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https://www.courtlistener.com/api/rest/v3/opinions/2467444/ | 745 S.W.2d 955 (1988)
John Michael GARDNER, Appellant,
v.
The STATE of Texas, Appellee.
No. 3-86-224-CR.
Court of Appeals of Texas, Austin.
February 17, 1988.
Rehearing Denied March 16, 1988.
*956 Daniel H. Wannamaker, Kazen & Ray, Austin, for appellant.
Ronald Earle, Dist. Atty, Honorable James M. Connally, Asst. Dist. Atty., Austin, for appellee.
Before SHANNON, C.J., and GAMMAGE and ABOUSSIE, JJ.
PER CURIAM.
A jury found appellant guilty of murder. Tex.Pen.Code Ann. § 19.02 (1974). The district court assessed punishment at imprisonment for life.
At 1:20 a.m., October 17, 1985, Bonnie Moore heard a scream and a gunshot from the undeveloped field behind her residence in southwest Austin. Moore awakened her husband, Austin police officer Gary Moore. As both listened, Bonnie Moore heard the sound of a car engine coming from the field. Gary Moore and a police officer who responded to the Moore's call conducted a preliminary search of the area behind the Moore residence, but discovered nothing.
At approximately 3:00 a.m. on October 17, Stephen Muse, a driver for Yellow Cab, was dispatched to a service station in the Oak Hill section of southwest Austin. When he arrived at the station, which was closed, Muse saw a man he identified as appellant sitting between the gas pumps. Appellant responded affirmatively when asked if he had called for a cab. As appellant entered the cab, Muse noticed that his shoes were muddy.
When Muse inquired into appellant's destination, appellant asked if Muse knew the location of the North Forty. Muse, recognizing the North Forty as a nightclub in north Austin, began to drive in that direction. However, appellant had Muse stop the cab a short distance from the North Forty, and the last time Muse saw appellant that night, appellant was walking into a vacant lot.
At approximately 9:30 a.m. that same day, an American cab was found abandoned in a brushy area several yards off Travis Country Boulevard in southwest Austin. The cab's meter was still running, the left rear door was ajar, and the vehicle was covered with black mud of a type that did not match the caliche soil of that location. The cab, which had been driven by Anna Maria Lima, was taken to the Austin Police Department for further processing. During the course of this processing, a *957 fingerprint later identified as that of appellant was found on the left rear interior door handle of the cab.
That afternoon, Gary Moore, who had learned of the discovery of the abandoned cab and of the disappearance of Anna Lima, conducted another search of the field behind his house. Because of recent heavy rain, the field was extremely muddy. After searching the field for several minutes, Moore discovered the body of Anna Lima lying near a dirt road that was at the time covered with mud. There were vehicle tracks in the mud that appeared to be fresh.
The autopsy of the body of Anna Lima disclosed that she had been killed by a single gunshot to the chest. A .45 caliber bullet was removed from the body and given to Austin Police Department firearms specialist Calvin Story.
As a result of his examination of the fatal bullet, Story determined that it had been fired from a Heckler & Koch model P9S semiautomatic pistol. These pistols are manufactured in West Germany and have a unique barrel design that does not utilize conventional rifling. Such pistols are expensive and relatively rare; this was Story's first encounter with such a bullet in his twelve-year career.
Through the testimony of several witnesses, the State established that a Heckler & Koch model P9S was stolen from Austin resident Anthony Deering in July 1985. The thief, Brett Weiss, sold the weapon to appellant two months later. On November 1, 1985, two weeks after Anna Lima's murder, appellant sold the pistol to Paul Martins. At the time of the sale, appellant told Martins not to sell the pistol without first informing appellant. During the next several weeks, appellant called Martins several times to inquire if he still had the pistol.
The Heckler & Koch model P9S stolen from Deering and traced to appellant was recovered by the police when Martins sold it to an Austin gun shop. The pistol was introduced in evidence as State's Exhibit 54. Due to the condition of the fatal bullet, Story was unable to determine whether it had been fired from this particular pistol. However, Deering testified that the fatal bullet appeared to be of the type with which the pistol was loaded at the time it was stolen from him.
Jason Weston was an acquaintance of appellant. Shortly before sunrise on October 17, 1985, appellant appeared at Weston's apartment. Appellant was visibly upset and nervous, pacing the floor and making statements such as "I did it this time" and "I'm in trouble." Appellant was carrying his Heckler & Koch P9S pistol, with which Weston was familiar, and cleaned the weapon while in Weston's apartment. Appellant's shoes left mud on Weston's carpet.
The following day, Weston accompanied appellant to an undeveloped area in southwest Austin where the two men took turns firing the Heckler & Koch pistol. While driving to this location, appellant asked Weston if he "had heard about the cab driver getting shot over there." One week later, Weston took a police officer to the area where he and appellant had fired the pistol. Several shell casings were recovered, and ballistics tests confirmed that they had been fired in State's Exhibit 54.
During their conversation on October 18, appellant told Weston that if Weston ever "doubled-crossed" him, "he would blow me and my wife away and blow her away first." At the time appellant made this statement, he was holding the Heckler & Koch pistol and pointing it in Weston's direction. Appellant also told Weston "that the gun had blown somebody away before, and it would do it again."
Appellant was arrested for driving while intoxicated on October 19, 1985. One of his cellmates following this arrest was Allen Larson. Appellant asked Larson if he had heard about the murder of the cab driver, whom he referred to as a "bitch," remarking that "she deserved what she got" and "she was worthless." During the course of an argument with another prisoner, *958 appellant threatened to kill the prisoner, saying "he did it before."
In his first point of error, appellant contends the evidence is not sufficient to support the jury's verdict. In determining the sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Carlsen v. State, 654 S.W.2d 444, 448 (Tex.Cr.App.1983) (opinion on rehearing). In a circumstantial evidence case, if the evidence reasonably supports an inference other than appellant's guilt, a finding of guilt beyond a reasonable doubt is not a rational finding. Id.
The relevant evidence has already been summarized at length in this opinion. This Court finds the evidence more than sufficient to reasonably support the jury's verdict and to exclude all reasonable hypotheses other than appellant's guilt. The first point of error is overruled.
In his second point of error, appellant contends he was denied due course and due process of law because of prosecutorial misconduct. Specifically, appellant complains of the alleged suppression of a tape recording made by Austin police Sergeant Howard Hall of a telephone conversation Hall had with a potential witness, Jeffery Foster. Foster told Hall in this conversation that he might have seen Lima's cab drive past his home in southwest Austin between the hours of 1:30 and 2:30 a.m. on the night of the murder.
The suppression by the prosecution of evidence favorable to the accused violates due process where the evidence is material either to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215 (1963). However, the record before this Court does not support the conclusion that the tape recording was suppressed. The existence of the recording was noted in Hall's offense report, which also contained a summary of the conversation. It is undisputed that Hall's offense report was in the prosecutor's file and that this file was made available to defense counsel prior to trial. At appellant's request, a recess of several days was granted by the district court during which time the recording was located and made available to defense counsel, and defense counsel had an opportunity to interview Foster. When trial resumed, the tape recording was admitted in evidence and played for the jury, and counsel for appellant expressly declined a further continuance in order to secure Foster's presence at trial. Clearly, appellant was given a reasonable opportunity to derive whatever benefit he could from the tape, and reversible error is not presented. Coe v. State, 683 S.W.2d 431, 437-438 (Tex.Cr.App.1984); Holloway v. State, 525 S.W.2d 165, 169 (Tex.Cr.App.1975); Means v. State, 429 S.W.2d 490, 496 (Tex.Cr.App.1968).
In his final points of error, appellant contends he was denied the opportunity to effectively confront the witnesses against him because evidence which could have been used for impeachment was destroyed. Both points of error concern the destruction of composite drawings prepared by a police artist. The first drawing was based on Stephen Muse's description of the fare he picked up at the service station in Oak Hill on the night of the murder. The second drawing was of a man who was seen by the doorman at the North Forty night-club entering Anna Lima's cab at 12:30 a.m. on the night of the murder.
Both drawings were made early in the investigation before appellant was identified. Austin police Sergeant Russell Schmidt, who caused both drawings to be prepared, testified that he destroyed the drawings after appellant was arrested and charged with the offense.
In determining whether the loss or destruction of evidence has resulted in a violation of due process, the courts have developed *959 a balancing test involving three factors: the likelihood that the lost evidence was exculpatory; the likelihood that the defendant was significantly prejudiced at trial by the absence of that evidence; and the level of government culpability. 2 LaFave & Israel, Criminal Procedure § 19.05(h) (1984). In California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984), the Supreme Court stated:
Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet the standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
467 U.S. at 488, 489, 104 S. Ct. at 2534 (footnote and citation omitted).
The record reflects that Muse's description of the man who rode in his cab on the night of the murder, given one month before appellant was identified, was an accurate description of appellant. Thus, it may be inferred that the composite drawing based on that description bore at least a passing resemblance to appellant. Moreover, the record further reflects that Muse identified appellant in a photographic array and a corporeal lineup as well as at trial. Under the circumstances, it is unlikely that the drawing would have played a significant role in appellant's defense. Further, there is nothing in the record to indicate that the destruction of the drawing was a conscious effort to suppress exculpatory evidence.
The destruction of the second composite drawing was of even less significance to appellant. Anna Lima's trip log, which appears in the record, indicates that she picked up her last fare at the North Forty nightclub at 12:36 a.m. This fare was taken to a location on South Lamar where he exited the cab at 12:55. There is nothing in the record to suggest that this passenger was appellant, or in any way involved with or connected to Lima's murder. Further, Schmidt testified that the drawing bore no resemblance to appellant. Finally, this Court fails to see how the destruction of this drawing hindered appellant's ability to confront the witnesses against him, since the nightclub employee on whose description the drawing was based was not called as a witness.
There is no basis in the record for concluding that appellant was substantially prejudiced by the absence of the two composite drawings. Appellant's third and fourth points of error are overruled.
The judgment of conviction is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561439/ | 17 S.W.3d 23 (2000)
Evenor RIVAS and Continental Casualty Insurance Co., Appellants,
v.
CITY OF HOUSTON and Joel Calfee, Appellees.
No. 14-98-00431-CV.
Court of Appeals of Texas, Houston (14th Dist.).
March 2, 2000.
Rehearing Overruled May 11, 2000.
*25 Bill Robins, Houston, Robert Perry McConnell, The Woodlands, for appellants.
Richard John Urra, Andrea Chan, Houston, for appellees.
Panel consists of Justices YATES, FOWLER, and DRAUGHN.[*]
OPINION ON REHEARING
LESLIE BROCK YATES, Justice.
In response to appellant's motion for rehearing, our previous opinion is withdrawn and this opinion is substituted in its place. This appeal stems from an order granting a motion for judgment notwithstanding the verdict based on official immunity. Appellants, Evenor Rivas and Continental Casualty Insurance Co., present two issues for our review. First, whether the trial court erred in granting the motion because the city employee was not performing a discretionary function and second, whether the trial court erred in granting the motion because there was no evidence the employee was acting in good faith. The City of Houston and Joel *26 Calfee raise two conditional cross-points. We affirm the trial court's judgment.
Background
The Houston Fire Department dispatched paramedics Joel Calfee and Randy Otswald by ambulance to attend to a patient who had fallen on a stick. Calfee and Otswald decided to transport the patient to Ben Taub Hospital as a non-emergency conveyance. En route, the patient became combative, loosened his restraints, and fell off the gurney. Calfee and Otswald had to stop the ambulance on several occasions in order to restrain him. After stopping two or three times, Calfee and Otswald decided to continue the conveyance as a "Code II," or an emergency conveyance. Calfee, who was driving, then proceeded through a red light and collided with a truck driven by Rivas. While there was conflicting testimony at trial regarding whether the ambulance's emergency lights were on at the time it entered the intersection, there was no evidence that the sirens were in operation as required by state law, local ordinances and City of Houston policy. Rivas filed suit against Calfee and the City of Houston, contending Calfee was negligent and negligent per se and that the City of Houston was vicariously liable. The jury found for Rivas, but the trial court entered a judgment notwithstanding the verdict in favor of Calfee and the City of Houston.
Standard of Review
We review a trial court's order granting a judgment notwithstanding the verdict ("j.n.o.v.") by the same standard as a no evidence point of error, as a trial court may render a j.n.o.v. if there is no evidence to support one or more necessary findings. See Brown v. Bank of Galveston, 963 S.W.2d 511, 513 (Tex.1998); Harris County v. Felts, 881 S.W.2d 866, 872 (Tex.App.-Houston [14 th Dist.] 1994), aff'd, 915 S.W.2d 482 (Tex.1996). We consider only the evidence and reasonable inferences supporting the jury's findings in the light most favorable to the verdict. See Brown, 963 S.W.2d at 513. We disregard all evidence and inferences to the contrary. See Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). We must uphold the findings if they are supported by more than a scintilla of evidence. See id. In other words, a j.n.o.v. is improperly granted if any evidence of probative force supports a contested issue. See id.
Official Immunity
Rivas contends the trial court erred in granting the j.n.o.v. based on official immunity because Calfee was not acting in good faith and violated a non-discretionary requirement when he proceeded against a red light without his siren in operation.[1]
Government employees are, under certain circumstances, entitled to official, or qualified, immunity. Official immunity is an affirmative defense which shields public employees acting within the scope of their authority from personal liability in a suit arising from employees' good faith performance of discretionary duties. See Wadewitz v. Montgomery, 951 S.W.2d 464, 465-66 (Tex.1997). If a government employee who committed allegedly wrongful acts is entitled to official immunity, the government branch for which he works is *27 entitled to sovereign immunity. See De Witt v. Harris County, 904 S.W.2d 650, 654 (Tex.1995); City of San Antonio v. Duncan, 936 S.W.2d 63, 65 (Tex.App.-San Antonio 1996, writ dism'd w.o.j.). Under the doctrine of official immunity, public officials are protected from civil liability for conduct that would otherwise be actionable if they were not performing a discretionary function. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653-54 (Tex. 1994). They are not afforded this protection, however, for ministerial acts. See Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex. 1994).
Good Faith
We first consider whether Calfee was performing his function in good faith. Jury question number 3 asked: "Did Joel Calfee act in good faith on the occasion in question?" An instruction accompanied the question, stating that "Joel Calfee acted in `good faith' if a reasonably prudent ambulance driver, under the same or similar circumstances, could have believed that the need to immediately take the patient to the hospital outweighed a clear risk of harm to the public in proceeding past a red or stop signal without slowing down as may be necessary for safe operation." The jury answered the question "no."
Good faith depends on how a reasonably prudent officer could have assessed both the urgency of the situation to which he responds and the risks of the officer's course of action based on his perception of the facts at the time of the event. See Wadewitz, 951 S.W.2d at 467. The need aspect encompasses the seriousness of the situation to which the official is responding and the availability of alternative courses of action. See id. The risk aspect encompasses the nature and severity of the harm the official's actions could cause, the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonably prudent official. Id.
In support of his contention that ample evidence supported the jury finding, Rivas points to Calfee's testimony that Calfee ran the red light without employing his siren and to Rivas's testimony that the emergency lights were not turned on until after the impact. He also argues a lack of good faith can be inferred by the City's alleged falsification of an accident report and misrepresentation on interrogatory answers. Finally, he asserts the evidence that the patient Calfee was transporting was not in immediate danger established a lack of good faith.
The evidence that Calfee ran the red light without a siren or emergency lights is not germane to the jury question, which described good faith only in terms of whether Calfee slowed down to proceed past a red signal.[2] Evidence that the patient was not in immediate danger is a pertinent factor in determining need, but this evidence alone cannot support the jury's finding. We turn, then, to Rivas's argument that a lack of good faith can be inferred by the City of Houston's alleged falsification of an accident report and misrepresentation on interrogatory answers.
Calfee's supervisor filled out an internal accident report for Calfee, who signed it. The report stated that Calfee had engaged both his lights and siren at the time of the accident. An interrogatory answered for Calfee also stated that both lights and sirens were engaged. Nonetheless, Calfee told a police officer on the night in question that the siren was not on, as evidenced by the Peace Officer's Accident Report, and Rivas testified that neither the lights nor sirens were employed at the time of the accident.
Rivas argues this evidence allows a jury to infer that the City of Houston's refusal *28 to allow official documents to reflect a violation of policy regarding emergency signals constitutes an admission that a reasonably prudent officer would not have proceeded through a red light without using a siren. First, even if this was a reasonable inference from the evidence, such an inference would not support the jury finding, which, as discussed above, concerned Calfee's actions in "proceeding past a red signal without slowing down as may be necessary for safe operation" (emphasis added). Further, a jury would not be able to reach this inference without a stacking of inference upon inference.
Any more than a scintilla of evidence will support a jury finding. See Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). Evidence too weak to create more than mere surmise or suspicion of the existence of a fact, however, is no evidence. See Texarkana Mem'l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 838 (Tex. 1997). Circumstantial evidence may support a jury finding so long as it rises above mere suspicion. See Convalescent Servs., Inc. v. Schultz, 921 S.W.2d 731, 734 (Tex. App.-Houston [14th Dist.] 1996, writ denied). However, if the plaintiff relies on circumstantial evidence, and the circumstances are equally consistent with either of two facts, no more than a scintilla supports the finding, and there is no evidence of this finding. See id. Furthermore, a vital fact may not be established by stacking an inference upon an inference. See Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 858 (Tex.1968); Engstrom v. First Nat'l Bank, 936 S.W.2d 438, 445 (Tex.App.-Houston [14 th Dist.] 1996, writ denied). Rather, an inference must be reasonably and logically drawn from the evidence. See Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex.1997).
Here, because there is no direct evidence that the City falsified the accident report or the interrogatory answers, to establish a lack of good faith, the jury would first have to infer from the contradiction between these documents and the Peace Officer's Accident Report that the City of Houston intended to misrepresent the information. However, the circumstances are equally consistent with an inference that the City was mistaken in filling out the report and in answering the interrogatory answers. Furthermore, the jury would also have to infer that the City of Houston not only intentionally misrepresented information, but that it did so because it believed that a reasonable official would not act as Calfee had done, and thus, Calfee's actions needed to be covered up. To reach this conclusion requires improper inference stacking, and as such, it is no evidence to support the jury finding.
However, our inquiry does not end there. Because immunity is an affirmative defense, Calfee and the City had the burden of proof to establish all elements of that defense. See Woods v. Moody, 933 S.W.2d 306, 307 (Tex.App.-Houston [14th Dist.] 1996, no writ) (citing City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex.1994)). Consequently, we must determine whether they established as a matter of law that Calfee acted in good faith. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989).
Calfee testified that prior to deciding to upgrade the conveyance (and thereby running the conveyance at an elevated urgency and faster pace), he discussed the decision with Otswald. He also stated that before entering the intersection in question, he considered that the patient's condition was worsening, the risk to the patient in not proceeding expeditiously, and the risk to his partner in dealing with an increasingly violent patient. These considerations are all germane to need. He also considered the risk to the public in proceeding, the time of day, and the traffic. After weighing these factors, Calfee determined that it was best to get the patient to the hospital quickly. Otswald concurred with this decision and stated that in his opinion that there was a high priority to get to the hospital for his safety as well as *29 the patient's safety, and, in his opinion, their safety justified running a Code II emergency conveyance. This evidence establishes that Calfee acted in good faith as a matter of law.
Discretionary Function
Rivas also complains that the trial court erred in granting j.n.o.v. because the City of Houston failed to establish that Calfee was performing a discretionary function "as a matter of law" at the time of the accident. As no jury issue was submitted on whether Calfee's actions were discretionary, we interpret this challenge as one to the trial court's legal conclusion that Calfee was performing a discretionary duty. Legal conclusions made by a trial court are subject to de novo review. See MCI Telecomm. Corp. v. Texas Util. Elec. Co., 995 S.W.2d 647, 651 (Tex.1999) (citing Barber v. Colorado Indep. Sch. Dist., 901 S.W.2d 447, 450 (Tex. 1995)).
Texas law defines a discretionary act as one which requires "personal deliberation, decision, and judgment." City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex.1994). By contrast, "actions which require obedience to orders or the performance of a duty to which the actor has no choice, are ministerial." Id. In this instance, Rivas maintains that Calfee's conduct was ministerial, and not discretionary, because he was merely driving the ambulance when the accident occurred. Rivas further insists that Calfee's conduct was ministerial because, once the ambulance was in "emergency mode," Calfee "had no discretion not to use his lights and sirens."
In deciding whether Calfee's conduct was discretionary, we must focus on whether he was "performing a discretionary function, not on whether [he] had discretion to do an allegedly wrongful act while discharging that function." Harris County v. Ochoa, 881 S.W.2d 884, 887 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (citing Chambers, 883 S.W.2d at 653). As noted above, Calfee testified that the patient's condition and demeanor were worsening on the way to the hospital, and that there was likewise an increasing risk to both the patient and to Calfee's partner. For those reasons, the decision was made to upgrade the conveyance to a "Code II" emergency. It has been held that a government employee's operation of a motor vehicle in a "non-emergency situation" does not require deliberation, decision, or judgment, and is therefore ministerial in nature. See City of Wichita Falls v. Norman, 963 S.W.2d 211, 216 (Tex.App.-Fort Worth 1998, pet. dism'd w.o.j.) (citing Burgess v. Jaramillo, 914 S.W.2d 246, 249 (Tex.App.-Fort Worth 1996, no pet.); Woods v. Moody, 933 S.W.2d 306, 308 (Tex.App.-Houston [14th Dist.] 1996, no writ)). However, it has also been recognized that a paramedic or emergency medical technician's "decisions concerning how to transport a person to a medical facility will fundamentally involve his discretion." City of El Paso v. Higginbotham, 993 S.W.2d 819, 823 (Tex.App.-El Paso 1999, no pet.); see also Carrola v. Guillen, 935 S.W.2d 949, 952 (Tex.App.-San Antonio 1996, no writ) (observing that "emergency medical service is particularly deserving of immunity"). Because Calfee's duties at the time of the accident involved transporting a patient to the hospital on an emergency basis, we hold that the evidence establishes that Calfee was performing a discretionary function as a matter of law at the time the accident occurred.
Conclusion
Having found that no evidence supported the jury's finding a lack of good faith and that Calfee and the City established the elements of good faith and discretionary function as a matter of law,[3] we hold that the trial court did not err in granting a judgment n.o.v. We overrule *30 Rivas's points of error[4] and affirm the judgment of the trial court.
NOTES
[*] Senior Justice Joe L. Draughn, sitting by assignment.
[1] Rivas also argues under point of error one that absent the defense of official immunity, the Texas Tort Claims Act imposes liability on the City of Houston for his injuries. In making this argument, Rivas points to Section 101.021, which provides for a limited waiver of sovereign immunity where property damage, personal injury, or death arises from the negligent operation or use of a motor vehicle. See Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1)(A) (Vernon 1997). He further maintains that Section 101.055, which provides for an exception to the waiver of immunity, is inapplicable. See id. § 101.055. Section 101.055 states that immunity is not waived for a claim arising from an employee's actions in responding to an emergency call or reacting to an emergency situation so long as the action is in compliance with the applicable laws and ordinances. However, the City did not claim it was entitled to sovereign immunity based on Section 101.055 in the court below, nor has it made that argument on appeal. Therefore, we need not address it.
[2] Rivas filed objections to appellees' proposed charge but did not complain of this definition of good faith. See Tex.R. Civ. P. 274.
[3] The parties do not dispute that Calfee acted within the scope of his authority.
[4] Because of our disposition of Rivas's points of error, we need not reach appellees' conditional cross-points. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560374/ | 18 So.3d 100 (2009)
STATE of Louisiana
v.
Clifford Joseph ETIENNE, Jr.
No. 2009-K-0138.
Supreme Court of Louisiana.
October 2, 2009.
*101 Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560621/ | 252 Pa. Superior Ct. 1 (1977)
380 A.2d 1250
COMMONWEALTH of Pennsylvania, Appellant,
v.
Robert J. REISINGER.
Superior Court of Pennsylvania.
Argued March 21, 1977.
Decided December 2, 1977.
*3 Edgar B. Bayley, District Attorney, Carlisle, for Commonwealth, appellant.
Joseph E. Sikorsky with him Arthur K. Dils, Harrisburg, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
JACOBS, Judge:
This is an appeal from an order of the lower court granting appellee's motion for new trial and ruling that evidence seized pursuant to a search warrant should not have been admitted at appellee's trial for possession with intent to deliver a Schedule I controlled substance.[1] The Commonwealth, unable to retry appellee without said evidence, is clearly entitled to bring this appeal. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). The sole issue before us is whether or not the affidavit supporting the issuance of the warrant provided a sufficient basis for *4 the magistrate to determine that the affiant's informant was probably credible. We believe it did and reverse.
Judge Weidner filed an opinion and order denying appellee's pre-trial motion to suppress. The facts set forth in that opinion are as follows:
". . . The affidavit in the present case reveals that the information leading to the application for the warrant was obtained by Officer Dougherty from one Terry Woodrow. Woodrow had been a passenger in an automobile which had been stopped for a Vehicle Code violation by Officer Donald Tappan. Officer Tappan had learned that Woodrow was a runaway from Loysville Youth Development Center and took him into custody. Approximately an ounce of marijuana was found on Woodrow at that time. Woodrow then admitted to Officer Tappan that he had purchased the marijuana and that the seller was the defendant.
"Officer Dougherty later separately conducted an interview with Woodrow, who again admitted purchasing the marijuana on February 19, 1976 and asserted that the location of the marijuana was in the kitchen cabinets of defendant's home at 120 Carol Lane, Enola, Pennsylvania and disclosed the details of the purchase, including information about the people present, the plastic bags used to package the substance, the scales used to weigh it, and the location of these items. He also indicated that defendant had approximately 25 pounds of marijuana at that time and expected to acquire more within a few days." Printed Record at 34a-35a.
On February 21, 1976, a warrant was issued and a search was conducted at appellee's residence. Approximately one and one-half pounds of marijuana was seized, along with certain other items. Charges were thereafter filed against appellee. Following appellee's conviction, the lower court en banc granted a new trial, holding that the evidence seized should have been suppressed. The Commonwealth subsequently filed this appeal.
*5 In order to support a finding of probable cause based on an informant's hearsay, the affidavit must comply with the now familiar two-pronged test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The first requirement is an explanation of the "underlying circumstances" from which the informant received the information and reached the conclusion that fruits of a crime would be located in the place to be searched. Secondly, there must be set forth in the affidavit a reasonable basis for the affiant's belief that his informant is credible and his information reliable. See e.g. Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971); Commonwealth v. Rose, 211 Pa.Super. 295, 235 A.2d 462 (1967). It is undisputed that the affidavit satisfied the first prong of the Aguilar test, since the informant received his information as a participant in a drug transaction during which he claimed to have seen the drugs in appellee's possession. The question remains whether or not the second prong of the test, regarding credibility, was satisfied. We believe it was.
The portion of the affidavit dealing with the affiant's belief that the informant was credible appears as follows:
"It is this officers (sic) belief that Terry Lynn Woodrow is being completely truthful because after being caught in the possession of marijuana and being a runaway from Loysville he reasonably believed that the only way to help himself was to cooperate with the police and inform the police as to the person who sold him the marijuana." Printed Record at 28a.
In examining this affidavit, it behooves us to recall, as Justice Frankfurter pointed out in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), that the magistrate issuing the warrant ". . . need not have been convinced of the presence of narcotics [at the place to be searched] . . .," rather, there need only be a ". . . substantial basis for him to conclude that narcotics were probably present . . ." Id. at 271, 80 S.Ct. at 736 (emphasis added). Additional guidelines for reviewing cases such as this were provided in United States v. Ventresca, *6 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), where the Court stated:
". . . when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." Id. at 109, 85 S.Ct. at 746 (citation omitted).
The leading case concerning the reliability half of the two-prong Aguilar test is United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). That case, as reviewed by this court on several occasions, sets forth the following four factors which should be considered in determining whether or not there is a substantial basis for crediting the hearsay contained in the affidavit:
"(1) Did the informant give prior reliable information?
"(2) Was the informant's story corroborated by any other source?
"(3) Were the informant's statements a declaration against interest?
"(4) Does the defendant's reputation support the informant's tip?"
Commonwealth v. Ambers, 225 Pa.Super. 381, 386, 310 A.2d 347, 350 (1973); see also, Commonwealth v. Falk, 221 Pa.Super. 43, 290 A.2d 125 (1972).
We do not believe that the above-listed factors were intended by the Harris Court to be the only factors which could conceivably provide a basis for crediting the hearsay. To apply this "checklist" in a mechanical manner would deprive a reviewing court of the opportunity to use its "common sense," as urged by the Court in United States v. Ventresca, supra. In keeping with this view, we have never required all four of these factors to be present in order to support the magistrate's determination of credibility. Commonwealth *7 v. Barrett, 233 Pa.Super. 523, 335 A.2d 476, allocatur refused, 233 Pa.Super. xxxvi (1973).
The Commonwealth argues, and we agree, that the statements made by the informant, Terry Woodrow, were declarations against penal interest and that alone supplied a sufficient basis for crediting those statements, since "[t]he case law is clear that when a person is an admitted participant in a crime, and the police attempt to secure a warrant upon the information received from him, the second aspect of the Supreme Court's test is met, since the fact that the individual admits participation in the crime insures his reliability." Commonwealth v. Matthews, supra 446 Pa. at 70, 285 A.2d at 512 (citations omitted).
We held in Commonwealth v. Rose, supra, that an informant's self-incriminating statement concerning a drug transaction was sufficiently reliable to justify issuance of the warrant, since the statement was against the informant's interest. Appellee argues, and the lower court agreed, that the informant's statements in this case, while incriminating were not against his penal interest since he had in any event been caught "red handed" with drugs in his possession, and that by incriminating appellee, the informant was hoping to gain favorable treatment in his own case. We disagree. Indeed, most self-incriminating statements made by an admitted participant in an illegal act are made in hope of receiving favorable treatment from the police or the prosecutor. The Supreme Court specifically ruled in United States v. Harris, supra, that the fact that an informant is promised a "break" if he comes clean does not necessarily lessen the inherent credibility of a statement admitting criminal conduct.
While it is true that having been apprehended with drugs in his possession, the informant might have been convicted of possession solely on that evidence alone, his statement admitting guilt was nonetheless against his penal interest, since it worked to deprive him of the numerous defenses which can be asserted to a possession charge. We believe that there was a substantial possibility the informant's *8 statements would later be used against him in legal proceedings, and that alone justified a finding that the statements probably were credible.
There is an additional element we believe should be considered in the common sense appraisal mandated by United States v. Ventresca, supra, despite the fact that it is not among the oft-cited factors set forth in Harris. Assuming the young informant's statements were made in hope of getting a break from the authorities, we believe that he probably would not lie to the very people he wished to ingratiate common sense requires the conclusion that if the informant expected special treatment, he knew it wouldn't be forthcoming if he led the police on a wild-goose chase.
We must pay heed to the reminders of the Jones and Harris courts and recognize that the magistrate need only deal in probabilities, and that a much smaller quantum of facts is necessary to support the issuance of a warrant then is necessary to support a criminal conviction. We believe there was a substantial basis from which the magistrate could determine that Terry Woodrow was probably telling the truth, and that the warrant was properly issued. The evidence seized was therefore admissible.
Order reversed.
SPAETH, J., files a concurring opinion.
HOFFMAN, J., files a dissenting opinion.
SPAETH, Judge, concurring:
I have concluded that the affidavit in support of the warrant was sufficient, but for different reasons than the majority's.
I cannot join the majority's opinion because I think Judge HOFFMAN correct in his conclusion that the informant's statement was not a declaration against penal interest; I also think him correct in his conclusion that none of the four factors identified in Commonwealth v. Ambers, 225 Pa.Super. 381, 310 A.2d 347 (1973), is present. I further cannot *9 join the majority's opinion because it stands for the proposition (implicitly if not explicitly) that the mere fact of arrest confers on the person arrested an aura of veracity. However, I agree with the majority that the four factors are not the only factors to be considered, but that we should look at all of the circumstances of each particular case. When I look at all of the circumstances here, I am persuaded that the district justice was justified in issuing the warrant.
In Commonwealth v. Purcell, 251 Pa.Super. 545, 380 A.2d 914 (1977); this court summarized the test to be applied by an issuing authority, in deciding whether to believe a hearsay statement in an affidavit, as follows:
[T]he issuing authority must by reference to the information in the affidavit be able to answer two questions: (1) Do I have enough information to warrant the belief that the informant could know what the officer says she told him she knew? And (2) If I do have enough such information, do I also have enough information to warrant the belief that she did know it?
251 Pa.Super. at 550, 380 A.2d at 917.
Here, the affidavit starts by reciting that on February 21, 1976, at about 1:00 a.m. Officer Donald Tappan found the marihuana on the informant, Terry Lynn Woodrow, and was told by Woodrow that he had purchased the marihuana from appellee. The affidavit goes on to recite that Woodrow was committed to the county prison to await the action of the authorities of the Loysville Youth Development Center, which he had run away from, and that at about 9:50 a.m. the affiant, Officer Richard Dougherty, and Officer Charles Gulick went to the prison to question Woodrow. The affidavit then says that this is what Woodrow told the two officers:
[O]n Thursday the 19th of February, 1976 he was in the company of Robert J. Reisinger of 120 Carol Lane, Enola, Penna. and one Frederick Miller of Marysville, Pa. During the course of a discussion Woodrow mentioned that he wanted to buy some marijuana and that Reisinger replied that he had some marijuana he would sell to him. According *10 to Woodrow all three of them (Woodrow, Reisinger, and Miller) drove to the Reisinger home at 120 Carol Lane, Enola, Penna. where they entered the rear kitchen door. Others present in the home at that time was a young child and another woman believed to be Reisinger's wife. According to Woodrow, Mr. Reisinger opened one of the kitchen cabinets (which Woodrow believes were painted white and revealed a large heavy-duty green garbage bag which was inside this cabinet. Woodrow stated that Reisinger reached into this bag and produced a plastic bag containing approx. 1/4 pound of marijuana. Reisinger was heard to ask his wife where the scales were and then produced a set of weighing scales from another drawer or cabinet in the kitchen. Reisinger then weighed out an ounce of marijuana, handed it to Woodrow, and Woodrow in return gave him $15.00. Woodrow informed us that Robert Reisinger had informed him that he still had approx. 25 pounds of marijuana remaining in the plastic trash bag which was in the kitchen cabinets. Reisinger also told Woodrow that he was expecting another shipment of marijuana on Saturday the 21st of Feb., 1976) Reisinger also told Woodrow that he gets this marijuana from a truck driver.
I admit that Woodrow might have made up all of this detail, simply to give credence to "an otherwise bald and unconvincing narrative."[1] Nevertheless, I think the district justice was justified in concluding that Woodrow had been in appellee's kitchen and therefore could know what it was like inside. In fact, I do not understand that there is any real difference of opinion about this. The difference of opinion is about whether the district justice was justified in concluding that Woodrow did know what it was like inside appellee's kitchen, that is, was telling the truth.
Woodrow twice identified appellee as the person from whom he purchased the marihuana: to Officer Tappan, and later, without Tappan being there, to Officers Dougherty and Gulick. Both times he gave appellee's address. In his *11 second statement he identified Frederick Miller as having been with him when he purchased the marihuana. Also in his second statement he specified in detail certain features of appellee's kitchen. In short: he was consistent in his accounts to the police, and he told them a story that could easily be disproved if it was false.
In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), the Supreme Court held that a federal narcotics agent had probable cause to arrest the petitioner without a warrant where the agent had prior to the arrest personally verified detailed information given to him by an informant regarding the petitioner. Crucial to the Court's holding was the fact that the informant was known to the agent and had supplied reliable information to him in the past. Here, the officers had had no prior dealings with Woodrow. Therefore, the details supplied in Woodrow's statements to the officers cannot be considered by themselves sufficient to establish Woodrow's veracity. However, when one considers Woodrow's statements in the context of the circumstances set out above, and when one adds the facts that Woodrow was a juvenile, already in trouble with the law, and with no apparent reason to lie about appellee, it seems to me that the district justice was justified in concluding that Woodrow was telling the truth.
HOFFMAN, Judge, dissenting:
The Majority correctly states that the sole issue before us is whether or not the affidavit supporting the issuance of the search warrant provided a sufficient basis for the magistrate to determine that the affiant's informant was credible. Because I believe that the affidavit did not sufficiently demonstrate the informant's credibility, I dissent and would affirm the order of the lower court en banc granting appellee's motion for a new trial.
Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), set forth two requirements which an affidavit must meet before a magistrate can *12 properly issue a search warrant: (1) the affidavit must show the underlying circumstances from which the informer received his information and determined the location of the items in issue, and (2) the affidavit must show the underlying circumstances from which the officer-affiant concluded that his informant was credible. See also Commonwealth v. Ambers, 225 Pa.Super. 381, 310 A.2d 347 (1973). In analyzing the second Aguilar-Spinelli prong, our Court has repeatedly focused on the following four factors:
"(1) Did the informant give prior reliable information?
"(2) Was the informant's story corroborated by any other source?
"(3) Were the informant's statements a declaration against interest?
"(4) Does the defendant's reputation support the informant's tip?"
Commonwealth v. Ambers, supra 225 Pa.Super. at 386, 310 A.2d at 350. See also Commonwealth v. Herron, 243 Pa.Super. 319, 365 A.2d 871 (1976); Commonwealth v. Kaschik, 235 Pa.Super. 388, 344 A.2d 519 (1975); Commonwealth v. Samuels, 235 Pa.Super. 192, 340 A.2d 880 (1975); Commonwealth v. Abbruzzese, 223 Pa.Super. 452, 302 A.2d 853 (1973); Commonwealth v. Falk, 221 Pa.Super. 43, 290 A.2d 125 (1972). See also United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971). All four factors need not be present in order to validate an officer-affiant's estimation of an informant's credibility. Commonwealth v. Samuels, supra; Commonwealth v. Barrett, 233 Pa.Super. 523, 335 A.2d 476, allocatur refused, 233 Pa.Super. XXXVI (1973). Indeed, the Pennsylvania Supreme Court has ruled that an informant's declaration against penal interest standing alone may adequately insure his reliability. Commonwealth v. Matthews, supra.
In the instant case, the Majority concludes that the following passage of the affidavit established the informant's credibility:
*13 "It is this officers (sic) belief that Terry Lynn Woodrow is being completely truthful because after being caught in the possession of marijuana and being a runaway from Loysville he reasonably believed that the only way to help himself was to cooperate with the police and inform the police as to the person who sold him the marijuana." According to the Majority, this excerpt constituted a declaration against penal interest because informant admitted his willful participation in a drug transaction, Commonwealth v. Matthews, supra, and thus stripped himself of possible defenses to a possession charge.[1] However, in Commonwealth v. Matthews, the informant's admission of participation in the crime was the major and perhaps only evidence linking him to the crime; a willingness to inculpate oneself under these circumstances might well betoken reliability. By contrast, the police in the instant case caught the informant "redhanded" with possession of marijuana as he was running away from the Loysville Youth Development Center. After his arrest, the informant was, in effect, a worm on a legal hook. In order to wiggle off this hook, the informant may well have decided to focus the attention of the police on someone else by implicating appellee as his drug supplier. Indeed, the affidavit excerpt quoted above implicitly concedes that the informant's statements were motivated by a desire to escape his legal dilemma rather than by a wish to ease his conscience through confession. Under these circumstances, the informant's subsequent statements should not be viewed as reliable simply because they might technically be classified as declarations against penal interest.[2] In *14 short, I am not persuaded that the affidavit establishes the informant's reliability under any of the four standards employed by our Court. Commonwealth v. Herron, supra.
Finally, I cannot agree with the Majority that the informant, even if caught "red-handed", probably would not lie about the identity of his drug supplier. A person caught with drugs in his possession might very well conceal the true identity of his seller because of a fear of retribution, a desire to protect his source for future transactions, or bonds of friendship and loyalty.[3] Moreover, an informant who was in *15 fact his own supplier might find it expedient to inculpate another. Because I believe that the affidavit did not sufficiently establish the informant's reliability, I dissent.
NOTES
[1] Act of April 14, 1972, P.L. 233, No. 64, § 1, 35 P.S. § 780-101 et seq. (1977).
[1] My apologies to Pooh-Bah in the Mikado.
[1] The Majority does not specify which defenses the informant might have utilized had he remained silent. I note that an entrapment defense would have been most improbable because the police caught the informant with mere possession of marijuana rather than during a possibly staged drug transaction. The informant's statements also severely compromised potential defenses of mistake or unconscious possession, but it is probable that the informant either did not know of these putative defenses or recognized their frivolousness at the time of his apprehension.
[2] Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554 (1975), cert. denied 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976) raises a serious question as to whether the informant's identification of appellee as his seller may properly be considered a declaration against penal interest. In Colon, one Hernandez confessed to a murder and burglary. At the end of his confession, Hernandez stated in response to a police question: "I was alone. I went there alone and came out alone." 461 Pa. at 580, 337 A.2d at 556. The Commonwealth subsequently prosecuted Colon as an alleged accomplice in Hernandez's criminal exploits. In an effort to establish that Hernandez acted alone, the defendant attempted to introduce Hernandez's confession. The trial court denied this motion on the grounds that the statement was inadmissible hearsay. The Supreme Court affirmed the conviction. Justice ROBERTS, in a plurality opinion joined by two other Justices, stated that declarations against penal interest were admissible in Pennsylvania court, but the portion of Hernandez's confession that exculpated Colon was not against the declarant's penal interest because that portion did not subject Hernandez to additional charges or more severe punishment. Therefore, the exculpatory portion of the confession did not have the safeguards of trustworthiness attributed to a statement truly against interest. See also Commonwealth v. Mitchell, 245 Pa.Super. 562, 369 A.2d 770 (1977), in which our Court applied Commonwealth v. Colon to hold a non-inculpatory portion of a declarant's confession inadmissible in another person's trial.
A similar analysis can be applied to the informant's statements in the instant case. The portion of the informant's statements admitting his purchase of marijuana may technically be a declaration against penal interest to the extent that it acknowledges the essential element of intent to possess marijuana, but informant's designation of appellee as his supplier was not a declaration against penal interest. If the non-inculpatory portion of the confession in Colon was deemed inadmissible because unreliable, we cannot consistently find that the non-inculpatory portion of the informant's statement in the case at bar was so reliable as to afford probable cause without the assistance of any other evidence or allegations bolstering the informant's reliability.
[3] The Majority asserts that a person in police custody who hoped to receive lenient treatment would not lead the police on a wild goose chase. In Commonwealth v. Abbruzzese, supra, we implicitly rejected this contention. In Abbruzzese, a person under arrest for a burglary accused Abbruzzese of committing unrelated crimes. We stated that the informant's accusations "could not be used to support any criminal charge against him, but . . . could be construed. . . as given in a self-serving manner in an effort to ameliorate his own situation, . . ." 223 Pa.Super. at 455, 302 A.2d at 854. We held that the informant's charges did not bear sufficient reliability to validate an affidavit. Similarly, in the instant case, I believe that the informant's statements were made in a self-serving manner in order to ameliorate his situation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560645/ | 380 A.2d 1334 (1977)
PROVIDENCE GAS COMPANY
v.
Edward F. BURKE, Administrator, Division of Public Utilities and Carriers.
No. 77-191-M.P.
Supreme Court of Rhode Island.
December 2, 1977.
*1335 Hinckley, Allen, Salisbury & Parsons, Michael P. DeFanti, Robert J. Ferranty, Providence, for petitioner.
Julius C. Michaelson, Atty. Gen., R. Daniel Prentiss, Sp. Asst. Atty. Gen., for respondent.
*1336 OPINION
KELLEHER, Justice.
This is a statutory petition for certiorari brought by the Providence Gas Company (the company) pursuant to G.L.1956 (1969 Reenactment) § 39-5-1, as enacted by P.L. 1969, ch. 240, § 8, against the Administrator of the Division of Public Utilities and Carriers. The company asks that we reverse an order of the Public Utilities Commission (the commission) requiring the company to make refunds to certain of its customers in a manner contrary to the terms of the company's filed tariff. We issued a stay of the commission's order pending a hearing and decision on the merits.
The record before us reveals that the company purchases gas from several interstate wholesale suppliers and distributes it to its Rhode Island customers. The company's major source of gas is the Algonquin Gas Transmission Company (Algonquin). Algonquin in turn receives its gas supply from another interstate supplier, Texas Eastern Gas Transmission Company (Texas Eastern). Both Algonquin's and Texas Eastern's activities are regulated by the Federal Power Commission (FPC). The FPC has a policy of permitting the requested rate increases of interstate suppliers to go into effect without any prior investigation with the proviso that if the proposed increase is ultimately denied or modified, the supplier will make the necessary refund to its distributors. In order to adjust the price it charges for gas by reason of such cost increases and refunds from its suppliers, the company has as part of its filed tariff a purchase gas price adjustment clause (PGA).
Such a clause usually provides for the fluctuation upward or downward of the rate charged to the consumer, reflecting, in accordance with a formula, changes in the company's cost of its purchased gas or, in the case of a utility supplying electricity, changes in the cost of the fuel it uses to generate power. As the utility's costs rise or fall, a corresponding increase or decrease in the prices charged to the consumer must occur. This is the reality of the marketplace. Otherwise, a utility runs the risk of becoming insolvent, or it may reap windfall profits. In a period of rapid increases in costs to the utility, solvency is a paramount consideration. At another time the situation may be reversed, and every effort must be made to avoid the windfall.
The device which has been fashioned to take care of either eventuality has been variously labeled as an "automatic adjustment clause," or "escalator clause," or "purchased gas adjustment clause," or a "passthrough procedure." However the clause is entitled, it becomes part of the utility's rate structure and serves to lessen the burden and expense to the utility, which would ultimately fall upon the consumer, of instituting and carrying out separate rate proceedings to justify the varying charges. See Consumers Organization for Fair Energy Equality, Inc. v. Department of Pub. Util., Mass., 335 N.E.2d 341 (1975); Montana Consumers' Counsel v. Public Serv. Comm'n, 168 Mont. 180, 541 P.2d 770 (1975); State ex rel. Util. Comm'n v. Edmisten, 291 N.C. 327, 230 S.E.2d 651 (1976).
The PGA clause that is part of the company's filed tariff was first promulgated and approved by the commission in 1960, and it was last modified in 1976. By its terms, the automatic adjustment, either increasing or decreasing the price of gas, applies only to the accounts of the company's regular customers. By "regular customers" we mean those users who purchase gas for an indeterminate period, for example, the average home owner or apartment renter. Customers who purchase gas on a contractual, seasonal basis do not come within the reach of the PGA. The company, being bound by its contract, must absorb the supplier's price increase attributable to these users. Consequently, the company retains that portion of the refund which is attributable to the usage of the contract sales customers. The company's obligation to distribute refunds to the regular customers arises when it receives a refund from its supplier.
Once the total amount to be refunded the regular customers is calculated, the PGA *1337 specifies that the company must determine a unit refund in terms of a Mcf (a thousand cubic feet) of gas. This is a simple process of taking the total amount of the refund available for distribution to the regulars and dividing it by the Mcf's of gas used by all the regular customers during the first 12 of the 13 months immediately preceding the date the company received the refund. The result of this computation is a figure expressed in a monetary amount. For example, if the company has a refund available for distribution to the regular customers of $500,000 and during the designated 12 months 10,000,000 Mcf's of gas were consumed, the unit refund would be $.05 per Mcf ($500,000 ÷ 10,000,000 Mcf's). This method does not produce an exact measurement of what each customer was originally overcharged per Mcf purchased.[1] Rather, it is an estimate based upon a randomly selected 12-month period.
Having arrived at a unit refund, the company is directed by the PGA to apply this figure to customer bills commencing 15 days after receipt of the refund. Thus, the company simply makes a billing adjustment, and thereafter regular customers have their monthly gas bills reduced in price by the unit refund amount per Mcf of gas until the total dollars available for refund are exhausted. The price reduction is given to all regular customers while there is still refund money to be dispersed. If a person becomes a user of gas several months after the price reduction goes into effect, he may benefit by reason of the unit refund reduction in his monthly gas bill even though this is the first time he has used the utility's product.
Since the PGA provides for refunding through price credits, some customers who actually paid the excessive charges which are being refunded may not receive any benefit if they no longer use gas during the period when the credit is being applied. To illustrate, a family which used gas during the period when the supplier's cost increases were passed through to consumers but which has since moved to a house heated by oil or electricity would not receive a refund. By not being users of gas when the price reduction is being effectuated, the family is unable to benefit from the credit.
On April 12, 1976, the company received a $1,285,252 refund check from Algonquin. The company's accountants, after applying themselves to the task at hand, determined that the total amount of the rebate due the company's regular customers was $1,039,977. The $245,000-plus difference between the amount available for rebate and the $1,285,252 figure in Algonquin's check represents the additional cost the company had to absorb because of its contractual undertaking with the seasonal customers and is retained by the company. Once the $1,039,977 figure was reached, the company computed a unit refund in terms of a Mcf of gas.[2] After the computers had arrived at the unit refund figure, all the company had to do was comply with that portion of the PGA which states that the unit refund "shall be applied to customer's [sic] bills commencing fifteen days after the date of refund * * *."
However, before the company could effectuate this goal, it received an April 22, 1976 letter from the chairman of the commission in which he referred to doubts that had been expressed as to whether the mechanics to be utilized in making the refund would result in "a full pass-through of the refund to customers." He also formally requested that the company file with the commission complete details concerning the refund and "your company's proposal for flowing that refund through to the retail customers."
*1338 The company, through its president, gave a reply in a letter dated April 26, 1976. In it the president informed the chairman that the company was following the formula set forth in the PGA. The chairman was advised that the refund check had been received on April 12, that the staff of the Division of Public Utilities and Carriers (the division) had been provided with the company's calculations, and that the 15-day period to commence making the refund was about to expire on April 27, the following day. Accordingly, the president asked the chairman whether the company should proceed with the rebate.
On May 3, 1976, the chairman responded by telling the company about (1) his distaste for the federal regulatory process; (2) his concern as to whether the tariff mechanism would result in refunds "to Providence's customers in the same proportion in which those customers contributed to the increased rates whence the refunds arose"; and (3) the commission's intent to hold a public hearing concerning "proper implementation" of the refund. The commission also made its presence felt on May 3 by issuing an order in which it said that the company "need not effect refunds pursuant to its filed tariff" and directed the company to place the proceeds in an interest-bearing account pending the commission's further order. The company failed to place the funds in an account and chose to use the money to finance its day-to-day operation. The company did, however, begin to assess on its books interest at 5 percent, which was to be included in the amount of the refund when it was eventually distributed to regular customers.
The commission's hearing into the refund disbursement began on June 25, 1976; the hearing was adjourned, and the commission met again on August 20 and December 16, 1976 and January 26, 1977 to consider additional evidence. No one really disputed the company's mathematics. The conflict centered on how to dispose of the $1,039,977. The company presented several employees who detailed the operation of the refund procedure. The division called to the witness stand an expert in economic counseling. He favored an alternative method of distributing the refund whereby individual checks would be sent to every customer who had actually contributed to the excess payment. One of the contested issues presented at the hearings was the relative costs of the two plans. All parties agreed that the PGA costs were minimal, since the only expense involved was changing the per unit cost of gas purchased by the customer. The expert gave a cost estimate of $80,000 for the implementation of his pay-by-check plan, while if the company's estimate was accepted, the expert's plan could carry a $112,000 price tag. Also at issue was the commission's authority to stay and then modify the PGA.
It is recognized that regardless of the means employed in making a refund to customers, there is no perfect system of distribution. Some inequities will result. As indicated previously, under the PGA clause regular customers who paid the overcharges receive no compensation if they cease using gas as their energy source prior to the time when the unit price credit is figured into its rates. However, balanced against this is the fact that because of the PGA clause, these users were in all probability prior recipients of refunds for which they didn't contribute. Gas prices have continually been adjusted to refund overcharges since the 1960 adoption of the PGA. The automatic credit has been an ongoing process of which the consumer is usually not aware. A user during the period when Algonquin raised its prices and who paid for the increase may also have received a price credit for a prior overcharge. No evidence was presented at the hearings on this matter, but all parties agree that this would be a likely occurrence. An additional factor favoring utilization of the PGA credit plan is its minimum distribution cost.
The method proposed by the expert witness is not without its difficulties. First, because of the cost, there is less available for distribution to consumers. Secondly, if the company cannot locate regular users who are entitled to the refund, there is a question as to whether the money due missing *1339 consumers can be used for the benefit of the other customers. Therefore, no system presented to the commission provides for a flawless means of dealing with refunds.
On May 31, 1977, the commission issued its report and order. It amended the PGA so that the company would be required to file refund information with the commission prior to making any distribution and the commission could then suspend or disapprove of any disbursement plan. With regard to the refund from Algonquin, the commission adopted the expert's plan and ordered the company to send individual checks to the customers who had paid the overcharges based upon their estimated usage over the period June 1974 to September 1975. The amount sent to customers was also to include interest accrued at a rate of 5 percent from April 12, 1976 through the date of the refund to the customers. Finally, the commission observed that since the company had failed to place the refund in an interest-bearing account as ordered, it should be required to treat the fund as customer contribution to capital. According to the commission, the approximate rate of return on invested capital for fiscal year 1976 was 9 percent. Thus, in addition to the 5 percent credited to the customer refunds, the commission ordered the company to accrue on its books interest of 4 percent on the refund from April 12, 1976. The company was to use the 4 percent to defray the cost of making the individualized refunds.
Having detailed at some length the regular customer credit procedure set forth in the PGA, its actual operation, and the 1977 cash refund plan promulgated by the commission, we now come to the legal issues presented by this controversy. At the outset, it is appropriate that we indicate to the parties what is the exact role of this court as it considers the pending petition.
During oral arguments, we were exhorted by the Attorney General to weigh the equities of the opposing refund programs and base our decision upon consideration of what plan is most just for the consumer. In the opinion of the division, cash payments to those users who actually incurred the excessive gas costs would be the most equitable means of distribution. The company quite naturally expressed a different point of view about its PGA's credit provisions. This court cannot designate a preferred plan. In reviewing orders of the commission, we do not sit as a policymaking body. To do so would clearly be a usurpation of the authority granted to the commission by the Legislature in title 39 of the General Laws. The responsibility of weighing the competing interests in the formulation of policy in this area has been vested in the Public Utilities Commission.
Our task is relatively simple. Our sole prerogatives are to determine whether the commission's report and order are lawful and reasonable and whether its findings are fairly and substantially supported by legal evidence. Rhode Island Consumers' Council v. Smith, 111 R.I. 271, 302 A.2d 757 (1973). In determining the legality of the commission's conduct, we must focus our attention upon the provisions of the tariff and the relevant statutes. These are the sources that delineate the parameters of the commission's power to regulate the company.
Turning first to the filed tariff, we find that there is nothing in its terms permitting the commission to stay implementation of the PGA refund procedure. The PGA provides that the unit refund "shall be applied to customer's [sic] bills commencing fifteen days after the date of refund unless otherwise extended by the Public Utilities Commission, and shall continue until the amount to be refunded has been consumed." This particular portion of the tariff speaks of an extension, not a stay, and unequivocally commands the company to commence the unit refund procedure within a set time with the possibility of some additional time being allowed to effect the refund if the company requires.
Since the tariff does not sanction the commission's issuance of a stay, the commission must rely on those powers, duties, *1340 responsibilities, and jurisdiction conferred upon it by the General Assembly. Narragansett Elec. Co. v. Harsch, 117 R.I. 395, 368 A.2d 1194 (1977); Bristol County Water Co. v. Public Util. Comm'n, 117 R.I. 89, 363 A.2d 444 (1976). Accordingly, we must examine the statutory scheme established by the Legislature in title 39 to determine whether the commission's action in staying the operation of the refund has a warrant in law.
The division directs our attention to a number of provisions which it claims, when viewed collectively, support the commission's action. We cannot agree with the division's position because an analysis of the individual statutes on which it relies reveals that the commission had no authority on May 3, 1976 to issue the stay.
Looking first to § 39-3-11, the ratemaking provision, we have a statute with two separable parts. The first details the procedural steps which a public utility must take to have its filed tariff changed and how the commission shall act in such a case. In Providence Gas Co. v. Public Util. Comm'n, 116 R.I. 80, 352 A.2d 630 (1976), we examined at length how this portion of § 39-3-11 operates, and no one questions the fact that when a utility is attempting to change its rate, the commission has the power to suspend the changes from taking effect. This court, however, has not previously been called upon to construe the latter segment of § 39-3-11, which provides:
"Notwithstanding the provisions of this section, the commission shall periodically hold a public hearing and make investigation as to the propriety of rates when charged by any public utility and shall make such order in reference to such rate, toll, or charge as may be just."
Standing alone, this particular portion of § 39-3-11 establishes a means by which the commission may monitor tariff provisions by periodically holding public hearings on utility rates. However, nothing in the statute grants the commission the authority to stay continued operation of an effective tariff pending the outcome of the commission's hearing. The clear import of the section is that the commission shall investigate and then, based upon evidence adduced at the hearing, make such order as may be just. Where the language of a statute is plain and unambiguous, there is no occasion for construction, and the statute must be given effect according to its plain and obvious meaning. Pucci v. Algiere, 106 R.I. 411, 261 A.2d 1 (1970).
Admittedly, there is one section of title 39 which specifically empowers the commission to take immediate action in specific limited circumstances; it is to be found in § 39-1-32, which in its pertinent part reads:
"Any general or public law notwithstanding, the commission, when it determines that public safety so requires, or that failure to act immediately will result in irreparable injury to the public interest * * * may issue an order effective immediately, but for temporary duration, until formal notice be given and a hearing had of the parties in interest."
While apparently supportive of the commission's actions, in Providence Gas Co. v. Public Util. Comm'n, 116 R.I. 225, 354 A.2d 413 (1976), we stressed that § 39-1-32 is not to be used as an afterthought. Rather, § 39-1-32 contains certain conditions which must be satisfied before it can be invoked. In this case, the commission's approach to altering the terms of the tariff does not come within the pale of § 39-1-32.
The statute may be used when the "public safety so requires, or that failure to act immediately will result in irreparable injury to the public interest * * *." Obviously, the company's reliance on its PGA is in no way a threat to the public safety. Likewise, the commission does not maintain that the company's attempt to comply with the terms of the tariff would irreparably injure the public interest. The commission simply wished to reassess the PGA refund mechanism to arrive at what it thought was a more equitable result. This does not constitute irreparable injury.
The division also argues that § 39-3-13 provides the necessary statutory support for the commission's conduct. This *1341 section, entitled "Emergency suspension of rate schedules," provides:
"The said division shall have power, when deemed by it necessary to prevent injury to the business or interest of the people or any public utility of this state in case of any emergency to be judged of by the said division, to permit any public utility to temporarily alter, amend or suspend any existing rates, schedules and order relating to or affecting any public utility or part of any public utility in this state."
Forgetting for the moment that § 39-3-13 is addressed to the division's rather than the commission's discretion, this legislation contemplates that during "any emergency" the appropriate authority will "permit" a public utility to "temporarily" change its "existing rates."[3] The quoted words make it clear that § 39-3-13 sanctions a temporary change in rates as a way of dealing with an emergency, and since the utility is permitted to make the change, it is obvious that the change comes about at the instigation of the utility. Here, the difference in opinion as to how to distribute the refund cannot be classified as an emergency, the change made by the commission in the company's rate structure is permanent, not temporary, and there is no question that the company did not seek the change.
Since the statutes relative to the commission's power do not separably confer upon the commission the authority to suspend the PGA clause, we fail to see how, as the division argues, they empower the commission to do so when interpreted collectively. Even in the realm of simple mathematics, nothing plus nothing still equals nothing. While title 39 details a comprehensive plan of public utility regulation with primary responsibility of carrying out the plan being vested in the commission, there is also a clearly expressed legislative intent to restrict the commission's regulation so that in the absence of an emergency a utility can expect a certain degree of permanency in the type of control exercised over it by the commission. Thus, the Legislature prohibits the commission from interrupting the operation of an effective tariff by delineating specific circumstances when a stay may be issued. Therefore, we find that the report and order of the commission is null and void as it relates to the disposition of the April 12, 1976 refund. Not having the authority to stay implementation of the PGA, the commission could not prevent the company from distributing the refund within the 15 days set forth in the PGA clause of the tariff.
Our holding should not be interpreted as rendering the commission powerless to amend the terms of the PGA. In § 39-3-11 the Legislature has established a procedure that enables the commission to make such a change. However, as noted earlier in this opinion, § 39-3-11 clearly envisions that the tariff currently in force will continue in operation until a public hearing is held and after which an order will be entered.
In its May 31, 1977 order, the commission also amended the PGA clause to provide for a different refund procedure. This new clause provides that the company will calculate the amount of the refund and within 15 days submit "details of the procedure to be followed in making refunds to customers." This stipulation places the manner of distributing refunds on an ad hoc basis. Apparently, it may be cash one time and credit another depending upon the commission's belief at the time the company submits its plan. While the amended PGA cannot be applied to the Algonquin refund, there is still a question of whether it may govern refunds received subsequent to the commission's May 31, 1977 order.
*1342 The source of the commission's authority to amend the terms of the tariff is § 39-3-11, and its threshold requirement for lawful commission action is a "public hearing." However, there is no clue in § 39-3-11 as to how the "public hearing" shall be commenced or conducted. The reason for this is, we believe, because the type of action contemplated by § 39-3-11 falls squarely within the definition of a "contested case" set forth in the Administrative Procedures Act, G.L.1956 (1969 Reenactment) § 42-35-1(b).[4] By seeking to amend the PGA, the commission thereby engaged in the process of ratemaking and was obligated to comply with the provisions of ch. 35 of title 42.[5]
In § 42-35-9, the Legislature establishes the necessary notice and hearing requirements to be followed in a "contested case." These procedural steps are quite specific and detailed so as to insure that parties have a fair opportunity to appear, present evidence, and have a decision rendered on the evidence presented at the hearing. Of particular significance for our purposes are § 42-35-9(a) and (b)(4), which state:
"(a) In any contested case, all parties shall be afforded an opportunity for hearing after reasonable notice.
"(b) The notice shall include:
* * * * * *
"(4) A short and plain statement of the matters inserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved and detailed statement shall be furnished."
These provisions make clear that a party[6] to a contested case shall receive notice which in plain terms draws attention to, among other things, the subject matter to be considered at the hearing.
The record of this petition contains a document entitled "Notice of Hearing," which presumably was used to inform parties of the hearing into the refund. It is unclear from the record precisely who was informed by the "notice" of the hearing. Surely, the company and the Consumers' Council were "parties" entitled to notice.[7] In addition , the company's regular customers were also "entitled as of right" to be "parties" and have an opportunity to be apprised about the hearing. All segments of the regular customer class could be affected by the manner in which the refund was to be distributed. Regardless of who was given the notice, we find that the notice, if given, was not adequate to inform the "parties" of what the commission would be considering at the hearing.
After stating the time and place of the hearing, the notice, in its pertinent portions, reads as follows:
" * * * the Public Utilities Commission will conduct a public hearing * * on the filing made by the Providence Gas Company on April 12, 1976. The filing made on May 14, 1976 concerning the fee for restoration of service following a nonpayment shutoff will be held at the conelusion *1343 of the rebate of the Algonquin refund hearing."
Besides being something less than a typographical masterpiece, the notice contains no information as to the amount of the refund, how the PGA clause would distribute it, or the possibility that the commission might amend the PGA. Under § 42-35-9(b)(4), all "parties" had a right to be informed in clear and simple terms what the PGA clause provided and how the, commission contemplated amending it. Without this information in the notice, it was really no notice at all, and the attempted amendment of the PGA amounts to a nullity.
The result we reach disposes of all but one of the issues raised by the parties. The unresolved issue is whether the company, in making the credit refund, should be required to include within its computations a figure representing interest due the regular customers from the date of the commission's May 3, 1976 order to the order of this court dated June 16, 1977.[8] Even though the PGA clause makes no reference to interest, the company has made it clear to us that although the delay was caused by the commission, it does not seek to profit as a consequence. To allow the company to distribute the refund without interest for that period between the commission's order and our stay would result in a windfall to the company. The company, by using the fund for financing its operation, saved the cost of short-term borrowing. The refund belongs to the company's customers, and it is obvious the company should make amends for the use of funds that actually belonged to eligible customers.
By G.L.1956 (1969 Reenactment) § 39-5-4, this court may in reversing an order of the commission, make "such mandates, as law or equity shall require." Obviously, there is no set formula we can refer to in determining the proper rate of interest. Since the company concedes that its saving was the 6¼ percent interest it would have paid for short-term loans during the period and that this is more than the amount of interest which the commission ordered to be actually paid to customers,[9] we feel that the rate of 6 ¼ percent is a fair charge. This amount will be included in the refund to be distributed to the company's customers according to the PGA clause.
The petition for certiorari is granted, the order of the commission is quashed, and the record is returned to the commission with our decision endorsed thereon.
NOTES
[1] An exact determination is not reached because the PGA price increase may have taken place years before the refund is received by the company. For example, in this case a portion of the refund is attributable to supplier overcharges dating back to May 1969.
[2] The unit refund to be credited on each Mcf of gas purchased was $.0676. The company arrived at this figure by dividing the amount to be refunded ($1,039,977) by regular customer usage during the first 12 of the 13 months preceding the date of the refund (15,377,802 Mcf's).
[3] The discretion to grant the temporary emergency relief to utilities which is identical to that described in § 39-3-13 was originally given in 1912 to a three-member commission when the General Assembly enacted the Public Utilities Act, P.L. 1912, ch. 795, secs. 3 and 44. Later, in 1935, the General Assembly approved a governmental reorganization plan whereby the powers and duties of the commission were vested in a newly established Division of Public Utilities. Public Laws 1935, ch. 2188, sec. 1, and ch. 2250, sec. 72. Since that time the discretion to which we have referred has been exercised by the division. Gardiner v. Kennelly, 79 R.I. 367, 89 A.2d 184 (1952).
[4] General Laws 1956 (1969 Reenactment) § 42-35-1(b) provides: "`contested case' means a proceeding, including but not restricted to ratemaking, price fixing, and licensing, in which the legal rights, duties, or privileges of a specific party are required by law to be determined by an agency after an opportunity for hearing."
[5] Although we find that the commission is subject to the Administrative Procedures Act in "contested cases," this does not mean that its actions are also subject to the judicial review provisions of the Act. General Laws 1956 (1969 Reenactment) § 39-5-1 specifically exempts decisions or orders of the commission from the judicial review procedures set forth in ch. 35 of title 42. Instead, review is had by way of certiorari to this court.
[6] "Party" is defined in § 42-35-1(e) as "each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party."
[7] General Laws 1956 (1969 Reenactment) § 39-1-17 confers upon the Consumers' Council the status of a party in "any inquiry * * * or examination" into "tariffs, rates or charges." The council did not take part in the hearing on the refund. We cannot tell whether its absence was due to a lack of notice, operating funds, or other reason.
[8] In our order of June 16, 1977, staying the commission's May 31, 1977 order, we conditioned the stay upon the company's adding to the amount available for refund 8 percent interest per year from the date of our order.
[9] Although the commission ordered the company to pay a total of 9 percent interest on the fund, it only required the company to allocate 5 percent as being due the customers with the remaining 4 percent to be used by the company to defray the cost of the distribution plan. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560649/ | 380 A.2d 90 (1977)
A. G. ANDERSON COMPANY, INC.
v.
T. C. INDUSTRIES, INC. and William O. Thrailkill and Calvin Carr d/b/a T & C Construction.
No. 149-76.
Supreme Court of Vermont.
November 3, 1977.
Motion for Reargument Denied November 29, 1977.
*91 McKee, Giuliani & Cleveland, Montpelier, for plaintiff.
George E. Rice, Jr., Montpelier, for defendants.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
DALEY, Justice.
By complaint filed in the Washington Superior Court, the plaintiff sought to recover for materials delivered and work done on Timberline II, a construction project located on the Access Road, Warren, Vermont. The defendant corporation and the two named individuals denied liability, and the trial by court resulted in a judgment in favor of the defendants from which the plaintiff appeals.
On appeal the plaintiff contends that the evidence and findings do not support the trial court's conclusions and judgment. We agree. The trial court found as fact that the plaintiff submitted a written proposal addressed to T. C. Construction Company. The evidence showed that this proposal was accepted by Mr. Carr with the knowledge and consent of Mr. Thrailkill. Throughout this transaction these two were doing business as T & C Construction, also referred to in the evidence as T. C. Construction and as T. C. Construction Company. When plaintiff completed its work in accordance with the proposal, it sought payment from Mr. Carr.
There is no evidence that plaintiff knew or should have known that Thrailkill and Carr, doing business as T & C Construction, were acting in any other capacity than as principals. If they were acting in another capacity, it was for them to openly announce that fact to the plaintiff. Bachli v. Holt, 124 Vt. 159, 164, 200 A.2d 263 (1964). Instead defendants stood silently by while plaintiff completed performance, and now it is too late to claim that, as to plaintiff, they are not principally liable. Diamond National Corp. v. Szerbik, 129 Vt. 452, 454, 282 A.2d 806 (1971).
The trial court erred in failing to conclude as a matter of law that defendants Thrailkill and Carr, doing business as T & C Construction, were liable to the plaintiff in the amount of the stipulated damage. Therefore the judgment against the plaintiff is unsupported by the evidence and the trial court's findings and must be reversed. This case need not be remanded since sufficient evidence appears on the record to indicate what the judgment should be. Chaffin v. Bitinsky, 126 Vt. 218, 220, 227 A.2d 296 (1967).
The trial court's judgment dismissing the plaintiff's action against T. C. Industries, Inc. is affirmed. The dismissal of the defendants Thrailkill and Carr, doing business as T & C Construction, is vacated, and judgment is entered for the plaintiff to recover $10,893.68 from the defendants Thrailkill and Carr, doing business as T & C Construction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1644979/ | 994 So. 2d 1247 (2008)
Omar Vaughn SALMON, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D08-2763.
District Court of Appeal of Florida, Third District.
November 19, 2008.
*1248 Omar Vaughn Salmon, in proper person.
Bill McCollum, Attorney General, for appellee.
Before SUAREZ, CORTIÑAS, and ROTHENBERG, JJ.
PER CURIAM.
This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).
Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.
Reversed and remanded for further proceedings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/396252/ | 662 F.2d 520
STALEY FARMS, INC., Appellant,v.Vernon RUETER and Dorothy Ann Rueter, Appellees.
No. 81-1098.
United States Court of Appeals,Eighth Circuit.
Submitted Oct. 14, 1981.Decided Nov. 2, 1981.
G. A. Cady, III, argued, Hobson, Cady & Drew, Hampton, Iowa, for Staley Farms, Inc.
Gary L. McMinimee, argued, Wunschel, Eich & McMinimee, P. C., Carroll, Iowa, for Vernon Rueter, et al.
Before STEPHENSON and McMILLIAN, Circuit Judges, and LARSON,* Senior District Judge.
STEPHENSON, Circuit Judge.
1
The appellant-plaintiff challenges chapter 656, Iowa Code, on the grounds that it is a violation of due process. The district court1 granted summary judgment in favor of the defendants-appellees concluding that the protections of due process were not applicable because chapter 656 did not constitute state action.
2
Chapter 656 covers the forfeiture of real estate contracts. It provides that forfeiture will not be permitted unless the proper procedure is followed. This procedure requires service of notice of forfeiture on the buyer and the person in possession. This notice must identify the contract, describe the real estate and specify those terms and conditions of the contract that have been breached. If the buyer complies with the specified terms of the contract and pays the reasonable cost of the notice within thirty days, forfeiture is not allowed. If the buyer does not comply with the forfeiture notice within the specified time, the seller is entitled to file with the recorder's office the notice of forfeiture, together with the proof of service, that will serve as constructive notice of forfeiture and cancellation of the contract. Iowa Code § 656.1 et seq. (1981).
3
In February 1978, plaintiff Staley Farms, Inc. purchased certain real estate in Howard County, Iowa, from defendants Vernon and Dorothy Rueter. On or about August 26, 1980, the defendants served notice of forfeiture upon the plaintiff pursuant to chapter 656. On October 1, 1980, the defendants filed for record the notice of forfeiture, along with proof of service. Staley Farms maintains that due process requires a hearing prior to forfeiture. In support of its contention that the statute amounts to state action, the appellant argues first that the statute encourages or creates an atmosphere in which private citizens deprive others of constitutional rights. It relies on Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). Secondly, the appellant asserts that the state has delegated a traditionally public function to private interests. See, e. g., Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974).
4
These two doctrines were applied by the United States Supreme Court in Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). In Flagg Bros., the Court held that a warehouseman's proposed sale of stored goods, enforcing a lien under state law to pay for storage charges, did not constitute state action and thus did not require a hearing. The Court noted that the applicable statute was not the exclusive method to resolve the private dispute and thus was distinguishable from the "public function" line of cases. Id. at 159-61, 98 S.Ct. at 1735-36. The Court also observed that the statute permitted, but did not compel, the sale of the stored goods. Id. at 164-66, 98 S.Ct. at 1737-39. The Court relies on this factor to conclude that the state had not "encouraged" the sale.
5
Both these observations are appropriate here. Certainly other avenues of relief are available to the plaintiff. In fact, during oral argument counsel for the plaintiff stated that a state action was pending concerning whether Staley Farms was in default.
6
Justice Rehnquist, speaking for the Court in Flagg Bros., distinguished a line of cases striking down summary self-help remedies for creditors on the basis that the statute in question required no overt official involvement. Compare North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), with Flagg Bros., Inc. v. Brooks, supra, 436 U.S. at 156-57, 98 S.Ct. at 1733-34. Similarly, there is no overt official involvement required under chapter 656.
7
Further, the Iowa Supreme Court has previously considered the specific issue raised in this case. See Jensen v. Schreck, 275 N.W.2d 374 (Iowa 1979). In Jensen, the Iowa court held that there was no state action in procedures conducted pursuant to chapter 656 sufficient to raise issues of due process. Id. at 384-86. The court also observed that chapter 656, rather than being unfavorable to the buyer, was instead intended to limit the rights of a seller who might otherwise summarily remove a buyer upon default. Id.
8
We conclude that the statute does not amount to state action and, therefore, the Due Process Clause of the Fourteenth Amendment is inapplicable.
9
Affirmed.
*
The Honorable Earl R. Larson, Senior United States District Judge for the District of Minnesota, sitting by designation
1
The Honorable Edward J. McManus, Chief Judge, United States District Court for the Northern District of Iowa | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/491476/ | 823 F.2d 788
16 Bankr.Ct.Dec. 585, Bankr. L. Rep. P 71,907
In re Eddie D. LOONEY, Judy Looney, Debtors.GRUNDY NATIONAL BANK, Plaintiff-Appellant,v.Eddie D. LOONEY, Judy Looney, Jo S. Widener, Trustee,Defendants-Appellees.Virginia Bankers Association, Dominion Bank, NationalAssociation, Amicus Curiae.
No. 86-2660.
United States Court of Appeals,Fourth Circuit.
Argued April 10, 1987.Decided July 14, 1987.
Michael Leon Shortridge, Norton, Va., for appellant.
Robert Tayloe Copeland (E. Gay Leonard, Copeland, Molinary & Bieger, Abingdon, Va., on brief), for appellees.
(John W. Edmonds, III, Fred W. Palmore, III, Mays & Valentine, Richmond, Va., on brief), for amicus curiae Virginia Bankers Ass'n; (David A. Farnham, Baltimore, Md., on brief), for amicus curiae.
Before RUSSELL, ERVIN, and CHAPMAN, Circuit Judges.
ERVIN, Circuit Judge:
1
This is an appeal from an interlocutory order, entered July 22, 1986, by the United States Bankruptcy Court for the Western District of Virginia. Appellant, Grundy National Bank ("Grundy"), filed a motion1 pursuant to 11 U.S.C. Sec. 362(d) (1982) for relief from the automatic stay of 11 U.S.C. Sec. 362(a) (1982). The stay protected the assets of the appellees ("the Looneys") following their filing of a petition in bankruptcy on or about June 18, 1986. In response to Grundy's motion, the bankruptcy court, without a hearing, ordered that the stay remain in effect until the final hearing on the merits of the motion for relief from the stay, which the court at the same time scheduled for September 11, 1986. Grundy appealed the bankruptcy court's order to the United States District Court for the Western District of Virginia on July 28, 1986. The district court affirmed the order of the bankruptcy court. We reverse.
2
The statutory procedure to be followed in adjudging a motion for relief from the automatic stay requires some form of "notice and a hearing." 11 U.S.C.A. Sec. 362(e) (West Supp. 1986).2 The question presented to us, on the merits, is whether the notice and hearing requirement of Sec. 362(e) was met in this case or, alternatively, whether the bankruptcy court's action was proper as an exercise of its equitable powers under Fed.R.Civ.P. 65 and Sec. 105(a) of the Bankruptcy Code. As a preliminary matter, however, we must determine whether we have jurisdiction to hear this appeal.
I.
3
Federal district courts have the power to entertain appeals from interlocutory orders of bankruptcy courts by leave of the district court, as well as to hear appeals as of right of final orders from bankruptcy courts. See 28 U.S.C. Sec. 158(a) (1982). Appeals from district courts under Sec. 158(a) "shall be taken in the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district court." 28 U.S.C. Sec. 158(c) (1982). Section 158(d) provides that "[t]he courts of appeals shall have jurisdiction of appeals from all final decisions, judgments, orders and decrees entered under subsections (a) and (b) of this section."
4
Even though the standard for finality of bankruptcy court orders is relaxed from that of non-bankruptcy district court orders under 28 U.S.C. Sec. 1291, see A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1009 (4th Cir.1986), the order in this case is not a final order because it does not resolve the litigation, decide the merits, settle liability, establish damages, or determine the rights of even one of the parties to the Looney's bankruptcy case. Cf. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (concerns finality under Sec. 1291); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 632, 89 L.Ed. 911 (1945) (same). The district court below explicitly viewed the bankruptcy court's order as interlocutory, and the order lacks those characteristics that this court identified in Piccinin as substitutes in the bankruptcy context for traditional indicia of finality. See Piccinin, 788 F.2d at 1009.3
5
Jurisdiction nevertheless lies in this case under the collateral order doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). To be reviewable despite the absence of finality, an order "must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. at 2457 (footnote omitted). In this case, the bankruptcy court order, issued without notice or a hearing, conclusively determined Grundy's statutory right to have the automatic stay lifted, unless the Looneys showed a reasonable likelihood of prevailing on the merits, within thirty days of the filing of Grundy's motion for relief. This right is an important protection for creditors of the value of collateral. A denial of review by this court "would render impossible any review whatsoever," Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 376, 101 S.Ct. 669, 674, 66 L.Ed.2d 571 (1981), of the bankruptcy court's order.
II.
6
The district court upheld the bankruptcy court's decision by relying on the language of 11 U.S.C. Sec. 102 (1982), which contains rules of construction for the Bankruptcy Code. Section 102 defines the phrase "after notice and a hearing" in a way that does not require an actual hearing in some circumstances:
Sec. 102. Rules of Construction
7
In this title--
8
(1) "after notice and a hearing", or a similar phrase--
9
(A) means after such notice as is appropriate in the particular circumstances, and such opportunity for a hearing as is appropriate in the particular circumstances; but
10
(B) authorizes an act without an actual hearing if such notice is given properly and if--
11
(i) such a hearing is not requested timely by a party in interest; or
12
(ii) there is insufficient time for a hearing to be commenced before such act must be done, and the court authorizes such act....
13
11 U.S.C. Sec. 102 (1982). The district court interpreted both Sec. 102 and the language of Sec. 362(e) to allow the bankruptcy court to continue the stay pending disposition of a motion for relief from the stay.
14
However, the bankruptcy court took its action without affording any notice whatsoever to Grundy. While Sec. 102, read in conjunction with Sec. 362(e), does not require actual preliminary hearings in all cases when a bankruptcy court continues the automatic stay in the face of a motion for relief from the stay, it requires at a minimum that notice be given to the parties before taking such action, to allow them, for example, to request an actual hearing. Grundy and the amici4 claim that the bankruptcy judge who issued the order that led to this appeal routinely grants continuances of the automatic stay without providing notice or a preliminary hearing. If that allegation is correct, the practice must be ended; the statute contemplates that "notice and a hearing" requires an actual hearing in all but exceptional cases. Even in those exceptional cases, the bankruptcy court must make a determination that the party opposing the motion is reasonably likely to prevail on the merits.
15
Section 362(e) was enacted to prevent the practice under the old Bankruptcy Act of "injunction by continuance." The legislative history is clear on this point:
16
Subsection (e) provides protection that is not always available under present law. The subsection sets a time certain within which the bankruptcy court must rule on the adequacy of protection provided for the secured creditor's interest. If the court does not rule within 30 days from a request by motion for relief from the stay, the stay is automatically terminated with respect to the property in question. To accommodate more complex cases, the subsection permits the court to make a preliminary ruling after a preliminary hearing. After a preliminary hearing, the court may continue the stay only if there is a reasonable likelihood that the party opposing relief from the stay will prevail at the final hearing.
17
S.Rep.No. 989, 95th Cong., 2d Sess. 53, reprinted in 1978 U.S. Code Cong. & Ad. News 5787, 5839. The primary assets of the Looneys at issue in this case are two trucks and a personal residence, so this can hardly be said to be a "complex case" within the meaning of the legislative history of Sec. 362(e). Even if it appeared complex, the courts below erred in interpreting Sec. 362(e) and Sec. 102 to allow the denial, sua sponte and without notice or a determination of the likely outcome of the case, of a motion for relief from the automatic stay. Such an interpretation completely ignores the specific requirements of Sec. 362(e).
III.
18
The bankruptcy court's equitable powers were not invoked in this case in a way that would allow continuance of the automatic stay without a hearing. Bankruptcy Rule 7065 allows temporary restraining orders or preliminary injunctions to be issued in bankruptcy cases without compliance with Fed.R.Civ.P. 65(c), which requires the party moving for an injunction to give security. However, such injunctions are to be given "on application of a debtor, trustee or debtor in possession." Bankr.R. 7065. In this case, there was no such application. The bankruptcy court acted sua sponte. Nor was there conformity with the other requirements of Fed.R.Civ.P. 65, such as notice or an attempt to give notice to the adverse party, an allegation of irreparable harm, and a determination of likely success on the merits by the debtor. The extension of the automatic stay cannot be upheld on these grounds. This same bankruptcy judge has held that he lacks power to reinstate the automatic stay after it is terminated, despite the presence of Bankr. R. 7065 and Fed.R.Civ.P. 65. See In re Sykes, 53 B.R. 107, 108 (Bankr.W.D.Va.1985). But cf. In re Walker, 3 B.R. 213, 214 (Bankr.W.D.Va.1980) (same judge holds that, even if the automatic stay terminates after thirty days, court can use its Sec. 105(a) power to protect a debtor's estate).
19
Under 11 U.S.C. Sec. 105(a) (1982), "[t]he court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title." The bankruptcy judge in this case did not purport to act under this section, but on appeal the Looneys urge that it is an alternative ground on which to sustain the lower courts' rulings. Several courts have allowed, by reference to Sec. 105(a) powers, the reinstatement of automatic stays that had terminated. See In re Martin Exploration Co., 731 F.2d 1210, 1214 (5th Cir.1984); Bank Hapoalim B.M. v. E.L.I., Ltd., 42 B.R. 376, 378 (N.D.Ill.1984). But the actions of this bankruptcy court, purportedly acting under Sec. 362(e), cannot be countenanced on the basis of the powers granted in Sec. 105(a). Given the clear legislative history of Sec. 362(e), it strains reason to say that the routine continuation of the automatic stay "is necessary or appropriate to carry out the provisions" of the Bankruptcy Code.
20
The Looneys contend that the bankruptcy docket for the Western District of Virginia is too crowded for one judge to serve it without bending the rules. There may be a need for more bankruptcy judges in the district, but this argument does not suffice to justify altering the procedure for lifting the automatic stay. The provisions governing relief from the automatic stay exist to protect secured creditors and it is not acceptable to ignore the rules because the court has a crowded docket. Congress clearly intended to limit the period following a motion to lift the automatic stay to thirty days, unless the bankruptcy court finds affirmatively that the debtor is likely to prevail in the end.
21
REVERSED AND REMANDED.
1
The district court, in affirming the bankruptcy court decision, listed the date of filing of this motion as August 7, 1986, and then used this date of filing in calculating the length of the stay extension to be only four days. It appears that the motion was actually filed on July 7, 1986. This error of fact led the district court to conclude that "granting an extension of only four days seems appropriate without any notice or hearing." On remand, careful attention should be paid to the actual date of filing by Grundy
2
The statute requires that:
Thirty days after a request under subsection (d) of this section for relief from stay of any act against property of the estate under subsection (a) of this section, such stay is terminated with respect to the party in interest making such request, unless the court, after notice and a hearing, orders such stay continued in effect pending the conclusion of, or as a result of, a final hearing and determination under subsection (d) of this section. A hearing under this subsection may be a preliminary hearing, or may be consolidated with the final hearing under subsection (d) of this section. The court shall order such stay continued in effect pending the conclusion of the final hearing under subsection (d) of this section if there is a reasonable likelihood that the party opposing relief from such stay will prevail at the conclusion of such final hearing. If the hearing under this subsection is a preliminary hearing, then such final hearing shall be commenced not later than thirty days after the conclusion of such preliminary hearing. 11 U.S.C.A. Sec. 362(e) (West Supp. 1986) (emphasis added).
3
Because the federal district courts are empowered to review interlocutory decisions of bankruptcy courts, the question has arisen whether a final order of a district court that pertains to an interlocutory decision of a bankruptcy court is a final order for purposes of circuit court review. We are in agreement with the courts of appeals which have held that such a case does not present a reviewable final order under Sec. 158(d); ordinarily, both the district court and the bankruptcy court orders must be final orders before the court of appeals has jurisdiction. See, e.g., In re Stanton, 766 F.2d 1283, 1285 (9th Cir.1985); In re Pizza of Hawaii, Inc., 761 F.2d 1374, 1378 (9th Cir.1985); In re American Colonial Broadcasting Corp., 758 F.2d 794, 800-01 (1st Cir.1985); In re Mason, 709 F.2d 1313, 1315 (9th Cir.1983); Maiorino v. Branford Savings Bank, 691 F.2d 89, 93 (2d Cir.1982); International Horizons v. Committee of Unsecured Creditors (In re International Horizons, Inc.), 689 F.2d 996, 1000 (11th Cir.1982); cf. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101 (3d Cir.1982) (finding a bankruptcy court decision to have been final rather than interlocutory in order to support appellate jurisdiction)
4
Amicus briefs were filed in this case by the Virginia Bankers Association and Dominion Bank, National Association | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/732713/ | 104 F.3d 354
NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.UNITED STATES OF AMERICA, Appellee,v.Christopher COLLINS, Defendant,Luqman Salaam, Defendant-Appellant.
