accountants must have been aware that the financial reports were to have been used for a particular purpose or purposes; (2) in the furtherance of which a known party or parties was intended to rely; and (3) there must have been some conduct on the part of the accountants linking them to that party or parties, which evinces the accountants' understanding of that party or parties' reliance.
493 N.Y.S.2d at 443, 483 N.E.2d 110.
Several states have followed this restrictive view of accountant liability, including *992 Florida, Illinois, and Iowa. Credit Alliance did acknowledge, however, that other jurisdictions have allowed recovery despite the absence of privity. 493 N.Y.S.2d at 439 n. 7, 483 N.E.2d 110 (citing cases both following and rejecting Ultramares standard).
The intermediate standard gaining favor among some jurisdictions permits recovery for those who are actually foreseen as parties who will and do rely upon the financial statements. This standard is set forth in the Restatement (Second) of Torts § 522 (1981). It provides in part:
§ 552. Information Negligently Supplied for the Guidance of Others
(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.
Subsection (3) relates to public employees, and does not apply to this case.
The rationale supporting this extension of the standard is that a higher standard would stimulate improved accounting techniques and force accountants to insure against such liability, with the added costs passed along to clients. In this way, the risk of liability for accountants' negligence would be more fairly distributed. See Rusch Factors, Inc. v. Levin, 284 F.Supp. 85 (D.R.I.1968) (applying Rhode Island law). See also Raritan River Steel Co. v. Cherry, Bekaert & Holland, 339 S.E.2d 62 (N.C.Ct.App.1986) (modified Restatement test); Haddon View Investment Co. v. Coopers & Lybrand, 70 Ohio St.2d 154, 436 N.E.2d 212 (1982) (adopting Restatement).
Two jurisdictions have proceeded beyond the "actually foreseeable" test of the Restatement and adopted a "reasonably foreseeable" test. Under this standard, accountants owe a duty of care to all parties who are reasonably foreseeable recipients of financial statements for business purposes, provided the recipients rely on the statements pursuant to those business purposes. See Rosenblum v. Adler, 93 N.J. 324, 461 A.2d 138 (1983); Citizens State Bank v. Timm, Schmidt & Co., 113 Wis.2d 376, 335 N.W.2d 361 (1983).
Indiana has yet to address the question of accountant liability squarely. At least one court, however, has speculated that Indiana would adopt the Restatement position. In Seedkem, Inc. v. Safranek, 466 F.Supp. 340, 344 (D.Neb.1979), the court, applying Indiana substantive law through application of Nebraska's choice of law rules, stated:
Significantly, both jurisdictions, Indiana and Nebraska, have followed the position taken by the Restatement in the area of strict liability in tort, and have abandoned the requirement of privity in that area. Seemingly, these jurisdictions, when faced with the issue [of accountant liability], could be expected to follow the position taken by the Restatement in this area as well and abandon the requirement of privity.
(Citations omitted). This analysis, however, is too shallow in light of Indiana cases addressing issues analogous to the specific issue of accountant liability raised herein.
Several cases have considered the general issue of professional liability to third parties who have had limited or no contact with the provider of services. A pair of early cases regarding abstractor liability provides initial guidance as to the attitude *993 of Indiana courts in this area. In Brown v. Sims, 22 Ind.App. 317, 53 N.E. 779 (1899), the landowner, hoping to borrow money from Brown, engaged Sims to prepare an abstract of title; Sims personally assured Brown that Brown could rely on the title being free of any defect or lien. In reliance on these assurances, Brown made a mortgage loan to the landowner. In fact, a lien had been recorded against the land, and Brown was left with a large deficiency when he was forced to foreclose the mortgage. The landowner being insolvent, Brown sued Sims. The trial court dismissed the complaint for want of a cause of action, and the appellate court reversed. The personal contact between the defendant and plaintiff in Brown was decisive. The abstractor delivered the abstract to the lender for his use, represented to the lender prior to the loan that the land was free from liens, and indicated to the lender that he could rely on the abstract in making the loan. Id. at 783.
This kind of personal contact was missing in Ohmart v. Citizens' Savings & Trust Co., 82 Ind.App. 219, 145 N.E. 577 (1924). There, the defendant neglected to include judgment liens in an abstract of title prepared for the seller of certain real property. The purchaser, who was not dealing with either the seller or the savings and trust company at the time the abstract was prepared, was forced to satisfy the liens and sought redress against the savings and trust company. The directed verdict for the savings and trust company was affirmed. The court held that this result would have been appropriate even in the face of a custom in the community that the owner of real estate procure an abstract of title whenever a sale or incumbrance was sought. Id. at 578.
Both of these cases were discussed and relied upon in Peyronnin Construction Co. v. Weiss, 137 Ind.App. 417, 208 N.E.2d 489 (1965). Peyronnin involved a contractor's suit against engineers who had negligently provided excavation information to a subcontractor. The engineers had underestimated the cost of excavating a building site, and the prime contractor relied on the inaccurate figures in submitting its low bid on the job. In sustaining the demurrers, the court stated that there were no facts
to show that an erroneous estimate was ever delivered to the appellant by the appellees, nor were there any promises or assurances made by appellees to appellant. In the case at bar we find no allegations of fact that there was any relationship existing between the parties to this appeal creating a duty of appellees to appellant.
Id. at 494-495.
The most recent Indiana case to discuss this general issue is Essex v. Ryan, 446 N.E.2d 368 (Ind.App.1983). There, subsequent purchasers of property filed suit against a surveyor who had allegedly conducted an inaccurate survey for the prior owner. The court held that the surveyor owed no duty to the plaintiffs because he had no knowledge they would rely upon his survey and because he was not in privity with them. Id. at 374. In reaching this conclusion, the court considered the three Indiana cases previously discussed above. The court agreed with the distinction drawn in these cases between actual knowledge that a third party will rely on the opinion given and an expectation that unidentified others might rely on it. It criticized the result in Peyronnin, however, by noting that the engineers did, in fact, know that the prime contractor would rely on the work they performed on behalf of the subcontractor, as evidenced by the direct contact between the engineers and the prime contractor. Peyronnin ignored this fact, and instead based its decision on the fact that there was no contractual relationship between the parties. 446 N.E.2d at 372.
Essex also explicitly considered two of the three standards for professional liability to third parties noted above. It quoted with approval the "privity or near-privity" standard as outlined in Ultramares, supra, while rejecting the "actually foreseeable" Restatement position. 446 N.E.2d at 373. In so concluding, the court expressed its concern regarding the undue expansion of *994 liability: "We are not convinced that the economic benefits accruing to consumer plaintiffs would outweigh the hazards of potential liability which abolition of the privity requirement would impose upon providers of professional opinions." Id.
It is clear that Indiana falls among those jurisdictions which follow the narrow Ultramares standard requiring either a contractual relationship between the parties or at least affirmative evidence of contact between the professional and the third party which indicates the professional's knowledge of the third party's reliance. In Brown, the only case to allow the cause of action to go forward, this contact was extensive and explicit.
The question then becomes the extent these general cases should be distinguished, if at all, from the specific instance of accountant liability. The court sees no reason why such a distinction should be made in this case. It is true that Essex was careful to limit its holding to the particular facts of that case, 446 N.E.2d at 373, but it appears that the limitation arose out of an abundance of caution rather than any peculiarities which set surveyors apart from other professionals. This is shown by the court's consideration of similar cases in many other fields, including accountants, attorneys, and abstractors. In addition, it considered the Restatement position extensively, which speaks only in general terms. Finally, it is especially significant that the court in Essex supported its ultimate conclusion by direct reference to Ultramares, an accountant case.
Certainly an examination of the nature of exposure experienced by surveyors who negligently render their services as compared with accountants does not suggest that accountants should be subject to a more liberal standard. If such a comparison is at all helpful, it counsels the opposite conclusion. Surveyors generally base their opinions on fewer calculations from fewer sources than do accountants. This fact is readily demonstrated by Krouse's answer to Toro's Interrogatory No. 8, which recounts in detail the accounting methods and procedures utilized by Krouse in conducting the Summit audits. Fourteen procedures are outlined, each involving detailed examination and confirmation of various financial records and transactions.
Thus, despite the lack of direct authority, this court is convinced that Indiana's experience in related cases indicates that it would not deviate from the consistent path it has taken with professionals in general when considering accountant liability in particular. While it is doubtless true that some of the cases from other jurisdictions discussed in early Indiana cases have since been overruled in the wake of progressive trends typified by the Restatement position, Indiana has given no indication to date of any inclination to follow suit. Essex, especially, reflects a conscious policy choice in favor of limiting the exposure of professionals. This court is in no position, nor is it inclined, to reverse this trend. Predicting the direction of state law on a novel question is inherently a backward-looking process. The view in this case is clear. This court holds that Indiana would continue to adhere to the "privity or near-privity" standard as set forth in Ultramares and discussed in detail in Credit Alliance, supra.
When this standard is applied to the facts as developed in this case, Krouse's motion for summary judgment should be granted. This conclusion is safely reached even before determining whether the 1981 and 1982 reports fall outside the statute of limitations, an issue considered below. Indeed, it would even be true if the court were to consider the defective paragraphs of Toro's affidavits.
In a motion for summary judgment, the court is bound to consider all the evidence, especially regarding disputed factual issues, in the light most favorable to the nonmoving party. The most comprehensive source of evidence in this case at this point is Krouse's answers to interrogatories. None of the detailed information contained therein indicates conduct on Krouse's part which would rise to the standard set forth in Credit Alliance. Much of *995 this information is uncontradicted by Toro's affidavits, the most substantial source of evidence favorable to Toro. To the extent that factual conflicts do exist, none of the paragraphs in the affidavits, defective or otherwise, are sufficient to survive a motion for summary judgment under the Credit Alliance standard. Toro's affidavits and the other evidence before the court reasonably could be construed as meeting the first two prongs of this three-part test. That is, a reasonable inference can be made that Krouse knew that the reports it furnished to Summit were to be used by Summit to induce Toro's extension of credit and distributing rights based on Toro's reliance on the information contained in the reports.
It is on the third prong of the test, however, that the complaint and supporting evidence fail. With one exception, there is no indication of conduct which can be remotely construed as providing the necessary "near-privity" link between Krouse and Toro. The exception is contained in Paragraph 12 of the McDonough affidavit, previously discounted as inadmissible and therefore not properly considered by the court. Because of its importance as the only connection, admissible or inadmissible, between Toro and Krouse, it merits some discussion. In the latter portion of Paragraph 12, McDonough makes the following statement:
On April 13 or 14, 1978, Bob Costello, a credit manager with Toro, flew to Fort Wayne, Indiana, to meet with affiant to discuss [a reported loss for 1976]. After affiant met with Mr. Costello, Mr. Costello made a telephone call to Kauffman to discuss the reported loss in the audit report.
This attenuated link between Toro and Krouse cannot serve to defeat the granting of summary judgment in this case. As previously discussed, McDonough's reference to the content of any phone conversation is inadmissible hearsay, especially in view of the fact that he offers no indication as to how he knew that the call ever took place. If he were privy to the conversation by way of a speaker phone, for instance, Rule 56(e) places upon him an affirmative obligation to state this fact to verify his personal knowledge that the conversation took place. This at least would demonstrate some kind of connection between Toro and Krouse, although the hearsay issue still would remain as to the content of the conversation. More fundamentally, however, this paragraph refers to a conversation which took place years before the allegations which form the basis of Toro's complaint. Its value as evidence is minimal, and by itself is insufficient as a matter of law to present a jury question. This is especially true since the paragraph indicates that Toro contacted Krouse. The third part of the Credit Alliance test requires "conduct on the part of the accountants linking them to [Toro]." 493 N.Y.S.2d at 443, 483 N.E.2d 110 (emphasis added). It is doubtful that an unsolicited contact from Toro to Krouse, which is all that Paragraph 12 suggests, would satisfy the test.
Similarly, other paragraphs in Toro's affidavits fail to present evidence which shows the necessary connection between plaintiffs and defendants. They clearly show a relationship among three parties, with Summit forming the joint between Toro and Krouse. The third side of the triangle, however, remains open.
The comprehensive answers to interrogatories fail to provide evidence which would close this gap. Detailed information is provided regarding the employees of Krouse involved in the Summit audits over the years, the methods employed in conducting the audits, and the extent of Krouse's knowledge of Summit's dealings with Toro. Regarding this last issue, Krouse indicates that it was "aware that a buyer-seller relationship existed between Summit and Toro, and that occasional credit was extended by Toro to Summit," as shown by open accounts and future-dated payables. Krouse's Answer to Interrogatory No. 31. Krouse also indicates that it had "no direct knowledge that Toro examined the resultant audit reports for the purpose of deciding *996 whether to extend or renew credit to Summit, Krouse's Answer to Interrogatory No. 34, and specifically denies any communication between itself and Toro, Krouse's Answer to Interrogatory No. 40.
One item of information provided by Krouse in its answers to interrogatories is somewhat puzzling, but otherwise insignificant. A series of questions posed by Toro relates to any lost documents pertaining to Summit audits. Krouse indicates that it cannot locate the signed Engagement Letter regarding the audit of Summit for the reporting year ending November 30, 1983. Krouse further states that its policy is not to release audit reports until this letter has been received, and assumes that it was misfiled or misplaced. Krouse's Answer to Interrogatories Nos. 17-18. In response to the next question regarding Krouse's opinion as to where the document may be located presently, Krouse states that "[t]he plaintiffs may have in their possession the signed Engagement Letter regarding the November 30, 1983 audit." No clue is provided as to how Toro may have come into possession of this letter which ordinarily would have concerned only the contractual relationship between Krouse and Summit, and, as standard practice, was retained by Krouse in its own files. This fact, however, cannot serve as the basis for satisfying the third part of the Credit Alliance test. Even construed in the light most favorable to Toro, the requisite degree of intent is missing. The three aspects of the evidence on this particular point are not necessarily in conflict: (1) Krouse's standard practice is to keep such letters on file; (2) Krouse either misplaced or misfiled the letter; and (3) it may be in the possession of Toro. Thus, there is no temptation to weigh these elements in reaching any conclusion on the pending motion, a practice clearly inappropriate in a motion for summary judgment. Rather, considered as a whole, these three facts still fail to demonstrate intentional conduct on the part of Krouse that would evidence the necessary relationship between it and Toro. They do present something of a mystery, but not one so significant that Toro felt a need to further develop the facts on this point, or even bring it to the court's attention.
Finally, Krouse's affidavit, as the remaining evidence before the court, similarly fails to aid Toro in its effort to defeat Krouse's motion. The paragraphs therein state unequivocally that Krouse had no contacts of any kind with Toro or its representatives. Although Toro does not raise the point, the first part of Paragraph 5 of the affidavit contains the improper legal conclusion that "[t]here existed no contractual privity between Toro and defendants." The exclusion by the court of this language in its consideration of the motion now pending does not alter its conclusion that the affidavit contains no material beneficial to Toro.