No. 96-1203.
United States Court of Appeals, Second Circuit.
Nov. 12, 1996.
APPEARING FOR APPELLANT: Donald D. DuBoulay, New York, N.Y.
APPEARING FOR APPELLEE:Ronald White, Assistant United States Attorney, Eastern District of New York, Brooklyn, N.Y.
Before MESKILL, CALABRESI and CABRANES, Circuit Judges.
1
This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York and was argued.
2
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
3
The defendant, Luqman Salaam, was arrested on May 19, 1995, following a high-speed chase in which police pursued a vehicle, allegedly driven by Salaam, that was observed leaving the vicinity of an armed bank robbery in Queens, New York. Suspecting that the car's occupants were involved in the robbery, the police pursued the car for some time before the vehicle lost control and crashed. At this point, two men fled from the vehicle. One of the men, Christopher Collins, was apprehended; the other escaped and remains unidentified. Salaam stayed in the car and was taken into police custody.
4
An ensuing search of the car's passenger compartment produced various items, including two handguns, linking the car's occupants to the robbery, as well as a souvenir baseball bat that the Government alleges Salaam, a paraplegic since 1980, employed to drive the car. A leather bag was also discovered, lying, partially unzipped, approximately five feet from the vehicle's passenger side. The bag contained a loaded handgun and various items belonging to the defendant, including his catheter, which, due to his paralysis, he needed to employ several times each day.
5
Following a jury trial in the District Court for the Eastern District of New York for his alleged role as the getaway driver in the armed bank robbery, the defendant was convicted of conspiracy to commit bank robbery in violation of 18 U.S.C. § 371 and armed bank robbery in violation of 18 U.S.C. § 2113(a), (d). The Government had also brought two charges against the defendant pertaining to the weapon discovered in the leather bag, and he was convicted on one of these charges--using or carrying a firearm in connection with a violent crime in violation of 18 U.S.C. § 924(c). He was subsequently sentenced to a prison term of 156 months, 96 months for the robbery and conspiracy convictions and 60 months for the § 924(c) firearms charge. In calculating this sentence, Judge Gleeson rejected the defendant's request for a downward departure based on his physical impairment. See U.S.S.G. § 5H1.4 (authorizing downward departure in cases where defendant suffers from "extraordinary physical impairment").
6
Following the trial, Salaam moved to set aside the jury's verdict on the § 924(c) charge. In a hearing before Judge Gleeson on March 12, 1996, the defendant argued that, in light of the Supreme Court's intervening decision in Bailey v. United States, 116 S.Ct. 501 (1995), the court's instructions to the jury on the § 924(c) charge were erroneous and, under the correct standard as defined by Bailey, there was insufficient evidence to convict him for using or carrying a firearm under § 924(c). The court rejected these arguments, and the defendant now appeals, asking this Court to set aside his conviction under § 924(c). He also challenges the district court's refusal at sentencing to make a downward departure based on his physical disability. We address these claims in turn.
7
The defendant argues, first, that Judge Gleeson's jury instruction on the § 924(c)(1) charge was erroneous in light of the Supreme Court's decision in Bailey. While we agree that the instruction is inconsistent with the holding in Bailey, we conclude that this error was harmless.
8
18 U.S.C. § 924(c)(1) provides for a mandatory five-year sentence in the event that a defendant "uses or carries a firearm" during the commission of "any crime of violence or drug trafficking crime." (Emphasis supplied.) In Bailey, the Supreme Court held that the "use" of a weapon, as that term is employed in § 924(c), has a more limited meaning than many courts had previously assigned to it. "Use" means more, the Court concluded, than "mere possession"; it requires a showing that a defendant engaged in the "active employment" of the weapon while committing the underlying crime. 116 S.Ct. at 506.
9
The Government concedes that Judge Gleeson's charge on the § 924(c)(1) charge was erroneous in light of Bailey insofar as it conflated the concepts of "using" and "carrying" a firearm and thereby failed to explain that a conviction for "use" requires a finding that the weapon was "actively employed." Such error, however, need not be prejudicial. In United States v. Pimentel, 83 F.3d 55 (2d Cir.1996), we found harmless error in a jury instruction similarly defective for conflating § 924(c)(1)'s "use" and "carrying" requirements, determining that "the language that was flawed with respect to 'using' properly described 'carrying,' and the evidence was ample to support a finding of carrying." Id. at 60 (emphasis supplied). We reached this conclusion notwithstanding the fact that the "carrying" instruction itself was flawed in that it did not include an express reference to "a requirement of immediate accessibility." Id. at 59.
10
Like the district court's instruction in Pimentel, we conclude that Judge Gleeson's charge in this case, although purporting to define both "using" and "carrying," in fact set out a legal standard that is consistent with the proper definition of "carrying." Judge Gleeson's instruction required the jury to find more than the mere possession of the firearm and, like the charge in Pimentel, adequately conveyed the idea that the defendant must have had immediate accessibility to the weapon while committing the underlying crime.
11
What remains of the defendant's challenge to his § 924(c)(1) conviction, then, is the question of whether the Government presented the jury with sufficient evidence to convict Salaam for "carrying" a weapon. In challenging the sufficiency of the evidence, the defendant must establish that "no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." See, e.g., United States v. Taylor, 92 F.3d 1313, 1333 (2d Cir.1996) (internal quotation marks and citation omitted). The defendant fails to meet this burden in the instant case.
12
To support a conviction for "carrying" a weapon under § 924(c), we require that a weapon have been immediately accessible to the defendant--that it have been "within [the defendant's] reach" during the commission of the underlying crime. See United States v. Feliz-Cordero, 859 F.2d 250, 253 (2d Cir.1988). The defendant cites a series of cases in which this Court has vacated convictions for a lack of evidence placing the weapon at issue in such a position of accessibility. The evidence in these cases, however, suggested the relevant weapon's inaccessibility, see, e.g., United States v. Santos, 84 F.3d 43, 47 (2d Cir.1996) (per curiam) (weapon " 'hidden in the oven in the kitchen that was across a hallway from the living room' where the transaction took place"), modified, 95 F.3d 116 (1996); Feliz-Cordero, 859 F.2d at 253-54 (weapon in bedroom dresser drawer out of defendant's reach during commission of underlying crime), or failed to include any evidence that the defendant knew of a weapon's presence, see United States v. Giraldo, 80 F.3d 667, 677 (2d Cir.) (finding "no evidence from which the jury could reasonably infer that [the defendant] knew there was a gun in the car"), cert. denied, 117 S.Ct. 135 (1996). Here, in contrast, the location of the leather bag after the accident suggests that it had been loose in the car's passenger compartment during the police chase. In addition, the jury had before it evidence that the bag belonged to the defendant, that it contained an item, his catheter, the use of which he regularly required, and that the bag was partially unzipped when found. On these facts, we cannot conclude that a reasonable juror could not have found, beyond a reasonable doubt, that the weapon had been immediately accessible to the defendant.
13
Finally, we find no merit in the defendant's challenge to Judge Gleeson's failure to grant a downward departure in calculating his sentence. A district court's failure to grant a request for a downward departure in Guidelines sentencing is normally not subject to appeal. See, e.g., United States v. Brown, 1996 WL 593810, at * 2 (2d Cir.1996) (per curiam); United States v. Sharpsteen, 913 F.2d 59, 62 (2d Cir.1990). While this rule is not without narrow exceptions, the defendant fails to identify any such exception applicable in the instant case.
14
Accordingly, the defendant's conviction under § 924(c)(1) and the sentence imposed by the district court are affirmed. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/4558389/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-19-00761-CV
IN RE COMMITMENT OF Kevin JOHNSON
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CI123245
Honorable Catherine Torres-Stahl, Judge Presiding
BEFORE JUSTICE MARION, JUSTICE ALVAREZ, JUSTICE RODRIGUEZ
In accordance with this court’s opinion of this date, the trial court’s judgment is
AFFIRMED. We assess no costs of court because the appellant is indigent.
SIGNED August 19, 2020.
_____________________________
Patricia O. Alvarez, Justice | 01-03-2023 | 08-25-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2858048/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-296-CR
TOMMY LYNN SANDERS,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
NO. CR90-0187-A, HONORABLE JOHN E. SUTTON, JUDGE PRESIDING
PER CURIAM
A jury found appellant guilty of murder. Tex. Penal Code Ann. § 19.02(a)(2)
(1989). The jury assessed punishment at imprisonment for forty years.
In three points of error, appellant asserts that the district court erred by refusing
to instruct the jury on the lesser included offenses of voluntary manslaughter, involuntary
manslaughter, and criminally negligent homicide. Finding no error, we affirm.
On February 25, 1990, there was a party at William Merriman's house in San
Angelo. Among those attending the party were Lena Miller, John Hyatt, Randy Villarreal (the
deceased), and appellant. A large amount of beer was consumed. Shortly after midnight, an
argument broke out between Miller and Villarreal. Villarreal hit the woman with a can of beer.
Appellant responded to this by jumping on Villarreal and striking him with his fists. After this
brief scuffle ended, Villarreal left the scene on foot.
Appellant and Hyatt got into Hyatt's car. Merriman joined them, apparently in
hopes of encountering Villarreal. Merriman stated his intention to kill Villarreal. After driving
a few blocks, the men saw Villarreal walking through Pecan Park. Appellant and Merriman left
the car and began to chase Villarreal. Appellant caught Villarreal, dragging him to the ground.
Appellant repeatedly struck the victim with his fists, then got up when Merriman approached.
Merriman began to strangle Villarreal with one hand and hit him with the other. Appellant
renewed his attack, kicking the victim in the face with his boot. Hyatt arrived and successfully
urged the men to stop their assault on Villarreal, who by this time was unconscious and near
death. Help was summoned, but Villarreal was dead by the time emergency personnel arrived.
Appellant did not testify. Merriman testified that he was in his house when
Villarreal struck Miller. He did not remember his reaction when told of this incident, nor did he
remember why he got in the car with Hyatt and appellant. He testified that he did not remember
being enraged or in fear of Villarreal when he attacked him in the park. Merriman testified, "It
just got out of hand. I didn't realize it was that bad."
The charge authorized appellant's conviction if the jury found that he committed
an act clearly dangerous to human life (hitting, strangling, or kicking the deceased) with the intent
to cause serious bodily injury. The charge also included an instruction on the law of parties, and
authorized appellant's conviction if he encouraged or aided Merriman's murder of the deceased
in the manner described.
Voluntary manslaughter is murder committed under the immediate influence of
sudden passion arising from an adequate cause. Tex. Penal Code Ann. § 19.04 (1974). The only
provocative act committed by the deceased was striking Miller with a beer can. There is no
evidence that this act produced in either appellant or Merriman a degree of anger, rage,
resentment, or terror sufficient to render the mind incapable of cool reflection, much less that they
were in the heat of such passion when they later assaulted Villarreal in the park. Merriman
testified that he did not remember feeling any such passion. There is evidence that Villarreal's
act angered appellant, but there is no evidence that this anger continued after Villarreal left the
party. We conclude that the district court did not err by refusing to instruct the jury on voluntary
manslaughter, and overrule point of error one.
In his argument under points of error two and three, appellant urges that in a
prosecution under § 19.02(a)(2), the charge should always include instructions on the lesser
offenses of involuntary manslaughter and criminally negligent homicide. That is incorrect. A
charge on a lesser included offense is required only if there is evidence that the defendant, if
guilty, is guilty only of the lesser offense. Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim.
App. 1981) (opinion on rehearing). The uncontradicted evidence in this cause shows that
appellant and Merriman chased a fleeing Villarreal, threw him to the ground, strangled him, and
pummeled him with their fists and feet. This attack continued after all resistance by Villarreal
ceased. There is no evidence that appellant or Merriman did not intend to cause serious bodily
injury to Villarreal, nor is there evidence that they failed to perceive, or consciously disregarded,
the risk that their actions would cause Villarreal's death. Tex. Penal Code Ann. § 6.03 (1974).
Therefore, no issue of reckless or criminally negligent conduct is raised. In re S.D.W., 811
S.W.2d 739, 751-53 (Tex. App. 1991, no writ); Zepeda v. State, 797 S.W.2d 258, 263-65 (Tex.
App. 1990, pet. ref'd); see Mendieta v. State, 706 S.W.2d 651 (Tex. Crim. App. 1986). The
district court did not err by refusing to charge on involuntary manslaughter or criminally negligent
homicide.
The judgment of conviction is affirmed.
[Before Justices Powers, Jones and B. A. Smith]
Affirmed
Filed: January 15, 1992
[Do Not Publish] | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2858054/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-284-CR
JAMES SHELLEY,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 102,772, HONORABLE JON N. WISSER, JUDGE
PER CURIAM
A jury found appellant guilty of theft, third offense. Tex. Penal Code Ann.
§ 31.03(e)(4)(E) (Supp. 1992). The jury assessed punishment, enhanced by two previous felony
convictions, at imprisonment for twenty-five years.
Appellant does not contest the sufficiency of the evidence as to the primary offense,
which reflects that he was caught shoplifting at an Austin grocery store. Appellant does complain,
however, that one of the previous theft convictions alleged pursuant to § 31.03(e)(4)(E) is void,
and thus could not be utilized in this cause. He also contends that the indictment in this cause is
fundamentally defective. We find both points of error to be without merit.
Section 31.03(e)(4)(E) provides that a theft of property having a value less than
$750 is a third degree felony if the defendant has been previously convicted two or more times
of any grade of theft. The indictment in this cause alleges that appellant "had previously been
convicted of the offense of theft as follows," then lists four previous theft convictions. Appellant
argues that the indictment is defective because it does not expressly state that he had been
previously convicted "two or more times."
Appellant did not object to the indictment on this ground, thereby waiving his right
to complain on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Supp. 1992). The contention
is without merit in any event. It is not necessary for an indictment to precisely track the language
of the penal statute. Queen v. State, 662 S.W.2d 338, 341 (Tex. Crim. App. 1983). The
indictment here alleges two or more previous theft convictions, which is all the statute requires.
None of the cases cited by appellant support his contention that the omitted phrase was essential
to the indictment. Point of error two is overruled.
In his other point of error, appellant urges that one of the four previous theft
convictions alleged in the indictment is void because the indictment in that case was defective.
We find that this contention does not present reversible error for two reasons. First, the record
does not reflect that appellant timely objected to the allegedly defective indictment, and therefore
he cannot collaterally attack it at this time. Art. 1.14(b). Second, three previous theft convictions
remain even if the challenged conviction is disregarded. We disagree with appellant's contention
that the State was bound to prove all four previous theft convictions. Under the statute, the State
was required to prove at least two of the previous theft convictions it alleged. The State met this
burden. Point of error one is overruled.
The judgment of conviction is affirmed.
[Before Justices Powers, Jones and B. A. Smith]
Affirmed
Filed: January 15, 1992
[Do Not Publish] | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/726734/ | 96 F.3d 1070
William T. BOLIEK, Appellee,v.Michael BOWERSOX, Warden, Appellant.
No. 96-1031.
United States Court of Appeals,Eighth Circuit.
Submitted June 12, 1996.Decided Sept. 23, 1996.Rehearing and Suggestion for Rehearing En Banc Denied Dec. 5, 1996.
Michael Joseph Spillane, Assistant Attorney General (argued), Jefferson City, Missouri, for appellant.
David Jay DeSimone (argued), Kansas City, Missouri, for appellee.
Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Circuit Judge, and KORNMANN,* District Judge.
RICHARD S. ARNOLD, Chief Judge.
1
The Superintendent of the Potosi Correctional Center appeals from the District Court's order granting William Theodore Boliek's petition for a writ of habeas corpus. We reverse.I.
2
In August 1983, Boliek was sharing a home in Kansas City, Missouri, with Don Anderson, Vernon Wait, and Jill Harless, who was Boliek's fiance. One evening, the petitioner, Anderson, Wait, and Jody Harless, Jill's sister, robbed the home of Stan Gray, a drug dealer and gang member. Following the robbery, Boliek and Wait discussed the need to "get rid of witnesses" to the crime, including Jody Harless. Vernon Wait suggested killing Jody Harless by injecting her with battery acid.
3
Three days later, the petitioner discovered that the police were looking for Jody Harless. Jill and Jody Harless, Wait, and Boliek decided to hide from the police by travelling to Thayer, Missouri. En route to Thayer, the four stopped their car on a rural road to relieve themselves. Jill Harless testified that she saw Boliek fire a shotgun at her sister. Grabbing her stomach, Jody got up and yelled, "No Ted, please don't." Wait pulled Jody to the ground, and the petitioner pointed his gun at her. Jill got back into the car and heard a second gunshot. According to Jill, Boliek later told her that he had aimed at Jody's mouth so that the police would not be able to identify her body.
4
At trial, the petitioner admitted that he fired the shot into the victim's stomach. He testified that he thought that his gun was unloaded and that he pulled the trigger merely to frighten her. As for the second shot, Boliek explained that after Wait threw the victim to the ground, Wait took Boliek's gun away from him and killed Jody Harless.
5
The jury convicted Boliek of capital murder and, finding that he had killed Jody Harless in order to prevent her from becoming a witness in a future judicial proceeding, recommended a sentence of death. The Missouri Supreme Court affirmed. State v. Boliek, 706 S.W.2d 847 (Mo.) (en banc), cert. denied, 479 U.S. 903, 107 S. Ct. 302, 93 L. Ed. 2d 276 (1986). Boliek unsuccessfully sought postconviction relief under Mo. S.Ct. R. 27.26.1 Boliek v. State, 755 S.W.2d 417 (Mo.App.1988), cert. denied, 489 U.S. 1040, 109 S. Ct. 1175, 103 L. Ed. 2d 237 (1989). The Missouri Supreme Court denied Boliek's petition for habeas relief and his motion to recall the Court's mandate.
6
The District Court granted Boliek's petition for a writ of habeas corpus. Boliek v. Delo, 912 F. Supp. 1199 (W.D.Mo.1995). The first ground for granting relief involved a tattoo, which is on Boliek's back, of a smoking shotgun with the words "Death Dealer" beneath it. The Court found that Boliek's trial counsel was ineffective for not objecting to the prosecution's questioning of witnesses about the tattoo and the prosecution's use of the tattoo in closing argument. The petitioner's trial counsel was also deficient, the Court held, for failing to present mitigating evidence at the penalty phase concerning Boliek's mental condition and social history. Finally, the Court concluded that Boliek received ineffective assistance of counsel on direct appeal because his lawyer did not argue that he was deprived of his right to an examination by a court-appointed psychiatrist.
II.
7
We begin by considering whether Boliek's claims relating to the tattoo and to the evidence his lawyer failed to present at the penalty phase are procedurally barred. It is undisputed that the petitioner did not raise these claims in his Rule 27.26 proceeding. However, the District Court held that the claims were not barred because the Rule 27.26 court interfered with Boliek's ability to raise his claims and thus caused the procedural default. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565, 115 L. Ed. 2d 640 (1991) (a procedural default is excused if the habeas petitioner demonstrates "cause for the default and actual prejudice...."); Tippitt v. Lockhart, 903 F.2d 552, 555 (8th Cir.), cert. denied, 498 U.S. 922, 111 S. Ct. 301, 112 L. Ed. 2d 254 (1990) (cause for a procedural default exists when a state court interferes with a petitioner's ability to raise a claim).
8
After Boliek had filed a pro se motion for postconviction relief, the Rule 27.26 court appointed counsel to represent him. At a subsequent hearing, Boliek's counsel, who had not yet conferred with his client despite having had the appointment for about a month, asked for a continuance so that he could amend Boliek's pro se motion. Before granting the continuance, the Court said to Boliek:
9
I want you to tell me now ... in what other ways Mr. Sterling [Boliek's trial counsel] was ineffective in assisting. I want to hear every complaint you have against Mr. Sterling right now ... so we don't have to plow this ground again on February 10th. Now tell me what else you have a complaint about.
10
Resp't Ex. F 24. Boliek extemporaneously listed a number of ways in which he thought that his trial counsel was ineffective, but did not mention the ineffective-assistance claims he now seeks to raise. The Court then told Boliek's counsel, "You may amend your pleadings to include everything [Boliek has] raised today, but you can't raise new items. That's right, because I want that exhausted today." Id. at 30.
11
We need not decide whether the motion court's insistence that Boliek list all his claims on the spot, without the assistance of counsel, constituted cause to excuse the procedural default. Even if the motion court's actions amounted to cause, for us to rule on Boliek's habeas claims, he must have used "any available procedure" to present those claims in state court. 28 U.S.C. § 2254(c). To have satisfied this exhaustion requirement, Boliek had to have challenged the conduct of the motion court in the appropriate state forum. He did not do so.
12
In the appeal from the denial of his Rule 27.26 motion, Boliek made no allegation that the motion court had acted improperly. Nor did he attempt in any other way to present the ineffective-assistance claims he now wishes to raise. Boliek tries to explain this omission by asserting that the Missouri Court of Appeals did not have the authority to remedy the motion court's alleged interference with his ability to present his claims. But that is not the law. There are numerous examples of cases in which prisoners have successfully challenged the actions of Rule 27.26 courts. See, e.g., Parker v. State, 785 S.W.2d 313 (Mo.App.1990) (motion court erred by dismissing the Rule 27.26 petition of a defendant who had received no assistance of counsel); Young v. State, 724 S.W.2d 326 (Mo.App.1987) (reversing the dismissal of a Rule 27.26 petition because the motion court had not given counsel notice or an opportunity to be heard); Ray v. State, 644 S.W.2d 663 (Mo.App.1982) (motion court's dismissal of a Rule 27.26 petition was improper because counsel had not had an opportunity to amend the petition and to consult with the defendant).
13
Moreover, the Missouri Supreme Court disagrees with the petitioner's argument. Boliek eventually filed a petition for habeas corpus with the Missouri Supreme Court which, for the first time, presented the issue of the motion court's conduct. The Court, which is the final authority on this question of state law, denied the petition, holding that Boliek's claim was procedurally barred. See Pet'r Br., App.
14
Boliek's current lawyers, who are representing him diligently and vigorously, argue that it is unreasonable to expect counsel on Boliek's state-court postconviction appeal to raise issues that, at least at the time of the evidentiary hearing in the 27.26 court, Boliek himself had not discovered. We understand the point but disagree. There has to be a time when issues, including claims of ineffectiveness of counsel, are fully investigated and argued. That time is in the state postconviction proceeding, at least where states choose to create such a remedy, which Missouri has. It was the duty of counsel to consult with his client, conduct a reasonable investigation, and raise all claims in a timely fashion. It is not permissible for a petitioner to wait until he files a federal habeas petition to develop his claims fully. Such a practice would be disrespectful of the autonomy and independence of the state courts, which are, under our federal system, primarily responsible for the administration of criminal justice. If the motion court improperly cut off counsel's opportunity to investigate, counsel should have objected at that time or, as we have explained, raised the issue on appeal. If counsel was deficient in failing to do so, petitioner still cannot show cause to avoid his procedural default, because ineffectiveness of postconviction counsel cannot be cause. Nolan v. Armontrout, 973 F.2d 615 (8th Cir.1992). Boliek's claims of ineffective assistance of trial counsel are therefore procedurally barred. We do not reach the merits of these claims.
III.
15
We now turn to Boliek's claim that his counsel on direct appeal was ineffective. The Constitution requires that a criminal defendant receive effective legal representation in his first direct appeal. Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985). In reviewing a claim of ineffective assistance of appellate counsel, a court must apply the familiar test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail, the defendant "must show that his counsel's performance fell below professional standards and that his defense was prejudiced by his counsel's ineffectiveness." Schneider v. Delo, 85 F.3d 335, 339 (8th Cir.1996). See Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2065, 2068.
16
Boliek asserts that his appellate lawyer was ineffective for failing to argue that Boliek was unconstitutionally denied access to a psychiatrist to help him prepare for the penalty phase of his trial. This claim is based on Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), in which the Supreme Court held that when an indigent defendant's mental condition will be a significant issue at trial, the Due Process Clause requires the state to ensure that the defendant has access to a "psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Id. at 83, 105 S.Ct. at 1096. In capital cases, an indigent defendant whose mental condition may be at issue is entitled to an examination aimed at evaluating, preparing, and presenting mitigating psychiatric evidence. Starr v. Lockhart, 23 F.3d 1280, 1288-90 (8th Cir.), cert. denied, 513 U.S. 995, 115 S. Ct. 499, 130 L. Ed. 2d 409 (1994) (citing Ake, 470 U.S. at 86, 105 S.Ct. at 1096).
17
We begin our assessment of Boliek's Ake claim by discussing the context in which his trial lawyer requested a psychiatric exam. At the time of his arrest for the murder of Jody Harless, Boliek had an extensive history of mental-health problems. From 1975 through 1980, the petitioner was examined by several psychiatrists, who diagnosed him as suffering from a number of mental conditions, ranging from antisocial-personality disorder to cyclothymia. See Boliek, 912 F. Supp. at 1208-10. Accordingly, Boliek's attorney, Peter Sterling, asked the trial court to appoint a psychiatrist to determine whether Boliek was competent to stand trial and whether he was sane at the time of the murder. Pet'r Ex. 21. Dr. A.E. Daniel examined the petitioner and concluded that he was suffering from no mental disease or defect and was manipulating and malingering. See Resp't Ex. B 162. Dr. Enrique Dos Santos, another court-appointed psychiatrist, later confirmed the diagnosis. Ibid.
18
On June 28, 1984, Mr. Sterling asked the Court to allow him to retain a psychiatrist, to be paid for by the defense, to rebut Dr. Daniel. Pet'r Ex. 23. Mr. Sterling filed another motion, on July 6, asking the Court to appoint a psychiatrist "to examine defendant and report to counsel for defendant regarding psychiatric and psychological aspects of the defendant's personality constituting mitigating circumstances." Pet'r Ex. 19. On July 9, the Court granted the first motion. See Pet'r Ex. 24. As for the second of these motions, on July 12, the Court ruled that Boliek could have the mitigation examination, but that the defense would have to pay for it. Pet'r Ex. 20.
19
Mr. Sterling then retained Dr. George Dowell to provide an opinion regarding the petitioner's sanity at the time of the murder and his competency to stand trial. The doctor, who was paid by the public defender's office, was not asked to look for mitigating psychiatric evidence for Boliek to use during the penalty phase of his trial. Pet'r Ex. 14, at 35-36. Although the results of this examination are now unavailable, Mr. Sterling has recalled that "they were not consistent with [an insanity] defense." Id. at 94.
20
As an indigent capital defendant with a long history of mental-health problems, Boliek certainly had a right, under Ake, to access to a mitigation examination. The examinations performed by Drs. Daniel and Dos Santos, which were limited to determining whether the petitioner was competent to stand trial and sane at the time of the offense, did not fulfill the state's obligation. See Starr, 23 F.3d at 1290 (a capital defendant who had received only an examination for competency and sanity was deprived of his right to "an expert to make an appropriate examination and to explain the effects of his retardation on his relative culpability at the sentencing phase of the proceedings"). But that does not necessarily mean that the trial court committed constitutional error by denying Boliek's request for a court-funded mitigation examination. A court is not required to appoint a psychiatrist for someone whose defense already has the wherewithal to pay for an appropriate psychiatric examination. See id. at 1289 (distinguishing a case in which "appointed defense counsel had generously procured the needed expert with his own funds").
21
If the public defender's office had the funds to pay Dr. Dowell to conduct a competency examination, why could it not have also paid him to examine Boliek for mitigation purposes?2 The petitioner now speculates that the public defender's office ran out of money. But Boliek presents no evidence to support this hypothesis. More importantly, he never made any such representation to the trial court, either before or after the Court denied his motion for the funding of a mitigation examination.
22
Indeed, deposition testimony from Mr. Sterling undermines Boliek's theory:
23
Q. I think you also talked earlier today about the mitigation phase of the trial--the punishment phase. Did Mr. Boliek himself give you any names of--well, let's start first, did he give you any background into his past medical history, his past mental history, that might be used in mitigation.
24
A. Yeah, he mentioned some treatment--I mean, these were things that were pursued in the--in the area of the psychiatric exams and so forth.
25
Q. Right. And you had requested that prior to trial.
26
A. Yes.
27
Q. And I think you stated that the Court would not fund it, but would allow him to be examined. I think it was if the public defender would fund it.
28
A. Yeah, I mean, I don't think I asked the Court and--
29
Q. Okay.
30
A. I had funds available for that purpose.
31
Pet'r Ex. 14, at 90-91.
32
Boliek contends that in saying that he "had funds available for that purpose," Mr. Sterling was not referring to a mitigation examination. The petitioner notes that Mr. Sterling prefaced his answer by saying, "I don't think I asked the Court...." Since Mr. Sterling did not ask the Court to pay for the competency examination performed by Dr. Dowell, but did ask it to fund the mitigation examination, Boliek asserts that Mr. Sterling must have been referring to the competency examination.
33
We are not persuaded. It is unclear whether the phrase "I don't think I asked the Court ..." refers to funding. Furthermore, the whole line of questioning dealt with preparation for the penalty phase. This suggests that Mr. Sterling was, in fact, admitting that he had money available to pay for a mitigation examination. More fundamentally, even if Boliek's explanation of this testimony were correct, that would not change the fact that the ability of the public defender's office to pay for the competency examination suggested that the defense was also able to pay for the mitigation examination. If the public defender's office had run out of money, it was the petitioner's responsibility to inform the Court.
34
We are not holding that there is a rigid rule requiring a defendant to say specifically to a court, "I cannot afford a psychiatric examination." Usually, when an indigent defendant requests a court-appointed psychiatrist, it is appropriate to infer that he cannot pay for a psychiatric examination. But we cannot draw this inference when the defense pays for a competency examination and fails to explain why it cannot also afford a mitigation examination.
35
We conclude that Boliek's Ake claim would not have succeeded. Accordingly, Boliek suffered no prejudice from his appellate lawyer's failure to raise the claim, and the District Court should not have granted his petition for habeas corpus.
IV.
36
For these reasons, the order of the District Court granting William Theodore Boliek's petition for a writ of habeas corpus is reversed.
*
The Hon. Charles B. Kornmann, United States District Judge for the District of South Dakota, sitting by designation
1
Rule 27.26 has since been replaced by Rule 29.15
2
Boliek asserts that the state never argued to the District Court that he had funds available to pay for the mitigation examination. That is not true. See Jt.App. 12, at 24-25 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2467611/ | 745 S.W.2d 842 (1988)
CITY OF HANNIBAL, Plaintiff-Appellant,
v.
COUNTY OF MARION, et al., Defendants-Respondents.
No. 53321.
Missouri Court of Appeals, Eastern District, Division Four.
February 23, 1988.
Marion F. Wasinger, Hannibal, for plaintiff-appellant.
Branson L. Wood, Hannibal, for defendants-respondents.
*843 CRANDALL, Judge.
Plaintiff, City of Hannibal (Hannibal), brought this action against defendant, County of Marion (County), regarding road taxes paid to the County. Hannibal appeals from the judgment of the trial court which declared a section of Hannibal's city charter unconstitutional. We reverse and remand.[1]
The pertinent facts, as gleaned from the petition, are that Hannibal adopted a Home Rule Charter pursuant to Article VI, Section 9 of the Missouri Constitution of 1945. Section 20.25 of that charter reaffirmed that portion of Hannibal's Legislative Charter of 1873 which exempted Hannibal's citizens from the "County Poor and Road Tax." Section 20.25 adopted the following language from the 1873 charter:
The City of Hannibal shall at its own proper expense, make, maintain and keep in repair all streets, roads and bridges within the limits of the City, and provide for the maintenance and support of its own poor, and in consideration thereof the citizens of Hannibal shall be exempt from all county tax for the support of the poor, or for the construction or maintenance of any roads or bridges in any part of Marion County, outside of the limits of said city, or for paying for any right-of-way for the same, and if the County Court of Marion County shall make any expenditure for the support of the poor, or for the construction, maintenance or repairs of any road or bridge, or the right-of-way for the same in any part of said county, outside of the limits of said city, and pay for the same out of the county funds, said county shall pay to the Treasurer of the City of Hannibal for the use of said city, a sum of money which shall bear the same proportion to the amount so expended as the assessed value of all property subject to county taxation in the City of Hannibal shall bear to the assessed value of similar property in the remainder of the county.
In 1956 and again in 1961, Hannibal and County entered into contracts in which Hannibal agreed not to enforce this section of its charter.
In November 1986, Hannibal filed its petition against the County, the County Commissioners, and the Tax Collector. Count I sought declaratory judgment concerning the validity of Section 20.25 of its charter. Count II sought to enjoin the County, the Commissioners, and the Tax Collector from assessing and levying taxes from Hannibal citizens attributable to the construction, maintenance, and repair of roads and bridges in the County. Count III sought to enjoin a certain commissioner for County from voting on any matter relating to this dispute. Count IV sought an accounting and damages for taxes collected by County from Hannibal citizens for the past 30 years and for a proportionate payment of expenditures for road and bridge repairs outside the city limits.
County filed several motions. There was a motion to make Hannibal's petition more definite and certain. There also was a motion to strike which challenged Hannibal's standing to assert the Section 20.25 tax exemption for its citizens. There was a separate motion to dismiss Count III. There was another motion to dismiss which objected to the constitutionality of Section 20.25 with regard to Counts I and IV. That motion also challenged Count II on the basis that Hannibal failed to exhaust its administrative remedies for challenging a tax assessment.
After the motions were argued, the trial court entered a "Memorandum Opinion and Order" in which it denied County's motions as to all issues except the constitutionality of Section 20.25. The trial court entered a judgment in which it stated that Hannibal's "petition states a cause of action for declaratory judgment, but Section 20.25 of the City of Hannibal Charter is constitutionally repugnant for all of the reasons stated in the Memorandum Opinion...."
Before considering the substantive issues on appeal, we first address the procedural posture of the present case. The only motions which were before the trial *844 court for ruling and which addressed issues pertinent to this appeal were County's motions to dismiss. The court's final judgment, in effect, overruled County's motions to dismiss when it found that Hannibal's petition stated a cause of action for declaratory relief. The trial court also entered judgment in favor of County when it found that Section 20.25 of Hannibal's charter was unconstitutional.
Motions to dismiss can be converted to motions for summary judgment when matters outside the pleadings are presented to and considered by the trial court. See Rule 55.27(a). In this case neither the trial court nor the parties treated the motions to dismiss as motions for summary judgment. We, therefore, address the issues in light of a ruling on a motion to dismiss.
We now address the primary issues raised on appeal. This case focuses on whether Hannibal can enforce two rights conferred by Section 20.25 of Hannibal's charter. Pursuant to that charter provision, Hannibal seeks (1) an exemption from the County poor tax and road tax on behalf of its citizens and (2) a proportionate payment from County to Hannibal for any expenditures that County made on roads and bridges outside the city limits.
Concerning the tax exemption which Hannibal seeks on behalf of its citizens, the pivotal issue is one of standing. In its motion to dismiss Counts I and IV, County alleges that Hannibal "is not the real party in interest and lacks standing to assert the tax exemption...." The trial court implicitly ruled that Hannibal had standing to pursue the exemption claim against County when it held that Hannibal's petition stated a claim for declaratory relief.
In a declaratory judgment action, the standard to be applied in determining whether a party has standing to bring a suit is whether the plaintiff has a legally protectable interest at stake. Cheatham v. Walsh, 669 S.W.2d 587, 589 (Mo.App.1984). The matter of standing does not relate to the legal capacity to sue, but to the interest of an adversary in the subject of the suit as an antecedent to the right to relief. Crigler v. Frame, 632 S.W.2d 94, 96 (Mo.App. 1982). It is therefore "jurisdictional in limine and so within the notice of a court, even on appeal, for dismissal." Id.
Rule 52.01 requires that an action be prosecuted in the name of the "real party in interest." Hannibal cites to Rule 87 pertaining to declaratory judgments as the source of its authority to bring this action. Rule 87.05 includes a municipal corporation within the definition of person. Rule 87.02(a) provides that "[a]ny person... whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise...." can bring a declaratory judgment action. Even if we assume that the charter provision has the status of a statute or ordinance within the meaning of the Rule 87, the Rule only confers upon Hannibal the general right to bring a declaratory action. It does not resolve the issue of standing in a particular action.
Hannibal cites to Ferguson Police Officers Ass'n. v. City of Ferguson, 670 S.W.2d 921 (Mo.App.1984) for the proposition that a declaratory judgment action is "peculiarly suited to interpreting and declaring the validity of statutes, ordinances and provisions of a charter...." Id. at 925. The holding in that case, while correct as a general proposition of law, is not germane to the issue of standing in the case sub judice.
State ex rel. City of St. Louis v. Litz, 653 S.W.2d 703 (Mo.App.1983), cited by Hannibal, involved an ordinance relating to the regulation of demolition permits in the City of Berkeley (Berkeley). The relator was the City of St. Louis (St. Louis). St. Louis owned property within Berkeley. The ordinance directly affected St. Louis in the performance of its responsibilities for undertaking airport expansion. Clearly, St. Louis had standing, although it was not a taxpayer within Berkeley. St. Louis had an actual or justiciable interest susceptible of protection through litigation. Id. at 706-707. Here, Hannibal does not meet that test.
*845 The tax exemption afforded by Section 20.25, by its specific language, applies only to the citizens of Hannibal. In its brief, Hannibal concedes that it is not a taxpayer subject to the statutory review procedures of Chapter 139 and that it is not directly challenging any particular tax assessment or ruling. Hannibal claims that, as a municipality with a constitutional charter and as a party to purported contracts with County, it is merely seeking a declaration of its rights and attendant supplemental relief.
The thrust of Hannibal's exemption claim, however, is to secure a tax exemption for its citizens. In this posture, Hannibal is seeking to enforce the rights of a third party. Hannibal has no actual and justiciable interest of its own in the tax exemption contained in Section 20.25.
Hannibal asserts that, if "further standing is required," it has representational standing to bring the suit on behalf of its taxpayers. Although the prayer in the petition asked for relief on behalf of its citizens, Hannibal brought the action only in the name of the City of Hannibal not in the name of the City of Hannibal as the representative of its citizens. Hannibal simply did not plead any facts giving rise to a legal theory which would give it the right to seek relief on behalf on the citizens.
The cases which Hannibal cites to support its argument that it had representative standing to bring this action are inapposite. Ferguson Police Officers, 670 S.W. 2d at 921 and Citizens for Rural Preservation, Inc. v. Robinett, 648 S.W.2d 117 (Mo. App.1982) deal with allowing associations to bring declaratory judgment actions in a representative capacity for their members. Those cases have no application to a city bringing a lawsuit on behalf of its taxpayers. Even if the three criteria used to determine standing for an association, as articulated in Ferguson Police Officers, were applicable in this case, there is nothing in the pleadings which indicate that plaintiff could satisfy that test.
Hannibal lacks standing to seek enforcement of the tax exemption for its citizens. The trial court erred in failing to sustain, for lack of standing, County's motions to dismiss paragraph five of the prayer of Count I; Count II in its entirety; paragraph four of Count III and those portions of paragraph seven and of the prayer of Count III which seek to enjoin a County Commissioner from voting on matters relating to the tax exemption for Hannibal's citizens; and paragraph four of Count IV and that part of the prayer of Count IV relating to payback from County to Hannibal's citizens.
The second major issue on appeal is whether Hannibal is entitled to a proportionate payment from County for expenditures County made on roads and bridges outside the city limits. The second part of Section 20.25 of Hannibal's charter provides for such a payback. The trial court correctly found that Hannibal's petition stated a cause of action for declaratory judgment as to that issue. The trial court then held that Section 20.25 was unconstitutional and void.
It is not the function of this court on appeal from a ruling on a motion to dismiss to make an analysis of the law under which the rights are claimed or to determine whether plaintiff is entitled to the declaratory relief he seeks in accordance with the theory he states. Higday v. Nickolaus, 469 S.W.2d 859, 864 (Mo.App. 1971). If under the facts pleaded a plaintiff is entitled to declaration of rights at all, the petition is sufficient for that purpose even though it advances a mistaken contention of law. Id.; Transport Mfg. & Equip. Co. v. Toberman, 301 S.W.2d 801, 805 (Mo. banc 1957). A plaintiff's standing to claim declaratory reliefand to assert a legally protectible interestis not impaired by the probability that ultimately he will not prevail. Higday, 469 S.W.2d at 864.
Here, the trial court only had County's motions to dismiss before it. The trial court ruled that Hannibal's petition was sufficient to state a claim in declaratory relief. The trial court then granted County the declaratory relief which County sought; namely, a declaration that Section 20.25 of Hannibal's charter was unconstitutional. The trial court was not authorized to use a *846 ruling on County's motions to dismiss as a vehicle to enter judgment on the merits. Once the trial court found that Hannibal was entitled to declaratory relief, the motions to dismiss were overruled. At this point, Hannibal was entitled to win or lose after a submission of the issue on the merits.
The trial court therefore improperly entered judgment on County's motions to dismiss paragraphs one, two, three, four and six of the prayer of Count I which relate to the payment from County to Hannibal for expenditures on roads and bridges outside the city limits; paragraphs one, two, three, five and six of Count III and that portion of paragraph seven and the prayer of Count III which seek to enjoin a County Commissioner from voting on matters relating to the payback from County to Hannibal; and paragraphs one, two, three, and five of Count IV and that part of the prayer of Count IV which relates to the payback from County to Hannibal.
That portion of the judgment of the trial court holding that Hannibal had standing to enforce that part of Section 20.25 of its charter which pertains to the taxpayers' exemption from County taxes is reversed and remanded with directions to sustain County's motion to dismiss. That portion of the judgment which holds as unconstitutional that part of Section 20.25 of Hannibal's charter which provides for a proportionate payback from County to Hannibal for expenditures made by County on roads and bridges outside the city limits is reversed and remanded with directions to permit the parties to properly submit the issue for adjudication in a manner consistent with this opinion, either by a motion for summary judgment or by an evidentiary hearing. We express no view as to which method would be appropriate in this case. In view of our ruling, we do not address other issues raised by the parties.
SIMON, P.J., and GRIMM, J., concur.
NOTES
[1] This appeal was originally filed in the Missouri Supreme Court. The Supreme Court then transferred the appeal to this court "in which jurisdiction is vested." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560514/ | 18 So.3d 115 (2009)
Joseph W. URQUHART, et al.
v.
METROPOLITAN HOSPICE, INC.
No. 2009-CC-1464.
Supreme Court of Louisiana.
October 2, 2009.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562619/ | 118 F.2d 266 (1941)
UNITED STATES
v.
MORTIMER.
No. 190.
Circuit Court of Appeals, Second Circuit.
March 17, 1941.
*267 Walter Brower and Bernard Tompkins, Sp. Assts. to Atty. Gen., for the United States.
Theodore Kiendl, of New York City (John T. Dooling and Earl E. Keyes, both of New York City, on the brief), for appellant.
Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
CLARK, Circuit Judge.
In 1935, appellant, George T. Mortimer, was indicted with five other persons, all officers of the New York Title and Mortgage Company in 1930, '31, and '32, for using the mails to defraud and for conspiring to do so. 18 U.S.C.A. §§ 338, 88. Of this group, Cyril H. Burdett, a vice-president of the company, died during the course of the trial; Joseph C. Shields, a vice-president, was acquitted; Harry H. Kahler, chairman of the board of directors, pleaded guilty; and H. P. Williams, chairman of the executive committee, Mortimer, the president, and H. F. Breitwieser, a vice-president, were convicted on various substantive counts, while Williams and Mortimer were also convicted on the conspiracy count. Mortimer alone appeals from the conviction and the resulting judgment of imprisonment and fine.
The fraudulent acts and the conspiracy charged against these defendants were allegedly in pursuance of the New York Title and Mortgage Company's business, which was the lending of money on the security of metropolitan mortgages and the sale to the public of mortgages or of certificates of participation therein. In substance, the fraud consisted of selling the company's guaranteed mortgages and participation certificates on the basis of the high degree of security they had, at a time during 1931-32 when the value of much of the security was inadequate to protect the loans, and the condition of the guaranteeing company was precarious. On March 14, 1933, the New York Superintendent of Insurance prohibited further sale of securities; on August 4, 1933, he took over the company for rehabilitation. The exact amount of the losses sustained by the company's clients does not appear. Admittedly they were very substantial.
The evidence clearly shows that an offense was committed. The company was active in its sales campaign during 1931-32 to the point of aggressiveness. It resorted to newspaper advertising, circular letters, and pamphlets, and employed a large staff of agents, none of whom, however, seem to have been acquainted with the condition of the company or the actual value of the mortgages. The one characteristic of the company's mortgages and certificates which it consistently and almost exclusively sought to call to the attention of prospective investors was their inherent and superlative security. It emphasized that "every dollar is secured by a first lien on improved real estate worth more than one and one-half times the amount of the mortgage." It promised that this margin of collateral and "the bond of a responsible borrower protect you against the possibility of loss," and that its own guarantee of them insured "safety of principal and an unfailing income." In an outburst of unrestrained confidence, it characterized its investments as "safe for great insurance companies," "legal investments," "depression-proof," "like certified checks," "Secure as the Bedrock of New York."
But these assurances were quite false. The amounts at which many of the properties were appraised were shown to have been deduced from, rather than determinative of, the amounts of the mortgages; and the appraisals were far above any reasonable evaluation of the properties at that *268 time. Several of the so-called "responsible borrowers" were judgment-proof employees of the company itself. At least as early as February, 1932, in appellant's own words, the condition of the company-guarantor was "alarming." Far from being depression-proof, the security of these investments probably became questionable about the summer of 1931, as a result of the precipitous decline of real property values in June. It seems that during the fall of 1931 the company invoked a clause allowing it to delay payments against several holders of matured certificates, and that unpaid calls, foreclosures, and defaults on interest payments and taxes progressively increased from that time. Obviously properties on which there had been defaults could not serve as collateral adequate for legal investments. The steady decline in the amount of the company's cash and other liquid assets had then begun, and it was increasing the amount of its non-liquid assets pledged for loans. All this was made abundantly clear by a series of treasurer's reports during April and May, 1932; but the customary practices continued as long as appellant was president, indeed until his successor, about a month after his resignation on November 30, 1932, ordered that the sale of certificates cease.
Appellant's defense, in substance, was that, however reprehensible may have been the conduct of the company's affairs, none of these matters were brought home to him individually. He claimed ignorance of the appraisal practices, the use of dummy bondsmen, the nature of the company's advertising, the imminence of its insolvency, and the issuance of certificates under mortgages on properties subject to arrears of taxes and interest and on foreclosed properties. During all this period, however, appellant was in active charge of the company's policies along with Kahler and Williams. He conferred regularly with them on all matters of general importance, and received frequent reports on all aspects of the company's business. These facts alone would be sufficient to justify an inference that he was not unaware of practices so customary as those demonstrated, or conditions of such general significance. United States v. Dilliard, 2 Cir., 101 F.2d 829, 835, certiorari denied 306 U.S. 635, 59 S.Ct. 484, 83 L.Ed. 1036; United States v. Bob, 2 Cir., 106 F.2d 37, 40, 125 A.L.R. 502, certiorari denied 308 U.S. 589, 60 S.Ct. 115, 84 L.Ed. 493. But there is much direct evidence of his active participation, so much, indeed, that the question he raises as to its sufficiency seems hardly sincere. He himself professes to have been in personal control of the management of foreclosed property, against which certificates were issued, and for which the dummy bondsmen were largely used. There was evidence that he was on the appraisal committee, and that he passed on much of the advertising, of which a large part appeared in his name. The treasurer's confidential reports of May-June, 1932, drawn up particularly for him, Williams, and Kahler, could not have failed to bring to his attention the tax arrearages and the critical condition of the company. We conclude that appellant's guilt was clearly established.
Most of the other grounds of the appeal do not require extended consideration. One was that appellant had been required to answer a question directed at his failure, on invitation, to appear before the grand jury. The objection seems to be that he was thereby deprived of his privilege against self-incrimination. That privilege, however, in respect of anything connected with the offense charged here, was clearly waived by his offer to testify at the trial. Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054; United States v. Buckner, 2 Cir., 108 F.2d 921, certiorari denied 309 U.S. 669, 60 S.Ct. 613, 84 L.Ed. 1016; Tomlinson v. United States, 68 App.D.C. 106, 93 F.2d 652, 114 A.L.R. 1315, certiorari denied 303 U.S. 646, 58 S.Ct. 645, 82 L.Ed. 1107; Commonwealth v. Smith, 163 Mass. 411, 40 N.E. 189. There being no other reason for exclusion, the question was properly allowed, since it was relevant to the issue of appellant's credibility. Raffel v. United States, supra.
Objection was made to certain allegedly inflammatory language in the summation by the United States attorneys. Some of the summation, which referred to purchasers of certificates named in the indictment who had died before they could be called as witnesses, was said to insinuate that they had committed suicide as a result of their losses; but a reading of these passages reveals no foundation for this charge. None of the other passages seem to have been objectionable; certainly they do not justify reversal. United States v. Buckner, supra, 108 F.2d at page 929; United States v. Dilliard, supra, 101 F.2d at page 837; United States v. Socony-Vacuum *269 Oil Co., 310 U.S. 150, 237, 60 S.Ct. 811, 84 L.Ed. 1129.
The most serious objection, technically, is that made to the admission in evidence of a number of charts purporting to show defaults in the payment of taxes on a high proportion of the mortgaged properties. These charts had been prepared by the prosecution witness Karcher, an experienced public accountant, assisted by several aides, of whom only one, in addition to Karcher, took the stand. One more seems to have been in the court room; the others were outside the district and at a distance at the time of the trial. The reliability of the charts is not questioned, and several of the defendants and their witnesses checked the figures and found no disparity, rather, indeed, that Karcher had been very fair. An exhibit by an expert for the defense made up in the way appellant here criticizes tallies remarkably with Karcher's charts, particularly when allowance is made for the fact that it does not include the second half of the 1932 taxes. It did show that the ratio of all arrears in taxes and interest to the principal amount in the important mortgage series was less than 3 per cent, a matter not brought out by Karcher. But the number of mortgages in arrears, not the total amount of the arrears, was the "danger signal." United States v. Dilliard, supra, 101 F.2d at page 832. Appellant challenges the admission of the charts on two grounds: that they were prepared from tax records not themselves in evidence, and that all those who participated in their preparation did not testify. Since the facts could have been brought out in any event by lengthy trial processes, and since appellant had the benefit of all the aid in rebuttal which his expert could suggest, we might well deny reversal merely for the lack of a showing of substantial injury. United States v. Kelley, 2 Cir., 105 F.2d 912, 917. But we think the charts were admissible.
The voluminous material summarized by the charts was itself extracted from a great number of tax record books of each of the metropolitan counties. Not only would the production of those books have been a practical impossibility, but the procurement of either certified copies or title company abstracts, as authorized by New York Civil Practice Act, §§ 382, 385, of those records, involving hundreds of parcels of land, would have been most expensive, as well as disruptive of the activities of the record offices and burdensome upon the court. Furthermore, the records themselves, in official custody, were equally open to inspection by the defense. In such circumstances, secondary evidence is admissible to prove their contents, as it would be if they were outside the jurisdiction of the court or lost. Burton v. Driggs, 20 Wall. 125, 87 U.S. 125, 136, 22 L.Ed. 299; Stephens v. United States, 9 Cir., 41 F.2d 440, certiorari denied 282 U.S. 880, 51 S.Ct. 84, 75 L.Ed. 777; see Galbreath v. United States, 6 Cir., 257 F. 648, 658; 4 Wigmore on Evidence, 3d Ed. 1940, §§ 1218, 1230.
But appellant argues most strenuously that all of Karcher's aides should have been called. That this is a purely formal objection is shown by the testimony obtained from the one aide who took the stand. He testified that he and another assistant had made up the record cards, which he produced, covering their abstracts from the tax records on over a thousand parcels. Thus the amenities were formally satisfied, but certainly appellant was not the gainer, if, indeed, anyone was, by such routine testimony. Obviously the aides saw only part of the picture. The authenticity of the whole must depend upon Karcher's supervision and direction. His should therefore be the testimony upon which its evidential value rests. Karcher himself testified that he supervised the entire job, giving full time from November, 1934, until June or July, 1935, and then for various periods until the fall of 1937. First the arrears as shown by the company's own files were computed; then, since these were not complete, he directed the check from the tax records according to a plan which called for arrears of at least 30 days' duration, and resolved all doubtful questions in favor of defendants. We have seen that the results demonstrated the fairness of his method.
There are numerous cases holding admissible on the testimony of a supervising agent statements compiled from voluminous records according to a method at once practicable and offering reasonable guaranty of accuracy, even though the supervisor had not examined each record himself. Northern Pac. R. Co. v. Keyes, C.C.N.D., 91 F. 47, 58; E. I. Du Pont de Nemours & Co. v. Tomlinson, 4 Cir., 296 F. 634, 640, certiorari denied N. B. Josey Guano Co. v. E. I. Du Pont de Nemours & Co., 273 U.S. 696, 47 S.Ct. 93, 71 L.Ed. 845; The Spica, 2 Cir., 289 F. 436, 442; *270 United States v. Becker, 2 Cir., 62 F.2d 1007, 1010; United States v. Cotter, 2 Cir., 60 F.2d 689, 693, certiorari denied 287 U. S. 666, 53 S.Ct. 291, 77 L.Ed. 575; Massachusetts Bonding & Ins. Co. v. Norwich Pharmacal Co., 2 Cir., 18 F.2d 934; State v. Findley, 101 Mo. 217, 14 S.W. 185; Bourquin v. Missouri Pac. R. Co., 88 Kan. 183, 127 P. 770. Obviously this rule loses none of its force by reason of the passage of the recent statute, 28 U.S.C.A. § 695, under which writings and records made in the regular course of any business, where it is the regular course of such business to make them, are admissible in any court of the United States. See Ulm v. Moore-McCormack Lines, Inc., 2 Cir., 115 F.2d 492; Id., 2 Cir., 117 F.2d 222. The only possible reason for asserting that these authorities are not quite controlling is that these cannot be business entries, since they were made in preparing evidence for this trial; and, indeed, the case of Morton Butler Timber Co. v. United States, 6 Cir., 91 F.2d 884, 889, does say, as a ground for affirming a ruling made below, that entries "made apparently for exclusive use as evidence in this case" were therefore not in the regular course of business. This ruling is, however, condemned by Wigmore as "unsound; the men who made them were acting in the regular course of their employment." 5 Wigmore on Evidence, 3d Ed. 1940, § 1530, pp. 384, 385. And it is opposed to the leading case of Northern Pac. R. Co. v. Keyes, supra, where the tables in question were prepared for the particular case.
On principle we cannot see why an accountant's aides whose job it is to take off material from the public records so that their chief may construct his tables and charts accurately are not acting in the regular course of business. In United States v. Cotter, supra, 60 F.2d at page 693, L. Hand, J., says: "In the case of a bank, the accuracy of whose records is essential to the very life of its business, and where, because of the multitude of transactions, the entrants can do no more than describe the system and say that they followed it, it is not necessary to go further than prove that the ledgers were kept by a system likely to insure accuracy, and that they appear to be regular on their face; the other side must discredit them." Likewise, accuracy is the life of an accountant's business, but the multitude of records cannot be checked by any one person alone. And here the system followed was not merely likely to insure accuracy, but apparently did so, since the other side, far from discrediting the records, actually supported them. The trend in the courts is unmistakably to follow the methods of ordinary business in assuming the validity, until discredited, of records daily accepted in commercial routine. Even the case of Great Northern R. Co. v. Washington, 300 U.S. 154, 168, 57 S.Ct. 397, 81 L.Ed. 573, relied on by appellant, though it only held unacceptable accounts prepared by the state auditor from unofficial and apparently unclear time slips not official records was not immune from criticism; for it brought forth a vigorous dissent by Mr. Justice Cardozo, speaking for himself, the Chief Justice, and Justices Brandeis and Stone, and was severely condemned by Wigmore, ibid.
Several other grounds of appeal were pressed, but we find them without substance. The requests to charge were properly refused; the court's charge was careful and discriminating; and appellant's conviction came as the outcome of a fair and just trial.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560485/ | 18 So.3d 1047 (2009)
LEMAY
v.
STATE.
No. 2D08-5518.
District Court of Appeal of Florida, Second District.
August 26, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1644983/ | 994 So. 2d 316 (2008)
MELARA
v.
STATE.
No. 3D08-2388.
District Court of Appeal of Florida, Third District.
October 15, 2008.
Decision without published opinion. Mand.denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560516/ | 117 N.H. 927 (1977)
RANDOLPH H. PROCTOR
v.
EDWARD JOSHUA BUTLER
ROLAND LORD
v.
LOUIS F. ZUCCARO.
Nos. 7737 & 7738.
Supreme Court of New Hampshire.
November 16, 1977.
*928 New Hampshire Legal Assistance, of Concord (Mr. David Wolowitz orally), for the defendant Louis F. Zuccaro.
New Hampshire Legal Assistance, of Concord (Mr. Bjorn R. Lange orally), for the defendant Edward Joshua Butler.
David H. Souter, attorney general, Wilbur A. Glahn III, assistant attorney general, and David W. Marshall, attorney (Mr. Glahn III orally), for the state.
BOIS, J.
In separate proceedings, the respondents herein, Edward Joshua Butler and Louis F. Zuccaro, were involuntarily committed to the New Hampshire Hospital pursuant to RSA ch. 135-B (Supp. 1975). They were each found by the Probate Court (Cushing, J.) to be "in such mental condition as a result of mental illness as to create a potentially serious likelihood of danger to himself or others" and were committed for a period not to exceed ninety days *929 and four months, respectively. The central issue in both cases is the standard of proof by which the commitment criterion must be proven.
The evidence as to both respondents was conflicting in part and subject to varying inferences and is only briefly outlined here. Mr. Butler had previously been admitted to the state hospital on three occasions and normally presented himself in a "dramatic, theatrical" way. The instant commitment was precipitated when Mr. Butler was informed that his brother had suffered complications from heart surgery and was in frail health. Upset by this news, respondent himself went to the hospital and asked to be admitted. While being escorted to a doctor, he became disorderly and had to be restrained. Officers then drove him to the police station for the purpose of charging him with disorderly conduct. It is alleged that during this trip respondent "threatened to use a police officer's gun and shoot someone to get the death penalty reinstated." Upon his return from the station, an examining doctor found respondent's mental state to be so disturbed as to constitute a danger to himself and others. A petition for involuntary commitment was filed the following day.
Mr. Zuccaro also had previously been admitted to the state hospital. The petition seeking his involuntary commitment alleged certain instances of bizarre behavior stemming from a delusion that certain nocturnal creatures were out to get him. As a part of this delusion, respondent insisted that lights be turned off at night; also, respondent told his mother that he wished she would "have a heart attack" and thus be spared "what was going to happen." An examining psychiatrist testified that respondent might, if untreated, lapse into a delusion which could result in suicide. Respondent told this doctor that his behavior had been a "joke."
In both cases, respondents moved that the court rule, as a matter of law, that the burden was on the petitioner to prove beyond a reasonable doubt that the respondent was then in such a condition as a result of mental illness as to create a potentially serious likelihood of danger to himself or others. In addition thereto, respondent Butler moved that the court rule that the state had the burden of proving beyond a reasonable doubtor in the alternative by clear and convincing evidencethat there were no less restrictive alternatives to involuntary commitment. The motions were denied and respondents urge that this constitutes error.
*930 At the outset, we confront the state's contention that these appeals must be dismissed on the ground of mootness since both respondents have completed their confinement and are now discharged from the hospital. Relying on Dolcino v. Thalasinos, 114 N.H. 353, 321 A.2d 107 (1974), which similarly involved release during the course of litigation, the state argues that neither respondent has any further interest in his appeal.
[1, 2] "[T]he question of mootness is not subject to rigid rules but `seems, rather, to be regarded as one of convenience and discretion.'" Hood & Sons v. Boucher, 98 N.H. 399, 401, 101 A.2d 466, 468 (1953). "A decision upon the merits may be thought justified where there is a pressing public interest involved . . . ." State v. Swift, 101 N.H. 340, 342, 143 A.2d 114, 116 (1958). For the reasons set out below, we hold that, even assuming arguendo that the controversy is moot as to these respondents, the public interest exception to the mootness doctrine justifies our proceeding to the merits of the instant appeals. See Littlefield v. N.H. Interscholastic Athletic Assoc., 117 N.H. 183, 370 A.2d 645 (1977); Hinse v. Burns, 108 N.H. 58, 226 A.2d 865 (1967).
The respondents assert that various probate judges hearing commitment petitions do not apply a uniform standard of proof to the "likelihood of danger" criterion for involuntary commitment. RSA 135-B:26 (Supp. 1975). The state has not denied that such a lack of uniformity exists. The courts are thus apparently applying differing standards of proof to similarly situated petitionees, although the same "massive curtailment of liberty," Humphrey v. Cady, 405 U.S. 504, 509 (1972), is at stake in all cases. There can be no justification for varying standards of proof in such proceedings, because they may culminate in a deprivation of an individual's most precious freedomhis personal liberty. We agree that lack of uniformity in the standard of proof "contravenes the principle that all citizens are entitled to equal protection of the law." There is thus a pressing public interest calling for our resolution of this issue.
[3] Another issue raised in these appeals, that of whether the state must prove the absence of less restrictive alternatives to involuntary commitment, demonstrates additional confusion in the proper application of RSA ch. 135-B (Supp. 1975). The "substantial social costs stemming from continued uncertainty in the law," Kates and Booker, Mootness in Judicial Proceedings: Toward a *931 Coherent Theory, 62 Calif. L. Rev. 1385, 1413 (1974), further establish the pressing public interest in a decision on the merits.
[4, 5] The public interest exception to the mootness doctrine should be invoked cautiously, for "a case should not be heard when the parties' interests are not sufficiently adverse to ensure proper and effective presentation of the arguments for each side." Kates and Booker, supra at 1387. However, we are satisfied that these appeals are not essentially "abstract, feigned, or hypothetical." Sibron v. N.Y., 392 U.S. 40, 57 (1968). The state has an interest in preserving the contested commitment orders of the court. The respondents' genuine interest in reversing those orders offers compelling evidence of the adversity of the parties. Although discharge remedies the immediate deprivation of liberty, it cannot free one from the less direct consequences of an adjudication that he is "in such mental condition . . . as to create a . . . likelihood of danger to himself or to others." RSA 135-B:26 (Supp. 1975). Respondents' interest in securing their freedom from the "continuing disability imposed by the stigma of commitment," Note, Developments in the LawCivil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190, 1201 (1974), expresses sufficient adversity to "ensure adequate presentation of all arguments bearing on the issues presented." Kates and Booker, supra at 1402. [Footnote omitted.] Finally, we note that our functional competence to proceed to the merits of these appeals is ensured by the parties' thorough briefing and arguing of the issues.
Despite the state's contention to the contrary, Dolcino v. Thalasinos, 114 N.H. 353, 321 A.2d 107 (1974), does not control our disposition of the instant appeals. Dolcino involved an analogous fact situation and presented similar issues but less than one year after the statute took effect. Now, more than four years after its enactment, problems in its application require our finding the public interest which was not present at that time.
For these reasons, we proceed to the merits of the instant appeals.
RSA 135-B:26 (Supp. 1975) provides the criterion for involuntary commitment but does not define the standard of proof by which mental illness and potential dangerousness must be determined. The state agrees that constitutional due process standards apply to these commitments but argues that the constitution does not mandate the "beyond a reasonable doubt" standard of proof requested by the respondents herein.
*932 [6] The function of the standard of proof is "to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication." In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring). Of course, it is inevitable, where facts are in dispute, that the trier of fact will sometimes be wrong in his findings. Id. The choice of standard of proof influences which party will bear the risk of such erroneous findings: "As the required degree of certainty increases, the risk of error will shift; any error in the decisionmaking process will be increasingly likely to disadvantage the party who has the burden of proof." Note, Development in the LawCivil Commitment, 87 Harv. L. Rev. 1190, 1297 (1974).
[7] The standard chosen may be said to reflect "the comparative social costs of erroneous factual determinations" In re Winship, 397 U.S. at 370 (Harlan, J., concurring). In a criminal prosecution, the reasonable doubt standard is required as a matter of due process, since the criminal defendant's "transcending" interest in liberty requires that the risk of error as to the defendant be reduced by "`impress[ing] on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.'" Id. at 364; Speiser v. Randall, 357 U.S. 513, 525-26 (1958); State v. Phinney, 117 N.H. 145, 370 A.2d 1153 (1977).
In Winship the United States Supreme Court held that proof beyond a reasonable doubt was required as a matter of due process in adjudicatory juvenile delinquency hearings. The court was unpersuaded by arguments attempting to distinguish juvenile proceedings from adult criminal prosecutions on the grounds that a juvenile adjudication is "civil" in nature, and that the goal of such proceedings is rehabilitation rather than punishment. It concluded that a proceeding in which a juvenile may be stigmatized as a delinquent and subjected to the loss of liberty for years is comparable to an adult criminal prosecution. In re Winship, 397 U.S. at 366 (1970).
In our view the court's analysis in Winship applies equally to the involuntary commitment context. "Due process of law is not to be circumvented by use of the term civil as applied to proceedings which may have the same effect as criminal proceedings . . . ." In re Miller, 98 N.H. 107, 108-09, 95 A.2d 116, 117 (1953). The loss of liberty and stigmatization present in the involuntary commitment setting are fully comparable to the deprivations attending *933 a criminal conviction. In re Ballay, 482 F.2d 648, 668-69 (D.C. Cir. 1973). The deprivation of liberty is obvious, and is not, as to the person mistakenly committed, ameliorated by the fact that "treatment" may be dispensed. Id. at 667. Nor is the potential deprivation of liberty rendered significantly less threatening by the fact that an order of involuntary commitment is limited to a two-year period and may (as in the instant cases) extend only for a matter of months. Days and months are precious commodities to one erroneously confined. As for stigmatization, we have no doubt of the accuracy of the observation by the California Supreme Court that an enlightened view of mental illness "does not yet prevail" and that "the former mental patient is likely to be treated with distrust and even loathing; he may be socially ostracized and victimized by employment and educational discrimination." People v. Burnick, 14 Cal. 3d 306, 321, 535 P.2d 352, 362 (1975). Clearly, then, the individual erroneously and involuntarily committed to a mental hospital is subject to the most grievous sort of loss. This we acknowledged when in Gibbs v. Helgemoe, 116 N.H. 825, 828, 367 A.2d 1041, 1043 (1976), we noted "It is clear that in involuntary confinement hearings, whether civil or criminal, the person involved is deprived of his liberty which constitutes a grievous loss."
The state's principal objection to a reasonable doubt standard is that it is "unworkable and weighs the scale too heavily in favor of the individual interest in liberty, to the detriment of the state's interest in ensuring that dangerous persons receive treatment and do not harm others." The state's "unworkability" argument is that:
Since no one can predict dangerousness, it is completely unreasonable and impractical to require a standard of proof which simply cannot be met. Dangerousness is not based on objective facts but on a subjective and predicative state of mind. It can never be proven "beyond a reasonable doubt." Accordingly, since it is impossible for a psychiatrist to reach such a firm conclusion regarding future behavior beyond a doubt, it is also impossible to expect that a judge could reach such a conclusion.
While it is undoubtedly true that some persons who might be committed under a lesser standard will "go free" under a reasonable doubt standard, the state's fear that disturbed persons can never be committed is not persuasive. We note that it is not dangerousness *934 in any absolute sense of which the trier of fact must be convinced, but rather "a potentially serious likelihood" of dangerousness. It is not difficult to conceive of circumstances in which evidence of past conduct and mental disability will convince "beyond a reasonable doubt" of a potentially serious likelihood of dangerousness. "Proof of mental state . . . is a commonplace in the law, and despite the difficulty of establishing many controverted facts in a criminal trial, we steadfastly adhere to the reasonable-doubt burden of proof." United States ex rel. Stachulak v. Coughlin, 520 F.2d 931, 936 (7th Cir. 1975), cert. denied, 424 U.S. 947 (1976).
We are not convinced of even the relevance of this "workability" argument. The reasonable doubt standard is compelled by N.H. Const. pt. I, art. 15 because of the grievous loss attendant upon an erroneous commitment decision. The certitude required as a matter of due process reflects the severity of the deprivation imposednot the difficulties which may inhere in the proof of the commitment criteria imposed by the legislature. "The law, in short, does not weaken the standard of proof merely because the evidence is weak." People v. Burnick, 14 Cal. 3d 306, 330, 535 P.2d 352, 368 (1975).
If anything, the predictive nature of the ultimate finding and the frequently conflicting opinions of psychiatric experts, see People v. Burnick, 14 Cal. 3d at 326-31; Diamond, The Psychiatric Prediction of Dangerousness, 123 U. Pa. L. Rev. 439, 451 (1975), reinforce our determination to impose a standard of proof that will ensure the utmost care in reaching an involuntary commitment decision. See Szasz, The Danger of Coercive Psychiatry, 61 A.B.A.J. 1246 (1975); State v. Phinney, 117 N.H. 145, 370 A.2d 1153 (1977). As the First Circuit has stated in a related context, "the inherently speculative nature of psychiatric predictions, resulting in confinement not for what one has done but for what one will do, demands more than minimal procedures, particularly when such confinement is accomplished outside the traditional criminal process, with its right to jury trial and other ancient safeguards." Sarzen v. Gaughan, 489 F.2d 1076, 1086 (1st Cir. 1973); see Livermore, Malmquist and Meehl, On the Justifications for Civil Commitment, 117 U. Pa. L. Rev. 75 (1968).
The state perceives the reasonable doubt standard as unduly protective of the individual and harmful to the interests of society as a whole in that it creates too great a risk of erroneous release. We, however, perceive a beneficent impact on society flowing from the protection of individual liberty. "`[A] society that values the *935 good name and freedom of every individual has a substantial and fundamental interest'" in assuring the accuracy of decisions confining individuals against their will. In re Ballay, 482 F.2d at 663. The moral force of the law should not be "diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned." Id.
[8] We hold that proof beyond a reasonable doubt is required by N.H. Const. pt. I, art. 15 in determinations of mental illness and potential dangerousness under RSA 135-B:26. In accord, Suzuki v. Quisenberry, 411 F. Supp. 1113 (D. Hawaii 1976); Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), vacated on other grounds, 421 U.S. 957 (1975); In re Hodges, 325 A.2d 605 (D.C. App. 1974); In re Pickles' Petition, 170 So. 2d 603 (Fla. Dist. Ct. 1965); Denton v. Commonwealth, 383 S.W.2d 681 (Ky. 1964); In re Andrews, 334 N.E.2d 15 (Mass. 1975); In re Perry, 137 N.J. Eq. 161, 43 A.2d 885 (1945); State v. O'Neill, 545 P.2d 97 (Or. 1976). See also Comment, Commitment and Release Standards and Procedures: Uniform Treatment for the Mentally Ill, 41 U. Chi. L. Rev. 825, 829 (1974).
RSA 135-B:32 (Supp. 1975) outlines the state's burden of going forward by requiring the examining psychiatrist to specify in the report whether in his or her opinion the individual sought to be admitted meets the criterion of RSA 135-B:26 (Supp. 1975), whether involuntary admission is in his or her opinion necessary for the treatment of the person sought to be admitted, and what possible alternatives including the least restrictive alternative was considered.
"The general thrust of the statute is that involuntary commitments be utilized only when treatment other than involuntary admission would not be in the best interest of the patient and the community. The liberty of the patient is to be curtailed only to the extent necessary to protect her and the public." Dolcino v. Clifford, 114 N.H. 420, 421, 321 A.2d 577, 578 (1974). (Emphasis added.)
[9] In view of the procedural safeguards imposed by RSA ch. 135-B (Supp. 1975) and the requirement of proof beyond a reasonable doubt enunciated today, we hold that the absence of lesser alternative forms of treatment need not be proved beyond a reasonable doubt. We are persuaded that RSA 135-B:28 requires evidence of sufficiently recent "specific acts or actions" showing potential dangerousness before involuntary commitment be ordered. *936 That section provides in part: "[T]he specific acts or actions of the person sought to be admitted that the petitioner alleges will satisfy the criterion of RSA 135-B:26; and the names and addresses of witnesses who can testify to the occurrence of the specific acts or actions of the person sought to be admitted, which petitioner feels will satisfy the criterion of RSA 135-B:26 ...." (Emphasis added.)
Although the denial of respondents' motions to require proof beyond a reasonable doubt was erroneous, since respondents are now released, no purpose would be served in remanding for a determination of whether the proof in the proceedings below was in fact sufficient to satisfy this standard. See In re Ballay, 482 F.2d 648, 669 (D.C. Cir. 1973). Accordingly, we reverse both committal decrees.
So ordered.
GRIMES, J., did not sit; the others concurred.
ON MOTION FOR REHEARING: After the foregoing opinion was filed, the plaintiffs moved for rehearing.
Motion for rehearing denied.
GRIMES, J., concurs as well, having reviewed the briefs, record, and motion for rehearing. See Russell v. Dyer, 43 N.H. 396 (1861). December 21, 1977. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560488/ | 251 Pa. Superior Ct. 442 (1977)
380 A.2d 861
COMMONWEALTH of Pennsylvania
v.
Robert George TIMKO, Jr., Appellant.
Superior Court of Pennsylvania.
Argued June 16, 1976.
Decided December 2, 1977.
*444 Alan Ellis, State College, for appellant.
Robert F. Banks, Assistant District Attorney, Greenville, with him Allen E. Ertel, District Attorney, Williamsport, for Commonwealth, appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
CERCONE, Judge:
In March of 1975 appellant was tried non-jury on charges of possession of marijuana, possession of marijuana with intent to deliver, carrying a concealed weapon without a license, and disorderly conduct. At the conclusion of the Commonwealth's case a demurrer was sustained to the disorderly conduct charge. Appellant was subsequently acquitted of the delivery charge and found guilty of possession of marijuana and carrying a concealed weapon. Following post-verdict motions, however, judgment was arrested on the weapon's violation. From the imposition of a sentence of one year's probation, this appeal ensued.
In the early evening of September 16, 1974, Officer Phillip Williams of the Williamsport Police Force was driving his cruiser in the southbound lane of Packer Street approaching the intersection of Packer and Market Streets. As he neared the intersection Officer Williams observed the appellant, who was operating a Volkswagen van, attempting to turn his vehicle from Market Street into the northbound lane of Packer Street. In making the turn appellant almost struck an automobile in the southbound lane of Packer Street directly in front of Officer Williams' cruiser. Appellant managed to bring his vehicle back into the proper lane momentarily, but then again drifted across the center line, this time almost hitting Officer Williams' cruiser. As he passed by the cruiser, appellant looked out his open window and made an obscene gesture to Officer Williams. The officer then turned his vehicle around and pursued appellant with the intention of arresting him for reckless driving. *445 The pursuit ended only moments later when appellant attempted to park his vehicle. In maneuvering the van into a parking space appellant struck the cars parked immediately in front of and to the rear of his vehicle. When Officer Williams approached the van on foot, appellant rolled up his window and locked himself inside. The officer's request for appellant's license and owner's registration was met with an obscene refusal. In the course of this exchange Officer Williams observed several boxes of shotgun shells in the van and decided to call for assistance. When several other officers arrived, appellant greeted them with more profanity and persisted in refusing to exit his vehicle. Shortly thereafter appellant started the van's engine and attempted to pull out of the parking space. While appellant was trying to pull away, Officer Jett was attempting to pry open one of the van's doors with a tire iron. As Officer Jett was working on the door, appellant looked at him and then reached towards a brown leather bag that was lying on the rear seat. At this point, Officer Jett, being fully aware of the shell boxes, used the tire iron to break the door window on the driver's side of the van. The officers then unlocked the door and pulled appellant out of the van. While appellant was being frisked outside the van,[1] Officer Jett seized and opened the zippered leather valise. The search revealed two packages of marijuana[2] and a loaded revolver.
Appellant's sole contention is that the contents of the leather valise should have been suppressed as the product of an illegal search and seizure. We disagree.
In determining whether a particular search will withstand constitutional scrutiny it must be realized that "[t]he ultimate standard set forth in the Fourth Amendment is reasonableness." Cady v. Dombrowski, 413 U.S. 433, 439, *446 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973). It is also true and fundamental that "searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Instantly, the Commonwealth has advanced two alternative theories in support of the warrantless seizure and search of the valise. Since we conclude that the evidence was admissible under the "plain view" doctrine, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), we need not address the applicability of any other possible theory.[3]
In Coolidge, 403 U.S. 464-473, 91 S.Ct. 2022, the Supreme Court discussed at length the "plain view" exception. The Court summarized the doctrine as follows:
"What the `plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the `plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges." 403 U.S. at 466, 91 S.Ct. at 2038.
*447 In the case at bar, Officer Williams clearly had the right to stop appellant's vehicle once he determined it was being operated in a reckless manner. See Commonwealth v. Barkley, 234 Pa.Super. 503, 341 A.2d 192 (1975). Consequently, Officer Williams and his fellow police officers had a "prior justification" for looking inside the van while they were attempting to persuade the appellant to exit the van and produce his license and ownership registration. See Commonwealth v. Tatro, 223 Pa.Super. 278, 297 A.2d 139 (1972); Commonwealth v. Clelland, 227 Pa.Super. 384, 323 A.2d 60 (1974). Furthermore, there is no indication that appellant was stopped because Officer Williams suspected that the vehicle was being used to transport a weapon or contraband. Thus, the officer's observation of the leather bag was "inadvertent." Coolidge, supra. Finally, since appellant reached for the bag during the course of his resisting arrest, the officer's seizure of the bag was based upon a reasonable belief that the bag, or its contents, were either evidence or an instrumentality of the crime of resisting arrest. Hence, at the time they seized the bag it was "immediately apparent to the police that they [had] evidence before them." Coolidge, 403 U.S. at 466, 91 S.Ct. at 2038.
The only remaining question is whether the police were entitled to open the bag, after having legally seized it, to examine its contents without first obtaining a warrant. Once again, we are inclined to agree with the Commonwealth that the warrantless search was reasonable. First, the Supreme Court has held that containers seized from the person of an arrestee may be legally opened and inspected without obtaining a warrant. United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 266, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Similarly, this court has held in analogous cases that such a warrantless inspection is reasonable. Commonwealth v. Whitner, 241 Pa.Super. 316, 361 A.2d 414 (1976); Commonwealth v. Spriggs, 224 Pa.Super. 76, 302 A.2d 442 (1973). In Spriggs this court pertinently observed:
*448 "There is no logical limitation upon the right of police discovering a container upon the appellant that may contain a weapon or contraband to search the container's contents and seize such evidence incident to a lawful arrest." Id. 224 Pa.Super. at 79, 302 A.2d at 443.
It is of no consequence whether the container's seizure occurred as a result of a search incident to a legal arrest, or whether the container's seizure occurred because it was both evidence of a crime and in plain view. Once it had been legally seized it could be legally inspected. Indeed, under the facts in the instant case the police had more cause to believe the bag contained a weapon or contraband than the police had in either Robinson, Gustafson or Spriggs. A fortiori, the court below did not err in refusing to suppress the evidentiary use of its contents.
For the foregoing reasons, the judgment of sentence is affirmed.
JACOBS, J., concurs in the result.
SPAETH, J., files a dissenting opinion in which HOFFMAN, J., joins.
SPAETH, Judge, dissenting:
The majority summarizes its conclusion as follows:
It is of no consequence whether the container's seizure occurred as a result of a search incident to a legal arrest, or whether the container's seizure occurred because it was both evidence of a crime and in plain view. Once it had been legally seized it could be legally inspected.
At 448.
I disagree with this conclusion in every one of its three aspects (which may conveniently be considered in reverse order).
1
It is not the law that something "legally seized [may] be legally inspected." It may well be that the police have legally seized something but are nevertheless not entitled to inspect it. For example, the police may be entitled to seize *449 luggage, but not entitled to open it without a search warrant. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).[1] Cases such as this one, in which the police have stopped an automobile, are perhaps the most familiar example of a situation where the police may seize but not search. In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the Court said:
The word "automobile" is not a talisman in whose presence the Fourth Amendment fades away and disappears.
*450 Id. at 461, 91 S.Ct. at 2035.
In Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), the Court said:
An automobile is a place where an individual has a reasonable expectation of privacy. . . . [W]hen a police officer stops a vehicle he has "seized" the vehicle and its occupants, and thus, the protections of the Fourth Amendment must be considered. . . ."
Id. 453 Pa. at 111, 307 A.2d at 877 (citations omitted).
And in Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970), the Court said:
The Commonwealth does not, nor could it, contend that because the driver of the automobile was criminally liable for two violations of The Vehicle Code . . ., that this, without more, permitted a warrantless search of the automobile.[4]
[4] There is no right to search either the automobile or the occupants when an arrest is made for an ordinary traffic offense . . . .
Id. 439 Pa. at 395, 266 A.2d at 661. (citations omitted)
See also: Commonwealth v. Mimms, 471 Pa. 546, 370 A.2d 1157 (1977); Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975).
Consequently, the fact that "Officer Williams clearly had the right to stop appellant's vehicle," at 447, only shows that the officer could legally seize the vehicle; it in no way shows that he could legally search, or "inspect", it.
2
The "container" could not be seized "because it was both evidence of a crime and in plain view." The argument is circular. If something is evidence and in plain view, it may be seized.[2] The question, however, is whether the "container" was evidence. Simply saying it was "evidence" does not make it so.
In Coolidge v. New Hampshire, supra, the Court said:
*451 Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.
Id., 403 U.S. at 466, 91 S.Ct. at 2038 (emphasis added).
Here it was never apparent to the police that "the zippered leather valise," at 863, was evidence until after they had "seized and opened" it, Id.
3
Finally, neither may the unzippering and search of the valise be justified "as a result of a search incident to a legal arrest" per United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). At 448.
It is by no means clear that either Robinson or Gustafson states the law of Pennsylvania. Commonwealth v. Dussell, supra, is at least arguably contra; we may hold that the State Constitution imposes stricter requirements than does the Federal. Commonwealth v. Romberger, 464 Pa. 488, 347 A.2d 460 (1975); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975); Commonwealth v. Johnson, 247 Pa.Super. 208, 372 A.2d 11 (1977) (dissenting opinion). Even if, however, Robinson and Gustafson are consistent with the law of Pennsylvania, they are not in point. Both concerned the search of a defendant's person incident to a lawful arrest: Robinson (crumpled up cigarette package in defendant's left breast pocket); Gustafson (cigarette box in defendant's left front coat pocket). Here, as the majority acknowledges, the police "pulled appellant out of the van [and] [w]hile appellant was being frisked outside the van," at 445 (emphasis added), they went inside the van and "seized and opened the zippered leather valise," Id. Nothing in Robinson or Gustafson holds or implies that such a search is valid as incident to a lawful arrest. Nothing in our cases does either. Commonwealth *452 v. Whitner, 241 Pa.Super. 316, 361 A.2d 414 (1976), and Commonwealth v. Spriggs, 224 Pa.Super. 76, 302 A.2d 442 (1973), cited by the majority, both involved a search of the defendant's person.
The dispositive case, which is not cited by the majority, is United States v. Chadwick, supra. As discussed at the beginning of this opinion, Chadwick is an example of a situation where the police may be entitled to seize but not to search. In Chadwick, in reaffirming the limits of a search incident to a lawful arrest, the Court said:
Such searches may be conducted without a warrant, and they may also be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence. The potential dangers lurking in all custodial arrests makes warrantless searches of items within the "immediate control" area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Terry v. Ohio, supra, [392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1962)]. However, warrantless searches of luggage of other property seized at the time of an arrest cannot be justified as incident to that arrest either if the "search is remote in time or place from the arrest." Preston v. United States, 376 U.S. [364] at 367, 84 S.Ct. 881, 11 L.Ed.2d 777, or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.[9]
[9] Of course, there may be other justifications for a warrantless search of luggage taken from a suspect at the time of his arrest; for example, if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station house without *453 opening the luggage and disarming the weapon. See, e.g., United States v. Johnson, 467 F.2d 630, 639 (CA2 1972).
433 U.S. at 15, 97 S.Ct. at 2485.
Here, I quite agree that the police were entitled to seize and arrest appellant, and to search his person. It might be argued that they were not entitled to go into the van and seize the valise, Commonwealth v. Burgos, 223 Pa.Super. 325, 328, 299 A.2d 34, 36 (1972); but I should not accept that argument. Burgos was a routine traffic violation stop. Here, given appellant's abusive and violent behavior, it seems to me that it was reasonable for one of the officers to go into the van and seize the valise, while appellant was being subdued; the officer might have thought to himself: "Probably my fellow officers will subdue this wild man, but maybe he will break away from them and grab that valise I saw him reach for. I had better get it first." However, none of this matters. What matters is that once the officer had seized the valise, there was no longer any danger that appellant might gain access to it. This is especially clear since, while the officer was getting the valise, appellant did not break away; he was arrested, searched, handcuffed, and put in a police car.[3] Therefore: The question in this case is not whether the police had the right to seize and arrest appellant and search his person. They did. Neither is the question whether the police had the right to seize the valise. They did (at least, I think so). Rather, the question is whether, having done these things, the police had the right, without a search warrant, to unzipper and search the valise. It is clear from Chadwick that they did not.
The judgment of sentence should be vacated, and a new trial granted.
HOFFMAN, J., joins in this opinion.
NOTES
[1] The record is not entirely clear as to whether appellant was handcuffed at this juncture. In any event, it is certain that appellant was in the custody of at least two police officers while he was standing alongside of the van.
[2] Subsequent analysis established the total weight of the marijuana to be 545 grams.
[3] Although the court below held the contraband was admissible on the grounds that it was seized incident to appellant's arrest, it is well settled that where the judgment of the lower court is correct it can be affirmed on appeal regardless of the rationale employed by the lower court to sustain its action. Commonwealth v. Whitehouse, 222 Pa.Super. 127, 292 A.2d 469 (1972).