The previous discussion of the evidence shows that the strength of Toro's case rises or falls according to the legal standard upon which it is judged. Because Indiana would adopt the most restrictive of the three standards currently used to determine the availability of a cause of action to third parties allegedly injured by negligently performed services by an accountant, Krouse's motion for summary judgment must be granted. None of the evidence presents a genuine issue as to whether Krouse had the necessary contact with Toro which evinces Krouse's understanding of Toro's actual reliance on the reports Krouse furnished to Summit.
III. Statute of Limitations
While it is unnecessary to determine the applicability of the statute of limitations in light of Toro's failure to meet the substantive legal standard regarding accountant liability, it will nonetheless be considered briefly. This issue as raised and argued by the parties would not be dispositive of the entire case; rather, it raises the question whether two of the three reports which form the basis of Toro's complaint would be barred by the statute.
Both parties agree that the applicable statute of limitations is I.C. 34-1-2-2 regarding injuries to personal property. Babson Bros. Co. v. Tipstar Corp., 446 *997 N.E.2d 11, 14 (Ind.App.1983), explained the operation of this statute as follows:
Our statute is an accrual statute, such that a cause of action accrues at the time injury is produced by wrongful acts for which the law allows damages susceptible of ascertainment. The statute of limitations begins to run at the time a complete cause of action accrues or arises or when a person becomes liable to an action.
These principles were further explained in Monsanto Co. v. Miller, 455 N.E.2d 392, 394 (Ind.App.1983):
It is not necessary that the extent of the damage be known or even ascertainable, but only that some ascertainable damage has occurred. Failure to discover a right to bring suit does not operate to suspend the statute of limitations. Likewise, no new cause of action will accrue when consequential damages arise from a prior injury and damage too slight to be noticed when inflicted.
Thus, the question in the case at bar is when the element of damage occurred so as to give rise to a cause of action. The parties have raised several possible dates for consideration. These include: the dates the reports were completed by Krouse; the dates Krouse gave the reports to Summit; the dates shortly thereafter but not specified in the record when Summit passed the reports along to Toro; the dates on which Toro extended credit in reliance on the reports; and the date on which Summit became unable to repay its obligations to Toro. The earliest of these potential accrual dates is easily eliminated. At the time Krouse completed the allegedly negligently prepared reports, no damage had occurred since the inaccurate contents of the reports had not been communicated to anyone. When Krouse provided the reports to Summit, Summit suffered damages, however slight, that began the statute running as to a potential cause of action by Summit against Krouse. Similarly, Toro's cause of action would have arisen at the time it first suffered damage upon the receipt of the reports from Summit. The remaining dates reflecting Toro's extension of credit and its subsequent inability to collect speak only to consequential damages which may have made the amount of compensation due from a liable party more ascertainable, but has no relevance as to the accrual of the cause of action.
Therefore, if a different standard of liability applied in this case that would permit Toro to go forward with its cause of action, the dates that Toro received the reports at issue would control as to the statute of limitations issue. Further evidence would have to be developed on this point, since these dates are not apparent from the record. Presumably, however, Toro would have received the reports from Summit shortly after Summit received them from Krouse. In all likelihood, therefore, this would result in the elimination of the 1981 and 1982 reports as elements of the cause of action.
IV. Conclusion
The crux of this motion for summary judgment revolves around the determination of the proper standard of liability to which accountants are held in Indiana. Despite the general drift of many jurisdictions toward the more liberal standard typified by § 552 of the Restatement, Indiana has given every indication that it would continue to adhere to the standard first enunciated in Ultramares and recently reaffirmed in Credit Alliance. While Essex, the most recent Indiana case to consider the general issue, limited its holding to surveyors, there is no practical reason why it should not be useful authority in this case, especially since it follows principles consistently applied in Indiana since at least 1899. As a result, the evidence developed thus far, when construed in the light most favorable to Toro as the nonmoving party, fails to present a genuine issue of material fact.
This is true even if the clearly defective portions of Toro's affidavits are considered, as they properly should not be. Rule 56(e) is forthright in its demand for affidavits which consist of admissible facts rather than statements not made on personal *998 knowledge, statements which make legal conclusions, or conclusory statements.
Were Toro's cause of action to survive Krouse's motion, it probably would do so only in a more limited form. The application of the statute of limitations would most likely bar any cause of action which relies on the 1981 and 1982 reports.
Therefore, for all of the foregoing reasons, Krouse's motion for summary judgment is hereby GRANTED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1558355/ | 22 So.3d 1165 (2009)
Billy Ray WILLIAMS
v.
Jennifer Collins WILLIAMS
State of Louisiana
v.
Jennifer Collins Williams.
Nos. 09-472, 09-473.
Court of Appeal of Louisiana, Third Circuit.
November 4, 2009.
*1166 Jeffrey H. Thomas, Thomas Law Firm, Natchitoches, Louisiana, for Defendant/Appellant, Jennifer Collins Williams.
Katharine Geary, Attorney at Law, Alexandria, Louisiana, for Plaintiff/Appellee, Billy Ray Williams.
James P. Lemoine, District Attorney, Thirty-fifth Judicial District, Renee W. Dugas, Assistant District Attorney, Colfax, Louisiana, for Appellee, State of Louisiana.
Court composed of MARC T. AMY, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
GENOVESE, Judge.
Defendant/Appellant, Jennifer Collins Williams, filed a Petition to Nullify Judgments relative to her divorce and child support. The trial court dismissed Ms. Williams's petition for nullity after sustaining the peremptory exception of prescription filed by Plaintiff/Appellee, Billy Ray Williams. Ms. Williams appeals. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Judgment of Divorce
On August 16, 2006, Mr. Williams filed a Petition for Divorce in Grant Parish pursuant to La.Civ.Code art. 102.[1] This matter is entitled Billy Ray Williams versus Jennifer Collins Williams[2] and bears the docket number 18188. According to the petition, the parties were married in Rapides Parish on October 27, 2005. Two children were born prior to the marriage of the parties: namely, Trent Andrew Williams, born on December 15, 1999, and *1167 Destin Cole Williams, born on July 19, 2001. In said petition, Mr. Williams requested joint custody of the children; however, on August 24, 2006, Mr. Williams amended his petition seeking sole custody of the children subject to supervised visitation for Ms. Williams.
The trial court's minutes reflect that on September 11, 2006, a hearing on a Rule for Custody was held wherein the trial court ordered "joint custody with [Mr. Williams] being domiciliary parent with Ms. Williams having [supervised visitation] every other weekend." The trial court, however, mistakenly signed a judgment on September 21, 2006, which stated that Mr. Williams was "granted sole custody of the minor child[ren]."
On September 28, 2006, Ms. Williams filed a Petition for Protection from Abuse against Mr. Williams. In her petition is a handwritten notation made by Ms. Williams in which she declared that Mr. Williams was "granted sole custody [of the children] per [j]udgment [dated September 21, 2006.]" The trial court issued reciprocal temporary restraining orders at a hearing held on October 9, 2006.
Pursuant to a Rule to Show Cause on whether the divorce should be granted, a hearing was held on May 14, 2007. At said hearing, Mr. Williams testified that he and Ms. Williams had lived separately for one hundred and eighty days. Though she was not represented by counsel, Ms. Williams was present at said hearing. When asked by the trial court whether she wanted to testify or to call any witnesses, Ms. Williams answered, "No. I'm ready for it to be over with." The trial court again questioned whether Ms. Williams wished to contest the divorce. She reiterated, "No, I just, I just want a divorce." The trial court then granted the divorce. Though this hearing occurred in May of 2007, a Judgment of Divorce was not signed by the trial court until March 13, 2008.
On June 19, 2008, Ms. Williams filed a Petition to Nullify Judgments. In her petition to nullify the judgment of divorce, Ms. Williams alleged that the judgment rendered pursuant to the divorce confirmation hearing on May 14, 2007, "was based on false and perjured testimony of [Mr. Williams] since the parties had not lived separate and apart since the original Petition for Divorce was filed on August 16, 2006[,] but had, in fact, reconciled and lived together from late October of 2006 until February 14, 2007." Ms. Williams argued that Mr. Williams's actions constituted "fraud and ill practices" pursuant to La.Code Civ.P. art. 2004. She also asserted that since the judgment of divorce was not signed by the trial court until March of 2008, her nullity action was timely filed; therefore, she was entitled to a nullification of the judgment of divorce.
On July 14, 2008, Mr. Williams filed a Peremptory Exception of Prescription to Petition to Nullify Judgment. In his exception, Mr. Williams argued that Ms. Williams "was aware of all actions that she contends were fraud or ill practices more than a year before [the] filing of this motion to nullify judgment as she was present in open court on May 14, 2007."
At the hearing on Mr. Williams's exception held on September 22, 2008, Ms. Williams testified that it was not until March of 2008 that she became aware that the judgment of divorce was based upon erroneous facts. According to Ms. Williams, she discovered the judgment of divorce was based upon erroneous facts when she hired Jeffrey H. Thomas, her present attorney.
The trial court issued written Reasons for Judgment on Peremptory Exception of Prescription on October 15, 2008. Relying *1168 upon the fact that Ms. Williams was present in court on May 14, 2007, and that she witnessed Mr. Williams's testimony, the trial court ruled that the prescriptive period for Ms. Williams's nullity action relative to her divorce began to run on May 14, 2007. Specifically, the trial court reasoned:
Louisiana courts have consistently held that the plaintiff's knowledge of certain facts, rather than the legal consequences of those facts, commences the running of the prescriptive period. Succession of Albritton, 497 So.2d 10 (La.App. 4 Cir. 1986), writ denied, 498 So.2d 742 (La. 1986); Bellamy v. Janssen, 477 So.2d 928 (La.App. 4 Cir.1985), writ denied, 484 So.2d 667 (La.1986).
Since Ms. Williams's nullity action was not filed until June 19, 2008, it was not filed within the one-year period mandated by La.Code Civ.P. art. 2004. Consequently, the trial court sustained Mr. Williams's peremptory exception. A judgment to that effect was signed by the trial court on October 27, 2008. Ms. Williams appeals that judgment.
Child Support Judgment
On October 13, 2006, a Petition to Register Louisiana Support Order for Enforcement and Modification Under the Provisions of La.Code Civ.P. Article 2785 was filed on behalf of Mr. Williams. This matter is entitled State of Louisiana versus Jennifer Collins Williams and bears the docket number S-2919. According to the petition, Mr. Williams was seeking enforcement of a judgment against Ms. Williams. The judgment, rendered in LaSalle Parish and signed on May 15, 2002, ordered that Ms. Williams pay $275.00 per month to Mr. Williams for support of their two children. On February 26, 2007, an Order and Judgment Confirming Registration of Louisiana Support Order was signed which made the May 15, 2002 support order against Ms. Williams executory and enforceable.
A Petition to Establish Medical Support was filed on behalf of Mr. Williams on March 26, 2007. The record reflects that on May 8, 2007, the parties appeared before a hearing officer on the issue of medical support. Ms. Williams was present. According to the minutes therefrom, "[Ms. Williams] is not currently employed. She did agree to provide medical support if ever reasonably available." Because neither Mr. Williams nor Ms. Williams filed an objection to the hearing officer's recommendations, said recommendations were decreed to be a judgment of the trial court signed on May 14, 2007.
Also on May 8, 2007, Ms. Williams accepted service of a Summons and Rule to Show Cause for Contempt and Past Due Support. This matter was heard by a hearing officer on June 12, 2007. The hearing officer found Ms. Williams to be in arrears in the amount of $2,200.00. According to the minutes of this hearing, "For contempt, [Ms. Williams was] sentenced to [ninety] days at the [Grant Parish Jail] ... [and her sentence was to be] suspended and she [was to] be placed on [twenty-four] months probation if she [paid] the $2,310.00 purge amount." Because neither Mr. Williams nor Ms. Williams filed an objection to the hearing officer's recommendations, said recommendations were decreed to be a judgment of the trial court signed on June 20, 2007.
On June 19, 2008, Ms. Williams filed a Petition to Nullify Judgments. In her petition to annul the trial court's orders and judgments relative to her child support obligation, Ms. Williams argued that Mr. Williams's actions constitute "fraud and ill practices" pursuant to La.Code Civ.P. art. 2004. She asserted that when Mr. Williams requested the State's assistance *1169 in enforcing the May 15, 2002 support order against her, Mr. Williams "did not inform the State of Louisiana, Department of Social Services, that he and [Ms. Williams] had married on October 27, 2005." Ms. Williams alleged that after the Petition to Register Louisiana Support Order for Enforcement and Modification Under the Provisions of La.Code Civ.P. Article 2785 was filed on behalf of Mr. Williams on October 13, 2006, she and Mr. Williams "reconciled and lived together from late October of 2006 until February 14, 2007[.]" Therefore, Ms. Williams argued "that the reconciliation of the parties resulted in the extinguishment" of the Order and Judgment Confirming Registration of Louisiana Support Order which was signed on February 26, 2007.
On July 14, 2008, Mr. Williams filed a Peremptory Exception of Prescription to Petition to Nullify Judgment. In his exception, Mr. Williams asserted:
[Ms. Williams] shows in her rule that a hearing was held in this matter on June 12, 2007. [Ms. Williams] was present in open court on that date. This exception [of nullity] was filed June 19, 2008, more than one year following the hearing on June 12, 2007. An action to annul a judgment due to fraud or ill practices must be brought within one year of discovery of the fraud or ill practices[, and Ms. Williams] was aware of the issuance of the order which she contends was enforced by fraud or ill practices on or before June 12, 2007, more than one year prior to the filing of this petition to annul judgment.
At the hearing on Mr. Williams's exception held on September 22, 2008, Ms. Williams testified that it was not until March of 2008 that she became aware that the child support judgments were obtained by fraud. According to Ms. Williams, this awareness was precipitated by the hiring of Jeffrey H. Thomas, her present attorney.
The trial court issued written Reasons for Judgment on Peremptory Exception of Prescription on October 15, 2008. The trial court ruled that Ms. Williams's cause of action was extinguished for failure to assert the action within the one-year prescriptive period[3] required under La.Code Civ.P. art. 2004. Specifically, the trial court reasoned:
[Ms. Williams] also seeks to annul the child custody judgment signed on September 21, 2006. [Ms. Williams] claims that this court awarded joint custody to the parties in open court, but the judgment submitted to and signed by this court awarded sole custody to [Mr.] Williams. [Ms. Williams] became aware of this fact no later than September 28, 2006 when she filed a Petition for Protection from Abuse, in which she stated Mr. Williams had sole custody of the minor children. [Ms. Williams] was aware of the facts that formed the basis for her action to annul the child custody judgment for more than one year prior to filing the petition for nullity on June 19, 2008.