[1] In Chadwick federal agents arrested three suspected drug couriers at a train station on the basis of probable cause to believe the suspects' footlocker contained marihuana. The footlocker was under the exclusive control of the agents from the time of arrest and was transported along with the suspects to a federal building. An hour and a half later the agents opened the footlocker without the suspects' consent or a search warrant. The Government argued that the "Fourth Amendment Warrant Clause protects only interests traditionally identified with the home," and that there was
no evidence that the Framers of the Fourth Amendment intended to disturb the established practice of permitting warrantless searches outside the home, or to modify the initial clause of the Fourth Amendment by making warrantless searches supported by probable cause per se unreasonable.
Id. at 6, 97 S.Ct. at 2481.
This contention was emphatically rejected by the Court:
We do not agree that the Warrant Clause protects only dwellings and other specifically designated locales. As we have noted before, the Fourth Amendment "protects people, not places," Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967); more particularly, it protects people from unreasonable government intrusions into their legitimate expectations of privacy. In this case, the Warrant Clause makes a significant contribution to that protection. The question, then, is whether a warrantless search in these circumstances was unreasonable . . . . Id. at 7, 97 S.Ct. at 2481.
The Court concluded:
In this case, important Fourth Amendment privacy interests were at stake. By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination. No less than one who locks the door of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of the Fourth Amendment Warrant Clause. There being no exigency, it was unreasonable for the Government to conduct this search without the safeguards a judicial warrant provides. Id. at 11, 97 S.Ct. at 2483.
[2] That is, it may be if the officer was entitled to be where he was (and here, I agree he was). Coolidge v. New Hampshire, supra, 403 U.S. at 465, 91 S.Ct. 2022.
[3] Appellant argues that the trial transcript shows that the valise was gotten later, and indeed it can be read that way. (N.T. Trial 8) However, the suppression transcript can be read as showing that the valise was seized while appellant was being subdued. (N.T. Suppression Hearing 26-27) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560501/ | 18 So.3d 362 (2009)
JONES-LOWE COMPANY et al.
v.
SOUTHERN LAND AND EXPLORATION COMPANY, INC.
1071575.
Supreme Court of Alabama.
March 6, 2009.
*363 Roderic G. Steakley and Matthew B. Reeves of Sirote & Permutt, P.C., Huntsville; *364 and Jack Livingston, Scottsboro, for appellants.
E. Allen Dodd, Jr., of Scruggs, Dodd & Dodd, Attorneys, P.A., Fort Payne, for appellee.
WOODALL, Justice.
Jones-Lowe Company, a general partnership composed of Raymond B. Jones, Peter L. Lowe, and others; G.W. Jones & Sons, a former partnership composed of Raymond B. Jones and Carl T. Jones, deceased; Peter L. Lowe; and Raymond B. Jones (all collectively referred to hereinafter as "Jones-Lowe")[1] appeal from a summary judgment for Southern Land and Exploration Company, Inc. ("SOLEXCO"), in SOLEXCO's action against Jones-Lowe to quiet title to mineral rights in real estate located in DeKalb County ("the property"). We reverse and remand.
I. Factual and Procedural Background
This property dispute involves several complex chains of title that allegedly diverged from a common source late in the 19th century. Most recently, in 1958, the interest of A.F. Kralik Point Realty Company was purchased by the State Land Commissioner ("the Commissioner") at a tax sale resulting from unpaid ad valorem taxes. On October 26, 1966, G.W. Jones & Sons purchased the State's interest in the property, which was defined in the deed from the Commissioner as "mineral rights only." Through a series of transactions, Jones-Lowe Company eventually acquired that interest. Jones-Lowe Company or its predecessors have paid taxes on the mineral interests in the property since 1966.
Ten years later, on June 23, 1976, the Commissioner executed a deed purporting to sell "the minerals and mineral interests" in the property to SOLEXCO. SOLEXCO has also paid taxes on the mineral interests in the property since 1976.
On July 3, 2007, SOLEXCO commenced this action to quiet title to the mineral rights. Jones-Lowe answered the complaint and filed a counterclaim, seeking a judgment quieting title in Jones-Lowe Company. On January 17, 2008, SOLEXCO filed a single document, namely, a motion for a summary judgment. The "Statement of Material Undisputed Facts" section of that motion contained, in pertinent part, the following averments, hereinafter referred to collectively as "the motion averments":
"6. [SOLEXCO] acquired title to the minerals and mineral interests in the said property from the State of Alabama by deed from the [Commissioner] of June 23, 1976, Deed Book 255, Page 276, Judge of Probate, DeKalb County, Alabama.
"7. The chain of title into [SOLEXCO] is as follows:
"(a) Instrument: Entries
Grantor: USA
Grantee: Certificate Holders
Date: Unknown
Recorded: Tract Book
"(b) Instrument: 112 Deeds
Grantor: Certificate Holders
Grantee: O.T. Holmes
Date: 1887-1888
Recorded: Deed Book S, Pages 141-349
"(c) Instrument: Warranty Deed
Grantor: Owen T. Holmes and Wife
Grantee: Noble Smithson
Date: 2-8-1890
Recorded: Deed Book X, Page 110
Conveyed: `all bituminous,
anthracite and other coals, petroleum,
natural gas, and other products of coal
and petroleum and also all iron, iron ores,
*365
and other metal ores and minerals of
every kind and description'
"(d) Instrument: Warranty Deed
Grantor: Noble Smithson and Wife
Grantee: Joseph A. Jacobs
Date: X-XX-XXXX
Recorded: Deed Book X, Page 120
Interest
Conveyed: (same as conveyed in foregoing
Instrument)
"(e) Instrument: Warranty Deed
Grantor: Joseph A. Jacobs and wife
Grantee: Alabama Coal & Iron, Inc.
Date: X-XX-XXXX
Recorded: Deed Book X, page 130
Interest
Conveyed: (same as conveyed in foregoing
Instrument)
"(f) Instrument: Tax Sale
Grantor: Judge of Probate
Grantee: State of Alabama
Date: 7-10-1922
Recorded: Tax Sale Record J, Page
216
Interest
Conveyed: `Mineral Interest Only'
"(g) Instrument: Deed
Grantor: State of Alabama, by
[Commissioner]
Grantee: Plaintiff (SOLEXCO)
Date: 6-23-1976
Recorded: Deed Book 255, Page 276
Interest
Conveyed: Mineral Interest Only
"8. [SOLEXCO] also makes claim to the disputed acreage through the following chain of title: (a) Alabama Coal & Iron Co. December 7, 1926, deed to Cherokee Mining Co., Inc., Deed Book 60, Page 484; (b) Cherokee Mining Co., Inc., April 9, 1974, deed to J.S. Cullinan, II, and Craig F. Cullinan, Jr., Deed Book 246, Page 497; (c) J.S. Cullinan, II, April 25, 1975, deed to Sue Woodall Cullinan, Deed Book 250, Page 189; (d) Sue Woodall Cullinan, Joseph S. Cullinan, II, and Craig F. Cullinan, Jr., May 6, 1983, deed to plaintiff [SOLEXCO], Deed Book 287, Page 781-82; (e) Sue Woodall Cullinan and Craig F. Cullinan, Jr., May 16, 1983, deed to plaintiff [SOLEXCO], Deed [Book] 287, Page 783-85; and (f) Joseph S. Cullinan, II, and wife Sue Woodall Cullinan and Craig F. Cullinan, Jr., May 6, 1983, deed conveying mineral rights only to plaintiff [SOLEXCO], Deed [Book] 287, Page 777-80.
". . . .
"16. It is undisputed that [Jones-Lowe Company's] claimed title descends from a deed from Margaret Hall to a grantee named Rainer or Rayner in 1919. Ms. Hall attempted to convey to Rainer or Rayner all the mineral acreage owned by one O.T. Holmes as follows: `... Margaret Hall ... grant, bargain, sell and convey to [Rainer or Rayner] ... the mineral interests ... at any time owned by Owen T. Holmes ... [in the disputed real estate].'
"17. It is further undisputed that O.T. Holmes had conveyed his mineral interests in the disputed acreage by deed dated February 8, 1890, Deed Book X, page 110, prior to any conveyance to Margaret Hall.
"18. In short, [Jones-Lowe Company] claims title through the referenced deeds, including the deeds from the State of Alabama. However, the ultimate source of title into either source is Margaret Hall, who had no mineral interests to convey."
(Emphasis in original.) SOLEXCO did not support its motion with copies of any of the above-referenced instruments or with any other evidence.
Jones-Lowe filed a cross-motion for a summary judgment. SOLEXCO filed an opposition to the cross-motion, supported only by the affidavit of Woodrow Hobson, Jr., president of SOLEXCO. On July 8, 2008, the circuit court granted SOLEXCO's summary-judgment motion and denied Jones-Lowe's cross-motion. In so doing, the court stated, in pertinent part:
"[SOLEXCO] obtained a tax deed to `the minerals and mineral interests' in *366 the subject lands from the [Commissioner] on June 23, 1976. The deed is recorded at Deed Book 255, Page 276, in the DeKalb County, Alabama, Probate Office. [SOLEXCO's] chain of title extends back to 1890, when Owen T. Holmes and wife conveyed the mineral interests in the subject lands to Noble Smithson. The State of Alabama obtained title to the mineral interests at a tax sale on July 10, 1922, when the owner at that time, Alabama Coal and Iron Company, became delinquent in the payment of taxes.
"[SOLEXCO] also makes claim to the mineral interests through a chain of title commencing with a conveyance from Alabama Coal & Iron Company in 1926 to Cherokee Mining Co., Inc., recorded at Deed Book 60, Page 484; Cherokee Mining Co., Inc., to J.S. Cullinan, II, and Craig F. Cullinan, Jr., on April 9, 1974, recorded at Deed Book 246, Page 497; J.S. Cullinan, II, to Sue Woodall Cullinan, on April 25, 1975, recorded at Deed Book 250, Page 189; Sue Woodall Cullinan, Joseph S. Cullinan, II, and Craig F. Cullinan, Jr., to plaintiff SOLEXCO, on May 6, 1983, recorded at Deed Book 287, Page 781; Sue Woodall Cullinan and Craig F. Cullinan, Jr., to plaintiff [SOLEXCO], on May 16, 1983, recorded at Deed Book 287, Page 783; Joseph S. Cullinan, II, and wife, Sue Woodall Cullinan, and Craig F. Cullinan, Jr., to plaintiff [SOLEXCO], on May 6, 1983, recorded at Deed Book 287, Page 777. (All recordings are in the DeKalb County, Alabama Probate Office.)
". . . .
"The interest claimed by [Jones-Lowe Company] descends from a deed executed by Margaret Hall in 1919 to a grantee named `Rainer' or `Rayner.' This deed sought to convey all mineral acreage `at any time owned by O.T. Holmes' in the subject lands. O.T. Holmes, however, had previously conveyed his interest in the subject minerals to Noble Smithson by deed dated February 8, 1890, recorded at Deed Box X, Page 110, DeKalb County Probate Office. It follows that Margaret Hall had no interest to convey when she executed the deed to Rainer/Rayner.
". . . .
"The rule of repose asserted by [Jones-Lowe], which serves as a bar to claims that are unasserted for twenty years cannot be used against one with valid record title by one who clearly does not have title. Oehmig v. Johnson, 638 So.2d 846 (Ala.1994). In this case, [SOLEXCO] has valid record title and Jones-Lowe [Company] does not.
"As to Jones-Lowe's claim that [SOLEXCO] had notice, actual or constructive, of the interest claimed by [Jones-Lowe Company] when [SOLEXCO] obtained its tax deed in 1976, the court finds that notice, without more, cannot make [SOLEXCO's] unbroken chain of record title dating back to 1890 inferior to [Jones-Lowe Company's] defective color of title emanating from a source who had no title to convey."
(Emphasis added.)
On appeal, Jones-Lowe argues, among other things, that SOLEXCO failed to satisfy its burden with regard to SOLEXCO's summary-judgment motion and that, instead, Jones-Lowe is entitled to a summary judgment. "Accordingly," says Jones-Lowe, "it is appropriate for the Court to reverse the judgment of the trial court and render judgment quieting title to all mineral interests in ... Jones-Lowe [Company]. Alternatively, the judgment in favor of SOLEXCO cannot be sustained and must be, at a minimum, reversed and [the case] remanded." Jones-Lowe's brief, at 28.
*367 II. Discussion
"The plaintiff in a quiet-title action must present evidence to support `a peaceable possession in the [plaintiff] as contradistinguished from a contested, disputed or scrambling possession.'" Woodland Grove Baptist Church v. Woodland Grove Cmty. Cemetery Ass'n, 947 So.2d 1031, 1038 (Ala.2006) (quoting Price v. Robinson, 242 Ala. 626, 627, 7 So.2d 568, 569 (1942)). The resolution of this appeal is informed by the respective summary-judgment burdens borne by each side in its quest for a judgment quieting title in its favor. We first examine whether SOLEXCO carried its burden as the summary-judgment movant.
A. SOLEXCO as Movant
"`"[T]he manner in which the [summary-judgment] movant's burden of production is met depends upon which party has the burden of proof ... at trial."' Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)). If ... `"the movant has the burden of proof at trial, the movant must support his motion with credible evidence, using any of the material specified in Rule 56(c), [Ala.] R. Civ. P. (`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits')."' 769 So.2d at 909. `"The movant's proof must be such that he would be entitled to a directed verdict [now referred to as a judgment as a matter of law, see Rule 50, Ala. R. Civ. P.] if this evidence was not controverted at trial."' Id. In other words, `when the movant has the burden [of proof at trial], its own submissions in support of the motion must entitle it to judgment as a matter of law.' Albee Tomato, Inc. v. A.B. Shalom Produce Corp., 155 F.3d 612, 618 (2d Cir.1998) (emphasis added). See also Equal Employment Opportunity Comm'n v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49 (1st Cir.2002); Rushing v. Kansas City Southern Ry., 185 F.3d 496 (5th Cir.1999); Fontenot v. Upjohn Co., 780 F.2d 1190 (5th Cir.1986); Calderone v. United States, 799 F.2d 254 (6th Cir.1986)."
Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1195 (Ala.2002).
Moreover, Rule 56(c), Ala. R. Civ. P., requires that the movant's narrative summary of facts "`include specific references to pleadings, portions of discovery materials, or affidavits for the court to rely on in determining whether'" a summary judgment is proper. Horn v. Fadal Machining Ctrs., LLC, 972 So.2d 63, 69-70 (Ala.2007) (quoting Northwest Florida Truss, Inc. v. Baldwin County Comm'n, 782 So.2d 274, 277 (Ala.2000)). This requirement is not satisfied if the materials on which the movant purports to rely have not been filed with the court.
"`[T]he party moving for summary judgment has the burden to show that he is entitled to judgment under established principles; and if he does not discharge that burden, then he is not entitled to judgment. No [response] to an insufficient showing is required.'" Horn, 972 So.2d at 69 (quoting Ray v. Midfield Park, Inc., 293 Ala. 609, 612, 308 So.2d 686, 688 (1975)). Otherwise stated, "[a] motion that does not comply with Rule 56(c) does not require a response ... from the nonmovant," and a judgment may not be entered on such a motion even in the absence of a response from the nonmovant. Horn, 972 So.2d at 70.
Jones-Lowe contends that SOLEXCO failed to satisfy its initial burden *368 of showing "through competent evidence that no genuine issue of material fact existed and that it was entitled to judgment as a matter of law." Jones-Lowe's reply brief, at 14. Consequently, according to Jones-Lowe, "the burden never shifted[,].... [t]hat is, Jones-Lowe was not required to substantively oppose SOLEXCO's motion due to its fatal procedural failure." Jones-Lowe's reply brief, at 14. We agree.
The burden was upon SOLEXCO, as the party seeking a summary judgment on the claim asserted in its complaint, to present evidence in the nature of "the material specified in Rule 56(c), [Ala.] R. Civ. P.," such as depositions and affidavits, that would entitle it to a judgment as a matter of law "if this evidence was not controverted at trial." Denmark, 844 So.2d at 1195. This it did not do. Although it purported to rely on various deeds allegedly filed in the probate court, SOLEXCO provided no copies of any such deeds to the circuit court in support of its motion averments.
SOLEXCO's motion averments are not evidence in any sense. The following principles are well settled:
"`[M]otions and arguments of counsel are not evidence.' Williams v. Akzo Nobel Chemicals, Inc., 999 S.W.2d 836, 845 (Tex.App.1999). `[S]tatements in motions are not evidence and are therefore not entitled to evidentiary weight.' Singh v. Immigration & Naturalization Serv., 213 F.3d 1050, 1054 n. 8 (9th Cir.2000). `[B]riefs submitted in support of motions are not evidence to be considered by the Court in resolving a summary judgment motion.' Direct Media Corp. v. Camden Tel. & Tel. Co., 989 F.Supp. 1211, 1217 (S.D.Ga.1997)."
Fountain Fin., Inc. v. Hines, 788 So.2d 155, 159 (Ala.2000) (emphasis added).
It is obvious that the circuit court relied almost exclusively on the motion averments as the basis for its judgment. That judgment was based on the conclusion that there wasin facta conveyance of the mineral rights from O.T. Holmes in 1890, before Margaret Hall allegedly attempted to convey that interest outside the chain of title in 1919. It was for that reason, according to the circuit court, that SOLEXCO's title was superior "to [Jones-Lowe Company's] defective color of title emanating from a source who had no title to convey." (Emphasis added.) Because these and other such naked averments were not "facts" before the court, the circuit court erred in entering a summary judgment for SOLEXCO. That judgment is, therefore, reversed.
B. Jones-Lowe as Cross-Movant
The fact that SOLEXCO is not entitled to a summary judgment quieting title in it does not mean that Jones-Lowe is entitled to such a judgment on its cross-motion. In a quiet-title action, "[i]f the complainant fails to make his proof of peaceful possession, he can not have title quieted in him .... [But] ... if the respondent has made an adequate answer and the proof shows that he has the better title and peaceful possession, then title should be quieted in the respondent ...." Hinds v. Slack, 293 Ala. 25, 29, 299 So.2d 717, 720 (1974) (first emphasis added). See also Ala.Code 1975, § 6-6-543 ("The court shall, upon the finding of the jury or upon [its own] consideration and determination [where it sits as the fact-finder], finally adjudge whether the defendant has any right, title, or interest in, or encumbrance upon, such lands, ... [and] what such right, title, interest, or encumbrance is and in or upon what part of the lands the same exits; and such judgment is binding and conclusive upon all the parties to the action."). Thus, as the summary-judgment cross-movant, Jones-Lowe bears *369 the burden of showing more than the existence of a genuine issue of material fact as to SOLEXCO's quiet-title claim. Jones-Lowe must affirmatively show that it is entitled to a judgment as a matter of law on its own quiet-title claim. This it has not done.
The motions and responses filed by Jones-Lowe in regard to the summary judgments sought by the respective sides contained no argument that Jones-Lowe Company has peaceful possession of the mineral rights, or that SOLEXCO does not have the requisite peaceful possession. They contain only two or three isolated, conclusory assertions that Jones-Lowe Company is in possession. Jones-Lowe did not, for example, attempt to inform the circuit court how Jones-Lowe Company has peaceful possession of minerals that have undisputedly never been severed from the land. The briefs Jones-Lowe filed in this Court are somewhat more enlightening in these respects. However, reversal of the circuit court's judgment predicated on the arguments in those briefs would, of necessity, be on a ground never argued in the circuit court.
The same is true of the argument Jones-Lowe now makes in this Court that SOLEXCO's action is barred by the common-law rule of repose. In the circuit court, SOLEXCO argued that it was not "`time-barred' from seeking a judicial declaration of its title," on the authority of Oehmig v. Johnson, 638 So.2d 846 (Ala. 1994),[2] which the circuit court cited in support of its judgment. Jones-Lowe did not respond to this argument but merely stated: "Also, the doctrine of prescription and repose fit this case since more than 20 years have lapsed without action."
The principle is well settled that, "`on an appeal from a summary judgment, this Court cannot hold the trial court in error on the basis of arguments made for the first time on appeal.'" Cain v. Howorth, 877 So.2d 566, 578 (Ala.2003) (quoting Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308, 312 (Ala.2001)). See also Barnett v. Funding Plus of America, Inc., 740 So.2d 1069 (Ala.1999); West Town Plaza Assocs., Ltd. v. WalMart Stores, Inc., 619 So.2d 1290 (Ala. 1993). Thus, we do not consider Jones-Lowe's arguments regarding peaceful possession or the rule of repose.
In the circuit court, Jones-Lowe presented only two arguments directed to the issue of Jones-Lowe Company's alleged superiority of title. Specifically, it argued for the application of (1) the doctrine of laches, and (2) Ala.Code 1975, § 6-2-33, with its 10-year statute of limitations. However, neither of these arguments is made on appeal. Therefore, they are waived. Avis Rent A. Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n. 8 (Ala. 2003) ("An argument not made on appeal is abandoned or waived."); Bettis v. Thornton, 662 So.2d 256, 257 (Ala.1995); Pardue v. Potter, 632 So.2d 470, 473 (Ala. 1994). For these reasons, the circuit court did not err in denying Jones-Lowe's motion for a summary judgment.
III. Conclusion
In summary, because the circuit court improperly relied on the unsupported arguments of SOLEXCO's counsel as the basis for its judgment, it erred in granting SOLEXCO's motion for a summary judgment. That judgment is, therefore, reversed. However, because the arguments advanced by Jones-Lowe for a judgment quieting title in Jones-Lowe Company have either been abandoned or are made for the first time on appeal, Jones-Lowe *370 has not demonstrated that it is entitled to a summary judgment. For these reasons, the cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
COBB, C.J., and SMITH, PARKER, and SHAW, JJ., concur.
NOTES
[1] G.W. Jones & Sons is apparently a predecessor-in-interest to Jones-Lowe Company. Although G.W. Jones & Sons is no longer a partnership, SOLEXCO named that entity in its complaint, and the entity is also listed as an appellant.
[2] We express no view as to the applicability of Oehmig to this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3349497/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
Plaintiff John Magrassi appeals the decision of the Department of Motor Vehicles (Department) which suspended his motor vehicle operator's license for ninety days pursuant to General Statutes 14-227b. The appeal is brought pursuant to General Statutes 4-183. The court finds the issues in favor of the defendant Department.
In his brief, the plaintiff advances two bases for his appeal. The court addresses each one separately.
One basis of the plaintiff's appeal is that the arresting police officer allegedly did not afford the plaintiff an opportunity to call his attorney prior to administering the chemical blood alcohol test. This argument is without merit. Even if the hearing officer had believed the plaintiff's testimony on the subject, the failure of the police to allow the plaintiff to call his attorney prior to administering the test is not grounds for invalidating the test or reversing the Commissioner's decision. Kramer v. DelPonte, 26 Conn. App. 101 (1991).
The second basis of the plaintiff's appeal is his contention that the police did not have the requisite articulable and reasonable suspicion of wrongdoing to stop the plaintiff prior to determining whether probable cause existed CT Page 2309 to arrest him for drunk driving, citing State v. Lamme,216 Conn. 172 (1990); Field v. Goldberg, CV 91 70 20 04 (Superior Court, Hartford-New Britain J.D. at Hartford, December 19, 1991, Maloney, J.).
The report of the police officer who arrested the plaintiff was properly admitted in evidence. In that report, the police officer states that he had been dispatched to the East Windsor Restaurant to investigate a larceny in progress. Upon arrival, the manager identified the plaintiff, who was then operating his vehicle in the parking lot, as the individual who had eaten at the restaurant and at first refused to pay the bill. When the manager confronted him, the plaintiff "became disruptive by yelling and screaming profanities at her. (The manager) said that this male then paid his check and left the restaurant." Other patrons were present during this scene. The police officer then stopped the plaintiff's vehicle.
The plaintiff testified at the hearing and denied that that incident had occurred on the night he was arrested in this case.
Standing alone, the police officer's report contains sufficient facts to establish a legal basis for stopping the plaintiff for further investigation. The totality of the circumstances indicated therein created at the least a reasonable suspicion that the plaintiff had committed the crime of breach of the peace in violation of General Statutes53a-181 and/or disorderly conduct in violation of General Statutes 53a-182. Although the plaintiff's testimony conflicted with the police report, "a court must defer to the agency's assessment of the credibility of the witnesses and to the agency's right to believe or disbelieve the evidence presented. . . ." Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593 (1991). This court may not try the case de novo, adjudicate facts, or substitute its own discretion for that of the agency. Miko v. CHRO, 220 Conn. 192,201 (1991).
For all of the above reasons, the plaintiff's appeal may not be sustained. It is, therefore, dismissed.
Maloney, J. CT Page 2310 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/997434/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4176
HENRY THOMAS MCARTHUR,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CR-96-404-AMD)
Submitted: October 30, 1998
Decided: December 29, 1998
Before ERVIN and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Joan Catherine Fraser, Baltimore, Maryland, for Appellant. Lynne A.
Battaglia, United States Attorney, Lisa M. Turner, Special Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Henry Thomas McArthur appeals from his conviction and sentence
for possession of a firearm by a convicted felon in violation of 18
U.S.C.A. § 922(g) (West 1994 & Supp. 1998). We affirm.
McArthur raises only two issues in this appeal. First, he asserts that
the police officers lacked probable cause to stop his vehicle, rendering
the resulting search unconstitutional. We disagree. According to
police testimony, officers in an unmarked police car observed a slow-
traveling car stop approximately thirty feet from a stop sign marking
an intersection. The officers also observed that the front license plate
was not securely fastened to the car as required by Maryland law, but
was instead lying on the front dashboard. At this point, based upon
the license plate, the officers decided to stop the car. Prior to the
actual stop, however, they saw the vehicle enter a second intersection
and signal a right turn. Despite this signal, the car turned left after a
marked police vehicle coincidentally approached it from the cross-
street. Officers in the unmarked car then activated their vehicle's sig-
nal lights, and pulled behind McArthur's car while another unmarked
unit stopped in front of it.
The resulting search of the vehicle which revealed the firearm at
issue is not independently challenged. Rather, McArthur contends
only that the initial stop was unconstitutional, therefore rendering evi-
dence obtained from the search inadmissible. Specifically, he asserts
that the license plate was properly affixed to the car under Maryland
law, which requires that the plate be securely fastened in a horizontal
position, in a manner which prevents the plate from swinging, and in
a place and position that allows clear visibility. After a de novo
review, we agree with the district court's determination that a license
plate stuck into the dashboard by the front window of a car is not "se-
curely fastened" to the vehicle. See United States v. Wilhelm, 80 F.3d
116, 118 (4th Cir. 1996) (providing standard of review). Accordingly,
we conclude that the stop was justified and the resulting search valid
under Whren v. United States, 517 U.S. 806 (1996).
McArthur next contends that the sentencing judge erred in denying
his motion for recusal. McArthur's motion, made at the commence-
2
ment of his sentencing hearing, asserted that the judge was biased
against him based on his interaction with the sole defense witness--
Antoinette Ellis, McArthur's fiancee. Specifically, the judge exam-
ined Ellis under oath following a charge that she improperly con-
versed with one of McArthur's jurors. Later, following closing
arguments, the judge ordered Ellis' arrest for threatening the prosecut-
ing attorney, and testified for the government at her trial.
We review the district court's denial of the motion for recusal for
an abuse of discretion and find none. See United States v. Mitchell,
886 F.2d 667, 671 (4th Cir. 1989). Although the judge was a fact wit-
ness in the case against McArthur's fiancee, the record is devoid of
any suggestion of bias against McArthur. In fact, the judge elected not
to pursue contempt charges against McArthur despite a flagrant out-
burst following the arrest of his fiancee, and imposed the lowest pos-
sible sentence following McArthur's sentencing hearing. Thus, even
if the district court did abuse its discretion, which we do not believe,
we would find any error to be harmless. See, e.g., Parker v. Connors
Steel Co., 855 F.2d 1510, 1525 (11th Cir. 1988) (applying harmless
error analysis to claim of judicial bias).
Accordingly, we affirm McArthur's conviction and sentence. We
grant McArthur's unopposed motion to submit the case on briefs and
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
3 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560708/ | 18 So.3d 1065 (2008)
BIG LOTS STORES, INC., Appellant,
v.
Gloria Maria de DIAZ and Jose Diaz, Appellees.
No. 3D07-1501.
District Court of Appeal of Florida, Third District.
May 14, 2008.
Opinion After Remand August 26, 2009.
*1066 DeMahy, Labrador, Drake, Payne & Cabeza, Coral Gables, and Michael T. Tomlin, for appellant.
Wald, Gonzalez & Graff, and Estrella Gonzalez, Miami; Barbara Green, for appellees.
Before COPE and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
SUAREZ, J.
Big Lots seeks to reverse the trial court's order granting the plaintiffs a new trial on future damages and loss of consortium, and to reinstate the jury's verdict. We relinquish jurisdiction to the trial court for entry of an order specifying the trial court's grounds for granting a new trial.
Gloria de Diaz filed a personal injury action against Big Lots claiming injuries due to a fall at a Big Lots store. Big Lots answered alleging that her injuries were from pre-existing arthritis and/or intervening causes. Gloria de Diaz amended her complaint to include a loss of consortium claim on her husband's behalf. Following trial, the jury found in Gloria de Diaz's favor and awarded her past medical expenses and damages for past pain and suffering. The jury did not award damages for her future medical expenses or future pain and suffering, and did not award damages to her husband for loss of consortium. The trial court entered final judgment. The following day, the plaintiffs filed two motions for new trial, one motion as to Gloria's future damages and the other as to her husband's loss of consortium claim. Both motions claim that the jury's verdict was against the manifest weight of the evidence. After a hearing, the trial court granted the motions finding that the jury's verdict on these issues was against the manifest weight of the evidence. The trial court's order states this, but fails to specify the grounds for its decision.
Florida Rule of Civil Procedure 1.530(f) provides that "[a]ll orders granting a new trial shall specify the specific grounds therefor. If such an order is appealed and does not state the specific grounds, the appellate court shall relinquish jurisdiction to the trial court for entry of an order specifying the grounds for granting the new trial."[1]
We therefore relinquish jurisdiction and remand to the trial court for entry of an order specifically setting forth the grounds upon which the trial court relies for granting a new trial.
SUAREZ, J.
Big Lots Stores, Inc., appeals from the trial court's order granting the plaintiffs, Gloria De Diaz and Jose Diaz, a new trial on future damages and loss of consortium. We affirm.
*1067 Gloria De Diaz tripped over part of a display at Big Lots and fell on her left knee. X-rays revealed no fractures, but did show some early signs of arthritis. A couple of months later, De Diaz saw an orthopedist and had an MRI. The MRI showed a small tear, and some fluid buildup. Only therapy was prescribed. The following year, De Diaz went to another doctor for a second opinion. The doctor concluded that De Diaz had some degenerative arthritis in her knee and an injury to the meniscus, and recommended arthroscopic surgery. De Diaz had the surgery.
In December, 2003, De Diaz filed a personal injury claim against Big Lots. Big Lots answered that her injuries were from pre-existing arthritis and/or intervening causes. Three years later, De Diaz amended her complaint to include a loss of consortium claim on her husband's behalf. Following trial, the jury found in De Diaz's favor and awarded her past medical expenses and damages for past pain and suffering. The jury did not award damages for future pain and suffering or for future medicals even though there was evidence of the need for future medical treatment. The jury also did not award any damages to the husband for loss of past or future consortium.
After the trial court entered final judgment pursuant to the jury verdict, the plaintiffs filed a motion for new trial solely on the issues of damages for future pain and suffering, future medicals, and the loss of consortium claim, asserting that the verdict was against the manifest weight of the evidence. After a hearing, the trial court granted the motions, and Big Lots appealed.[1]
We review the trial court's grant of a motion for new trial for abuse of discretion. Southwin, Inc. v. Verde, 806 So.2d 586, 587 (Fla. 3d DCA 2002) ("The standard of review for the denial of a motion for new trial is whether or not the trial court abused its discretion."). If the appellate court determines that reasonable people could differ as to the propriety of the trial court's action, there can be no finding of an abuse of discretion. Hahn v. Medeiros, 858 So.2d 1242 (Fla. 5th DCA 2003). The fact that there may be substantial competent evidence in the record to support the jury verdict does not necessarily demonstrate that the trial judge abused his or her discretion. See Baptist Mem'l Hosp., Inc. v. Bell, 384 So.2d 145, 146 (Fla. 1980) ("The discretionary power to grant or deny a motion for new trial is given to the trial judge because of his direct and superior vantage point.... In reviewing this type of discretionary act of the trial court, the appellate court should apply the reasonableness test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion."); Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla.1999) (same). The trial court's order granting the new trial contains the required detailed specific findings supporting the court's conclusion that the jury verdict on these issues was against the manifest weight of the evidence. Fla. R. Civ. P. 1.530(f); Brown v. Estate of Stuckey, 749 So.2d at 490 (holding that, in granting a motion for a new trial, the trial court must articulate the reasons for doing so in its order). The trial court's conclusions are *1068 supported by our review of the record. Therefore, we affirm the trial court's order.
Further, regarding the loss of consortium issue, we find that undisputed evidence was presented on Mr. Diaz's loss of consortium claim to require an award of at least nominal damages. See Tavakoly v. Fiddlers Green Ranch of Fla., Inc., 998 So.2d 1183 (Fla. 5th DCA 2009) (holding that where the plaintiff established entitlement to some damages for loss of consortium, a zero verdict is inadequate as a matter of law), and citations therein; Jones v. Double D Props., Inc., 901 So.2d 929, 931 (Fla. 4th DCA 2005) ("When the claiming spouse presents evidence that is substantial, undisputed, and unrebutted concerning the impact the injury had on the marital relationship, such spouse is entitled to receive at least nominal damages for loss of consortium."); Fleming v. Albertson's, Inc., 535 So.2d 682, 684 (Fla. 1st DCA 1988); see also Aurbach v. Gallina, 721 So.2d 756, 758 (Fla. 4th DCA 1998) (on a consortium claim, where sufficient undisputed evidence was presented that would require an award of at least nominal damages, a zero verdict is inadequate as a matter of law), approved, 753 So.2d 60 (Fla.2000); Christopher v. Bonifay, 577 So.2d 617 (Fla. 1st DCA 1991) (a spouse is entitled to reversal of a zero verdict only if it can be established that the record contains substantial, undisputed evidence of loss of consortium).
We affirm the trial court's grant of new trial on the issue of future damages as well as Mr. Diaz's loss of consortium claim.
Affirmed.
COPE, J., concurs.
SCHWARTZ, Senior Judge (dissenting).
After due consideration of the record and the factors I deem pertinent, see Montgomery Ward & Co. v. Pope, 532 So.2d 722, 722 (Fla. 3d DCA 1988) (Schwartz, C.J., dissenting); Fla. Power Corp. v. Coppola, 765 So.2d 858 (Fla. 5th DCA 2000), I believe that this case falls on the "seventh juror," rather than, as the majority holds, the "judicial discretion" side of the continental divide between the decisions reviewing new trial orders based on the trial judge's perception of the weight of the evidence. I would therefore reverse for reinstatement of the verdict reached by the actual jurors.
NOTES
[1] Fla. R. Civ. P. 1.530(f); see also Brown v. Estate of Stuckey, 749 So.2d 490, 497 (Fla. 1999) ("When a trial judge grants the motion for a new trial, he or she must articulate the reasons for the new trial in the order."); Wackenhut Corp. v. Canty, 359 So.2d 430, 436 (Fla. 1978) (upholding district court's reversal of trial court's grant of new trial where trial order did not explain why verdict was excessive); Jones v. Goodyear Tire & Rubber Co., 871 So.2d 899 (Fla. 3d DCA 2003) (accord).
[1] The panel heard oral argument in April 2008, and in its May 14, 2008 opinion, relinquished jurisdiction to the trial court for entry of an order specifically setting forth the grounds on which the court relied for granting a new trial on future damages and loss of consortium. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858109/ | SOMERVILLE
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-456-CV
CITY OF SOMERVILLE, CITY OF NEW WAVERLY
AND OFFICE OF PUBLIC UTILITY COUNSEL,
APPELLANTS
vs.
PUBLIC UTILITY COMMISSION, GULF STATES UTILITIES COMPANY
AND TEXAS INDUSTRIAL ENERGY CONSUMERS,
APPELLEES
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. 91-9073, HONORABLE F. SCOTT McCOWN, JUDGE PRESIDING
This appeal arises from a suit for judicial review of an order issued by the Public
Utility Commission of Texas (the "Commission") granting Gulf States Utility Company ("Gulf
States") an increase in its retail electric rates. The Cities of Somerville and New Waverly (the
"Cities") and the Office of the Public Utility Counsel ("OPUC") brought suit in district court
seeking judicial review of the Commission's order. The district court affirmed the Commission
order in large part, but remanded the case to the Commission on various federal income tax
questions. We will affirm the district court's action on the tax questions, but reverse the
affirmance of the Commission's adoption of the non-unanimous settlement stipulation ("NUS")
and render judgment that that portion of the Commission order be reversed and the cause
remanded to the Commission for action consistent with this opinion.
PROCEDURAL BACKGROUND
This case originated in 1989 when Gulf States filed an application with the
Commission seeking an $88 million increase in retail electric rates. The Commission styled Gulf
State's application as docket number 8702 and conducted an extensive evidentiary hearing on the
application before several Commission administrative law judges. (1) Following the conclusion of
these hearings, the hearing examiners assigned to this case issued a 213-page examiner's report
summarizing the evidence and testimony presented during the hearing and recommended a retail
electric rate increase of approximately $9 million. The examiners later modified this
recommendation and proposed a larger rate increase of $14 million.
After the examiner's report was issued, all but two of the parties involved in the
case initiated extensive settlement negotiations in order to resolve the case before it was submitted
to the Commission for final disposition on the merits. OPUC and the City of Somerville did not
participate in these negotiations. (2) The parties to the settlement negotiations eventually agreed to
a $30 million rate increase and submitted their proposed resolution of the case to the Commission
in the form of an NUS.
After notice to all parties, on March 20, 1991, the Commission held a hearing on
the NUS submitted by the settling parties. During this hearing, the Commission allowed OPUC
and the City of Somerville to present objections to the NUS. Following this hearing, the
Commission issued a final order, dated March 22, 1991, approving rates consistent with the
NUS. (3) OPUC and the Cities subsequently brought a suit for judicial review pursuant to section
69 of the Public Utility Regulatory Act ("PURA") (4) and the Administrative Procedure Act
("APA"). (5) The district court overruled all of the points of error presented except for those points
attacking the federal income tax expense figure adopted by the Commission. Accordingly, the
district court reversed the Commission's final order and remanded the case to the Commission
with instructions that it recalculate the federal tax expense figure.
DISCUSSION
1. The Non-Unanimous Settlement Stipulation
OPUC's sole point of error and the Cities' seven points of error essentially address
the role of the NUS in the Commission's decision of this cause. The crux of the Cities' position
in their first six points of error is that it is never permissible for the Commission to base its
decision in a rate case, in part, on an NUS. Thus, the Cities argue that the Commission's use of
the NUS in this case was arbitrary and capricious. We disagree. In previous cases we have held
that the Commission may base its final order, in part, on an NUS, provided certain conditions are
met. See City of El Paso v. Public Util. Comm'n, 839 S.W.2d 895, 903 (Tex. App.--Austin 1992,
writ granted); see also Cities of Abilene v. Public Util. Comm'n, 854 S.W.2d 932, 937-40 (Tex.
App.-- Austin 1993, writ requested). Accordingly, we overrule the Cities' first six points of error
to the extent that they contend that a Commission decision based, in part, on an NUS is never
proper.
We will now consider the Cities' final point of error and OPUC's sole point of
error, both of which question the sufficiency of the factual findings issued with the Commission's
final order. OPUC, while recognizing that an NUS is permissible, contends that these findings
of fact are not sufficient to determine whether the use of an NUS in this case complied with the
requirements we set out in City of El Paso. OPUC argues that the Commission's findings of fact
neither explain the basis for the Commission's final order, nor are sufficient to determine whether
the final order is supported by substantial evidence in the record. We agree.
In City of El Paso, we set out two requirements that the Commission must meet in
order to consider an NUS as part of its final order. First, the Commission must afford any non-stipulating party the opportunity to be heard on the merits of the stipulation. City of El Paso, 839
S.W.2d at 903. Second, the Commission must make an independent finding, on the merits, that
the terms of the stipulation are fair, just and reasonable, and are supported by evidence in the
record. Id. This second requirement reflects the rule that an agency's decision, whether or not
based on an NUS, must be supported by substantial evidence. (6) APA § 2001.174(2)(E); see also
Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988), cert. denied,
490 U.S. 1080 (1980). We believe that the Commission complied with the first requirement by
allowing OPUC and the Cities' the opportunity to present arguments against the stipulation during
the May 1991 hearing. However, we do not believe that the findings of fact incorporated in the
Commission's final order are sufficient to determine whether the order is supported by substantial
evidence in the record and, therefore, we conclude that the Commission's final order does not
meet the second requirement of City of El Paso.
Section 2001.141(b) of the APA requires an administrative agency to issue findings
of fact and conclusions of law with every final decision. (7) Although the APA does not delineate
standards for judging the sufficiency of the findings required under section 2001.141(b), effective
judicial review of an agency's decision requires at least a minimal level of factual findings in order
for a reviewing court to determine whether the agency's decision has support in the evidence.
While there is no precise form for an agency's articulation of underlying facts, these findings
should be sufficient to serve the purpose for requiring factual findings, which is to inform the
parties and the courts of the basis for the agency's decision so that the parties may intelligently
prepare an appeal and so that the courts may properly exercise their function of judicial review.
Texas Health Facilities Comm'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 451-52. See
generally John Powers, Judicial Review of the Findings of Fact Made by Texas Administrative
Agencies in Contested Cases, 16 Tex. Tech. L. Rev. 475, 479-83 (1985). The Commission's
factual findings, therefore, should be treated as "more than a technical prerequisite." Charter
Medical-Dallas, 665 S.W.2d at 451.
Furthermore, requiring the Commission to issue sufficient factual findings to allow
for proper judicial review is especially important in cases where the Commission's decision is
based, as in this case, on an NUS. As we recognized in Cities of Abilene, there is a significant
temptation for the Commission to merely adopt an NUS without requiring the utility to meet its
burden of proof. (8) Cities of Abilene, 854 S.W.2d at 938-39. Therefore, in City of El Paso, we
emphasized that when the Commission bases its final decision on an NUS, it must resolve the case
on the merits and make an independent finding that the resolution of the case is "fair, just and
reasonable." City of El Paso, 839 S.W.2d at 903. Otherwise, by merely adopting the terms and
proposed factual findings contained in the NUS without considering the merits of the case, the
Commission would be abdicating its statutory responsibility to decide the controversy. (9) In City
of El Paso, we concluded that the Commission's resolution of the case on the merits was
supported by substantial evidence in the record. In City of El Paso, the Commission held
extensive evidentiary hearings which resulted in the issuance of an examiner's report containing
evidentiary summaries and proposed factual findings. In its final order, the Commission adopted
237 findings of fact consistent with the NUS submitted in that case. The findings of fact set forth
the basis of the Commission's decision. (10) Accordingly, we concluded that the Commission
independently had resolved the case on the merits and that the Commission's resolution was
supported by substantial evidence. City of El Paso, 839 S.W.2d at 903-04.
In the present case, however, we hold that the Commission's final order does not
contain the minimum level of factual findings necessary to determine whether the Commission's
resolution of the case is supported by substantial evidence. (11) The Commission's factual findings
are deficient because they exclude critical underlying variables that allegedly support the
Commission's decision to grant Gulf States a $30 million rate-base increase. (12) This $30 million
figure should be based on an intricate and complex series of underlying calculations and schedules
which, when linked, comprise the analytical basis justifying a rate increase. While we recognize
that a reviewing court may not possess the technical expertise to fully assess the analysis
supporting a rate increase, a reviewing court must at least be provided with basic factual findings
by the Commission to determine whether the rate increase approved by the Commission has
evidentiary support. For example, in the present case, the Commission's findings of fact do not
include the basic rate of return that Gulf States was allowed. (13) Nor do the findings adopted by
the Commission detail the underlying variables used to calculate Gulf States' retail base-rate
electric revenue requirement and the resulting increase in retail base rates. (14) Thus, in contrast to
the findings involved in City of El Paso, the factual findings in this case fail to provide sufficient
factual support for the rate increase approved by the Commission in order to allow a reviewing
court to determine whether the increase has support in the hearing transcripts or the examiner's
report. (15)
Our basic disagreement with the dissenting opinion is its identical treatment of all
settlement agreements, be they unanimous or non-unanimous. To paraphrase one of our great
historical documents--all settlement agreements are not created equal. The dissent argues that once
a utility gets a sole (16) contestant to agree with its position and enters into an NUS, then all of the
contested-case procedures and substantive guarantees of PURA are no longer required. The
dissent states: "Typically the settling parties relinquish, expressly or by necessary implication,
many if not all the procedural formalities and safeguards that are incidental to formal
adjudications." Slip opinion at 9. Query: What about the rights of the nonsettling parties? Do
they forfeit their rights to a contested-case hearing and a fair and just adjudication of the case by
the Commission as a result of some of the contesting parties agreeing to settle? The dissent's view
of things is that once some of the contestants agree to settle, the Commission is no longer required
to even file findings of fact and conclusions of law giving the basis for the Commission's decision.
Further, according to the dissent, the nonsettling parties are left to challenge the NUS solely on
the basis that the Commission somehow abused its discretion in approving the NUS. As a
practical matter, the end result of the dissent's suggested informal procedure emasculates the
rights of the nonsettling parties to challenge by any meaningful procedure the rate increase
provided for in the NUS. Finally, the dissent's suggested informal procedure would virtually
eliminate judicial review of Commission decisions. As we read the dissenting opinion, the
Commission can approve the NUS without the necessity of a hearing and most importantly,
without justifying its decision with the introduction of any evidence supporting the proposed rate
increase. Thus, not only is the Commission relieved of its obligation to justify its decision by the
filing of findings of underlying facts, but also that decision does not even need to be based upon
substantial evidence in the record. This approach violates the precepts this Court set forth in City
of El Paso for Commission approval of an NUS and effectively deprives the nonsettling parties
of all rights before the Commission because of the existence of an NUS entered into by some of
the parties to the dispute. We suggest that the procedure put forward by the dissent is not
workable when the agreement is not unanimous.
Our decision today is not meant to impede or retard the use of settlement
agreements, be they unanimous or non-unanimous, to resolve disputes before the Commission.
On the contrary, we regard the settlement of these complex, expensive, and often time-consuming
cases at the Commission level to be a worthwhile goal. As a consequence, we do not seek to
dictate the particular form that the Commission's findings of fact must take; nor do we prescribe
the particular findings of fact that are necessary to uphold the Commission's order. See Goeke
v. Houston Lighting & Power Co., 797 S.W.2d 12, 15 (Tex. 1990); State Banking Bd. v. Allied
Bank Marble Falls, 748 S.W.2d 447, 448-49 (Tex. 1988).
In Goeke, the Commission denied the application by Houston Lighting and Power
Company ("HL&P") to amend its certificate of convenience and necessity in order to construct
new high voltage transmission lines. The Commission's decision turned on its conclusion that
HL&P had failed to prove that the need for the new lines outweighed the detrimental impact of
the project. The supreme court ruled that the Commission's final order contained findings of fact
sufficient to allow a reviewing court to conduct a proper review of the Commission's decision.
Goeke, 797 S.W.2d at 14. In its decision, the court cited specific factual findings which, it
concluded, supported the Commission's finding that HL&P had failed to meet its burden of proof.
Id.
In the present case, however, the Commission's abbreviated findings of fact do not
include the elements necessary to review the Commission's decision, since the key variables and
assumptions supporting this decision are missing. We conclude, therefore, that the factual
findings supporting the Commission's final order in the present case were insufficient to permit
proper judicial review of the Commission's final order, especially since the final order was based,
in part, on an NUS. Accordingly, we sustain OPUC's sole point of error and the Cities' seventh
and final point of error.
2. Federal Income Tax Expense Calculations
Gulf States and the Commission assert two points of error contending that the
district court erred in holding that the Commission improperly calculated Gulf States' federal
income tax expenses. The district court concluded that the Commission's calculation of Gulf
States' federal income tax expenses excluded tax deductions that the utility received on capital
expenditures that the Commission had previously disallowed on a showing that Gulf States had
not proven their prudence. (17) Applying the "actual taxes paid doctrine" articulated in Public Utility
Commission v. Houston Lighting & Power Co., 748 S.W.2d 439 (Tex. 1987) and Public Utility
Commission v. GTE-SW, 833 S.W.2d 153 (Tex. App.--Austin 1992, writ granted), the district
court ruled that these deductions must be used to reduce Gulf States' federal income tax expense
for rate-making purposes. According to the actual taxes paid doctrine, a utility is entitled to rates
"based only on the tax expense that had been actually incurred." Houston Lighting & Power, 748
S.W.2d at 442. Thus, any tax savings that a utility receives must be included in its federal income
tax expense calculations for rate-making purposes, even when the tax savings arises from
disallowed expenses. Gulf States and the Commission attempt to distinguish these prior cases by
arguing that the disallowed expenses in those cases involved non-capital expenses while in the
present case the disallowed expenses are capital expenses. Accordingly, Gulf States and the
Commission contend that deductions for disallowed capital expenses should not be subject to the
actual taxes paid doctrine. We disagree.
The underlying principle guiding the supreme court in Houston Lighting & Power
was that tax savings actually enjoyed by the utility "should inure to the benefit of the ratepayers."
748 S.W.2d at 422. Consequently, a utility's federal income tax expenses for rate-making
purposes should take into account tax savings on all deductible expenses, whether the Commission
allows or disallows those expenses. GTE-SW, 833 S.W.2d at 169. We believe that this principle
reflects a policy judgment that the ratepayers should not be required to pay for disallowed
expenses, either directly or indirectly. Section 41(c)(3) of PURA provides that the Commission
should not consider disallowed expenses in assessing a utility's revenue requirement. (18) However,
if disallowed but deductible expenses are not considered in calculating a utility's federal income
tax expense for rate-making purposes, the ratepayers will indirectly incur a percentage of those
disallowed expenses equal to the utility's federal income tax rate.
Gulf States and the Commission contend that subjecting disallowed capital expenses
to the actual taxes paid doctrine would violate the "normalization" requirement of the Internal
Revenue Code. The Internal Revenue Code allows a utility to depreciate its capital assets on an
accelerated basis while calculating its income tax expenses for rate-making purposes on a straight-line basis. Consequently, in the initial period that the utility depreciates an asset, ratepayers will
pay a higher level of income tax expenses than the utility actually pays. In later periods, however,
the income tax expenses calculated for rate-making purposes will be less than those actually paid.
Thus, normalization is a process for allocating the burdens and benefits of federal taxes and
deductions over the life of the asset. (19) Gulf States and the Commission contend that requiring
them to pass the tax savings of disallowed capital expenses to ratepayers would violate
normalization requirements and prevent the utility from depreciating its capital assets on an
accelerated basis. We disagree with this argument.
In GTE-SW, we rejected GTE's contention that the actual taxes paid doctrine would
violate normalization requirements. 833 S.W.2d at 166-67. Normalization concerns the
allocation of tax savings from allowable expenses. Under normalization, the ratepayers never pay
more income tax expenses than those tax expenses actually incurred by the utility over time.
Income tax expenses higher than those actually incurred by the utility during the early life of an
asset are eventually offset in later periods by income tax expenses that are lower than those
actually paid. Id. This spreading of allowable expenses, however, is far different than calculating
tax expenses for rate-making purposes by pretending that the disallowed expenses are not going
to be deducted from the actual federal taxes paid by the utility. As a consequence, we see no
reason in the present case to depart from our conclusion in GTE-SW that the actual taxes paid
doctrine does not violate normalization requirements, even if the tax savings at issue arise from
disallowed capital, as opposed to non-capital, expenditures. Accordingly, we overrule all of Gulf
States' and the Commission's points of error.
CONCLUSION
We affirm that part of the district court's judgment remanding the case to the
Commission on the federal income tax questions, but reverse the district court's affirmance of the
Commission's order adopting the NUS, and render judgment that that portion of the Commission
order be reversed and the cause remanded to the Commission generally for action consistent with
this opinion.
Mack Kidd, Justice
Before Justices Powers, Kidd and B. A. Smith
Affirmed in Part; Reversed and Rendered in Part
Filed: November 3, 1993
Publish
1. This hearing encompassed 51 days of testimony between September 5, 1989, and
December 18, 1990.
2. The City of New Waverly participated in the settlement negotiations, but withdrew
its support for the settlement proposal after the Commission issued its initial final order
on March 22, 1991.
3. Following motions for rehearing, the Commission issued a second final order, dated
May 2, 1991, which did not significantly depart from the substance of the first order.
4. Tex. Rev. Civ. Stat. Ann. art. 1446c (West Supp. 1993).
5. The Administrative Procedure and Texas Register Act is nonsubstantively codified
in the Government Code and renamed the Administrative Procedure Act. Act of May 4,
1993, 73d Leg., R.S., ch. 268, sec. 1, §§ 2001.001-.902, 1993 Tex. Sess. Law Serv. 587,
737-54 (to be codified as Administrative Procedure Act, Tex. Gov't Code Ann. §
2001.001-.902) (effective Sept. 1, 1993).
6. The requirement that there be evidentiary support for the Commission's decision is
equally applicable in the case of an NUS because the Commission's resolution of the case
must be on the merits. "[E]ven if there is a lack of unanimity [in the stipulation], it may
be adopted as a resolution on the merits." Placid Oil Co. v. FPC, 483 F.2d 880, 893 (5th
Cir. 1973) (emphasis in original).
7. The relevant text of APA § 2001.141(b) states, "A decision that may become final
under Section 2001.144 must include findings of fact and conclusions of law, separately
stated." A.P.A. § 2001.141(b).
8. 8 Cities of Abilene addressed the concern that the adoption of an NUS might raise a due-process problem by unintentionally shifting the burden of proof from the utility to the
opponents of the NUS. Cities of Abilene, 854 S.W.2d at 938-39.
9. 9 The text of PURA states: "It shall be the duty of the regulatory authority to insure that
every rate made, demanded, or received by any public utility, or by any two or more public
utilities jointly, shall be just and reasonable." PURA § 38.
10. The Commission's factual findings also included references to attached schedules
detailing the underlying variables supporting the rate-base increase approved by the
Commission.
11. The examiner's report issued in this case contained 234 findings of fact. The
Commission's final order adopted 72 findings of fact.
12. In its final order the Commission declared that it was "not endorsing or approving
any ratemaking principle or method underlying the [NUS] Joint Recommendation."
13. The rate of return, when multiplied by a utility's total invested capital, yields the
return that the utility is allowed on its assets. This variable is added to operating costs,
tax costs and other expenses to calculate the utility's revenue requirement, which is a
critical factor in determining the amount of the rate-base increase.
14. The Commission's finding of fact number 10 states:
The Commission finds rates consistent with the [NUS] filed on March 20,
1991, to be reasonable and in the public interest and that the reasonable
and necessary Texas retail base rate electric revenue requirement of Gulf
States is $449,546,125. This revenue requirement represents a $30 million
increase in Texas retail base rates.
15. The Commission's final order did not include schedules or other calculations
supporting the $30 million rate-base increase.
16. It is true that in this case the vast majority of contesting parties agreed to the NUS.
However, the rule contended for by the dissent makes no distinction whether a minority or
majority of the contestants agree to settle. Furthermore, it is noteworthy that one of the
nonsettling parties was OPUC whose public duty is to represent residential and small
commercial ratepayers before the Commission. The dissent continually refers to this NUS as
an "agreed settlement" between the essential parties to the case. Surely, the dissent does not
suggest that OPUC's presence is non-essential or irrelevant to the disposition of this contested-case.
17. These disallowed expenses arose from the utility's River Bend Nuclear Plant
project. In an earlier rate case, the Commission concluded that Gulf States had not met
its burden of proving that $1.4 billion of the project's costs were prudent and,
consequently, disallowed those expenditures for rate-making purposes. See Coalition of
Cities for Affordable Util. Rates v. Public Util. Comm'n, 798 S.W.2d 560 (Tex. 1990).
18. PURA § 41(c)(3).
19. See generally Elizabeth Warren, Tax Accounting in Regulated Industries: Limitations on
Rate Base Exclusions, 31 Rutgers L. Rev. 187, 187-94 (1978). | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2858128/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-191-CR
EX PARTE: GERALD BERNARD MACK,
APPELLANT
NO. 3-93-192-CR
GERALD MACK,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY
NO. 37,198, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING
Appellant Gerald Bernard Mack appeals his misdemeanor conviction for resisting
arrest. On August 27, 1992, appellant waived trial by jury and entered a guilty plea to the
information before the court. As part of a plea bargain, the trial court assessed appellant's
punishment at one year's confinement in the county jail and a fine of three hundred and fifty
dollars. The imposition of the sentence was suspended and appellant was placed on probation,
subject to certain conditions. On February 25, 1993, after a hearing, the trial court revoked
appellant's probation, finding that appellant had violated his probationary conditions by
committing the offense of theft, by failing to pay his monthly fine payment, and by failing to
complete "anger counseling" as ordered by the court. The formal judgment was entered on March
12, 1993.
Thereafter, appellant filed an application for writ of habeas corpus. (1) The trial court
issued the writ, but, after a hearing, denied relief on April 1, 1993. On that same date, appellant
gave notice of appeal from the denial of relief in the habeas corpus proceedings, and also gave
timely notice of appeal from "Final Conviction for Resisting Arrest."
Appellant has raised the same point of error in both appeals. He contends that
"there is insufficient evidence in the record to show that the defendant was made aware of the
dangers and disadvantages of self-representation, and to show that the defendant was offered
counsel but intelligently and understandingly rejected the offer." Because the same point of error
is advanced as the only contention in both appeals, they are consolidated for the purposes of
appeal.
The point of error is multifarious. It complains of the failure of the record to (1)
show that appellant was advised of the dangers and disadvantages of self-representation and (2)
show that he validly waived the right to counsel in this misdemeanor case. By combining more
than one contention in a single point of error, an appellant risks rejection on the ground that
nothing is preserved for review. Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990),
cert. denied, 111 S. Ct. 2816 (1991); Kelley v. State, 817 S.W.2d 168, 172 (Tex. App.--Austin
1991, pet. ref'd). The right to self-representation does not arise from the defendant's power to
waive the assistance of counsel but, rather, arises independently from the Sixth Amendment right
to defend. Johnson v. State, 766 S.W.2d 277, 278 (Tex. Crim. App. 1988).
We will, however, address the contentions. See Sterling, 800 S.W.2d at 521. In
his brief on appeal, appellant urges that he is appealing his "original conviction." He did not,
however, timely appeal when he was placed on probation, as he had a right to do. Tex. Code
Crim. Proc. Ann. art. 42.12, § 26(b) (West Supp. 1993). He has waived that right. Appellant
waited until his probation was revoked before he gave notice of appeal. Of course, he had the
right to appeal from the order revoking probation, which is an appealable order. Id. While the
appeal was given from the "final conviction," we do not deem the notice insufficient under Rule
40(b)(1). Tex. R. App. P. 40(b)(1). The notice was given within thirty days after the appealable
order of revocation was signed by the trial court. Tex. R. App. P. 41(b)(1).
Generally, an appeal from an order revoking probation is limited to the propriety
of the revocation order and does not include a review of the original conviction. Trcka v. State,
744 S.W.2d 677, 680 (Tex. App.--Austin 1988, pet. ref'd); see also Burns v. State, 832 S.W.2d
695, 696 (Tex.App.--Corpus Christi 1992, no pet.). Normally, the only issue on appeal is whether
the trial court abused its discretion in revoking a defendant's probation. Lloyd v. State, 574
S.W.2d 159, 160 (Tex. Crim. App. 1978). Thus, failure to appeal from a conviction resulting
in probation waives the right to appeal, and any error in the trial court may not later be raised on
appeal from an order revoking probation. Sanders v. State, 657 S.W.2d 817, 819 (Tex.
App.--Houston [1st Dist.] 1983, no pet.). An exception exists, and the original conviction may
be collaterally attacked on appeal from a revocation of probation order if fundamental or
jurisdictional error was committed, or if the complaint is one that may be validly raised by habeas
corpus proceedings. Dinnery v. State, 592 S.W.2d 343, 350 (Tex. Crim. App. 1980); Traylor
v. State, 561 S.W.2d 492, 494 (Tex. Crim. App. 1978); Huggins v. State, 544 S.W.2d 147, 148
(Tex. Crim. App. 1976); Ramirez v. State, 486 S.W.2d 373, 374 (Tex. Crim. App. 1972); Evans
v. State, 690 S.W.2d 112, 115 (Tex. App.--El Paso 1985, pet. ref'd).
Appellant has not raised any contention that the trial court abused its discretion in
revoking probation. In view of the collateral attack, we shall consider the point of error relating
to the constitutional right to counsel and the independent constitutional right of self-representation
which may be validly raised by habeas corpus proceedings. See Ex parte Howard, 591 S.W.2d
906 (Tex. Crim. App. 1979). This is an exception to the general rule.
The judgment entered at the time probation was granted reflects that appellant
waived his right to counsel at the time he entered his guilty plea. There is a presumption of
regularity of a judgment of conviction and the proceedings, absent a showing to the contrary. Ex
parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986); Thompson v. State, 641 S.W.2d
920, 921 (Tex. Crim. App. 1982); see also Vega v. State, 707 S.W.2d 557, 559 (Tex. Crim.
App. 1986). In this collateral attack, the burden is on the appellant to overcome the presumption.
Wilson, 716 S.W.2d at 956; Carr v. State, 745 S.W.2d 51, 52 (Tex. App. --Houston [1st Dist.]
1987, no pet.)
There is also a written waiver of counsel in the record. The waiver, inter alia,
reflects that appellant understood his right to be represented by an attorney and to have an attorney
appointed to represent him if he could not afford an attorney; and that he desired to waive the
right to counsel and did waive his right to be represented by an attorney or to have appointed
counsel if he could not afford one. The waiver as to the right to counsel was in substantial
compliance with the suggested form set forth in the statute. Tex. Code Crim. Proc. Ann. art.
1.051(g) (West Supp. 1993). The foregoing statute is, of course, not mandatory. Burgess v.
State, 816 S.W.2d 424, 431 (Tex. Crim. App. 1991). Although a waiver of the right to counsel
will not be presumed from a silent record, Carnley v. Cochran, 369 U.S. 506, 516 (1962); Parker
v. State, 545 S.W.2d 151, 155 (Tex. Crim. App. 1977), the waiver of such constitutional right
need not be in writing to be effective. Burgess, 816 S.W.2d at 430; Gallegos v. State, 425
S.W.2d 648, 650 (Tex. Crim. App. 1968). Appellant also waived, in writing, his right to have
his guilty-plea proceedings recorded. Any colloquy at the bench or statement of fact during such
proceedings pertaining to waivers is not in the record. Moreover, if appellant raised the
contentions he now advances on appeal at the revocation of probation hearing, when he was
represented by counsel, he has not brought that record forward. See Tex. R. App. P. 50(d)
(burden is on party seeking review to see that a sufficient record is presented to show error
requiring reversal). The testimony of the assistant criminal district attorney who prosecuted the
case and who also signed the multipurpose waiver form (2) is in the appellate record. He explained
the use of the waiver form in question. The prosecutor detailed how an explanation is made to
each defendant of his right to counsel, his right to a jury trial, the right of confrontation of
witnesses, etc.; that thereafter each defendant is asked if he has any questions and if he
understands the rights explained; and that if the defendant agrees that he understands his rights
and that he is freely and voluntarily waiving those rights, he is then asked to sign the waiver form.
The prosecutor identified his signature on the waiver form filed in appellant's cause. We conclude
that the record is sufficient to show that the twenty-one-year-old appellant intelligently and
understandingly waived the right to counsel at the time of his guilty plea.
We turn now to appellant's claim that there is insufficient evidence in the record
to show that he was made aware of the dangers and disadvantages of self-representation. Faretta
v. California, 422 U.S. 806 (1975), held that the Sixth Amendment, as made applicable to the
states by the Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an
independent constitutional right of self-representation and that he may proceed to defend himself
when he voluntarily and intelligently elects to do so. If a defendant asserts his right to self-representation, he should be made aware of the dangers and disadvantages of self-representation
so that the record will establish that he knows what he is doing and his choice is made with his
eyes open. Id. at 835.
Citing Faretta, the Court of Criminal Appeals recently held that "prior to any act
of self-representation by a defendant," the record should reflect that the defendant was admonished
as to the dangers and disadvantages of self-representation. Goffney v. State, 843 S.W.2d 583, 585
(Tex. Crim. App. 1992). In Goffney, the defendant pleaded not guilty to both charges and
defended himself in a jury trial. Both misdemeanor convictions were reversed because the
admonishments did not meet the requirements of Faretta.
In Johnson v. State, 614 S.W.2d 116 (Tex. Crim. App. 1981) (op. on rehearing),
the Court of Criminal Appeals held that an admonishment as to the dangers and disadvantages of
self-representation need only be given in cases in which the defendant's guilt is contested. The
Johnson court found that when the defendant appears in court and confesses his guilt, "the issue
is not whether the trial court admonished the accused of the dangers and disadvantages of self-representation but, rather, whether there was a knowing, voluntary, and intelligent waiver of
counsel." Id. at 120; see also Cooper v. State, 854 S.W.2d 303, 304 (Tex. App.--Austin 1993,
no pet.).
It is undisputed in the instant case that appellant entered a plea of guilty to the
misdemeanor charge, waived trial by jury, and received probation as part of a plea bargain. By
entering a plea of guilty in a misdemeanor case, a defendant admits every element of the offense
charged and the trial court is not required to hear evidence. Brown v. State, 507 S.W.2d 235, 238
(Tex. Crim. App. 1974); see also Tex. Code Crim. Proc. Ann. art. 27.14(a) (West 1989).
Appellant makes no claim that he asserted his independent right to defend or his right to self-representation, and so informed the trial court. Faretta recognized the independent Sixth
Amendment right of an accused to conduct his own defense without participation "so long as he
unequivocally asserts his right to do so." Burgess, 816 S.W.2d at 430 (emphasis added). Goffney
was a later case than Johnson, but is distinguishable because Goffney involved a contested jury
trial and Johnson concerned a plea of guilty. We do not find that Goffney overruled Johnson,
expressly or otherwise. In Cooper, this Court stated: "We must assume that Johnson is good
law, and that a misdemeanor defendant who appears without counsel to confess his guilt need not
be admonished of the disadvantages of self-representation." Id. at 304.
We find no merit to appellant's argument that his conviction should be reversed
because the record is insufficient to show that he was made aware of the dangers and
disadvantages of self-representation. The admonishments were not required under the
circumstances. The point of error is overruled.
Appellant raises the same contentions in his appeal from the order denying habeas
corpus relief. Habeas corpus will not normally lie as a substitute for an appeal. Ex parte Clore,
690 S.W.2d 899, 900 (Tex. Crim. App. 1985); Ex parte McGowen, 645 S.W.2d 286, 288 (Tex.
Crim. App. 1983); Ex parte Gonzales, 667 S.W.2d 932, 935 (Tex. App.--Austin 1984, pet. ref'd).
The purpose of habeas corpus is to determine the lawfulness of confinement. It is not a substitute
for an appeal. Ex parte Groves, 571 S.W.2d 888, 890 (Tex. Crim. App. 1978).
The order revoking probation is affirmed. The appeal from the habeas corpus order
is dismissed.
John F. Onion, Jr., Justice
Before Justices Jones, B. A. Smith and Onion*
No. 3-93-191-CR--Dismissed
No. 3-93-192-CR--Affirmed
Filed: November 24, 1993
Do Not Publish
* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
1. The habeas corpus proceedings were filed under the same trial court number as the
resisting arrest charge. Habeas corpus proceedings are separate and distinct proceedings
from the criminal charge and should be given different cause numbers in the trial court.
2. The waiver form also involved the waiver of the right to a jury trial and the prosecutor
consented to such waiver. As to the requirement of a written waiver of trial by jury in a
misdemeanor case, see Tex. Code Crim. Proc. Ann. art. 1.13 (West Supp. 1993); State ex rel
Curry v. Carr, 847 S.W.2d 561, 562 (Tex. Crim. App. 1993); Josey v. State, 857 S.W.2d 815
(Tex. App.--Houston [14th Dist.] 1993, no pet.). | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2858086/ | southwest airlines v. tgv
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-151-CV
SOUTHWEST AIRLINES CO.,
APPELLANT
vs.
TEXAS HIGH-SPEED RAIL AUTHORITY AND TEXAS TGV CONSORTIUM,
APPELLEES
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. 91-11148, HONORABLE PETER M. LOWRY, JUDGE PRESIDING
Appellant Southwest Airlines Co. ("Southwest") appeals from an order of the
district court of Travis County dismissing for lack of jurisdiction Southwest's suit for judicial
review of an order of appellee Texas High-Speed Rail Authority ("the Authority"). We will
affirm the order of dismissal of the district court.
In 1989, the Legislature established the Authority (1) "to award a franchise to the
private sector to construct, operate, and maintain a high-speed rail facility, if the authority
determines that the award of a franchise is for the public convenience and necessity." Texas
High-Speed Rail Act, Tex. Rev. Civ. Stat. Ann. art. 6674v.2, § 2(b) (West Supp. 1993).
Appellee Texas TGV Consortium ("Texas TGV") and Texas FasTrac, Inc., (2) filed applications for
a franchise to construct and operate a high-speed rail system. See Act, § 23.
The Authority granted Southwest party status to intervene in the proceeding before
the agency as a person with a justiciable interest. See Administrative Procedure and Texas
Register Act ("APTRA"), Tex. Rev. Civ. Stat. Ann. art. 6252-13a, § 3(5), (6) (West Supp.
1993); 43 Tex. Admin. Code § 85.301--.302 (1993). After a hearing, the Authority, on May 28,
1991, issued its written order awarding the franchise to Texas TGV. Southwest timely filed a
motion for rehearing in the agency, which was overruled by operation of law. See APTRA §
16(e); 43 Tex. Admin. Code § 85.804 (1993). On August 9, 1991, Southwest filed a petition for
judicial review of the agency order in the district court of Travis County.
The Authority answered and filed a plea to the jurisdiction and a plea in abatement;
Texas TGV filed its petition in intervention asserting similar pleas. By their pleas to the
jurisdiction, appellees asserted that the district court was without jurisdiction because the Act does
not provide for judicial review of Authority decisions and Southwest has no inherent right to
review of the order. Appellees further asserted that Southwest had no standing to complain of the
agency decision. After a hearing, the district court concluded that it was without jurisdiction and
that Southwest had no standing and dismissed the cause. Southwest has perfected its appeal (3) to
this Court from the order of dismissal.
In its second point of error, Southwest argues that the district court erred in
dismissing the cause for want of jurisdiction. Southwest submits that the district court has
jurisdiction on either of two bases: (1) section 19 of APTRA provides for judicial review of the
Authority order or (2) Southwest has a right to judicial review, apart from any statutory authority,
because it has a property right that the Authority's order affects. The Act itself does not provide
for judicial review of Authority orders, rulings, or decisions.
No right of judicial review from an administrative order exists unless a statute
provides for review or unless the order violates a constitutional right or adversely affects a
constitutional property right. Stone v. Texas Liquor Control Bd., 417 S.W.2d 385, 385-86 (Tex.
1967); Motorola, Inc. v. Bullock, 586 S.W.2d 706, 708 (Tex. Civ. App.--Austin 1979, no writ);
see Pickell v. Brooks, 846 S.W.2d 421, 425 (Tex. App.--Austin 1992, writ requested); Lopez v.
Public Util. Comm'n, 816 S.W.2d 776, 783 (Tex. App.--Austin 1991, writ denied). Southwest
asserts that section 19(a) provides a right to judicial review of the Authority order: "A person
who has exhausted all administrative remedies available within the agency and who is aggrieved
by a final decision in a contested case is entitled to judicial review under this Act [APTRA]. This
section is cumulative of other means of redress provided by statute." APTRA § 19(a). (4)
In Motorola, Inc., however, this Court concluded that section 19 of APTRA is a
procedural provision that does not extend or limit the jurisdiction of the courts. Motorola, Inc.,
586 S.W.2d at 708; see Dan Ingle, Inc. v. Bullock, 578 S.W.2d 193, 193-94 (Tex. Civ.
App.--Austin 1979, writ ref'd). Section 19, therefore, does not create a right of judicial review
but instead sets out the procedure for a suit for judicial review authorized pursuant to another
statutory provision. See Texas Catastrophe Property Ins. Ass'n v. Council of Co-Owners of Saida
II Towers Condominium Ass'n, 706 S.W.2d 644, 646 (Tex. 1986) (APTRA procedure for
institution of administrative appeal controls unless statute provides otherwise); Bullock v. Adickes,
593 S.W.2d 805, 808 (Tex. Civ. App.--Austin 1980, writ ref'd n.r.e.) (APTRA provides
procedural basis for review of agency action). But see Moore v. Texas Employment Comm'n, 565
S.W.2d 246, 247 (Tex. Civ. App.--Houston [14th Dist.] 1978, no writ) (APTRA allows judicial
review of action for which workers' compensation statute does not). (5)
Southwest next argues that the Authority's order adversely affects a vested property
right of Southwest. Although Southwest does not explicitly state the argument in due process
terms, we presume Southwest bases its argument on a Fourteenth Amendment due-process
analysis. This analysis begins with a determination whether the state's deprivation of a personal
interest warrants procedural due-process protection. The interest may be either a "core" interest,
such as a liberty or vested property right, or an interest that stems from an independent source,
such as state law. See Board of Regents v. Roth, 408 U.S. 564, 577 (1972); Perry v. Sinderman,
408 U.S. 593, 601 (1972); Pickell, 846 S.W.2d at 426.
Southwest asserts that a "core" interest, a vested property right, gives it a right to
judicial review of the agency order. We understand Southwest to base its argument on two
premises: the existence of a certificate from the Civil Aeronautics Board ("CAB") and a right to
protection from illegal competition.
In its motion for intervention in the agency proceedings, Southwest stated that it
provides air transportation between the cities of Dallas, Houston, San Antonio, and Austin
pursuant to a CAB certificate. See 49 U.S.C. app. § 1371 (1988). Pursuant to 49 U.S.C. app.
§ 1551 (1988), the CAB's route authority ceased to exist effective December 1, 1981. On the
record before this Court, (6) we cannot conclude that the CAB certificate creates a vested property
right on which to base a suit for judicial review. See generally White Top Cab Co. v. City of
Houston, 440 S.W.2d 732, 734-35 (Tex. Civ. App.--Houston [14th Dist.] 1969, no writ).
Southwest next asserts that it may protect its business from "illegal competition."
Southwest claims that the Authority awarded the franchise in violation of law and, therefore, any
competition pursuant to the franchise is unlawful. The right to be free from such competition is
the vested property right on which the airline presumably bases its right to judicial review.
Southwest relies primarily on three cases to support this proposition. See
Brazosport Sav. & Loan Ass'n, 342 S.W.2d at 750; Board of Ins. Comm'rs v. Title Ins. Ass'n,
272 S.W.2d 95, 98 (Tex. 1954); Texas Motor Coaches, Inc. v. Railroad Comm'n, 41 S.W.2d
1074, 1077-78 (Tex. Civ. App.--Austin 1931, no writ). In each of these cases, however, the
interest to be protected was not a general right to be free from illegal competition, but rather a
right or interest that arose from a permit or license granted by or regulation by the agency that
issued the challenged order. To the extent that the cases are correct under current due-process
analysis, a party may seek judicial review, apart from any statutory authority, to protect that right
or interest from illegal competition arising because of agency action. See Pickell, 846 S.W.2d
at 425.
In contrast, Southwest has not shown this Court that it possesses a vested property
right which it may protect from unlawful competition. Southwest does not hold a franchise from
the Authority and does not assert that the Authority regulates any business of Southwest. We note
that the Authority granted Southwest party status in the agency and that Southwest participated
in the agency hearing. For the foregoing reasons, we overrule point of error two.
In point of error three, Southwest asserts that the trial court erred in its
determination that the airline did not have standing to pursue the suit for judicial review. Because
we have determined that the trial court did not have jurisdiction over the cause, we do not address
point of error three.
In point of error one, Southwest asserts that the trial court erred in failing to file
findings of fact and conclusions of law. Southwest timely filed a request for findings of fact and
conclusions of law and a notice of past due findings of fact and conclusions of law. Tex. R. Civ.
P. 296, 297. Generally, the failure to file findings of fact and conclusions of law is error.
Anzaldua v. Anzaldua, 742 S.W.2d 782, 783 (Tex. App.--Corpus Christi 1987, writ denied); see
Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). The failure is presumed
harmful unless the record "affirmatively shows that the complaining party has suffered no injury."
Cherne Indus., Inc., 763 S.W.2d at 772; Wagner v. Riske, 178 S.W.2d 117, 120 (Tex. 1944).
We conclude that the record here affirmatively shows that Southwest did not suffer
any injury from the failure to file findings of fact and conclusions of law. The only evidence
admitted at the hearing in the trial court was the agency record. The district court stated its
conclusions on jurisdiction and standing in the order of dismissal. Nevertheless, Southwest states,
in its brief, that it "has been unable to identify the specific bases of the trial court's reasoning in
dismissing" the case. After consideration of the points of error, we disagree and overrule
Southwest's first point of error.
The order of dismissal of the district court is affirmed.
Marilyn Aboussie, Justice
[Before Justices Powers, Aboussie and B. A. Smith]
Affirmed
Filed: June 9, 1993
[Publish]
1. The Railroad Commission acts as the Authority to exercise the powers conferred under the
Act. Texas High-Speed Rail Act, Tex. Rev. Civ. Stat. Ann. art. 6674v.2, § 3 (West Supp. 1993).
2. Texas FasTrac, Inc. did not seek judicial review of the agency order and is not a party in
this Court.
3. The perfecting instrument included in the transcript is a certificate of cash deposit in lieu
of supersedeas bond. The certificate neither states that the deposit is conditioned as required nor
refers to the costs of the appeal. See Tex. R. App. P. 46, 48. We presume that the cash deposit
is sufficient to secure the costs of appeal and, therefore, that the cash deposit in lieu of
supersedeas bond perfected the appeal. Tex. R. App. P. 47(a).
4. Section 6A of the Act now provides that APTRA applies to all proceedings under the Act.
Act § 6A. This provision became effective September 1, 1991, after the conclusion of the
proceeding in the agency. Act of August 26, 1991, 72d Leg., 1st C.S., ch. 7, § 4.21(a), 1991
Tex. Gen. Laws 226, 256.
5. Underlying a legislative authorization of the right to judicial review is the doctrine of
governmental immunity: the state as sovereign cannot be sued without its permission. E.g.,
Hosner v. De Young, 1 Tex. 764, 769 (1847); Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d
589, 592 (Tex. App.--Austin 1991, writ denied). The doctrine bars suits against the state unless
the state has expressly given its consent to be sued. E.g., Missouri Pac. R.R. v. Brownsville
Navigation Dist., 453 S.W.2d 812, 814 (Tex. 1970); Pickell, 846 S.W.2d at 424. A suit against
an agency of the state is considered to be a suit against the state. Lowe v. Texas Tech Univ., 540
S.W.2d 297, 298 (Tex. 1976).
6. The transcript filed in this cause does not include Southwest's answer, if any, to the pleas
to the jurisdiction. The docket sheet indicates that Southwest filed a brief on the jurisdictional
question; however, trial briefs are not properly part of the record on appeal. See Tex. R. Civ.
P. 376a app. para (a); Concrete Constr. Supply, Inc. v. M.F.C., Inc., 636 S.W.2d 475, 483-84
(Tex. App.--Dallas 1982, no writ). The statement of facts filed in this Court includes the argument
of counsel before the trial court. There, Southwest did not expressly argue that the CAB
certificate was a basis for an inherent right to judicial review. Furthermore, Southwest's original
petition includes few, if any, allegations as to its jurisdictional claims. See Lopez, 816 S.W.2d
at 783; Alford v. City of Dallas, 738 S.W.2d 312, 314 (Tex. App.--Dallas 1987, no writ). | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1561480/ | 129 Pa. Commonwealth Ct. 440 (1989)
565 A.2d 1257
Raymond AYERS, Petitioner,
v.
COMMONWEALTH of Pennsylvania, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
Commonwealth Court of Pennsylvania.
Submitted on Briefs September 22, 1989.
Decided November 16, 1989.
*441 Thomas S. McCready, Lansford, for petitioner.
Arthur R. Thomas, Asst. Chief Counsel, with him, Robert A. Greevy, Chief Counsel, Harrisburg, for respondent.
Before DOYLE and McGINLEY, JJ., and BARBIERI, Senior Judge.
BARBIERI, Senior Judge.
We are presented with a petition by Raymond Ayers (Petitioner) for review of an order of the Pennsylvania Board of Probation and Parole (Board), dated April 25, 1989, denying his request for reconsideration of an earlier order of the Board, dated August 25, 1987, directing that Petitioner be recommitted to serve 48 months backtime as a technical and convicted parole violator. Having reviewed the record in this matter, we find that the Board was without jurisdiction to entertain his request for reconsideration. Accordingly, we affirm the Board's order denying Petitioner's request for reconsideration.
In July of 1986, while on parole from his conviction for involuntary deviate sexual intercourse, Petitioner was convicted on charges of simple assault and reckless endangerment. A parole revocation hearing held in September of 1986 resulted in a finding that Petitioner was a technical and convicted parole violator. The Board ordered that Petitioner serve 3 months backtime for a technical violation of a general condition of parole requiring him to notify the parole supervision staff within 72 hours of an arrest,[1] and 33 months backtime as a convicted parole violator on charges of simple assault and reckless endangerment.[2]
*442 Petitioner's request for administrative relief was denied by the Board, and a petition for review was filed with this Court. While this petition for review was pending, the Board filed a motion with this Court for remand of the case on grounds that its tape recording of the September 1986 hearing was defective, thus preventing the Board from providing a complete hearing transcript. The Board asserted that its decision could not meaningfully be reviewed without a hearing transcript. We responded by issuing an order, on April 28, 1987, remanding the case to the Board for a new hearing and a new determination.
On July 15, 1987, a new hearing was held by the Board and Petitioner was found to have committed the same parole violations as were found in the previous hearing. However, Petitioner's recommitment period was set at 6 months for the technical violation and 42 months for the criminal conviction, making an aggregate recommitment period of 48 months backtime. This was an increase of 12 months from the Board's initial recommitment order.
Petitioner requested administrative relief in a letter to the Board dated October 15, 1987. This request was granted in part and denied in part in a response dated October 26, 1987.[3] No petition for review of the October 26, 1987 action was ever filed with this Court. However, approximately 18 months later, on April 6, 1989, Petitioner filed a pro se petition for reconsideration with the Board. This petition was denied by the Board in a response dated April 25, 1989. We were then presented with this pro se petition for review[4].
Petitioner sought to present three issues for our review: (1) an allegation of ineffective assistance of counsel; (2) an allegation that he had been placed in double jeopardy; and *443 (3) an allegation that his due process rights had been violated. This Court granted a motion filed by the Board to limit our review to the issue of whether the Board abused its discretion in denying Petitioner's request, made in April of 1989, for reconsideration of its order of October 26, 1987.
Under the provisions of 37 Pa.Code § 73.1, a petition for administrative review of a board determination relating to revocation decisions is to be received within 30 days of the mailing date of the determination. In this case, Petitioner's request for reconsideration, filed in April 1989, is well beyond the 30 day period within which a request for administrative review is to be made, and comes approximately 18 months after the Board's last action in this matter. Because Petitioner did not file his request for reconsideration of the Board's October 26, 1987 order until April of 1989 it was untimely, and since the timeliness of an appeal is jurisdictional, the Board was without authority to consider it. Ziev v. Department of Public Welfare, 120 Pa.Commonwealth Ct. 439, 548 A.2d 701 (1988).
By the terms of our earlier order, our review of this matter is limited to determining if the Board abused its discretion in denying Petitioner's request for reconsideration. We have found that his request for reconsideration was untimely made, thereby depriving the Board of jurisdiction to consider it. Having so determined, we need not address the merits of any further issues which Petitioner has attempted to present in his pro se petition for review to this Court or his counseled brief.
The order of the Board, denying Petitioner's petition for reconsideration, is affirmed.
ORDER
NOW, November 16, 1989, the order of the Board, denying Petitioner's request for reconsideration, is affirmed.
NOTES
[1] 37 Pa.Code § 63.4(3)(ii)(A).
[2] 37 Pa.Code § 75.2.
[3] While the record is somewhat unclear, it appears that the Board granted Petitioner partial relief in correcting an error committed in fixing the effective date of his recommitment. No issue is involved here concerning this particular error or the Board's action in correcting it.
[4] While Petitioner's petition for review was filed pro se, we note that his brief filed with this Court was submitted by counsel. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561482/ | 565 A.2d 1309 (1989)
In re ESTATE OF Lucy NEIL.
No. 87-171.
Supreme Court of Vermont.
June 16, 1989.
Motion for Reargument Denied July 14, 1989.
*1310 Therese M. Corsones of Corsones & Hansen, Rutland, for petitioner-appellee.
Timothy J. Wells, White River Junction, for petitionees-appellants.
Before ALLEN, C.J., PECK, GIBSON and DOOLEY, JJ., and SPRINGER, District Judge (Ret.), Specially Assigned.
Motion for Reargument Denied as Untimely Filed July 14, 1989.
PECK, Justice.
Title to real estate near a ski resort in Sherburne, Vermont, was awarded to petitioner, Roger I. Neil, by adverse possession. Three of his sisters: Iris Neil Hickory; *1311 Evalina A. Martin as administratrix of her father's estate; and Marjorie Neil Wells, deceased, represented by her husband and successor in interest, Edwin Wells, contest the order of the probate court. Five questions are certified for our review under V.R.A.P. 13(c). They may, however, be consolidated into one query: whether the probate court, as a matter of law, properly determined that petitioner acquired ownership of the parcel of land by adverse possession against his fellow cotenants. In re Fletcher, 144 Vt. 419, 422, 479 A.2d 134, 135 (1984) (certified questions are only guidelines to the Court). We hold that the probate court erred in its conclusion that petitioner acquired sole title to the property by adverse possession.
Petitioner, with his mother, Lucy Neil, acquired the Sherburne property by warranty deed, which was recorded on July 20, 1945. Petitioner alleged that he paid for the land with his own money and that his mother's name was placed on the deed at his request in order to secure his interest in the property while he was in the armed forces. It is unclear from the record, however, whether petitioner paid the entire price or whether his mother contributed toward the purchase.
Lucy Neil died in 1956, survived by her husband (now deceased) and five children. Mrs. Neil's estate was probated, but her interest in the property was not included in the inventory of the estate's assets. As part of the probate process each heir consented to the final accounting filed by the estate's administrator, indicating that the accounting included all known property of the deceased.
In 1981 petitioner sought to sell a portion of the property and discovered that he did not have clear title. Other heirs of his mother claimed partial ownership in the property as successors in interest to their mother's tenancy in common. Consequently, the petitioner brought an action in the probate court pursuant to 14 V.S.A. § 1801 requesting that he be awarded sole ownership of the property through adverse possession.[1]
The probate court found that petitioner has posted the property, cut timber from it for his own use and for sale, ran and parked heavy equipment on it, and maintained a stump dump on the property. He paid all real estate taxes assessed against the property and transferred, with his signature alone, a right-of-way to the Town of Sherburne. The probate court concluded that petitioner had treated the land as his own from the date of acquisition, and had thereby acquired title over the other claimants' interests by adverse possession.
Adverse possession requires fifteen continuous years of open, notorious, and hostile possession of another's property. Moran v. Byrne, 149 Vt. 353, 355, 543 A.2d 262, 263 (1988). A claimant under the doctrine has the burden to prove adverse possession sufficient to supersede the property interests of any titleholders of record. See Higgins v. Ringwig, 128 Vt. 534, 538, 267 A.2d 654, 656 (1970). Here, petitioner's burden of proof is greater than in the usual case because he seeks to prove that his possession has excluded the property interests of family members who are, by operation of law, his fellow tenants in common. See Harlow v. Miller, 147 Vt. 480, 484, 520 A.2d 995, 998 (1986) (proof of adverse possession must be established by stronger evidence where claim is against family members); Scott v. Leonard, 119 Vt. 86, 102-03, 119 A.2d 691, 700 (1956) (presumption against ouster of co-tenant can be overcome only by some overt and notorious act or acts of an unequivocal character, indicating an assertion of ownership of the entire premises to the exclusion of the right of the co-tenant).
By virtue of his deed, petitioner's interest in the land was that of a tenant in common with his mother under 27 V.S.A. § 2, which governs the construction of such deeds. Therefore, upon her death petitioner became a co-tenant with his mother's heirs. See Bemis v. Lamb, 135 *1312 Vt. 618, 621, 383 A.2d 614, 617-18 (1978). Petitioner bases his claim on the fact that none of the parties were aware of their status as co-tenants until petitioner's attempted transaction in 1981. He supports his claim with evidence that he paid all real estate taxes and expenses relative to the property. Petitioner also provided numerous examples of his use of the property for his own benefit to show that his possession of it was open, notorious, and hostile. Petitioner contends, in essence, that his possession with claim of right from the inception of the deed has been adverse to the interests of his co-tenants despite their ignorance of their rights to the property.[2] We do not agree.
I.
Where a co-tenant would claim sole right to property held in common he must "oust his fellow co-tenants by some overt and notorious act of an unequivocal character, indicating an assertion of ownership of the entire premises to the exclusion of the rights of the others." Id. at 621, 383 A.2d at 617. Where no co-tenancy relationship exists, the requisite "claim of right" arises by presumption if the claimant's use is open and notorious, without evidence of permission by the rightful owner. Russell v. Pare, 132 Vt. 397, 404, 321 A.2d 77, 82 (1974).
However, where the circumstances involve co-tenants, the presumption is that one co-tenant in possession is holding the property for all co-tenants. Leach v. Beattie, 33 Vt. 195, 198 (1860).
If a co-tenant enter upon the whole or part of the common property, as he has a legal right to do, the law presumes that he intends nothing beyond an assertion of his right. In order to sever his relation as co-tenant, and render his possession adverse, it must be affirmatively shown that the other co-tenants had knowledge of his claim of exclusive ownership, accompanied by such acts of possession as were not only inconsistent with, but in exclusion of, the continuing rights of the other co-tenants, and such as would amount to an ouster as between landlord and tenant.
Scott, 119 Vt. at 102, 119 A.2d at 700 (citation omitted).
In Scott the defendants claimed that their improvements and use of the property gave notice of their adverse possession to the plaintiffs, record title holders to an appurtenant easement. The defendants' use and improvements, however, were held to be consistent with the continuing rights of the plaintiffs. Only the placement of a barricade across the roadway which was subject to the easement gave notice to the plaintiffs that the defendants' possession was to the exclusion of rights of the other titleholders. Id. at 103, 119 A.2d at 701.
The evidence produced in Scott was similar in nature to the evidence of sole possession produced here. It is undisputed that petitioner possessed the property and improved it, paid taxes and generally took responsibility for it as the owner. Despite the expense involved, however, such care for the land is not necessarily inconsistent with the interests of his co-tenants. See Waterman v. Moody, 92 Vt. 218, 234, 103 A. 325, 332 (1918) (law presumes that payment of taxes by one co-tenant is on behalf of other, nonpossessory co-tenants).
Here, the probate court also found that the petitioner's father, Irving Neil, had held various public offices before and after his wife's death which would have brought the title of the property to his attention. The court based its conclusion on evidence entered by the petitioner that the senior Mr. Neil had been a town lister, constable and tax collector. The court held that Mr. Neil knew or should have known of the adverse nature of the petitioner's possession through the town tax rolls which showed the property listed *1313 in petitioner's name only. However, it is not clear from the transcript whether the senior Mr. Neil can be attributed with actual knowledge of his wife's ownership interest, or the deed and its legal construction. Constructive notice to the nonpossessory co-tenants is not sufficient to constitute an ouster. Scott, 119 Vt. at 102, 119 A.2d at 700; Waterman, 92 Vt. at 234, 103 A. at 332. Accordingly in Waterman, this Court noted that information contained in the tax rolls does not constitute ouster. 92 Vt. at 234, 103 A. at 332. Therefore, the court's conclusion of ouster based on constructive notice is in error.
One finding stands alone to support the holding that petitioner had excluded the rights of his co-tenants in a manner which constituted ouster: the transfer of a right-of-way to the town for the purpose of making a roadway. That right-of-way was conveyed by petitioner as "owner in fee" in May 1958. Such a conveyance, especially given its visibility as part of a town road, could amount to an ouster. Id. at 233, 103 A. at 331-32. In order to determine whether this fact supports the conclusion reached here, however, we must question whether the co-tenants were aware of their rights and could, therefore, have been ousted.
II.
Our opinions contemplating ouster of a co-tenant have, to date, concerned record titleholders whose interests were conveyed by deed or by probate of an estate. In each case, the titleholders had or should have had knowledge of their interest in the subject parcel. See generally Bemis v. Lamb, 135 Vt. 618, 383 A.2d 614 (property included in inventory of estate assets); Scott, 119 Vt. 86, 119 A.2d 691 (co-tenancy by deed); Waterman, 92 Vt. 218, 103 A. 325 (co-tenancy by deed). Cotenant titleholders are called on to defend their interests only where persons "reasonably attentive to [their] own interests would have known that an adverse right was being asserted." Waterman, 92 Vt. at 238-39, 103 A. at 334; see also Zuanich v. Quero, 135 Vt. 322, 325, 376 A.2d 763, 765 (1977). In order for parties to be reasonably attentive to their interests as co-tenants, however, they must first be aware that their interest in the property exists. State courts are divided as to whether co-tenants, ignorant of their interests, can be dispossessed of their rights to title through adverse possession. Compare Allen v. Batchelder, 17 Mass.App. 453, 459 N.E.2d 129 (1984) (jury may infer ouster from long, exclusive and uninterrupted possession by one co-tenant) with Collier v. Welker, 19 N.C.App. 617, 199 S.E.2d 691 (1973) (possession by one co-tenant is possession by all). While some courts are willing to "find adverse possession after very long periods of sole occupancy" by the claimant, 4A R. Powell, Law of Real Property ¶ 603[2] (1986), other jurisdictions protect unknowing co-tenants in perpetuity. See, e.g., Bonds v. Bonds, 226 Miss. 348, 84 So.2d 397 (1956); Denton v. Denton, 627 S.W.2d 124 (Tenn.Ct.App.1981). Here, as in Denton, the result may seem inequitable to one who has paid for all or part of the land, assumed sole possession of it, and taken responsibility for its maintenance for more than the statutory period. Nevertheless, because of the potential for abuse with a less stringent law of adverse possession, we believe the better policy is to require significantly more proof of an adverse possessor in such circumstances. Proof of all of petitioner's activities, while they suggest an ouster, cannot erase the rights of parties who, through no fault of their own, lacked knowledge of their interest in the real estate and thus were unable to protect their interests.
Here, the probate decision implicitly attributes constructive notice, or at least inquiry notice, to Irving Neil of his ownership interest due to his civic involvement. His interest, as well as that of the other heirs, was acquired through descent. See 14 V.S.A. § 551. However, although Lucy Neil's estate was probated, her interest in the real property was not included in the inventory of her estate. The court treats the failure of the parties to claim their interest at the time Lucy Neil's estate was probated as a waiver of their rights. However, *1314 the fact that none of the heirs moved to amend the inventory to include the property interest indicates a lack of knowledge on their part. See 14 V.S.A. § 1051; see also Waterman, 92 Vt. at 229, 103 A. at 334 (inventory admissible to prove knowledge of decedent's property interest).
While findings would usually be construed to support the probate decree, these inconsistent findings "give rise to reversal." Hill v. Grandey, 132 Vt. 460, 466, 321 A.2d 28, 32 (1974). In light of the increased burden on adverse possessors to prove ouster among co-tenants, especially those who are family members, we are unwilling to sanction constructive or inquiry notice as a sufficient basis to start the running of the statutory period, nor will we hold that the heirs waived their rights without proof of their knowledge of them. Therefore the conveyance of the right-of-way does not operate to oust Irving Neil, or any co-tenant, unless actual knowledge of the property interest is first found or lack of knowledge is found to be unreasonable.
III.
Petitioner, in his complaint, raises the equitable remedy of laches against the heirs. We note in passing that disclaimer of an interest by descent must be made in a written statement. See, e.g., 14 V.S.A. § 1953. Nor may the co-tenants' defense against the adverse possessor be precluded by operation of laches on the record in this action. See Major v. Shaver, 187 F.2d 211, 212 (D.C.Cir.1951). Laches requires finding both unexcused delay and prejudice to the opposing party. Id.; Laird Properties New England Land Syndicate v. Mad River Corp., 131 Vt. 268, 282, 305 A.2d 562, 570 (1973). No findings to either effect were made here. Especially where co-tenants are family members and one of them is in possession of the land, the others must actually know that the possessor is holding adversely to them in order to bar their claim through laches. Major, 187 F.2d at 212.
The question raised in the present petition is answered in the negative. The cause is, therefore, remanded to the probate court for determination of the rights each heir may derive from the co-tenancy of Lucy Neil, taking into consideration whether each knew or reasonably should have known of their respective interest and the effect, if any, of petitioner's conveyance of the right-of-way.
The decision of the probate court is vacated, and this matter is remanded for further proceedings not inconsistent with this opinion.
LEWIS E. SPRINGER, District Judge (Ret.), Specially Assigned, concurring in the result; dissenting from decision on the law.
As the foregoing opinion for this Court states, this appeal from probate court involves but one question, i.e., whether the probate court, as a matter of law, properly determined that petitioner-appellee gained ownership of the parcel of land in question by adverse possession against his fellow co-tenants. Obviously, the answer to that question depends on what the law of adverse possession is when the person claiming ownership of land under it is a co-tenant of the person against whom the claim is made. In this case an additional factor is involved, for it is alleged that the co-tenants did not know that they were co-tenants. The majority concludes that, under those circumstances and on the facts found by the trial court, the question at issue should be answered in the negative. In my view, that conclusion is premature for reasons stated below. I do agree, however, that the case should be remanded for further findings by the trial court.
I.
Since the law of adverse possession in this state as it relates to cases involving co-tenants who know they are co-tenants is fully and well stated by Justice Peck's opinion for the majority, there is no need for me to state it herein. However, this is a case of first impression where the co-tenants or some of them do not know of the existence of the co-tenancy. The trial court did not make any finding that the parties *1315 knew of the co-tenancy, although it could and should have done so. Notwithstanding that fact, the parties briefed this case on the basis that they had no knowledge of the co-tenancy until 1981 when appellee approached them to obtain a release of their title interest. The majority decides the question at issue herein on the same basis. I reluctantly decline to join them until a finding is made as to that knowledge. In my opinion that is the crux of the question posed in this case, and the problems in it stem from the absence of a finding thereon.
If the trial court had fully considered facts contained in the record, it is likely that it would have found that one or more of the appellants, if not all of them, did have knowledge of the co-tenancy. Such a finding would bear directly on the basic elements of adverse possession, such as whether the acts of the appellee were sufficient to put them on notice as to ouster and the hostile nature of the claim, and would clarify the question of laches about which the majority of this Court is concerned. I will deal with the fact situation later.
My reluctance to join the majority opinion is also based on what I perceive as an illogical position as to the effect that lack of knowledge by co-tenants as to the existence of the record co-tenancy has on the basic elements of adverse possession. To prove adverse possession and thereby gain ownership of real property one must possess that property in an open, notorious, hostile and continuous manner for, under the statute of this state, a period of fifteen years. When that is done, the law presumes that the possessor has ousted any-one claiming to be the true owner by reason of a record title, however it has come to him. The basis of that presumption is that when the person holding the record title fails to act to protect his interest in the property for the statutory period, he acquiesces in or permits the possession by the claimant to negate his own rights, in other words, he permits himself to be ousted.
But this Court has held that when the opposing parties are co-tenants, there is a presumption that the possessor is exercising possession as an incident of the co-tenancy relationship. Moreover, the possessor must overcome that presumption by clear, definite and unequivocal notice to the cotenant that his possession is "hostile" as that term is used in the law of adverse possession, i.e., that he is claiming a right to the exclusive ownership of the property.
When all of the parties know of the co-tenancy, that rule is at least logical even though it is inconsistent with the basic presumption underlying the doctrine of adverse possession; but when they do not, it is illogical. In the latter situation, the cotenants not in possession could have no reasonable expectation that they should be treated any differently than members of the general public. Nor is there any reason for the person in possession to expect that he must act any differently toward the co-tenants than toward the general public.
When the co-tenants are family members, this Court has held that the claimant must establish his claim by stronger proof than when there is no such relationship. Harlow v. Miller, 147 Vt. 480, 484, 520 A.2d 995, 998 (1986). However, that too is illogical when all of the co-tenants, although family members, do not know of the co-tenancy. If the acts are hostile enough to put the general public on notice, the same acts should suffice for family members not in possession when they do not know of the co-tenancy. By like token, the claimant would have no reason to believe he had any obligation to treat family members any differently than members of the public, certainly not that he had to take any stronger action or give any more notice that he intends to oust them. The position of the majority, if carried to its logical conclusion in family member co-tenancy cases, would result in the claimant never being able to establish adverse possession. Therefore, when none of the parties know that they are co-tenants, the rule should be that the proof required of the claimant should be the same as for the general public even when family members are involved. Cf. Allen v. Batchelder, 17 Mass. App. 453, 459 N.E.2d 129 (1984); Collier v. Welker, 19 N.C.App. 617, 199 S.E.2d 691 *1316 (1973); and Graham v. Graham, 45 Misc.2d 298, 256 N.Y.S.2d 888 (Sup.Ct. 1965); cf. also 3 Am.Jur.2d Adverse Possession § 173. Thus, I believe that this Court should reconsider the whole matter of the effect of co-tenancy in adverse possession cases.
It should be noted also that our rule in co-tenancy cases, which requires actual notice, prevents adoption of any theory of constructive ouster. We should reconsider the actual notice requirement also.
II.
Whether a person claiming ownership of real estate by adverse possession has acted to satisfy the rule as to open, notorious, hostile and continuous possession for the statutory period requires, of course, a determination of the facts sufficient to enable the court to apply the law; so, when a co-tenancy of which the parties have had no knowledge is alleged, the trial court must also find the facts as to that knowledge so that it may apply relevant law. Without adequate fact finding by the trial court, an appellate court cannot know what law applies.
On the facts in this case it is clear that appellee has been in possession of the land in question from 1945 until 1981. During that period, he had provided all of the care which the land had received, had made whatever improvements had been made on it, and had paid not only for that care and those improvements but also for all of the taxes on it without any contribution from any of the co-tenants.
Although the trial court made findings of facts as to other aspects of the case, they are sparse, indefinite in many respects and do not include findings as to facts admitted on the record, in the pleadings, in response to interrogatories or upon which conflicting evidence was presented. There is no finding as to the knowledge of the parties about the co-tenancy. If such findings had been made, they would clarify both the question of knowledge of each of the parties as to the existence of the co-tenancy and whether the actions of the appellee were sufficiently strong to put the appellants on notice that his possession was hostile and sufficient to constitute ouster, as well as those relating to laches. From my understanding of the record, the needed findings could have been made. The following are some of the instances of deficiencies in the findings which could have been cured.
The trial court's Finding of Fact No. 17 states:
That the petitioner, Roger R. Neil, went through the ninth grade of school. He never had any education beyond that point. It is the petitioner's contention that he paid for the property out of his own funds and that he never received any contributions from any other individual, including his mother. His sister, Evalina Martin, testified in petitioner's behalf, and sustained his position. His other sister, Elizabeth Carbonneau Wells, testified that her mother paid for the property, so there is a conflict in the testimony as to where the source of the funds came from, as far as the purchase of the property is concerned.
The court did not find who in fact did pay for the property.[*]
Finding No. 18 reads:
That the petitioner, Roger I. Neil, on May 5, 1958, executed an agreement with the Town of Sherburne to convey a right of way for an access road (Pet. Ex. # 1). The Town of Sherburne acknowledged in Petitioner's Exhibit # 1 that `Roger I. Neil was the owner in fee' of the property which is referred to in paragraph 8.
It ignores the testimony of the petitioner that his father, the town tax collector, assisted the selectmen when they obtained that right of way.
Finding No. 20 reads:
That Irving Neil, husband of Lucy Neil, held several positions with the Town of *1317 Sherburne both before and after the death of his wife, Lucy Neil, including that of lister, constable, tax collector and justice of the peace. In these capacities, he never claimed any interest in the property in question on behalf of his wife, Lucy Neil, during the period prior to her death on August 2, 1956, nor did he make a claim that her estate had any interest in the property in question subsequent to her death when her estate was administered and probated through the Rutland District Probate court.
Finding 20 is indefinite in that it fails to reflect the fact that Irving Neil was a lister in 1954 and 1955, and tax collector in 1956 through 1959, the very period during which his wife died and her estate was administered. In both of those capacities he had a duty to know who owned the property and to correctly show the owner in the grand list of the town. Not only did he have that duty, but he was undoubtedly familiar with the effect of the language of the deed creating the co-tenancy and its effect on his own rights. It is unfortunate that he died in 1984 before trial. Nevertheless, the affect of his office in the context of these facts may yield a specific legal conclusion regarding his knowledge.
Nor does Finding No. 20 (or any other finding) refer to the testimony that the town tax records show, that before 1959 the land in question was listed in the grand list in the names of both Roger Neil and the Estate of Lucy M. Neil as the owners, and that the tax notices for 1958 and 1959 were sent to Roger Neil. His father may also have received it. Certainly he should have known of the impact of her death on the assessment.
The absence of those facts in the findings suggests that at least one of the appellants knew of the co-tenancy (thus raising another question) and bears on the issue of whether that party was guilty of laches. Certainly this possibility requires remand for further findings.
III.
In addition to my suggestions in Parts I and II hereof, there is another problem bothering me about this case. In considering whether sufficiently strong evidence is present in this case to establish a hostile possession by the appellee, the majority may be not seeing the forest for the trees (an appropriate pun in this case if ever one was appropriate). Given the undisputed fact that it is forest land about which this case revolves, it is hard to imagine how much stronger action could have been taken by the appellee to show that he was claiming ownership if one assumes, as do the parties and the majority of this Court, that none of the parties knew before 1981 that a co-tenancy existed. Common experience in Vermont is that forest land is rarely, if ever, fenced. It is usually logged periodically, although some enlightened owners do cut selectively on a regular basis. The usual practice was followed by the appellee. Furthermore, the fact that one or more of the appellants went on the land occasionally is not significant, despite appellants' argument to the contrary on the question of continuity of appellee's possession, in view of Vermont customs in regard to hunting, hiking, and horseback riding through such land when it is not posted.
In discussing the sufficiency of appellee's acts as to ouster, the majority discusses them one by one and concludes that no one of them except possibly the last one they mention is sufficient. That is like using a camera to photograph a scene and, by use of a zoom lens concentrating on small portions of the scene one after the other, not getting the whole picture. I ask again, what more would one usually do to exercise exclusive control of a woodland lot of about twenty-five to thirty-five acres than appellee did? So, even on the facts which the trial court found and the parties and the majority accept, it is difficult for me to accept the conclusion of the majority in answering the question mentioned at the outset as being the only legal issue in this case.
NOTES
[1] Petitioner raised other arguments at trial, but they were not among the questions raised in this Court.
[2] Petitioner does not specify whether his adverse possession began from the execution of the deed, in 1945, or whether his possession was "open, notorious, and hostile" only as to the interests of the current co-tenants. Because we find that he has not met the burden of proving adverse possession against any co-tenants, we do not reach a determination regarding the duration of the period of possession.
[*] It is interesting to note that although Elizabeth Carbonneau Wells testified that on more than one occasion her mother had said she had paid for the land and had an interest in it, so that Elizabeth Carbonneau Wells had knowledge of that fact, Elizabeth claimed not to have known that she, as an heir of her mother, was a co-tenant in the property. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3039744/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3953
___________
Patrick Edward Smrz, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Tammy Harper; John Doe; Jane Doe, *
* [UNPUBLISHED]
Appellees. *
___________
Submitted: January 31, 2006
Filed: February 8, 2006
___________
Before RILEY, MAGILL, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Idaho prisoner Patrick Edward Smrz appeals the district court’s1 dismissal of
his civil complaint for failure to state a claim. After de novo review, see Moore v.
Sims, 200 F.3d 1170, 1171 (8th Cir. 2000) (per curiam), we conclude dismissal was
proper. Accordingly, we affirm. See 8th Cir. R. 47B.
1
The Honorable Lawrence Piersol, Chief Judge, United States District Court for
the District of South Dakota. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2453869/ | 327 F. Supp. 2d 527 (2004)
UNITED STATES OF AMERICA, et al.
v.
Richard L. MATTHEWS,
United States of America, et al.
v.
Angela Matthews,
Nos. Civ.A. 03-CV-4448, Civ.A. 03-CV-6194.
United States District Court, E.D. Pennsylvania.
May 20, 2004.
*528 Richard M. Bernstein, Virginia A. Gibson, U.S. Attorney's Office, Philadelphia, PA, for Plaintiffs.
Richard L. Matthews, Collegeville, PA, pro se.
Milton H. Baxley, II, Gainesville, FL, for Defendant.
Angela Matthews, Collegeville, PA, pro se.
MEMORANDUM OPINION
SAVAGE, District Judge.
The plaintiffs, the United States of America, the Internal Revenue Service and Revenue Officer Lawrence M. Dolan (collectively the "Internal Revenue Service"), sought to enforce summonses requiring the defendants, a husband and wife who had been under criminal investigation by the IRS for almost a decade, to answer questions and produce documents for the stated purpose of collecting federal tax liability.[1] In response to the summonses, the defendants appeared at the local IRS office separately and refused to answer questions regarding their assets and sources of income, asserting their Fifth Amendment privilege against self-incrimination.[2]
The IRS contends that the invocation of the privilege was improper for two reasons. First, it argues that the defendants' assertion of the privilege was a prohibited blanket invocation. Second, the IRS claims that the defendants have no basis for asserting the privilege because the information sought is for use in the collection of tax liabilities and relates to the existence of assets and not to their sources.
The parties submitted briefs and a hearing was held on January 6, 2004. After considering the arguments and the facts and circumstances in each case, we issued findings of fact and conclusions of law. We concluded that the defendants asserted the Fifth Amendment privilege in response to specific questions, and that their apprehension of a criminal prosecution and the potential use of the subpoenaed evidence against them in such a prosecution was substantial and genuine. Accordingly, we refused to enforce the summonses.
We now issue this memorandum opinion to supplement our findings and to explain our reasoning.
The summonses sought testimonial and documentary evidence. The defendants did not, as the IRS suggests, refuse to produce documents. They informed the IRS that they did not have any documents responsive to the requests. In re: Richard L. Matthews, Hearing, at 14-15 (May 29, 2003). Consequently, it was not necessary to consider the application of the act-of-production *529 doctrine. See United States v. Hubbell, 530 U.S. 27, 120 S. Ct. 2037, 147 L. Ed. 2d 24 (2000). Thus, our inquiry was confined to the refusal to answer certain questions on Fifth Amendment grounds.
Because the defendants undisputedly have been under criminal investigation and the statute of limitations for criminal charges has not expired, we looked at each question regarding assets, income and expenses to determine whether the privilege was justified with respect to the particular question. See United States v. Yurasovich, 580 F.2d 1212, 1220-21 (3d Cir.1978). Construing the privilege liberally, especially in the context of this case, we determined that the questions that the defendants refused to answer all implicated self-incriminating information because they required the defendants to supply evidence of a necessary element of tax-related crimes or links in the chain of evidence needed to prosecute them for the same crimes which had been the subject of the IRS criminal investigation. See United States v. Mahady & Mahady, 512 F.2d 521, 525-26 (3d Cir.1975).
Blanket Assertion of the Privilege
While the Fifth Amendment provides a privilege against self-incrimination, witnesses cannot relieve themselves of their obligations to answer questions by a "mere blanket invocation" of the privilege. Nat'l Life Ins. Co. v. Hartford Acc. & Indem. Co., 615 F.2d 595, 597-98 (3d Cir.1980). A witness must invoke the privilege after being asked specific questions. Id. at 598-600.
The defendants appeared at the IRS office with counsel who noted at the outset that his clients had been under criminal investigation for nine years, starting in 1991. He counseled his clients on the record that whatever they said could be used against them in a future criminal prosecution. In re: Richard L. Matthews, Hearing, at 6 (May 29, 2003); In re: Angela Matthews, Hearing, at 5 (Sept. 9, 2003). The defendants then answered certain questions, including their residences, dates of birth, social security numbers, number of dependants, and employment status. They refused to answer questions regarding current assets and sources of income, invoking their Fifth Amendment privilege.
Real and Substantial Apprehension of Prosecution
The court must determine whether the person invoking the privilege has a reasonable basis to fear danger from giving answers or is clearly mistaken about the potential consequences of his providing information. Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118 (1951). "To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Id. at 486-87, 71 S. Ct. 814. The protection extends not only to direct answers which are incriminating but to those responses which could establish a "link in the chain of evidence" necessary to prosecute the witness. Yurasovich, 580 F.2d at 1215 (quoting Hoffman, 341 U.S. at 486, 71 S. Ct. 814).
"The central standard for the privilege's application has been whether the claimant is confronted by substantial and `real,' and not merely trifling or imaginary, hazards of incrimination." Marchetti v. United States, 390 U.S. 39, 53, 88 S. Ct. 697, 19 L. Ed. 2d 889 (1968) (citations omitted). This is not a case where the defendants have an imaginary or generalized concern that providing information to the IRS could incriminate them. It is one where they have a real and substantial fear of prosecution because they have been under criminal investigation by the IRS *530 for years and are still exposed to criminal prosecution. The apprehension is real and not one contrived to avoid paying taxes.
The defendants had and still have a real apprehension of danger that by answering the IRS's questions and providing documents could lead to evidence necessary to prosecute them for criminal violations. The IRS had conducted a criminal investigation of the defendants for nine years, the last year being 2001. Although no charges have been filed, the IRS is unwilling to represent that none will be filed. Transcript ("Tr.") at 23-24, 27 (Jan. 6, 2004). Furthermore, it refuses to grant immunity from criminal prosecution, even though its own counsel has requested it. Tr. at 32-33. Thus, with the possibility that criminal charges could be brought within the statute of limitations, the defendants had and still have a reasonable apprehension that information they supply the IRS regarding their current assets could lead to the discovery of the sources of those assets during the periods of the criminal investigation.
The IRS states that it only wants the information for collection purposes. If so, it could provide immunity. "Once the reason for the privilege ceases, the privilege ceases." Ullmann v. United States, 350 U.S. 422, 439, 76 S. Ct. 497, 100 L. Ed. 511 (1956). Its disclaimer that it is not seeking the source of the assets or how the defendants acquired them is belied by its refusal to grant the defendants immunity. See Yurasovich, 580 F.2d at 1221. Once in possession of the identity of the asset, the IRS could trace it to its source.
At the hearing, counsel for the IRS conceded that "there might be" an exposure to criminal liability. Tr. at 24. He agreed that information gathered during the collection process could be shared with the criminal investigation division. Tr. at 27. He conceded that if providing the information produced a link in the chain of evidence needed for a criminal prosecution, the defendants have a right to assert their privilege. Indeed, counsel admitted that the IRS does not want to give immunity because it wants to reserve the right to prosecute. Tr. at 33.
The message reasonably interpreted by the defendants is that the IRS may still prosecute them. Their fear of prosecution is magnified by the IRS's refusal to grant the immunity that its own counsel recommended. Under the circumstances, we cannot conclude that the defendants are clearly mistaken in their apprehension of self-incrimination.
Conclusion
Because the IRS was unwilling to represent that it would not use information gathered in the collection process for possible criminal prosecution of the defendants who had been under criminal investigation for many years and are still exposed to criminal liability, the defendants had and continue to have a real and substantial apprehension that disclosure of information could subject them to prosecution for unfiled or unpaid taxes in any year within the statute of limitations. Therefore, considering the circumstances surrounding the assertion of the privilege and that compelled disclosures would tend to incriminate the defendants or lead to incriminating evidence against them, we determine that invocation of the Fifth Amendment privilege against self-incrimination is appropriate in this case.
NOTES
[1] The summonses were issued pursuant to 26 U.S.C.A. § 7602.
[2] Defendant Richard Matthews appeared at the IRS office on May 29, 2003, and Angela Matthews, on September 9, 2003. In the intervening time, an action was instituted against Richard Matthews to enforce the summons issued to him. A hearing on the action was continued to enable the defendant's attorney to appear. At that time, the IRS stated that it intended to issue a summons to the defendant Angela Matthews, which it later did. The enforcement actions were consolidated at the hearing held on January 6, 2004. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2338566/ | 274 P.3d 315 (2012)
247 Or. App. 766
IN RE M.G.;
STATE
v.
M.G.
A146633.
Court of Appeals of Oregon.
January 25, 2012.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562666/ | 16 So.3d 598 (2009)
Edgar CASON, Plaintiff-Appellant,
v.
STATE of Louisiana DEPARTMENT OF WILDLIFE AND FISHERIES, Roy S. Schufft and Jason Clinton, Defendants-Appellees.
No. 44,474-CA.
Court of Appeal of Louisiana, Second Circuit.
July 15, 2009.
*599 Kelly & Townsend by William L. Townsend, T. Taylor Townsend, Natchitoches, for Appellant.
Ted D. Hernandez, for Appellees.
Before GASKINS, MOORE and LOLLEY, JJ.
LOLLEY, J.
The State of Louisiana, Department of Wildlife and Fisheries, Roy S. Schufft and Jason Clinton (collectively, the "Department") appeal a judgment of the 39th Judicial District Court, Parish of Red River, State of Louisiana, in favor of the plaintiff, Edgar Cason. Both parties have appealed. For the following reasons, we reverse the trial court's judgment.
FACTS
On January 19, 2006, Roy Schufft and Jason Clinton, agents with the State of Louisiana, Department of Wildlife and Fisheries (the "agents"), were traveling on La. Highway 515, from which they went *600 onto the private immovable property belonging to Edgar Cason. At the trial of the matter, Schufft claimed he saw a pick-up truck backed up and parked near a boat launch extending into Loggy Bayou, a public body of water, which diverted them from La. Highway 515 onto Cason's property. The boat launch, however, was located on Cason's private property, which consists of 2,374 acres. The agents drove onto the private property through an open gate. The property was posted with a sign that stated: "POSTED NO HUNTING KEEP OUT LONG LAKE HUNTING CLUB."
The agents waited by the truck and were shortly approached by a fisherman in his boat on Loggy Bayou. No citations were issued to the fisherman. Cason testified at trial he had given permission to the fisherman to access Loggy Bayou from his property. The agents claim they then heard a gunshot, prompting them to drive toward it. Not being able to travel further on the path they were on, they turned around and returned to the main road on Cason's property, following it until they arrived at an area where Cason has two camps, a dog pen, and out-buildings. The agents exited their vehicle and traveled by foot. They observed several duck hunters in a cove area on the other side of the oxbow lake that Cason's property fronted. However, the agents did not have a boat and could not access the hunters, so they returned to their vehicle and drove back to La. Highway 515 from where they had originally came. The agents were on Cason's property for approximately one hour and thirty minutes. Cason was never on the property during this time and only learned of the agents' entry onto his property by his employees.
Cason filed suit against the Department and its agents, Roy Schufft and Jason Clinton, claiming that the agency, through its employees, committed trespass and conducted an unlawful and warrantless search of his private property. After a trial of the matter, the trial court issued a thorough and lengthy opinion. It determined that the defendants committed a trespass, conducted an illegal search, and invaded the privacy of Cason when they unlawfully entered and remained upon Cason's private immovable property. In doing so, the trial court denied the Department's request for qualified immunity; however, it granted the agents' request for qualified immunity, for the reason that they were acting pursuant to the instruction of the Department. The trial court held the Department to be solidarily liable to Cason for damages in the amount of $10,000.00. Both parties appeal the trial court's judgment.
DISCUSSION
In its first assignment of error, the Department argues that the trial court committed both a legal error and a manifest error in failing to properly apply the "open fields" doctrine. As stated, Cason originally complained that the agents committed a trespass on his property and made an illegal and warrantless search. The Department responded that the agents' presence on Cason's property for the purpose of checking the compliance with Louisiana's wildlife and fisheries laws was constitutionally permissible pursuant to the "open fields" doctrine recognized by the United States Supreme Court in Oliver v. U.S., 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). Oliver stands for the general proposition that an intrusion upon an open field is not an unreasonable search under the Fourth Amendment of the United States Constitution. In its Opinion, the trial court considered Oliver; however, the trial court determined that the Louisiana Constitution provides a heightened protection of privacy than the U.S. Constitution, *601 requiring a more conservative analysis than applied in Oliver. Here, the trial court concluded that because Cason fenced his property, gated the property, maintained posted signs on the property, conducted business operations on the property, and maintained a residence on the property, that the open fields doctrine would not apply to allow the law enforcement officers the ability to enter upon private property based on suspicionless grounds. We disagree.
The Fourth Amendment to the United States Constitution provides that:
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.
The Louisiana Constitution, Article 1, Section 5, states:
Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.
The open fields doctrine was first enunciated by the Supreme Court in Hester v. U.S., 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), and permits law enforcement officers to enter and search a field without a warrant. State actors, therefore, do not need probable cause or a warrant to enter and search an open field. U.S. v. Pinter, 984 F.2d 376, 379 (10th Cir. 1993), cert. denied, 510 U.S. 900, 114 S.Ct. 273, 126 L.Ed.2d 224 (1993). The Fourth Amendment permits the police to search all over one's land, so long as the officers do not cross the boundaries of one's home. U.S. v. Seidel, 794 F.Supp. 1098, 1105 (S.D.Fla.1992). Oliver, supra, was based on a fact scenario where law enforcement officials ignored "No Trespassing" signs and fences, entered private property based on a tip of illegal activity, and subsequently observed illegal drug activity. The Court held that the specific language of the Fourth Amendment does not include open fields. Oliver, 466 U.S. at 177, 104 S.Ct. at 1740-41.
We believe the trial court erred when it determined that the open fields doctrine would not apply in this case, concluding that the agents entered the property based on suspicionless grounds. It is our opinion that the agents indeed had reason to believe that fishing or hunting was occurring on Cason's property, and that belief led them onto Cason's property legally. Moreover, we conclude that besides the fact that Cason's property was an open field in which he had no reasonable expectation of privacy, because he openly allowed fishing and hunting on his property, he could have no reasonable expectation of privacy thereon anyway.
Initially, we recognize the compelling state interest in safeguarding the wildlife and fisheries for the benefit of the people. In fact, it is well-settled that a state's police powers includes safeguarding the wildlife and fisheries for the benefit of its people. State v. Weaver, XXXX-XXXX (La.01/15/02), 805 So.2d 166, citing La. Const. art. IX, § 1. Further, the control and supervision of the wildlife of this state, including all aquatic life, is vested in the *602 Department. La. Const. art. IX, § 7. We also note that several regulatory statutes authorize and empower the Department to perform its duty to safeguard the wildlife and fisheries of our state:
La. R.S. 56:54(A): Wildlife enforcement agents of the enforcement division shall see that every person dealing in any way in any of the wildlife, fish, and game of the state in the territory assigned to him for which a license must be obtained, has in his possession, and is the owner of, an official license, and is in compliance with the laws, rules, and regulations under the jurisdiction of the department.
La. R.S. 56:55(A): [A]ny commissioned wildlife enforcement agent of the enforcement division may visit, inspect, and examine, with or without search warrant, ... boat, ..., car, conveyance, automobile or other vehicle, ..., or any place of deposit for wild birds, wild quadrupeds, fish, or other aquatic life or any parts thereof whenever there is probable cause to believe that a violation has occurred.
La. R.S. 56:55.2(A): To facilitate the effective protection of private and public rights and property and life throughout the state's waterways, sea, and land, duly commissioned wildlife enforcement agents of the enforcement division of the Department of Wildlife and Fisheries... shall, in addition to the authority otherwise conferred by law upon such officers, be vested with the same authority and powers conferred by law upon other law enforcement officers of this state....
We also take judicial notice of the mission of the Department:
To manage, conserve, and promote wise utilization of Louisiana's renewable fish and wildlife resources and their supporting habitats through replenishment, protection, enhancement, research, development, and education for the social and economic benefit of current and future generations; to provide opportunities for knowledge of and use and enjoyment of these resources; and to promote a safe and healthy environment for the users of the resources.
The mission of the Enforcement Division of the Department states that it:
... is to protect Louisiana's fish and wildlife resources and their habitats by enforcing related laws and regulations and to create a secure environment for the maximum enjoyment of hunting, fishing, recreational boating and affiliated outdoor activities.
We are committed to fulfilling this mission throughout the entire state. Nine regional offices are located throughout the state to provide information as well as assistance to outdoor enthusiast.
So considering, we are mindful of the far-reaching implications this appeal has on the interests of the Department to enforce our state laws protecting our wildlife and fisheries.
In the case sub judice, we do not agree that the agents' entry onto Cason's land was without suspicion as stated by the trial court. Whereas the open fields doctrine does not require probable cause for entry onto an open field, under the facts of this case we believe that the agents in question did indeed have a sufficient reason to enter onto Cason's property to make a compliance check of the fisherman utilizing his boat launch. Here, the pickup truck backed up to the boat launch spotted by the Department's agents was akin to the tip of illegal drug activity in Oliver. Simply putthe pick-up truck backed up to a boat launch was basically a tip or indication that fishing activity might be occurring in the area. Obviously, by their nature, game and/or fishing violations *603 occur in open fields, woods, lakes, rivers or streams, much of which will be private property. Furthermore, there are certain instrumentalities that go along with the sports of hunting and fishing. In our "sportsman's paradise," it is certainly not uncommon to be driving down a roadway and see vehicles, particularly pick-up trucks with trailers for the necessary all-terrain-vehicles, parked at the periphery of a field or woods; it is also quite ordinary to see vehicles (again, often pick-up trucks) with boat-trailers backed up to boat launches or parked near a body of water all of these reasonable indicators that some sort of hunting or fishing is occurring nearby. Notably, as experienced agents with the Department, Schufft and Clinton had their experience, training, and knowledge to recognize the signs of hunting and fishing activity. An indication of fishing activity is what these agents witnessedgiving them reasonable suspicion to enter onto the property to see if there was indeed such activity going on. When the agents then heard a gunshot, they had further reason to suspect that hunting might have been taking place on the property.[1] Thus, we conclude that the agents did indeed have reasonable suspicion to enter onto Cason's property to inspect the open field where fishing and/or hunting activity might have been occurring.
Next, Cason did not have a reasonable expectation of privacy on his property considering that he allowed hunting and fishing activity to occur or commence from there. We note that Cason testified to the following: his family fished and hunted on the property; he allowed "Mr. Ed" to use his boat launch from which he commenced his commercial fishing; he allowed other commercial fisherman to use the boat launch on his property; he allowed friends to hunt on his property; and he expected people on his property to follow the game laws of the state of Louisiana. Thus, it is clear that Cason allowed hunting and fishing activity on his property. Further, Cason admitted he would not have wanted any game or fishing violations occurring on his property. That being the case, it is entirely reasonable then that the Department's agents should have authority to enter onto his land to ensure that the laws of this state were being complied with. We do not believe it was reasonable for Cason to have any expectation of privacy in light of the fact that he openly allowed people to use this property, albeit private property, for hunting and fishing.
Finally, we note the case of United State v. Greenhead, 256 F.Supp. 890 (N.D.Cal. 1966), where the United States Fish and Wildlife Service agents were checking all of the hunting clubs in their area at the end of duck season to ensure that the clubs were complying with the tagging and possession laws. In Greenhead, the agents unlocked a gate and entered the land of the subject hunting club without any suspicion of criminal wrongdoing. No probable cause for the search existed, but the trial court determined that of no consequence considering the possible consequences of ineffective game management. The trial court noted:
I would have supposed that as true sportsmen the members of Greenhead, Inc., would have welcomed the Wardens on their property in order to make certain that wild ducks do not go the way of the heath hen and the passenger pigeon, if for no other good reason. And, of course, as law-abiding citizens I would have supposed that they would have wanted to be certain that no one had violated the law on their premises.
*604 Certainly, Cason would agree that he did not want the wildlife and fisheries laws of our state to be violated on his property. If we were to affirm the trial court's judgment, we would in effect remove the teeth given to the Department to enforce Louisiana's hunting and fishing regulations. Moreover, if Wildlife and Fisheries agents were not allowed to enter onto private property, the trial court's judgment would have the chilling effect of allowing sportsmen in our state to virtually hunt and fish freely on private lands without fear of penalty for violations. Such a conclusion would be to the detriment of all the citizens of our state.
Considering our decision herein, any discussion of the remaining assignments of error raised by the Department and Cason is pretermitted.
CONCLUSION
For the foregoing reasons, the judgment of the trial court in favor of Edgar Cason and against the State of Louisiana, Department of Wildlife and Fisheries, Roy S. Schufft and Jason Clinton is reversed. All costs of these proceedings are assessed to Cason.
REVERSED.
MOORE, J., concurs in the result.
NOTES
[1] Notably, the property had a "hunting club" sign posted on the fence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560638/ | 18 So.3d 1052 (2008)
Gaynor Earl TEDDER, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 2D05-3424.
District Court of Appeal of Florida, Second District.
March 7, 2008.
Rehearing Denied April 30, 2008.
James Marion Moorman, Public Defender, and Siobhan Helene Shea, Special Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.
CANADY, Judge.
Gaynor Earl Tedder, Jr., appeals from his convictions and sentences for armed home invasion robbery and five counts of armed kidnapping, arguing that the trial court should have granted his motion to suppress. Without further comment, we affirm the trial court's ruling that certain *1053 statements made by Tedder after his arrest should not be suppressed. We hold that the trial court correctly denied Tedder's motion to the extent that it sought to suppress certain statements Tedder made to officers before a canine alert on his vehicle. We conclude, however, that because the State did not prove that a canine alert provided probable cause for a search of Tedder's vehicle, the trial court should have suppressed all the evidence obtained as a result of that search.
I. Background
On March 25, 2003, Sergeant James Creghan was on patrol in Fort Myers at approximately 3:45 a.m. when he saw a white pick-up truck parked in a dark area behind a 24-hour Mobil gas station. Creghan pulled up near the truck and saw Tedder and Michael Varnum. When Creghan parked his vehicle and got out, Tedder was standing by the truck and Varnum was walking toward a pay phone. Creghan asked Tedder, "what's up." Tedder responded that they were in the Fort Myers area because Varnum had a job setting tile. Creghan then looked in the open bed of the truck, where he saw a fishing pole and an opaque Tupperware container. Finding Tedder's explanation suspicious because he did not see any tile-setting tools in the open bed of the truck, Creghan requested identification from both Tedder and Varnum. Both provided driver's licenses showing addresses in Panama City. Creghan called in a warrants check using a portable radio he carried on his person. While Creghan was running the warrants check, two back-up officers arrived.
After the warrants check on both Tedder and Varnum came back clear, Creghan asked the back-up officers to complete "Field Interrogation Cards" on the two men, due to a history of burglaries in the area. Tedder and Varnum were interviewed separately over a period of from 20 to 30 minutes. During the course of their interviews, Tedder gave an explanation of their journey from Panama City to Fort Myers that was inconsistent with Varnum's explanation. While these interviews were being conducted, the officers retained possession of the driver's licenses.
As the officers were completing the field interrogation cards, a canine officer arrived at the scene with his narcotics detection dog, Rex. Creghan instructed the canine officer to walk Rex around Tedder's truck. During that walk, Rex alerted to the passenger door. Although the ensuing search of Tedder's truck did not reveal any illegal drugs, it did reveal duct tape, masks, and other items that connected Tedder to a home invasion robbery that had occurred two weeks earlier several blocks from the Mobil station. Tedder was then arrested and subsequently charged with one count of armed home invasion robbery and five counts of armed kidnapping.
Tedder filed a motion to suppress the evidence obtained as a result of the search of his truck, arguing that Rex's alert was insufficient to provide probable cause for a search of the truck. At the hearing on the motion, the canine officer, Officer Short, testified that Rex was certified as both a patrol dog and a narcotics detection dog. Short testified that he and Rex had attended a 400-hour basic academy course for patrol work and a 400-hour narcotics detection course. Rex was certified in narcotics detection by the National Police Canine Association, and he had been recertified every year for the past six years. Rex had also undergone in-service training, including three 40-hour seminars and various workshops with Short. In March 2003, at the time of this incident, Rex was trained to detect methamphetamine, LSD, *1054 heroin, all forms of cocaine, and all forms of marijuana.
Short testified that narcotics detection dogs are selected based on their "very high drive, willingness to work, fetch, retrieve, drop." He also testified that Rex was very successful during his training and that he had found Rex to be very reliable. However, Short testified that no records were kept concerning how accurate Rex had been at detecting narcotics in the field and that Short did not keep track of this himself. Short also denied that Rex had ever made a false alert because, in Short's opinion, the failure to find narcotics after an alert does not constitute a false alert. Instead, according to Short, it means that narcotics that were once there had simply been removed. Because of this asserted lack of false alerts, Rex had never undergone any remedial training due to false alerts in the field.
After considering this testimony, the trial court found that Rex was trained and certified and had continued his training as required to maintain his certification. The trial court also found that Officer Short's testimony was very credible. Based on these findings, the trial court concluded that Rex's alert on Tedder's truck was sufficient to provide probable cause for the search of the truck. Thus, the trial court denied Tedder's motion. On appeal, Tedder contends that the trial court's findings were insufficient to establish that there was probable cause for the search.
II. The Probable Cause Issue
Our resolution of this case is dictated by this court's decision in Matheson v. State, 870 So.2d 8 (Fla. 2d DCA 2003). In Matheson, this court held that the certification of a narcotics detection dog, standing alone, is insufficient to establish that the dog is reliable so as to allow the dog's alerts to constitute probable cause for a search. Id. at 14. Instead, this court held that the trial court must consider other factors, including
"the exact training the detector dog has received; the standards or criteria employed in selecting dogs for marijuana detection training; the standards the dog was required to meet to successfully complete his training program; the `track record' of the dog up until the search (emphasis must be placed on the amount of false alerts or mistakes the dog has furnished)."
Id. (quoting State v. Foster, 390 So.2d 469, 470 (Fla. 3d DCA 1980)). This court noted that particular emphasis must be placed on the dog's performance history or "track record." Id. at 15. We also held that the burden is on the State to present evidence on each of these factors to show that the search was justified by probable cause. Id. at 12.
Moreover, in Matheson, this court specifically rejected the position that an alert followed by a search in which no drugs are found is not a "false alert." Id. at 13. In doing so, we stated:
[I]n this case Razor's trainer acknowledged the tendency of narcotics detection dogs to alert on the residual odors of drugs that are no longer present.
This underscores one of three central reasons why the fact that a dog has been trained, standing alone, is not enough to give an officer probable cause to search based on the dog's alert. Razor's trainer acknowledged that a trained dog, doing what he has been conditioned to do, imparts to the officer merely that he detects the odor of contraband. To be sure, as the trainer maintained, this may not be a false alert when assessing the success of the dog's conditioning. But for Fourth Amendment purposes it is neither false nor positive. The presence of a drug's odor at an intensity detectable by the dog, but not by the officer, *1055 does not mean that the drug itself is present. An officer who knows only that his dog is trained and certified, and who has no other information, at most can only suspect that a search based on the dog's alert will yield contraband. Of course, mere suspicion cannot justify a search.
Id.
The State presented no evidence of Rex's "track record," including the number of false alerts or mistakes Rex had made in the field. The State's failure to present any evidence on this factor that the trial court is specifically required to consider under Matheson resulted in the State's failing to meet its burden to prove that Rex's alert provided the officers with the probable cause necessary to support the search. Thus, the trial court should have granted Tedder's motion to suppress the evidence obtained as a result of the search of Tedder's truck.
We acknowledge that the reasoning of Matheson, which we follow here, has been rejected by two other district courts. Both State v. Coleman, 911 So.2d 259 (Fla. 5th DCA 2005), and State v. Laveroni, 910 So.2d 333 (Fla. 4th DCA 2005), reject Matheson's, 870 So.2d at 15, requirement that the State adduce evidence establishing "the dog's performance history" to meet the State's burden of proof. As we recently did in Gibson v. State, 968 So.2d 631 (Fla. 2d DCA 2007), we certify direct conflict with Coleman and Laveroni.
III. The Illegal Detention Issue
Tedder's contention that he was illegally detained after the warrants check came back clearin particular, his contention that retention of his license by the officer necessarily resulted in a detentionis rejected. The officer's retention of Tedder's driver's license after the completion of the warrants check is not dispositive. The trial court found that "there was no indicia of coercion present from the time of [Tedder's] initial contact with law enforcement officials through the time when the K-9 unit alerted on his vehicle...." The court specifically determined "that law enforcement officials did not use their emergency lights or sirens, display their badges, remove their guns from their holsters, handcuff or physically restrain [Tedder], issue verbal commands[,] or otherwise speak in a tone of voice that would indicate that compliance was mandatory." There is no indication in the record that Tedder at any point manifested an unwillingness to cooperate or ever attempted to terminate the encounter. Based on the totality of circumstances, the retention of Tedder's driver's license after the warrants check did not in itself transform the encounter into a detention. The trial court was correct in denying suppression of Tedder's statements made prior to the time when the narcotics detection dog alerted on Tedder's vehicle.
Although the retention of a suspect's driver's license obtained in the course of a consensual encounter is a circumstance that may point to the conclusion that the encounter lost its consensual character, the failure of an officer to return a driver's license to a suspect instantly after the conclusion of a warrants check does not in itself establish that the suspect was detained. The significance of the retention of a driver's license must be evaluated in the context of the totality of the circumstances. See Golphin v. State, 945 So.2d 1174 (Fla.2006); see also Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).
In the absence of any signs of coercion, the officer's retention of Tedder's driver's license while asking additional questions and completing a field interrogation card did not in itself transform the consensual *1056 encounter into a detention. Here, there is no evidence that the officers "effectively foreclos[ed] [Tedder's] ability to request the return of his identification so that he could proceed on his way," Golphin, 945 So.2d at 1188, or that "the circumstances of the encounter [otherwise became] so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave," Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984).
IV. Conclusion
In sum, we conclude that the trial court erred in not suppressing the evidence obtained as a result of the search of Tedder's truck but was correct in not suppressing the postarrest and presearch statements at issue. Because the trial court erred in failing to suppress the evidence obtained as a result of the search of Tedder's truck, we reverse Tedder's convictions and sentences.
Reversed and remanded for further proceedings; conflict certified.
WHATLEY, J., Concurs in part and concurs in result.
STRINGER, J., Concurs in part and dissents in part.
WHATLEY, Judge, Concurring in part and concurring in result.
I concur in the result and join in sections II and IV of Judge Canady's opinion.
STRINGER, Judge, Concurring in part and dissenting in part.
I concur in the reversal in section II but dissent from the affirmance in section III. As to section II, I agree with Judge Canady that this court is bound by Matheson to reverse the trial court's denial of Tedder's motion to suppress the evidence gathered as a result of Rex's alert. Therefore, I join in section II of Judge Canady's opinion without further comment.
However, I dissent from section III of Judge Canady's opinion. In my view, the encounter between Creghan and Tedder went bad before the canine officer arrived on the scene, and the trial court should have suppressed all of the evidence that was obtained after the warrants check on Tedder came back clear.
The testimony at the motion to suppress hearing established that Sergeant Creghan was on patrol at 3:45 a.m. when he saw a pick-up truck parked next to pay phones behind a 24-hour Mobil gas station. Creghan pulled up next to the truck and asked Tedder what he and his companion were doing in the Fort Myers area. After Tedder told Creghan that they were in the area because his companion had a job setting tile, Creghan looked in the open bed of the truck. There, he saw fishing poles and a large, opaque Tupperware container, but no tile-setting tools. Despite not knowing whether there were tile-setting tools in the large Tupperware container or in the cab of the truck, Creghan found Tedder's explanation suspicious.[1] Thus, Creghan requested identification from both Tedder and his companion. Both immediately provided driver's licenses which showed addresses in Panama City. Creghan then requested a warrants check on both men.
The warrants checks on both men came back clear; however, Creghan did not return the driver's licenses to Tedder or his companion. Instead, Creghan separated *1057 the two men and instructed Tedder to stand with one back-up officer while Creghan and another back-up officer moved a short way off to speak with Tedder's companion. Creghan spoke alternately with Tedder and his companion for twenty to thirty minutes, all while retaining Tedder's driver's license and while having Tedder stand with a back-up officer.
During the twenty to thirty minutes of questioning, Tedder and his companion gave conflicting accounts of their trip to the Fort Myers area and their activities since they had arrived. Because of this, Creghan decided to have the back-up officers complete "Field Interrogation Cards" on both men. Creghan handed Tedder's driver's license to one of the back-up officers to use in completing the "Field Interrogation Card." At the same time, Creghan called for a canine officer to respond to the scene. The canine officer arrived with Rex while the back-up officers were completing the Field Interrogation Cards, and Rex alerted to Tedder's truck. The resulting search revealed physical evidence that tied Tedder to a home invasion robbery that had occurred two weeks earlier.
Tedder subsequently sought to suppress the evidence obtained during the time between the completion of the warrants check and Rex's alert on his truck. This evidence consisted primarily of statements that, while not directly incriminating, could have raised a reasonable suspicion that Tedder and his companion had been involved in criminal activity. After considering the testimony of both Creghan and Tedder, the trial court found that the two had engaged in a consensual encounter until Rex alerted on Tedder's truck. This finding was based primarily on the fact that Creghan did not use his emergency lights or sirens, did not display his badge, did not remove his gun from his holster, did not order Tedder around, and did not handcuff or physically restrain Tedder. According to the trial court, these facts showed that Creghan did not use his authority to keep Tedder from leaving and going about his business, thus rendering the encounter a purely consensual one. Based on these findings, the trial court denied Tedder's motion to suppress the evidence obtained during the twenty to thirty minutes between the warrants check and Rex's alert. I believe this was error.
When considering a trial court's ruling on a motion to suppress, this court must defer to those factual findings that are supported by competent, substantial evidence. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). This court then reviews the application of the law to those facts de novo. Id. Here, the trial court's factual findings are supported by competent, substantial evidence so far as they go. However, the trial court's ruling completely ignores the undisputed fact that Creghan retained Tedder's identification for twenty to thirty minutes after the warrants check came back clear while he separated Tedder and his companion, had them each stand with a back-up officer, and then alternately questioned them about their activities. In my opinion, this fact is dispositive of this case and establishes that the initial consensual encounter morphed into an illegal detention.
As a general proposition, the police may request identification from a citizen during a consensual encounter and may briefly retain that identification for a reasonable time without converting the consensual encounter into a detention. See, e.g., Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (holding that "even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual's identification, *1058 and request consent to search his or her luggage, as long as the police do not convey a message that compliance with their requests is required" (internal citations omitted)); Golphin v. State, 945 So.2d 1174, 1177 (Fla.2006) (holding that the temporary retention of an identification card during a warrants check did not constitute a detention when the identification had been voluntarily given to police during a consensual encounter); Mays v. State, 887 So.2d 402, 403 (Fla. 2d DCA 2004); Watts v. State, 788 So.2d 1040 (Fla. 2d DCA 2001) (en banc). When the police have obtained and retained a citizen's identification during a consensual encounter, the question of whether that consensual encounter has been transformed into an investigatory detention is answered by considering the totality of the circumstances, including those involving the officer's approach to the citizen, the officer's demeanor during the encounter, and the circumstances surrounding the request for and retention of the identification. Golphin, 945 So.2d at 1184. Thus, if the police retain the citizen's identification for longer than the time reasonably necessary to conduct that warrants check or if the police engage in other actions that reflect a show of authority, the totality of the circumstances may show that these actions have transformed the consensual encounter into an investigatory detention. See, e.g., Bostick, 501 U.S. at 435, 111 S.Ct. 2382; Florida v. Royer, 460 U.S. 491, 501-02, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Mays, 887 So.2d at 403 n. 2 (noting that "there are instances when a police officer may transform a consensual encounter into a stop by retaining a driver's license in order to unreasonably delay the encounter"); Brye v. State, 927 So.2d 78, 82 (Fla. 1st DCA 2006) (holding that when an officer retained the citizen's identification after a warrants check came back clean, the citizen was effectively seized); State v. Campbell, 911 So.2d 192, 192-93 (Fla. 4th DCA 2005) (holding that a consensual encounter becomes a detention when the police continue to retain a citizen's identification after a warrants check has come back clean), review granted, 925 So.2d 1031 (Fla.2006); Golphin v. State, 838 So.2d 705, 707 (Fla. 5th DCA 2003) (noting that the police may engage in "further conduct" after a warrants check that causes a consensual encounter to lose its consensual nature), aff'd, 945 So.2d 1174 (Fla.2006). In that case, if the police do not have the reasonable suspicion necessary to support an investigatory detention after the completion of the warrants check, the continued retention of the citizen's identification constitutes an illegal detention. Campbell, 911 So.2d at 193.
In this case, the undisputed evidence shows that Creghan retained Tedder's driver's license while he questioned Tedder for twenty to thirty minutes after the warrants check came back clear. Moreover, even when Creghan decided to stop questioning Tedder, he did not return Tedder's driver's license but instead gave it to the back-up officer for use in completing a "Field Interrogation Card." Based on these undisputed facts, the trial court erred when it found that the consensual encounter lasted until Rex alerted to Tedder's truck. While the trial court's finding that Creghan and the other officers did not show authority by using their emergency lights or sirens, displaying their badges, removing their guns from their holsters, or ordering Tedder around is supported by the evidence, the trial court made no finding whatsoever as to the effect of Creghan's retention of Tedder's driver's license for twenty to thirty minutes on the consensual nature of the encounter. This extended retention of a driver's license is exactly the type of action that can transform an otherwise consensual encounter *1059 into an investigatory detention. Golphin, 945 So.2d at 1185 ("While a noncompulsory request for an individual's identification has been unlikely to implicate the Fourth Amendment in isolation, the retention of identification during the course of further interrogation or search certainly factors into whether a seizure has occurred."); Mays, 887 So.2d at 403 n. 2.
Moreover, the fact that the document retained by Creghan was Tedder's driver's license reinforces the nonconsensual nature of the encounter after the completion of the warrants check. In Golphin, the supreme court recognized that when a police officer obtains and then retains a driver's license from a motorist, that motorist is "`effectively immobilized.'" Golphin, 945 So.2d at 1186 (quoting United States v. Thompson, 712 F.2d 1356, 1359 (11th Cir. 1983)). "`A reasonable person in these circumstances would not have believed himself free to leave. If Thompson had tried to drive away he could have been arrested for driving without a license.'" Golphin, 945 So.2d at 1186 (quoting Thompson, 712 F.2d at 1359-60). The court then recognized that the same analysis would not necessarily apply if the person speaking with the officer was a pedestrian. Golphin, 945 So.2d at 1186, 1188.
Here, Tedder and his companion were found standing next to Tedder's truck behind an open gas station. Tedder lived in Panama City, and his encounter with Creghan occurred approximately 500 miles away in Fort Myers. Tedder told Creghan that he was not in the area permanently; he had driven to Fort Myers with his companion because his companion had a job setting tile in the area. In addition, Tedder had personal belongings in his truck. Under these circumstances, Tedder was more akin to a motorist than a pedestrian. Faced with this situation, no reasonable person would believe that he could abandon his driver's license, his personal belongings, and his only means of transportation 500 miles from home and simply walk away from the encounter.
I recognize that the supreme court has eschewed any attempt to draw a bright line when it comes to determining what actions may constitute a detention for Fourth Amendment purposes. See Golphin, 945 So.2d at 1183-84. I do not attempt to draw such a bright line here, nor do I attempt to suggest that an officer must thrust identification back upon a citizen immediately once a warrants check comes back clear. I suggest only that retaining the driver's license of a motorist who is 500 miles from home while conducting a twenty to thirty minute interrogation of that motorist constitutes a detention of that motorist that must be supported by a reasonable suspicion of criminal activity. Because Creghan had no such reasonable suspicion in this case, I believe the trial court should have granted Tedder's motion to suppress the evidence obtained after the warrants check came back clear.
NOTES
[1] Creghan noted that the two men saw his cruiser before he pulled behind the Mobil station and that they took no steps to leave. Creghan testified that he found it suspicious that the men did not try to get in the truck and leave before he arrived. Presumably, Creghan would have also found it suspicious if the men had, in fact, tried to leave. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560641/ | 281 Md. 514 (1977)
380 A.2d 216
MAYOR AND CITY COUNCIL OF BALTIMORE
v.
KELSO CORPORATION ET AL.
[No. 42, September Term, 1977.]
Court of Appeals of Maryland.
Decided December 7, 1977.
The cause was argued before MURPHY, C.J., and SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.
*515 Richard K. Jacobsen, Chief Solicitor, with whom were Benjamin L. Brown, City Solicitor, and Ambrose T. Hartman, Deputy City Solicitor, on the brief, for appellant.
Jonathan A. Azrael and Edward Azrael, with whom were Azrael & Gann on the brief, for appellees.
DIGGES, J., delivered the opinion of the Court.
This appeal arises as a result of what appellee Kelso Corporation[1] asserts was appellant Baltimore City's fraudulent invocation of the "quick take" provisions of the Code of Public Local Laws of Baltimore City, which allow the City to take immediate possession of and title to property it seeks to condemn prior to a final determination of its value. Code of Public Local Laws of Baltimore City § 21-16 (1969, 1977 Cum. Supp.) (also set out in 1972 Md. Laws, ch. 420) (authorized by Md. Const., art. III, § 40A). Since we conclude that the City's exercise of its quick-take power was authorized, and that the issue of fraud as it affects valuation must be litigated, in the circumstances present here, at the time damages are assessed, we will reverse the trial court's order voiding the taking and remand the case for a determination of the compensation to be paid by the City.
The land in question, much of which is now the site of a recently constructed Social Security Administration office building, is composed of a number of parcels located eight to ten blocks northwest of the central business district of Baltimore City. In August 1969 the property, which was zoned at the time so as to permit commercial development, was brought by Baltimore City Ordinance No. 578 within an already established Neighborhood Development Program Project. A comprehensive zoning ordinance was enacted by the city council on April 20, 1971. Baltimore City Ordinance No. 1051 (amending Baltimore City Code, Art. 30 (1966)). This ordinance changed the zoning of the Kelso land from its *516 commercial status to a residential classification, thereby, it is claimed, substantially reducing its market value. Seven months later the property was specifically approved for acquisition, by either purchase or eminent domain, as part of the renewal plan for the Orchard-Biddle neighborhood of which it is a part. Baltimore City Ordinance No. 1175 (Nov. 15, 1971) (amending Baltimore City Ordinance No. 1066 (May 17, 1971)).
In October 1972 and January, February, and May of 1973, the City filed eight separate condemnation petitions against the parcels which make up the Kelso property. Then in April, May, and August of 1973 the City filed quick-take petitions against each of the parcels and deposited with the court amounts equal to the appraised value of the several tracts, as required by law. See Code of Public Local Laws of Baltimore City § 21-16 (a) (1969, 1977 Cum. Supp.). Within the statutorily prescribed time limit the appellee responded by filing an answer and motion to dismiss each quick-take petition. See id. § 21-16 (c). However, in early November 1973, before any hearing on the matter, Kelso withdrew its earlier motions to dismiss the City's quick-take petitions; on November 8, the court granted Kelso's request to be permitted to withdraw the funds deposited by the City.
Although it had collected the deposited funds, Kelso, as a result of answers it received from the City to inquiries made during discovery procedures, filed a motion on March 26, 1975, to dismiss the City's quick-take petitions and thus divest it of title and possession of the property. As the basis for this motion Kelso alleged that it was not necessary for the City to take the land and that the City had fraudulently used its zoning powers in order to deprive it of just compensation by adversely affecting the value of the real estate. According to Kelso, the property was downzoned so that it could be acquired at a depressed price (approximately two dollars per square foot being the amount deposited with the court), and then rezoned for commercial use by Baltimore City Ordinance No. 774 (Dec. 17, 1974); in this manner, the appellee urges, the City planned to profit at Kelso's expense by the sale of the land to the federal government as the site for a Social *517 Security Administration office building at a price of eight dollars per square foot. Based on evidence introduced at a hearing on these allegations, the Court of Common Pleas of Baltimore City, Cardin, J., accepted Kelso's contentions and entered an order granting its motion to divest the City of possession and title to the property. The City appealed to the Court of Special Appeals and we granted certiorari before consideration of the matter by that court.[2]
The principle which governs our determination to void the trial court's decision upholding Kelso's attack on the City's use of the quick-take procedure a ruling rendered almost three years after the City entered into possession is a simple one, and may be gleaned from a perusal of the statutory provisions controlling the immediate taking of property by the City:
(a) Whenever any proceedings are instituted ... by the Mayor and City Council of Baltimore for the acquisition of any property for any public purpose whatsoever, the [City] ... may file a Petition under oath stating that it is necessary for the City to have immediate possession of or immediate title to, and possession of said property, and the reasons therefor.
* * *
(c) In cases where the City files a Petition for immediate taking ... possession and title thereto shall irrevocably vest in the Mayor and City Council of Baltimore ten days after personal service of the petition upon [the property owner] unless [the owner] shall file an answer ... within the ... ten day period alleging that the City does not have the right or power to condemn title to the property.... [Code *518 of Public Local Laws of Baltimore City § 21-16 (1969, 1977 Cum. Supp.) (emphasis added).]
These sections make clear that, unless the "right or power to condemn title" is challenged, if the City has complied with the procedural requirements of section 21-16 a property owner has no basis for attacking the immediate taking of his property under the statute.[3] Since Kelso has never contended that the City did not comply with the formal requirements mandated by section 21-16 (a),[4] and has repeatedly emphasized that it does not dispute the City's right and power to condemn, title and possession vested in the City ten days after Kelso withdrew its original answer and objection to the quick-take petitions, and may not now be attacked.[5] Kelso's motion to strike the court's orders granting immediate title and possession to the City was therefore inappropriate, and the trial court erred in granting it.
Though the appellee is prohibited from proceeding in the manner attempted here, our ruling does not mean that it may not, upon a proper showing, otherwise reach its real objective not ownership of, but just compensation for, the property taken based on a commercial zoning classification. As Kelso itself notes in its brief, the thrust of its attack was "directed at the City's use of quick-take procedures ... to carve out a date of taking when the value of the ... properties was frozen *519 and depressed by reason of down-zoning in advance of condemnation." By proceeding as it did, Kelso states, it was simply attempting to establish a new date of taking for purposes of valuation.
While it is clear that the date of taking here occurred in early November 1973, see Md. Code (1974), § 12-102 (1) of the Real Property Article,[6] and that normally "the value of the property ... shall be determined as of the date of the taking," id. § 12-103, this valuation date is not immutable. Since no one will be permitted to benefit by his own fraudulent action, see Bowie v. Ford, 269 Md. 111, 119, 304 A.2d 803, 808-09 (1973); Rosenthal v. Mahon, 65 Md. 418, 422, 5 A. 246, 248 (1886); cf. Figinski v. Modrak, 151 Md. 140, 146, 134 A. 130, 132 (1926), if Kelso is able to show that the City through fraud manipulated the date of valuation to Kelso's detriment, the court can remedy the injustice by ignoring the statutory date and allowing the jury to consider such factors as will allow the property owner to receive just compensation free of any effect of the fraudulent device. This is so because the date of valuation set by statute cannot be used to deprive a property owner of the just compensation he is entitled to receive under sections 40 and 40A of Article III, and section 1 of Article XI-B of the Maryland Constitution. Support for this proposition is found in the decision of this Court in Carl M. Freeman, Inc. v. St. Rds. Comm'n, 252 Md. 319, 329-30, 250 A.2d 250, 255 (1969), where Judge Finan, speaking for the Court, stated:
[I]n a case where the direct and sole purpose of the ordinance is to depress property values, ... we must weigh the public purpose sought to be advanced and the means taken to achieve it, in light of the constitutional right of the property owner to receive *520 just compensation for his property taken by eminent domain. In such a situation the Walls of Jericho must fall and the property owner be permitted to defend himself against the ordinance. The ordinance is directly involved and is directly impinging upon one of his constitutional guarantees. The property owner must be protected from prejudicial evidence as to value based on restrictions on the use of his property unconstitutionally impressed as part of a design to freeze or depress its value. To hold otherwise is to deprive him of the opportunity to receive just compensation for his property guaranteed by section 40 of Article III of the Constitution of Maryland.
In fact, the City recognizes, as it must, that under this Court's decisions it cannot use zoning to depress land values so as to reduce the damages paid by the sovereign when it otherwise validly invokes its power to condemn. Arnold v. Prince George's Co., 270 Md. 285, 294-95, 311 A.2d 223, 228-29 (1973); Hoyert v. Bd. of County Comm'rs, 262 Md. 667, 672-74, 278 A.2d 588, 591-92 (1971); Carl M. Freeman, Inc. v. St. Rds. Comm'n, supra; Krieger v. Planning Commission, 224 Md. 320, 323-24, 167 A.2d 885, 887 (1961) (dictum) (stating rule); Cong. School v. Roads Commission, 218 Md. 236, 241, 146 A.2d 558, 560 (1958) (dictum) (same). We also observe that even if Kelso cannot establish a fraudulent intent to depress the value of the property, it will still be entitled to show, if it can, the probability that the land would be rezoned within a reasonable time after the condemnation, as well as evidence as to the effect of such a probability upon the property's value at the time of the taking. E.g., Shell Oil Co. v. Supervisor, 278 Md. 659, 665-66, 366 A.2d 369, 373 (1976) (citation of authorities); State Roads Comm. v. Orleans, 239 Md. 368, 379, 211 A.2d 715, 722-23 (1965); State Roads Comm. v. Warriner, 211 Md. 480, 489, 128 A.2d 248, 251-52 (1957).
For these reasons, we vacate the order of the Court of Common Pleas of Baltimore City granting Kelso's motion to strike orders giving immediate possession and title to the *521 City, and remand the case to that court for a determination of the just compensation to be paid for the taking.
Order of the Court of Common Pleas of Baltimore City dated October 29, 1976, vacated and case remanded to that court for further proceedings to determine the amount of compensation to be paid by Baltimore City for the land taken.
Costs to be paid by the appellees.
NOTES
[1] The record discloses that another corporation and two individuals having some interest in the properties sought to be condemned were named as defendants in these condemnation proceedings. Because there is no dispute among them with reference to the issues here, for convenience we will refer to the group as Kelso Corporation or the appellee.
[2] Though the appellee has moved to dismiss this appeal as premature, it is obvious that it is properly before this Court. The appellants have a right of appeal under section 12-303 (a) of the Courts Article, Md. Code (1974, 1977 Cum.Supp.) (appeal from interlocutory order with regard to possession of property), and possibly under section 21-16 (c) of the Code of Public Local Laws of Baltimore City (1969, 1977 Cum. Supp.), the statute involved here.
[3] To the extent that Free State Realty v. City of Balto., 279 Md. 550, 557-60, 369 A.2d 1030, 1034-35 (1977), may be read to suggest that use of quick-take procedures by Baltimore City can be challenged on grounds other than facial non-compliance with the statutorily mandated requirements or lack of power to condemn, such a suggestion was not intended and we reject it.
[4] Where the requirements are complied with on their face, as, for example, with a statement of the reasons for the necessity for immediate possession, the court will make no further inquiry. See Segall v. City of Baltimore, 273 Md. 647, 331 A.2d 298 (1975) (per curiam).
[5] Although the appellee in November 1973 withdrew its early objection to the City's right and power to condemn, so that no hearing was held on the issue, there is no doubt that the City had such power. The statutory basis for its condemnation power, Baltimore City Ordinance No. 1175 (Nov. 15, 1971), meets the constitutional requirement that the power to condemn can only be exercised for a public use, since the uses contemplated by that ordinance are similar to those found constitutional by this Court on several occasions. See Free State Realty v. City of Balto., 279 Md. 550, 557, 369 A.2d 1030, 1034 (1977); Master Royalties v. Balto. City, 235 Md. 74, 84-86, 200 A.2d 652, 657-58 (1964); Herzinger v. City of Baltimore, 203 Md. 49, 59-62, 98 A.2d 87, 91-93 (1953).
[6] Section 12-102 (1) reads:
In this title, property is deemed to be taken:
(1) If the plaintiff lawfully is authorized to take the property before trial pursuant to Article III of the Constitution of the state, or any amendment to it, and the required payment has been made to the defendant or into court, any required security has been given, and the plaintiff has taken possession of the property and actually and lawfully appropriated it to the public purposes of the plaintiff. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560658/ | 475 Pa. 297 (1977)
380 A.2d 362
COMMONWEALTH of Pennsylvania
v.
Paulette WHITFIELD, Appellant (two cases).
Supreme Court of Pennsylvania.
Argued January 21, 1977.
Decided December 1, 1977.
*298 *299 Gilbert E. Toll, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Gaele Barthold, Philadelphia, for appellee.
Before EAGEN, C.J., and O'BRIEN, ROBERTS, POMEROY and MANDERINO, JJ.
OPINION
EAGEN, Chief Justice.
Paulette Whitfield was convicted in a nonjury trial in Philadelphia of murder of the third degree and possessing an instrument of crime generally.
*300 Initially a prison sentence of 9 months to 5 years was imposed on the murder conviction. However, upon reconsideration this was changed by the court to 5 years probation. A concurrent period of 5 years probation was also imposed on the remaining conviction. These appeals are from these orders.[1]
Whitfield contends that the Commonwealth failed to sustain its burden of proving her sanity beyond a reasonable doubt, and even if it did meet this burden, the trial evidence was only sufficient to support a verdict of voluntary manslaughter rather than murder of the third degree. The Commonwealth's trial evidence established the following.
On October 29, 1974, at approximately 5:00 p.m. Whitfield went to her mother's house which was located across the street from her own residence. An argument ensued between Whitfield and Staunton "Stoney" Parker, the mother's common law husband, and to alleviate the situation Whitfield's mother pushed Parker out of the house.
Parker, a drug addict, then left for an appointment at a methadone clinic. Whitfield proceeded to her own house and came back outside carrying a knife. Her mother and others took the knife from her. Parker returned about an hour later. Having obtained a second knife, Whitfield walked from her own house over to where Parker was parking his car, a distance of 20 feet, and stabbed him once in the upper thorax. The wound was fatal.
The defense first offered the testimony of eight character witnesses. Whitfield's brother, Michael, then testified to events before and after the killing. Another brother, Clarence, testified to his observations of the stabbing incident and also to Staunton Parker's previous sexual molestations of Whitfield. Upon taking the stand, Whitfield testified mainly to the indignities and sexual abuses suffered at the hands of the decedent when she was 11 to 14 years old, and *301 to a sealed letter she had written to her mother concerning these matters. In its opinion, the trial court noted:
"It would appear that the defendant may very well have suffered some traumatic experiences, but by her own testimony, the latest of such incidents occurred approximately 7 years prior to the homicide."
Dr. Perry A. Berman, a psychiatrist, testified for the defense and expressed the opinion that Whitfield suffered a temporary psychosis and at the time of the stabbing was unable to distinguish right from wrong. In rebuttal, the Commonwealth called Dr. Robert L. Sadoff, a psychiatrist, who expressed the opinion that at the time of the incident Whitfield was relatively normal; that she knew it was wrong to stab another person; and, that she was aware of the nature and quality of the act of using a knife on another person. Dr. Sadoff concluded that Whitfield was not temporarily insane, at least at the instant when the knife went into Staunton Parker's body.
Whitfield argues that the testimony of the Commonwealth's psychiatrist, Dr. Sadoff, was not sufficient to establish her sanity beyond a reasonable doubt particularly when considered with the testimony of Dr. Berman. Although Dr. Sadoff admitted the possibility that, under circumstances similar to the facts of this case, a person could suffer a temporary insanity or psychosis, he stated clearly that this did not happen to Whitfield and contrary to what she asserts, he gave a convincing explanation for his conclusion.
In a related argument Whitfield asserts the trial court failed to consider the testimony of Dr. Berman in adjudicating Whitfield's competency at the time of the homicide. This is inaccurate as demonstrated by the following included in the court's opinion filed in support of his adjudication:
"[Dr. Berman,] in effect, stated that it was his opinion that for a few moments before, during and after the stabbing, the defendant was temporarily psychotic; that in legal terms, she was temporarily insane, being unable to determine right from wrong.
* * * * * * * * * * *
*302 "In considering all of the testimony, including the opinions of both psychiatrists, this court has concluded that the defendant failed this [M'Naghten] test and that she was legally sane when she fatally wounded the decedent."
In any event, our standard of review is a limited one. Psychiatric testimony, like any other evidence, is for the trier of fact to consider and to determine what weight it should be given. Commonwealth v. Davis, 462 Pa. 27, 31, 336 A.2d 888, 890, cert. den. sub nom. Davis v. Pennsylvania, 423 U.S. 1019, 96 S.Ct. 456, 46 L.Ed.2d 391 (1975); Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972). From an independent examination of the whole record, we hold that in the instant case the judge, sitting as trier of fact, had adequate evidence from which to conclude that the Commonwealth had borne its burden of proving Whitfield's sanity beyond a reasonable doubt.
Directing our attention now to the issue of whether the evidence presented by the Commonwealth was sufficient to support a verdict of murder of the third degree rather than voluntary manslaughter, we will briefly review the distinction between these two crimes. Portions of the relevant Pennsylvania statutes involved are set out below.[2]
*303 In Commonwealth v. Coleman, 455 Pa. 508, 510, 318 A.2d 716, 717 (1974), we said:
"To sustain a conviction of murder of either degree, the evidence must establish that the killing was committed with malice. Legal malice may be inferred and found from the attending circumstances of the act resulting in the death. It consists of either an express intent to kill or inflict great bodily harm, or of a `wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty' which indicates an unjustified disregard for the likelihood of death or great bodily harm and an extreme indifference to the value of human life." [Citations omitted.]
Also,
"[m]alice is properly implied when a deadly weapon is directed to a vital part of the body."
Commonwealth v. Palmer, 448 Pa. 282, 288, 292 A.2d 921 (1972).
In the traditional common law terminology of the criminal law, the gravamen of both murder of the first degree and voluntary manslaughter is the intentional, inexcusable, and unjustified killing of a human being. The hallmark of the crime of voluntary manslaughter, as distinguished from murder, however, is the lack of malice in the legal sense of that term. Commonwealth v. Robson, 461 Pa. *304 615, 625, 337 A.2d 573, 578 [citing cases], cert. den. sub nom. Robson v. Pennsylvania, 423 U.S. 934, 96 S.Ct. 290, 46 L.Ed.2d 265 (1975). An examination of our present voluntary manslaughter statute, reveals that Section 2503(a) is in basic conformity with the traditional common law notions of voluntary manslaughter, and Section 2503(b) will effectively reduce the crime of murder to voluntary manslaughter when a person who intentionally or knowingly kills another unreasonably believes at the time of the killing the circumstances to be such that, if they existed, would justify the killing under the General Principles of Justification section of the Crimes Code, 18 Pa.C.S.A. §§ 501-510 (1973). Compare Commonwealth v. Pride, 450 Pa. 557, 301 A.2d 582 (1973); Commonwealth v. Miller, 313 Pa. 567, 170 A. 128 (1934). Although the basic notions contained in Section 2503(b) have been described as a "modern tendency, not yet far advanced," see LaFave and Scott, Handbook on Criminal Law, § 77 at 583 (1972), it is clear that Section 2503(b) is consistent with Pennsylvania law prior to the Crimes Code.
With regard to Whitfield's contention that she is guilty of voluntary manslaughter at most, we note that in Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972), this Court reversed a trial court's refusal to admit psychiatric testimony for the limited purpose of determining whether or not the defendant acted in the heat of passion when he committed the act. As Whitfield correctly notes, McCusker allows the trier of fact to place reliance upon the cumulative impact of a series of related events in making the objective determination as to what constitutes legally adequate provocation: "The ultimate test for adequate provocation remains whether a reasonable man, confronted with this series of events, became impassioned to the extent that his mind was `incapable of cool reflection.'" Commonwealth v. McCusker, Id. 448 Pa. at 389-90, 292 A.2d at 286, 290 [footnote omitted]. If and when sufficient provocation is found, then the focus of inquiry for the trier of fact shifts to the defendant's response to that provocation:
*305 "The relevant inquiry is threefold: did the defendant actually act in the heat of passion when he committed the homicide; did the provocation directly lead to the slaying of the person responsible for the provocation; and was there insufficient `cooling time' thus preventing a reasonable man from using his `reasoning faculties' and `capacity to reflect.' Absent any of these elements an accused's defense of provocation must fail and he is not entitled to a verdict of voluntary manslaughter." Id. 448 Pa. at 390, 292 A.2d at 290.
Under the applicable standard of review, Commonwealth v. Bastone, 466 Pa. 548, 353 A.2d 827 (1976), we find that there was ample evidence to sustain a conviction of murder of the third degree.
First, adequate legal provocation was absent. The dispute was over a trivial matter of blackeyed peas and leaving a door open. See Commonwealth v. Lassiter, 457 Pa. 582, 321 A.2d 902 (1974). (Argument over three dollar bet insufficient provocation to reduce crime to voluntary manslaughter.) Even assuming the presence of adequate legal provocation, it must be noted that the dispute between Whitfield and Staunton Parker took place either "about an hour" before the killing according to Whitfield's mother, or "about half an hour" before the killing according to Whitfield's own statement in the police interview sheet which is part of the trial record. Furthermore, contrary to Whitfield's occasional allusions in her brief to the victim having threatened her immediately before the stabbing, the evidence is all to the contrary. As the trial judge noted in his opinion: "The decedent was killed just as he was getting out of his automobile; he had done nothing at that time to provoke the defendant. There was no evidence, at the time of attack, of the anger, rage, sudden resentment or terror rendering the mind incapable of cool reflection necessary for a voluntary manslaughter."
In conclusion, we repeat the trier of fact has the right to reject part or all of the defendant's testimony even if uncontradicted. Commonwealth v. Coleman, 455 Pa. 508, *306 510, 318 A.2d 716, 717 (1974), citing Commonwealth v. Chermansky, 430 Pa. 170, 174, 242 A.2d 237, 240 (1968). Indeed, the court, sitting as the trier of the facts, "may believe all, a part or none of the testimony of any witness for the Commonwealth or defense." Commonwealth v. Hornberger, 441 Pa. 57, 61, 270 A.2d 195, 197 (1970) [citations omitted], and "[a] jury is still free to decide for itself the weight it wishes to give to such testimony in its determination of whether a defendant is entitled to a verdict of voluntary manslaughter." Commonwealth v. Demmitt, 456 Pa. 475, 482, 321 A.2d 627, 631 (1974), referring to Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972). See also Commonwealth v. Davis, 462 Pa. 27, 31, 336 A.2d 888, 890, cert. den. sub nom. Davis v. Pennsylvania, 423 U.S. 1019, 96 S.Ct. 456, 46 L.Ed.2d 391 (1975).
Orders affirmed.
JONES, former C.J., and NIX, J., did not participate in the consideration or decision of this case.
MANDERINO, J., concurs in the result.
NOTES
[1] The appeal from the order of probation imposed on the possession of an instrument of a crime conviction was filed in the Superior Court and certified here.
[2] "§ 2501. Criminal homicide
"(a) Offense defined. A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.
"(b) Classification. Criminal homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter."
"§ 2502. Murder
"(a) Murder of the first degree. A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
"(b) Murder of the second degree. A criminal homicide constitutes murder of the second degree when the death of the victim occurred while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
"(c) Murder of the third degree. All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.
"(d) Definitions. As used in this section the following words and phrases shall have the meanings given to them in this subsection:
* * * * * * * * * * *
`Intentional killing.' Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing."
"§ 2503. Voluntary manslaughter
"(a) General rule. A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) the individual killed; or
(2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
"(b) Unreasonable belief killing justifiable. A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title, but his belief is unreasonable."
18 Pa.C.S.A. §§ 2501, 2502, 2503 (Supp. 1977-78). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560661/ | 251 Pa. Superior Ct. 318 (1977)
380 A.2d 798
COMMONWEALTH of Pennsylvania
v.
William A. GREEN, Appellant.
Superior Court of Pennsylvania.
Submitted October 8, 1976.
Decided December 2, 1977.
*321 John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
JACOBS, Judge:
This appeal arises from appellant's conviction, in a jury trial, of rape, involuntary deviate sexual intercourse and criminal conspiracy, and from the denial of post-trial motions. Appellant raises four contentions: first, that the trial court erred in admitting portions of the hospital report made upon examination of the prosecuting witness, Patricia Ann Kimbrough Miller; second, that certain of the Assistant District Attorney's closing remarks constituted prejudicial expressions of personal belief; third, that the trial judge's charge on credibility improperly emphasized appellant's interest in the outcome of the case; and fourth, that the trial judge erroneously summarized the evidence relating to appellant's flight from the arresting officer in instructing the jury on the weight to be accorded that evidence. For the reasons that appear below, we affirm.