Since Ms. Williams's nullity action was not filed until June 19, 2008, more than one year after September 21, 2006, it was not timely. Therefore, the trial court sustained *1170 Mr. Williams's peremptory exception. A judgment to this effect was signed by the trial court on October 27, 2008. Ms. Williams appeals.
ASSIGNMENTS OF ERROR
Ms. Williams asserts the following assignments of error:
1. The [trial court] erred in finding that the [peremptive] period set forth in [La.Code Civ.P. art.] 2004 commenced to run from the date of the divorce hearing in open [c]ourt on May 14, 2007.
2. The [trial court] erred in not finding that the Petition to Nullify Judgments constituted a timely filed Motion for New Trial in the [d]ivorce [p]roceedings.
3. The [trial court] erred in granting the exception of prescription and dismissing the Petition to Nullify Judgments in the [c]hild [s]upport [p]roceedings.
LAW AND DISCUSSION
Considering the facts in the record of this case, the applicable standard of appellate review is whether the trial court's finding of facts was manifestly erroneous, or clearly wrong. London Towne Condo. Homeowner's Ass'n v. London Towne Co., 06-401 (La.10/17/06), 939 So.2d 1227.
Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court[] finds that it is manifestly erroneous or clearly wrong. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Id.; Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 278-79. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Id.
Id. at 1231.
As noted, the bases of Ms. Williams's nullity actions are that Mr. Williams engaged in fraud or ill practices in obtaining the divorce and child support judgments. This action is thus governed by La.Code Civ.P. art. 2004, which provides in pertinent part as follows:
A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
Relative to the divorce judgment, Ms. Williams contends on appeal that the trial court's finding that her petition to nullify the judgment of divorce was not timely filed is contrary to law because "[u]nder the [trial] court's ruling herein, an action to nullify under [La.Code Civ.P. art.] 2004 would have prescribed before the notice of signing and mailing of the judgment." Ms. Williams also argues that La.Code Civ.P. art. 2004 "allows for nullification of a `final judgment.' Hence, because the notice of mailing of the judgment of divorce was not made until June 19, 2008, the judgment was not final until the delays for filing a *1171 motion for new trial and appeal had passed."
Relying upon the fourth circuit's holding in Succession of Albritton, 497 So.2d 10, Mr. Williams counters that "Ms. Williams was also a direct participant as she was present in court, did not dispute Mr. Williams'[s] testimony[,] and requested that a judgment be granted."
Relative to the judgment of child support rendered against her, Ms. Williams asserts, in brief, that "[i]n dismissing the Petition to Nullify Judgments in the [c]hild [s]upport [p]roceedings, the [trial] court did not make any findings but simply dismissed that petition in its Judgment." She then argues that her nullity action is timely due to the fact that it was filed within one year of the signing and mailing of the judgment of the trial court. Ms. Williams also asserts that the trial court's ruling that her petition to nullify the child support judgment against her was not timely filed is contrary to law because "it is clear that [she] did not `discover' the fraud or ill practices until undersigned counsel enrolled in March of 2008."
In brief, Mr. Williams asserts that Ms. Williams was served with notice of the signing of the Order and Judgment Confirming Registration of Louisiana Support Order since February of 2007. Yet, Ms. Williams did not filed her petition to annul until June 19, 2008. Citing Succession of Albritton, Mr. Williams argues that Ms. Williams's "knowledge of certain facts rather than legal consequences of those facts commenced the running of the [peremptive] period."
Contrary to the arguments on appeal asserted by Ms. Williams, the trial court's reasons for maintaining Mr. Williams's peremptory exception of prescription relative to the child support judgment are, in fact, declared in its written Reasons for Judgment rendered on October 15, 2008. The trial court found that Ms. Williams was aware of "the facts that formed the basis for her action to annul the child custody judgment for more than one year prior to filing the petition for nullity on June 19, 2008."
The principle issue in the divorce proceeding is whether Ms. Williams had knowledge of Mr. Williams's actions, the actions she alleges to be fraudulent. The record reflects that she did have such knowledge. Ms. Williams was present and witnessed Mr. Williams testify on October 9, 2007, that he and she had lived separately for one hundred and eighty days. Though she was not represented by counsel, Ms. Williams was present. When asked by the trial court whether she wanted to testify or to call any witnesses, Ms. Williams answered, "No. I'm ready for it to be over with." The trial court questioned Ms. Williams a second time as to whether she wished to contest the divorce, to which she reiterated, "No, I just, I just want a divorce." Ultimately, the trial court granted the divorce. Unquestionably, Ms. Williams had the requisite knowledge of the facts that formed the basis of her nullity action well in excess of the one-year time period set forth in La. Code Civ.P. art. 2004.
The plaintiffs in Haney v. Davis, 06-1058 (La.App. 4 Cir. 2/14/07), 952 So.2d 804, cert. denied, 07-565 (La.5/4/07), 956 So.2d 611, argued that until the date on which they realized the legal significance of their knowledge, the one-year period provided in La.Code Civ.P. art. 2004 did not begin to run. The fourth circuit disagreed, stating:
The jurisprudence has held that "[i]t is the knowledge of these facts, and not their legal consequences which commences the running of prescription under [La.Code. Civ.P.] art.2004." Succession *1172 of Albritton, 497 So.2d 10, 12 (La. App. 4th Cir.1986); A.S. v. M.C. and P.C., [96-948], p. 10 (La.App. 1 Cir. 12/20/96), 685 So.2d 644, 649 (citing Albritton, supra). Prescription commenced when Plaintiffs had knowledge of the facts that form the basis of their nullity action. ...
Id. at 808. We, likewise, find that the one-year period provided in La.Code Civ.P. art. 2004 began to run when Ms. Williams had actual knowledge of Mr. Williams's alleged fraud, not when she was informed by her present counsel that she could have disputed same.
Under these circumstances, we find no manifest error in the trial court's judgment sustaining Mr. Williams's peremptory exception of prescription and dismissing Ms. Williams's petition for nullity.
DECREE
For the above reasons, we affirm the judgment of the trial court. The costs of this appeal are assessed to Defendant/Appellant, Jennifer Collins Williams.
AFFIRMED.
NOTES
[1] When Mr. Williams filed this divorce proceeding in 2006, La.Civ.Code art. 102 provided that a divorce would be granted upon proof "that the spouses have lived separate and apart continuously for at least one hundred eighty days prior to the filing of the rule to show cause." This article has since been amended to require that the parties lively separate and apart for a least three hundred and sixty-five days when the parties have minor children.
[2] The trial court signed an Order on August 11, 2008, consolidating this matter with State of Louisiana versus Jennifer Collins Williams.
[3] Though the trial court declared it to be a prescriptive period, this court has held that "the one-year limitation provided in La.Code Civ.P. art. 2004 is a period of peremption, rather than prescription." Lowe's Companies, Inc. v. Leblanc, 02-730, p. 4 (La.2/5/03), 839 So.2d 434, 437 (citing A.S. v. M.C., 96-948 (La.App. 1 Cir. 12/20/96), 685 So.2d 644, writ denied, 97-213 (La.App. 3 Cir. 3/14/97), 690 So.2d 38; Burkett v. Property of Douglas, 575 So.2d 888 (La.App. 2 Cir.1991)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1558360/ | 224 F.Supp. 22 (1963)
Elijah JOHNSON
v.