Shortly before midnight on March 11, 1975, Patricia Kimbrough Miller entered Bob's Bar at 27th and Popular Streets in Philadelphia. She sat down at the bar and entered into a *322 conversation with appellant and a woman identified as his wife. During the ensuing discussion the Greens invited Mrs. Miller to attend a marijuana "smoking party," to which she agreed. The three left the bar at approximately 1:00 A.M. on March 12 and proceeded by car to the location where the party was to take place. About one block from the bar, they stopped to pick up appellant's co-defendant, James Stukes.
As they continued on their way, ostensibly to a marijuana party, Mrs. Miller was informed that they first had to check on Mrs. Green's children. Green, Stukes and the two women entered a second floor apartment in North Philadelphia and, while Mrs. Miller was left alone in the living room, the others went into another room. A short time later appellant and Stukes entered the room followed by two naked men. Stukes grabbed Mrs. Miller's neck and warned her to remain quiet while appellant removed her clothing. Appellant then had vaginal intercourse with her and she was orally sodomized by Stukes. Mrs. Miller was beaten about the head and lost consciousness, returning to her senses briefly when she was forced to submit to anal penetration by an unidentified assailant. Early the next morning Mrs. Miller again regained consciousness, and finding herself alone, dressed and fled from the building. Appellant and Stukes were arrested the following day.
Appellant first contends that a portion of the medical report of Mrs. Miller's examination should have been excluded because it constituted medical opinion.[1] The examining physician noted on the report that Mrs. Miller exhibited excoriations of the left elbow and right forehead. We agree that the Uniform Business Records as Evidence Act[2]*323 does not make competent matters contained in medical records which are otherwise violative of the rules of evidence. Broadbent v. A. Moe & Co., Inc., 208 Pa.Super. 28, 33, 220 A.2d 340, 342 (1966). "The law is clear that hospital records are admissible to show [only] the fact of hospitalization, treatment prescribed, and symptoms given." Commonwealth v. DiGiacomo, 463 Pa. 449, 455, 345 A.2d 605, 608 (1975). We are not persuaded, however, that appellant's characterization of the term "excoriation" as inadmissible medical opinion is accurate.
Medical diagnosis or opinion entails a "conclusion concerning a condition not visible but reflected circumstantially by the existence of other visible and known symptoms." Paxos v. Jarka Corp., 314 Pa. 148, 153-54, 171 A. 468, 471 (1934). The existence of a readily observable physical condition, the evaluation of which does not require a complex application of technical knowledge, can as easily be ascertained by the lay person as by the trained physician. Cf., Paxos v. Jarka Corp., supra at 153-54, 171 A. at 470-71. The use of the term "excoriation" by the examining physician was merely descriptive of the symptoms exhibited by the prosecuting witness and did not involve a medical diagnosis or opinion.[3]
We may quite easily dispose of appellant's assertion that the qualifications of the admitting physician were not adequately established. It is unnecessary to qualify as an expert, merely because he is a physician, one who makes a statement that a lay person would be competent to utter.
Appellant next contends that he was denied his constitutional right to confront and cross-examine the examining physician. In Paxos v. Jarka Corp., 314 Pa. 148, 171 A. 468 *324 (1934), our Supreme Court pointed out the danger of admitting medical opinion without affording the defendant the opportunity to cross-examine the declarant concerning his qualifications and the accuracy of his diagnosis. See Paxos v. Jarka Corp., supra 314 Pa. at 154, 171 A. at 471. However, no opinion was involved here and our courts have held many times that medical records are admissible to show the fact of hospitalization treatment prescribed and symptoms given. Commonwealth v. DiGiacomo, 463 P. 449, 345 A.2d 605 (1975). The medical records were, therefore, properly admitted into evidence.[4]
Appellant also contends that the prosecutor made several prejudicial remarks in his closing argument to the jury. Only one of these statements was objected to at trial, and raised in post-trial motions. The others were therefore, waived. Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Crawford, 461 Pa. 260, 336 A.2d 275 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). The one remark of which we may take cognizance on appeal is that made by the prosecutor in referring to the testimony of two defense witnesses that they and Mrs. Miller had gone to the V and R Bar after leaving Bob's Bar. The Assistant District Attorney stated, "I don't believe the others [defense witnesses Vicky Vinson and Donna Kinley] ever went to the V and R Bar." He immediately rephrased the statement by saying, "I do not believe that you have to believe that the others ever went to the bar." N.T., November 7, 1975, at 51.
Looking at the Assistant District Attorney's remarks in their context, as we must, it is clear that his *325 expression of personal belief was harmless error.[5] The prosecutor immediately attempted to negate the effect of his earlier statement by stating, "I do not believe that you have to believe that the others ever went to the bar." N.T. November 7, 1975, at 51 (emphasis added) While the latter sentence still contains the offending "I believe," it also manages to convey the impression that the jury had to decide whether to believe the defense witnesses' testimony. That, of course, is uniquely within the province of the factfinder. Commonwealth v. Potter, 445 Pa. 284, 286, 285 A.2d 492, 493 (1971). Whatever minimal prejudice the prosecutor's remark may have engendered was harmless in light of the prosecutor's curative statement and the trial judge's charge to the jury. See N.T., November 10, 1975, at 4 and 5.
Appellant's remaining allegations of error involve the lower court's charge to the jury on the credibility of the defendants[6] and on the evidence of their flight from *326 the arresting officer. Viewed as a whole, the charge to the jury made it abundantly clear that both Mrs. Miller's testimony and that of the defendants were to be scrutinized with a jaundiced eye. See N.T., November 10, 1975, at 9, 11, 17 and 19. Likewise, the trial judge impartially instructed the jury on the weight to be accorded the conflicting testimony concerning appellant's motive for fleeing from the arresting officer. The jury charge dealt with both the inference of guilt arising from flight and the defendants' testimony that they were fleeing from Mrs. Miller's husband who appeared to have a pistol in his hand[7] and was an accurate summary of the testimony at trial. See N.T., November 10, 1975, at 21 and 22.
For the foregoing reasons, the judgment of sentence is affirmed.
NOTES
[1] Appellant concedes that the medical record as a whole was admissible under the Uniform Business Records as Evidence Act, Act of May 4, 1939, P.L. 42, No. 35, § 2, 28 P.S. § 91b.
[2] The Act provides:
"A record of an act, condition or event shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission."
Act of May 4, 1939, P.L. 42, No. 35, § 2, 28 P.S. § 91b.
[3] The word "excoriation" is quite simply defined as "any superficial loss of substance, such as that produced on the skin by scratching." Dorland's Illustrated Medical Dictionary (24th ed. 1965) at p. 553. It is thus a word of common usage in the English language rather than a medical term of art.
[4] As to appellant's assertion that the contested portion of the medical record was irrelevant, appellant failed to advance this ground for exclusion at trial. "It has long been the rule in this jurisdiction that if the ground upon which an objection is based is specifically stated, all other reasons for its exclusion are waived, and may not be raised post trial." Commonwealth v. Stoltzfus, 462 Pa. 43, 60, 337 A.2d 873, 881 (1975) (citations omitted).
[5] It is unprofessional conduct for a prosecuting attorney to state his personal beliefs to the jury. See D.R. 7-106(c)(4); American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function, § 5.8(b) (Approved Draft, 1971). See also, Commonwealth v. Stasko, 471 Pa. 373, 370 A.2d 350 (1977). Not every intemperate and improper remark by the prosecutor will require a new trial, however. Commonwealth v. Perkins, 473 Pa. 116, at 133, 373 A.2d 1076, at 1085 (1977). The effect of the remarks must be evaluated in the context in which they occurred. Commonwealth v. Perkins, supra 473 Pa. at 134, 373 A.2d at 1085, citing Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). Only if the unavoidable effect of the offending language would be to prejudice the jury and form in their minds a "fixed bias and hostility toward the defendant so that they could not weigh the evidence and render a true verdict" would reversible error exist. Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). "The cases that have held that the prejudice arising from the prosecutor's statements demanded reversal, have done so on the basis of fairly strong or abusive language." Commonwealth v. Chandler, 237 Pa.Super. 19, 25, 346 A.2d 579, 582 (1975).
[6] Appellant admits that the trial judge did discuss the prosecuting witness' credibility, but contends that he erroneously emphasized the defendant's interest in the outcome of the case. It is not error, however, for the trial judge to instruct the jury that it may consider a defendant's interest in the outcome of a case in evaluating his credibility. Commonwealth v. Matt, 248 Pa.Super. 538, 375 A.2d 371 (1977); Commonwealth v. Dolny, 235 Pa.Super. 241, 342 A.2d 399 (1975).
[7] Mr. and Mrs. Miller were with the arresting officer at the time of appellant's apprehension. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/737412/ | 108 F.3d 545
UNITED STATES of America, Plaintiff-Appellee,v.Claude Joseph GUAY, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Daniel GUAY, Defendant-Appellant.
Nos. 95-5829, 95-5830.
United States Court of Appeals,Fourth Circuit.
Argued Nov. 1, 1996.Decided March 19, 1997.
ARGUED: Mark Timothy Williams, Williams, Stilwell, Morrison, Williams & Light, Danville, VA, for Appellants. Joseph William Hooge Mott, Assistant United States Attorney, Roanoke, VA, for Appellee. ON BRIEF: Marion Lee Stilwell, Williams, Stilwell, Morrison, Williams & Light, Danville, VA, for Appellants. Robert P. Crouch, Jr., United States Attorney, Timothy Callahan, Third Year Law Intern, Roanoke, VA, for Appellee.
Before WILKINSON, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.
Affirmed and remanded in part by published opinion. Judge WIDENER wrote the opinion, in which Chief Judge WILKINSON and Judge RUSSELL concur.
OPINION
WIDENER, Circuit Judge:
1
Claude and Daniel Guay, both French-speaking Canadians, appeal their convictions following a three-day jury trial. The jury found each defendant guilty of one count of knowingly, intentionally, and unlawfully possessing with the intent to distribute cocaine, as a principal or as an aider and abettor, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The Guays contend that the district court erred in: (1) refusing to suppress their oral and written statements given to law enforcement officials; (2) rejecting their proposed jury instructions; and (3) allowing the prosecution to cross-examine Claude Guay with assertedly prejudicial questions. Daniel Guay also argues that the evidence was insufficient to support his conviction. We affirm the judgment of the district court, but remand in part.
I.
2
On January 26, 1995, a tractor trailer being operated by defendant Claude Guay wrecked in Pittsylvania County. The tractor trailer rig overturned during the wreck, and its cargo of watermelons spilled into the median on U.S. Route 29 between Chatham and Gretna, Virginia. When the Virginia State Police arrived, they found only Claude Guay at the accident scene. Daniel Guay, Claude's son and a passenger in the tractor trailer, had left the scene following the accident and walked more than a half mile before a state trooper found him. The trooper returned Daniel to an ambulance waiting at the scene.
3
During cleanup of the accident scene, eight duffel bags and a box were found, having been in the trailer underneath watermelon boxes. The bags and box contained numerous bricks wrapped in tape and black and yellow plastic. Lab testing subsequently revealed that the bricks contained 180 kilograms of 89% pure cocaine. In addition, seven of Daniel Guay's fingerprints were found on the bricks.
4
Both defendants sustained injuries in the accident and were taken to the Danville Regional Medical Center in Danville, Virginia. After the defendants' treatment and release, the Virginia State Police transported them to an administrative building in Chatham, Virginia. There, Special Agents Charlie W. Moore and Michael R. Bass of the Virginia State Police interviewed the defendants at 2:07 p.m. on the afternoon of the accident. Before each interview, the defendants executed written Miranda waiver forms printed in English.
5
After the interviews, the defendants were transported back to the hospital because Daniel Guay's arm, originally thought not to have been broken, was in fact broken. Leaving the hospital a second time, state troopers and agents of the Federal Bureau of Investigation (FBI) transported the defendants to the Virginia State Police post in Danville, Virginia.
6
Special Agent Mark L. MacKizer of the FBI interviewed Claude Guay in Danville. He first spoke with a technician in the emergency room at the hospital, who informed him that Claude was not on any narcotic or medication that would alter his judgment. Claude also executed another Miranda waiver form written in English before the interview. The interview began at 7:42 p.m. on the evening of the accident and lasted for approximately two hours.
7
After the interview, MacKizer spoke with a registered nurse at the Danville Regional Medical Center, who advised him that Claude was taking three medications: one for hypertension (which had not been given to him as a result of the accident), a non-narcotic pain killer, and an antibiotic. In addition, urine screening had been administered to Claude, and it was negative for alcohol or controlled substances.
8
Before trial, the defendants moved to suppress the written and oral statements given to the Virginia State Police and the FBI on the day of the accident. At a hearing on the motion, the defendants argued that their injuries, their lack of understanding of English as French-speaking Canadians, and the officers' failure to get an interpreter rendered their Miranda waivers and subsequent confessions involuntary. The district court found that the defendants understood English well enough to waive their rights validly. The court also concluded that the defendants' physical condition did not render their waivers invalid because the circumstances of the interviews were not so severe that the defendants' wills were overborne. Accordingly, the court denied the motion to suppress.
9
At trial, Claude Guay testified that he worked for Pierre Morrisette and that he had driven a load from Quebec to Miami International Airport, arriving on January 17, 1995. He stated that his broker then told him to go to Texas to pick up a load. He said he eventually arrived in McAllen, Texas, and realized he had forgotten his blood pressure medication. He said he had his son, Daniel Guay, fly to Texas with the medication.
10
Claude next testified that he picked up two loads of watermelons, one in Valverde, Texas, and one in Edinburg, Texas, on the way to meet his son near Houston. He said that a Mexican man approached him at a truck stop once he picked up his watermelon loads. The man allegedly told Claude he would give him $20,000 for transporting some "Mexican Smoke" to Canada. Claude said he went into the truck stop restaurant after talking with the man. He left the truck's door unlocked and ate while the man loaded the truck. He stated he did not look at what was put in the truck. He said he then picked up Daniel at another truck stop.
11
Claude further testified that Daniel went to check the watermelons' temperature during a fuel stop in Commerce, Georgia. Daniel asked his father about the suitcase in the back of the truck. Claude told Daniel not to worry about the Mexican suitcase. The pair purportedly continued their return trip to Canada without incident until the wreck in Virginia on January 26. Daniel Guay also testified at trial. He claimed he waited several days after he arrived in Texas before Claude met him. Daniel also stated that he used the name Mario Beaubien while he was in Texas because he did not have a license. The name appeared both in the truck's log book and on a receipt from a Texas hotel in which Daniel stayed.
12
Daniel further testified that when he checked the watermelons' temperature in Commerce, Georgia, he noticed the bags and looked to see what they contained. He said he did not know what was in the plastic wrapped bricks and later asked his father about the bags. Daniel stated that his father told him they were the Mexican's bags and not to concern himself with them. Daniel asserted that he never discussed the bags with his father again.
13
After the evidence was taken, the defendants submitted jury instructions that the court refused, including an instruction defining reasonable doubt. The court, however, did give a limited definition of the term after it gave the standard instruction as to the burden of proof and reasonable doubt. The district court also gave a willful blindness instruction over the defendants' objection.
14
The jury convicted both defendants on June 21, 1995. After the findings of guilt, the defendants renewed their motion of acquittal and mistrial first made during trial. On July 18, the defendants filed a motion for a new trial. Daniel Guay also filed a motion for judgment of acquittal. The district court denied these motions on September 11, 1995. The district court sentenced Claude Guay to 296 months imprisonment, five years supervised release, a $2,500 fine, and a $50.00 assessment. Daniel Guay was sentenced to 240 months imprisonment, five years supervised release, a $2,500 fine, and a $50.00 assessment.
15
The defendants now appeal their convictions on several grounds.
II.
16
We first examine the defendants' claim that the district court erroneously denied the motions to suppress their statements to the Virginia State Police and FBI on grounds that they did not knowingly, intelligently, and voluntarily waive their rights under Miranda. We review the trial court's determination regarding voluntariness de novo. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). However, the district court's pertinent findings of fact on the circumstances surrounding the confession will be accepted unless clearly erroneous. United States v. Pelton, 835 F.2d 1067, 1071-72 (4th Cir.1987), cert. denied, 486 U.S. 1010, 108 S.Ct. 1741, 100 L.Ed.2d 204 (1988).
17
Whenever a defendant is subject to a custodial interrogation, the defendant must be provided with his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Here, the government does not dispute that the defendants were in custody for purposes of Miranda. To determine whether the defendants voluntarily waived their Miranda rights, the court examines the "totality of the circumstances" in the case. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986). The crucial inquiry is whether the government's agents have overborne the subject's will or have left his capacity for self-determination critically impaired. Pelton, 835 F.2d at 1071-72. Here, the district court found that the defendants' understood English well enough and that their physical condition was such that they might waive their rights validly. We are of opinion that these findings are not clearly erroneous.
18
In deciding whether there has been a valid waiver of the right to counsel, the court should consider the background, experience, and conduct of the defendant. United States v. Young, 529 F.2d 193, 195 (4th Cir.1975). Limited ability to understand English may render a waiver of rights defective. See, e.g., United States v. Short, 790 F.2d 464, 469 (6th Cir.1986). However, such a circumstance does not necessarily thwart an effective waiver. See Campaneria v. Reid, 891 F.2d 1014, 1020 (2d Cir.1989), cert. denied, 499 U.S. 949, 111 S.Ct. 1419, 113 L.Ed.2d 471 (1991) (holding that defendant whose native tongue was Spanish was able to waive Miranda rights where he said he understood rights read to him though he spoke in broken English and lapsed into Spanish occasionally during interview).
19
The defendants argue that the officials should have located an interpreter before questioning them. The record, however, indicates that Claude Guay stated he could read English if he had his glasses. He also later demonstrated that he could write English. Because Claude did not have his glasses with him, Agent Moore read him his rights in English line by line. Claude indicated in the affirmative when asked whether he understood the rights that were read to him. When advised of his right to a lawyer, he was able to relate the term to a similar position in Canada, that of "avocat." Claude also traveled from Canada to Florida, and then to Texas, and other States, further demonstrating his ability to understand English.
20
Daniel Guay also indicated he understood English, if it was spoken slowly, at the outset of his interview. Further, the interviewing officer asked Daniel if he understood his rights as the officer read them individually. In each case, Daniel either responded affirmatively or received an explanation if he did not appear to comprehend. Based on the evidence at the hearing, including the recorded interviews of Claude and Daniel Guay, the district court's finding that the language barrier did not render the waivers defective is not clearly erroneous.
21
Nor are the district court's findings regarding the defendants' physical condition clearly erroneous. Claude was in pain during his interview and having trouble breathing. However, he never requested that either of his two interviews stop due to pain. At his first interview, he was able to answer questions and to write out his version when it was more comfortable than speaking. He was provided water and repeatedly assured that there was no hurry when he appeared to be having difficulty.
22
During the second interview, FBI agent MacKizer checked twice with the hospital to make certain Claude was not under any judgment-impairing medications during the second interview. MacKizer allowed Claude to eat dinner, take restroom breaks, and talk with his son. While Claude was eating, they discussed subjects unrelated to the accident.
23
Daniel Guay did not indicate he was in pain during his interview with Special Agent Moore. Neither Daniel nor Agent Moore were aware at first that Daniel had a broken shoulder. In addition, Daniel was able to walk over a half mile from the accident to find a phone without his injuries interfering too greatly. Like his father, Daniel never requested that the interview stop.
24
Although interrogation of a defendant in pain may be evidence tending to show an invalid waiver, Mincey v. Arizona, 437 U.S. 385, 396, 98 S.Ct. 2408, 2415, 57 L.Ed.2d 290 (1978) (defendant had gunshot wound to hip, was in intensive care, hooked to tubes in his nose and throat, and repeatedly asked for interrogation to stop), a defendant may voluntarily waive his rights even when in the hospital, on medication, or in pain. United States v. George, 987 F.2d 1428, 1430 (9th Cir.1993). Based on the record before us, the district court's determination that Claude and Daniel Guay's discomfort was insufficient to indicate an involuntary waiver was not clearly erroneous. Accordingly, the district court properly denied the defendants' motion to suppress their statements.
III.
25
The defendants next argue that the district court erroneously refused their proposed jury instructions. They also challenge two instructions the court did give defining reasonable doubt and discussing willful blindness.
A.
26
The defendants requested jury instructions on a variety of issues, all of which the district court refused. Denial of a requested jury instruction "constitutes reversible error only if the instruction: (1) was correct; (2) was not substantially covered by the court's charge to the jury; and (3) dealt with some point in the trial so important that failure to give the requested instruction seriously impaired the defendant's ability to conduct his defense." United States v. Lewis, 53 F.3d 29, 32 (4th Cir.1995).
27
It is not denied that the defendants' proposed instructions were correct statements of the law. They, however, were substantially covered by other instructions the court gave to the jury, including the proposed instructions regarding the definition of "knowingly"; treating codefendants as separate defendants when evaluating the evidence; evaluating the defendants' guilt only for the crime alleged in the indictment and not placing the defendants on trial for any other acts; credibility determinations; basing a verdict only on the evidence and inferences drawn from the evidence; constructive possession; and requiring proof beyond a reasonable doubt that the defendants knowingly possessed a controlled substance with intent to distribute.
28
We are of opinion that the instructions given by the district court covered the case in a satisfactory manner and that it was not error to refuse the instructions offered by the defendants.
B.
29
The district court declined to give an instruction offered by the defendant defining reasonable doubt and gave one of its own, which had been approved in other circuits. While we have disapproved attempts to define reasonable doubt, especially absent a specific request from the jury, we do not believe that the court's giving its own definition of that term and refusing the definition offered by the defendant was an abuse of discretion. In so holding, we assume that the instruction offered by the defendant was correct. See United States v. Oriakhi, 57 F.3d 1290, 1300-01 (4th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 400, 133 L.Ed.2d 319 (1995).
C.
30
The defendant also challenges the district court's decision to give a willful blindness instruction. The district court's willful blindness instruction in this case was taken from the Eighth Circuit and used the following language:
31
You may find that the defendant under consideration acted knowingly if you find beyond a reasonable doubt that the defendant was aware of a high probability that drugs were in the bags and that he deliberately avoided learning the truth. The element of knowledge may be inferred if the defendant deliberately closed his eyes to what otherwise would have been obvious to him. You may not find that the defendant under consideration acted knowingly, however, if you find that he actually believed that the contents of the bags were something other than drugs. A showing of negligence, mistake or carelessness is not sufficient to support a finding of knowledge.
32
This circuit approves willful blindness instructions when the jury is not permitted to infer guilty knowledge from a mere showing of careless disregard or mistake. United States v. Mancuso, 42 F.3d 836, 846 (4th Cir.1994). "A willful blindness instruction is appropriate when the defendant asserts a lack of guilty knowledge but the evidence supports an inference of deliberate ignorance." United States v. Abbas, 74 F.3d 506, 513 (4th Cir.1996) (quoting United States v. Gruenberg, 989 F.2d 971, 974 (8th Cir.), cert. denied, 510 U.S. 873, 114 S.Ct. 204, 126 L.Ed.2d 161 (1993)).
33
Claude and Daniel Guay's stated defense was that they did not know the bags they were transporting contained drugs, asserting a lack of guilty knowledge. Claude Guay claims he accepted $20,000 to transport, without inquiry as to the contents, several bags belonging to a man he met at a truck stop. Law enforcement officials testified that Claude said he thought the bags contained marijuana during interviews on the day of the accident, while he stated at trial that he thought they contained untaxed cigarettes. In either case, Claude asserted he never investigated his suspicions further. In addition, Daniel Guay's fingerprints were found on the cocaine bricks, yet he later claimed he dropped the subject with his father after inquiring about the bags only once. This evidence was sufficient for the jury to infer that the Guays consciously closed their eyes to their involvement in an obvious drug transaction, and supports an inference of deliberate ignorance. Thus, the court's willful blindness instruction was appropriate. Moreover, the charge given satisfies Mancuso 's standard. It expressly instructs the jury that a finding of "negligence, mistake or carelessness" does not justify an inference of knowledge. We are of opinion the district court did not err in giving the instruction on willful blindness.
IV.
34
During cross-examination of Claude Guay, the government's attorney asked him whether he knew his employer and another truck driver were drug dealers or traffickers. Also, the government's attorney asked whether Claude knew a fellow truck driver named Marcel Pinet, and when Claude said yes, he was asked whether he knew that Pinet was involved in drug trafficking and was in federal prison in Florida on drug charges. In addition, the attorney asked Claude whether the trucking company by which he was employed had ties to Bogota, Colombia. The government further asked whether Claude might have transported U.S. currency from Canada to Florida. Defense counsel objected to some of these questions at the time and later moved for a mistrial at the conclusion of the evidence.1
35
Subsequently, the defendants filed a motion for a new trial based on Claude's cross-examination, asserting that the government's questioning constituted prosecutorial misconduct and was designed solely to inflame the jury. The district court took evidence and heard argument on this point. At the hearing, the government introduced a sealed document that it claimed supported its inquiries. The district court denied the motion for a new trial. The defendants now claim that the government's questioning prevented them from having a fair trial. They thus claim the district court erred in denying their motions for a mistrial2 or a new trial.
36
A district court's refusal to grant a mistrial will be reversed only for an abuse of discretion. See United States v. Smith, 44 F.3d 1259, 1267 (4th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 1970, 131 L.Ed.2d 859 (1995). Moreover, it is well-settled that the scope of cross-examination lies in the discretion of the district court. United States v. Hall, 342 F.2d 849, 854 (4th Cir.), cert. denied, 382 U.S. 812, 86 S.Ct. 28, 15 L.Ed.2d 60 (1965). In addition, a defendant who chooses to testify on his own behalf subjects himself to legitimate and pertinent cross-examination to test his veracity and credibility. United States v. Pennix, 313 F.2d 524, 528 (4th Cir.1963). Here, the defendants disclaimed knowledge of the cocaine in their trailer, and the cross-examination of Claude Guay regarding his awareness of his associates' activities thus bore on the events and issues at trial.
37
A cross-examiner inquiring into specific instances of a defendant's misconduct must have a good-faith factual basis for such questions. See Michelson v. United States, 335 U.S. 469, 481, 69 S.Ct. 213, 221, 93 L.Ed. 168 (1948); United States v. Lamarr, 75 F.3d 964, 971 (4th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 358, 136 L.Ed.2d 250 (1996). We have affirmed a district court's judgment granting a writ of habeas corpus when the prosecution asked the defendant about his prior acts or convictions without a good-faith basis for the assertions. Foster v. Barbour, 613 F.2d 59, 60 (4th Cir.1980); Watkins v. Foster, 570 F.2d 501, 505-06 (4th Cir.1978). Other circuits have reached a similar conclusion concerning questions about a witness's prior convictions. United States v. Ruiz-Castro, 92 F.3d 1519, 1528-29 (10th Cir.1996); United States v. McBride, 862 F.2d 1316, 1320 (8th Cir.1988).
38
Although this case does not involve Claude Guay's prior acts or convictions as such, we think the same reasoning applied in those cases should apply here. When the defendants' attorney objected to the inquiries at trial, the prosecutor stated that he had support for the questions.3 Defense counsel did not then demand the specific basis for the questions. At the hearing on the defendants' motion for a new trial, the government submitted a sealed U.S. Customs investigative report that formed the basis for the cross-examination questions to which defense counsel so objected. The district court examined the report in camera. We have also reviewed this document and are satisfied that the government had a good-faith factual basis for asking its questions.4
39
The defendants' reliance on United States v. Hall, 989 F.2d 711 (4th Cir.1993), is misplaced. In Hall, the prosecutor displayed before the jury a written statement taken from the defendant's wife that the prosecutor knew to be inadmissible. We held that a prosecutor cannot introduce inadmissible evidence through artful cross-examination. Hall, 989 F.2d at 716. Here, the government possessed an official investigative report, which was filed with the court under seal, that gave the prosecutor a good-faith basis for asking the questions relating to Claude's associates. Furthermore, the defendants' asserted lack of knowledge of the drug trade rendered the evidence probative. Accordingly, we conclude that the district court was within its discretion in allowing the questioning and in refusing the defendants' motion for a new trial. But there remains the question of the in camera examination of the Customs investigative report. We doubt that it is proper to sustain a conviction on the basis of a paper which neither the defendant nor his attorney had an opportunity to examine. That is too close to Star Chamber. See United States v. Truong Dinh Hung, 667 F.2d 1105, 1108 (4th Cir.1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1004, 71 L.Ed.2d 296 (1982).
40
We are of opinion that the district court was correct in its holding that its finding of good faith on the part of the government's attorney need not have been made contemporaneously with the cross-examination. But to base the finding on a paper which neither the defendant nor his attorney have yet seen is impermissible.
41
Accordingly, we affirm without qualification the convictions of both of the defendants in this case on every point raised on appeal except the cross-examination of Claude Guay, mentioned in Part IV of this opinion. If nothing else appears, we also affirm the conviction of both of the defendants on account of such cross-examination. But solely because of the question of the in camera examination of the Customs investigative report and because the defendants have the right to object after seeing the papers justifying the cross-examination, we remand this case to the district court with directions that it permit the attorney for the defendants to examine the redacted Customs investigative report after having been ordered by the district court to disclose the contents thereof to no one other than his client. See Truong Dinh Hung, 667 F.2d at 1108.
42
We have reviewed the Customs investigative report at length. The only objectionable questions remaining at issue are those discussed in Part IV of this opinion in footnote 3. We are of opinion, absent argument by the defendants, that the report can be redacted so as not to jeopardize any ongoing investigation yet still demonstrate the government attorney's good-faith basis for these questions. The government's objection to redaction, made at trial, is not well taken.
43
Although we affirm, we therefore remand this case to the district court. On remand the district court will redact the Customs investigative report and then allow the defendants to examine the Customs investigative report in redacted form.
44
Should the defendants, following such examination, move to vacate the convictions of the defendants on that ground alone, the district court will arrange such a hearing as it may deem appropriate, and following such hearing, either vacate the convictions and order a new trial, or deny the motion, after which the defendants may take such action as they may be so advised.
V.
45
Daniel's final contention is that the evidence was insufficient to support the verdict against him. On direct appeal, we affirm decisions questioning the sufficiency of the evidence "if there is substantial evidence, taking the view most favorable to the Government, to support ... [the conviction]." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).
46
Daniel Guay claims the government failed to introduce any evidence showing that he knowingly possessed the cocaine on or about January 26, 1995 with the intent to distribute it or that he was aiding and abetting one in doing such. Daniel urges that the evidence merely established that he was present in a tractor trailer containing cocaine, that he was related to someone who was transporting cocaine, and that at some point he left fingerprints on the outside wrappings of the cocaine blocks.
47
He relies on the case of United States v. Townley, 942 F.2d 1324 (8th Cir.1991). In Townley, the authorities raided an apartment and recovered narcotics. The defendant's fingerprints appeared on some of the tape that wrapped the narcotics. No other evidence connected the defendant with the drugs. The court held that the evidence was insufficient to support the defendant's conviction of possessing cocaine with intent to distribute. Townley, 942 F.2d at 1326.
48
We, however, are of opinion that substantial evidence supports Daniel Guay's conviction. Unlike Townley, the government here offered corroborating evidence in addition to the fingerprints proving that Daniel had knowledge of the cocaine. Daniel initially denied knowledge of the cocaine-filled bags when he spoke with the police. Daniel and Claude's later explanation that Daniel touched the bags only when he went to check the temperature of the watermelons may well not have been believed by the jury in view of this and other evidence which tended to show the bags were located underneath watermelon boxes stacked to the ceiling about a third of the way up in the trailer. Daniel would have had to move many heavy watermelon boxes to touch the bags. One could accordingly infer that he touched the bags at or before the time when the bags were loaded between the watermelon boxes.
49
In addition, Daniel's explanation for his trip to the United States is questionable. The defendants testified that Daniel needed to bring blood pressure medication to his father. However, they could not explain why they did not use an overnight service to send the medicine if the medication was so critical. Nor could Daniel adequately explain why he waited in a hotel for several days before seeing his father to give him the important medicine.
50
After the wreck, a state trooper found Daniel walking rapidly away from the scene of the accident. He professed a need to make a phone call, but he had already passed by a store with a phone. Furthermore, Daniel used a false name on hotel records and in the truck's log book. Other corroborating evidence includes the family relationship, the large quantity of cocaine, and the conflicting statements father and son gave during their interviews on the day of the accident.
51
Viewing the evidence in the case in the light most favorable to the government, we are of opinion that it supports a finding that Daniel knew of the cocaine. Thus, we hold that the evidence supports the verdict.
52
Accordingly, the judgment of the district court is
AFFIRMED AND REMANDED.5
1
Although they now claim the government's Bogota and U.S. currency references as error, the defendants have not favored us with any page references revealing contemporaneous objections to these questions. Nor can we locate any such objections in our own review of the record. While the government claims that trial exhibits, shipping documents admitted into evidence by the defense, support the Bogota references, it has not included them in the appendix. In any event, we conclude that the Bogota and U.S. currency inquiries did not constitute plain error and therefore will not consider them further
Even if, by stretching, we might say an objection was lodged to the question with reference to U.S. currency, it was that the question had been asked and answered, and the district court sustained the objection.
A further claim on appeal that "the government made allegations that Claude Guay was transporting drug money from Canada to Florida" is not supported in the record.
2
The motion for a mistrial was not contemporaneous, but in the setting here that made no difference
3
The questions we consider here are whether Claude knew his employer, Morrisette, and Pinet were drug dealing and the like, and whether Pinet was in federal prison on drug charges
4
The questions regarding the status of Claude Guay's employer as a drug dealer or trafficker were supported by the investigative report, as was the question concerning Marcel Pinet's incarceration
5
See United States v. Truong Dinh Hung, 629 F.2d 908, 931 (4th Cir.1980) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1539750/ | 369 B.R. 111 (2007)
Houlihan Lokey HOWARD & Zukin Capital, Appellant,
v.
HIGH RIVER LIMITED PARTNERSHIP, Meadow Walk Limited Partnership, and XO Communications, Inc., Appellees.
No. 05 Civ. 5726(BSJ).
United States District Court, S.D. New York.
April 24, 2007.
*112 Opinion
BARBARA S. JONES, District Judge.
Appellant Houlihan Lokey Howard & Zukin Capital ("Houlihan") appeals from the March 9, 2005 Memorandum Decision of U.S. Bankruptcy Judge Arthur J. Gonzalez awarding Houlihan approximately $4 million in fees related to financial restructuring services it provided to Appellee XO Communications ("XO"), less approximately $2 million in monthly payments already paid, for a net fee award of approximately $2 million. For the reasons stated herein, the decision of the Bankruptcy Court is AFFIRMED.[1]
Background & Procedural History
XO is a holding company whose subsidiaries provide telecommunications services. In the years prior to 2002, XO raised approximately $2.5 billion in equity capital through stock offerings, and it incurred approximately $5.7 billion in secured and unsecured debt. Houlihan is an investment banking firm which engages in financial restructuring services and other lines of business. High River Limited Partnership and Meadow Walk Limited Partnership (the "Icahn Entities") are affiliates of Carl Icahn. The Icahn Entities, also Appellees in this action, held substantial quantities of XO's unsecured debt and eventually purchased approximately 85% of the secured lenders' claims against XO.
XO, along with much of the telecommunications industry, encountered severe financial difficulties in 2001. On October 31, 2001, XO countersigned a letter (the "Engagement Letter") pursuant to which Houlihan agreed to serve as XO's restructuring financial advisor. (Houlihan App. 2.) The Engagement Letter provided that Houlihan was to be paid a monthly fee of $250,000 and, in the event that certain restructuring transactions occurred, a transaction fee calculated as a percentage of XO's outstanding debt, reduced by the total amount of monthly fees. (See id.) *113 The Engagement Letter also provided that, if XO became a Chapter 11 debtor, XO would seek an order authorizing Houlihan as a professional under Section 328(a) of the Bankruptcy Code. Houlihan attempted without success to secure the capital necessary to complete the restructuring transactions, and on June 17, 2002, XO filed a Chapter 11 petition.
That same day, XO moved for permission to retain Houlihan as its financial restructuring advisor, as it had agreed in the Engagement Letter. The Bankruptcy Court approved this petition by order entered August 14, 2002 (the "Retention Order") (See Houlihan App. 9.) XO also filed a proposed plan of reorganization that day. The plan addressed two different possible outcomes: the consummation of a restructuring transaction involving the influx of new capital from certain investors ("Plan A"), or the implementation of a stand-alone restructuring without raising any additional capital ("Plan B"). Plan A was significantly more favorable to both the secured and unsecured creditors than Plan B. Under Plan A, each of the secured creditors would recover 100 cents on the dollar, and each of the unsecured creditors would receive its pro rata share of approximately $200 million, or approximately 8.5 cents on the dollar. Under Plan B the plan that was eventually consummated secured creditors were to receive only around 88 cents on the dollar, and unsecured creditors were to receive their pro rata share of certain warrants and nontransferable rights worth only 1.5 cents on the dollar. This represented a reduction in value for unsecured creditors of more than 80%. The Retention Order modified the Engagement Letter with regard to Houlihan's fee, granting Houlihan a transaction fee of $20 million if Plan A were consummated, and deferring decision as to the appropriate fee amount if Plan B were consummated. The Bankruptcy Court never confirmed a specific fee for Plan B instead, the reasonableness of a fee for Plan B was to be determined at a subsequent hearing. By the time the Bankruptcy Court issued the Retention Order, there was no "realistic expectation" that the new financing contemplated under Plan A would actually take place. (Icahn App. 4, Begeman Dep. 245-46; see Icahn App. 5, Kraus Dep. 286; Icahn App. 6, Horbach Dep. 47-52; Mem. Decision 21 & n. 15.) Plan A was neither confirmed nor consummated. After amendments, Plan B was confirmed by the Bankruptcy Court on November 15, 2002 and consummated in mid-January 2003.[2]
On February 20, 2003, Houlihan filed its First and Final Application for the Allowance of Compensation and Reimbursement of Expenses (the "Fee Application"). (See Houlihan App. 21.) Houlihan sought a net payment of approximately $18 million, arguing that it was owed a percentage of the total outstanding debt of $5.7 billion, which included both secured and unsecured debt, less approximately $2 million in monthly fees already paid. (See Id.) The Icahn Entities filed an objection to the Fee Application on April 4, 2003. (See Icahn App. 22.) XO, which by this time was owned by the Icahn Entities, joined in that objection. (See Icahn App. 23.) The Bankruptcy Court held a hearing about the Fee Application on June 13, 16 and July 7, 2003. The Bankruptcy Court heard live testimony from three witnesses and reviewed three depositions and various exhibits. The Bankruptcy Court issued a Memorandum Decision on March 9, 2005 and an *114 Order on March 21, 2005 approving a gross transaction fee of approximately $4 million. The Bankruptcy Court employed a fee rate of 40 basis points on XO's secured debt of approximately $1 billion, less the $2 million in monthly fees already paid, for a net transaction fee of approximately $2 million. Houlihan filed a timely motion for reconsideration on March 31, 2005, which the Bankruptcy Court denied by order entered May 13, 2005. Houlihan filed a timely notice of appeal on May 23, 2005.
Discussion
I. Standard of Review
This Court reviews a bankruptcy court's conclusions of law de novo and its findings of fact under a clearly erroneous standard. In re Ionosphere Clubs, Inc., 922 F.2d 984, 988-89 (2d Cir.1990); Enron Power Mktg. v. Nev. Power Co. (In re: Enron Corp.), 2004. WL 2290486, at *1, 2004 U.S. Dist. LEXIS 20351, at *2 (S.D.N.Y.2004) (Jones, J.). The Court will accept a bankruptcy court's findings of fact unless the Court is "left with the definite and firm conviction that a mistake has been committed." In re Schubert, 143 B.R. 337, 341 (S.D.N.Y.1992). Reversal is only justified where "there is no evidence whatsoever to sustain [the bankruptcy court's] findings. . . ." In re Nine Associates, Inc., 76 B.R. 943, 944 (S.D.N.Y.1987). A bankruptcy court's decision with regard to compensation for services performed during bankruptcy proceedings deserves great deference. Tenzer Greenblatt, LLP v. Silverman (In re Angelika Films 57th, Inc.), 246 B.R. 176, 178 (S.D.N.Y.2000). Accordingly, this Court reviews awards of compensation for abuse of discretion. See In re Arlan's Dep't Stores, Inc., 615 F.2d 925, 943 (2d Cir.1979).
II. The Market-Driven Approach to Fee Awards
A. Applicable Law
The parties and the Court agree that the Second Circuit has established a "market-driven" approach to fees awarded to professionals under the controlling statute at issue here, Section 330 of the Bankruptcy Code.[3]In re Ames Dept. Stores, *115 Inc. 76 F.3d 66, 71 (2d Cir.1996) (Congress decided that "compensation in bankruptcy matters [is to] be commensurate with the fees awarded for comparable services in non-bankruptcy cases"), rev'd in irrelevant part Lamie v. United States, 540 U.S. 526, 124 S. Ct. 1023, 157 L. Ed. 2d 1024 (2004); In re Bennett Funding Group, Inc., 213 B.R. 234, 250 (Bankr.N.D.N.Y.1997) (same). The applicant Houlihan bears the burden of proof on its claim for compensation. See, e.g. In re Keene Corp., 205 B.R. 690, 695 (Bankr.S.D.N.Y.1997).
B. Investment Banking Fees
Investment banks provide various types of services to their clients, for example, mergers and acquisitions ("M & A") services, in which an investment bank arranges the purchase or sale of a business; "financing" services, in which an investment bank arranges new debt or equity financing; and "restructuring" services, in which an investment bank restructures an organization's balance sheet. In M & A and financing transactions, investment bankers typically receive a small initial retainer and, if the transaction is successful, a success fee calculated as a percentage of the size of the transaction. (See Houlihan App. 17, Hellmold Report 1-3; Icahn App. 3, Hellmold Tr. 179-183.)[4]
Investment bankers usually employ a different fee arrangement for restructuring transactions like the instant case. Fees in restructuring cases typically involve a monthly retainer and a transaction fee paid after the restructuring takes place. (Houlihan App. 17, Hellmold Report 3-6.) The transaction fee is calculated as a percentage of the face value of some or all of the debt to be restructured. (Id.) Sometimes the transaction fee in a restructuring case is contingent on raising capital or securing recoveries for creditors. (Id. at 6.)
C. Secured v. Unsecured Debt
i. Examples from Other Restructuring Cases
Houlihan argues that the Bankruptcy Court erred by excluding approximately $4.7 billion in unsecured debt from its fee calculation and instead basing its fee award only on XO's approximately $1 billion in secured debt. Houlihan cites several examples of restructuring cases in which the investment bank's fee was based on the total outstanding debt, both secured and unsecured, not merely the secured debt. (See Houlihan App. 16 (listing examples); Houlihan App. 4, Hilty Tr. at 107-118 (discussing examples).)[5] Houlihan argues that the Bankruptcy Court should have followed these examples and *116 calculated the fee based on the total debt, not just the secured debt.[6]
In concluding that the fee should be calculated as a percentage of the secured debt, the Bankruptcy Court reasoned as follows:
[T]he formula [calculating the fee as a percentage of both secured and unsecured debt] is flawed in a situation like the present one, where the largest portion of outstanding debt, is so far "out-of-the-money" that at best it would receive a distribution based more on nuisance value than on financial considerations. To assume that the market place would ignore that reality is not supported.
. . . .
Indeed, at the time the post-petition services were rendered by Houlihan, the restructuring landscape was vastly different from the market conditions that were present when the Engagement Letter was executed. No evidence was submitted, nor does the Court believe that any credible evidence exists, to demonstrate that the market would have paid the $20 million Transaction Fee for restructuring services in a similar situation and in a similar market environment, where at the outset of the case it was abundantly clear that, inter alia, no financing was, or would be available, to fund a restructuring of the unsecured debt.
(Mem. Decision 21 & n. 15.)
Assuming arguendo that the court can rely on the restructuring cases cited by Houlihan, the Bankruptcy Court was well within its discretion to award a fee based solely on the secured debt. First, the Bankruptcy Court provided ample reasons why, at the time of the Retention Order, the market would have awarded a fee based solely on the secured debt. The Bankruptcy Court properly found that, at the time it issued the Retention Order, it had become apparent that no new financing would become available to restructure the unsecured debt.[7] (See Icahn App. 4, Begeman Dep. 245-46; Icahn App. 5, Kraus Dep. 286; Icahn App. 6, Horbach Dep. 47-52.) The Bankruptcy Court then properly reasoned that, in the absence of new financing, projected recoveries for unsecured creditors were so small that the market would never have awarded Houlihan the $20 million transaction fee that it sought. Based on this reasoning, the Bankruptcy Court properly concluded that the market would have awarded Houlihan a fee based only on the secured debt. Given the Bankruptcy Court's well-reasoned analysis, its conclusion is not an abuse of discretion simply because it is at odds with the outcome in the cited examples. Rather, this is precisely the type of market-based fee determination that the Bankruptcy Court was called upon to perform.
Second, the Bankruptcy Court was within its discretion in declining to follow the cited examples because Houlihan has not established that they are factually similar to the instant case. For example, it is unclear whether the bankruptcy courts issued *117 retention orders confirming the fees that they eventually awarded. If so, those bankruptcy courts would have been hard-pressed not to award the fees they confirmed.[8] The Bankruptcy Court here had no such pressure because it explicitly deferred the fee calculation in its Retention Order. There is also no evidence that, at the time the bankruptcy courts in the cited cases issued their retention orders, no new financing would become available to restructure the unsecured debt in those cases. The Bankruptcy Court here bases its market analysis on this unique aspect of the instant case. Without evidence that the cited restructuring cases possess these similarities to the instant case, the Bankruptcy Court was well within its discretion in declining to rely on them and instead applying a case-specific market analysis.
Third, the rest of the record the record apart from the cited restructuring cases shows that the Bankruptcy Court was within its discretion in awarding a fee calculated as a percentage of the secured debt alone. Fees in restructuring cases are sometimes calculated as a percentage of only part of the company's outstanding debt. (Houlihan App. 17, Hellmold Report 6 ("The `transaction' or `restructuring' fee is usually, but not always, calculated as a percentage of the face value of some or all of the debt in the capital structure. . . . ".). Fees in restructuring cases can also be calculated as a percentage of the debt that is actually restructured. See id. ("[M]ore normally, [the fee is calculated as a percentage of] only the debt which is restructured. . . ."); Houlihan App. 4, Hilty Tr. at 138:8-13 (calculating fees in restructuring cases "as a percent of the debt restructured is a generally accepted way of looking at the level of a transaction fee"); Icahn App. 1, Gold Tr. at 41:23-25, 43:10-19 ("We typically look at a percentage of debt restructured. . . . ");.)[9] Fees in restructuring cases are also sometimes contingent on raising capital or securing recoveries for creditors. (Houlihan App. 17 at 6.)
Accordingly, Houlihan has failed to show that calculating the fee award as a percentage of the secured debt was inconsistent with market practices, and the Bankruptcy Court did not abuse its discretion in calculating the fee in this manner.
ii. Unsuccessful Outcome
Houlihan also argues that the Bankruptcy Court erred by focusing on the unsuccessful outcome of the restructuring due to low recoveries of unsecured creditors. The Bankruptcy Court reasoned as follows:
The record does not support a finding that the restructuring of XO's debt should be termed a "success" that would warrant the same, or even similar, Transaction Fee for Plan A as for Plan B, in view of the fact that the conditions of the marketplace were radically different when Plan A was negotiated versus when Plan B was negotiated.
(Mem. Decision 17.)
Houlihan's position is that restructuring transactions unlike M & A or financing transactions do not typically involve fees that are contingent on success, so the Bankruptcy Court should not have limited its fee award simply because unsecured *118 creditors received low recoveries. Houlihan also argues that no better creditor recoveries could have been obtained. (Houlihan Br. 40-41.)
The Bankruptcy Court did not err by taking unsecured creditor recoveries into account, because fees in restructuring cases are sometimes contingent on securing recoveries for creditors. (Houlihan App. 17 at 6.) Moreover, a bankruptcy court may consider the fact that a professional's services were unsuccessful when calculating a fee award. In re Angelika Films 57th, Inc., 227 B.R. 29, 42 (Bankr. S.D.N.Y.1998) ("The fact that [a professional's] services are unsuccessful is not a per se reason for denying compensation, although that fact may be taken into consideration in ascertaining.the value of [the] services to the estate.")
Even if the Bankruptcy Court had completely ignored the evidence relating to the unsuccessful outcome of the restructuring, it still would have been within its discretion to award a $4 million fee, because it properly calculated the fee award as of the date of the Retention Order. It is precisely because no better creditor recoveries could have been obtained at the time the Bankruptcy Court issued its Retention Order that the market would not have awarded Houlihan the fee it sought.
Accordingly, the Bankruptcy Court did not abuse its discretion in taking low unsecured creditor recoveries into account.
D. Fee Rate
The Bankruptcy Court arrived at its $4 million fee by applying a fee rate of 40 basis points to XO's approximately $1 billion in secured debt. Houlihan argues that a 40-basis-point rate could arguably have been appropriate if the Bankruptcy Court had based its fee on the total debt, both secured and unsecured, but that a fee based only on the $1 billion in secured debt requires a much higher fee rate, in the range of 70-90 basis points. Houlihan cites five restructuring cases which involved just over $1 billion in debt. (See Houlihan Br. 37 (citing cases from Houlihan App. 16 and Houlihan App. 17 at C-2 & C-2(a)).) These cases involved fee rates ranging from 38.9 to 92.3 basis points. (See Id.) The record also shows that small restructuring transactions, i.e. those in the range of several hundred million dollars of debt, typically involve a transaction fee of 100 basis points. (Houlihan App. 3, Gold Tr. 41:23-42:5; 43:13-19.) As the deal gets larger, the percentage typically decreases. (Houlihan App. 3, Gold Tr. 43:18-19).
Assuming arguendo that the Court can rely on the five restructuring cases cited by Houlihan, a fee rate of 40 basis points does not constitute an abuse of discretion because it is within the range of fee rates used in those cases. The record is devoid of information relating to the underlying facts of the cited restructuring cases, so it is impossible to determine whether the instant case is more similar to the case which involved a fee rate of 38.9 basis points or the four other cases which involved fee rates in the range of 70-90 basis points. Accordingly, the Bankruptcy Court did not abuse its discretion simply because it selected a fee rate on the low end of the range of acceptable fee rates.
E. Deduction of Monthly Fees Already Paid
Houlihan argues that the Bankruptcy Court should not have deducted approximately $2 million in monthly fees already paid from the total fee award. However, the record shows that the monthly retainer in restructuring cases is often "at least partially if not fully offsettable against any restructuring transaction *119 fee." (Icahn App. 17, Hellmold Report at 6.) Accordingly, Houlihan has failed to show that deducting the monthly fees already paid from the total fee award was inconsistent with market practices, and the Bankruptcy Court did not abuse its discretion in deducting the monthly fees.
III. Secondary Issues
A. Alleged Inconsistent Application of the Engagement Letter
Houlihan argues that the Bankruptcy Court should have given greater weight to the terms in the Engagement Letter, and also that it applied the terms of the Engagement Letter inconsistently. However, the Bankruptcy Court was in no way bound by the Engagement Letter or any other pre-petition fee arrangement entered into by Houlihan and XO. See, e.g., In re Intelogic Trace, Inc., 188 B.R. 557, 560 (Bankr.W.D.Tex.1995) ("[W]e are constrained to apply a `hindsight' approach, not bound by whatever arrangements might have been worked out prior to retention and especially not bound by arrangements made prior to filing [for bankruptcy protection]."). The Bankruptcy Court was bound only by the Retention Order, which expressly deferred decision as to the appropriate fee amount if Plan B were consummated. (See Houlihan App. 9.) For all the reasons discussed supra, the fee was reasonable under Section 330 because Houlihan has failed to show that it was inconsistent with market practices. Accordingly, it is of no consequence that the Bankruptcy Court did not follow the terms of the Engagement Letter or applied them unevenly.[10]
B. Necessary or Beneficial Services under 11 U.S.C. § 330(a) (3)(C) and § 330(a)(4)(A)(ii)
The Court must also determine whether Houlihan's services "were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title." 11 U.S.C. § 330(a)(3)(C). The Court may not award any fee for "services that were not . . . reasonably likely to benefit the debtor's estate; or . . . necessary to the administration of the case." 11 U.S.C. § 330(a)(4)(A)(ii).
Houlihan argues that the Bankruptcy Court contradicted itself with regard to whether Houlihan's services were necessary or beneficial to XO under these statutory provisions. The Bankruptcy Court concluded that Houlihan's services relating to XO's unsecured debt were "necessary and beneficial when rendered" (Mem. Decision 17); were "necessary and beneficial with regard to the unsecured debt" (Mem. Decision 18); and were "beneficial and reasonable and provided some assistance in securing the recoveries for unsecured creditors" (Mem. Decision 19). Later in its Decision, the Bankruptcy Court concluded that "the Court has already determined that Houlihan failed to demonstrate that its assistance regarding a restructuring of any of the unsecured debt was `necessary' at the time such assistance was rendered." (Mem. Decision 22.)
Whether the latter statement contradicts the former statements is of no consequence to these proceedings because the *120 Bankruptcy Judge determined that the market would have awarded Houlihan a $4 million fee for all its services including restructuring both the secured and unsecured debt. Assuming arguendo that Houlihan's services relating to both the secured and unsecured debt were "necessary" or "beneficial" under 11 U.S.C. § 330(a)(3)(C) and were "reasonably likely to benefit" XO's estate under 11 U.S.C. § 330(a)(4)(A)(ii), the Bankruptcy Court was still well within its discretion in awarding a $4 million fee. The Bankruptcy Court properly determined that, because it had become apparent that no new financing would become available, Houlihan's services with regard to the unsecured debt had negligible market value at the time of the Retention Order. (See supra Part II; Mem. Decision 22 ("[Services relating to the unsecured debt] would not have had the same market value at the time such services were rendered as similar services may have had at the time of commencement of Houlihan's retention under the Engagement Letter.").) Thus, the market would have awarded a $4 million fee for all of Houlihan's services, including the restructuring of both the secured and unsecured debt, at the time of the Retention Order. The Bankruptcy Court did not abuse its discretion because Houlihan has failed to show that this fee calculation was inconsistent with market practices.
* * * *
For all the reasons stated herein, the decision of the Bankruptcy Court is AFFIRMED. The Clerk of the Court is directed to close this case.
SO ORDERED.
NOTES
[1] Materials relied upon in this Opinion include the Bankruptcy Court's Memorandum Decision ("Mem.Decision"); the Brief of Appellant Houlihan (Houlihan Br.); the Briefs of Appellees High River Limited Partnership and Meadow Walk Limited Partnership ("Icahn Br." and "Icahn Reply Br."); the Brief of Appellee XO Communications ("XO Br."); the Appendix to the Brief of the Appellant ("Houlihan App."); the Appendix to the Brief of Appellees ("Icahn App."); and the Supplemental Appendix of Appellant ("Houlihan Supp.App.").
[2] Upon consummation of Plan B after amendments, unsecured creditors received five percent of the common stock of the reorganized debtor and 10% of any recovery by XO against the potential investors contemplated under Plan A.
[3] 11 U.S.C. § 330(a) provides in relevant part:
(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to . . . a professional person employed under section 327 or 1103
(A) reasonable compensation for actual, necessary services rendered by the . . . professional person. . . .; and
(B) reimbursement for actual, necessary expenses.
(2) The court may . . . award compensation that is less than the amount of compensation that is requested.
(3) In determining the amount of reasonable compensation to be awarded to . . . [a] professional person, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including
(A) the time spent on such services;
(B) the rates charged for such services;
(C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title;
(D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed;
(E) with respect to a professional person, whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field; and
(F) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title.
(4) (A) Except as provided in subparagraph (B), the court shall not allow compensation for
(i) unnecessary duplication of services;
or
(ii) services that were not
(I) reasonably likely to benefit the debtor's estate; or
(II) necessary to the administration of the case.
. . . .
(5) The court shall reduce the amount of compensation awarded under this section by the amount of any interim compensation awarded under section 331, and, if the amount of such interim compensation exceeds the amount of compensation awarded under this section, may order the return of the excess to the estate.
. . . .
11 U.S.C. § 330(a).
[4] Ralph Hellmold is the Chairman of The Private Investment Banking Company and was the Icahn Entities' only live witness. Hellmold has experience with dozens of investment banking transactions, including financial reorganizations and restructurings, mergers and acquisitions, and exchange offers. (See Houlihan App. 17 Appx. A.)
[5] Hilty is a Senior Managing Director at Houlihan Lokey.
[6] All the cited examples are bankruptcy cases. The Icahn Entities argue that the Court cannot rely on evidence from bankruptcy cases under 11 U.S.C. § 330(a)(3)(F). Houlihan argues that courts routinely rely on evidence from bankruptcy cases when calculating fees for professionals. Even giving Houlihan the benefit of the doubt by assuming arguendo that the Court can rely on the cited examples, the Bankruptcy Court was within its discretion to award a fee of $4 million, for all the reasons stated herein.
[7] This is a factual finding which the Court reviews only for clear error, and the Court finds no clear error.
[8] A court may not award a fee different from one that it has approved in a retention order unless it finds that the terms in the retention order were "improvident in light of developments not capable of being anticipated at the time. . . ." 11 U.S.C. § 328(a). This is a difficult requirement to meet, and courts rarely alter a fee award on these grounds. In re Yablon, 136 B.R. 88, 92 (Bankr. S.D.N.Y. 1992).
[9] Gold is a Senior Managing Director at Houlihan Lokey.
[10] The Engagement Letter explicitly makes itself subject to the Bankruptcy Code: "In consideration of our services . . . Houlihan Lokey shall be entitled to receive, and the Company shall pay, the following compensation subject, in the case of a Plan, to the requirements of the Bankruptcy Code and Bankruptcy Rules." (Engagement Letter, Houlihan App. 2 at 5.) The Retention Order specifically provided that "to the extent this Order is inconsistent with the Engagement Letter or the Stipulation, the terms of this Order shall govern." (Icahn App. 19, Retention Order ¶ 6.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/364665/ | 594 F.2d 986
NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY(Self-Insured), Petitioner,v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITEDSTATES DEPARTMENT OF LABOR and Dorothy A. Watkins,Respondents.
No. 78-1525.
United States Court of Appeals,Fourth Circuit.
Argued March 5, 1979.Decided March 26, 1979.
Junius C. McElveen, Jr., Washington, D. C. (Robert H. Joyce, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., Vincent F. Ewell, Jr., Newport News, Va., Newport News Shipbuilding and Dry Dock Company, on brief), for petitioner.
Mary A. Sheehan, U. S. Dept. of Labor, Washington, D. C. (Carin Ann Clauss, Sol. of Labor, Laurie M. Streeter, Associate Sol., U. S. Dept. of Labor, Washington, D. C., on brief), for respondent Director, Office of Workers' Compensation Programs.
E. D. David, Newport News, Va. (John B. Bennett, South Boston, Va., Jones, Blechman, Woltz & Kelly, P. C., Newport News, Va., on brief), for respondent Dorothy A. Watkins.
Before BUTZNER and PHILLIPS, Circuit Judges, and ROBERT R. MERHIGE, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.
PER CURIAM:
1
Newport News Shipbuilding and Dry Dock Company (Newport News) petitions for review of a decision of the Benefits Review Board awarding claimant Dorothy A. Watkins compensation benefits. The petition questions the assessment of penalty and interest against the company and the procedure followed in awarding an attorney's fee to the claimant's counsel.
2
We perceive no error in the assessment and computation of the penalty and interest. Newport News failed either to compensate Mrs. Watkins or to file notice controverting her right to compensation within 14 days after learning of her injury. Since there was no showing that nonpayment was due to conditions beyond Newport News' control, imposition of the "additional compensation," or penalty, was mandatory under 33 U.S.C. § 914(e). See Newport News Shipbuilding and Dry Dock Co. v. Graham, 573 F.2d 167, 171 (4th Cir. 1978). The penalty applies to each installment of compensation not paid within 14 days after it becomes due. Because the administrative law judge failed to render a decision within 20 days of the hearing, as required under 20 C.F.R. § 702.348, Newport News claims that it should not be held liable for a penalty and interest for any period in excess of 20 days after the close of the hearing. Administrative delay, however, may not adversely affect the statutory rights of a claimant. Kerch v. Air America, Inc., 8 B.R.B.S. 490, 492 (1978). Interest was properly assessed since Newport News during this period had the use of money owed to the claimant.
3
Newport News also contends, and the Director of the Office of Workers' Compensation Programs agrees, that claimant's counsel did not follow the procedure outlined in 20 C.F.R. § 702.132, the applicable Department of Labor regulation, in applying for his fee. This section provides:
4
An attorney seeking a fee for services performed on behalf of a claimant with respect to claims filed under the Act shall make application therefor to the deputy commissioner, administrative law judge, Board, or court, as the case may be, before whom the services were performed.
5
Claimant's counsel submitted a fee request to the administrative law judge which included 7.75 hours spent in preparation for, and attendance at, an informal conference before the deputy commissioner. The administrative law judge awarded a fee without specifying whether any part of it was for services before the deputy commissioner. The Board affirmed the award of the administrative law judge, holding that he could properly award a fee for services performed before the deputy commissioner.
6
We conclude that the award must be vacated and the case remanded for allowance of attorney's fees in accordance with the regulation. The claimant's counsel should apply separately to the deputy commissioner, the administrative law judge, the Board, and the court for his fees in accordance with 20 C.F.R. § 702.132.
7
Vacated and Remanded. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1561133/ | 17 S.W.3d 878 (2000)
Robert C. FOLEY, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 1997-SC-1098-MR, 1998-SC-0378-MR and 1998-SC-0379-MR.
Supreme Court of Kentucky.
March 23, 2000.
As Modified on Denial of Rehearing June 15, 2000.
*882 Kathleen K. Schmidt, Shepherdsville, Randall L. Wheeler, Assistant Public Advocate, Frankfort, Counsel for Appellant.
A.B. Chandler III, Attorney General, Connie Vance Malone, Assistant Attorney General, Susan Roncarti, Assistant Attorney General, Paul D. Gilbert, Assistant Attorney General, Criminal Appellate Division, Frankfort, Thomas V. Handy, Commonwealth Attorney, London, Counsel for Appellee. *879 *880
*881 WINTERSHEIMER, Justice.
This appeal is from a denial of a RCr 11.42 motion seeking the vacation of two murder convictions and sentences of death because of allegations of ineffective assistance of counsel.
In 1993, the Laurel Circuit Court imposed two death sentences on Foley pursuant to convictions for the murders of two people. In that case, Foley set out 26 allegations of error seeking a reversal of his conviction. After reviewing the record, the briefs and hearing oral arguments, this Court affirmed the conviction in Foley v. Commonwealth, Ky., 942 S.W.2d 876 (1997).
The events that culminated in the violent deaths of the two Vaughn brothers occurred on the evening of August 17, 1991, when ten other adults were at the home of Foley, along with five children. Other male guests had checked their pistols in the kitchen cabinet, but Foley kept his .38 colt snub-nose revolver concealed in the small of his back, under his belt and shirt. The first victim consumed enough alcohol to become belligerent and two fights erupted between Foley and the first victim. Foley admits that he started the first fight and later in the evening shot and killed the first victim. The deceased received multiple gunshot wounds to the left arm and body which resulted in hemorrhaging and death. Foley claims he acted in self-defense. Shortly thereafter, the *883 second victim was killed at a time when only Foley, the victim and Ronnie Dugger remained inside the house. Foley claims that Dugger shot the victim while Dugger testified that Foley shot the victim in the back of the head. The victim died as a result of multiple penetrating and perforating gunshot wounds to the head and extremities. After the killings, Foley, Dugger and two other individuals dumped the bodies into a creek in Laurel County.
As noted in the opinion of the Court in Foley, supra, Foley was charged on October 26, 1991, with killing four other people whose bodies had been found in a septic tank in Laurel County. Prior to the indictment on the later charges, the district court had restrained all law enforcement personnel and court personnel from making any public comment about the case.
After this Court affirmed the jury verdict in 1997, Foley filed an unsuccessful petition for a writ of certiorari in the United States Supreme Court. Three days after that denial he faxed to the Laurel Circuit Court a motion pursuant to RCr 11.42 to vacate his judgment of conviction. That motion was filed by the Clerk on October 14, 1997, and on that same date, the Governor signed an executive order that Foley be put to death by electrocution on November 13, 1997. The circuit court refused a stay of execution and scheduled an evidentiary hearing on the RCr 11.42 motion on November 10, 1997, which was three days before the scheduled execution. This Court granted a stay of execution on November 3, 1997. Before the evidentiary hearing began on November 10, counsel for Foley renewed his motion for continuance which was denied. The RCr 11.42 motion was denied on November 25, 1997. This appeal followed.
I. Mitigating Evidence
Foley argues that his death sentence must be vacated because his trial attorney did not investigate and present to the jury all available evidence which would mitigate a finding that he deserved the death penalty. He asserts that evidence was available to trial counsel which would have proved relevant mitigation in the penalty phase of the trial, but his attorney did not conduct an adequate investigation of the available mitigating evidence and presented no evidence in mitigation. At his RCr 11.42 hearing, Foley presented twelve witnesses who would have been available to offer similar mitigating evidence at trial. He also claims that trial counsel did not properly explain the mechanics of the penalty phase, including the concept of mitigation so that Foley could make a rational choice and properly assist in his own defense.
At the RCr 11.42 hearing, trial counsel testified that he and Foley had discussed the penalty phase and that Foley did not want to put family witnesses through the ordeal of testifying. There was no testimony that Foley knew of any witnesses who possessed critical mitigating information evidence in the penalty phase.
The witnesses who testified at the RCr 11.42 hearing indicated that Foley was a lovable child and that he idolized his grandfather who was a seven-time murderer. One of the Foley witnesses testified that he was nice even though he carried a gun and had been convicted earlier of manslaughter. His mother testified that her father had killed seven men and had taught Foley to shoot a gun when he was only 6 years old. His mother also discussed some alleged injuries that Foley sustained, the implication being that there was some sort of brain damage. That inference was never substantiated by any medical record. Testimony regarding the injuries has no relevance to mitigation. Her testimony that he could be fine one minute and very angry the next certainly did not mitigate the propensity for violence. At the end of her testimony, she identified two different photographs of Foley with guns. The persuasive mitigation of this testimony is highly questionable.
Foley's brother testified about his brother's violent nature and how well he could *884 handle a gun. He admitted on cross-examination that Foley could be violent, and that people were afraid of Foley.
Trial counsel also testified at the RCr 11.42 hearing. He stated that he had been a practicing attorney in Kentucky for almost 19 years with criminal defense work as a substantial part of his practice. Although this was his first capital case, he said he had handled other violent crimes. He had previously represented Foley and represented him in a quadruple homicide after this case was tried. He stated that Foley was reluctant to put his family through the rigors of testifying in mitigation. Trial counsel said that Foley assisted him in the defense and that they worked very closely together. He did not remember anything that would make him think that Foley was incompetent during trial because his client was lucid and able to converse with counsel and others. Trial counsel said that he met with post-conviction counsel and was cooperative in regard to the RCr 11.42 motion.
The general standards which measure questions relative to the ineffective assistance of counsel are set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, Ky., 702 S.W.2d 37 (1985); Sanborn v. Commonwealth, Ky., 975 S.W.2d 905 (1998). In order to be ineffective, performance of counsel must be deficient and below the objective standard of reasonableness and prejudicial so as to deprive a defendant of a fair trial and a reasonable result. Strickland, supra. "Counsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won." United States v. Morrow, 977 F.2d 222, 229 (6th Cir.1992). The critical issue is not whether counsel made errors but whether counsel was so thoroughly ineffective that defeat was snatched from the hands of probable victory. Morrow, supra. The purpose of RCr 11.42 is to provide a forum for known grievances, not to provide an opportunity to research for grievances. Gilliam v. Commonwealth, Ky., 652 S.W.2d 856, 858 (1983).
In considering an ineffective assistance of counsel claim, the reviewing court must consider the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance. See Morrow; Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).
A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance. McQueen v. Commonwealth, Ky., 949 S.W.2d 70 (1997). Strickland notes that a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. The right to effective assistance of counsel is recognized because of the effect it has on the ability of the accused to receive a fair trial. In a death penalty case where the aggravating factors are overwhelming, it is particularly difficult to show prejudice at sentencing due to the alleged failure to present mitigating evidence. Bonin v. Calderon, 59 F.3d 815 at 836 (9th Cir.1995).
In a RCr 11.42 proceeding, the movant has the burden to establish convincingly that he was deprived of some substantial right which would justify the extraordinary relief afforded by the post-conviction proceeding. Dorton v. Commonwealth, Ky., 433 S.W.2d 117, 118 (1968).
The information that the witnesses at the RCr 11.42 hearing may have testified to during the penalty phase of the original trial would have been offset by their testimony regarding the propensity *885 of Foley for violence. The performance of trial counsel was not ineffective because he failed to present testimony of these witnesses in the penalty phase of the original trial.
Trial counsel became familiar with members of the Foley family during the course of this representation and discussed the trial strategy with the defendant. There was no testimony that Foley told the trial attorney that there were witnesses that had critical mitigating evidence. As a result of the discussions with Foley and trial strategy, the trial counsel decided not to call mitigation witnesses. There is no evidence to substantiate the claim that Foley may not have understood mitigation. It is clear that trial counsel understood what issues could be raised in the penalty phase. "Decisions relating to witness selection are normally left to counsel's judgment and this judgment will not be second-guessed by hindsight." Fretwell v. Norris, 133 F.3d 621, 627 (8th Cir.1998).
Although we certainly recognize the necessity for complete investigation by defense counsel, we must conclude that a reasonable investigation is not an investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources, but also with the benefit of hindsight would conduct. Thomas v. Gilmore, 144 F.3d 513 (7th Cir.1998). It is only reasonable for any lawyer to place certain reliance on his client. The investigation must be reasonable under all the circumstances. Stevens v. Zant, 968 F.2d 1076 (11th Cir.1992). In this case, there was no proof of any reason for trial counsel to investigate Foley's background more thoroughly. There was no evidence of any mental defect. Trial counsel knew Foley and his family from previous representations, and their testimony at the RCr 11.42 hearing indicated a violent nature. The decision of counsel not to conduct additional investigation into a defendant's background in search of mitigating circumstances can be supported by reasonable professional judgment. Cf. Fretwell, supra. Even if he had documented additional mitigating evidence, trial counsel could have decided that the negative testimony that would be elicited might only serve to inflame the jury and therefore decline to present it. As in Fisher v. Angelone, 163 F.3d 835 (4th Cir.1998), it cannot be said that a strategic decision not to call mitigating witnesses was unreasonable. See also Preston v. Delo, 100 F.3d 596, 603 (8th Cir.1996).
In this case, there is no reasonable probability that the omitted testimony would have changed the result reached by the jury or the sentencing fixed by it. Foley was not prejudiced by the alleged failure of trial counsel to investigate and present mitigating evidence. There is no showing of either deficient performance or substantial prejudice which are required to present an ineffectiveness of counsel argument.
II. Competency and Mental Health
It is axiomatic that federal and state law prevent the trial of an incompetent defendant. KRS 504.090; RCr 8.06. If there are reasonable grounds to believe that a defendant is not competent to stand trial, the proceeding must be discontinued and the trial judge must appoint a psychologist or psychiatrist to examine the defendant, file a report and then a hearing must be held. KRS 504.100. Here, at the RCr 11.42 hearing, trial counsel testified that Foley assisted him in his defense and that they worked very closely. The attorney further testified that he did not remember anything that made him think Foley was incompetent during trial and that Foley seemed lucid and was able to converse with him and others. Foley testified in his own defense for over one and one-half hours. The trial judge had the opportunity to observe that Foley was able to communicate effectively his version of the offense and was able to answer questions both on direct and cross-examination.
Foley did not testify at his RCr 11.42 hearing. No medical proof of any mental history was offered to support the claim of *886 incompetency. The only evidence introduced indicating any bizarre behavior were letters supposedly written by Foley to his deceased grandmother shortly before trial. Although family members spoke of various head injuries suffered by Foley during childhood, no medical records were presented to support such testimony. Trial counsel testified at the RCr 11.42 hearing that he saw no signs of mental illness and that he had no problem communicating with Foley before and during the trial, and that Foley maintained his own trial folder and discussed it intelligently with counsel. There was no evidence that Foley was incompetent. The authorities cited by Foley are unpersuasive. Trial counsel was not ineffective for declining to request a competency hearing.
III. Effective Assistance of Counsel
A review and analysis of the argument presented by Foley that he was denied effective assistance of counsel because the circuit court improperly denied an evidentiary hearing on certain issues is without merit.
The RCr 11.42 motion contained twenty-six grounds and the circuit court disposed of issues 1 through 17, 19, 20, 22 and 26, determining that a hearing was not required. An evidentiary hearing was held on the remaining issues on November 10, 1997. As has been previously noted, the standard for reviewing ineffective assistance of counsel claims has been discussed and Foley was not denied effective assistance. Here, the record clearly refutes the allegations contained in the RCr 11.42 motion. He was not entitled to an evidentiary hearing on all of the allegations. He received a full and fair litigation of his alleged grounds for relief pursuant to Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).
We have reviewed the other issues and find them to be without merit. In the guilt phase, the change of venue issue was raised on direct appeal and cannot be relitigated in this proceeding. Wilson v. Commonwealth, Ky., 975 S.W.2d 901, 903 (1998). The ballistic expert used by the defense was allowed to testify and was extensively cross-examined at trial. The trial court was correct in finding that there was no ineffective assistance of counsel in this respect. The question of rebuttal evidence was rejected on direct appeal as were the issues regarding the impeachment of Foley, victim evidence and the fact the victim's father testified while in a wheelchair.
In regard to the impeachment of witnesses for the Commonwealth, Marge Foley was extensively cross-examined by defense counsel. The jury had sufficient evidence to make an informed judgment about the credibility of such witnesses. There was no evidence that the witness, Watt, was a suspect in the other case involving Foley and her testimony was consistent with that of Foley. Defense counsel cross-examined the witness and pointed out inconsistencies in regard to her prior deposition.
Defense counsel was not ineffective for failing to object to a prior felony conviction from 1977. The indictment gave sufficient notice of aggravators pursuant to Perdue v. Commonwealth, Ky., 916 S.W.2d 148 (1995), and instruction issues were rejected in the direct appeal.
IV. Funds for Experts
Foley argues that the trial court improperly denied him funding for a ballistics expert and a social worker because he needed these two experts for the evidentiary hearing to prove the prejudice in his original jury verdict.
Foley has no constitutional right to expert assistance in a collateral attack proceeding. Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989). The requirement to provide funds to indigent defendants for necessary experts as stated in Binion v. Commonwealth, Ky., 891 S.W.2d 383 (1995) and *887 Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), has not been extended to post-conviction matters. The standard for determining whether a criminal defendant is entitled to funds for expert assistance is whether such assistance is reasonably necessary. Hicks v. Commonwealth, Ky., 670 S.W.2d 837 (1984). Such a decision is within the sound discretion of the trial judge, and the same standard is to be applied in RCr 11.42 proceedings. McQueen, supra.
Foley contends that a ballistics expert was necessary to prove that he did not kill Harry Vaughn and only shot at Rodney Vaughn in self-defense. He does not have an affidavit from any ballistics expert stating this proposition. There is no showing that the one expert he contacted could change the Foley verdict. He also claims that he needs a social worker to explain his background and character to the jury. Again, he does not indicate what a social worker would testify to or how this testimony would change the reliability of the verdict. Foley does not demonstrate that either of these proposed expert witnesses was reasonably necessary pursuant to Hicks, supra. It was not error for the trial judge to deny motions for funds for experts because those experts were not reasonably necessary.
V. Credibility of Witness
Foley claims that newly discovered evidence would show that a prosecution witness lied and that thus his conviction and sentence should be reversed. His new evidence is based on affidavits from another death-row inmate and a convicted felon who both alleged they were in jail with the prosecution witness who confessed to them that he actually shot Lynn Vaughn. The evidence is not new because it only corroborates the trial testimony.
The granting of a new trial is disfavored when the grounds are newly discovered evidence which is merely cumulative or impeaching in nature. See Collins v. Commonwealth, Ky., 951 S.W.2d 569, 576 (1997). At the RCr 11.42 hearing, a witness testified that Dugger confessed to him also. The witness admitted that he had five felony convictions and that four of them had been prosecuted by the current prosecutor of Foley. Newly discovered evidence is not a basis for RCr 11.42 relief. McQueen. There is nothing to suggest that in the absence of this allegedly newly discovered material, the verdict would have been any different. The trial judge did not abuse his discretion in finding that the testimony submitted by affidavits from prison inmates was not credible. See Epperson v. Commonwealth, Ky., 809 S.W.2d 835 (1991).
VI. Rush to Judgment
Foley contends that his RCr 11.42 attorneys needed additional time to prepare and present issues. In this case, Foley had sufficient time to prepare issues for the RCr 11.42 motion. His conviction was affirmed in 1996 and certiorari was denied by the U.S. Supreme Court. Foley did start preparing for his RCr 11.42 hearing by faxing a 15-page motion to the circuit court just three days after certiorari was denied. The motion had attached to it the affidavits of two potential RCr 11.42 witnesses which were signed on September 26, 1996 and November 22, 1996, approximately one year before the evidentiary hearing would eventually be scheduled. Foley and his lawyers were well aware of what was coming and had the commendable foresight to begin preparations even before the direct appeal was affirmed.
As previously stated, the purpose of a RCr 11.42 proceeding is to provide a forum for known grievances, not to provide an opportunity to research for grievances. Gilliam, supra. There was no valid reason for the circuit court to grant additional preparation time.
RCr 9.04 provides a standard for postponing a trial or evidentiary hearing. It requires the defendant to demonstrate *888 what witnesses or evidence counsel has been unable to obtain in time for the hearing, the materiality and that due diligence has been exercised to obtain it. Foley did not comply with the requirements of this rule.
Foley was unable to identify with any particularity, any witnesses or evidence of claims that they would have been able to present had they been granted a continuance of the RCr 11.42 hearing. Foley mentions three missing witnesses but of those he only gives the name of one, Ronnie Dugger. He provides no affidavits to indicate what he believes Dugger's testimony would be. He merely claims that Dugger lied during trial, and yet he presented the testimony of two witnesses at the RCr 11.42 hearing that Dugger had lied. He claims in a vague general way that he learned of useful information that could have been presented by other witnesses, but no mention of these individuals is made and what they would have specifically testified about.
In addition, there is no indication as to what a ballistics expert and a social worker would have testified or why their testimony was material. Again, no affidavits of any nature were filed. Thus, there was no need to grant a continuance based on either of these suggested sources of testimony. Neither of these witnesses would have been reasonably necessary and the trial court was correct in not granting funds. Foley's complaint about discovery issues is without merit because pretrial discovery rules do not apply in RCr 11.42 proceedings. Sanborn v. Commonwealth, Ky., 975 S.W.2d 905 (1998).
In regard to the missing evidence of medical records, there is no showing as to what those records would say or if he was ever taken to a doctor and if there were any medical records in existence. He did not comply with RCr 9.04 and was not entitled to a postponement of the hearing.
Foley contends that an RCr 11.42 proceeding requires a "virtual reinvestigation." We disagree. This proceeding is not a retrial. He had ample time in which to prepare for the hearing and there is no legitimate RCr 11.42 claim which would justify the extraordinary relief available in an RCr 11.42 proceeding. There was no abuse of discretion or error of any kind in not granting a continuance.
VII. Prosecutorial Misconduct
Foley complains that he was denied due process of law, a fair trial and a reliable sentence because the prosecutor withheld favorable evidence, coached witnesses and tossed a gun into the jury box. All aspects of this issue were raised in his motion for a new trial as well as the RCr 11.42 motion.
Our review of the record does not indicate that the prosecutor withheld evidence. This issue has already been addressed on direct appeal and was raised by Foley in a motion for a new trial that was rejected by the trial judge. We find no reason to relitigate this subject. See Foley v. Commonwealth, 942 S.W.2d at 886. Foley claims that the prosecutor withheld evidence that Ronnie Dugger was not intimidated because the prosecutor knew that Dugger called his mother and said he was okay. In order to support a motion for a new trial, any newly discovered evidence must be of such a decisive nature that it would, with reasonable certainty, change the verdict. Collins v. Commonwealth, Ky., 951 S.W.2d 569, 576 (1997); Coots v. Commonwealth, Ky., 418 S.W.2d 752, 754 (1967). The granting of a new trial is not favored when the grounds are newly discovered evidence which is merely cumulative or impeaching in nature.
Reliance by Foley on Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), is misplaced. Those federal cases held that a new trial is not automatically required whenever a combing of the prosecutor's files after trial has disclosed evidence possibly useful to the *889 defense, but not likely to have changed the verdict. Next, Foley asserts that the prosecutor met with prosecution witnesses prior to trial, provided them with portions of the discovery and instructed them on their testimony. This ground was also included in his motion for a new trial. We agree with the trial judge that this claim has been waived because post-conviction counsel has not introduced any evidence to substantiate this allegation at the evidentiary hearing. There was no abuse of discretion in refusing a request for reconsideration or for a supplemental hearing because of an alleged automobile accident involving the witness. Finally, the suggestion that the prosecutor threw a gun in the court room is without merit and has been refuted by an examination of the video tape of the trial. There was no basis for avowal testimony from the person who has testified that he was a personal friend of Foley and would do anything to help him. There was no credible evidence to support this claim and it was refuted by the video tape of the trial. The trial judge properly overruled the issue before the RCr 11.42 hearing and avowal testimony was not proper at the hearing. Cf. McQueen.
VIII. Juror Misconduct
Foley argues there was misconduct on the part of three jurors during his original trial. To support these allegations he presented evidence from four witnesses, his trial attorney, one of the jurors and two other persons. All three of the jurors unequivocally denied making the statements attributed to them by Foley.
The trial attorney testified that he was aware of a claim that a juror had told others at a restaurant that the jury had already decided guilt. The trial lawyer sent an associate to the restaurant to investigate the claim but the associate was not able to verify the allegation.
The witnesses called by Foley to support his contention could not name a single individual who supposedly heard such statements or passed information on to them. Foley offered no proof as to the assertions regarding the kinship of jurors to an assistant Commonwealth Attorney and the Commonwealth offered proof that there was no such kinship. The assistant Commonwealth Attorney did not participate in the trial. The claims of juror misconduct are based on suspicion, rumor and speculation. There is no credible evidence to support such allegations. The authorities cited by Foley are unconvincing and without merit.
IX. Discovery Denial
Foley contends that he was denied discovery during the RCr 11.42 post-conviction proceedings. He asserts that the proceedings must have the same scope as a pretrial investigation. We disagree. The RCr 11.42 proceeding is limited in purpose and scope. This Court has stated that such proceedings are not the equivalent of a retrial. Dorton v. Commonwealth, Ky., 433 S.W.2d 117 (1968). Sanborn, supra, has indicated that pretrial rules of discovery do not apply in RCr 11.42 proceedings.
Foley has already received complete discovery and has been convicted. He is no longer simply an accused. He is not permitted to fish through official records in hopes that something may turn up to his benefit. See Gilliam, supra.
X. Letter from Wife
An examination of the record does not indicate any testimony that the trial attorney was made aware of an alleged letter from Foley's wife to the defendant prior to trial. The letter indicated that she became pregnant by a state police officer and that another police officer had given her money. Obviously, defense counsel did not cross-examine her about the letter or about her relationships with either of the two police officers. Foley does not state when he received the letter, nor does he indicate when trial counsel became aware of the letter during trial. *890 Foley, who testified in his own defense, made no mention of the facts that he now argues. Trial counsel cross-examined Foley's wife concerning pending criminal charges against her and the fact that she had unresolved custody litigation. At trial, Foley testified that his wife was "a dope-head and a whore."
The trial judge correctly found that Foley did not assert that he made trial counsel aware of the purported letter or that he asked trial counsel to question his wife about the alleged letter. Foley did not testify at the RCr 11.42 hearing.
In attempting to obtain post-conviction relief, the movant must present facts with sufficient particularity to generate a basis for relief. RCr 11.42(2); Skaggs v. Commonwealth, Ky., 803 S.W.2d 573 (1990); Lucas v. Commonwealth, Ky., 465 S.W.2d 267 (1971).
XI. Denial of Mitigating Evidence
Foley complains that he was not allowed to present relevant mitigating evidence during the testimony of four witnesses at the RCr 11.42 hearing. Foley argues that the evidence was highly relevant to the issue of his character both as a child in school and as a grown adult. All of the evidence he wanted to present was placed in the record by avowal. An examination of it indicates that it is clearly unreliable, inadmissible hearsay. KRE 802. None of the information would have been admissible at trial even through the hearsay exception route. KRE 803 and 804. Thus, it was not ineffective assistance of counsel for the defense lawyer not to have produced it at trial.
The hearsay testimony offered here meets none of the criteria of reliability noted by the United States Supreme Court in Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). In any event all the testimony was recorded by avowal and we conclude that the trial court did not commit any error in excluding it.
We conclude that Foley did not receive ineffective assistance of counsel pursuant to RCr 11.42. He has not demonstrated a professional performance that was so deficient that it prejudiced the defense. There is no showing that the alleged errors of defense counsel were so serious that the result of the trial was unreliable. See Strickland; Gall; McQueen; Sanborn.
The decision of the circuit court is affirmed in all respects.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562683/ | 16 So.3d 1139 (2009)
In re Robert Lee CURRY, III, Paul D. Spillers, and Edwin K. Theus, Jr.
No. 2008-B-2557.
Supreme Court of Louisiana.
Rehearing Denied July 17, 2009.
July 1, 2009.
*1142 Charles Bennett Plattsmier, Baton Rouge, Robert Samuel Kennedy, Jr., Shreveport, for applicant.
Tammy Parker Pratt, Davenport, Files & Kelly, Thomas Williams Davenport, Jr., Monroe, Ottinger Herbert, Paul Joseph Hebert, Lafayette, Theus, Grisham, Davis & Leigh, Paul D. Spillers, Robert Lee Curry, III, Edwin K. Theus, Jr., Monroe, Harry T. Lemmon, for respondent.
Thomas A. Grant, III, Thomas Moore Hayes, III, Donald William Weir, Jr., John David Ziober, Baton Rouge, Michael Allyn Stroud, for amicus curiae, Thomas M. Hayes, III, John David Ziober, Donald Weir, Jr., Thomas A. Grant, III, Edward C. Abell, Jr., M. Allyn Stroud, Charles S. Weems, III, James C. Crigler, Jr.
Emmett Cary Sole, Lake Charles, John Wayne Jewell, New Roads, amicus curiae, for John Wayne Jewell, Emmett C. Sole.
ATTORNEY DISCIPLINARY PROCEEDINGS
PER CURIAM.[*]
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondents, Robert Lee Curry, III, Paul D. Spillers, and Edwin K. Theus, Jr., attorneys licensed to practice law in Louisiana. For the reasons that follow, we suspend respondents from the practice of law for a period of six months, with three months deferred.
UNDERLYING FACTS AND PROCEDURAL HISTORY
The background facts of this case are very complex. Essentially, in the 1980's, Stanley Palowsky and several other individuals formed Gulf States Land and Development, Inc. ("Gulf States") to develop a tract of land located north of Monroe as a residential subdivision known as North Pointe. The business venture was financed by Ouachita National Bank in Monroe, which subsequently became Premier Bank and then Bank One (collectively referred to herein as "ONB"). The multimillion dollar development eventually encountered difficulties, and over two decades, spawned a complex series of more than twenty separate lawsuits involving Mr. Palowsky and ONB, its officers, directors, and attorneys.
In 1985, the Monroe law firm of Theus, Grisham, Davis & Leigh (hereinafter referred to as "TGD & L" or "the firm") assumed the representation of Mr. Palowsky and Gulf States. J. Michael Hart, a partner of TGD & L from 1977 until November 30, 2001, was the attorney who was primarily responsible for the representation. In 1987, Sharon Ingram Marchman joined TGD & L as an associate. She ultimately became a partner of the firm and remained a partner until December 2000, when she was sworn in as a judge of the 4th Judicial District Court. During her tenure with TGD & L, Ms. Marchman worked extensively with Mr. Hart in the representation of Mr. Palowsky and Gulf States.[1]
*1143 In 1988, Mr. Hart filed a lender liability suit against ONB on behalf of Mr. Palowsky and Gulf States, asserting that ONB had breached its loan commitment to Gulf States for the North Pointe development. ONB, in turn, filed suit against Mr. Palowsky and Gulf States alleging default on certain promissory notes owed to ONB and secured by a mortgage on the North Pointe subdivision. This litigation was consolidated for trial purposes, and is referred to herein as the "Gulf States litigation." Mr. Hart billed Mr. Palowsky for his representation in the Gulf States litigation on an hourly basis.
In August 1992, a jury in Ouachita Parish returned a $12.9 million verdict in favor of Mr. Palowsky in the Gulf States litigation. After the jury verdict was rendered, Mr. Palowsky consented to convert the existing hourly fee arrangement for the Gulf States matter to a contingency fee agreement.[2] In October 1992, Mr. Palowsky signed a contingency fee agreement (hereinafter referred to as the "1992 fee agreement") that called for TGD & L to receive a one-third contingency fee on the net recovery from the Gulf States litigation. No copy of the 1992 fee agreement has ever been produced, but according to Mr. Palowsky and Ms. Marchman, it also credited Mr. Palowsky for hourly fees and costs previously paid.
In April 1995, the Court of Appeal, Second Circuit, reduced the $12.9 million judgment in favor of Mr. Palowsky and Gulf States to $2.4 million. This court denied writs in October 1995. Because the judgment as amended on appeal was so complex, the parties turned to the trial court for assistance in interpreting the judgment. In April 1996, the trial court ruled that after taking into account the various awards in favor of Gulf States and offsets against the judgment in favor of ONB for the unpaid promissory notes, Gulf States owed ONB in excess of $500,000. At that point, Gulf States could not develop the North Pointe subdivision, nor could it obtain a loan to pay the balance due to ONB. Further, ONB was in a position to foreclose on its mortgage on the subdivision, which could force Mr. Palowsky's business partners into personal bankruptcy.
While the trial court's April 1996 ruling was pending on appeal before the Second Circuit, Mr. Palowsky approached R. L. Davis, Jr., a senior partner of TGD & L, and asked that the firm act as guarantor on a $950,000 loan that would allow Gulf States to pay off ONB and develop the North Pointe subdivision. Mr. Davis agreed, conditioned upon Mr. Palowsky's renegotiating the 1992 fee agreement on terms more favorable to the firm.
Initially, Mr. Davis proposed to Mr. Palowsky that TGD & L would agree to guarantee the loan in exchange for a percentage of the profits of the sale of lots in the North Pointe subdivision. Mr. Palowsky agreed to this proposal, and the firm set out to draft a new fee agreement. Respondent, Mr. Spillers, was primarily responsible for this task, with respondent, Mr. Curry, overseeing the process.[3]*1144 During the next few months, Mr. Spillers circulated numerous drafts of a proposed fee agreement among the partners of TGD & L for review and comment. In July 1996, Ms. Marchman wrote a memorandum to Mr. Spillers advising that, at her request, Mr. Palowsky had offered a second, alternative option by which the firm could recover its legal fees:
As I have already indicated to you, Stanley and I are both confident that the Second Circuit will give us an award for at least $1.8 million. In anticipation that when that occurs, some of the partners would be rather [sic] have a contingency fee agreement on the amount of that recovery instead of waiting for completion of the subdivision development to recover fees, Stanley has agreed to give us the following option which should be incorporated into the [fee] agreement. Understand, though, that this was not part of the agreement which Stanley reached with [Mr. Davis]. This is something that Stanley has offered at my request.
Mr. Spillers incorporated this language into subsequent draft versions of the fee agreement. Mr. Curry also circulated revisions of the agreement among the partners for approval.
In September 1996, a final fee agreement was reached between Mr. Palowsky and TGD & L (hereinafter referred to as the "1996 fee agreement").[4] Pursuant to the 1996 fee agreement, TGD & L guaranteed a $950,000 loan to Gulf States from First Republic Bank in Monroe to pay off ONB's judgment and to complete the North Pointe subdivision so that lots could be sold. The agreement further provided that as consideration for granting the guaranty, "the undersigned wish to and do hereby amend and restate the agreement regarding legal fees and reasonable expenses due by GULF STATES to TGD & L" in the Gulf States litigation.[5] As set forth in Ms. Marchman's memorandum, the firm had two options in calculating its fee. Under "Option One," TGD & L was entitled to take as its "contingency fee" a percentage of the net profit of the sale of lots in the North Pointe subdivision, either by individual or bulk sales, together with the payment of expenses incurred by the firm in connection with the Gulf States litigation. "Option Two" permitted the firm to take a contingency fee of one-third of the amount of any "award in favor of Gulf States" in the litigation then pending on appeal in the Second Circuit, plus payment of expenses:
One of the matters in the Bank Litigation and currently lodged as an appeal in the Second Circuit Court of Appeal, Docket Nos. ___, may result in an award in favor of GULF STATES. In the event the Second Circuit were to enter a judgment in favor of GULF STATES, then TGD & L shall have an option to take a contingency fee with respect to this award in lieu of any fee *1145 to be generated attributable to the sale of subdivision lots. TGD & L shall have 30 days after entry of any such judgment to notify GULF STATES, in writing, of its election to take a 1/3 contingency fee with respect to any such award. In the event TGD & L were to elect to take a contingency fee with respect to any such award, then TGD & L shall have no right to receive any fee whatsoever with respect to any other GULF STATES' Bank Litigation EXCEPT Stanley Palowsky's personal suit, Docket No. ___. In the event TGD & L elects to take a contingency fee with respect to the Second Circuit's judgment in favor of GULF STATES, then the contingency fee will be 1/3 of the amount recovered, said amount to include the funds previously deposited into the Court Registry and not reduced by any funds borrowed by GULF STATES from First Republic Bank to satisfy the debt owed by GULF STATES to BANK ONE. For example, if the award by the Second Circuit is $1,800,000.00, the amount in the Court Registry is $300,000.00 and the amount borrowed from First Republic is $600,000.00 then the 1/3 contingency fee will be $700,000.00 (1/3 of $2,100,000.00). Under this option GULF STATES will be obligated to pay, in addition to the contingency fee, all reasonable expenses incurred by TGD & L in connection with the Bank Litigation. Notwithstanding anything in this paragraph to the contrary, in the event TGD & L elects to exercise this option and take as its fee the 1/3 of the amount awarded by the Second Circuit and, thereafter, that award be reversed in whole or in part by the Louisiana Supreme Court, then TGD & L shall have the choice to revert to the contingency fee based on net profits from the sale of the subdivision set forth herein. [All emphasis in original.]
Respondent, Mr. Curry, signed the 1996 fee agreement on behalf of TGD & L. To further protect the firm's interest, respondent, Mr. Theus, obtained a $2 million mortgage on behalf of the firm against the North Pointe subdivision to "secure all sums due by the Corporation to [TGD & L] under the Fee Agreement."
In April 1997, the Court of Appeal, Second Circuit reversed the trial court's judgment, holding that under a proper interpretation of the original judgment, Gulf States was a net creditor of ONB. In May 1997, Mr. Curry, on behalf of TGD & L, gave Mr. Palowsky written notice that the firm intended to exercise Option Two of the fee agreement, subject to the provision that the firm could rescind its election if the Second Circuit's award was later reduced in whole or in part. In September 1997, the court of appeal's judgment became final upon this court's denial of writs.
TGD & L calculated the total amount of the judgment against ONB to be $1.8 million and that the total legal fee due to the firm under the 1996 fee agreement was therefore $600,000. After ONB paid $1,049,000 of the judgment to Gulf States,[6]*1146 Gulf States paid TGD & L legal fees of one-third of that amountapproximately $349,000as calculated by respondent, Mr. Theus.[7] Gulf States also reimbursed TGD & L for $14,000 in expenses. This was the last payment of any sums to TGD & L by Mr. Palowsky or Gulf States.
In January 1998, Mr. Palowsky wrote a letter to respondent, Mr. Theus, requesting a complete accounting of all sums he had paid to TGD & L since 1986. Mr. Palowsky's request was prompted by his receipt of a September 1997 invoice for $22,000 in hourly legal fees for title work and other legal services rendered by the firm in connection with the closing of the First Republic Bank loan.[8] After unsuccessfully attempting to compile the accounting himself, Mr. Theus turned the matter over to Ms. Marchman in August 1998 with instructions to tabulate all sums paid to the firm by Gulf States and provide Mr. Palowsky with an accounting.
Ms. Marchman completed her analysis in October 1998 and reported to Mr. Theus that "it appears that we have overcharged" Mr. Palowsky a net sum of $38,000 in legal fees and expenses in his various legal matters. Mr. Theus and the other partners of TGD & L (excluding Mr. Hart) disputed Ms. Marchman's analysis, claiming that the firm could not have overcharged Mr. Palowsky anything because he still owed the firm approximately $250,000 under the 1996 fee agreement in connection with the Gulf States litigation plus expenses advanced by the firm in his personal suit.[9] Despite these competing claims, no definitive resolution of the issue was reached at that time, as the personal suit was ongoing and Mr. Palowsky did not wish to jeopardize his relationship with the firm.
In September 2001, Mr. Hart tried the personal suit before a jury, which returned a $19.4 million verdict in favor of Mr. Palowsky and against ONB. Mr. Hart withdrew from TGD & L in November 2001.[10]
The bank appealed the judgment in the personal suit. In 2002, while the appeal was pending, the parties entered into a confidential settlement of the verdict.
In 2003, attorney Joseph R. Ward, Jr. wrote TGD & L on behalf of Mr. Palowsky and requested a full and final accounting of all sums paid to the firm in connection with the Gulf States litigation. Respondent, Mr. Spillers, initially replied to this demand by claiming that Mr. Palowsky owed an accounting to TGD & L "for all recoveries made, all expenses paid and all fees paid in connection with all matters with respect to which an accounting has *1147 been demanded." Pressed further, Mr. Spillers then forwarded to Mr. Ward more than nine hundred pages of "various accounting statements" which "itemize expenses, advances, and payments credited to the various files comprising the `Palowsky' litigation." Mr. Spillers conceded that the firm "do[es] not consider the enclosed to be the `full and complete' accounting that was requested by" Mr. Palowsky. However, Mr. Spillers asserted that because Mr. Hart had taken Mr. Palowsky's files with him when he left TGD & L in November 2001, the firm was not in possession of the requisite records which would enable it to provide a "full and complete" accounting. Despite the asserted absence of these records, respondents nonetheless insisted that the firm owed Mr. Palowsky no money and that instead Mr. Palowsky owed the firm $128,000 in costs and expenses paid on his behalf in connection with the personal suit. Moreover, the firm reiterated its demand for payment of the September 1997 invoice for legal services in the amount of $22,000, and for the unpaid portion (approximately $250,000) of the $600,000 in legal fees the firm claimed it was due under the 1996 fee agreement.
DISCIPLINARY PROCEEDINGS
Formal Charges
In 2003, Mr. Palowsky filed a complaint against respondents with the ODC. In 2005, the ODC filed two counts of formal charges against respondents jointly. In Count I, the ODC alleged that respondents failed to prepare or provide Mr. Palowsky with a settlement disbursement statement upon the conclusion of the Gulf States litigation, as required by Rule 1.5(c) (upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination) of the Rules of Professional Conduct. Accordingly, the ODC alleged that TGD & L retained substantial sums of client funds which respondents have since refused to account for or return to Mr. Palowsky.
In Count II of the formal charges, the ODC alleged that through their acts and omissions, both individually and in concert with each other, respondents have committed multiple violations of the Rules of Professional Conduct, as follows:
1. By impermissibly acquiring a proprietary interest in the cause of action or subject matter of litigation belonging to a client outside the confines of a contingency fee contract, respondents have violated Rules 1.8(a) (a lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client) and 1.8(j) (a lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client).
2. Before obtaining the client's agreement to enter into a business transaction with the law firm, respondents failed to affirmatively advise the client that he should seek independent, disinterested legal counsel to protect his interests, in violation of Rule 1.8(a).
3. By taking advantage of a client in necessitous circumstances and charging the client a contingency fee in circumstances where no serious risk of non-recovery existed, respondents permitted their own interests in collecting a fee to override their obligation to protect their client's interests and have engaged in a conflict of interest, in violation of Rules *1148 1.7(b) (a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests) and 1.8.
4. By failing or refusing to credit the client with hourly fees and costs previously paid, and in refusing to refund said sums after being advised of their unconditional obligation to do so, respondents have violated Rules 1.15(b) (a lawyer shall promptly deliver to a client or third person any funds or property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property), 1.16(d) (obligations upon termination of the representation), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).[11]
5. By failing or refusing to provide, despite repeated demands by the client, a reasonable accounting of all sums paid to the firm by the client and all sums expended by the firm on the client's behalf in the Gulf States litigation, respondents have violated Rules 1.15(a) (complete records of a lawyer's client trust account shall be kept and preserved for a period of five years after termination of the representation), 1.15(b), 1.15(c) (when in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests), and 1.16(d).
6. By refusing to acknowledge receipt of, and failing to credit to the client's account, cash payments totaling $19,000 made directly to them by Mr. Palowsky, respondents, Mr. Spillers and Mr. Theus, have violated Rule 8.4(c).[12]
7. By failing to maintain complete financial records of account funds and other property belonging to a client for a period of five years from the conclusion of the representation, respondents have violated Rule 1.15(a).
Respondents filed separate answers to the formal charges denying any misconduct. Specifically, respondents contended that the primary responsibility for handling Mr. Palowsky's legal affairs rested with Mr. Hart, not with them. Each respondent, however, admitted knowledge of the 1996 fee agreement.[13] Mr. Spillers and Mr. Theus also admitted they attempted to make an accounting to Mr. Palowsky. The matter then proceeded to a formal hearing, at which both parties introduced *1149 volumes of documentary evidence. Numerous witnesses were also called to testify, including Mr. Palowsky; Fred Sartor, a former partner of TGD & L; Judge Marchman; Mr. Ward; Judge C. Wendell Manning, a former partner of TGD & L; Mr. Curry; Charles Heck, a former partner of TGD & L; Mr. Spillers; Mr. Theus; and Sedric Banks.
Hearing Committee Report
After considering the evidence and testimony presented at the hearing, the hearing committee made the following findings:
Finding of Fact No. 1
The committee determined that TGD & L collected a contingent fee plus expenses from Mr. Palowsky under the 1996 fee agreement, noting that respondents admitted they were partners in the firm when the fee was charged. Citing Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1978), the committee found the 1996 fee agreement, which respondents characterized as a "hybrid fee agreement," did not satisfy the requirements for a contingency fee agreement because it was not dependent on the outcome of the client's claim, nor did the attorney bear the same risk of loss as the client.[14] Consequently, the committee found that the evidence established by clear and convincing means that the fee agreement was per se invalid and unenforceable as a contingent fee contract. Therefore, the collection of a fee out of the subject matter of the suit without a valid contingent fee agreement was the acquisition of a proprietary interest in the subject matter of the suit in violation of Rules 1.8(a) and (j). The committee therefore found that respondents violated Rules 1.8(a) and (j) inasmuch as they were partners of the firm which collected a contingent fee without a valid and enforceable contingent fee agreement.
Finding of Fact No. 2
The committee found that respondents did not disclose to Mr. Palowsky that he should seek the advice of independent legal counsel in connection with executing the fee agreement. However, the committee determined that the evidence is also clear and convincing that Mr. Hart and Ms. Marchman were primarily responsible for this task. Therefore, while the committee found a violation by respondents of Rule 1.8(a), the committee noted respondents acted "by omission and not knowingly," as they assumed Mr. Hart or Ms. Marchman would have advised Mr. Palowsky to seek the advice of counsel.
Finding of Fact No. 3
The committee determined respondents violated Rule 1.8 by permitting their own interest in collecting a fee to override their obligation to their client. The committee accepted the ODC's contention that respondents arranged for a contingency fee where there was little risk of non-recovery and were able to do so by taking advantage of the client's necessitous circumstances, i.e., pending foreclosure and bankruptcy. In support, the committee observed that prior to the 1996 fee agreement, the firm's recovery of a contingent *1150 fee was dependent on the 1992 fee agreement, which simply provided for the recovery of a one-third contingent fee plus expenses. The committee found the 1996 fee agreement placed the firm in a better position by providing a means for the firm to collect a fee even if no recovery was made in the bank litigation. The committee emphasized that the client was in necessitous circumstances at the time that occurred. Therefore, the committee determined that the respondents engaged in a conflict of interest in violation of Rule 1.8(a).
Finding of Fact No. 4
The committee found the evidence of how much and what was paid to the firm prior to the recovery of the contingent fee to be in conflict. In particular, it observed that while Mr. Palowsky contended that he paid over $200,000 in fees to the firm for which he should have been reimbursed out of the contingent fee that was recovered in 1997, respondents produced a spreadsheet detailing numerous matters handled by the firm on behalf of Gulf States and Mr. Palowsky other than the bank litigation matters. Given the conflict in the evidence as to exactly how much Mr. Palowsky and/or Gulf States paid in hourly fees that were to be covered by the contingent fee arrangement, the committee found that the ODC failed to prove by clear and convincing evidence that respondents violated Rules 1.15(b), 1.16(d), and 8.4(c) by failing or refusing to credit the client with hourly fees and costs previously paid against the contingent fee that the firm collected in 1997.
Finding of Fact No. 5
The committee found that the firm, and through the firm respondents, have provided an accounting to Mr. Palowsky. Although the committee acknowledged Mr. Palowsky was not satisfied with the accounting, it did not find any violation of the rules. It further noted the fact that there is a dispute as to the accuracy of the accounting does not rise to the level of a violation of Rules 1.15(a)(b) and (c) or 1.16(d).
Finding of Fact No. 6
The committee found there was insufficient evidence to prove that cash payments were ever made by Mr. Palowsky to two of the respondents, Mr. Spillers and Mr. Theus. The committee observed the only affirmative evidence in this regard was Mr. Palowsky's self-serving testimony which was denied by Mr. Spillers and Mr. Theus. Furthermore, it noted Mr. Palowsky's own accounting sheets failed to show the cash payments. Therefore, the committee found the ODC failed to prove by clear and convincing evidence that Mr. Spillers or Mr. Theus violated Rule 8.4(c).
Finding of Fact No. 7
Addressing the ODC's allegation that respondents violated Rule 1.15(a) by failing to maintain complete financial records of account funds and other property belonging to the client for the requisite period of five years from the conclusion of the representation, the committee explained that the primary responsibility for the representation of Mr. Palowsky rested with Mr. Hart. It noted that Mr. Hart left the firm in November 2001 and took Mr. Palowsky's records with him. The committee reasoned that Mr. Hart presumably preserved the file information and records. Accordingly, the committee found no violation of Rule 1.15(a) by respondents.
Finding of Fact No. 8
Finally, the committee addressed whether respondents violated Rule 1.5(c) by failing to provide the client with a written statement showing the outcome of the contingent fee matter and the remittance to the client and the method of its determination. The committee found it was undisputed *1151 that a contingent fee and more than $14,000 in expenses were charged under the 1996 fee agreement, but no disbursement statement as required by Rule 1.5(c) was produced by the respondents showing how that fee was distributed.[15] Therefore, because respondents failed to produce a disbursement sheet, the committee found they violated Rule 1.5(c). However, the committee found this to be an omission and not done knowingly. Mr. Hart was primarily responsible for the representation of Mr. Palowsky, and his partners had the right to assume that he would prepare such a disbursement statement.
Sanctions
The committee determined that under the ABA's Standards for Imposing Lawyer Sanctions, the baseline sanction for respondents' misconduct is suspension. In this case, respondents knowingly collected a contingent fee under an agreement that was unenforceable as such. They also knowingly acquired a proprietary interest in the cause of action outside a contingency fee arrangement, and knowingly took advantage of a client in necessitous circumstances by converting a fee agreement that was entirely dependent upon the outcome of the case and recovery to one which guaranteed recovery of a fee. Respondents' conduct could have potentially caused injury to the client. If the Gulf States litigation had been lost, the client would have nonetheless had to pay a contingent fee out of the sale of property owned by the client.
As aggravating factors, the committee found refusal to acknowledge the wrongful nature of the conduct and substantial experience in the practice of law.[16] The committee found the following mitigating circumstances apply: absence of a prior disciplinary record and a cooperative attitude toward the disciplinary proceedings. The committee also observed that Mr. Palowsky was not a vulnerable victim because he was an "experienced litigator" and that respondents had not committed multiple offenses.
Considering that some of respondents' violations were knowing, the committee determined that a two-year period of suspension is appropriate in this case. However, in light of the mitigating circumstances, the committee recommended that all but six months of the suspension be deferred, subject to the condition that respondents attend the Louisiana State Bar Association's Ethics School. The committee also recommended that respondents be assessed with all costs and expenses of these proceedings.
Both respondents and the ODC objected to various aspects of the hearing committee's report. Respondents also objected to the sanction recommended by the committee, arguing that no discipline is appropriate in this case and that the formal charges should be dismissed.
Disciplinary Board Recommendation
After review, the disciplinary board determined that the hearing committee's factual findings are not manifestly erroneous. The board found respondents violated duties owed to their client and the profession, determining their conduct was negligent *1152 in some instances and knowing in others. However, the board found there was little injury to the client, as the firm never exercised its option under the improper portion of the contingency fee agreement. Rather, it found the firm collected a standard contingency fee, as it would have under the previous contingency fee agreement with Mr. Palowsky. In other words, the firm did not receive any actual benefit from the 1996 fee agreement that it would not have otherwise received under the 1992 contingency fee contract. Further, the board observed that the potential injury to Mr. Palowsky was low because the 1996 fee agreement gave the firm an interest in "net profits," which are not guaranteed, and Mr. Palowsky had control over when the net profits would be distributed to the firm, if any. Nevertheless, the board recognized respondents knowingly executed an invalid contingency fee contract, knowingly entered into an improper business transaction with a client, and knowingly gained an improper proprietary interest in the client's cause of action. Considering the ABA's Standards for Imposing Lawyer Sanctions, the board found the applicable baseline sanction is suspension.
As aggravating factors, the board found refusal to acknowledge the wrongful nature of the conduct and substantial experience in the practice of law. The board found the following mitigating circumstances apply: absence of a prior disciplinary record and a cooperative attitude toward the disciplinary proceedings. Considering all the circumstances, the board found the mitigating factors outweigh the aggravating factors.
In determining an appropriate sanction, the board noted that the instant case "presents a unique set of circumstances and issues that have not been fully developed by caselaw." However, the board noted that this court has decided several cases involving variations on the conflict of interest theme, with sanctions ranging from fully deferred suspensions to disbarment. The board concluded this case falls on the more lenient end of the spectrum. While there is no doubt that respondents crafted the "contingency" fee agreement to essentially ensure some type of fee recovery, and thereby put their own interests ahead of those of Mr. Palowsky, respondents did not take advantage of a vulnerable victim. Mr. Palowsky participated in the drafting of the terms of the contract and signed it without any duress exerted upon him by the firm. Further, respondents have no prior disciplinary history and no history of improper business transactions with clients. Rather, a previous relationship existed between Mr. Palowsky and the firm which was complicated by the introduction of a conflict of interest, without the proper safeguards taken or disclaimers made to the client.
Based on this reasoning, the board recommended that respondents be suspended from the practice of law for one year, fully deferred, subject to a one-year period of unsupervised probation. Four board members dissented and would recommend a harsher sanction.
Both respondents and the ODC filed objections to the disciplinary board's recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).
DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana *1153 State Bar Ass'n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.
While this case is very factually complex, we believe the allegations against respondents may be divided into two broad categories: (1) allegations involving business transaction and conflict of interest issues, and (2) allegations involving accounting violations. We will address these categories separately.
Business Transaction/Conflict of Interest Issues
The allegations with regard to this category revolve around respondents' 1996 fee agreement. The ODC submits that respondents entered into a business transaction with their client which was not fair and reasonable to the client and without giving their client a reasonable opportunity to seek the advice of independent counsel in the transaction, in violation of Rule 1.8. The ODC further asserts by entering into this agreement, respondents placed their own interests ahead of those of their client, thereby violating Rule 1.7(b).
A review of the 1996 fee agreement reveals that it is a highly unusual arrangement. Pursuant to that agreement, the firm guaranteed a $950,000 loan to Gulf States from a bank in order to complete the North Pointe subdivision so that lots could be sold. The agreement further provides the firm two separate options whereby it may recover legal fees in the Gulf States litigation. One option amounted to a standard contingency fee under which the firm was entitled to recover one-third of the amount of any award in favor of Gulf States in the litigation then pending on appeal. However, another option permitted the firm to recover a percentage of the net profit of the sale of lots in the North Pointe subdivision, either by individual or bulk sales. Payment of the fee under this option was not conditioned to any degree on the success or failure of the Gulf States litigation. Moreover, under the agreement, the firm could elect the option under which it chose to recover after the Gulf States litigation had concluded.
Much discussion in the parties' briefs and the brief of the amici centers on whether Louisiana law recognizes a so-called "hybrid" or "mixed" fee agreement which allows a lawyer to seek recovery from sources other than a traditional contingency fee. However, we need not resolve that question in order to decide the case at bar. Rather, we find that to the extent respondents attempted to enter into a business arrangement with their client, they did not follow the appropriate ethical strictures.[17]
At the time of the 1996 agreement, Rule 1.8 of the Rules of Professional Conduct provided, in pertinent part:
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
*1154 (1) The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client;
(2) The client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and
(3) The client consents in writing thereto.
* * *
(j) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
(1) Acquire a lien granted by law to secure the lawyer's fee or expenses; and
(2) Contract with a client for a reasonable contingent fee in a civil case.
Respondents argue that the terms of the 1996 fee agreement were fair and reasonable to Mr. Palowsky and the Gulf States entities because the firm received no additional consideration for guaranteeing the $950,000 loan to Gulf States and it would receive no more under the 1996 fee agreement than it would have received under the 1992 fee agreement. We disagree. As the hearing committee explained, under the 1992 fee agreement, the firm's recovery of a contingent fee was limited to a recovery of a one-third contingent fee plus expenses. By contrast, the 1996 fee agreement provided a means for the firm to collect a fee even if no recovery was made in the Gulf States litigation. Thus, it is clear the firm used the guaranty of the $950,000 loan as leverage to insert terms into the fee agreement which it perceived to be more favorable.
Moreover, even assuming for sake of argument that the 1996 fee agreement was fair and reasonable, the undisputed evidence establishes that respondents did not give their client an opportunity to seek the advice of independent counsel regarding the transaction. Although respondents suggest that Mr. Palowsky is a sophisticated businessman and experienced developer, the unusual nature of the 1996 fee agreement should have prompted respondents to urge him to have independent counsel review the arrangement.[18] Under these circumstances, we find respondents violated Rule 1.8.
For similar reasons, we find respondents' actions violated the conflict of interest provisions of Rule 1.7(b). At the time of the 1996 fee agreement, that rule provided, in pertinent part:
A lawyer shall not represent a client if the representation of that client may be materially limited ... by the lawyer's own interests, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) The client consents after consultation. . . .
As discussed above, the 1996 fee agreement had the effect of placing respondents in a better position than they had been in under the 1992 fee agreement. Additionally, *1155 the firm's decision to guarantee the $950,000 loan made to Gulf States impacted the representation by causing the firm to consider its own interests as well as those of its client. Under these circumstances, we conclude respondents' representation of their client was materially limited by their own interests, thereby violating Rule 1.7(b).
Failure to Account Violations
At the time of the representation in this case, Rule 1.15(a) provided, in pertinent part:
A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in a bank or similar institution in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person.... Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
Rule 1.15(b) provided, in pertinent part, that "a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property." The ODC alleges that respondents failed to properly maintain records regarding the representation of Mr. Palowsky and Gulf States and, despite repeated demands by Mr. Palowsky between 1996-2003, respondents have never provided him with an accounting.
Both the hearing committee and the disciplinary board rejected these charges, reasoning that the evidence in the record established that Mr. Hart controlled the Palowsky/Gulf States files while he was at the firm and took these files with him when he left the firm in 2001. Additionally, they found that respondents did provide an accounting, even though the accounting may not have been to Mr. Palowsky's satisfaction.
At the outset, we note the "accounting" to which the committee and board referred consisted of nine hundred and twenty pages of documents, consisting primarily of hourly billing and cost invoices generated from the firm's computer records. To suggest that this mass of paper may be called an accounting in compliance with Rule 1.15(b) is to make an utter mockery of that rule. Moreover, respondent, Mr. Spillers, acknowledged in a 2003 letter to Mr. Palowsky's attorney that the documents did not constitute an accounting, explaining, "[w]e do not consider the enclosed to be the `full and complete' accounting that was requested by the clients." Thus, the hearing committee's factual finding that respondents provided an accounting is clearly wrong and must be rejected.[19]
Likewise, to the extent the hearing committee determined Mr. Hart's removal of the files made it impossible for respondents *1156 to render an accounting, we find such a conclusion to be unsupported by the record. As a threshold matter, we note it is by no means clear from the record whether Mr. Hart actually took the financial records relating to the Palowsky/Gulf States litigation at the time he left the firm.[20] However, assuming for sake of argument that he did so, the record reveals that other means were available to respondents whereby they could have rendered an accounting. In particular, the firm's bookkeeper testified that the firm retained numerous financial documents from the Palowsky litigation, such as cancelled checks, records of deposits, and ledger entries. Similarly, Will Sartor, a member of the firm who assisted Mr. Theus in the attempted 1998 accounting, testified the "bills themselves should have reflected exactly what's paid by the client, and would have been entered into our accounting system...." Given this evidence, we find no impediment existed to respondents rendering an accounting as required by Rule 1.15(b).[21]
The ODC further alleges respondents violated Rule 1.16(d), which provides, in pertinent part, "[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned." Specifically, the ODC asserts respondents violated this rule by refusing to credit Mr. Palowsky with hourly fees and costs previously paid against the contingent fee.
The hearing committee and disciplinary board determined, among other things,[22] that there was no clear and convincing evidence that the firm owed a refund of fees to Mr. Palowsky/Gulf States. Thus, they concluded this rule was not violated by respondents.
Based on our review of the record, we cannot say this finding is manifestly erroneous. Mr. Palowsky's testimony indicates he paid over $200,000 in hourly fees and costs, which should have been credited against the contingency fee. However, respondents produced evidence that the firm handled matters other than the bank litigation matter on Mr. Palowsky's behalf which were not covered by the contingency fee agreements. Under these circumstances, we cannot say the ODC has established by clear and convincing evidence that respondents violated Rule 1.16(d) by failing to credit Mr. Palowsky's hourly fees against the contingency fee. However, insofar as Rule 1.16(d) requires respondents to furnish an accounting to their client, we find respondents violated this portion of the rule for the reasons contained in our discussion of the Rule 1.15(b) violation.
*1157 Finally, the ODC alleges respondents violated Rule 8.4(c), which prohibits an attorney from engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation." Specifically, the ODC asserts two of the respondents (Mr. Spillers and Mr. Theus) failed to credit Mr. Palowsky's account with cash payments made by him totaling $19,000.
In finding the committee correctly rejected this charge, the board observed there was no evidence, other than Mr. Palowsky's "self-serving" testimony, to establish the existence of the alleged cash payments. Our review of the record indicates that while there is some corroboration for Mr. Palowsky's testimony, it does not rise to the level of clear and convincing proof. Accordingly, we see no manifest error in the committee's finding that this charge was not proven.
Summary of Rule Violations
In summary, we find the record establishes respondents violated Rule 1.7(b) because their representation of their client was materially limited by their own interests. We further find respondents violated Rule 1.8 by entering into an unfair business transaction with their client and failing to advise their client to seek the advice of independent counsel before entering into the agreement. Finally, we find respondents violated Rules 1.15(b) and 1.16(d) by failing to render a proper accounting to their client.
Sanctions
Having found professional misconduct, we now turn to a determination of the appropriate sanction for respondents' actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington, 459 So.2d 520 (La.1984).
A review of our prior cases reveals little analogous jurisprudence, which is not surprising given the unusual facts of this case. Unlike a typical representation with a limited objective, the representation in the instant case developed and evolved over the course of many years. Seen in this light, we do not believe respondents acted with any overarching intent to cause harm to their client. Nonetheless, this case should serve as a cautionary tale, demonstrating the need to maintain strict ethical boundaries between attorney and client and the wisdom of resisting the temptation to see the client as a business partner. Adherence to the prophylactic requirements of Rules 1.7 and 1.8, as well as prompt and scrupulous attention to the client's request for an accounting, would have obviated many of the problems faced by respondents in this case.
Considering the facts of the case as a whole, we conclude the appropriate baseline sanction to be a suspension. In aggravation, we recognize respondents' refusal to acknowledge the wrongful nature of their conduct and their substantial experience in the practice of law. However, in mitigation, we find respondents have no prior disciplinary record and have demonstrated a cooperative attitude toward these disciplinary proceedings, despite their failure to admit their transgressions.
Mindful of all these factors, we will suspend respondents from the practice of law for a period of six months, deferring three months of the suspension.
*1158 DECREE
Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Robert Lee Curry, III, Louisiana Bar Roll number 4672, be and he hereby is suspended from the practice of law for six months, with three months deferred. It is further ordered that Paul D. Spillers, Louisiana Bar Roll number 12341, be and he hereby is suspended from the practice of law for six months, with three months deferred. It is further ordered that Edwin K. Theus, Jr., Louisiana Bar Roll number 12728, be and he hereby is suspended from the practice of law for six months, with three months deferred. All costs and expenses in the matter are assessed against respondents in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.
VICTORY, J., dissents and assigns reasons.
VICTORY, J., dissents.
As noted in the majority opinion, attorney disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass'n v. Boutall, 597 So.2d 444 (La.1992). I cannot agree that the alleged violations found by the majority were proven by clear and convincing evidence as required by our rules. See La. S.Ct. Rule XIX, § 18(C). The majority asserts that the allegations against respondents may be divided into two broad categories: (1) allegations involving business transaction and conflict of interest issues, and (2) allegations involving accounting violations. I will address each of these categories separately.
Business Transaction and Conflict of Interest Issues
After reviewing the allegations involving business transaction and conflict of interest issues, the majority finds the respondents violated Rule 1.8(a)[1] and Rule 1.7(b). I will analyze each of these alleged rule violations in turn.
The majority first claims that the respondents have violated Rule 1.8(a). At the time of the alleged misconduct, Rule 1.8(a) of the Rules of Professional Conduct provided that an attorney may enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client if:
(1) The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client;
(2) The client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and
(3) The client consents in writing thereto.[emphasis added].
The majority concludes that the respondents have violated the above provision because: (1) the business transaction at *1159 issue, the 1996 fee agreement, was not "fair and reasonable," and (2) the respondents failed to ensure Mr. Palowsky had a "reasonable opportunity to seek the advice of independent counsel." Both of these findings are in error.
To support its finding that the business transaction in question was not a "fair and reasonable" one, the majority relies solely on the observation that the 1996 fee agreement provided a means for the firm to collect a fee even if no recovery was made in the Gulf States litigation. The majority states, "it is clear the firm used the guaranty of the $950,000 loan as leverage to insert terms into the fee agreement which it perceived to be more favorable." At p. 1154. It seems that the majority has concluded that the respondents should have either allowed Mr. Palowsky and or his partners to go bankrupt or should have elected to bear the risk of default on a loan of nearly one-million dollars for no additional remuneration. The notion that the firm should have allowed Mr. Palowsky to go bankrupt seems callous, and the implicit argument that the firm should have accepted the risk of default at no additional costs disregards one of the most ancient and well established maxims of human commerce, that the chance of profit must go with the risk of disaster. See Justinian's Institutes § 3.23, at 115 (Peter Birks & Grant McLeod eds., Cornell University Press 1987). It was not unreasonable or unfair for respondents to seek additional security in return for accepting a greater risk.
The majority's conclusion that respondents did not given Mr. Palowsky a "reasonable opportunity to seek the advice of independent counsel" in violation of Rule 1.8(a)(2) is also in error. To support this conclusion the majority relies solely on an extraordinary interpretation of the version of Rule 1.8(a)(2) which was in effect during the relevant time period. The majority finds that Rule 1.8(a)(2), as it existed at the time of the alleged misconduct,[2] imposed an affirmative duty upon the respondents to urge Mr. Palowsky to have independent counsel review the 1996 fee agreement. This interpretation finds no support in a plain reading of the pertinent text. During the time period at issue, Rule 1.8(a)(2), on its face, simply established a temporal requirement. Under the rule, a client could not be forced to render an immediate, rash decision regarding a transaction with their lawyer. A client had to be given a "reasonable opportunity" or time period[3] to consider the implications of any such arrangement and to "seek" independent counsel. Rule 1.8(a)(2). The 1996 fee agreement was constructed over the course of several months, and Mr. Palowsky was presented *1160 with several drafts before signing a final version. There is simply no evidence that Mr. Palowsky was not given a reasonable opportunity to seek the advice of independent counsel.
The majority also concludes that the respondents have violated Rule 1.7(b). At the time of the alleged misconduct, that rule, in pertinent part, stated:
A lawyer shall not represent a client if the representation of that client may be materially limited ... by the lawyer's own interests, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) The client consents after consultation....
The majority concludes that the respondents' law firm's representation of the client was "materially limited" by their own interests after the respondents' firm adopted the 1996 fee agreement, thereby violating the above provision. However, this finding seems to stand in stark contradiction to the plain terms of the 1996 fee agreement. By its very design, the fee agreement indicates uncertainty as to which method of remuneration, a percentage of the final judgment in the Gulf States litigation or a percentage of the net profits from the sales of the subdivision lots, would yield the greater monetary award for the firm. Thus, it is illogical to claim that by entering into the 1996 fee agreement the respondents' firm was inspired to limit their representation or provide a lower quality of representation. Such a reaction would have reduced the firm's prospects of obtaining the maximum monetary award possible. Rather, under the 1996 fee agreement, the firm was inspired to work diligently to maximize the client's fortunes as this would, in turn, result in the maximization of the firm's fortunes.
Allegations Involving Accounting Violations
After reviewing the allegations involving accounting violations, the majority finds the respondents violated Rule 1.15(b) and 1.16(d) (insofar as this rule requires respondents to furnish an accounting to their client). As the majority bases its findings regarding Rule 1.16(d) completely on the reasons contained in their discussion of Rule 1.15(b), my analysis of the alleged 1.15(b) violation below will, in effect, address the purported violation of both rules.
At the time of the alleged misconduct, Rule 1.15(b) of the Rules of Professional Conduct provided, in pertinent part, as follows:
[A] lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
As the majority opinion notes, after a review of the entire record, both the hearing committee and the disciplinary board rejected the charge that the respondents violated Rule 1.15(b).
The disciplinary board found that "[t]here is no dispute that Mr. Hart controlled the Palowsky/GSLD files while he was at TGD & L," and that, "there is no dispute that, as the lawyer for Mr. Palowsky/GSLD, Mr. Hart was responsible for handling the financial aspects of the Palowsky/GSLD files." The board also stated that when Mr. Hart left the law firm, "Mr. Hart took all the Palowsky and GSLD files." Based on these findings, the board noted that "the obligation to provide an accounting rested with Mr. Hart and Mrs. Marchman" and not the respondents.
*1161 The majority finds that the record shows that "means were available to respondents whereby they could have rendered an accounting" despite Mr. Hart's departure from their law firm. At p. 1156. Specifically, the majority cites evidence in the record that the firm retained "numerous financial documents from the Palowsky litigation, such as cancelled checks, records of deposits, and ledger entries." At p. 1156. Yet, the majority fails to address the very practical observation of the disciplinary board that, "[a]s attorneys for Mr. Palowsky and GSLD, Mr. Hart and Mrs. Marchman were the lawyers that generated the vast majority of the expenses and fees in the bank litigation matter." Accordingly, "[respondents are not in a position to interpret these [financial] documentsthat is the obligation of Mr. Palowsky's attorneys, Mr. Hart and Mrs. Marchman." Considering the above, the board and the hearing committee found that the respondents tendered a reasonable accounting by providing Mr. Palowsky with all the financial documents they had concerning monies billed and paid by Mr. Palowsky and GSLD, some 920 pages. I do not find evidence in the record which justifies the majority's departure from the findings of the hearing committee and the disciplinary board regarding this point.
Conclusion
For the reasons described above, I cannot agree that the alleged violations found by the majority were proven by clear and convincing evidence as required by our rules. Furthermore, even if I was inclined to agree with the majority on those issues, after considering all the facts and circumstances, I would impose the fully deferred suspension recommended by the disciplinary board.
NOTES
[*] Retired Judge Thomas C. Wicker, Jr., assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired, recused.
[1] At some point later in his representation of Mr. Palowsky, Mr. Hart brought in co-counsel, Monroe attorney Sedric Banks and New Orleans attorney Joseph R. Ward, Jr.
[2] Mr. Theus testified that he was the one who "corralled" the parties and "brought them in" to execute the new fee agreement. However, the agreement was ultimately executed for the firm by Mr. Hart and notarized by Ms. Marchman.
[3] During the negotiation of the 1996 fee agreement, Mr. Palowsky asked for an accounting from TGD & L of sums he had previously paid to the firm, and several versions of the draft fee agreement contained a provision which called for the firm to make a full accounting to Mr. Palowsky before the agreement was executed. On August 7, 1996, Mr. Spillers sent a memorandum to Mr. Palowsky attaching a revised copy of the draft fee agreement which deleted the accounting provision. The memorandum further states, "I believe we have located where all the payments were credited. Please see me if you want to review the documentation." It is unclear what "documentation" Mr. Spillers was speaking of, and Mr. Palowsky adamantly denies that he received any accounting in response to his 1996 request.
[4] The 1996 fee agreement is not dated; however, the evidence is clear that it was executed after September 4, 1996.
[5] The agreement specified that it replaced all other fee agreements regarding the Gulf States litigation, except the fee agreement governing a reconventional demand filed by Mr. Palowsky against ONB, which the parties referred to as Mr. Palowsky's "personal suit." The 1996 fee agreement specified that the personal suit "is, and remains, a separate matter governed by a separate fee agreement."
[6] ONB withheld $756,000 due to Mr. Palowsky under the judgment, claiming that it had a right to offset that sum against a personal judgment obtained by the bank against Mr. Palowsky in 1989. In October 1997, Mr. Hart and Ms. Marchman executed a writ of seizure against ONB and seized $756,000 in cash from ONB's vault. These funds were paid to Mr. Palowsky by a check from the Ouachita Parish Sheriff's Office. Mr. Palowsky, in turn, paid $288,000 of these funds to another bank in satisfaction of a judgment that bank had obtained against him. Thereafter, ONB obtained a court order directing Mr. Palowsky to return the balance of the funds to the Sheriff to be held pending the resolution of ONB's claim for an offset against its 1989 judgment. Mr. Palowsky did return the funds to the Sheriff, where they remained until the 1989 ONB judgment prescribed. In June 2001, Mr. Hart and Mr. Ward obtained a court order directing the Sheriff to release the funds to Mr. Palowsky.
[7] Mr. Hart had endorsed the check in payment of the judgment on behalf of TGD & L and then given it directly to Mr. Palowsky, rather than depositing it into the law firm's client trust account. Evidently concerned that his partners would overreach on the fee, Mr. Hart told Mr. Palowsky that he should deposit the check into Gulf States' account "and then work it out with Ed" Theus.
[8] Mr. Palowsky was under the impression that he would not be billed for legal services in connection with the loan closing. Respondents deny that they ever agreed to this arrangement.
[9] See footnote 5, supra.
[10] The firm subsequently filed an arbitration demand against Mr. Hart to resolve a dispute between them relating to the distribution of the fees paid by Mr. Palowsky after Mr. Hart's withdrawal from TGD & L, as well as the reimbursement of expenses and costs advanced by the firm in the course of the Palowsky representation. Mr. Hart died in December 2005, and as of the date of the formal hearing in the instant matter, these issues had not been resolved.
[11] Mr. Palowsky alleged that when the Gulf States settlement was distributed, he was not credited with as much as $200,000 in hourly fees and expenses he had paid prior to the execution of the 1992 fee agreement.
[12] Mr. Palowsky alleged that he gave $10,000 in cash to Mr. Spillers in May 1989 and $9,000 in cash to Mr. Theus in July 1990, but that these payments were never acknowledged or credited to his account with the firm. Respondents have denied the payments were ever made.
[13] Mr. Spillers admitted that he placed the fee agreement "in a different format" and then circulated it to his partners "for review and comments." Mr. Curry admitted that he signed the fee agreement on behalf of TGD & L and gave written notice to Mr. Palowsky that the firm intended to exercise its option to take a one-third percentage of recovery. Mr. Theus admitted that he prepared a mortgage from Gulf States to TGD & L pursuant to the 1996 fee agreement.
[14] The committee noted the 1996 fee agreement allowed the firm the option to collect its fee from the sale of subdivision lots or the subdivision in bulk. Thus, the fee could be collected if the bank litigation was lost and there was no recovery from the bank. It rejected respondents' contention that the agreement encompassed two subjectsi.e., an attorney/client relationship and a commercial joint venture relationship. Rather, the committee explained that the fee agreement has as its primary subject a means for the firm to collect a fee for handling the bank litigation. Therefore, the committee concluded it was apparent from the language of the agreement that the sale of subdivision lots was intended to pay the firm's fee for handling the bank litigation in the event the case was lost and there was no recovery.
[15] The committee noted that respondents argued that the recovery was paid directly to Gulf States, then Gulf States (apparently at the direction of Mr. Theus) paid the contingent fee to the firm together with over $14,000 in expenses. However, the committee found nothing in Rule 1.5(c) relieves attorneys of their obligations under the rule in those situations where the money is paid directly to the client.
[16] Mr. Curry was admitted to the practice of law in Louisiana in 1954; Mr. Spillers was admitted in 1977; and Mr. Theus was admitted in 1972.
[17] The committee determined that the 1996 fee agreement was per se invalid and, therefore, respondents violated Rule 1.8 by collecting a fee without a valid contingent fee agreement. We agree that respondents violated Rule 1.8, although on different grounds. Accordingly, we do not reach the question of whether the 1996 fee agreement is invalid per se.
[18] We acknowledge that Rule 1.8(a)(2) was later amended to provide that "the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction...." [Emphasis added.] However, we do not believe the addition of the requirement that the client be given notice in writing of the desirability of seeking independent counsel suggests that the attorney had no duty under the prior version of the rule to encourage his client to seek independent counsel.
[19] A common thread running through the recommendations of the committee and the board is that Mr. Hart and Ms. Marchman had some greater level of responsibility for the Palowsky representation which served to reduce the overall culpability of respondents. While Mr. Hart and Ms. Marchman may have had more contact with Mr. Palowsky, the record clearly reveals that respondents maintained an active role both in the negotiation of the fee agreements and in connection with a rendition of an accounting. Therefore, irrespective of whether any other parties may have had responsibility for the Palowsky representation, we see no basis to ignore respondents' breach of their ethical obligations to Mr. Palowsky.
[20] Mr. Spillers testified that the files taken by Mr. Hart contained the financial records, i.e., the source documents, for the Palowsky/Gulf States matters. However, Mr. Ward testified that he reviewed Mr. Hart's files and they did not contain the financial records necessary to render an accounting for Mr. Palowsky/Gulf States.
[21] The ODC also alleges that respondents violated Rule 1.5(c) by failing to produce a disbursement statement at the conclusion of the Gulf States litigation. We note a probable violation of that rule; however, under the facts presented, we believe any violation in this regard is subsumed by the Rule 1.15(b) violation.
[22] The board also found it was impossible for respondents to render an accounting because Mr. Hart took the file upon his departure from the firm. As discussed above, we conclude this finding is in error.
[1] While the majority states that the respondents have violated Rule 1.8 as a whole, the reasoning set forth to justify this position is obviously specifically rooted in the text found in Rule 1.8(a). The majority finds the business transaction at issue was not "fair and reasonable," and that the client was not given "a reasonable opportunity" to seek the advice of independent counsel in the transaction. See Rule 1.8(a).
[2] As the majority notes, it was only after the temporal period at issue in this case that Rule 1.8(a)(2) was amended to provide that "the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction...." [emphasis added].
[3] What constitutes a "reasonable opportunity" or period of time under the version of Rule 1.8(a)(2) at issue in this case could well depend upon the unique character of the client. In the present case, the several months dedicated to the drafting of the 1996 fee agreement clearly satisfied the requirements of Rule 1.8(a)(2). As the hearing committee noted, Mr. Palowsky was an "experienced litigator." The record also indicates that Mr. Palowsky was an experienced real estate developer, a profession which obviously requires the construction and analysis of complex business contracts. Thus, Mr. Palowsky was fully capable of determining whether the advice of independent counsel was necessary and had ample time and ability to act on that assessment during the extended negotiation process preceding the execution of the final 1996 fee agreement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560623/ | 475 Pa. 448 (1977)
380 A.2d 1221
Allison GREER, Appellant,
v.
UNITED STATES STEEL CORPORATION.
Supreme Court of Pennsylvania.
Argued November 14, 1977.
Decided December 23, 1977.
*449 *450 William R. Caroselli, McArdle, Henderson, Caroselli, Spagnolli & Beachler, Pittsburgh, for appellant.
Blair S. McMillin, Reed, Smith, Shaw & McClay, Thomas R. Wright, Pittsburgh, for appellee.
Before EAGEN, C.J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and PACKEL, JJ.
OPINION
PACKEL, Justice.
The Superior Court, Spaeth, J. dissenting, 237 Pa.Super. 597, 352 A.2d 450, granted judgment on the pleadings to the employer in this test case[1] in which common law recovery was sought by an employee for a disease, pulmonary fibrosis, allegedly contracted in the course of employment due to the negligence of the employer.[2] The employer's answer to the complaint admitted ownership, possession and control but in new matter made the three points that the court did not have jurisdiction, that no cause of action in trespass was stated and that the employee's exclusive remedy was under the Pennsylvania Occupational Disease Act,[3] herein referred to as the "Act." The employee's answer to the new matter denied the three points.
The trial court denied the employer's motion for judgment on the pleadings. As the result of an interlocutory appeal, the Superior Court concluded that recovery for any disease within the purview of the Act barred any common law recovery. Although the court referred to the compensation proceedings as the "initial forum for work-related diseases," it actually granted a final judgment in favor of the employer.
*451 The initial undisputed premise is that common law recovery is barred if recovery can be had under the Act. Section 302 of the Act[4] provides for the presumption of acceptance of the Act and the following section provides:[5]
"Such agreement shall constitute an acceptance of all the provisions of article three of this act, and shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any disability or death resulting from occupational disease, or to any method of determination thereof, other than as provided in article three of this act."
The converse of the initial premise would seem to follow, i. e., recovery at common law would not be barred if recovery could not be had under the Compensation Act. It was pointed out in Billo v. Allegheny Steel Co., 328 Pa. 97, 106, 195 A. 110, 115 (1937):
"It would be a perversion of the humane purpose of the act to hold that in respect to occupational diseases arising from the negligence of the employer, an employee was by the act deprived of a valuable legal right which had theretofore been his. No court will give the act such an interpretation unless required so to do by the act's explicit language."
It was well accepted in Pennsylvania that a common law cause of action could be asserted for negligence of the employer for injuries to an employee resulting from failure to properly maintain the work place. Fritz v. Elk Tanning Co., 258 Pa. 180, 101 A. 958 (1917). The rule was true before compensation could be had for diseases, Plazak v. Allegheny Steel Co., 324 Pa. 422, 188 A. 130 (1936); Rebel v. Standard Sanitary Mfg. Co., 340 Pa. 313, 16 A.2d 534 (1940), and was true, as to diseases not covered by the Act after its adoption. Perez v. Blumenthal Bros. Choc. Co., 428 Pa. 225, 237 A.2d 227 (1968). It has even been pointed out that an attempt to bar recovery where no compensation recovery can be had *452 might well violate Article I, Section 11, of the Constitution.[6] Other jurisdictions have taken the same view as Perez, supra, holding that there can be recovery for a disease which is not a disease for which compensation recovery can be had. Davis v. Bath Iron Works Corp., 338 A.2d 146 (Me. 1975); Niles v. Marine Colloids, Inc., 249 A.2d 277 (Me. 1969). See Summers v. Western Idaho Potato Processing Co., 94 Idaho 1, 479 P.2d 292 (1971).
Counsel for the employer urges that a common law action should be barred for any disease which is "within the purview of the Act." This indefinite test is not appropriate in view of the specific definition of "occupational disease" in the Act,[7] which begins: "The term `occupational disease,' as used in this act, shall mean only the following diseases. . . ." Then comes subdivisions (a) to (m) listing thirteen specific diseases, followed by:
"(n) All other occupational diseases (1) to which the claimant is exposed by reason of his employment, and (2) which are peculiar to the industry or occupation, and (3) which are not common to the general population. . ."[8]
Since the disease involved in this case is not specifically listed it can be encompassed by subdivision (n) only under the conditions stated. If those conditions do not exist, then it is not an occupational disease within the meaning of the Act.
*453 The conditions stated in subdivision (n) are not applicable to the specified diseases in other subsections. Morrison v. Allied Chemical Corp., 444 Pa. 170, 283 A.2d 75 (1971). Interpretations by this Court have construed the conditions of subdivision (n) as originally written, so that an unspecified disease is within the Act if it is "peculiar to the claimant's occupation by its causes and the characteristics of its manifestation." Cuevas v. Platers & Coaters, Inc., 464 Pa. 35, 346 A.2d 6 (1975); Williams v. Spaulding Bakeries, Inc., 464 Pa. 29, 346 A.2d 3 (1975); Dunn v. Merck & Co., 463 Pa. 441, 345 A.2d 601 (1975); Utter v. Asten-Hill Mfg. Co., 453 Pa. 401, 309 A.2d 583 (1973). If the facts warrant a finding that the conditions have been met, the common law action does not exist. Conversely, if the facts do not warrant such a finding, the common law cause of action can be asserted.
In the pleadings we have no assertions by either side as to whether the existence of those conditions can or cannot be demonstrated nor have we had any argument by counsel as to who has the burden of proof on the issue. In any event, the uncertainty of this factual question makes it inappropriate for the grant of a judgment on the pleadings.
Counsel for the appellee in his brief at oral argument concluded that there should be an affirmance or, in the alternative, that the case be remanded with instructions for a stay of proceedings pending the compensation determination. The majority opinion of the Superior Court, 237 Pa. Super. 597, 352 A.2d 450, did refer to the compensation proceedings as the "initial forum for all work-related injuries or diseases" but in fact it did not call for a remand for that purpose and instead gave judgment to the employer. It may well be appropriate for the court below to grant a stay pending administrative action in accordance with the doctrine of primary jurisdiction. See the extended discussion of the doctrine in Weston v. Reading Co., 445 Pa. 182, 198, 282 A.2d 714, 722 (1971).
*454 The judgment of the Superior Court is reversed and the case is remanded to the court below for further proceedings in accordance with this opinion.
NOTES
[1] Counsel have indicated that more than ten cases are awaiting disposition of this case.
[2] Concurrently with the filing of the common law action the employee filed a claim petition for workmen's compensation.
[3] Act of June 21, 1939, P.L. 566, No. 284, § 101 et seq., as amended, 77 P.S. § 1201 et seq.
[4] 77 P.S. § 1402.
[5] 77 P.S. § 1403.
[6] read the Act as to deny plaintiff his existing common law remedy without permitting him to come within the protective coverage of the Workmen's Compensation Act might well violate the mandate of Article 1, Section 11 of the Constitution of Pennsylvania. . . ."
Dolan v. Linton's Lunch, 397 Pa. 114, 123, 152 A.2d 887, 892 (1959).
[7] Section 108, as amended, 77 P.S. § 1208.
[8] Subsequent to the events in this case, subsection (n) has been changed to read as follows:
"(n) All other diseases (1) to which the claimant is exposed by reason of his employment, and (2) which are causally related to the industry or occupation, and (3) the incidence of which is substantially greater in that industry or occupation than in the general population. . . ." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560660/ | 171 S.W.3d 70 (2005)
Richard F. KLONOSKI, M.D., Plaintiff/Appellant,
v.
CARDIOVASCULAR CONSULTANTS OF CAPE GIRARDEAU, INC., C.R. Talbert, Jr., M.D., Allen L. Spitler, M.D., James B. Chapman, M.D., William K. Lafoe, M.D., Kenneth W. Retter, M.D., Defendants/Respondents.
No. ED 84920.
Missouri Court of Appeals, Eastern District, Division One.
May 24, 2005.
Rehearing Denied September 6, 2005.
*71 Michael L. Jackson, Jackson, MO, for appellant.
Matthew M. Mocherman, Cape Girardeau, MO, (attorney for Cardiovascular Consultants of Cape Gireardeau, C.R. Talbert Jr., Allen L. Spitler, James B. Chapman, William K. Lafoe, and Kenneth W. Retter), for respondent.
SHERRI B. SULLIVAN, J.
Introduction
Richard F. Klonoski, M.D. (Appellant) appeals from the trial court's judgment denying his claim for damages for breach of an employment contract between Appellant and Cardiovascular Consultants of Cape Girardeau, Inc., C.R. Talbert, Jr., M.D., Allen L. Spitler, M.D., James B. Chapman, M.D., William K. LaFoe, M.D. and Kenneth W. Retter, M.D. (the Group). We affirm.
Factual and Procedural Background
Appellant and the Group entered into an employment agreement (the Agreement) on July 31, 1998. By the terms of the Agreement, Appellant was to practice medicine with the Group "for a term of 18 months, beginning on the 7th day of October, 1998 and ending on the last day of the 18th month of this practice." The Agreement provided that Appellant would diligently devote his time, skill and effort to the practice of medicine throughout the term of the Agreement, exclusively within the employ of the Group, and the Group would pay Appellant during the first 12 months of the contract a base salary of $20,000.00 per month with bonus incentives for individual performance goals, and during months 13-18 of the contract, Appellant's compensation would be "productivity based at 80% of individual net bookings after equal overhead applied."
Appellant began work with the Group on October 7, 1998. For the first 12 months of the parties' employment relationship, which ran from October 7, 1998 through October 6, 1999, Appellant drew from the Group the agreed base salary of $20,000.00 *72 per month. The parties concede that no bonus incentives were earned or paid.[1] Appellant continued on with the Group from October 7, 1999 through the end of April 2000. It was during this period that Appellant was to be compensated on the basis of productivity "at 80% of individual net bookings after equal overhead applied."
The contract term "bookings" is not defined in the Agreement. Appellant maintains that bookings are when services are rendered, and thus he should get paid for services he rendered before October 7, 1999, but did not bill until after that date. The Group interprets bookings as when services are billed, but made an exception in Appellant's case because the Group determined Appellant had been hoarding services rendered until after he became production-based, and then billed them all to increase his compensation as production-based. The Group did not pay Appellant for services he rendered before October 7, 1999, but billed after that date.
Appellant brought a breach of contract claim against the Group for monies earned, but not paid, for services rendered during the last six months of the parties' employment relationship, when Appellant was no longer a salaried employee and was to be paid solely on the basis of those "bookings" which Appellant produced for the Group.
Neither party requested findings of fact and conclusions of law. The trial court entered its judgment finding all issues in favor of the Group. This appeal follows.
Point on Appeal
Appellant maintains that the trial court's judgment is not supported by substantial evidence, is against the weight of the evidence and erroneously applies the law because the trial court failed to define and apply the contract term "bookings" and failed to enforce the clear and unambiguous language of the Agreement's formula for determining Appellant's compensation for his services during the final six months of his employment with the Group.
Standard of Review
The standard of review in a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence or it erroneously declares or applies the law. Id. Neither party in this case requested findings of fact or conclusions of law, nor did the trial court make any findings of fact. As such, Supreme Court Rule 73.01(a)(3) provides that "[a]ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached." Golden Delta Enterprises v. City of Arnold, 151 S.W.3d 119, 121-122 (Mo.App. E.D.2004).
Discussion
Whether a contract is ambiguous is a question of law. Thomas v. B.K.S. Dev. Corp., 77 S.W.3d 53, 59 (Mo.App. E.D.2002). In determining whether a contract is ambiguous, the court must consider the whole instrument and the natural *73 and ordinary meaning of the language. Id. The mere fact that the parties disagree on the subject does not render the document itself ambiguous. Id. The test is whether the disputed language, in the context of the entire agreement, is reasonably susceptible of more than one construction giving the words their plain and ordinary meaning as understood by a reasonable, average person. Id. Where the contract is ambiguous, use of extrinsic evidence for interpretation is proper; the resolution of the ambiguity is a question of fact. Id.
Appellant and the Group agree that the term "bookings" is undefined within the Agreement and ambiguous. Appellant maintains that "bookings" are defined by the date of service. The Group maintains that "bookings" are determined by the date of billing.
Mr. James Erlacker (Erlacker), who had been the accountant for the Group for 10 years, testified that it was his understanding that a booking was when all paperwork was done and prepared, and the bill could be sent out to the insurance company or other appropriate payee. In other words, when a billing was sent out, it became a booking.
Dr. William LaFoe (LaFoe), a partner and member of the Group, testified that the performance of a doctor was not based upon when his service was performed, but when the service was billed, and that a doctor would receive no credit for the services he performed until the service had been billed. LaFoe stated that the productivity formula used by the Group, taking bookings times (x) 80%, less (-) expenses was used to determine how hard each physician was working, but the formula did not entitle the individual doctor to ownership in the particular bookings that came in that month.
Cindy Gerler (Gerler), an office manager at the Group for 10 years and an employee of the Group for a total of 25 years, testified that the figures which were utilized to determine Appellant's productivity during the last six months of Appellant's employment with the Group did not include the Group's billings for services rendered by Appellant prior to October 7, 1998, while Appellant was a salaried employee. Gerler testified that there was a general feeling within the Group that Appellant was holding his paperwork until he became production-based and that, therefore, in Appellant's case, the date of service determined whether a particular account would be viewed as booked during the first 12 months of Appellant's employment or during the last six months of the contract when Appellant's compensation was to be based solely on Appellant's production. When Appellant became a production compensated individual in October of 1999, the Group made a decision not to give him credit for bookings that represented services that were provided during the first 12 months of his employment. The Group had a meeting in which the owners voted how to handle the situation, and it was felt strongly by all of them that Appellant had tried to shift bookings from the first 12 months over to the productivity period so that he would get paid more. The Group did not believe that would be fair to the rest of the doctors and they made a decision to keep the bookings they believed were the property of the Group.
As a result of this decision, LaFoe stated that Appellant received no credit as a production-based employee for work performed prior to October 7, 1999, regardless of when the work was billed.
Appellant acknowledged that he was slow getting his paperwork to the Group through late March or April of 1999 and stated that the Group actually withheld Appellant's paychecks for a period of time until Appellant got his paperwork up to date. Appellant testified that he brought *74 his paperwork current in or about May of 1999 and remained current with his paperwork after that date.
We find that the Group's interpretation, adopted by the trial court, is supported by substantial evidence. The testimony of Erlacker, LaFoe and Gerler supports the interpretation of "booking" as when the service is billed. The trial court clearly found their testimony credible, and we will not disturb that finding. Henderson, 78 S.W.3d 147, 150 (Mo.App. E.D.2002). Appellant's own deposition testimony supports their construction, when he concedes that "bookings" and "billings" are equal terms, and that LaFoe represented to him that "bookings" as the term was used in the Agreement meant receivables, and receivables meant that bills had gone out.
However, what is troubling is that the Group decided to treat Appellant's bookings as from the date of service after his production-based compensation period started, because they felt he had been hoarding bookings. The issue thus posed is, was this inconsistent treatment permitted by the Agreement? There is no language in the Agreement strictly prohibiting this treatment. However, it is assigning a meaning to the term "booking," which is inconsistent with the ordinary and usual one they had supplied to the ambiguous term.
Erlacker opined in a letter to Gerler that he did not think it was necessary to change the method of allocation for Appellant unless it could be shown that he had deliberately delayed billings in order to increase his own profitability which in turn would reduce the profitability of other physicians in the Group. The Group met and decided this indeed was the case. The trial court agreed. Whether Appellant actually was purposely withholding his bookings or not was an issue of credibility for the trial court, and we will not revisit that issue on appeal. Henderson, 78 S.W.3d at 150. However, we do note that Missouri law implies a covenant of good faith and fair dealing in every contract. Koger v. Hartford Life Ins. Co., 28 S.W.3d 405, 412 (Mo.App. W.D.2000). When a party, in bad faith, utilizes contract language that allows unilateral action to improperly deny the other party from expected benefits flowing from the contract, he breaches this covenant. Id., citing Martin v. Prier Brass Mfg. Co., 710 S.W.2d 466, 473 (Mo. App. W.D.1986). By hoarding bookings, and then arguing that it should be the date of service, not billing, that applies, Appellant appears to be doing this very thing.
Appellant testified that the Group's practice of looking to the date of rendition of service for the purpose of determining whether a "booking" would be credited to the first 12 months or the last six months of Appellant's employment was consistent with Appellant's understanding of how the contract would be applied. However, the Group's practice of looking to the date of rendition of service was an exception they took with regard to Appellant for the mere purpose of handling his alleged hoarding of paperwork for services performed within his first year of employment, when he was salary-based, in order to submit it to the Group in his last six months of employment, when he was production-based. For all other intents and purposes, the evidence establishes that bookings were determined at the time of billing, not at the time of service.
Further, Appellant knew that unless the office was provided the underlying paperwork, the service could not be billed. He understood that if a doctor was not doing his paperwork, or doing a poor job on his paperwork, the services could not be billed. It defies logic that a doctor would be paid based on something that was not, or could not be, billed. Under Appellant's interpretation of his compensation, there would be nothing from which to subtract *75 overhead. Appellant himself rushed to complete his paperwork when Gerler told him if he did not get his bookkeeping up to speed he would not get credit for his production.
Appellant also maintains that the Agreement's portion that states that during months 13-18 of the contract, Appellant was to receive "80% of (his) individual net bookings after equal overhead applied," clearly means that equal overhead would be subtracted from his gross earnings first, and then the 80% figure would be applied. However, Erlacker and Gerler testified that the Group's practice in dealing with physician employees was to apply the 80% multiplier to gross bookings and then deduct overhead. Dr. Lipoff, another production-based employee, also was paid this way. Gerler and Erlacker informed Appellant of this method of compensation on several occasions during his employment, and Appellant never disputed it. The first time Appellant notified Gerler of his dissatisfaction with the method was three months after the Agreement expired, in July 2000.
Based on the foregoing, we find that the trial court's judgment adopting the Group's interpretation of the production-based method of compensation to be supported by substantial evidence.
Appellant also maintains that the Group should have paid him for bookings entered after April 30, 2000. However, bookings are determined at the time they are billed, and Appellant was no longer in the Group's employment after April 30, when they were billed. Moreover, there was substantial evidence in the record that the Group made every effort to book all of Appellant's services before the termination of the Agreement. In April, the Group's doctors instructed Gerler to book as much of Appellant's services as possible. Gerler stated that on April 21, when Appellant submitted to her all of his paperwork that he believed was necessary to book his services, which was several months behind, she instructed her entire staff to work at all costs to bill as much of Appellant's services as possible. During the last nine days of April, Gerler worked overtime to help the booking department; coders and transcriptionists worked weekends; and the Group hired a former employee to work at home exclusively on Appellant's bookings. Michelle Covrick, a coder with the Group, testified that a new coder started on April 3 and exclusively handled Appellant's bookings while she took care of the other five doctors' bookings.
The Group was not able to book all of the $172,000.00 of services submitted by Appellant based upon missing documentation and incomplete dictation, and even had all the paperwork been complete and accurate, there was not enough time to complete all of the bookings prior to May 1. LaFoe testified that had Appellant been current with his bookkeeping, he would have been given credit, as bookings, for the $90,000.00 of services that were booked after his contract expired, except for maybe a couple of procedures that he had just recently performed in April.
Based on the above, coupled with the fact that the Agreement itself does not provide for post-termination compensation, we find Appellant's argument without merit.
For all the aforementioned reasons, we reject Appellant's assertion of trial court error. Appellant's point on appeal is denied.
The judgment of the trial court is affirmed.
GARY M. GAERTNER, SR., P.J., and BOOKER T. SHAW, J., concur.
NOTES
[1] Appellant was paid a total of $180,000.00 for the period from January 2, 1999 to September 30, 1999 ($20,000.00 salary per month x 9 months). If he had been paid by the productivity-based compensation formula during that same period of time, based on his bookings, he would have only earned $91,877.80. For the very first month of his productivity-based compensation period, Appellant presented bookings that represented a 40% increase over his most recent month of bookings (which was his last salaried month). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560671/ | 171 S.W.3d 740 (2005)
Rickie AKERS Appellant,
v.
PIKE COUNTY BOARD OF EDUCATION; Hon. Richard Joiner, Administrative Law Judge; and Workers' Compensation Board Appellees.
No. 2004-SC-0631-WC.
Supreme Court of Kentucky.
June 16, 2005.
Ordered Published August 25, 2005.
*741 Miller Kent Carter, Pikeville, KY, for Appellant.
Terri Smith Walters, Jones & Walters, PLLC, Pikeville, KY, for Appellee.
OPINION OF THE COURT
The claimant filed an application for benefits more than four years after the termination of voluntary income benefits following his injury. An Administrative Law Judge (ALJ) noted the claimant's credible testimony that he did not receive a letter informing him of his right to prosecute a claim or of the applicable statute of limitations but determined that the employer and Department of Workers' Claims had complied with KRS 342.040(1); therefore, the claim must be dismissed. The claimant appealed, but the Workers' Compensation Board (Board) and the Court of Appeals rejected arguments that KRS 342.135 required the Department to use registered mail and that the evidence was insufficient to prove it had complied with KRS 342.040(1). We affirm.
It is undisputed that the claimant sustained a work-related injury on August 18, 1998, and gave timely notice. It is also undisputed that the employer paid voluntary temporary total disability (TTD) benefits until October 11, 1998, and then notified the Department of Workers' Claims that they were terminated. Finally, it is undisputed that the claimant's mailing address at all relevant times was: 311 Harolds Branch, Pikeville, KY 41501. The record contains a certified copy of the October 16, 1998, letter from the Department's commissioner to the claimant at that same address, informing him of his right to prosecute a claim under Chapter 342 within two years after the termination date. He filed an application for benefits on December 11, 2002, more than four years later; whereupon, the employer raised a limitations defense.
The claim was bifurcated. At the hearing regarding limitations, the claimant was shown a copy of the Department's October 16, 1998, letter. He testified that he had never received it. On cross-examination, he acknowledged that it was addressed correctly.
KRS 342.040(1) places certain obligations on the Department when it is notified that a worker's income benefits have been terminated. The employer deposed Joe Dale Peters, who had been the individual responsible for processing the Department's "statute letters" electronically and mailing them since 1995. He identified a copy of the October 16, 1998, letter the Department sent to the claimant and testified that the Department sends "statute letters" (also known as WC-3 letters) by regular mail rather than by registered mail. He stated that letters are occasionally returned to the Department as undeliverable. When that occurs, the procedure is to record the date the letter is received on the letter, itself, and to do additional research in an attempt to find a more current address to send the letter. If none is found, the letter is placed in the case file. Peters testified that he had reviewed the claimant's file and that it contained no returned letter. He acknowledged that he had no way to know if a "statute letter" was delivered to an incorrect address.
The claimant asserted that the employer failed to meet its burden of proving that both it and the Department had complied with KRS 342.040(1). He maintained that KRS 342.135 required the Department to send its letter via registered mail, that it had failed to do so, and that the proof was inadequate to show the Department actually mailed the letter that KRS 342.040(1) requires, to show that it was delivered to *742 him, or to show that he received it. The employer maintained that it fully complied with its obligations under Chapter 342 and the applicable regulations. It also asserted that KRS 342.135 was inapplicable to the Department's obligation under KRS 342.040(1) and that there was substantial evidence the Department complied with its obligation.
The ALJ determined that both the employer and the Department complied with their obligations under KRS 342.040(1). Although noting the claimant's credible testimony that he did not receive the Department's letter, the ALJ was convinced that statute did not provide for such evidence to toll the period of limitations and that to do so would open the door to false testimony that would, for the most part, be irrefutable. The ALJ concluded, therefore, that the claim was untimely and must be dismissed.
KRS 342.040(1) provides, in pertinent part, as follows:
(1) Except as provided in KRS 342.020, no income benefits shall be payable for the first seven (7) days of disability unless disability continues for a period of more than two (2) weeks, in which case income benefits shall be allowed from the first day of disability.... If the employer's insurance carrier or other party responsible for the payment of workers' compensation benefits should terminate or fail to make payments when due, that party shall notify the commissioner of the termination or failure to make payments and the commissioner shall, in writing, advise the employee or known dependent of right to prosecute a claim under this chapter. (emphasis added).
KRS 342.135 provides as follows:
Any notice required to be given under this chapter shall be considered property given and served when deposited in the mail in a registered letter or package properly stamped and addressed to the person to whom notice is to be given at his last known address and in time to reach him in due time to act thereon. Notice may also be given and served like notice in civil actions. Any notice given and served as provided in this section to the consular representative of the nation of which any nonresident dependent of a deceased employee is a citizen or subject, or to the authorized agent or representative of any such official residing in this state, shall be deemed to have been properly given and served upon such dependent.
KRS 342.135 describes two methods for giving "notice" under Chapter 342, the first of which is by registered mail. It also indicates that notice may be given and served like notice in a civil action, presumably referring to service of notice under CR 5.02. The word "notice" is a legal term of art. See Black's Law Dictionary 1087 (7th ed.1999). KRS 342.040(1) requires an employer to "notify" the commissioner of the termination or refusal to pay income benefits. It requires the commissioner to "advise" the worker of the right to prosecute a claim. We presume that the legislature had a reason for its choice of words. See KRS 446.080(4). Therefore, we conclude that KRS 342.135 is inapplicable to the Department's obligation under KRS 342.040(1).
KRS 342.040(1) places an affirmative duty on an employer to notify the Department of its refusal to pay TTD benefits after a worker misses more than seven days of work due to a work-related injury. It places on the Department an obligation to advise the worker of the right to file a claim and the applicable period of limitations. KRS 342.990 provides both civil and criminal penalties for a failure to *743 comply with KRS 342.040, but neither it nor any other statute provides a remedy for workers whose rights are affected by the failure to comply. Hence, the courts have turned to equitable principles in order to protect them. See Newberg v. Hudson, 838 S.W.2d 384, 389 (Ky.1992). Absent extraordinary circumstances such as were present in Newberg v. Hudson, supra, an employer's failure to strictly comply with KRS 342.040(1) estops it from raising a limitations defense, without regard to whether the failure is attributable to bad faith or misconduct. The rationale is that if the Department does not receive an employer's notice of termination or refusal, it cannot perform its obligation to the affected worker. See H.E. Neumann Co. v. Lee, 975 S.W.2d 917, 921 (Ky.1998); Colt Management Co. v. Carter, 907 S.W.2d 169 (Ky.App.1995); and Ingersoll-Rand Co. v. Whittaker, 883 S.W.2d 514 (Ky.App.1994).
Under the doctrine of equitable estoppel, certain conduct by a party is viewed as being so offensive that it precludes the party from later asserting a claim or defense that would otherwise be meritorious. See McDonald v. Burke, 288 S.W.2d 363 (Ky.1956); P.V. & K. Coal Co. v. Kelly, 301 Ky. 180, 191 S.W.2d 231 (1945). In other words, it serves to offset the benefit that the offending party would otherwise derive from the conduct. See Edmondson v. Pennsylvania National Mutual Casualty Insurance Co., 781 S.W.2d 753, 755 (Ky.1989). An equitable estoppel is permitted when the estopped party is aware of material facts that are unknown to the other party and then engages in conduct, such as acts, language, or silence, amounting to a representation or concealment of the material facts. The conduct is performed with the intention or expectation that the other party will rely upon it, and the other party does so to his detriment. See Howard v. Motorists Mutual Insurance Co., 955 S.W.2d 525 (Ky. 1997); Gray v. Jackson Purchase Production Credit Association, 691 S.W.2d 904 (Ky.App.1985).
It is undisputed that the employer complied with KRS 342.040(1), and Mr. Peters' testimony together with the certified copy of the Department's October 16, 1998, letter provided substantial evidence that the Department also complied with the statute. Although the claimant stated that he did not receive the Department's letter, his testimony did not compel a favorable result. Grider Hill Dock v. Sloan, 448 S.W.2d 373 (Ky.1969). The circumstances were not such as to warrant an equitable remedy; therefore, the ALJ did not err in dismissing the claim as untimely.
The decision of the Court of Appeals is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560836/ | 18 So. 3d 1042 (2009)
TUCKER
v.
STATE.
No. 1D06-5234.
District Court of Appeal of Florida, First District.
October 5, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743514/ | 511 So. 2d 645 (1987)
ENCUENTROS FAMILARES, INC., and Metropolitan Dade County, a Political Subdivision of the State of Florida, Petitioners,
v.
Barbara MUSGROVE and Bird-Kendall Homeowners' Association, Inc., a Non-Profit Corporation, Respondents.
No. 87-489.
District Court of Appeal of Florida, Third District.
July 28, 1987.
Rehearing Denied September 9, 1987.
*646 Fine, Jacobson, Schwartz, Nash, Block & England and Stanley B. Price; Robert A. Ginsburg, Co. Atty., and Eileen Ball Mehta, Asst. Co. Atty., Miami, for petitioners.
John G. Fletcher, South Miami, for respondents.
Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
DANIEL S. PEARSON, Judge.
The Board of County Commissioners of Dade County, Florida, approved the application of Encuentros Familares, Inc.,[1] (Family Encounters) to use certain land designated for agricultural use on the Comprehensive Development Master Plan for a facility to help families foster religious awareness by stimulating dialogue between parents and children through meditation, prayer, and religious activity in other words, a religious retreat.
On appeal by certain individual homeowners in the area and a homeowners' association (the present respondents), the circuit court reversed the Commission, stating, pejoratively, that the Commission was guilty of "spot zoning."[2] The County and Family Encounters petitioned this court for a writ of certiorari to review the lower court's decision. We grant the writ and vacate the lower court's decision invalidating the Commission's action.
The petitioners correctly contend and the respondents agree that the lower court departed from the essential requirements of the law in that, at least in part, it perceived the issue before it to be "whether or not the record reflects that the actions of the County Commission were `fairly debatable'."[3] The parties also agree that, as this court most recently declared in Metropolitan Dade County v. Fuller, 497 So. 2d 1322, 1322 (Fla. 3d DCA 1986), "an unusual use, like a special exception, is subject only to the test enunciated in Section 33-311(d) of the [Dade County] Code, which is essentially whether the proposal serves the public *647 interest."[4]See also Machado v. Musgrove, (Fla. 3d DCA 1987) (Case No. 87-415, opinion filed July 14, 1987). Thus, it is the function of the zoning authority here the Commission to determine pursuant to Section 33-311(d) only whether the requested unusual use
"would not generate or result in excessive noise or traffic, cause undue or excessive burden on public facilities, ... tend to create a fire or other equally or greater dangerous hazards, or provoke excessive overcrowding or concentration of people or population, when considering the necessity for and reasonableness of such applied for exception or use in relation to the present and future development of the area concerned and the compatibility of the applied for exception or use with such area and its development."
It then becomes the function of the circuit court to determine only whether the Commission's decision is supported by substantial competent evidence. Carlos Estates, Inc. v. Dade County, 426 So. 2d 1167 (Fla. 3d DCA 1983); Grefkowicz v. Metropolitan Dade County, 389 So. 2d 1041 (Fla. 3d DCA 1980).
The real point of departure between the parties is their differing views as to whether there was substantial competent evidence to support the decision of the Commission.[5] While the respondents suggest that we should, as we did in Fuller, return the matter to the circuit court to allow it to make that determination, we are satisfied that the circuit court in addition to applying the erroneous fairly debatable test applied, for good measure, the substantial competent evidence test in invalidating the Commission's action.[6] It is thus unnecessary for us to remand the cause to the circuit court.
Unlike the circuit court, we conclude that there was substantial competent evidence to support the Commission's determination. The applicant demonstrated, for example, that the proposed use would not generate excessive noise or traffic. The proposed activities were intermittent. The Building and Zoning Director, who recommended approval of the application, described the use as passive, low key, and indoor-oriented. He observed that the riding academies scattered throughout the area would generate similar or more traffic than the proposed use. The evidence before the Commission further showed that the religious retreats and encounters are dedicated to meditation and prayer; the activities would be conducted indoors and require quiet surroundings; and the property would not be used for conventional church services, weddings, parties, bazaars, or outdoor recreation. *648 Moreover, rather than unduly burdening public services, the religious use would actually improve public services in that the extension of the water line by the applicants would bring public water to several properties that otherwise would remain on private wells, and the applicants would be required to make improvements to the adjacent roadways. The evidence also showed that the proposed use would be reasonably compatible with the development in the area: there are six other churches and schools already existing in the neighborhood, three other vacant parcels are owned by churches, and there are schools and a social club on the same street as the subject property. Finally, the religious and family values advanced by the Family Encounters program are consistent with the Commission's obligation to protect the public interest.[7] As the United States Supreme Court has observed: "The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary." Berman v. Parker, 348 U.S. 26, 33, 75 S. Ct. 98, 102, 99 L. Ed. 27, 38 (1954). "The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people." Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S. Ct. 1536, 1541, 39 L. Ed. 2d 797, 804 (1974).
Accordingly, we grant the petition for writ of certiorari and vacate the circuit court's decision. The decision of the Commission approving the application for unusual use is thus reinstated.
NOTES
[1] The application was actually filed by Jack S. and Ruth Pinder, the owners of the property, who had contracted to sell the land to Encuentros Familares.
[2] The court's two-to-one opinion recites in pertinent part:
"By permitting this `unusual use', the County Commission has singled out an area for treatment different from that of similar surrounding land. This action, which is unquestionably spot zoning, is not in accordance with the Comprehensive Plan and cannot be justified on the bases of health, safety, morals or general welfare of the community.
"As a guise for spot zoning the subject property so as to permit the `unusual use', the County Commission has declared this project to be a `religious outreach program' exempt from the development guidelines of the Comprehensive Plan and not subject to review. The County Commission's sole rationale for permitting the `unusual use' was based upon its finding that the project was a religiously oriented program. The record reflects otherwise."
[3] The "fairly debatable" test is a standard applied to rezoning. See Dade County v. United Resources, Inc., 374 So. 2d 1046 (Fla. 3d DCA 1979).
[4] A church or a mission or their functional equivalents, see Synod of Chesapeake, Inc. v. Newark, 254 A.2d 611 (Del. Ch. 1969); Corporation of Presiding Bishop v. Ashton, 92 Idaho 571, 448 P.2d 185 (1986); Board of Zoning Appeals v. Wheaton, 118 Ind. App. 38, 76 N.E.2d 597 (1948); Keeling v. Board of Zoning Appeals, 117 Ind. App. 314, 69 N.E.2d 613 (1946); St. John's Evangelical Lutheran Church v. City of Hoboken, 195 N.J. Super. 414, 479 A.2d 935 (Law Div. 1983); North Shore Hebrew Academy v. Wegman, 105 A.D.2d 702, 481 N.Y.S.2d 142 (1984); Westbury Hebrew Congregation, Inc. v. Downer, 59 Misc. 2d 387, 302 N.Y.S.2d 923 (Sup.Ct. 1969); State ex rel. Covenant Harbor Bible Camp v. Steinke, 7 Wis. 2d 275, 96 N.W.2d 356 (1959), are uses contemplated in a district, as here, zoned G.U. See § 33-18, Dade County Code.
[5] The circuit court's conclusion that the record reflects that the petitioner organization and its program is not religiously oriented but a mere commercial enterprise is utterly baseless. Indeed, not even the opponents of the application ever suggested that the property was not going to be used for a religious purpose. It is undisputed that Family Encounters is a not-for-profit corporation sponsored by the Catholic Archdiocese of Miami and is funded through contributions of its members and private benefactors. The program has been operating in Miami for fourteen years and has been particularly successful in helping Catholic families of Hispanic origin cope with the pressures of acculturation and social change. Although Family Encounters is not a parish church, it is dependent on the Archdiocese of Miami as to all religious matters. A Jesuit priest is the Spiritual Director of Family Encounters. The priest is also a faculty member and counselor at Belen Jesuit Preparatory School.