James C. CRUMLISH, District Attorney in and for the City and County of Philadelphia, and
Armand Della Porta, Assistant District Attorney, and
Louis J. Amarando, Clerk of Quarter Sessions Court, in and for City and County of Philadelphia, and
Saul Bookbinder, Warden of Moyamensing Prison, and
Curtis C. Carson, Jr., Esq., and
William Waller, and
John Doe, a County Detective, District Attorney's Office.
Civ. A. No. 33800.
United States District Court E. D. Pennsylvania.
December 2, 1963.
*23 Albert B. Soffian, by Albert Dragon, Philadelphia, Pa., for plaintiff.
Edward G. Bauer, City Sol., by Joseph V. Furlong, Deputy City Sol., Philadelphia, Pa., for Crumlish, Della Porta, Amarando, Bookbinder and John Doe.
Frank L. Stanley, Philadelphia, Pa., for Carson and Waller.
WOOD, District Judge.
This is an action for damages arising under the Civil Rights Act, 42 U.S.C.A. § 1983, filed by the plaintiff against the District Attorney of Philadelphia, Assistant District Attorney, Clerk of the Quarter Sessions Court, Warden of Moyamensing Prison, a private attorney, a Philadelphia County detective and an individual named William Waller.
On or about October 5, 1962, the plaintiff was presented a card which stated as follows:
"You are hereby subpoeaned (sic) to appear as witness in Courtroom 243 on Monday, October 8, 1962 at 10 A.M., in case of Com. v. William Waller.
"Curtis C. Carson, Jr.
"Attorney for Defendant"
A copy of this card is attached to the plaintiff's Complaint and he alleges that no subpoena was issued as provided by law, nor was any subpoena exhibited to him at this time or any other time.
The plaintiff is a follower of the Orthodox Jewish Religion and October 8, 1962 was Yom Kippur, the Jewish Day of Atonement, the highest of the Holy Days of the plaintiff's religion. On this day, which was the date designated for the plaintiff to appear in Court, his religion required him to spend from sunrise to sunset in continuous prayer and fasting in the Synagogue. He alleges in his Complaint that he informed the defendant, William Waller, of this fact and that this information was relayed to Curtis Carson, Jr., and the Assistant District Attorney. Despite this fact, the plaintiff states in paragraph 16 of his Complaint that:
"16. Carson and Crumlish, acting through Armand Della Porta on this said day of October 8, 1962, the Day of Atonement, demanded that the Court issue a bench warrant for the immediate arrest of the plaintiff, knowing full well that October 8, 1962 was the Day of Atonement, and that the plaintiff was a member of the Orthodox Jewish faith, and was engaged in prayer in a house of worship, as hereinabove set forth in paragraph 15,[1] all of which was known to the defendant in the criminal case, William Waller, and which information the plaintiff has ascertained had been conveyed to the said Waller, Carson and Della Porta."
On October 10, 1962, the bench warrant was issued and served on the plaintiff at his residence, whereupon he was arrested and taken to City Hall. Later, after six hours without being brought before the judge who had issued the warrant, he was removed to a cell in Moyamensing Prison and incarcerated for eight days when he was permitted to leave on October 17, 1962, without ever being brought before the judge who had issued the warrant. As a result of this series of events, the plaintiff claims that he was deprived of his rights, privileges and immunities, secured to him by the Constitution and laws of the United *24 States and the Commonwealth of Pennsylvania.
The defendants have moved to dismiss the Complaint because they contend this Court lacks jurisdiction over the subject matter, and further, that public officers, acting within the scope of their official duties, are immune from civil liability under the Civil Rights Act. The individual defendant, Curtis Carson, Jr., contends that a dismissal is warranted because the Civil Rights Act does not afford a cause of action for the acts of a private person.
At the outset, it is important to a disposition of this motion to establish the substance of the plaintiff's claim. An examination of paragraph 26 of his Complaint reveals the following:
"26. At all times material to plaintiff's cause of action, as herein set forth, the plaintiff was deprived of his rights, privileges, and immunities, secured to him by the Constitution and laws of the United States, and the Commonwealth of Pennsylvania in that first, he was imprisoned for a period of six hours at City Hall and second, he was imprisoned and incarcerated for a period of eight full days in the County Prison of Philadelphia, and was denied his right to be brought before the Court as provided by law, as hereinabove set forth."
He does not contend that because he is an adherent to the Jewish religion that he was a victim of any systematic prejudice against Jews. Also, he does not contend that his rights to freely exercise his religion were transgressed because he was directed to appear as a witness on Yom Kippur. Simply stated his claim is bottomed on his imprisonment via a bench warrant without ever being brought before the judge who issued the bench warrant. He claims that the bench warrant required that he be brought before any Court of the Commonwealth then sitting, or if not, then he should have been brought before one of the judges of these Courts. Failure to do this violated his constitutional rights to a hearing on the charge against him.
In order to state a valid claim under the Civil Rights Act,[2] Cohen v. Norris, 9 Cir., 300 F.2d 24, 30 (1962), held:
"* * * facts must be alleged which show that the defendant: (1) while acting under color of any statute, ordinance, regulation, custom or usage of any State or Territory; (2) subjects, or causes to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States."
The purpose of this Act has been lucidly stated by the Supreme Court in Monroe v. Pape, 365 U.S. 167, 180, 81 S.Ct. 473, 480, 5 L.Ed.2d 492 (1960), as follows:
" * * * It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies." (Emphasis supplied)
The defendants concede that this Court, in construing this Complaint in a light most favorable to the plaintiff, could find that it "suggests" a deprivation of equal protection of laws, privileges and immunities, and/or a denial of due process *25 of law. They contend, however, that there must be a purposeful and systematic policy of discrimination by public officers before a cause of action arises under the Act.
This argument seems to ignore the Supreme Court's holding in Monroe v. Pape, supra, where the Court specifically held, at p. 180, 81 S.Ct. at p. 480, that the "federal right" exists whenever state laws are not enforced because of "prejudice," "passion," "neglect," "intolerance" or "otherwise" and a citizen's claim to privileges and immunities under the Fourteenth Amendment "might be denied by the state agencies." The Supreme Court has made "neglect" a ground for bringing a federally derived claim as well as "prejudice," "passion" and "intolerance." In addition to these grounds the Court made a blanket denunciation of all forms of conduct which deny Fourteenth Amendment rights by adding the phrase "or otherwise" after the above-proscribed conduct.
The plaintiff's Complaint has alleged that the defendants have acted "under color of law" and that the bench warrant was illegal. He fulfills the second requirement of a cause of action under the Civil Rights Act insofar as he claims that he was summarily imprisoned without a hearing under the allegedly illegal bench warrant. Cohen v. Norris, supra. No allegation of systematic prejudice is required. Monroe v. Pape, supra, 365 U.S. pp. 167-169, 81 S.Ct. pp. 473-474.
The public officer defendants further argue that there must be physical brutality, failure to furnish urgently needed medical aid or other extraordinary circumstances amounting to an actual denial of due process before a cause of action will be under the Civil Rights Act. In his Complaint the plaintiff has alleged that he was held incommunicado for six hours in City Hall and not permitted to call his family or an attorney. Then he was abruptly delivered to the Philadelphia County Prison and incarcerated for eight days before his release without a hearing. While we do not agree with the defendants' argument on this point, we could conceive of no more invidious form of totalitarian cruelty than the summary imprisonment of a citizen without a hearing. Due process of law requires that an accused at least receive a hearing before he is punished for his alleged contempt which was not committed in the presence of the Court. Weiss v. Jacobs, 405 Pa. 390, 175 A.2d 849 (1961).
The public officer defendants further contend that they are immune from civil liability under the Civil Rights Act. This contention has been specifically rejected by the Supreme Court in Monroe v. Pape, supra, and particularly in Egan v. City of Aurora, 365 U.S. 514, 81 S.Ct. 684, 5 L.Ed.2d 741 (1960), wherein the Supreme Court reversed the Seventh Circuit which had held the following individuals to be immune from liability: City Commissioners, Counsel for the City, Police Chief, Police Officers, Sheriff, Deputy Sheriff, Justice of the Peace, States Attorney and Assistant States Attorney.[3]
The individual defendants, a private attorney and his client, argue that they are immune from liability under the Civil Rights Act because the acts of private individuals are not within the purview of the Civil Rights Act § 1983. While the main purpose of the Civil Rights Act is to protect the Fourteenth Amendment rights of all citizens from encroachment by arbitrary state action, individuals who allegedly joined or co-operated with state officers who acted under color of state law, are subject to liability under the Civil Rights Act.[4]*26 Picking v. Pennsylvania R. Co., 151 F.2d 240 (3 Cir. 1945); Valle v. Stengel, 176 F.2d 697 (3 Cir. 1949).
In his Complaint at paragraph 28, the plaintiff states in part that his injury was "* * * caused by all of said defendants, acting individually, jointly or in concert." Therefore, after considering this Complaint, with each and every allegation viewed in a light most favorable to the plaintiff, we hold that the plaintiff has stated a valid claim.
ORDER
And now, this 2nd day of December, 1963, the defendants' motion to dismiss the plaintiff's complaint is denied.
NOTES
[1] Paragraph 15 of the Complaint states in part that the plaintiff: " * * * could not in violation of his rights of freedom of religion, as guaranteed by the Constitution of the United States, comply with the so-called `notice' to appear * * *."
[2] 42 U.S.C.A. § 1983 which provides as follows: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress."
[3] In Egan v. City of Aurora, 275 F.2d 377, the Seventh Circuit relied upon its prior decision in Monroe v. Pape, 272 F.2d 365, which was also reversed by the Supreme Court, supra, and Tenney et al. v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), which is presently relied upon by the public officer defendants in this action.
[4] Also see Turner v. City of Memphis, et al., 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed. 2d 762 (1962), where the Supreme Court held per curiam that a private corporation refusing service to a negro on premises leased from a city was subject to 42 U.S.C.A. § 1983. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1558743/ | 22 So.3d 850 (2009)
D.A.R., a child, Appellant,
v.
STATE of Florida, Appellee.
No. 4D09-393.
District Court of Appeal of Florida, Fourth District.
December 2, 2009.
*851 Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
DAMOORGIAN, J.
The appellant, D.A.R., a child, appeals his Adjudication of Delinquency and Disposition. He was charged by way of a juvenile petition with resisting an officer without violence (Count I), battery on a police officer (Count II), resisting an officer with violence (Count III), possession of marijuana less than twenty grams (Count IV), and giving a false name upon being arrested or detained (Count V). The appellant argues, and the State concedes, that his adjudications of delinquency for resisting an officer with violence and resisting an officer without violence arose out of a single continuous episode and, therefore, violate double jeopardy. See Goodman v. State, 801 So.2d 1012, 1014 (Fla. 4th DCA 2001). We agree and reverse his adjudication for resisting an officer without violence and remand with directions to vacate this adjudication.
At trial, Deputy Joseph Piatchek testified that he made a traffic stop on a vehicle with darkly-tinted windows. Once the vehicle stopped, Piatchek got out of his patrol car and saw the appellant exit the vehicle. Piatchek told the appellant to get back into the vehicle, but the appellant ignored the command and took off running. During the chase, Piatchek ordered the appellant to stop running, but the appellant continued to run until he reached a fence. The appellant tried to hop over the fence, but Piatchek grabbed him and pulled him off. As he was pulled off the fence, the appellant spun around to try to get away and pushed Piatchek in the shoulder, knocking him off balance. The appellant began to run again, but fell down. Piatchek ultimately apprehended the appellant and took him into custody. At trial, defense counsel argued that the appellant could not be adjudicated delinquent for both resisting arrest with violence and resisting arrest without violence. The State disagreed, arguing that the charges arose from separate facts. The trial court agreed with the State.
This case is directly analogous to Goodman, 801 So.2d 1012. There, the defendant fled from a police officer after the officer stopped his vehicle. Id. at 1013. The officer chased the defendant to a fence, which the defendant attempted to climb over. Id. The officer grabbed the *852 defendant to pull him off the fence. Id. The defendant resisted, grabbed the officer, and began striking him. Id. We held that the defendant's convictions for resisting arrest with violence and resisting arrest without violence violated double jeopardy because they arose out of a single continuous episode. Id. at 1014; see Preston v. State, 785 So.2d 713, 713 (Fla. 4th DCA 2001); Madison v. State, 777 So.2d 1175, 1176 (Fla. 5th DCA 2001) ("[A] continuous resistance to the ongoing attempt to effect a defendant's arrest constitutes a single instance of resisting an officer.").
Reversed and remanded with instructions to vacate Appellant's adjudication of delinquency for resisting an officer without violence.
HAZOURI, J., and RODRIGUEZ-POWELL, MILY, Associate Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304433/ | Mr. Justice Creson
delivered the opinion of the Court.
*261Mrs. Maggie P. Speight appeals from a judgment of the First Circuit Court of Davidson County sustaining a plea in abatement and dismissing the cause.
Hereinafter, reference will be made to the parties as they appeared in the trial court; that is, Mrs. Maggie P. Speight as plaintiff, and Mrs. Rose Lowe Miller as defendant.
On November 4, 1967, plaintiff and defendant were involved in an automobile collision in Nashville, Tennessee. Plaintiff’s automobile bore Tennessee license plates and the automobile of defendant bore Virginia license plates.
In a suit filed October 16, 1968, plaintiff sought recovery for personal injuries and property damage sustained in the accident.
However, when the Deputy Sheriff of Davidson County undertook to serve process upon the defendant at the Nashville, Tennessee address given by her at the time of the accident, it was discovered that defendant had left Tennessee. Inquiry revealed that defendant had become a resident of Chicago, Illinois.
On November 8,1968, alias process issued to the Secretary of State of Tennessee, under T.C.A. sec. 20-224.
On December 17,1968, defendant filed a plea in abatement to plaintiff’s cause of action. Defendant insisted that the agency of the Secretary of State to accept service of process had expired prior to issuance of the alias process.
Upon hearing of the cause, as stated before, the trial court sustained the plea in abatement and ordered the suit dismissed. An appeal in error to this Court was *262prayed and granted. The assignment of error filed by plaintiff in this Court is as follows:
“The Circuit Court erred in sustaining the plea in abatement filed by the defendant and in dismissing plaintiff’s suit.
This was error because the alias process in this case was issued pursuant to an original summons which had been sued out well within the prescribed period of the statute of limitations. * * * Under these circumstances, it is the contention of plaintiff that the spirit and purpose of the Nonresident Motorist Statute have been complied with, and it is submitted that the result reached below is a most technical and harsh one. The Plaintiff should not be required to invoke the Nonresident Motorist Statute unless and until the plaintiff has information that the statute is applicable. * # *”
This assignment of error and the arguments of counsel confront this Court with two questions: (1) Whether amendments to T.C.A. sec. 20-224 are applicable to the instant case, and (2) whether or not issuance within proper time of original process, to be served on the defendant only, serves to extend the period of agency authority vested by the aforementioned statute in the Secretary of State to receive process in such form and manner as to bind the defendant to appear and defend.