[6] The penultimate paragraph of the circuit court's opinion concludes: "The record and transcript contain no competent substantive evidence that would support the findings of the Commission or demonstrate that the actions of the Commission were fairly debatable." (emphasis supplied).
[7] One of the stated Goals of the Comprehensive Development Master Plan (CDMP) is "To Support and Promote the Cultural Arts and Spiritual Values of Our Citizens." CDMP at 7. The Goals of the CDMP are primary components of the Plan. See § 2-113.1, Code of Metropolitan Dade County, Florida. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3760282/ | MEMORANDUM DECISION
In this original action, relator, Lawrence A. Kenyon, requests a writ of mandamus ordering respondent Industrial Commission of Ohio to vacate its order denying compensation for permanent total disability and issue a new order granting such compensation, or in the alternative, issue an order which complies with State ex rel. Noll v. Indus. Comm. (1991),57 Ohio St.3d 203, and State ex rel. Stephenson v. Indus. Comm. (1987),31 Ohio St.3d 167.
This court referred the matter to a magistrate, pursuant to Civ.R. 53 and Loc.R. 12(M), of the Tenth Appellate District. The magistrate has issued a decision including findings of fact and conclusions of law and has recommended that a limited writ of mandamus issue. There have been no objections filed to the magistrate's decision.
A review of the record indicates that after relator's application for permanent total disability compensation was allowed before a staff hearing officer, the employer filed for reconsideration and the commission granted the employer a new hearing on the basis of a possibility of error in the order awarding permanent total disability compensation.
As accurately referred to by the magistrate in her decision, the order granting a new hearing constituted an abuse of discretion under State exrel. Nicholls v. Indus. Comm. (1998), 81 Ohio St.3d 454, and State ex rel.Chaffins v. Indus. Comm. (1998), 82 Ohio St.3d 268.
Following an independent review pursuant to Civ.R. 53, we find that the magistrate has properly determined the pertinent facts and applied the salient law thereto. Hence, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein.
In accordance with the recommendation contained in the magistrate's decision, we issue a limited writ of mandamus ordering respondent Industrial Commission of Ohio to vacate its order granting reconsideration on the basis of possibility of error and to further consider the request for reconsideration, either granting or denying said request for reconsideration in compliance with the previously cited cases, including Noll, supra.
Limited writ granted.
BROWN and KENNEDY, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1560569/ | 153 N.J. Super. 505 (1977)
380 A.2d 302
THE STATE OF NEW JERSEY, PLAINTIFF,
v.
JESSE SINGLETARY AND PEERLESS INSURANCE COMPANY, DEFENDANTS.
THE STATE OF NEW JERSEY, PLAINTIFF,
v.
WILLIE BALDWIN AND MIDLAND INSURANCE COMPANY, DEFENDANTS.
Superior Court of New Jersey, Law Division (Criminal).
Decided August 19, 1977.
*508 Mr. Richard P. Blender for defendants Peerless Insurance Company and Midland Insurance Company (Messrs. Rosenthal and Rubinowitz, attorneys).
Mr. Mark F. Saker, Assistant Monmouth County Counsel, for the State (Richard T. O'Connor, Monmouth County Counsel, attorney).
McGANN, J.S.C.
Pursuant to R. 3:26-6(b) and (c) the insurance companies acting as sureties on a number of recognizances for bail in criminal matters moved to set aside forfeitures and judgments on forfeitures of bail previously entered against both the defendant and the surety on each recognizance. Motions were made in 21 matters. In one the motion was granted; in the others it was denied. The surety companies have filed their notices of appeal from 14 of the 20 denials. In accordance with R. 2:5-1(b) the court now supplements the oral determination of the motions made on the record with the following findings and reasons. Because the facts are quite similar in each case and the principles of law identical, two of the matters are captioned as above; the remaining 12 are noted below.[1]
*509 In State v. Singletary defendant was indicted on September 10, 1973 and charged with unlawfully possessing a weapon in violation of N.J.S.A. 2A:151-8. Bail was set at $5,000. Defendant signed the recognizance. Peerless Insurance Company, through its authorized agent, signed as surety. Defendant was released pending trial. Thereafter he failed to appear for arraignment on October 12, 1973. The bail bond was declared forfeit. On notice to defendant and the surety company, the State moved for entry of judgment on the forfeiture. Judgment was entered against both on May 25, 1976 for $5,000. When called upon to pay the judgment the surety company did so. In the affidavit submitted in support of its motion the surety company, through its attorney, states the following:
Defendant was remanded and entered a plea of not guilty on January 6, 1975 and on March 21, 1975 the Prosecutor's motion to dismiss the motion [should read indictment] was granted. Judgment on the forfeited recognizance was entered on May 20, 1976. Defendant was remanded without the assistance of the bondsman as he [the bondsman] refused to cooperate with the bonding company in the performance of his duties, as a result of which he has been dismissed from the company.
The surety, then, did nothing to insure the return of defendant; defendant apparently showed up without any great expense on the part of the State. The surety feels it is entitled to the return of at least part of the judgment it paid; it cannot specify how much or advance a rational basis upon which such determination could be made.
*510 In State v. Baldwin the defendant was indicted on April 19, 1977 on a charge of petit larceny. Bail in the amount of $750 had been posted previously by defendant and Midland Insurance Company as surety while the charge was pending in the local municipal court. Defendant failed to appear at his arraignment (of which the surety had received notice) on May 13, 1977. Bail was declared forfeit and a warrant for his arrest issued.
The affidavit in support of the motion to set aside the forfeiture recites the following:
2. The defendant's bail was forfeited on May 13, 1977. This office [the attorney for the bonding company] immediately commenced an investigation in order to locate the defendant.
3. Our investigation determined that the defendant had moved from his present address and his neighbors believed he had moved to California. We then received information that the defendant might have been apprehended. A call was placed to J. Forrar of the Bench Warrant section of the Monmouth County Prosecutor's Office. Mr. Forrar verified that he had, in fact, been apprehended during the week of June 13, 1977 and was being held in Warren, Ohio. The Monmouth County Bench Warrant was forwarded to Ohio to act as a detainer so that extradition proceedings could begin.
Much of the foregoing is conclusory (cf. R. 1:6-6). That which is not shows that the bonding company actually did nothing to secure defendant's return to New Jersey. Defendant waived extradition; was arraigned on June 24, 1977 and had new bail set at $2,500. Here, again, the bonding company seeks to set aside the forfeiture of $750 in whole or in part. It points to no basis for a rational apportionment. It gives no reason for the relief sought. Its position, simply stated, is this: the State of New Jersey got the defendant back without much effort, therefore, it is not fair to make the bonding company pay what it agreed to pay in undertaking the obligation.
On each of these applications the insurance company takes the position that the obligation rests on the State to come forward and demonstrate the dollar cost to recapture defendant and, to the extent that such cost does not exceed the *511 amount of its bond, the insurance company is entitled to the refund of the difference by way of a partial remission. The applications evince a basic misunderstanding of the concept of bail.
Release "on bail" is a method devised by the common law to allow one to remain at liberty after his initial arrest on a criminal charge and up to the time he is either acquitted or sentenced after conviction. To "bail" a person means to deliver him to persons who in the manner prescribed by law become security for his appearance in court when required. The "bail" is the surety or sureties who procure the release of a person under arrest by becoming responsible for his appearance at the times and places designated. The legal effect of being released on bail is to transfer custody of defendant from the jail to his bail while keeping defendant within the constructive custody of the court. Black's Law Dictionary (4 ed., 1951), passim; State v. Konigsberg, 33 N.J. 367, 372, 373 (1960); State v. Johnson, 61 N.J. 351, 351, 364 (1972); State v. Rice, 137 N.J. Super. 593, 599 (Law Div. 1975), affirmed 148 N.J. Super. 145 (App. Div. 1977).
In order to be released on bail defendant and his surety enter into a contract with the State. That contract consists of this agreement: if the State will release the defendant from custody during the pendency of the action, defendant and his surety jointly and severally agree that defendant will be produced in person before the court when his appearance is ordered. As a sanction to insure that they will keep their executory portion of the contract both defendant and his surety jointly and severally agree that they are then indebted to the State in a specified dollar amount, but that if defendant keeps all required court appearances, the indebtedness will be voided. This contract is memorialized in writing by the bail bond or "recognizance." In that document the State is the creditor, defendant, the principal obligor or debtor, and the "bail" is the surety or guarantor. The bail bond encompasses the terms of the agreement of the parties, the amount of the indebtedness and *512 the conditions for appearance which, if met, will void the debt. If the condition is not met, both defendant-principal and bail-surety become absolute debtors of the State in the amount of the bond. State v. McNeal, 18 N.J.L. 333, 334 (Sup. Ct. 1841); United States v. Zarafonitis, 150 F. 97, 99 (5 Cir.1907); Joelson v. United States, 287 F. 106, 108 (3 Cir.1923); United States v. Smith, 3 F. Supp. 498, 499 (D.N.J. 1933). See generally, State v. Gonzalez, 69 N.J. Super. 283, 284 (App. Div. 1961); 74 Am. Jur.2d, Suretyship, § 1 (1974); Restatement, Security, §§ 203 and 209.
As with all forfeitures, harshness is the sometime result. Traditionally, equity has "abhorred forfeitures." And so, as early as 1841 in New Jersey, the court recognized a right to be relieved from a total bail bond forfeiture. In State v. McNeal, supra, the court noted the procedure in England:
At common law, where the recognizance has become forfeited, and was sent to the Exchequer, the party had become an absolute debtor to the crown, but by statute, that court was then empowered to discharge any person, on petition, whom it thought a fit subject for favor. [18 N.J.L. at 334]
The court of the Exchequer was the sole repository for equitable jurisdiction in the English system. See 1 Pomeroy, Equity Jurisprudence (5 ed. 1941), §§ 12a, at 30-40. The practice in that court formed the complete basis for equitable relief in the New Jersey Chancery Court. See "The Court of New Jersey Some Account of their Origin and Jurisdiction The Court of Chancery," 18 N.J.L.J. 69, 73 (1895).
Thus, the practice became such that after forfeiture of the bail bond a petition could be filed for relief from the forfeiture and the criminal court would exercise an equitable function incidental to the general criminal jurisdiction. See State v. Traphagen, 45 N.J.L. 134 (Sup. Ct. 1883). When relief was granted to the bondsman it was because of the equitable maxim which "from time immemorial has held `forfeitures *513 to be abhorrent.'" Richards v. Richards, 14 N.J. Misc. 199, 201 (Ch. 1936), aff'd o.b. 120 N.J. Eq. 617 (E. & A. 1936).
The practice of these early courts was codified by the Legislature in 1898. By L. 1898, c. 237, § 113, the Legislature gave the court having jurisdiction over recognizances the power to render judgment on the bond
* * * for the whole of such penalty with interest, or, on application of the defendant, for any part thereof, according to the circumstances of the case and the situation of the party, and upon such terms and conditions as the court deems just and reasonable * * * [Emphasis supplied]
This provision was continued through the 1937 revision of the New Jersey statutes. See R.S. 2:187-24. Upon the revision of Title 2 into Title 2A many procedural provisions, such as bail, became part of the court rules promulgated by the Supreme Court pursuant to N.J. Constitution of (1947), Art. VI, § II, par. 3. See Clapp, "Forward to Title 2A, N.J.S.A. ix, at xvi. See also, Bank of Commerce v. Marakos, 22 N.J. 428, 431 (1956). In the 1953 court rules relief from forfeitures was covered by R.R. 3:9-7(b). Today, of course, the identical provision is contained in R. 3:26-6 (b) and (c).
The general practice now is quite similar to that existing prior to September 15, 1948. If a bailed defendant fails to appear at a scheduled date (of which notice has been given to his surety), the judge, on motion of the prosecutor declares the recognizance to be forfeited and issues a bench warrant for his recapture. In the usual course a formal order declaring the recognizance forfeited is signed and entered thereafter. The clerk advises the county counsel of the declaration of forfeiture. The county counsel then communicates uniformally with the surety, advises him of the declaration of the forfeiture and requests payment of the principal sum of the bond since its condition has not been fulfilled. Such informal request generally suffices and payment *514 is received by the county treasurer. If it is not, a formal motion for judgment of default on the recognizance is filed by the county counsel in the cause, on notice to the principal and surety. The matter is listed for hearing. If there is no objection, the judgment of default for the principal sum of the bond is entered against the principal and surety. If necessary, execution can thereafter issue to enforce the judgment as in the usual case.
If there is objection to the entry of the judgment of default, the court hears and determines the matter and directs the entry of an appropriate judgment or order.[2]
Whether there should be a setting aside of a forfeiture or remission of judgment thereon in whole or in part is a determination "essentially equitable in nature." State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973). Some guidelines to be considered in exercising that equitable discretion are suggested in Hyers. They may be categorized as follows:
(1) The nature of the applicant, who can be either the defendant or the surety. The surety in turn may be compensated or non-compensated, commercial or personal.
(2) If the surety is the applicant, then the diligence of the surety in carrying out his obligation to the court is to be considered. Did he supervise the defendant during his release? What effort did he make to secure the defendant's return after the forfeiture?
(3) The prejudice to the State occasioned by the delay in prosecution caused by the defendant's unauthorized flight. How much time elapsed between failure to appear and ultimate return? Did that time lapse frustrate successful prosecution?
*515 (4) The actual expense incurred in man hours, extra effort and costs in recapturing the defendant and securing his return.
State v. Peace, 63 N.J. 127, 129 (1973) approved the foregoing approach and added another factor, to wit:
(5) "The intangible element of injury to the public interest in almost any case where a defendant deliberately fails to make an appearance in a criminal case."
To the foregoing may be added another requirement, at least where the surety is the applicant, viz:
(6) The exhaustion by the surety of available legal remedies.
In the usual surety-principal relationship the surety, if forced to pay the obligation on behalf of the principal, has the right at law to secure reimbursement from the principal either under an express contract of indemnity or by a promise to indemnify which the law will imply. See 47 Am. Jur.2d, Suretyship, § 171 (1974). In connection with a bail bond there is nothing offensive to public policy in allowing the principal to enter into an express contract for indemnity with the surety. Leary v. United States, 224 U.S. 567, 32 S.Ct. 599, 600, 56 L.Ed. 889 (1912). The surety has the right, at law, to sue on the implied contract of indemnity as well. Restatement, Security, § 104 (comment f). The obligation to reimburse extends to the defendant-principal's estate upon his death. See 72 C.J.S. Principal and Surety § 313 (1951).
It is the uniform policy of bonding companies acting as sureties on criminal recognizances to have defendant execute an indemnity agreement simultaneously with the execution of the recognizance. The indemnity promised by the principal to the surety in such agreement is full and complete. It gives the surety full power to sell any pledged collateral and foreclose on any pledged real estate. It should be noted that the indemnity agreement is not a public document as is the recognizance, but is a private contract between principal and surety. The State knows nothing of it, *516 nor is the State aware of the nature and extent of collateral pledged, if any, nor the disposition of the same.
Therefore, it is patently insufficient for the surety to urge full or partial remission of the monies it was legally obligated to pay by saying, as it does, that the State was really not discommoded by the default and therefore it is unfair to enforce the forfeiture. Before the equitable considerations of Hyers and Peace can come into play the surety must first show that it has been harmed. Was there collateral? What disposition was made of it? The surety is not entitled to a windfall. Has action been started against the defendant on the indemnity agreement? Perhaps there is full and ample relief to the surety through that legal remedy. What assets does the defendant have? What efforts have been made to discover such assets?
It is only after a court is satisfied that the surety has availed itself of all legal remedies without success that the question of equitable relief can be reached. A court cannot and should not exercise equitable jurisdiction when there is an adequate remedy at law. Cohen v. Dwyer, 133 N.J. Eq. 226, 229 (Ch. 1943), aff'd 134 N.J. Eq. 350, 351 (E. & A. 1943).
If the absence of an adequate legal remedy is demonstrated by the surety, then a court looks to see if a basis for equitable relief under the Hyers-Peace principles has been made out. It is the surety's burden to prove that the forfeiture is inequitable. State v. Fields, 137 N.J. Super. 79, 81 (App. Div. 1975).
Beyond what is set forth above as contained in the affidavits accompanying their motions, the sureties involved here produce no other proofs. They simply have made no showing at all entitling them to the relief sought. For the foregoing reasons the motions were denied.
NOTES
[1] State v. Roy A. DeSant and Peerless Insurance
Company Ind. No. 1067-73
State v. Arthur Uria and Peerless Insurance
Company Ind. No. 993-72
State v. Franklin Williams and Peerless Insurance
Company Ind. No. 465-73
State v. Jack Custalow and Peerless Insurance
Company Ind. No. 606-73
State v. James Rogers and Peerless Insurance
Company Ind. No. 1078-72
State v. Pamela Holmes and Peerless Insurance
Company Ind. No. 196-72
State v. Joseph Virgil and Peerless Insurance
Company Ind. No. 847-72
State v. Lilliam Mae Downing and Peerless Insurance
Company Ind. No. 1518-71
State v. Gus Chambers and Peerless Insurance
Company Ind. No. 1518-71
State v. Rafael R. Salles and Peerless Insurance
Company Ind. No. 343-72
State v. James Blair and Peerless Insurance
Company Ind. No. 535-72
State v. Manuel Ruiz and Midland Insurance
Company Ind. No. 806-76
[2] The discretionary power to set aside such judgment in whole or in part under R. 3:26-6(c) would be exercised rarely since the judgment would have granted initially only after prior notice to the surety and opportunity to be heard. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584393/ | 63 N.Y.2d 181 (1984)
In the Matter of Clove Development Corporation, Respondent,
v.
Thomas Frey et al., as Assessors of the Town of Highland, et al., Appellants. (And Another Proceeding.)
Court of Appeals of the State of New York.
Argued September 5, 1984.
Decided October 16, 1984.
Edward M. Cooke for appellants.
Ira M. Emanuel and Warren E. Berbit for respondent.
Judges JASEN, MEYER, SIMONS and KAYE concur; Chief Judge COOKE and Judge WACHTLER taking no part.
*183JONES, J.
A tax assessor has no power to make a determination whether property is an "eligible tract" for forest land tax exemption under section 480-a of the Real Property Tax *184 Law, such authority having been committed exclusively to the Department of Environmental Conservation.
Finding that, under the statutory provisions then in effect, lands devoted to growth of forest crops were often being assessed at a level which rendered their continued dedication to such use uneconomical, the State Legislature in 1974 enacted section 480-a of the Real Property Tax Law under which a partial tax exemption could be obtained by owners of eligible tracts who would commit their lands to forest crop production for a specified period of time (L 1974, ch 814). The statute was substantially amended in 1976 by adding a requirement for forest management plans, increasing from 8 to 10 years the minimum period for which the land must be committed to forest crop production, and changing the procedure by which the tax exemption is obtained (L 1976, ch 526).
Under the amended statute, an owner seeking a section 480-a exemption is required to make application first, under subdivision 2 of the section, to the Department of Environmental Conservation (DEC) for certification that the land sought to be benefited is an "eligible tract" as that term is defined in paragraph (d) of subdivision 1 of the section. (For purposes of the present litigation, an eligible tract is a tract of privately owned forest land comprising at least 50 contiguous acres. "Forest land" is "land exclusively devoted to and suitable for forest crop production" and stocked with a stand of forest trees of a prescribed description [§ 480-a, subd 1, par (b)].) With respect to issuance of the certificate, it is provided in subdivision 2: "If the department finds that such tract is an eligible tract it shall forward a certificate of approval to the owner thereof, together with a management plan for the eligible tract specified by the department."
Subdivision 3 of the section sets out in paragraph (a) how, if the Department has certified eligibility, the tax exemption is thereafter procured, providing first that to qualify for a forest land exemption the owner of "a certified eligible tract" must commit the tract to continued forest crop production for the next 10 years under the management plan that has been specified by DEC. The commitment must be made annually and filed in the county clerk's *185 office where the tract is situated in manner and form prescribed by DEC. The owner is also required to file an exemption application with the appropriate assessor on forms prescribed by the State Board of Equalization and Assessment, showing on the application that the commitment as just described has been made. The paragraph then provides that "If the assessor is satisfied that the requirements of this section are met he shall approve the application and such eligible tract shall be exempt from taxation as herein provided". The property continues to be exempt thereafter on receipt by the assessor of a certified copy of a properly filed annual commitment "so long as the certification of the eligible tract shall not be revoked by the department".
Seeking to avail itself of a partial exemption under section 480-a for 4,142 acres of forest land owned by it in the Town of Highland, Clove Development Corporation in both 1981 and 1982 secured from DEC a certificate of approval together with a management plan for its acreage and filed with the appropriate county clerk a commitment which complied with paragraph (a) of subdivision 3 of the section. In each year it also filed a properly completed application for exemption with respondents town assessors, who in both instances declined to approve the application, and whose refusal was upheld by respondent Board of Assessment Review when Clove filed a complaint with respect to its assessments in the years 1981 and 1982 with that reviewing body. In denying the partial exemptions the assessors took the position that they were not satisfied that the requirements of section 480-a had been met because, in their judgment, the acreage in question was not an "eligible tract" under the section. Their classification of the area as not "eligible" rested on their conclusion that the land was not used "exclusively" for forest crop production and that Clove was not a private owner engaged in such production.
Clove instituted separate proceedings under article 7 of the Real Property Tax Law, which were subsequently consolidated by stipulation of the parties, to review the assessments imposed with respect to the 4,142 acres in the Town of Highland for the years 1981-1982 and 1982-1983. *186 After issues of valuation, also raised in the proceedings, had been settled by stipulation, Clove moved for summary judgment determining that the action of respondents in failing to grant it the exemptions sought under section 480-a was illegal. From the papers submitted it appeared that the issue critical to the disposition of the motion was whether, as respondents contended, the assessors had authority under section 480-a of the Real Property Tax Law to make a determination that the land in question already certified by DEC as an eligible tract under 480-a was not eligible for the tax exemption, based on their own conclusion as to the nature of its use and the status of its owner, or whether, as Clove contended, the determination of eligibility was vested exclusively in DEC such that, the Department having found that the tract was an eligible tract and having issued its certificate of approval, and the owner concededly having filed the required commitment with the county clerk and the necessary application for exemption under section 480-a with the appropriate assessor, the assessors were required to approve the exemption.
Resolving that issue in favor of respondents, Supreme Court denied the owner's motion for summary judgment. The Appellate Division, however, reversed the order of the lower court, granted the motion, and directed that the property be reassessed to give effect to the exemptions sought under section 480-a. We now affirm that disposition.
Respondents' argument that the town assessors have power, independently of the finding of eligibility made by DEC, to appraise and redetermine eligibility of acreage for which a forest land exemption is sought an argument for which support is said to be found in an alleged traditional broad prerogative of tax assessors to decide entitlement to tax exemption must fail, in face of the unambiguous pattern and language of the statute.
Section 480-a, in its structure, clearly distinguishes between and makes discrete provision for the determination of eligibility as privately owned forest land and the granting of a consequent tax exemption the former being a function of the State agency, one of whose primary responsibilities is the encouragement of environmentally protective *187 land use, and the latter being a function of the local tax assessor.
The section contemplates that before an exemption may be secured there must be, first, the determination that the land in question qualifies as an eligible tract. That determination is evidenced by the certificate which is the subject of subdivision 2 of the section. The power to issue such certificate, after it has found eligibility, is expressly vested in DEC, which is charged concurrently with the responsibility for specifying and delivering to the owner a management plan for the subject tract, containing requirements and standards which the Department deems necessary for continuing production on the land of marketable forest crops. A certificate, once issued, remains subject, however, to the control of the Department, which by a later subdivision (subd 8) is authorized to revoke the same if it finds that the owner has pursued any one of four specific courses of conduct by which the property has been diverted from departmentally approved forest crop production.
Subdivision 3 treats the manner of procurement of a tax exemption once the DEC certificate of eligibility has been obtained. It is at this point that the assessor assumes a role under the statute. Following the mandate that the owner of an already certified eligible tract make and file a 10-year commitment of the land to forest crops production and file an application for tax exemption with the appropriate assessor, the statute directs that the assessor shall approve the exemption if satisfied that the requirements of the section are met i.e., that the applicant is the owner of a tract that has been certified by DEC as eligible, that the necessary commitment has been made and filed as prescribed by DEC, and that a proper exemption application has been submitted. The review by the assessor to assure that these requirements have been complied with is not insignificant and refutes respondents' argument that there was no purpose in injecting the assessor in the process if that official is not to be recognized as having the broad power of eligibility determination for which they argue.
There is no basis, either in the language and organization of the statute or having in mind the areas of respective expertise of DEC and tax assessors, for the claim that the *188 tax assessor is empowered to determine whether the subject property is eligible as privately owned forest land (as statutorily defined which itself requires application of the somewhat elastic concept of exclusive use) for the forest crop production exemption, rather than to determine only whether the tract has been certified as eligible by DEC and the commitment and exemption application requirements have been met.
Determination of eligibility lies peculiarly within the competence of DEC, necessitating as it does not only a judgment of the sufficiency of the stand of forest trees on the acreage but also specification of an individualized management plan designed to promote the statutory objective of forest crop production.[1] Moreover, vesting in the State agency the power to decide eligibility for benefit under section 480-a has the advantage of permitting State-wide uniformity, through departmental regulations and the consistency of departmental determinations, in decisions of the question. This advantage is tellingly demonstrated in the present case. Clove's 4,142 acres of forest land in the Town of Highland is but a portion of a 12,000 acre tract extending through four other townships. The certificate of eligibility granted by DEC approved employment for forest crop production under section 480-a of the land in all five townships. Were the statute to be read as respondents would have it, five groups of assessors would reexamine the eligibility of pieces of the whole acreage with possibly different determinations and different results as to tax exemption of the several component parcels. (Assessors of three of the other four townships have approved exemptions under the statute. The application for exemption in the fourth has been withdrawn.)
In face of such considerations, it would be strange indeed to read into the statute what in effect would be an authority for review (and possible veto) of the determinations of the State Department of Environmental Conservation by a local public official. Such a sequence would be exactly the opposite of what would normally be expected were provision *189 made for any review procedure and would vest responsibility for the final determination in a local official whose concerns are remote from the objective the statute was designed to serve in comparison with those of the State agency. Further evidence that the matter of eligibility is a function solely of DEC is to be found in the provisions of subdivision 8 of the section, which confer on it both an ongoing authority to monitor operation of certified eligible tracts and authority to revoke the evidence of eligibility (the certificate of approval of the area as an eligible tract) for failure of continued management of the acreage within the approved plan and regulations. Included in the subdivision is a provision that in the event of such revocation "the department shall notify the chief fiscal officer of the county or counties in which such tract is located", which then will work a termination of the exemption previously granted. Absent receipt of such a notice of revocation, however, there is no power in an assessor to treat an exemption as forfeited by reason of ineligibility of the tract in light of the provision in paragraph (a) of subdivision 3 that an exemption once procured "shall continue * * * so long as the certification of the eligible tract shall not be revoked by the department". It is thus apparent that an assessor has no power to make an independent judgment that once-eligible acreage has become ineligible. By like token, the statute admits of no initial determination by that official of any such ineligibility.[2]
Inasmuch as it was undisputed on the papers submitted in connection with the owner's motion for summary judgment that a certificate approving eligibility of the acreage located in the Town of Highland had been issued by DEC, that the commitments of the land had been properly made and filed, and that applications for tax exemptions for the *190 years 1981-1982 and 1982-1983 had also been properly filed, petitioner's motion for summary judgment should have been granted and its entitlement to the exemptions sought under section 480-a established.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Order affirmed, with costs.
NOTES
[1] We observe that DEC is authorized, in the last sentence of subsection 2, to specify uses other than forest crop production which would be permitted as compatible with and supportive of forest crop production.
[2] Additionally, we reject respondents' contention that section 199.4 of DEC rules and regulations enacted in conformity with section 480-a which provides only that, among other persons, the assessor of an eligible tract shall have the right to enter the area "for the purpose of ascertaining compliance with section 480-a of the Real Property Tax Law or this Part" (6 NYCRR 199.4) supports their position. The regulation refers to "compliance", not "eligibility". As indicated above, a tax exemption may be lost by conduct of a tract owner which is contrary to the prescribed management plan or other departmental regulation of the area. The regulation on which respondents rely simply assures access to a local official who would have a particular interest in any such improper activity and in bringing it to the attention of DEC with possible resulting eligibility-certificate revocation by the agency. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560766/ | 171 S.W.3d 158 (2005)
Christopher L. WILLIAMS, Movant/Appellant,
v.
STATE of Missouri, Respondent/Respondent.
No. ED 85489.
Missouri Court of Appeals, Eastern District, Division Four.
September 13, 2005.
*159 Maleaner Harvey, Assistant Public Defender, St. Louis, MO, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Ronald S. Ribaudo, Assistant Attorney General, Jefferson City, MO, for respondent.
SHERRI B. SULLIVAN, J.
Introduction
Christopher L. Williams (Movant) appeals from the motion court's denial of his motion to set aside his motion for voluntary dismissal and dismissal of his pro se motion for post-conviction relief. We dismiss the appeal for lack of jurisdiction.
Factual and Procedural Background
A jury found Movant guilty of robbery in the first degree, in violation of Section 569.020,[1] armed criminal action, in violation of Section 571.015, and burglary in the first degree, in violation of Section 569.160. The trial court entered a judgment in accordance with the jury verdict and sentenced Movant as a prior offender to concurrent terms of life imprisonment, thirty-five years' imprisonment, and fifteen years' imprisonment, respectively.
Movant appealed his convictions and sentences, which this Court affirmed in a per curiam order. State v. Williams, 131 S.W.3d 853 (Mo.App. E.D.2004).
On July 7, 2004, Movant filed a pro se motion for post-conviction relief under Rule 29.15.[2] On July 20, the motion court appointed counsel to represent Movant. On August 17, counsel entered her appearance and requested additional time in which to file an amended motion for post-conviction relief, which the motion court granted, giving Movant until October 18 to file an amended motion.
On October 18, Movant, by and through counsel, filed a notice of voluntary dismissal of his pro se motion for post-conviction relief. On October 25, Movant, by and through counsel, filed a motion to set aside the notice of voluntary dismissal and to issue findings of fact and conclusions of *160 law on Movant's pro se motion for post-conviction relief. The motion to set aside, filed at Movant's request, stated that counsel had investigated all allegations, including those raised in Movant's pro se motion, and concluded that there were no cognizable post-conviction claims under Rule 29.15 to raise before the motion court, and therefore, on October 14, counsel discussed her findings with Movant, who agreed the appropriate disposition was to move for dismissal. Along with the motion to set aside, counsel filed a Statement in Lieu of Filing an Amended Motion requesting the motion court to review all claims asserted in Movant's pro se motion for post-conviction relief and to issue findings of fact and conclusions of law.
On October 26, the motion court "granted" Movant's notice of voluntary dismissal and dismissed his pro se motion for post-conviction relief without prejudice and "denied" Movant's motion to set aside without issuing findings of fact or conclusions of law and without an evidentiary hearing.
Discussion
Movant argues that the motion court clearly erred in denying his motion to set aside the notice of voluntary dismissal and in dismissing his pro se motion for post-conviction relief without issuing findings of fact and conclusions of law.
Preliminarily, we address two jurisdictional issues raised by the State. First, the State argues that we do not have jurisdiction to hear Movant's appeal because Movant's pro se motion for post-conviction relief was untimely filed. We disagree. Rule 29.15(b) provides in relevant part:
If an appeal of the judgment or sentence sought to be vacated, set aside or corrected was taken, the motion shall be filed within 90 days after the date the mandate of the appellate court is issued affirming such judgment or sentence.
We issued the mandate affirming the judgment and sentence entered against Movant on May 17, 2004. Movant filed his pro se motion for post-conviction relief on July 7, 2004, within 90 days of our mandate. Thus, the pro se motion was timely filed. The State incorrectly cites April 6, 2004 as the date of mandate. However, this date was the date that we issued the opinion, not the date of mandate.[3]
Second, the State argues that we do not have jurisdiction to hear Movant's appeal because we do not have a final judgment before us. We agree with this argument. Once a plaintiff voluntarily dismisses a claim prior to the introduction of evidence, it is as if the suit were never brought. Curators of Univ. of Missouri v. St. Charles County, 985 S.W.2d 810, 814 (Mo.App. E.D.1998).[4] No appeal can be taken from a voluntary dismissal. Id. Thus, we do not have jurisdiction to hear this portion of Movant's appeal. Additionally, the trial court may take no further steps as to a voluntarily dismissed action, *161 and any step attempted is viewed as a nullity. Id. The trial court loses jurisdiction as of the date of dismissal. Id. The trial court has no power to reinstate the case, even the next day upon a plaintiff's motion. Liberman v. Liberman, 844 S.W.2d 79, 80 (Mo.App. E.D.1992). Therefore, the motion court's "denial" of Movant's motion to set aside is a nullity because the court did not have jurisdiction to rule on the motion. Our jurisdiction is contingent upon the trial court's having jurisdiction in the first instance. Kieffer v. Niemeyer, 113 S.W.3d 300, 301 (Mo.App. E.D.2003). Consequently, we do not have jurisdiction to hear this portion of Movant's appeal either. Thus, because no final judgment exists from which Movant can appeal, we dismiss his appeal for lack of jurisdiction.
Conclusion
The appeal is dismissed for lack of jurisdiction.
NANNETTE A. BAKER, P.J., and ROBERT G. DOWD, JR., J., concur.
NOTES
[1] All statutory references are to RSMo 2000, unless otherwise indicated.
[2] All rule references are to Mo. R.Crim. P. 2005, unless otherwise indicated.
[3] Generally, an opinion cannot be mandated until the time for filing all post-disposition motions has passed or, if a post-disposition motion(s) has been filed, until all post-disposition motions have been ruled on.
[4] We note, however, that Movant cannot file another motion for post-conviction relief. Civil Procedure Rule 67.01 states that a dismissal without prejudice permits a party to bring another civil action for the same cause, unless the civil action is "otherwise barred." Even though the docket sheet indicates that his pro se motion for post-conviction relief was dismissed "without prejudice," a motion for post-conviction relief filed by Movant now would be untimely under Rule 29.15(b) and thus would be "otherwise barred." A post-conviction relief motion is a civil action. Roberson v. State, 140 S.W.3d 634, 636 (Mo.App. W.D.2004); Rule 29.15(a). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560763/ | 171 S.W.3d 857 (2005)
Evelyn TITTIZER, Individually and as Independent Executrix of the Estate of Louis Tittizer, Petitioner,
v.
UNION GAS CORPORATION, Respondent.
No. 04-0100.
Supreme Court of Texas.
August 26, 2005.
*859 Paul S. Francis, Kenneth Sup Soh, Baker & Hostetler, LLP, Joe G. Roady, Hirsch & Westheimer, Houston, for respondent.
Emmett Cole Jr., William L. Sciba, III, Cole, Cole & Easley, P.C., Victoria, for petitioner.
PER CURIAM.
The parties dispute the amount of royalties that an oil and gas lessee owes landowners under the pooling provisions of multiple oil and gas leases. The landowner argues that her lease's pooling provisions entitle her to royalties on the pooled unit from the date of first production. The lessee argues that royalties are due from the later date of recordation of the Designation of Pooled Unit. We agree with the lessee and affirm in part the judgment of the court of appeals and remand the case to the court of appeals to consider the reasonableness of attorneys' fees.
In 1999, Union Gas Corporation entered into multiple oil and gas leases with Jimmie Gisler, Jenell Gisler, Ralph Gisler, and Doris Gisler (the Gislers) and various adjoining landowners. The leases contained pooling clauses, allowing lessee Union Gas to pool acreage owned by the various lessors for production of natural gas. Under the leases, each lessor in the "pooled unit" was entitled to receive a pro rata share of royalty fees from production anywhere in the unit. Completed in March 2000, the Watts-Gisler No. 1 Well was part of a pooled unit. The well began production on March 27, 2000. However, Union Gas did not file a Designation of Pooled Unit (the Designation) until August 7, 2000. The county recorded the Designation on the same day. The Designation included language that purported to make the pooled unit effective retroactively, from the date of first production on March 27, 2000.
The Gislers filed a breach of contract claim against Union Gas, seeking to defeat the retroactive effect of the Designation. They sought 100% of their royalties from the March 27, 2000 production date until the August 7, 2000 recordation of the Designation. The suit also alleged bad-faith pooling, damages for drainage, breach of implied covenants, fraud, negligence, and conversion. Union Gas joined, as third-party defendants, the adjoining landowners (the non-drillsite lessors), alleging that these parties' royalty rights under the pooling clauses of the leases could be affected by the Gislers' claim to 100% of the royalties from March 27, 2000 to August 7, 2000. Union Gas sought a declaration to establish the rights of the parties concerning the royalty payments and the effective date of the pooled unit as the date of first production for all royalty owners.
Evelyn Tittizer was one of the non-drillsite lessors joined by Union Gas's third-party action. Tittizer counterclaimed against Union Gas seeking a declaration that the effective date of the pooled unit under her lease was the date of first production, and seeking to recover her pro rata share of royalties accruing from the date of first production to the date of judgment.
Union Gas later amended its third-party action to add a claim for interpleader, alleging that competing claims for royalties placed them "in the position of potential double liability." Union Gas tendered over $1.3 million into the registry of the court, representing this amount as the royalties accruing from March 27, 2000 (the date of first production) to August 7, 2000 (the recordation date of the Designation).
The Gislers filed a motion for partial summary judgment seeking 100% of their royalties from March 27, 2000 to August 7, 2000. All of the non-drillsite lessors, including *860 Tittizer, also filed motions for partial summary judgment, seeking declarations that the pooling clauses of the leases were effective from the date of first production and that all of the owners of the pooled unit were entitled to pro rata shares of the $1.3 million in royalties from production during the March 27, 2000 to August 7, 2000 period.
The trial court granted the Gislers' and all non-drillsite lessors' motions for partial summary judgment against Union Gas. The trial court also granted motions to sever the Gislers' breach of contract claims and the non-drillsite lessors' counterclaims against Union Gas, creating eleven different cases. The trial court entered final judgment for the Gislers on their severed contract claims for over $1.3 million in royalties, plus attorneys' fees. The trial court also entered judgment for each of the non-drillsite lessors. Specifically, the trial court awarded Tittizer her pro rata share of royalties from March 27, 2000, the date of first production, through April 30, 2001, the date of judgment in her favor, plus attorneys' fees. By doing so, the trial court implicitly rejected Union Gas's interpleader claim.
On appeal, Union Gas complained that it had been wrongfully ordered to pay double royalties for production between March 27, 2000 and August 7, 2000. The court of appeals reversed in part the trial court's judgments in favor of the non-drillsite lessors and ordered that the Gislers alone were entitled to royalties from production between March 27, 2000 and August 7, 2000. 171 S.W.3d 209, ___, 2003 WL 22479980. The court of appeals affirmed the trial court's judgment in all other respects. Id. at ___. The court of appeals also held that Union Gas failed to attack the award of Tittizer's attorneys' fees and thus did not consider the reasonableness of the $150,000 award. Tittizer and Union Gas petitioned this Court for review. We review the trial court's summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003).
An oil and gas lease is a contract, and its terms are interpreted as such. See Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 554 (Tex.2002); Skelly Oil Co. v. Archer, 163 Tex. 336, 356 S.W.2d 774, 778 (1961). In construing an unambiguous oil and gas lease, such as the one at issue here, we seek to enforce the intention of the parties as it is expressed in the lease. Heritage Res., Inc. v. Nations-Bank, 939 S.W.2d 118, 121 (Tex.1996); McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341, 344 (1957). We enforce an unambiguous document as written. Sun Oil Co. v. Madeley, 626 S.W.2d 726, 728 (Tex.1981).
A lessee has no power to pool without the lessor's express authorization, usually contained in the lease's pooling clause. Southeastern Pipe Line Co. v. Tichacek, 997 S.W.2d 166, 170 (Tex.1999); Jones v. Killingsworth, 403 S.W.2d 325, 327-28 (Tex.1965) ("The lessors' land may be pooled only to the extent stipulated in the lease."). For pooling to be valid, it must be done in accordance with the method and purposes specified in the lease. Tichacek, 997 S.W.2d at 170.
Union Gas's lease with Tittizer reads:
Lessee shall exercise said option as to each desired unit by executing an instrument identifying such unit and filing it for record in the public office in which this lease is recorded. Each of said options may be exercised by lessee at any time and from time to time while this lease is in force, and whether before or after production has been established either on said land, or on the portion of *861 said land included in the unit, or on other land unitized therewith.
Tittizer argues that the language in her lease allows Union Gas to make the effective date of the pooled unit retroactive by language in the Designation. On the contrary, under the terms of the lease, pooling can only be effectuated upon recordation of an instrument identifying the pooled unit. While the lease allows Union Gas to pool by recording at any time, it does not allow Union Gas to pool on a date other than that of recordation of the Designation. Therefore, the attempt by Union Gas to effect pooling on a date prior to the date of recordation, by assigning a different effective date in the Designation, is contrary to the unambiguous terms of the lease. Our courts of appeals have also reached the same conclusion on similar lease language. See, e.g., Sauder v. Frye, 613 S.W.2d 63, 64 (Tex.Civ.App.Fort Worth 1981, no writ) (holding, in interpreting a pooling clause providing that the lessee "shall execute in writing and record" an instrument identifying the units, that the intent of the parties was for unitization to be effective only upon recording of the designation); Yelderman v. McCarthy, 474 S.W.2d 781, 782, 784 (Tex.Civ.App., Houston [1st Dist.] 1971, writ ref'd n.r.e.) (holding that ratification of a lease clause providing that "upon such recordation the unit shall be effective as to all parties hereto" made pooling conditioned upon recordation); cf. Tiller v. Fields, 301 S.W.2d 185, 191 (Tex.Civ.App.Texarkana 1957, no writ) (holding that effective date of pooling was the date of execution of the designation where the lease did not require that the unit designation be recorded); see also Howard R. Williams & Charles J. Meyers, Oil and Gas Law §§ 669.11, 921.16 (2004); 1 Ernest E. Smith & Jacqueline Lang Weaver, Texas Law of Oil and Gas § 4.8[B][2] (2d ed.2005).
We hold that this lease does not authorize the lessee to execute a pooling designation with a retroactive effect. The lease provides that unitization can be effective only upon recordation. We affirm the court of appeals' conclusion that the effective date of the pooled unit was the date of recordation of the Designation, and that Tittizer is only entitled to her pro rata share of the royalties earned after that date.
Tittizer next argues that Union Gas is estopped from arguing that the effective date of the pooled unit is the date of recordation because Union Gas filed a third-party claim seeking a declaration that the pooled unit was effective as of the date of first production, on March 27, 2000. As a general rule, the doctrine of estoppel precludes a litigant from requesting a ruling from a court and then complaining that the court committed error in giving it to him. Northeast Tex. Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487, 488 (1942); Ramirez v. State, 973 S.W.2d 388, 392 (Tex.App.El Paso 1998, no pet.); Austin Transp. Study Policy Advisory Comm. v. Sierra Club, 843 S.W.2d 683, 689-90 (Tex.App.Austin 1992, writ denied). The rule is grounded in justice and dictated by common sense. Hodges, 158 S.W.2d at 488. Union Gas responds that it is not raising a point of error inconsistent with its position at the trial court. We agree.
Union Gas filed its third-party claim to avoid potential double liability by obtaining a judicial determination of its obligations under the leases, and also by joining all the stakeholders as parties to ensure that it obtained a binding determination of their contractual rights and obligations in the oil and gas properties. While Union Gas did seek a declaration that the effective date of the pooled unit for royalty purposes was the date of first production, *862 it also stated that "the possibility of double liability makes it essential that Union Gas obtain a declaration of the rights of the parties." Union Gas's argument that it had the power to make the unit retroactive was contingent on the retroactive application being uniformly applied to all parties, such that it owed no more than the amount it sought to interplead into the court's registry.
As we explained in Hodges, a party cannot complain on appeal that the trial court took a specific action that the complaining party requested, a doctrine commonly referred to as "the invited error" doctrine. 158 S.W.2d at 488; see, e.g., Naguib v. Naguib, 137 S.W.3d 367, 375 (Tex.App., Dallas 2004, pet. denied); Neasbitt v. Warren, 22 S.W.3d 107, 112 (Tex.App.Fort Worth 2000, no pet.); Ramirez, 973 S.W.2d at 392. Union Gas sought a uniform determination from the trial court, applicable to all royalty owners, that the effective date of pooling was the date of first production. Granting Tittizer's motion for summary judgment, the trial court declared that the effective date of the pooled unit as to the Tittizer lease was the date of first production. However, the court did not apply the same effective date to the Gisler lease. Instead, contrary to Union Gas's position, the court entered judgment in favor of the Gislers in an amount based on an effective date of pooling from the date of recordation of the Designation. By establishing different effective dates for the Gislers and Tittizer, the trial court did not grant Union Gas's requested uniform relief. Therefore, the invited error doctrine is inapplicable to this case because Union Gas did not request that the trial court rule in the manner in which it did and thus did not "invite" the error.
In addition, to be estopped from asserting that recordation is the effective date of pooling, Union Gas must have unequivocally taken a position in the trial court that is clearly adverse to its position on appeal. See Am. Sav. & Loan Ass'n v. Musick, 531 S.W.2d 581, 589 (Tex.1975) ("One of the requirements for application of the doctrine of judicial estoppel is that the statement must be deliberate, clear, and unequivocal."). Union Gas's position at the trial court was neither unequivocal nor clearly adverse to its position on appeal. Union Gas stated in its third-party claim that a "bona fide dispute exists" concerning the entitlement of Tittizer and the non-drillsite lessors "under their respective leases and under the Unit Designation." This statement is an acknowledgment that both positions concerning the effective date of pooling may have validity and are asserted in good faith. Union Gas's position that the effective date of pooling was the date of first production was not unequivocal. For similar reasons, Union Gas's third-party claim is not clearly adverse to its position on appeal. At the trial court, Union Gas sought to obtain a uniform determination applicable to all royalty owners to avoid double liability, and its position on appeal is the same.
Finally, Union Gas complains that the court of appeals erred in holding that Union Gas did not appeal the award of $150,000 in attorneys' fees to Tittizer. We agree. In its brief to the court of appeals, Union Gas included the following point of error: "The trial court erred in granting final judgments which awarded attorneys fees to the Gislers [Union Gas Corp. v. Gisler, 129 S.W.3d 145 (Tex.App.Corpus Chrisit)] because the amounts awarded were excessive and were not reasonable, necessary, equitable, or just." (emphasis added). The court of appeals held simply that "Union did not appeal the award of attorneys fees in this case." 171 S.W.3d at 211 [(Tex.App.Corpus Christi2003)].
*863 Read in isolation, Union Gas's point of error in the court of appeals complains that the trial court awarded excessive fees to the Gislers and includes no challenges to the trial court's attorneys' fees award to Tittizer. Under this view Union Gas failed to preserve error as to Tittizer's attorneys' fees award. However, points of error should be liberally construed to fairly and equitably adjudicate the rights of litigants. Tex.R.App. P. 38.9; Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex.1990). Furthermore, an appellate court should consider the parties' arguments supporting each point of error and not merely the wording of the points. Anderson v. Gilbert, 897 S.W.2d 783, 784 (Tex.1995); Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982). After severing all the non-drillsite lessors' counterclaims, the trial court awarded attorneys' fees to both Tittizer and the Gislers. The body of the argument supporting the point of error twice refers to challenges to the attorneys' fees awarded to Tittizer. The text of Union Gas's argument concludes that "the attorneys fee award provided to the Tittizer appellees is thus unreasonable as a matter of law."
The context of the litigation, as well as the text of the argument in its brief to the court of appeals, indicates that the intent of Union Gas was to appeal the award of attorneys' fees to Tittizer, even though its point of error erroneously mentioned "the Gislers." Adhering to tenets of preservation is important; however, appellate courts should avoid being overly technical in their application. See In re B.L.D. & B.R.D., 113 S.W.3d 340, 350 (Tex.2003) (describing the underpinnings of preservation rules as fairness to the parties and judicial economy and accuracy); Motor Vehicle Bd. of the Tex. Dep't of Transp. v. El Paso Indep. Auto. Dealers Ass'n, 1 S.W.3d 108, 111 (Tex.1999) (stating the Court's preference to decide cases on substance rather than procedural technicalities). The court of appeals erred in holding that this point of error was not raised. We remand this issue to the court of appeals. Tex.R.App. P. 61.4.
We hold that the court of appeals is correct in concluding that Tittizer is not entitled to royalties for production between March 27, 2000 and August 7, 2000 because the lease unambiguously provides for pooling to commence on the date of the Designation's recordation. We further hold that the court of appeals erred in concluding that Union Gas failed to appeal the trial court's award of attorneys' fees. We affirm in part and reverse in part the court of appeals' judgment and remand the case to the court of appeals to consider Union Gas's challenge to the reasonableness of the attorneys' fees awarded to Tittizer.
Justice Willett did not participate in the decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858129/ | urban
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-128-CV
ELIZABETH URBAN,
APPELLANT
vs.
KATHLEEN E. VIESCA, GUARDIAN OF THE ESTATE OF
MARY LOU HEEP HENDERSON,
APPELLEE
FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY,
NO. 52,218, HONORABLE GUY HERMAN, JUDGE PRESIDING
Kathleen E. Viesca, guardian of the estate of Mary Lou Heep Henderson, appellee,
sued Elizabeth Urban, appellant, Austin Trust Company, and others (1) seeking a declaratory
judgment to construe certain testamentary trust provisions in the will of Herman F. Heep. After
a non-jury trial, the court rendered judgment construing the will as Viesca requested. Only Urban
appeals this judgment. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Herman F. Heep died on February 10, 1960. His will, dated October 27, 1959,
was thereafter admitted to probate. Heep's will established two trusts for his daughter, Mary Lou
Heep Henderson, and her issue.
In 1992, Viesca sued the current trustee of the two trusts, Austin Trust Company,
for breach of fiduciary duties and for declaratory judgment seeking construction of the will.
Henderson's children and grandchildren were also named as defendants. Urban is Henderson's
daughter. The trial court severed and abated the suit for breach of fiduciary duty pending
resolution of the suit for declaratory judgment.
The trial on the declaratory judgment suit was to the court. All parties to the suit
stipulated, and the trial court agreed, that Heep's will was unambiguous and should be construed
from its four corners. Therefore, the parties did not offer extrinsic evidence to aid the trial
court's construction. The judgment declared, among other things, the standard the trustee should
use in making distributions to Henderson. Urban appeals only this portion of the judgment.
The dispute centers around paragraph 4 of Heep's will, which reads as follows:
4. Trust Distributions: During the life of my daughter, the Trustees shall
distribute to my daughter such amounts of the Trust Estates of "THE
HERMAN F. HEEP TRUST NO. 1" and "THE HERMAN F. HEEP TRUST
NO. 2" as are sufficient to provide for her support and maintenance in a
standard of living equivalent to that to which she was accustomed at my death,
taking into consideration any other sources of support she may have from
other sources to the knowledge of the Trustees. Distributions to my daughter
shall be made equally from such Trust Estates unless, in the sole discretion of
the Trustees, it would be more equitable to make such distributions in some
other proportions, in which case such distributions shall be made in the
proportions determined by the Trustees. After any distributions to be made
to my daughter at that time have been made, the income, if any, remaining in
such Trust Estates (and after the death of my daughter, the income of the Trust
Estate of each Trust continued as described in Paragraphs 2 and 3) may be
accumulated and retained, in whole or in part, or the Trustees, from time to
time, may distribute to the following persons such amounts of the following
Trust Estates as, in the sole discretion of the Trustees, are in the best interests
of such distributees:
(a) In the case of "THE HERMAN F. HEEP TRUST NO. 1" and "THE
HERMAN F. HEEP TRUST NO. 2", to any one or more of the issue
of my daughter.
(b) In the case of a separate and distinct Trust continued as described
in Paragraphs 2 and 3, to any one or more of the person for whom
such Trust was continued and such person's issue.
In making distributions to persons other than my daughter, the Trustees shall take
into consideration the age of the distributee, the costs of a distributee's comfort,
support, maintenance, and education, any income a distributee may have from
other sources to the knowledge of the Trustees, and any other factors deemed
relevant by the Trustees. Such distributions may be made without regard to any
requirement of equality among distributees or to the fact that any ancestor of a
distributee is then living or receiving distributions hereunder. Distributions of
corpus and accumulated income, but not of current income, made under the
provisions of this paragraph shall be subtracted, without interest, from the share,
if any, of the recipient (or the persons taking in such recipient's place by right of
representation) upon final distribution of the Trust Estate from which such
distributions were made unless such person is the only one then entitled to share
in such Trust Estate.
(Emphasis added.) The trial court construed the language of the will emphasized above to mean
that in making trust distributions to Mary Lou Heep Henderson for the purpose of her support and
maintenance, the trustee may only consider "other payments Mary Lou Heep Henderson actually
receives for the same purpose (i.e., her support and maintenance) . . . ."
DISCUSSION
Urban brings two points of error complaining of the trial court's judgment. In her
first point of error, she complains that the construction of the distribution standard is contrary to
Heep's intent and that the evidence is legally or factually insufficient to support the findings of
fact and conclusions of law made by the trial court regarding the "sources of support" issue. In
her second point of error, Urban complains that the trial court erred in finding that the trustee
should not consider the estate-tax consequences of a trust distribution, particularly that the trustee
should not consider the value of Henderson's estate, when determining whether to make a
distribution to a beneficiary. Urban contends that this construction is contrary to Heep's intent
and that the evidence is factually or legally insufficient to support the conclusions of law made by
the trial court.
Before discussing the substantive issues presented by Urban, we must address the
appropriateness of her points of error challenging the sufficiency of the evidence. Whether a will
is ambiguous is a question of law for the court. Nail v. Thompson, 806 S.W.2d 599, 601 (Tex.
App.Fort Worth 1991, no writ). When a will is unambiguous, its proper construction is likewise
a question of law for the court. Floyd v. Floyd, 813 S.W.2d 758, 760 (Tex. App.El Paso 1991,
writ denied); see also El Paso Nat'l Bank v. Shriners Hosp. for Crippled Children, 615 S.W.2d
184, 185-86 (Tex. 1981). Urban's points of error complain of the construction of an
unambiguous will. Therefore, only questions of law are presented on appeal.
Conclusions 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. First Nat'l Bank v. Kinabrew, 589 S.W.2d 137, 146 (Tex. Civ. App.Tyler
1979, writ ref'd n.r.e.); Little v. Linder, 651 S.W.2d 895, 898 (Tex. App.Tyler 1983, writ ref'd
n.r.e.). Therefore, to the extent that Urban's points of error can be read as challenging the trial
court's construction of Heep's will on the grounds of legal or factual sufficiency of the evidence,
they are overruled. (2)
We believe, however, that Urban's points of error, read liberally, can also be
interpreted as challenging the trial court's construction of Heep's will as being erroneous as a
matter of law. Therefore, we will review the trial court's construction of the will.
In construing an unambiguous will, we examine the four corners of the instrument
to determine the testator's intent. Henderson v. Parker, 728 S.W.2d 768, 770 (Tex. 1987); El
Paso Nat'l Bank, 615 S.W.2d at 185. Our objective is not to determine what the testator meant
to write, but rather to discern the meaning of the words that he actually used. Shriner's Hosp.
for Crippled Children v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980). Where the meaning of those
words is clear, we will not speculate that some other result may have been intended. Price v.
Austin Nat'l Bank, 522 S.W.2d 725, 731 (Tex. Civ. App.Austin 1975, writ ref'd n.r.e.). The
testator's intent must be drawn from the will, not the will from his intent. Huffman v. Huffman,
339 S.W.2d 885, 888 (Tex. 1960).
We presume that the testator placed nothing superfluous or meaningless in his will,
and that he intended every word to have a meaning. Johnson v. McLaughlin, 840 S.W.2d 668,
672 (Tex. App.Austin 1992, no writ). We also presume that the same word used more than
once in a will was intended to have the same meaning throughout. Weathers v. Robertson, 331
S.W.2d 87, 90 (Tex. Civ. App.Beaumont 1959, writ ref'd n.r.e.). Words of common usage are
given their usual and ordinary meaning absent a clear intention to use them otherwise. White v.
Taylor, 286 S.W.2d 925, 926 (Tex. 1956); Silverthorn v. Jennings, 620 S.W.2d 894, 897 (Tex.
Civ. App.Amarillo 1981, writ ref'd n.r.e.).
In her first point of error, Urban challenges the trial court's construction of the
phrase, "taking into consideration any other sources of support she may have from other sources."
The trial court concluded that this phrase meant that, before making trust distributions to
Henderson, the trustee is obligated and permitted to consider any other payments Henderson
actually receives for her support and maintenance from any other person or entity. The trial court
further concluded that the trustee was not authorized to consider other income from Henderson's
estate, the fair market value of her estate, or the fair market value of another trust of which she
is beneficiary, except to the extent that she elects to use those sources for her support or her
guardian is ordered by the Probate Court to use them for her support. The court also concluded
that other factors set out in Heep's will to be considered for distributions to other beneficiaries
are not to be considered in determining distributions to Henderson.
We agree with the trial court's construction of the will. We construe Heep's will
to mean that the trustee should consider any other sources of support that Henderson has other
than the two trusts established under the will. To "support" means to maintain. Webster's Third
New International Dictionary 2297 (1986). We believe Heep intended to maintain Henderson's
lifestyle; that is, Heep did not intend that Henderson be forced to expend her own estate for
support. For example, Heep directed that the trustee consider Henderson's other sources of
"support," while directing the trustee to consider other beneficiaries' sources of "income" in
making distributions. Heep did not intend for the terms "income" and "support" to be
synonymous, but rather, to have different meanings. "Income" is the broader of the two terms:
it can be used for support, but it can also be used for other purposes. We believe that Heep
recognized this and intended only those assets that were intended to be used or were actually used
for Henderson's support to be considered by the trustee in making distributions to her. We
overrule Urban's first point of error. (3)
Urban's second point of error complains of the trial court's determination that the
trustee could not consider the estate-tax consequences of making distributions to Henderson.
Urban asserts that Heep's intent was to minimize his estate taxes. We agree that this was Heep's
intent. However, the will directs the trustee to consider only "other sources of support" in making
distributions to Henderson. We may not redraft a will, nor vary or add provisions to it, under
the guise of construing its language to reflect some presumed intention of the testator. Shriner's
Hosp., 610 S.W.2d at 151. There is nothing in the language of Heep's will to support the
trustee's consideration of the estate-tax consequences of a distribution to Henderson.
Furthermore, although Heep intended to minimize estate taxes on his estate,
Urban's proposed construction is aimed at minimizing Henderson's estate taxes. Any distributions
to Henderson from the trusts are to be used for her support and maintenance. It may be
presumed, therefore, that such distributions will be expended and will not remain permanently in
her estate. We recognize that the distributions to Henderson may have the indirect effect of
increasing her estate, because her own assets will not be consumed for her support. However,
we do not believe this effect is contrary to Heep's intent. Rather, we believe Heep intended to
avoid having assets in his estate taxed and then having those same assets taxed as part of
Henderson's estate. We overrule Urban's second point of error.
CONCLUSION
We affirm the judgment of the trial court.
J. Woodfin Jones, Justice
Before Justices Powers, Jones, and Kidd
Affirmed
Filed: November 24, 1993
Do Not Publish
1. In addition to Austin Trust Company, the defendants included Elizabeth Urban,
Kathleen Henderson, and Harriet Heep, daughters of Mary Lou Heep Henderson, as well
as nine adult and minor grandchildren of Mary Lou Heep Henderson.
2. We recognize that the trial court necessarily draws its conclusions of law from the
facts as it finds them, and those findings of fact are reviewable for legal and factual
sufficiency of the evidence to support them. Kinabrew, 589 S.W.2d at 146. When
construing an unambiguous will, the trial court draws its conclusions from the words used in
the will. Urban's points of error do not complain that the court based its construction on
words not found in Heep's will, or that Heep intended those words to have other than their
usual and ordinary meaning, but that the trial court's construction of those words actually in
the will, given their usual and ordinary meaning, is erroneous.
3. The trial court's judgment stating its construction of the will, although phrased
slightly differently, is consistent with our conclusion. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2392300/ | 702 S.E.2d 2 (2010)
WILSON
v.
The STATE.
No. A10A0923.
Court of Appeals of Georgia.
September 10, 2010.
Reconsideration Denied October 1, 2010.
*3 Bryan D. Scott, Macon, for appellant.
Fredric D. Bright, District Attorney, Alison T. Burleson, Assistant District Attorney, for appellee.
ADAMS, Judge.
Following a bench trial, Kendrick L. Wilson was convicted of possession of marijuana with intent to distribute, possession of a firearm during the commission of a crime, and possession of marijuana. On appeal, he contends the trial court erred by denying his motion to suppress and by denying him first offender status.
*4 On appeal of a trial court's order on a motion to suppress, we uphold the court's findings based upon conflicting evidence if there is any evidence to support them; we uphold the trial court's findings of fact and credibility unless clearly erroneous; and we construe the evidence in favor of the trial court's findings and judgment. Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994); see also Jackson v. State, 258 Ga.App. 806, 807-808(2), 575 S.E.2d 713 (2002). Moreover, "in reviewing the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial." (Footnote omitted.) McDevitt v. State, 286 Ga.App. 120, 648 S.E.2d 481 (2007).
1. Construed in favor of the verdict, the evidence shows that on the afternoon of Monday, July 10, 2006, Georgia State Trooper Ray Malone, a canine handler for the Criminal Interdiction Unit that patrols the interstates for criminal activity, was sitting stationary around mile post 112 on Interstate 20 in an attempt to intercept illegal drugs moving from Atlanta to other states, such as South Carolina. He was facing westbound, watching eastbound traffic, and had to turn his head to see the back of Wilson's car. When Wilson's car came by, Malone saw a bracket around the car's license plate that blocked view of the registration expiration date. Malone pursued, even riding alongside Wilson for a period of time in order to see if he was wearing a seatbelt. At about mile marker 117 or 118, Malone pulled Wilson over based on the alleged violation of OCGA § 40-2-41.
Under OCGA § 40-2-41, the license tag for "every vehicle required to be registered under this chapter" shall be plainly visible. The same statute provides that a person cannot attach any item to "any motor vehicle required to be registered in the state" that obstructs or hinders the clear display and legibility of a license plate. OCGA § 40-2-41. As a consequence, Wilson argues the officer had no basis to effect a stop of his car because his car was registered in South Carolina and had license tags for that state. But this Court has held that "[a]lthough certain portions of OCGA § 40-2-41 apply only to vehicles registered in Georgia, the [visibility and display] portions of the statute apply to any vehicle whether registered in Georgia or out of state." State v. Davis, 283 Ga.App. 200, 201(1), 641 S.E.2d 205 (2007). See also Nelson v. State, 247 Ga.App. 455(1), 544 S.E.2d 189 (2001). We decline Wilson's request to overrule this precedent, which is squarely on point. Accordingly, there was evidence to support the trial court's finding that the officer had a basis for making the stop because his license tag was in violation of Georgia law.
2. Wilson contends that after Malone dealt with the tag problem, he had no reasonable suspicion of other criminal activity sufficient to detain Wilson any further and that his further detention was therefore not supported by probable cause.
Malone testified to the following: after he stopped the car he noticed "an overwhelming odor" of air freshener coming from the passenger side; he asked for and received Wilson's license and proof of insurance; he directed Wilson to the rear of the car to talk about the tag violation; Wilson, who was at all times cooperative, agreed to have the tag bracket removed; Malone asked Wilson where he and his passenger had been and where they were going; Wilson replied that they went to Atlanta on Friday to visit his sister and were headed back to South Carolina, but he was unable to say where in Atlanta his sister lived other than in the Atlanta area; Wilson appeared nervous about having the conversation, his hands were shaking a bit, and his nervousness increased over time; Malone spoke to the passenger "to confirm Mr. Wilson's story"; the passenger stated that they had come to Atlanta on Sunday to see a friend; Wilson was unable to explain why their stories were conflicting and he changed his story; during this time, Malone was completing the paperwork associated with the warning. Malone claims he also was waiting on verification of Wilson's license through his on-board computer link, which takes between two and eight minutes. Malone then returned the license and insurance papers to Wilson along with a warning about the tag violation, but Wilson was not free to leave.
*5 Malone testified that people with drugs in a car often spray air freshener to mask the odor; that he found suspicious Wilson's lack of knowledge of the precise location of his sister's house; that Wilson's nervousness was different from the average person he has stopped because it was increasing during the conversation; that the difference between Wilson's and the passenger's stories about their trip was suspicious; and that these "indicators" told him that Wilson might have drugs in his car. So, about five or six minutes after the initial stop, Malone told Wilson he was going to call for backup and perform a free air search. Malone also asked Wilson for consent to search, which Wilson denied. Malone testified that Wilson's refusal to consent was an additional indicator of something in the car.
When backup arrived about three to five minutes later, Malone used his dog to do a free air search, and the dog indicated the presence of drugs. The ensuing search revealed a loaded .45 caliber pistol in the glove box and 844 grams (about two pounds) of marijuana in a duffle bag in the trunk. Wilson was arrested. From pullover to arrest, the stop lasted 20 to 25 minutes. At the jail, six grams of marijuana were found in Wilson's shoe.
(a) Wilson contends the stop was unreasonably prolonged because Malone had no basis to question him after he completed the warning ticket for the tag violation.
During a valid traffic stop, "an officer may ask the driver questions wholly unrelated to the traffic stop or otherwise engage in `small talk' with the driver, `so long as the questioning does not prolong the stop beyond the time reasonably required to complete the purpose of the traffic stop.' State v. Davis, 283 Ga.App. 200, 203(2), 641 S.E.2d 205 (2007)." Sommese v. State, 299 Ga.App. 664, 669(1)(b), 683 S.E.2d 642 (2009).
"A reasonable time to conduct a traffic stop `includes the time necessary to verify the driver's license, insurance, registration, and to complete any paperwork connected with the citation or a written warning. A reasonable time also includes the time necessary to run a computer check to determine whether there are any outstanding arrest warrants for the driver or the passengers.' (Citations and footnotes omitted.)"
Id. Finally, so long as the traffic stop is not unreasonably prolonged, the officer does not need articulable suspicion of criminal activity in order to engage in unrelated questioning. Id.
Because the evidence does not show that the traffic stop was unreasonably prolonged, the officer's questioning was allowed. The videotape shows that Malone completed the questioning and confronted Wilson with the discrepancies between his and the passenger's stories within four or five minutes of the initial stop. For this time, Malone was addressing the tag violation and completing the necessary paperwork, which he had yet to hand over. Thus, there was some evidence to support the trial court's decision that the stop was not unreasonably prolonged by the unrelated questioning. See Salmeron v. State, 280 Ga. 735, 737-738(1), 632 S.E.2d 645 (2006).
Wilson strongly argues that the videotape shows Malone never performed a computer check of his license and insurance. But the videotape does not show what occurred during the brief time that Malone returned to his car during the stop, and Malone testified that he did run the license. This discrepancy created an issue of fact for the court. Even so, the videotape shows that Malone was occupied by handwriting the warning paperwork for almost all of the time before he questioned the passenger.
(b) Wilson contends Malone did not have reasonable suspicion of other illegal activity once he completed the purpose of the initial stop and that his detention past that time violated the Fourth Amendment. But by that time, Malone had smelled the air freshener which is often used to mask the smell of illegal drugs, observed increasingly nervous behavior, and heard conflicting stories from Wilson and the passenger about their trip. Malone was also aware that Atlanta serves as a hub for drug activity and that Interstate 20 serves as a "major thoroughfare for drugs." Accordingly, he decided *6 to detain Wilson in order to perform a free air search of the car.
"To determine whether a reasonable articulable suspicion exists, courts must look to the totality of the circumstances." State v. Thompson, 256 Ga.App. 188, 189, 569 S.E.2d 254 (2002). It is true that "nervousness alone is not sufficient to establish reasonable suspicion to detain and investigate for illicit drug activity." (Footnote omitted.) Gonzales v. State, 255 Ga.App. 149, 150, 564 S.E.2d 552 (2002). And an air freshener is a legal substance that, standing alone, is insufficient to justify further detention. See State v. Thompson, 256 Ga.App. at 189, 569 S.E.2d 254. But, here, these facts combined with Wilson's and the passenger's conflicting stories, Wilson's inability to articulate where his sister lived, and Malone's knowledge of drug trafficking in the area were sufficient to support detention for further investigation, such as a free air search. See, e.g., Rucker v. State, 266 Ga.App. 293, 294(1), 596 S.E.2d 639 (2004) (reasonable suspicion existed where defendant continued to drive for one to two miles after being signaled to stop, there was an unusual amount of movement in the vehicle, and defendant approached patrol car rather than waiting for the officer to approach).
The trial judge found Malone to be "a highly credible witness who did not exaggerate any facts and called it exactly like he saw it." Wilson's several arguments that Malone's testimony is not credible[1] as well as arguments about discrepancies in his testimony presented issues for the trial judge to resolve. Another trial judge might come to a different conclusion based on similar facts. See, e.g., State v. Long, 301 Ga.App. 839, 689 S.E.2d 369 (2010) (affirming grant of motion to suppress); State v. Connor, 288 Ga.App. 517, 654 S.E.2d 461 (2007) (same). But we cannot say the trial court's conclusions in this case were clearly erroneous. Cases such as Long and Connor are distinguishable because in those cases the State was appealing the grant of a motion to suppress.
3. Finally, Wilson contends the trial court erred by failing to grant him first offender status because it refused to consider that status, it used a mechanical sentencing formula, and the State's evidence of prior convictions was flawed. "[T]he trial court is not required to render such a first offender status merely because it is requested even where no previous offense is shown, and the trial court may give in its discretion any sentence prescribed by law for the offense." Todd v. State, 172 Ga.App. 231(2), 323 S.E.2d 6 (1984). "We vacate and remand only when a trial court refuses to consider first offender treatment as a possible sentence. [Cit.]" Shell v. State, 264 Ga.App. 547, 550(2), 591 S.E.2d 450 (2003).
But Wilson has not shown how the court used a mechanical sentencing formula nor how the court refused to exercise its discretion. "There is a presumption that a sentence was correctly imposed, and the burden of showing that a sentence was not correctly imposed is with the party who asserts its impropriety." (Citation and punctuation omitted.) Lynn v. State, 236 Ga.App. 600, 604(3), 512 S.E.2d 695 (1999). Moreover, the record shows that Wilson requested first offender treatment and the court heard the State's response. Thus, the record reflects that the court considered first offender status and rejected it. Finally, Wilson has not proved his remaining assertions that statements made by the State about his criminal background were untrue. Therefore there is no basis for reversal on this point.
Judgment affirmed.
SMITH, P.J., and MIKELL, J., concur.
NOTES
[1] For example, Malone admitted that there is no indication on the videotape of the traffic stop that Wilson was nervous. He said there were such indications off camera, but the videotape shows that once Wilson got out of the car, he was not off camera until Malone decided to do the free air search. The videotape also shows that Wilson did not appear nervous. Also, at trial Malone did not recall Wilson clenching his hands. Yet at the motion hearing, Malone testified that Wilson did clench his hands. The videotape does not reveal any hand clenching. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2392302/ | 564 S.W.2d 351 (1978)
STATE of Missouri, Respondent,
v.
Jackie E. SWEARINGIN, Appellant.
No. 10597.
Missouri Court of Appeals, Springfield District.
March 22, 1978.
Motion for Rehearing or Transfer Denied April 10, 1978.
Application to Transfer Denied May 9, 1978.
*352 Robert H. Handley, Springfield, for appellant.
John D. Ashcroft, Atty. Gen., Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
FLANIGAN, Judge.
Defendant Jackie E. Swearingin, charged as a second offender (§ 556.280),[1] was found guilty by a jury of murder in the second degree (§ 559.020), and was sentenced by the court to 40 years' imprisonment. Defendant appeals.
On June 19, 1976, in a bar known as the Jockey Club in Springfield, Missouri, Larry Brown was stabbed with a knife during a brawl. He died six days later as a direct result.
On July 29, 1976, a felony information was filed, naming appellant and his brother Ricky Swearingin as defendants. Each filed a motion for separate trial and separate trials were ordered. In November 1976 Ricky Swearingin was found guilty of manslaughter in connection with the death of Larry Brown and received a sentence of two years.
The amended information against defendant, upon which the instant case was tried, in addition to alleging a prior conviction, charged the defendant with the murder of Larry Brown. That information is the only one shown in the instant record. The original information filed against the two defendants is not shown and this record does not contain any portion of the proceedings in the case against Ricky. Defendant's trial took place in January 1977.
*353 Defendant's brief contained six "points relied on." In the argument portion of his brief under four of those points, defendant makes repeated references to Ricky's case and alleged happenings therein. Only Ricky's conviction of manslaughter and his sentence of two years therefor are supported by this record. Defendant alludes, however, to other features of Ricky's case, none of which is shown in this record. Those features include pleadings, evidence, instructions and arguments of counsel.
Defendant's brief says that "the central issue in this appeal is the state's improper conduct in attempting to convict defendant of the crime committed by Ricky." Seeking to invoke the doctrine of res judicata, defendant argues that the degree of the offense of which Ricky was convicted, the length of Ricky's sentence, and the unsubstantiated happenings in Ricky's case all have controlling effect upon the state's case against defendant. Defendant suggests that this court "call up the file" in Ricky's case in order to verify defendant's assertions of what took place in those proceedings.
Rule 84.03 provides, in part, that this court "may of its own motion, at any time, require the clerk of the trial court to send up a complete transcript or any portion thereof or any original documents or exhibits." In State v. Collett, 526 S.W.2d 920, 927-929 (Mo.App.1975) the defendant filed a motion asking the court of appeals to order the clerk of the circuit court to send up the record in a case against a fellow criminal. The court denied the motion and held that Rule 84.03 did not authorize its sustention. The court said, at p. 929, "[Rule 84.03] authorizes us to require the clerk to send up a complete transcript or a portion thereof or any original documents or exhibits in the case tried before the circuit court and does not authorize us to order up any and all matters that may have some relation to the cause on appeal." (emphasis added) On the same page the court said, "We may consider only those matters presented on the record made in the lower court."
In addition to the foregoing procedural obstacle confronting defendant, there are deeper and more compelling reasons for rejecting his contention that various aspects of the case against Ricky have controlling effect upon this case.
The evidence in the case at bar showed that defendant and Ricky jointly participated in the barroom brawl during the course of which Larry Brown was fatally stabbed. Although there was evidence offered by the defendant showing that Ricky, rather than defendant, was the man who fought Brown, the state's evidence was overwhelmingly to the effect that defendant alone was Brown's assailant and that it was defendant, and not Ricky, who inflicted the mortal wound. One witness testified that he knew defendant fought Brown and that he thought Ricky did so.
In support of his assertion that Ricky's conviction of manslaughter is a bar to defendant's conviction for a higher degree of homicide, defendant relies upon res judicata. Such reliance is unwarranted for the reason that defendant was not a party to the separate trial against Ricky and was in no way affected by the judgment and sentence therein. State v. Couch, 341 Mo. 1239, 111 S.W.2d 147, 150[9-11] (1937); State v. Bradley, 361 Mo. 267, 234 S.W.2d 556, 558[2-4] (Mo.1950). See also State v. Aubuchon, 381 S.W.2d 807, 815[14-17] (Mo. 1964).[2] A judgment in a criminal case operates *354 as res judicata in a second criminal case only where the parties to both proceedings are identical. United States v. Musgrave, 483 F.2d 327, 332[2, 3] (5th Cir. 1973); Smith v. United States, 243 F.2d 877 (6th Cir. 1957); Anno. 9 A.L.R. 3d 203, 218 (Res JudicataCriminal Cases). It is also true that defendant was not placed in jeopardy by the conviction of his co-perpetrator Ricky. United States v. Coppola, 526 F.2d 764, 776[19] (10th Cir. 1975).
In State v. Couch, supra, one DeMore pleaded guilty to a murder charge and was sentenced to the penitentiary. Later defendant was charged with the same offense. The state's evidence showed that only one person committed the offense. Defendant relied upon DeMore's conviction to bar his own. In rejecting that contention the court said, at 111 S.W.2d p. 150, "The conviction of DeMore for the offense charged could not be pleaded in bar by appellant, because appellant was not a party to that prosecution and was in no way affected by that judgment. Whether DeMore was rightfully or wrongfully convicted was no concern of appellant's." The court also said, "The issue before the court and jury was the guilt or innocence of appellant and not of DeMore."
In State v. Bradley, supra, defendant was convicted of murder in the first degree. Co-perpetrators of the same murder, prosecuted in separate cases, were convicted of murder in the second degree. The court rejected defendant's contention that the degree of the crime for which his co-perpetrators were convicted was res judicata in his case. The court said, at 234 S.W.2d p. 558, "Defendant-appellant was not a party defendant in the [co-perpetrators'] cases . . The disposition of [the co-perpetrators' cases] to which he was not a party, was of no concern to defendant herein." (emphasis in original) The court also held that the judgments in the co-perpetrators' cases "could not have been pleaded in bar by defendant, nor was evidence of the disposition of those cases admissible in the instant case."
Although defendant does not specifically refer to the doctrine of "collateral estoppel," it is clear from his brief's general tenor that he is advancing that theory in support of his claim that certain aspects of the proceedings against Ricky affect the case at bar.
"`Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." (emphasis added) Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 1194, 25 L. Ed. 2d 469, 475 (1970).
The doctrine of collateral estoppel, as it pertains to criminal cases, was discussed at length by the Supreme Court of Pennsylvania in Com. v. Brown, 375 A.2d 331 (Pa. 1977). Citing numerous authorities[3] from many jurisdictions, the court said, at p. 334:
"Collateral estoppel principles may be applicable in some criminal cases as well as civil cases, but the scope of the doctrine as applied in criminal cases is not coextensive with that applied in civil cases, particularly where, as here, collateral estoppel is invoked on behalf of a defendant who was not a party to the prior adjudication. See generally Annot., 9 A.L.R. 3d 203 (1966). Traditionally, collateral estoppel has been limited by, inter alia, the rule of mutuality; that is, collateral estoppel does not operate unless the party seeking to take advantage of it would have been likewise bound by an adverse judgment in the prior adjudication. In the context of civil litigation, this mutuality requirement has been eroded in recent years and the modern trend has been for courts to abandon it. . . . In the context of criminal litigation, however, the *355 concept of mutuality has retained its vitality. Collateral estoppel has generally been applied only in those criminal cases involving defendants who were parties to the prior adjudication. . . . The majority rule remains that a judgment of acquittal of one criminal defendant does not prevent the relitigation of an issue or controversy in the prosecution of another criminal defendant, even though the same transaction is involved." (emphasis added)
This court concludes that the separate proceedings against Ricky have no effect upon the instant case and that defendant's reliance upon the doctrines of res judicata, double jeopardy, and collateral estoppel is not justified. Accordingly, the following discussion of defendant's points lays aside those arguments of defendant which are based on what he claims to have transpired in Ricky's case.
Defendant's first point is that the trial court erred in overruling defendant's motion for acquittal, offered at the close of the state's evidence and renewed at the close of all the evidence, for the reason that "the verdict is against the weight of the credible evidence." The state's evidence justified the jury in finding that the defendant, unprovoked by the victim, stabbed him with a knife and thereby intentionally caused his death. Moreover, it is not the function of this court to determine the credibility of the witnesses or to weigh the evidence. State v. Small, 423 S.W.2d 750, 751[2] (Mo.1968); State v. Berry, 526 S.W.2d 92, 95[3] (Mo.App.1975). Defendant's first point has no merit.
Defendant's second point is that the trial court erred in overruling defendant's motion to reduce the charge against defendant from second degree murder to manslaughter. The sole ground on which this alleged error is predicated is that Ricky was previously convicted of manslaughter and thus, says defendant, he could not be convicted of a higher degree of homicide. This point is without merit as demonstrated by the authorities discussed prior to the statement of defendant's first point.
Defendant's third point is that the trial court erred in failing "to instruct on Assault with Malice Aforethought (MAI-CR 6.22) or Assault Without Malice Aforethought (MAI-CR 6.24) or Common Assault (MAI-CR 6.26)." At the trial defendant did not request that any of the three mentioned instructions be given. During the instruction conference the court asked defendant's counsel if he wished any additional instructions and counsel replied, "No." The instant point was presented initially in the motion for new trial.
The state's evidence was to the effect that the defendant, unprovoked by the victim, stabbed him with a knife and thereby caused his death. The defendant's evidence, in essence, was that Ricky was the knife wielder and that defendant took no part in the brawl or in the fatal contest itself.
In State v. Gadwood, 342 Mo. 466, 116 S.W.2d 42 (1938) defendant was convicted of manslaughter for the killing of one Flacey. On appeal defendant assigned error in the trial court's failure to instruct on assault with intent to kill or do great bodily harm. Defendant relied upon two statutes which are now § 556.220 and § 556.230.
At p. 55[19] the court said:
"But in spite of these statutes [§ 556.220 and § 556.230] appellant's contention is untenable because of another statute which has been in the books for more than 100 years, Section [556.160] providing that: `No person shall be convicted of an assault with an intent to commit a crime, or of any other attempt to commit any offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt.' The words in the statute `when it shall appear' do not mean when it shall appear conclusively or without dispute; they mean when it shall appear from substantial evidence." (emphasis added)
On the following page the court said:
"[I]t indicates the purpose of [§ 556.160]. Construed with sections [§ 556.220 and *356 § 556.230], supra, the three statutes evidently mean that if substantial evidence shows the crime charged was consummated the defendant cannot be convicted of a mere attempt. He cannot go to the jury on a charge so light in the face of a prima facie case showing the graver offense was committed; but if the State's evidence fails to establish commission of the crime and does show an attempt thereto the jury may convict on the latter theory under the original charge without the necessity of instituting a new proceeding. In the instant cause the State made a prima facie case of murder. That being so, the appellant was not entitled to an instruction on felonious assault." (emphasis in original)
Defendant's third point has no merit; State v. Gadwood, supra; see also State v. Villinger, 237 S.W.2d 132, 135[8-9] (Mo. 1951); State v. Adams, 380 S.W.2d 362, 370[18] (Mo.1964); State v. Charles, 537 S.W.2d 855, 856[1-3] (Mo.App.1976).
Defendant's fourth, fifth and sixth points are presented without citation of authorities and thus each fails to meet the requirements of Rule 84.04(d).
Defendant's fourth point is that the trial court erred in giving, over the objection of defendant, Instruction No. 7 (MAI-CR 2.10). Defendant claims that the instruction is not supported by the evidence but this court's review of the record discloses that the instruction was properly given and is not subject to the complaint defectively advanced. See State v. Connell, 523 S.W.2d 132, 136[3, 4] (Mo.App.1975); State v. Mandina, 541 S.W.2d 716, 719[4] (Mo.App.1976).
Defendant's fifth point is that the trial court erred in refusing to receive evidence of Ricky's conviction. This was error, argues defendant, because (a) once it had been determined at Ricky's trial that Ricky was "the actual killer of Larry Brown" it was improper "to keep that information from the jury and allow the state to infer (sic) that Jackie was the actual killer" and (b) the state shifted its position from arguing that Ricky was the actual killer to arguing that Jackie was the actual killer.
The court did not err in refusing to receive evidence of the fact of Ricky's conviction. State v. Dunn, 116 Iowa 219, 89 N.W. 984, 986[9] (1902);[4]Martin v. State, 151 Tex. Crim. 212, 206 S.W.2d 254, 255[3] (1947), 22A C.J.S. Criminal Law § 784, p. 1191. See also State v. Aubuchon, 381 S.W.2d 807, 815[14-17] (Mo.1964), quoted in footnote 2. Ricky did not testify, so the use of his conviction for impeachment is not involved. Defendant was, of course, permitted to introduce evidence that Ricky, and not Jackie, was the knife wielder and he did so. Reason (a) has no merit. There is nothing in the instant record to show a factual basis for reason (b). Defendant's fifth point has no merit.
Defendant's sixth point is that the trial court committed error in replacing a venireman, successfully challenged for cause, with another venireman. This court has made a gratuitous examination of that portion of the record dealing with the incident and no error appears. See State v. Henson, 552 S.W.2d 378, 381[7] (Mo.App. 1977).
The judgment is affirmed.
All concur.
NOTES
[1] Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.
[2] "We have held that it is error to show in evidence or to tell the jury that a jointly accused defendant has been convicted or has pleaded guilty. State v. Mull, 318 Mo. 647, 300 S.W. 511; State v. Stetson, Mo., 222 S.W. 425; State v. Castino, Mo., 264 S.W.2d 372; and see 2 Wharton Cr.Evi. (12th Ed.) § 439, p. 215. So, also, have we held that evidence of the acquittal of one jointly accused is improper. State v. Recke, 311 Mo. 581, 278 S.W. 995, 1000; State v. Brown, 360 Mo. 104, 227 S.W.2d 646, 653. Were this not the law, the value of a defendant's right to a separate trial under § 545.880 and Rule 25.07 might be considerably dissipated. The theory of our statute abolishing the distinction between principals and accessories, § 556.170, is that every defendant who joins in the commission of a crime is liable, on his own, as a principal; but he is also entitled to be tried on his own without having his guilt prejudged by what has happened to his co-defendant." (emphasis in original) State v. Aubuchon, supra, at p. 815.
[3] The authorities cited include State v. Bradley, 234 S.W.2d 556 (Mo.1950) discussed earlier in this opinion.
[4] "The defendant was not allowed to prove the conviction of Gray under this same indictment. It is very evident that it would have been error for the court to allow the state to show such conviction as a reason why the defendant should be convicted, and, if Gray had been acquitted, we hardly think counsel would claim such acquittal competent evidence of the innocence of his client. Upon what theory, then, evidence of Gray's conviction was competent in behalf of the defendant, we do not see. The jury in this case could not retry Gray's case, and determine whether he was rightly or wrongly convicted; and unless they could do this, and then distinguish between the two cases, the offered evidence would not be competent." State v. Dunn, supra, at p. 986. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/993276/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
M. A. BRYANT; VIVIAN BRYANT,
Plaintiffs-Appellants,
v.
No. 96-1161
UNITED STATES OF AMERICA; FARMERS
HOME ADMINISTRATION,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James C. Turk, District Judge.