Defendant has moved in this Court to dismiss the appeal on the ground that plaintiff has failed to file assignments of error and brief within the time allowed. Having examined the record and being advised of the circumstances we are constrained to observe that the instant case does not warrant strict enforcement of the rules of this Court; the motion is thus overruled.
*263Prior to April 3, 1968, the pertinent portion of T.C.A. sec. 20-224 read as follows:
‘ ‘ The agency of the secretary of state to accept service of process shall continue for a period of one (1) year from the date of any accident or injury and shall not he revoked by the death of such non-resident within such period of one (1) year. Such agency shall continue so long after the expiration of such time as may be necessary to enable the secretary of state to complete the service of process, sued out prior to the expiration of said year and forwarded to him with reasonable dispatch. The secretary of state shall keep a docket in which, he shall enter the style of the cause, the date of issuance of such process, the date of its receipt by him and the date on which it was forwarded by him to the person named as defendant therein.”
This provision was amended on the above-mentioned date, as follows:
“BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:
SECTION 1. Amend Section 20-224 of Tennessee Code Annotated by deleting the second paragraph and substituting in lieu thereof the following:
‘The agency of the Secretary of State to accept service of process in actions for personal injury shall continue for a period of one (1) year from the date of any accident or injury and in actions for injury to personal property, for a period of three (3) years from such date and shall not be revoked by the death of such nonresident within such periods of time. Such agency shall continue so long after the expiration of such time as may be necessary to enable the Secretary *264of State to complete the service of process, sued out prior to the expiration of said time and forwarded to him with reasonable dispatch. The Secretary of State shall keep a docket in which he shall enter the style of the cause, the date of issuance of such process, the date of its receipt by him and the date on which it was forwarded by him to the person named as defendant therein.’
SECTION 2. This Act shall become effective upon its passage, the public welfare requiring it.”
It is plain that T.C.A. sec. 20-224, as amended, retains the one-year agency of the Secretary of State to accept service of process in actions for personal injury and lengthens to three years such agency with regard to actions for injury to personal property. Thus, under T.C.A. sec. 20-224, as amended, the agency of the Secretary of State to accept service of process begins on the date of the accident and extends for one year in cases of personal injury, and for three years in cases of damage to personal property.
With regard to the first issue presented in this case, it is plain that T.C.A. sec. 20-224, as amended, applies to the facts of this ease. Section 2, Chapter 574, Public Acts of 1968, quoted above, provides that the amendments to T.C.A. sec. 20-224 shall become effective upon passage. The effective date of these amendments was April 3, 1968. The instant case was filed October 16, 3968, well after passage of the amendments.
With regard to the second issue raised by defendant, it is vigorously insisted that where a plaintiff in good faith sues out an original summons within a year from the date of the accident, and this summons cannot be *265served, an alias summons issued after one year from the date of the accident and forwarded promptly to the Secretary of State, is sufficient and relates back to the date of the original summons.
Under prior decisions of this Court, this insistence is without merit.
The Tennessee Nonresident Motorist statute, T.C.A. sec. 20-224, is not a limitation statute; but, rather, is a process statute which both creates and limits the agency of the Secretary of State. See Thomas v. Anderson (1968), 222 Tenn. 204, 435 S.W.2d 109, and the cases cited therein.
The case just cited, in which this Court spoke through Mr. Justice Chattin, is decisive of the second question raised in this case:
“It is clear in order to continue the Secretary’s agency beyond one year from the date of the accident process must be sued out prior to■ the expiration of that year and forwarded to him with reasonable dispatch. The meaning of ‘service of process, sued out prior to the expiration of said time,’ becomes clear when the next and last sentence of the statute in question is taken into consideration. ‘The secretary of state shall keep a docket in which he shall enter the style of the cause, the date of issuance of such process, the date of its receipt by him and the date on which it was forwarded by him to the person named as defendant therein.’
The process which must be sued out prior to the expiration of such time is the one which is addressed to the Secretary of State. The Secretary shall enter, ‘the date of issuance of such process,’ in his docket. It is clear that if the process is not sued out before the expira*266tion of the time limit the agency of the Secretary cannot he extended.” (Emphasis supplied.) Thomas v. Anderson, supra, at 111.
Examination of the record in this ease reveals that service of process upon the Secretary of Slate with regard to the action for personal injuries was not within the one-year agency to accept service of process. It is plain, however, that service of process upon the Secretary of State with regard to the action for damage to personal property was within the three-year agency created by the statute in question, as amended.
It results that the judgment of the trial court is affirmed in part and reversed in part. The cause is remanded to the trial court for further proceedings. Costs of this appeal shall be taxed equally to the parties.
Burnett, Chief Justice, and Dyer and Chattxn, Justices, concur.
Humphreys, Justice, not participating. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3038380/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2578
___________
Carpenters District Council of Kansas *
City Pension Fund, a Trust Fund; Terry *
L. Davis, Trustee of the Carpenters *
District Council of Kansas City Pension *
Fund, Kansas City and Vicinity Welfare *
Fund, Kansas City and Vicinity *
Apprenticeship and Training Fund; *
Jeffrey Chaikin, Trustee of the *
Carpenters District Council of Kansas *
City Pension Fund and Kansas City and *
Vicinity Welfare Fund; Carpenters *
District Council of Kansas City and *
Vicinity Welfare Fund, a Trust Fund; *
Carpenters District Council of Kansas * Appeal from the United States
City and Vicinity Apprenticeship and * District Court for the Western
Training Fund, a Trust Fund; Joseph E. * District of Missouri.
Pink, Trustee of the Carpenters District *
Council of Kansas City and Vicinity * [UNPUBLISHED]
Apprenticeship and Training Fund, *
*
Appellees, *
*
v. *
*
Graceland Industries, Inc., *
*
Appellant. *
___________
Submitted: August 5, 2005
Filed: August 11, 2005
___________
Before MORRIS SHEPPARD ARNOLD, FAGG, and SMITH, Circuit Judges.
___________
PER CURIAM.
Carpenters District Council of Kansas City Pension Fund and others (plaintiffs)
sued Graceland Industries (Graceland), seeking an accounting and unpaid fringe
benefit contributions under the Employee Retirement Income Security Act. See 29
U.S.C. §§ 1132, 1145. The district court* entered judgment in favor of plaintiffs after
Graceland failed to oppose plaintiffs’ summary judgment motion and failed to
respond to the court’s show-cause order. The district court then denied Graceland’s
Federal Rule of Civil Procedure 60(b) motion, and Graceland appeals.
Having reviewed the record, we find no abuse of discretion in the district
court’s refusal to set aside its order granting summary judgment. See Ivy v.
Kimbrough, 115 F.3d 550, 552 (8th Cir. 1997) (standard of review). The purpose of
Rule 60(b) relief is not to afford the parties an opportunity to reargue the merits of
their case. Graceland’s inability to oppose summary judgment, and counsel’s
deficiencies, are not grounds for Rule 60(b) relief. See Fed. R. Civ. P. 60(b); Inman
v. Am. Home Furniture Placement, Inc., 120 F.3d 117, 119 (8th Cir. 1997).
Accordingly, we affirm.
______________________________
*
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1557598/ | 22 So. 3d 538 (2009)
HOPKINS
v.
STATE.
No. SC09-1753.
Supreme Court of Florida.
November 10, 2009.
Decision Without Published Opinion Review denied. | 01-03-2023 | 10-30-2013 |
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