(CA-91-145-A, BK-91-215-A)
Submitted: August 5, 1997
Decided: October 14, 1997
Before HALL and MURNAGHAN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Robert T. Copeland, COPELAND, MOLINARY & BIEGER, Abing-
don, Virginia, for Appellants. Robert P. Crouch, Jr., United States
Attorney, Julie C. Dudley, Assistant United States Attorney, Roa-
noke, Virginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellants, M. A. and Vivian Bryant, appeal from the district
court's order granting summary judgment for the United States in the
Bryants' civil action alleging that the Farmers Home Administration
(FmHA) discriminated against them on the basis of their status as
bankruptcy debtors when the FmHA denied their application for a
loan and denied their request for a release of their debt as to a tract
of land. We affirm.
This action originated in the bankruptcy court with the Bryants'
complaint which claimed that the United States by its agency, the
Farmers Home Association, violated the Bankruptcy Code's anti-
discrimination provision of 11 U.S.C.A. § 525(a) (West Supp. 1997).
The Bryants alleged that Robert Munsey and Harry Fleming, employ-
ees of the FmHA, improperly initiated an investigation into the dispo-
sition of property not included in the FmHA security interest, denied
their application for a rural housing loan, and failed to properly stake
out and have appraised a parcel of land the Bryants sought to use to
obtain a Veteran's Administration loan. The district court withdrew
the reference of this case from the bankruptcy court, and after a hear-
ing on the United States' motion, the district court granted summary
judgment in favor of the United States against the Bryants' claims.
Section 525(a) of the Bankruptcy Code provides:
a governmental unit may not deny, revoke, suspend, or
refuse to renew a license, permit, charter, franchise, or other
similar grant to, condition such a grant to, discriminate with
respect to such a grant against . . . a person that is or has
been a debtor under this title . . . solely because such bank-
rupt or debtor is or has been a debtor under this title.
2
11 U.S.C.A. § 525(a). This section does not prohibit governmental
units from making credit decisions on the basis of a prior discharge
in bankruptcy. See In re Goldrich, 771 F.2d 28, 30 (2d Cir. 1985)
("[S]ection 525 does not promise protection against consideration of
the prior bankruptcy in post-discharge credit arrangements."); United
States v. Cleasby, 139 B.R. 897, 899-900 (W.D. Wis. 1992)
("Applications for credit are distinct from applications for a `license,
permit, charter, franchise, or other similar grant.'"). Rather, in deter-
mining whether to provide credit, consideration of the bankruptcy dis-
charge "does not violate § 525(a) to the extent that the decision is part
of an overall evaluation of purely economic criteria, such as future
financial responsibility." Cleasby, 139 B.R. at 900 (citing 3 Collier on
Bankruptcy at ¶ 525.02 (Lawrence P. King ed., 15th ed. 1991)).
All the evidence in the record supports the FmHA's contention that
the loan was denied, not because of the Bryants' bankruptcy, but
because of their lack of ability to repay the loan and their past credit
history based on a credit report. On appeal, the Bryants argue that
summary judgment was improper because the loan committee consid-
ered amounts that the Bryants owed under the bankruptcy plan and in
deciding whether to issue the loan FmHA employees used a credit
report, which included items covered by the bankruptcy filing. How-
ever, because the determination of whether to extend credit is not an
application for a "license, permit, charter, franchise, or other similar
grant," the FmHA's consideration of the Bryants' ability to repay and
their past credit history does not implicate 11 U.S.C.A. § 525(a). See
Cleasby, 139 B.R. at 900.
As to the Bryants' claim of discrimination with respect to their
request for the partial release of the lien on a parcel of the land, the
United States presented evidence that the amount the Bryants offered
for the property was well below the appraised value and that the Bry-
ants took no further action upon being so informed. The Bryants
failed to present any evidence to refute the United States' evidence.
See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986) (party opposing motion must come forward with some
minimal facts to show that summary judgment not warranted.).
Because the Bryants failed to present any evidence in support of
their claims of discrimination on the basis of their bankruptcy status
3
with respect to the rural housing loan or the Veterans Administration
loan, we affirm the district court's order granting summary judgment
for the United States. Having previously granted the parties' joint
motion for a decision on the briefs, we dispense with oral argument.
AFFIRMED
4 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/510043/ | 853 F.2d 1130
47 Fair Empl.Prac.Cas. 845,47 Empl. Prac. Dec. P 38,245, 57 USLW 2146,26 Fed. R. Evid. Serv. 816
James MULLEN, Plaintiff-Appellant,v.PRINCESS ANNE VOLUNTEER FIRE COMPANY, INC., a MarylandCorporation, Defendant-Appellee.
No. 87-1198.
United States Court of Appeals,Fourth Circuit.
Argued June 8, 1988.Decided Aug. 9, 1988.
Peter Brandon Bayer (Susan Goering, American Civil Liberties Union of Maryland, C. Christopher Brown, Brown & Goldstein, Baltimore, Md., on brief), for plaintiff-appellant.
James J. Doyle, Jr. (Mary R. Craig, Doyle & Langhoff, Baltimore, Md., on brief), for defendant-appellee.
Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, WILKINSON, Circuit Judge, and BUTZNER, Senior Circuit Judge.
WILKINSON, Circuit Judge:
1
James Mullen appeals from a jury verdict in favor of the Princess Anne Volunteer Fire Company in his suit alleging racial discrimination in the company's membership policies. Mullen's principal challenge is to the district court's exclusion of evidence that members of the company routinely used racial slurs and epithets. We agree with Mullen that the district court should have admitted evidence that racial slurs were used by those making the membership decision. See Fed.R.Evid. 403. In the specific circumstances of this case, however, the evidence supporting the jury's verdict is such that exclusion of the evidence did not affect the substantial rights of the parties. See Fed.R.Civ.P. 61. For this reason, and because Mullen's other assignments of error are without merit, we affirm the judgment of the district court.
I.
2
The defendant, Princess Anne Volunteer Fire Company, is the sole provider of fire-fighting services in Princess Anne, Maryland. In 1986 the company answered approximately 150 fire calls and 700 ambulance calls. Membership is voluntary, and the members of the company receive no compensation for their work.
3
In order to qualify for membership in the company, an applicant must be between 18 and 45 years old, reside within a two mile radius of the firehouse, and receive the recommendations of two current members of the company. Members, with the exception of those who have served over twenty years, are required to attend at least fifty percent of company meetings, and to respond to at least thirty-five percent of emergency calls. New applicants must initially seek to become probationary members, and must complete a training course during the probationary year. In order to be accepted for probationary membership, an applicant must receive the affirmative votes of seven-eighths of the firefighters voting on the application. A seven-eighths vote is similarly required to move from probationary to active status, to become an honorary member, and for expulsion of a member.
4
Prior to this litigation, there had never been a black member of the company. Plaintiff James Mullen, who is black, applied for membership in December 1985. The controversy centered on his physical capacity to perform the job. Mullen had a history of back problems. He was listed by the Veterans Administration as sixty percent permanently disabled and forty percent temporarily disabled, and received $1,500 monthly in disability benefits. Mullen displayed Disabled American Veteran license tags on his car and parked in handicapped parking spaces. For the past ten years, Mullen had been pursuing a college degree, and worked only sporadically. He had not performed any physical labor since 1968 or 1969. Mullen was well known in the small (approximately 1,500 residents) community, as he had been a plaintiff in two civil rights suits against the town and county and run for a seat on the town council.
5
Mullen's application to the company was sponsored by two current members, as was required by the company bylaws. In response to a question on the application form, Mullen stated that he had no physical disability that would prevent him from performing the duties of a firefighter. Mullen was interviewed by a committee of three company members, and again stated that his disability would not interfere with his ability to fight fires. The company membership considered Mullen's application on February 20, 1986. It rejected him by a secret ballot vote of 27 to 0 with 5 abstentions.
6
After his rejection by the company, Mullen brought this case under 42 U.S.C. Secs. 1981, 1982, and 1983, seeking damages, injunctive, and declaratory relief. The case was tried before a jury in June, 1987. Mullen presented testimony to the effect that there was an atmosphere of racial hostility in the town, and that the fire company had a reputation for racial prejudice. Although two black witnesses testified that they felt they had been discouraged from applying years earlier, only Mullen testified that he had actually applied and been rejected. Mullen's attorney questioned numerous members of the company with regard to their motivations in rejecting Mullen's application. The district court judge ruled, however, that Mullen could not question the members as to their use of racial slurs and epithets such as "nigger." In support of this line of questioning, Mullen proffered numerous excerpts from depositions in which members of the company stated that they used terms such as "nigger" to describe black persons and had heard other members use such terms.
7
At the close of Mullen's evidence, the district court dismissed his Sec. 1982 claim. At the close of the entire case, the district court dismissed Mullen's claim for punitive damages. The remainder of the case went to the jury, which returned a verdict in favor of the company on June 19, 1987. Mullen moved for injunctive relief requiring the company to take steps to remedy the lack of minority membership despite the verdict against him. The district court denied this motion. Mullen appeals.
II.
8
Mullen's main contention on appeal is that the district court erred in excluding evidence that members of the Fire Company used racial slurs. We agree. Where a plaintiff alleges discrimination in a hiring or membership decision, the plaintiff must show that racial animus was a motivating factor in the decision. See General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 382-91, 102 S.Ct. 3141, 3145-50, 73 L.Ed.2d 835 (1982). The use of racially offensive language by the decisionmaker is relevant as to whether racial animus was behind the membership decision, and was proper evidence for the jury to consider.
9
Evidence is "relevant" if it has "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. Use of racial aspersions obviously provides an indication that the speaker might be more likely to take race into account in making a hiring or membership decision. The probative value of this evidence is apparent from the nature of the words involved. Representative is the deposition testimony of Roger Garner, who when asked what term he used to refer to blacks stated: "it's the regular thing, a nigger." The user of such terms intends only one thing: to degrade those whom he describes in the most offensive manner. General use of these words, though obviously not conclusive evidence that a particular decision was made with racial animus, is clearly relevant to determining whether it was. It would be ironic indeed to conclude that use of the language of prejudice is irrelevant in a civil rights suit. Racial slurs represent the conscious evocation of those stereotypical assumptions that once laid claim to the sanction of our laws. Such language is symbolic of the very attitudes that the civil rights statutes are intended to eradicate.
10
The company argues that, even if the evidence was relevant, the district court's exclusion should be affirmed on the basis of Fed.R.Evid. 403. Rule 403 allows the district court, in its discretion, to exclude evidence that is relevant, "if its probative value is substantially outweighed by the danger of unfair prejudice." Review of the exclusion of racial slurs thus entails a dual inquiry. We must first look to the probative value of the evidence on the question of racial animus, and then examine the possibility that the evidence will cause unfair prejudice to the defendant.
11
Where a plaintiff seeks to prove discriminatory intent, the probative value of statements revealing the racial attitudes of the decisionmaker is great. This is so because of the inherent difficulty of proving state of mind. As the Supreme Court has noted, "[t]here will seldom be 'eyewitness' testimony as to the employer's mental processes." United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). Racial statements uttered by those responsible for the hiring decision may be indicative of such processes. See Wilson v. City of Aliceville, 779 F.2d 631 (11th Cir.1986); Miles v. M.N.C. Corp., 750 F.2d 867 (11th Cir.1985) (both reversing exclusions under Rule 403 of evidence that decisionmakers used racial slurs); see also Bell v. City of Milwaukee, 746 F.2d 1205, 1275 (7th Cir.1984) (evidence of police officer's racist comments probative and admissible under Rule 403 for showing racial animus, in civil rights suit brought by black shooting victim). This court has also recognized that racial statements may be important evidence of discriminatory intent. See Abasiekong v. City of Shelby, 744 F.2d 1055, 1058 (4th Cir.1984).
12
The principle is well-established that prior acts and statements should be admitted where necessary to show state of mind. This is the policy reflected in Fed.R.Evid. 404(b), under which evidence of prior bad acts which would otherwise be inadmissible may be introduced to show intent, motive, knowledge, and the like. Admission of such evidence under Rule 404(b) is of course subject to the balancing analysis of Rule 403, see, e.g., United States v. Beahm, 664 F.2d 414, 417 (4th Cir.1981), but the potential importance of evidence showing state of mind is properly weighed in the balance. Thus in Roshan v. Fard, 705 F.2d 102 (4th Cir.1983), the court reversed the exclusion under Rule 403 of the plaintiff's prior narcotics conviction in his action for assault against a police informant. Despite the potential of such evidence for unfair prejudice, the court held that the evidence of the conviction, in which the informant participated, must be admitted on the issue of the plaintiff's motives in the altercation. Id. at 105; accord Bowden v. McKenna, 600 F.2d 282 (1st Cir.1979).
13
The company, however, argues that these cases are inapposite, and that exclusion of the racial statements here was proper, because the statements were not directly connected to the plaintiff or the membership selection process. It points out that in Miles, supra, the racial statements pertained to the hiring process, and in Wilson, supra, referred to the plaintiff himself. It is true that the statements by the ten firefighters indicated only generally that they resorted to terms of racial opprobrium or heard other members of the company use them. We reiterate, however, that the value of these statements in revealing state of mind may still be significant despite the fact that the statements did not relate to the specific decision at issue. Cf. Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1423 (7th Cir.1986) (evidence of past racial statement and incidents of harassment unrelated to specific disputed action properly admissible to show racial attitudes). Indeed, the company's contention goes more to the weight that the jury might give to the evidence than to its admissibility. A defendant would always be free to argue to the jury that the general use of racial epithets was no indication of the attitude with which it approached a particular minority application.
14
Rule 403 simply erects no per se barrier to the introduction of customary mannerisms of speech that may shed light on the motives of a contested decision. Such evidence may be the only way in which discriminatory attitudes are revealed, for statements of racial animosity may remain absent from official channels, only to emerge in a more colloquial context. We decline to discount the probative value of a decisionmaker's speech in an unofficial capacity, for it is open to the jury to conclude that the manifestation of racially discriminatory attitudes cannot be rigidly compartmentalized.
15
The company contends that the "danger of unfair prejudice" nonetheless supports the exclusion of the firefighters' use of the term "nigger." The company does not specify the nature of the "unfair prejudice" that it claims. An objection to the "prejudice" to the company's case if the jury were to believe the use of racial slurs makes it more likely that a decisionmaker harbors discriminatory intent is obviously without merit. All relevant evidence is "prejudicial" in the sense that it may prejudice the party against whom it is admitted. Rule 403, however, is concerned only with "unfair" prejudice. That is, the possibility that the evidence will excite the jury to make a decision on the basis of a factor unrelated to the issues properly before it. See, e.g., Pine Crest Preparatory School, Inc. v. Phelan, 557 F.2d 407, 409 (4th Cir.1977); 1 J. Weinstein & M. Berger, Weinstein's Evidence p 403 (1986).
16
The emotional content of the proffered evidence fails to support its exclusion. Testimony concerning racial remarks is certain to be emotionally charged. The emotional content of evidence, however, can "require exclusion only in those instances where the trial judge believes that there is a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence." Morgan v. Foretich, 846 F.2d 941-945 (4th Cir.1988). We are not convinced that the jury would have been unable properly to consider the evidence of racial statements. The district court might have issued a cautionary instruction to the effect that the racial statements were only to be considered on the question of discriminatory intent in Mullen's particular case, but the outright exclusion of the evidence was improper.
17
The source of the emotional reaction that the company fears illustrates why the danger of "unfair" prejudice is not so substantial as to outweigh probative value here. Words produce emotion as a result of the ideas they represent. The epithets involved here are offensive precisely because they convey the idea of racial bigotry. Whatever hostility a juror hearing the use of these epithets would feel results from a belief that the words reveal a discriminatory outlook. The emotional reaction claimed to be unfairly prejudicial is thus closely tied to the inquiry into state of mind that is specifically required by Sec. 1981. A juror may well disapprove of one who harbors discriminatory intent, yet this disapproval may be directed to a proper element of the controversy.
18
Jury trials are not antiseptic events, and in a case involving racial discrimination, upsetting facts may well emerge. The general policy of the Federal Rules, however, is that all relevant material should be laid before the jury as it engages in the truth-finding process. See generally 1 Weinstein's Evidence, supra, at 403-46 to 403-50. For this reason, in reviewing a decision under Rule 403, the court must "look at the evidence in a light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect." Koloda v. General Motors Parts Division, 716 F.2d 373, 377 (6th Cir.1983). We are mindful, of course, that the discretion of the district court in rulings under Rule 403 is very broad and that the Rule is not amenable to an appellate blueprint. See, e.g., Estate of Larkins v. Farrell Lines, Inc., 806 F.2d 510, 515 (4th Cir.1986). On the other hand, courts are obligated to use the power conferred by Rule 403 sparingly, and to remember that the Federal Rules favor placing even the nastier side of human nature before the jury if to do so would aid its search for truth.
19
We hold therefore that Mullen presented evidence from which a reasonable juror could have concluded that racial slurs and epithets were an aspect of everyday conversation at the firehouse among the very members who voted on his application. The jury was entitled to consider this evidence in reaching a decision in the case.
III.
20
Despite our finding of error, on the singular facts presented in this case we decline to disturb the judgment entered on the jury's verdict. The erroneous exclusion of evidence is not cause for reversal unless a refusal to reverse the verdict below would be "inconsistent with substantial justice." We must therefore disregard any error that did not "affect the substantial rights of the parties." Fed.R.Civ.P. 61; 28 U.S.C. Sec. 2111. A decision not to reverse the judgment below on this basis "affects only the party litigants by avoiding an unnecessary remand." Troy v. City of Hampton, 756 F.2d 1000, 1010 (4th Cir.1985) (Ervin, J., dissenting). While the exclusion of probative evidence is not to be lightly disregarded, it is clear that the jury's verdict was supported by overwhelming evidence that Mullen was not physically suited to be a firefighter. We are not persuaded that the admission of the contested evidence would have produced any different result.
21
The evidence as to Mullen's disability was abundant. Mullen was rated by the Veteran's Administration as sixty percent totally disabled and forty percent temporarily disabled. As a result of his one-hundred percent physical disability, Mullen was receiving $1,500 in monthly disability benefits. Mullen had been unemployed for long periods of time, and testified that he had done no physical labor since 1968 or 1969, the time of his last back operation. Mullen himself testified that doctors may have advised him that he was permanently unable to perform physical labor. The record is also replete with evidence that Mullen's disability, although not the specifics of his condition, was well-known in Princess Anne generally, and to members of the company.
22
Extensive evidence in the record serves only to confirm a fact that is self-evident--firefighting is strenuous, hazardous, demanding work. Members of the company testified that they must wear heavy protective gear in fighting fires, and are often required to lift heavy loads. Dependable firefighting services are crucial to the public, and the danger involved in the work requires that each firefighter be confident in the abilities and stamina of his fellow workers. Firefighting is simply a job for which physical fitness is a most basic qualification.
23
Review of a judgment for the effect of an evidentiary error is not to be divorced from common sense. Any realistic view of the firefighter's task could leave no doubt that it is ill-suited to an applicant who is one hundred percent disabled due to a back injury. Cf. Smith v. Olin Chemical Corp., 555 F.2d 1283, 1286-88 (5th Cir.1977) (en banc) (holding in a Title VII disparate impact case that the requirement of a healthy back is so manifestly related to performance of certain employment that employer need not prove "business necessity"). This is the reality reflected in Sec. 504 of the Rehabilitation Act, under which applicants must be "otherwise qualified" to perform the work they seek in order to come within the Act's provisions. See 29 U.S.C. Sec. 794; Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979) (in order to be otherwise qualified, applicant must be able to meet all of the program's requirements in spite of his handicap). Some conditions simply are not compatible with certain lines of work. Cf. Forrisi v. Bowen, 794 F.2d 931 (4th Cir.1986) (applicant with acrophobia not otherwise qualified to be a utility lineman). We are persuaded that the jury found Mullen's condition to be incompatible with firefighting.
24
Although the district court sustained numerous objections to Mullen's questions to firefighters on their use of racial epithets, the allegation of racial animus was squarely before the jury. Mullen presented general evidence of discrimination in the county and town, and repeatedly questioned company members about, for example, their membership in all-white organizations. He also presented evidence in an attempt to establish that the company's proffered reason for the rejection was a pretext. Likewise, as we have discussed, the company put on extensive evidence concerning Mullen's lack of qualifications. In short, the jury had before it an abundance of evidence from which it could answer the ultimate question in an employment discrimination case: "which party's explanation of the employer's motivation it believes." Aikens, 460 U.S. at 716, 103 S.Ct. at 1482.
25
Mullen's own post-trial motion for injunctive relief describes the answer to that question: "the jury has found that the Princess Anne Volunteer Fire Company (PAVFC) rejected Mr. Mullen's application due to his back condition rather than his race." However deficient the general membership practices at the firehouse, the jury verdict represented the fact that it is difficult to place those practices squarely before the court through the case of a plaintiff with so obvious a nonracial barrier to his application. The evidence firmly supported this verdict, and there is no reason to believe that letting the verdict stand would be "inconsistent with substantial justice." Fed.R.Civ.P. 61.
IV.
26
Mullen makes several additional challenges to the judgment below. He contends that the district court improperly allocated the burden of proof, and that the district court erred in not granting injunctive relief. Neither of these arguments provides a basis for disturbing the judgment.
A.
27
The district court allocated the burden of proof in this case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The Burdine standard was developed in the Title VII disparate treatment context, and is applicable to cases, such as suits under Sec. 1981 and Sec. 1983, where proof of discriminatory intent is required. See Gairola v. Commonwealth of Virginia Department of General Services, 753 F.2d 1281, 1285 (4th Cir.1985); Abasiekong v. City of Shelby, 744 F.2d 1055, 1058 (4th Cir.1984). The shifting burdens of production under this standard are well known, and we see no reason to repeat them here. See Burdine, 450 U.S. at 253-56, 101 S.Ct. at 1093-95.
28
In reviewing the district court's jury instructions, we note at the outset that the instructions were overly complex. The shifting burdens of production of Burdine are intended to aid the judge in organizing the evidence to be presented. They are beyond the function and expertise of the jury, which need never hear the term "prima facie case." See Nelson v. Green Ford, Inc., 788 F.2d 205, 207 (4th Cir.1986); Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st Cir.1979). Although the district court should have instructed the jury in a more simple fashion, it is clear that the charge in its totality sufficiently focused the eye of the jury on the finding it was to make. As the district court summarized its instructions, "The plaintiff must prove that the defendant intentionally discriminated against him because of his race." We see no flaw in the instructions that calls for reversal.
29
Mullen's first two specific challenges to the district court's instructions are similar. Under the Burdine analysis, the burden of persuading the trier of fact that the defendant's actions were motivated by unlawful discrimination remains at all times with the plaintiff. See Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. Mullen contends, however, that he has shown a "historic pattern" of discrimination. On this basis he argues first that the burden of proof should rest with the defendant to show by clear and convincing evidence that rejection of the plaintiff was not motivated by race, citing Evans v. Harnett County Board of Education, 684 F.2d 304 (4th Cir.1982) and Love v. Alamance County Board of Education, 757 F.2d 1504 (4th Cir.1985). See Keyes v. School District, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). In the alternative, Mullen contends that the burden of proof should properly be on the defendant to prove by a preponderance of the evidence that its action was not the product of racial animus, citing International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) and Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976).
30
These arguments share a common flaw: each of the decisions cited governs the allocation of the burden of proof in a specific situation where there has been a prior judicial finding of racial discrimination. Evans and Love shift the burden of persuasion where a plaintiff alleges discrimination by a school district that has previously been found to have intentionally discriminated in a substantial part of the system. Teamsters and Franks establish that where a court has found a pattern or practice of discrimination in a class pattern-or-practice suit, each member of the class is presumptively entitled to relief. Both the specialized contexts of school desegregation and the class pattern-or-practice suit are far different from that presented here. What is more, each of the cases Mullen cites involved a prior finding of intentional discrimination. Whether intentional discrimination has occurred is exactly the issue here.1 For these reasons, Mullen's reliance on these cases is misplaced.
31
In his third challenge to the district court's instructions, Mullen contends that the evidence of the decisionmakers' use of racial epithets which should have been admitted calls for a shift in the burden of persuasion. He argues that the slurs constitute direct evidence of discriminatory intent, and that where a plaintiff presents direct evidence of discriminatory intent that is believed by the factfinder the burden shifts to the defendant to show by a preponderance of the evidence that the same decision would have been reached absent the improper motive. Several circuit courts have advocated such a proof scheme in opinions reviewing Title VII bench trials. See, e.g., Hopkins v. Price Waterhouse, 825 F.2d 458, 470-471 (D.C.Cir.1987), cert. granted, --- U.S. ----, 108 S.Ct. 1106, 99 L.Ed.2d 268 (1988); Fields v. Clark University, 817 F.2d 931 (1st Cir.1987); Bibbs v. Block, 778 F.2d 1318 (8th Cir.1985) (en banc); Miles v. M.N.C. Corp., 750 F.2d 867 (11th Cir.1985).
32
Mullen's argument suffers from the same flaw that we have earlier discussed: it would inject needless complexity and potential confusion where simplicity is far more appropriate. Again we emphasize that in a jury trial where intentional discrimination must be proved, the best instruction for the jury is a straightforward explanation that the plaintiff must prove by a preponderance of the evidence that he was rejected because of his race. See Nelson, 788 F.2d at 207. The standard Mullen advocates would mire the court in the semantics of determining what evidence of discrimination is "direct" and what "indirect" or "circumstantial," and impose a further layer of complexity on the already confusing scheme of shifting burdens.
33
The Supreme Court has not suggested such an alteration of the well-established Burdine proof scheme, which was specifically developed for the employment discrimination context. In Aikens, for example, the Court noted that the plaintiff had introduced testimony that "the person responsible for the promotion decisions at issue had made numerous derogatory comments about blacks in general and Aikens in particular." 460 U.S. at 713-14 n. 2, 103 S.Ct. at 1480-81 n. 2. Yet the Court reiterated the applicability of the Burdine scheme in ordering the presentation of proof, and emphasized that the basic factual inquiry is "whether the defendant intentionally discriminated against the plaintiff." Id. at 715, 103 S.Ct. at 1482.2 Similarly, this court has employed the Burdine analysis whether a plaintiff brings direct or indirect proof of his claim of discrimination. See Abasiekong, 744 F.2d at 1058 (burden of persuasion remained with plaintiff who introduced evidence of racial slurs directed at him by decisionmaker). Of course, direct evidence of discrimination makes it more likely that the jury will find for plaintiff. Whether the plaintiff attempts to prove intentional discrimination by direct or indirect evidence, the "burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.
B.
34
Mullen's last contention is that the district court erred in not granting injunctive relief despite the fact that the jury found for the company on his discrimination claim. Specifically, Mullen requested that the district court impose specific recruitment goals, record-keeping requirements, reporting requirements, inspection rights for Mullen's attorneys, and that the court retain jurisdiction for five years for the purpose of monitoring the company. Mullen argues that he has shown a pattern of racial discrimination, and that where such a pattern is shown, the district court must enter injunctive relief despite the failure of the plaintiff's individual claim of discrimination. The district court denied injunctive relief on the grounds that Mullen had failed to prove a pattern of discrimination, and that injunctive relief was improper because Mullen would not in any event have benefited from the relief. See Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1136 (11th Cir.1984). Equitable relief is a discretionary remedy, and the district court did not abuse its discretion in denying Mullen's request.
35
For the foregoing reasons, the judgment of the district court is
36
AFFIRMED.
1
Even under the standard Mullen advocates, we cannot say that the record in this case mandates a finding that the company has engaged in a pattern of discrimination. Mullen presented general evidence of an atmosphere of racial tension in the town, and of a general reputation for racial hostility on the part of the fire company. It is also true that no black person had been a member of the company in the past. Mullen did not, however, present any specific evidence that other blacks had applied and been rejected. Rather, he produced general testimony from two persons who had years earlier asked for applications, but never pursued membership. Mullen's evidence thus differs from that traditionally used to show a pattern or practice of intentional discrimination. Cf. Teamsters, 431 U.S. at 338, 97 S.Ct. at 1856 (forty individual instances of discrimination in addition to statistical evidence); Chisholm v. United States Postal Service, 665 F.2d 482, 495 (4th Cir.1981) (testimony of twenty class members in addition to statistical evidence). It is clear that "proving isolated or sporadic discriminatory acts by the employer is insufficient to establish a prima facie case of a pattern or practice of discrimination." Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 875-76, 104 S.Ct. 2794, 2799-2800, 81 L.Ed.2d 718 (1984)
2
Mullen correctly quotes TWA, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985), as stating that "the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination." That case, however, involved an employment policy based on age which was "discriminatory on its face," not mere evidence tending to indicate a discriminatory motive. Unlike this case, it was not disputed that the employer had discriminated. The Thurston case turned on whether the discrimination was permissible under affirmative defenses provided by the Age Discrimination in Employment Act, and the quoted reference merely established that the defendant could not rely on a deficiency in the Burdine prima facie case to avoid being subject to the ADEA's standards | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1539823/ | 369 B.R. 644 (2007)
In re Richard C. SWEET, Jennifer L. Sweet, Debtors.
No. 03-24752 MER.
United States Bankruptcy Court, D. Colorado.
May 21, 2007.
*645 *646 Dan S. Hughes, Colorado Springs, CO, William A. Richey, Darrell G. Waas, Jeffrey Weinman, Denver, CO, for Debtors.
ORDER
MICHAEL E. ROMERO, Bankruptcy Judge.
THIS MATTER comes before the Court on the challenge by the Debtors, Richard and Jennifer Sweet (collectively the "Debtors") to the proof of claim filed by Joseph Pollack ("Pollack"). The Court has reviewed the testimony, the arguments of counsel and the legal authority cited by each party and makes the following findings of fact and conclusions of law.
JURISDICTION
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(a) and (b) and 28 U.S.C. § 157(a) and (b)(1). This is a core proceeding under 28 U.S.C. § 157(b)(2)(B) and (K), as it involves the allowance or disallowance of claims against the estate and the determination of the validity, extent, or priority of a lien.[1]
BACKGROUND FACTS[2]
On March 1, 1999, the Debtors and First Community Industrial Bank entered into a *647 Variable Rate Commercial Promissory Note (the "Note") in the original amount of $408,195. See Stipulation ¶ 1; Pollack Exhibit A. The terms of the Note provided the Debtors would make 359 payments of $3,814.11, beginning April 1, 1999 and continuing through March 1, 2029. The Note bore a minimum interest rate of 8.75% and a maximum interest rate of 16.75% and additionally provided for a default interest rate of 21%. The Note is secured by a deed of trust (the "Deed of Trust") on a 36-acre tract of land owned by the Debtors and located adjacent to real property owned by Pollack. See Stipulation ¶ 2; Pollack Exhibit D. The Note was subsequently transferred to SN Servicing Corporation ("Servicing").
On April 14, 2005, the Debtors filed their Second Amended Disclosure Statement and Second Amended Plan of Reorganization (the "Plan"). Approximately five months later, Servicing transferred the Note to Pollack, after which Pollack filed his objection to the confirmation of the Plan.
Thereafter, the Debtors filed two preconfirmation modifications to the Plan. The first modification changed the status of Pollack's claim from an impaired secured claim to an unimpaired secured claim and provided the claim would be paid in full.[3] The second modification was filed with the Court the day prior to the confirmation hearing and changed the effective date of the Plan to ninety days after the confirmation order became a final Order. Neither of the modifications resolved Pollack's objections.
On February 1, 2006, Pollack agreed to withdraw his objection and allow confirmation to occur, provided the Debtors agreed to a subsequent hearing concerning the value of his claim. Accordingly, the Court entered an Order confirming the Debtors' Plan and set a post-confirmation hearing consistent with the parties' agreement. On February 24, 2006, the Court held the hearing on Pollack's claim.
DISCUSSION
1. Entz-White and § 1123(d)
Generally, under the law of contracts, a party in breach or default of its contractual obligations does not have the right to rectify or cure its breach or default absent an express contractual provision permitting it to do so.[4] In Chapter 11 bankruptcy cases, however, debtors are authorized by statute to cure contractual defaults as one of several permissive steps *648 toward achieving plan confirmation.[5] Specifically, 11 U.S.C. § 1123(a)(5)(G)[6] states a proposed plan of reorganization shall provide adequate means for its implementation, such as the curing of any default. In this case, the crux of the dispute relates to whether Pollack is entitled to claim default interest, attorney's fees and late charges as part of the cure of the Note default.
The Debtors take the position that if a default is cured as part of a plan of reorganization, a debtor only has to pay interest on the outstanding obligation at the pre-default interest rate. In support of this argument, the Debtors rely on the holding of Great W. Bank & Trust v. Entz-White Lumber & Supply (Entz-White), 850 F.2d 1338 (9th Cir.1988). Pollack argues this holding is no longer valid as a result of the passage of the Bankruptcy Reform Act of 1994, which, in part, added a new provision dealing with "cures," § 1123(d). Thus, any analysis must begin with a brief examination of the interplay between Entz-White and § 1123(d).
In Entz-White, the debtor entered into a promissory note with Great Western Bank & Trust. The promissory note provided for interest at the prime rate plus 1.5%. The promissory note also provided a default rate of interest at 150% of the contract interest rate or 18%, whichever was greater. The promissory note matured without the debtor making full payment and instead the debtor filed for Chapter 11 bankruptcy. Thereafter, the debtor filed its plan of reorganization which provided that pursuant to § 1124(2)[7] the bank's claim was unimpaired as the bank was to be paid the principal amount of the loan and the nondefault interest rate of prime plus 1.5%. The bank objected and argued it was entitled to the 18% default rate which increased the amount owed on the promissory note approximately $190,000.
As part of its deliberations, the Ninth Circuit Court of Appeals referred to the then seminal case on cure, In re Taddeo, 685 F.2d 24 (2nd Cir.1982), for the proposition that while undefined by the Bankruptcy Code itself, "[c]uring a default commonly means taking care of the triggering event and returning to pre-default conditions. The consequences are thus nullified. This is the concept of `cure' used throughout the Bankruptcy Code." Entz-White, 850 F.2d at 1340 quoting Taddeo, 685 F.2d at 26-27. The Entz-White Court then held:
[B]y curing the default, Entz-White is entitled to avoid all consequences of the default-including higher post-default interest rates. This result is consistent *649 with the treatment by other courts of the Bankruptcy Code's cure provisions.
Id. at 1342. Several other courts have followed this rationale. See, e.g., In re Southeast Company, 868 F.2d 335, 337 (9th Cir.1989); In re Udhus, 218 B.R. 513, 516 (9th Cir.B.A.P.1998); In re Casa Blanca Project Lenders, L.P. (Casa Blanca), 196 B.R. 140, 143 (9th Cir.B.A.P.1996); In re Phoenix Business Park Ltd. Partnership, 257 B.R. 517, 519 (Bankr.D.Ariz. 2001); In re Johnson, 184 B.R. 570, 574 (Bankr.D.Minn.1995); In re 433 South Beverly Drive, 117 B.R. 563, 567 (Bankr. C.D.Cal.1990); In re Singer Island Hotel, Ltd., 95 B.R. 845, 848 (Bankr.S.D.Fla. 1989). To date, the Tenth Circuit Court of Appeals, whose decisions bind this Court, has been silent on this issue.
In contrast, Pollack argues § 1123(d)[8] is unambiguous and necessarily requires default interest must be paid as part of a § 1 124(2)(A) cure, notwithstanding prior judicial determinations to the contrary. Some courts have rendered opinions supporting such an argument. See, e.g., In re Hassen Imports Partnership, 256 B.R. 916, 924 n. 13 (9th Cir.B.A.P.2000) ("the future of [Entz-White ] is in doubt, as the 1994 amendments to § 1123 added subsection (d) to provide that the amount necessary to cure a default under a Chapter 11 plan shall be determined in accordance with the underlying agreement and applicable non-bankruptcy law."); Casa Blanca, 196. B.R. at 147 (discussing without determining whether Entz-White had been legislatively overruled); Southland Corp. v. Toronto Dominion, 160 F.3d 1054, 1059 n. 6 (5th Cir.1998) (Congress arguably rejected the Entz-White decision by adding § 1123(d) and deleting § 1124(3)); In re Bohling, 222 B.R. 340, 342 (Bankr.D.Neb.1998) (discussing the 1994 Bankruptcy Reform Act and § 1123(d), but determining the same did not apply to a Chapter 7 case). As with the previous issue, the Tenth Circuit Court of Appeals has yet to rule on this subject.
While on its surface Pollack's argument has some appeal, it contains a major flawnamely, what happens if § 1123(d) does not or cannot apply. Herein, an examination of the operative documents is illuminating. The Note only defines the rights of the lender upon default and contains no provision allowing the borrower to cure a default after it has occurred. See Pollack Exhibit A. Likewise, the Deed of Trust given as security for the Note also lacks any cure provisions. See Pollack Exhibit D. As for applicable nonbankruptcy law, Colorado statutory law allows for a cure of a default under a promissory note or deed of trust, if the underlying deed of trust is being foreclosed. See COLO.REV.STAT. § 38-38-104.[9] If no foreclosure has occurred *650 no other statutory or equitable right to cure a default exists in an action brought solely on a promissory, note See Smith v. Certified Realty Corp.; 41 Colo. App. 170, 585 P.2d 293, 294 (1978), aff'd, 198 Colo. 222, 597 P.2d 1043, 1044 (1979). There is no evidence in this case that a foreclosure proceeding has been initiated by Pollack. As a result, there is no contractual ability nor right under nonbankruptcy law which clarifies the amounts necessary to be paid to cure any Note defaults. Thus, in this case, it does not appear there is any basis for arguing that § 1123(d) abrogates the Entz-White line of cases.
However, even assuming Entz-White is still valid (and applicable in this Circuit), default interest may be allowable in certain circumstances. A bankruptcy court in Arizona addressed this issue in the case of In re Phoenix Business Park Ltd. (Phoenix), 257 B.R. 517 (Bankr.D.Ariz.2001). In Phoenix, the secured creditor argued under § 1123(d) default interest must be paid as part of any § 1124(2) cure. The Court, however, after analyzing § 365(b)(2)(D), a provision added at the same time as § 1123(d), and the legislative history of § 1123(d), determined congressional intent was squarely contrary to the secured creditor's argument and ultimately held:
Congress did not legislatively overrule Entz-White, that Entz-White remains good law in the Ninth Circuit and that, therefore, a debtor need pay interest only at the contract rate, and not the default rate, and need not pay late charges in order to effectuate a cure under § 1124(2).
Phoenix, 257 B.R. at 522.
Although the Arizona Bankruptcy Court was bound by Entz-White, the Court specifically noted, "[t]hus, if a default interest rate is a `penalty rate,' then it does not need to be paid as part of a section 1124(2) cure." Id. at 521. This language is significant because it suggests that even under the reasoning employed in Entz-White, if a default rate is not considered a penalty, default interest may nevertheless be appropriate to effectuate a § 1124(2)(A) cure. See Bruce H. White and William L. Medford, Assumption of Executory Contracts and Curing Defaults: In the Interest of Penalties, Am.Bankr.Inst.J. 28 (Oct.2002) ("Based on the Phoenix Business Park holding, a `default rate' is acceptable as long as it is not found by a court to be a penalty rate.").
In this case, the relevant terms of the Note provide,
DEFAULT RATE: In the event of a default under this Note, the Lender may in its discretion, determine that all amounts owed to Lender shall bear interest at the lesser of 21.00 [sic] or the maximum interest rate Lender is permitted to charge by law. (emphasis added).[10]
Pollack Exhibit A. Of even more critical importance in this case, the parties stipulated that in the event the Court determines default interest is acceptable, 21% default interest is reasonable.[11] Thus, as a result of this stipulation, the Court need not determine whether the default rate is a *651 penalty rate of interest as the argument was never raised and the rate was not challenged as such.
After reviewing the relevant legal authority noted above and the particular facts and circumstances herein, the Court finds, if a default exists in this case, default interest may be applied to the Note regardless of the applicability of Entz-White.
2. The Period During Which Default Interest Should Accrue
As indicated previously, in the event of a default, the terms of the Note specifically provide the Note holder may in its discretion determine all amounts due and owing bear interest at 21%. See Pollack Exhibit A. Pollack argues this language allows him retroactively to, apply the 21% default rate of interest to all unpaid balances on the Note beginning from the time the Debtors stopped making payments `on the Note, even though Pollack was not the holder of the Note at the time the payment default occurred.[12][13]
In contrast, the Debtors assert Servicing did not exercise its discretion to invoke any of the default provisions contained in the Note. Servicing transferred the Note to Pollack on or about September 15, 2005. In a letter written to Richard Sweet dated September 12, 2005 (the "Letter"), Servicing indicated the Total Payoff on the Note was $351,514.20 with a Per Diem rate of $75.43. See Debtors' Exhibit 5. Importantly, directly below the Total Payoff and the Per Diem is the statement, "[t]he current interest rate is 8.7500%. . . ." Thus, as of September 12, 2005, three days prior to Pollack's purchase of the Note, it does not appear Servicing had exercised its discretion under the terms of the Note to charge default interest on all unpaid amounts.
In addition to the Letter, Servicing had previously corresponded with Mr. Sweet (dated August 17, 2005), indicating the interest rate on the Note would increase from 8.75% to 9.5%. See Pollack Exhibit I. The increase in the interest rate is based on the terms of the variable rate Note and not upon any assertion of a default. Further, the Debtors produced an e-mail dated July 13, 2005, written by Dan Miller[14] and addressed to Pollack, indicating a payoff amount on the Note that was not calculated at a default interest rate.[15] Finally, on August 3, 2003, Servicing filed a proof of claim in this case. Significantly, the proof of claim provides a payoff figure of $345,587.78, plus arrearages bearing interest at 10.75%. See Debtors' Exhibit 6.
Notwithstanding the aforementioned documents, Pollack argues a default letter dated May 2, 2003, sent by Servicing to the Debtors, evidences Servicing had exercised *652 its discretion to charge default interest. See Pollack Exhibit G. The May 2, 2003 letter merely indicates, "[t]his letter is to inform you that your loan with us is in default . . ." Id. The remainder of the letter addresses arrears on property taxes and requests Mr. Sweet contact Servicing to discuss his intentions with regard to the account. Thus, contrary to Pollack's assertions, the letter does not evidence the exercise of any discretion to charge the default rate of interest or invoke any of the default provisions contained in the Note.
Pollack alternatively suggests the communications between Servicing and the Debtors are of little relevance in this case, because the terms of the Note provide the holder may invoke a default and the remedies attendant therewith, including default interest and late charges, without providing notice of default to the borrower. In this regard, the Note specifically provides,
RIGHTS OF LENDER ON DEFAULT: If there is a default under this Note, Lender will be entitled to exercise one or more of the following remedies without notice or demand (except as required by law).
Pollack Exhibit A. Therefore, Pollack argues the Note did not require Servicing nor himself to declare a default and demand default interest on the unpaid balance.
There was no evidence Servicing had ever expressed an intention to exercise its discretion to charge default interest. In fact, all of the evidence presented to the Court establishes Servicing neither intended to nor actually imposed default interest against the Debtor. Therefore, Pollack's alternative argument is unpersuasive. Accordingly, the Court finds Pollack may not retroactively substitute his discretion for that of Servicing in order to apply default interest to the May 2, 2003 letter when Servicing first noted a default in the Note.[16] The question remains, however, whether Pollack exercised his discretion to charge default interest from the time he purchased the Note.
As indicated previously, Pollack purchased the Note from Servicing on September 15, 2005. As a fallback position, Pollack asserts he is entitled to default interest from this time to the effective date of the Plan. Pollack directs the Court's attention to documents provided to him by his attorney Dan Miller indicating he relied upon the assumed fact he would be entitled to charge default interest, late charges and attorney's fees in deciding to purchase the Note. See Pollack Exhibit M. Additionally, Pollack testified he would not have purchased the Note for investment purposes or otherwise, had he not believed he was entitled to charge default interest, late charges and attorney's fees. Based on the evidence before it, the Court finds Pollack intended to charge default interest on the Note immediately upon acquiring the same, and is thus entitled to charge default interest on all amounts owed as of the time he purchased the Note on September 15, 2005. See Pollack Exhibit A.
Because the parties have stipulated the 21% default interest rate is reasonable, the Court need not address whether the rate is a penalty. See Phoenix, 257 B.R. at 522. Accordingly, the remaining issue is the amount of default interest the Debtors will be required to pay on the effective *653 date of the Plan. The parties have stipulated to the admission of Exhibit 10 providing such calculation. Therefore, the Court finds on the effective date of the Plan as provided for by the Debtors' Modification, Pollack is owed $282,064.70 which includes default interest on all items as limited by the above. This amount is payable pursuant to the terms of the confirmed Plan and the Modification made thereto and is included as part of the "cure" amount pursuant to § 1124(2)(A).
3. Damages under § 1124(2)(C)
Section 1124(2)(C) provides for Pollack to be compensated for "damages" incurred as a result of his reasonable reliance on either a contractual provision provided in the Note or the Deed of Trust or applicable law. What Congress intended by the term "damages" is unclear. See In re Rolling Green Country Club (Rolling Green), 26 B.R. 729, 733 (Bankr.D.Minn. 1982). However, "[t]he word `damages' must be given a meaning consonant with the overall thrust and meaning of the section within which it is contained." Id. The statute makes clear that any damages awarded under this subsection must be the result of a creditor's reasonable reliance on a contractual provision or applicable law.
In this case, the Debtors' Modification provides, in relevant part, the "Class 8 creditor shall be paid by the cure and deceleration of any default under the promissory note and payment in full of such amount plus any amount which the Class 8 creditor may be entitled to as damages under 11 U.S.C. § 1124(2)." Modification, p. 2, Article IV. The Modification does not specify the type or extent of damages it proposes to pay under § 1124(2)(C). However, the Modification further provides that if any such amounts are in dispute, they shall be determined by this Court. Id. Therefore, the Court will endeavor to determine what damages are payable under the Modification and 1124(2)(C).
Pollack's overall request asks the Court to award default interest, attorney's fees, costs and late charges in this matter. Since the Court has previously addressed default interest pursuant to its "cure" analysis under § 1124(2)(A), the Court need only determine whether attorney's fees, costs and late charges fit under the definition of "damages."
A. Attorney's Fees and Costs
With regard to the award of attorney's fees and costs, the Note provides,
COLLECTION COSTS: If Lender hires an attorney to assist in collecting any amount due or enforcing any right or remedy under this Note, Borrower agrees to pay Lender's attorney's fees, to the extent permitted by applicable law, and collection costs.
Courts addressing damages under § 1124(2)(C) have generally allowed expenses such as attorney's fees, foreclosure costs, court costs and other charges related to a creditor's reasonable reliance. See, e.g., Phoenix, 257 B.R. at 523 (legal fees, foreclosure notice fees, court costs, and the like are allowable under § 1124(2)(C)); In re Arlington Village Partners, Ltd., 66 B.R. 308, 317 (Bankr.S.D.Ohio 1986) (interest on arrearages, fees, costs and charges based on creditor's reasonable reliance are allowable); In re Orlando Tennis World Development Co., Inc., (Orlando) 34 B.R. 558, 560 (Bankr.M.D.Fla.1983) (contract interest, pre-acceleration late charges, attorney's fees and expenses incurred in pursuit of judgment and foreclosure are appropriate under § 1124(2)(C)); Rolling Green, 26 B.R. at 733 (attorney's fees and out-of-pocket losses are allowable). However, some courts have determined things such as compensatory damages or dam *654 ages resulting from the economic loss of expectation are not allowable under § 1124(2)(C). See, e.g.,. In re Forest. Hills, 40 B.R. 410, 414, 415 (Bankr.S.D.N.Y.1984) (creditors are not entitled to compensatory damages under § 1124(2)(C)); In re Rainbow Forest Apartments, 33 B.R. 576, 578-79 (Bankr.N.D.Ga.1983) (debtor is not required to pay the present economic cost of its agreement); In re Kizzac Management Corp., 44 B.R. 496, 501 (Bankr.S.D.N.Y. 1984) (Congress did not find it necessary to compensate the creditor for lost opportunity cost). Based on the above cited legal authority it would appear that Pollack's request for attorney's fees is allowable under the damages provision of § 1124(2)(C), as long as Pollack relied on an existing contractual provision in the Note or Deed of Trust or on applicable law.
Pollack testified he purchased the Note knowing it was in default. Prior to his purchase he reviewed the terms of the Note and was aware the Note contained a variable interest rate, a default interest rate, late payment language, and a provision for collection of fees and costs, as well as language providing the lender did not need to provide notice of a default. See Pollack Exhibit A. Pollack's uncontroverted testimony was that he relied upon all of these provisions in deciding to purchase the Note.
Additionally, prior to purchasing the Note, Pollack's attorney provided him with a copy of an excerpt from Colliers on Bankruptcy. See Pollack Exhibit M. Mr. Miller, although not certain, advised Pollack that if he purchased the Note, attorney's fees would likely be allowed. Pollack relied on this advice and further testified that he would not have purchased the Note had he not been able to collect this expense, because otherwise the purchase of the Note would not have been a good investment. Based on this unchallenged testimony, the Court finds Pollack relied upon those provisions contained in the Note regarding the collection of attorney's fees and costs. Therefore, both attorney's fees and out-of-pocket costs are allowed as damages pursuant to § 1124(2)(C).
Not all attorney's fees, however, fall into this category. Clearly, the attorney's fees incurred in connection with the within claim challenge are compensable. Likewise, the fees incurred in objecting to the confirmation of the Plan are collection costs. These compensable attorney's fees are damages which must be paid as part of the cure of the Note. Phoenix, 257 B.R. at 522. Any attorney's fees relating to the purchase of the Note are not compensable as damages under § 1124(2)(C) because those fees are more appropriately considered an investment expense, rather than a damage resulting from reasonable reliance upon the provisions of the Note or Deed of Trust.
B. Late Charges
The Note provides the following language regarding late charges:
LATE PAYMENT CHARGE: If a payment is received more than 10 days late, Borrower will be charged a late payment charge of $15.00 or 5.000% of the payment amount, whichever is greater . . ., as permitted by law.
In this case, the parties have stipulated to the amount of late payment charges should the Court allow the same. See Exhibit 11. However, under § 1124(2)(C), Pollack must demonstrate that he incurred damages as a result of his reasonable reliance upon the late payment language. In this Court's estimation late payment charges differ from attorney's fees and costs that may be allowed as damages under § 1124(2)(C). Attorney's fees and costs are expenses a creditor actually incurs *655 as a result of its reasonable reliance on the terms of an agreement or applicable law and the enforcement of a creditor's legal rights. Although Pollack testified he relied upon the late charge language in purchasing the Note, he did not incur any actual expenses similar to his attorney's fees and costs by virtue of his reasonable reliance.
Furthermore, under the particular late payment language cited above, the Court notes the purpose of the late charge language appears to have no direct financial relationship to the cost of collection or default. Rather, it appears the provision is simply to induce timely payment of monthly payments on the Note. This cannot constitute damages incurred as a result of Pollack's reasonable reliance.[17] Therefore, the Court finds the late charges are not damages under § 1124(2)(C). See Orlando, 34 B.R. at 561 (while the court allowed late charges to the date of acceleration, those late charges post-acceleration were not related to anticipated economic loss, but rather were in the nature of a penalty and not compensable under § 1124(2)(C) as damages).
CONCLUSION
For the foregoing reasons, the Court finds Pollack's claim in this case shall include a default rate of interest at 21% beginning on September 15, 2005, through the effective date of the Plan and shall be paid as part of the "cure" under the Plan and Modification. Additionally, reasonable attorney's fees and costs are allowed as damages under § 1124(2)(C). Pollack's legal fees, pursuant to the parties Stipulation, will be determined at a further hearing. See Stipulation, ¶ 12. Late payment charges are not compensable under § 1124(2)(C). Accordingly,
IT IS ORDERED Pollack's allowed claim in this case is determined to be $282,064.70 and must be paid pursuant to the terms of the Debtors' Plan and Modification.
IT IS FURTHER ORDERED a scheduling conference shall be held on Friday, September 1, 2006, at 10:00 a.m. to set a hearing to determine the amount of additional attorney's fees that have accrued as a result of Pollack asserting his claim. If those attorney's fees are determined to be reasonable, those amounts shall be added to Pollack's allowed claim.
NOTES
[1] Additionally, in its Order Confirming Second Amended Plan of Reorganization Dated April 14, 2005 as Modified, the Court, pursuant to the parties' requests, retained jurisdiction of this matter, "inter alia, to determine the extent, priority and validity of the lien of SN Servicing held by Joseph Pollack."
[2] In connection with the hearing the parties filed a document titled Stipulations for the Hearing on February 24, 2006 (the "Stipulation") which form the basis of numerous facts noted herein. Additionally, the parties stipulated to the admission of Pollack Exhibits A, D, G and I, as well as Debtors' Exhibits 1, 2, 3, 5, 6, 9, 10 and 11. All other exhibits were withdrawn.
[3] The modified Plan language relevant to this dispute states:
Class 8 consists of the allowed secured claim of Joseph Pollack, assignee of SN Servicing Corporation, secured by 36 acres of land located at 16795 Remington Road, Colorado Springs, Colorado. Class 8 is not impaired under the Plan. . . .
The unimpaired secured claim of the Class 8 creditor under Article III of the Plan shall provide as follows: The allowed secured claim of the Class 8 creditor shall be paid by the cure and deceleration of any default under the promissory note and payment in full of such amount plus any amount which the Class 8 creditor may be entitled to as damages under 11 U.S.C. § 1124(2) on the Effective Date of the Plan. To the extent that the Debtors and the Class 8 creditor dispute any such amounts, such amounts shall be determined by the Court. . . .
Modifications to Second Amended Plan of Reorganization Dated April 14, 2005, pp. 1-2, Articles II and IV (the "Modification").
[4] Epling, Contractual Cure in Bankruptcy, 61 Am. Bankr.L.J. 71 (Winter 1987).
[5] Cure rights also exist in cases filed under Chapters 12 and 13 of the Bankruptcy Code.
[6] Unless otherwise specified, all future statutory references in the text are to Title 11 of the United States Code.
[7] Section 1124(2) states in relevant part:
[A] class of claims or interests is impaired under a plan, unless, with respect to each claim or interest of such class, the plan
(2) notwithstanding any contractual provision or applicable law that entitles the holder of such claim or interest to demand or receive accelerated payment of such claim or interest after the occurrence of a default
(A) cures any such default that occurred before or after the commencement of the case under this title, other than a default of a kind specified in section 365(b)(2) of this title;
. . .
(C) compensates the holder of such claim or interest for any damages incurred as a result of any reasonable reliance by such holder on such contractual provision or such applicable law.
[8] Section 1123(d) provides:
Notwithstanding subsection (a) of this section and sections 506(b), 1129(a)(7), and 1129(b) of this title, if it is proposed in a plan to cure a default the amount necessary to cure the default shall be determined in accordance with the underlying agreement and applicable nonbankruptcy law.
[9] COLO.REV.STAT. § 38-38-401 states in relevant part:
(1) Whenever the default in the terms of the evidence of debt and deed of trust or mortgage being foreclosed is nonpayment of any sums due thereunder, the owners of the property being foreclosed, any person liable thereon, any guarantor of the evidence of debt, and, if the deed of trust or mortgage being foreclosed was recorded on or after October 1, 1990, any holder of an interest junior to the lien being foreclosed by virtue of being a lienor, lessee, or vendee of, or holder of an easement or a certificate of purchase on, the property, under a recorded instrument, shall be entitled to cure said default if, at least fifteen calendar days prior to the date the foreclosure sale is held, such persons give written notice, attaching true copies of instruments evidencing their right to cure, to the public trustee or sheriff conducting the sale of their intention to cure said default.
[10] In the event of a default, the terms of the Note provide the Note holder may also assess late charges and attorney's fees.
[11] Colorado law allows default interest, as long as it is not usurious. See In re Wood Family Interests, Ltd., 135 B.R. 407, 409 (Bankr.D.Colo.1989); see also Dikeou v. Dikeou, 928 P.2d 1286, 1289-90 (Colo.1996) (late charges and default interest are enforceable under Colorado law).
[12] Mr. Sweet testified he ceased making payments to Servicing in approximately January of 2003. Because the terms of the Note required the Debtors make payments beginning April 1, 1999 and continuing through March 1, 2029 and the Debtors admit they failed to make these payments, it is difficult to imagine how the Debtors are not in default of the payment terms contained in the Note. Thus, a payment default exists as of January 2003.
[13] Pollack primarily relies upon In re Coykendall, 265 B.R. 859, 864 (Bankr.N.D.Ohio 2001) and Nebraska Beef Ltd. v. Wells Fargo Business Credit, Inc. 2004 WL 167126, *5 (Jan. 20, 2004 D. Minn.) (unpublished disposition) for this proposition.
[14] Prior to representing Mr. Pollack in this matter, Dan Miller represented Servicing and had e-mailed Pollack with information concerning the balance owed on the Note. See Debtors' Exhibit 3.
[15] The e-mail from Dan Miller to Pollack indicates the payoff amount on the Note as of July 15, 2005 is "$346,807.54 @ 8.75% (no calculation at default rate)" and was in "perpetual default." Debtors' Exhibit 3.
[16] No evidence was presented by either party regarding whether Mr. Sweet was ever in default as to the original Note holder, First Community Industrial Bank (the "Bank"), or whether the Bank had ever exercised its discretion to charge a default interest rate. Accordingly, under any argument, Pollack could not retroactively assert a default rate of interest during this time period.
[17] Additionally, some courts have determined, albeit under § 506(b), a creditor may not be paid late charges as well as default interest because the payment of both would amount to a double recovery. See In re AE Hotel Venture, 321 B.R. 209, 216 (Bankr. N.D.Ill.2005) (citing cases). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/707389/ | 69 F.3d 548
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
TRIAX PACIFIC, INC., a Utah corporation,Plaintiff-Counterdefendant-Appellant,v.AMERICAN INSURANCE COMPANY, a foreign corporation, andFireman's Fund Insurance Company, a foreigncorporation,Defendants-Counterclaimants-Appellees.
No. 94-4091.(D.C.No. 90-CV-1036)
United States Court of Appeals, Tenth Circuit.
Nov. 2, 1995.
Before BALDOCK, HOLLOWAY, and BRORBY, Circuit Judges.
ORDER AND JUDGMENT1
HOLLOWAY, Circuit Judge.
1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.2
2
Plaintiff Triax Pacific, Inc. appeals from the district court's order granting summary judgment in favor of the defendants on all of plaintiff's breach of contract and promissory estoppel claims. We affirm.
3
* In late July or early August 1990, RG & B Contractors, Inc. defaulted on its contract with the Department of the Navy for renovation of 169 housing units on the island of Guam. R. at 60, 74, 122, 164, 228. Defendants American Insurance Company and Fireman's Fund were RG & B's sureties on the Navy contract.3 Id. at 1, 13, 61, 74. After the default, defendants solicited bids from plaintiff and other contractors for completion of the construction work left unfinished. Id. at 61, 105. Defendants hired John Sevier as their agent to solicit bids and make recommendations. Id. at 306.
4
As part of the bidding process, defendants supplied the bidders, including plaintiff Triax, with a written Invitation for Bids. Id. at 76, 106. The Invitation for Bids provided that a "contract for completion will be entered into between the successful bidder and the Surety." Id. at 106. It further provided that any bid would be subject to approval of the Navy. Id.
5
Plaintiff submitted its written bid prior to the bidding deadline but later withdrew the bid when it discovered an $800,000 error. Id. at 61, 112-13. On October 5, 1990, defendants' agent Sevier wrote defendants indicating that even if the error were accounted for, plaintiff would have been the low bidder. Id. at 114.
6
On October 30, 1990, Mr. Sevier telephoned Robert Christiansen, plaintiff's vice president. According to Mr. Christiansen's deposition testimony, their conversation proceeded as follows:
7
John Sevier called me up and said: "How would you like to go to work in Guam?"
8
And I said, "I'd love to."
9
He says: "Will you take it at the price you have submitted?"
10
And I said: "What price?"
11
And he said: "Your corrected bid with the eight hundred thousand."
12
And I said: "Yes, we'll take the job at that price."
13
Id. at 405. Mr. Sevier then stated "the job is yours, providing you can go out there to the government and prove to them that you are a competent contractor....By the way, they are deleting the SSP credit. Please do a credit proposal for that to submit to the Navy when you get there." Id. at 522. Plaintiff alleges that during this conversation, Mr. Sevier also promised to tender plaintiff to the Navy as completion contractor. Id.
14
Also on October 30, 1990, Mr. Sevier sent a fax to Mr. Christiansen requesting that plaintiff be prepared to respond to the Navy's correspondence deleting certain Specialized Supplemental Personnel from the completion contract at the meeting to be held in Guam. Id. at 118. Mr. Christiansen prepared an estimate for contract modification showing a credit of $233,604 toward plaintiff's previously-submitted bid amount. Id. at 121, 211-12.
15
On November 3, 1990, plaintiff's representatives, including its president, accompanied Mr. Sevier to Guam. Id. at 62, 79. Mr. Sevier also invited representatives of another contractor, International Bridge CorporationWestern Alaska Contractors, to travel to Guam at the same time. Id. at 70, 179. On November 5, 1990, plaintiff presented its qualifications to the Navy in Guam. Id. at 63.
16
During the November 5 meeting, the Navy's representative, Mr. Putnam, explained that defendants had three options for dealing with RG & B's default: (1) completing a takeover contract with a contractor; (2) doing nothing and allowing the Navy to reprocure the project; or (3) tendering a contractor to the Navy. Plaintiff's representatives were informed that defendants had not yet selected an option and the Navy could not proceed in drafting a contract with an acceptable contractor until they did so. Id. at 202-03.
17
Mr. Sevier did inform the Navy representative that defendants wanted to tender plaintiff as replacement contractor. Mr. Sevier further requested that plaintiff be allowed to inventory materials stored by RG & B. Id. at 63, 102. A Navy representative accompanied plaintiff's representatives to the jobsite where they began an inventory. Id. at 63, 202, 217. Representatives of Western Alaska Contractors also performed an inventory of the jobsite. Id. at 79.
18
On November 5, Mr. Sevier also requested a "best and final offer" from both plaintiff and Western Alaska. Id. at 79. Plaintiff's representatives objected that they believed they already had been awarded the contract. Mr. Sevier was apologetic but explained that defendants wanted him to obtain new bids. Id. at 329-30. Plaintiff Triax presented a revised, verbal bid of $10,869,000 in exchange for the deletion of certain inspection work on the project. Id. at 63-64, 71, 181, 217. Western Alaska also provided a new bid in the amount of $10,996,000, but indicated that they might further reduce their bid to $10,769,000. Id. at 70, 134-35.
19
After receipt of the plaintiff's best and final offer, Mr. Sevier again told plaintiff's representatives that they were the low bidder and would be signing a contract with the Navy. Id. at 64, 181, 218. Mr. Sevier requested that the representatives meet with the Navy again on November 7. Id. at 64. On the morning of November 7, 1990, plaintiff's representatives met with Mr. Sevier. He presented them with a bottle of champagne and told them they were the recipients of the contract. Id. at 64-65, 207-08, 218-19. He also stated that the only remaining step would be to obtain the approval of, and sign a contract with, the Navy. Id. at 208, 219.
20
Later that day, plaintiff's representatives met with Mr. Sevier and Mr. Putnam of the Navy. The meeting did not go as expected because Mr. Putnam indicated he had just received a letter from Mr. Seidl, defendants' counsel, in which defendants had elected to have the Navy reprocure the project rather than selecting the replacement contractor themselves. Id. at 129-30, 182, 333-34. Mr. Putnam told the parties that he believed it would be necessary for the Navy to obtain new bidding due to the reprocurement. Id. at 222, 452-53. What was said next is a matter of some dispute, but plaintiff's representatives left the meeting without an agreement by the Navy to accept plaintiff as replacement contractor.
21
Moreover, Mr. Putnam testified that there was no reasonable way that the Navy could have signed a contract at that point in any event. The takeover contract had not been prepared. The Navy was still working on draft language for the release and exoneration agreement to be entered into between the Navy and the defendants. There were still problems with the specifications which needed to be discussed. Id. at 231-32. (In fact, the completion contract was not finalized until January 1991. Id. at 302.)
22
Plaintiff's representatives left Guam and returned to Utah. They decided to contact defendants directly to "find out what the problem was." Id. at 320. Plaintiff's president called George McCarthy, the manager of defendants' San Francisco surety claims office, on November 12, 1990. Mr. McCarthy indicated there must have been some confusion and reassured him that plaintiff would be tendered to the Navy. Id. at 58, 65, 224.
23
Plaintiff's representatives met with representatives of the defendants on November 14, 1990, in San Francisco. They contacted Mr. Putnam, the Navy representative, by speaker phone. Mr. Alexander, defendants' senior surety supervisor, identified plaintiff Triax as the contractor defendants wanted to tender to the Navy during this conversation. Mr. Putnam agreed to accept plaintiff upon receipt of written confirmation. Id. at 57-58, 65-66, 246.
24
Subsequent to the meeting on November 14, 1990, plaintiff was requested to submit a written commitment reflecting its best and final offer and the other terms discussed in Guam, which it did on November 16, 1990. Id. at 66, 141, 226. The commitment included the cost of curing items on a list of defects which was shown to plaintiff's representatives on November 7, 1990, in Guam. Id. at 142. The list included a revised credit for deletion of a special inspection program in the amount of $385,000, which had been discussed during the Guam trip. Id.
25
Defendants replied to the commitment letter on November 21, 1990, objecting to some of its terms as non-conforming to the bidding instructions. R. at 66, 143. Defendants indicated that they had received conforming proposals in the interim and that all current proposals would be considered. Id. at 144.
26
Defendants wrote plaintiff on December 5, 1990, stating plaintiff would have to lower its bid or not be eligible for the contract. Id. at 66. Plaintiff refused to lower its bid. Mr. Sevier recommended to defendants that they use Western Alaska because of its lower bid. Id. at 301. Defendants gave Western Alaska written notice of acceptance of their bid and tendered them to the Navy on January 18, 1991. Id. at 72, 175-76. Plaintiff Triax brought this action alleging breach of contract and promissory estoppel theories.
II
27
As a threshold matter, defendants challenge our jurisdiction to consider plaintiff's appeal.
28
Plaintiff filed its notice of appeal on March 29, 1994, thirty-two days after the entry of summary judgment and twenty-seven days after the magistrate judge assigned to hear pretrial matters denied plaintiff's motion to amend its complaint to state a cause of action in tort. Defendants contend that plaintiff's appeal from the order granting summary judgment was untimely.
29
Defendants' motion to dismiss is clearly without merit. Plaintiff's notice of appeal was not untimely; it was premature. The summary judgment order did not dispose of the defendants' counterclaim. An order becomes final and appealable only when it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. See Van Cauwenberghe v. Biard, 486 U.S. 517, 521-22 (1988); 28 U.S.C. 1291. Defendants' counterclaim was voluntarily dismissed on December 1, 1994, after notice from this court of the apparent prematurity of the appeal. Once this counterclaim was dismissed, Triax's premature notice of appeal ripened and a new notice of appeal was unnecessary. See Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645 (10th Cir.1988)(discussing procedure where premature notice of appeal is filed). It is of no moment that the premature notice of appeal was filed more than thirty days after the order granting summary judgment was entered.4
III
30
We turn now to the merits of plaintiff's appeal. "We review the grant or denial of summary judgment de novo, applying the same legal standard used by the district court under Fed.R.Civ.P. 56(c)." Ingels v. Thiokol Corp., 42 F.3d 616, 620 (10th Cir.1994)(citing Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990)). "Summary judgment is appropriate if 'there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.' " Hagelin for President Comm. v. Graves, 25 F.3d 956, 959 (10th Cir.1994)(quoting Fed.R.Civ.P. 56(c)), cert. denied, 115 S.Ct. 934 (1995).
31
* The first count of plaintiff's complaint seeks damages for breach of an oral contract to award the construction contract to plaintiff. Plaintiff contends that this contract was formed during the telephone conversation between John Sevier and Robert Christiansen on October 30, 1990.5
32
Defendants argue the alleged contract is barred by the statute of frauds. Defendants further contend that there was no "meeting of the minds" sufficient to form a binding contract. We need not reach the issue whether the purported contract falls within the statute of frauds because we agree that no binding contract was formed under the facts presented.
33
Under Utah contract law, a construction bid constitutes an offer which, if unconditionally accepted, forms a binding contract. R.J. Daum Constr. Co. v. Child, 247 P.2d 817, 819 (Utah 1952). Such acceptance "requires manifestation of unconditional agreement to all of the terms of the offer and an intention to be bound thereby." Id.; see also Cal Wadsworth Constr. v. City of St. George, 898 P.2d 1372, 1376 (Utah 1995). If such terms have not been completely agreed upon, however, or will not be final until memorialized in writing, there is no contract:
34
[I]f the preliminary agreement is incomplete, it being apparent that the determination of certain details is deferred until the writing is made out; or if an intention is manifested in any way that legal obligations between the parties shall be deferred until the writing is made, the preliminary negotiations and agreements do not constitute a contract.
35
Daum, 247 P.2d at 820, quoting Restatement of Contracts 26, cmt. a. See also Cessna Fin. Corp. v. Meyer, 575 P.2d 1048, 1050 (Utah 1978)(no contract formed unless there is a meeting of the minds as to all of its essential terms); Engineering Assocs., Inc. v. Irving Place Assocs., Inc., 622 P.2d 784, 787 (Utah 1980)(omission of material terms prevents formation of contract, and if contracting parties make it clear that they do not intend that there should be legal consequences unless and until a formal writing is executed, there is no contract until that time); Crismon v. Western Co. of N. Am., 742 P.2d 1219, 1221 (Utah App.1987)(preliminary negotiations do not form contract).
36
Here, plaintiff Triax withdrew its bid. Rather than soliciting a new bid, defendants made a direct counteroffer to plaintiff for completion of the project. However, the Invitation for Bids clearly contemplated that any such contract for completion would be in writing. Plaintiff could not reasonably have believed that Mr. Sevier's oral statements alone constituted agreement as to all material terms of the construction contract. There remained many items to be resolved, most notably the credit to be given for deletion of the specialized supplemental personnel and the identity of the contracting parties (i.e., whether plaintiff would be contracting with defendants or directly with the Navy). Negotiations continued during November 1990 and broke down after that time.
37
Once negotiations broke down with plaintiff, defendants were free to accept an offer from a competing bidder:
38
When bids are solicited and are sent in for simultaneous opening, or for consideration all together, a bidder should usually be held reasonable in supposing that a bid is rejected as soon as one of the competing bids is accepted. But a mere notice of acceptance may not have any operation in this latter case, for the reason that a formal written contract is contemplated. It has been held that each bid remains open for acceptance for a reasonable time so long as no contract with a competing bidder has actually been consummated.
39
J. Perillo, Corbin on Contracts 3.41 (2d ed.1993) (emphasis added).
40
It is undisputed that plaintiff Triax continued the negotiating process by submitting a subsequent "best and final offer," that plaintiff's attempted written memorial of these terms was rejected by defendants as non-conforming, and that plaintiff never signed the contemplated written contract with the defendants or the Navy. We conclude that no valid, binding construction contract was formed between plaintiff and the defendants as the result of the conversation of October 30, 1990. The district court properly entered summary judgment on the first count of plaintiff's complaint.
B
41
The second count of plaintiff's complaint alleges the formation of a contract on November 7, 1990, after plaintiff submitted its best and final offer. R. at 6, 27. This count is styled "Breach of Contract Arising from Oral Solicitation, Oral Modifications of Solicitation, Offer and Acceptance." However, the district court generously construed this count, at plaintiff's request, to allege the breach of a contract to tender plaintiff Triax to the Navy as replacement contractor. Id. at 607. For this reason, we likewise analyze Count II on a contract to tender theory only.
42
We agree with the district court that this alleged contract also fails because plaintiff gave no valid consideration for defendants' promise to tender plaintiff to the Navy and because there is no evidence of a meeting of the minds sufficient to form the alleged contract to tender. Defendants admit having promised to tender plaintiff to the Navy. However, to constitute consideration for a binding contract, the promise must have been "bargained for" by plaintiff. Restatement (Second) of Contracts 71 (1981). It is clear from the evidence of record that plaintiff's bid, its best and final offer, and the negotiations which resulted therefrom, were entered into in the hope of winning the construction contract, and were not bargained for consideration for the alleged promise to be tendered to the Navy. Any promise to tender was merely gratuitous. See Zoby v. American Fidelity Co., 242 F.2d 76, 78-79 (4th Cir.1957).
43
For the same reason, there was no "meeting of the minds" sufficient to form the alleged contract to tender. Moreover, there was also no contract formed based on submission of a revised bid. The Invitation for Bids made any such contract subject to approval by the Navy. The Navy never gave its approval. Under the circumstances, the parties' preliminary negotiations did not lead to contract formation. See Cessna Fin. Corp., 622 P.2d at 787.
44
We have carefully reviewed the evidentiary materials cited by plaintiff as supporting its contention that the promise to tender was part of an oral contract. We have been hindered, however, due to inadequate record citations. (In several critical instances, citations are grossly overinclusive, such as citing over 90 pages of deposition testimony in support of a single factual assertion.) However, our review of these materials confirms the conclusion of the district judge that the promise to tender "did not contain the material terms necessary to constitute a binding, enforceable contract." R. at 638.
45
For these reasons we are persuaded that summary judgment for the defendants on the second count of the complaint was correct. We have also considered other arguments related to this claim and find that they lack merit.
C
46
In the third and final count of its complaint plaintiff Triax avers a promissory estoppel claim. It alleges that it reasonably relied to its detriment on defendants' promises. More specifically, plaintiff says it refrained from bidding on other jobs and incurred costs of traveling to Guam and preparing to perform the construction work for defendants.
47
Utah has adopted the test for promissory estoppel contained in the Restatement (Second) of Contracts 90 (1981). See Tolboe Constr. Co. v. Staker Paving & Constr. Co., 682 P.2d 843, 845 (Utah 1984). The Restatement requires that a plaintiff prove three elements for such a promissory estoppel claim:
48
1. The promise must be one which the promisor should reasonably expect to induce action or forbearance on the part of the promisee;
49
2. The promise should induce such action or forbearance; and
50
3. Injustice can be avoided only by enforcement of the promise.
51
The Supreme Court of Utah has further promulgated a set of factual prerequisites for a promissory estoppel claim, as follows:
52
that the defendants were aware of all the material facts; that in such awareness they made the promise when they knew that the plaintiff was acting in reliance on it; that the latter, observing reasonable care and prudence, acted in reliance on the promise and got into a position where it suffered a loss.
53
Tolboe, 682 P.2d at 845-46.
The doctrine of promissory estoppel
54
is resorted to only where circumstances are such that equity and good conscience render its application imperative in order to avoid an obvious unfairness and injustice.... [T]he promise or representation relied on must be sufficiently definite and certain that the plaintiff acting as a reasonable and prudent person under the circumstances would be justified in placing reliance upon it; and in case of uncertainty or doubt the responsibility is upon the plaintiff to ascertain the facts before acting upon it.
55
Petty v. Gindy Mfg. Corp., 404 P.2d 30, 32 (Utah 1965) (footnotes omitted).
56
Plaintiff, in response to defendants' interrogatories, asserted that the promise on which it relies was made on November 7, 1990, when Mr. Sevier informed plaintiff's representatives that Triax was the recipient of the contract and would be tendered to the Navy. However, the alleged promise to tender plaintiff to the Navy cannot form the basis for promissory estoppel based upon the criteria outlined above. That promise was made within the context of the process of negotiating the construction contract, which would not be binding until the written document was signed, for the reasons outlined above. Under the circumstances, any promises made were part of preliminary negotiations and could not form the basis for a claim of promissory estoppel. Cf. Lavoie v. Safecare Health Serv., Inc., 840 P.2d 239, 249-51 (Wyo.1992)(applying 90 promissory estoppel principles). The undisputed facts and circumstances here show that as the promisor, defendants would not reasonably expect action or forbearance by Triax until a written contract was consummated. Thus the plaintiff failed to show that its reliance on statements of defendants or their agent was reasonable. Id. at 250-51.
IV
57
The judgment of the United States District Court for the District of Utah is affirmed.
Entered for the Court
1
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470
2
We have considered the request for oral argument by plaintiff and find that argument would not be beneficial
3
American Insurance Company is a wholly owned subsidiary of Fireman's Fund Insurance Company. The two companies are referred to collectively as "defendants" throughout this opinion
4
Moreover, the summary judgment order was also not final so long as Triax's motion to amend its complaint remained outstanding. Triax did not properly object in the district court to the magistrate's denial of its motion to amend. For this reason, we cannot consider the merits of Triax's appeal from the magistrate's order. See In re Griego, 64 F.3d 580, 583 (10th Cir.1995)(party waives objections to magistrate's order not presented to district court). However, the existence of the pending motion before the magistrate prevented the order granting summary judgment from becoming final for purposes of appeal
5
The record does not clearly reflect the district court's basis for granting summary judgment to the defendants on this count of plaintiff's complaint. The court's minute order states that it granted summary judgment on Counts I and III because it "found no cause of action." R. at 569. Nevertheless we can affirm a trial court's entry of summary judgment upon any basis which appears of record. Jones v. Unisys Corp, 54 F.3d 624, 628 (10th Cir.1995) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1561140/ | 17 S.W.3d 514 (2000)
Robert A. BRUSMAN, Executor of the Estate of Donna Sue Brusman, Deceased; Robert A. Brusman, Individually and Next Friend of Gregory Brusman, A Minor, Christopher Brusman, A Minor, and Michael Brusman, A Minor, Appellants,
v.
NEWPORT STEEL CORPORATION; Sheila C. Lowther, Administrative Law Judge; and Workers' Compensation Board, Appellees.
No. 1999-SC-0430-WC.
Supreme Court of Kentucky.
May 18, 2000.
*515 Ronald L. McDermott, Covington, Counsel for Appellants.
Kenneth Lance Lucas, Florence, Counsel for Appellee Newport Steel Corporation.
COOPER, Justice.
On February 28, 1997, Donna Sue Brusman was fatally injured in the course and scope of her employment with Appellee Newport Steel Corporation. She was survived by her husband, Appellant Robert A. Brusman, and their three minor children. Although Donna and Robert Brusman were still married, they had been separated for over two years. A divorce action had been filed and was pending at the time of Donna's death. Robert and the three children filed workers' compensation claims for death benefits under KRS 342.750. They also claimed entitlement to a 15% penalty pursuant to KRS 342.165. Newport Steel did not contest the children's rights to benefits, but did contest both Robert's rights to widower's benefits and the penalty claim. The Administrative Law Judge ("ALJ") awarded the children both death benefits and a 15% penalty; but, relying on KRS 342.075, denied Robert's claim for widower's benefits on grounds that he was neither actually nor presumptively dependent upon Donna at the time of her death. The Workers' Compensation Board affirmed as to the 15% penalty, but reversed the denial of Robert's claim, holding that a widower is entitled to benefits under KRS 342.750(1)(a) or (b) regardless of dependency. The Court of Appeals reversed the Board on both issues. We now reverse the Court of Appeals, reinstate the order of the Board, and remand to the ALJ for a new, recalculated award.
I. DEATH BENEFITS.
Currently, death benefits are awarded under KRS 342.750 if the worker's death resulted from a work-related injury or occupational disease;[1] and under KRS 342.730(3) if the deceased worker was drawing or was entitled to benefits because of a work-related injury or disease at the time of his/her death, but died from another cause.
From the date of its initial enactment in 1916[2] until its first major revision in 1972,[3] the Kentucky Workers' Compensation Act had only one provision for paying benefits to survivors of a deceased worker. KS 4893,[4] recompiled in the 1942 Kentucky Revised Statutes as KRS 342.070, provided benefits only if the worker's death resulted from a compensable injury or occupational disease and if the claimant was actually dependent upon the deceased worker at the time of his death, as follows:
(a) If the claimant was wholly dependent upon the deceased worker, a sum equal to 66 2/3% of the deceased worker's average weekly earnings; and
(b) If the claimant was partly dependent upon the deceased worker, a sum equal to 66 2/3% of the deceased worker's average weekly earnings times a percentage representing the degree of partial dependency.[5]
The 1916 Act also included a provision for determining dependency. KS 4894,[6] which was recompiled in 1942 as KRS 342.075, created a presumption that certain persons were wholly dependent upon the deceased worker. As of 1972, those entitled to the presumption were:
(a) A wife upon a husband whom she had not voluntarily abandoned at the time *516 of the accident or who having been abandoned by her husband has not engaged in such conduct since his abandonment as would at common law constitute grounds justifying the abandonment of such wife by her husband;
(b) A husband incapacitated from wage-earning, upon a wife whom he has not voluntarily abandoned at the time of the accident; and
(c) A child or children under the age of sixteen years, or over sixteen years if incapacitated from wage-earning, upon a parent with whom such child or children were living, or by whom actually supported at the time of the accident or from whom support was legally required by judgment of a court.
Thus, a widow, widower or child was required to be actually dependent upon the deceased worker in order to be entitled to any benefits; but he/she was presumed to be wholly dependent, thus entitled to maximum benefits, if the conditions of KRS 342.075(1)(a), (b) or (c), as applicable, were satisfied. KRS 342.075 then provided, as it does now, that "[i]n all other cases" the relation of dependency in whole or in part shall be determined in accordance with the facts existing at the time of the accident, but that no person shall be considered a dependent in any degree unless that person was living in the household of the deceased worker at the time of the accident, or unless the person was the father, mother, husband, or wife, father-in-law or mother-in-law, grandfather or grandmother, child or grandchild, or brother or sister of the whole or half blood. Thus, even a widow, widower or child who did not fall within a KRS 342.075(1) presumption was still entitled to death benefits if he/she could prove actual dependency.[7]
The Workers' Compensation Act underwent a major revision during the 1972 session of the General Assembly. That revision included the repeal of KRS 342.070[8] and the enactment of KRS 342.750[9] (death benefits if the employee's death was work-related) and KRS 342.730(4)[now (3) ],[10] (death benefits if the employee was drawing or entitled to compensation and death was not work-related).
With respect to surviving spouses and children, KRS 342.750(1) provides as follows:
(a) If there is a widow or widower and no children of the deceased, to such widow or widower 50 percent of the average weekly wage of the deceased, during widowhood or widowerhood.
(b) To the widow or widower, if there is a child or children living with the widow or widower, 45 percent of the average weekly wage of the deceased, or 40 percent, if such child is not or such children are not living with a widow or widower, and in addition thereto, 15 percent for each child. Where there are more than two (2) such children, the indemnity benefits payable on account of such children shall be divided among such children, share and share alike.
(c) Two (2) years' indemnity benefits in one (1) lump sum shall be payable to a widow or widower upon remarriage.
(d) To the children, if there is no widow or widower, 50 percent of such wage for one (1) child, and 15 percent for each additional child, divided among such children, share and share alike.
(e) The income benefits payable on account of any child under this section *517 shall cease when he dies, marries, or reaches the age of eighteen (18), or when a child over such age ceases to be physically or mentally incapable of self-support, or if actually dependent ceases to be actually dependent, or, if enrolled as a full-time student in any accredited educational institution, ceases to be so enrolled or reaches the age of 22. A child who originally qualified as a dependent by virtue of being less than 18 years of age may, upon reaching age 18, continue to qualify if he satisfies the tests of being physically or mentally incapable of self-support, actual dependency, or enrollment in an educational institution. (Emphasis added.)
KRS 342.750(1) then provides benefits for the deceased employee's parents, grandparents, grandchildren, brothers and sisters (though no in-laws as apparently anticipated in KRS 342.075), but only if actually dependent.
KRS 342.730(3) provides benefits to widows, widowers and children as follows:
(a) To the widow or widower, if there is no child under the age of eighteen (18) or incapable of self-support, benefits at fifty percent (50%) of the rate specified in the award; or
(b) If there are both such a widow or widower and such a child or children, to such widow or widower, forty-five percent (45%) of the benefits specified in the award, or forty percent (40%) of such benefits if such a child or children are not living with the widow or widower; and, in addition thereto, fifteen percent (15%) of the benefits specified in the award to each child. Where there are more than two (2) such children, the indemnity benefits payable on account of two (2) children shall be divided among all the children, share and share alike; or
(c) If there is no such widow or widower but such a child or children, then to such child or children, fifty percent (50%) of the benefits specified in the award to one (1) child, and fifteen percent (15%) of such benefits to a second child, to be shared equally. If there are more than two (2) such children, the indemnity benefits payable on account of two (2) children shall be divided equally among all the children; ...
....
(e) To the widow or widower upon remarriage, up to two (2) years, benefits as specified in the award and proportioned under paragraphs (a) or (b) of this subsection, if such proportioned benefits remain unpaid, to be paid in a lump sum.
Subsection (d) of the statute provides that if there is no widow, widower, or child, benefits are payable to the parent or parents, but only if such person(s) are "wholly or partly actually dependent for support upon the decedent."
Three things are apparent from the language of KRS 342.750(1) and KRS 342.730(3):(1) With respect to widows, widowers and children, the statutory schemes are virtually identical, except that the benefits are greater if the employee's death was work-related; (2) whereas KRS 342.070 had required a widow, widower or child to be actually dependent in order to be entitled to death benefits, the present statutes contain no such requirement; and (3) whereas KRS 342.075(1)(b) presumes that a child is wholly dependent only up to age sixteen, a child is entitled to benefits under KRS 342.750 and KRS 342.730(3) up to age eighteen regardless of dependency. The requirement of dependency with respect to death benefits under KRS 342.750 now applies only to parents, grandparents, grandchildren, siblings of the deceased, and children over eighteen who are not full-time students or who are incapable of self-support.
Thus, KRS 342.075(1), which is a definition statute, i.e., it defines who is a dependent, not a benefits statute, i.e., one which identifies those entitled to benefits, has no application to an award made pursuant *518 to a statute which does not require dependency as a condition precedent to entitlement to benefits. The 1974 enactment of "An Act Relating to Equal Rights for Men and Women,"[11] by which the General Assembly amended numerous statutes, including KRS 342.075,[12] in order to eliminate perceived statutory gender inequities is immaterial to this issue. The amendment of KRS 342.075 merely placed surviving spouses on equal footing with respect to the presumption of dependency regardless of gender. The amendment could not have affected benefits payable to a widower under KRS 342.750, which does not require dependency. Nor did the 1980 amendment of KRS 342.075(3),[13] which added the language "and is actually dependent" affect a widower's entitlement to benefits under KRS 342.750.
The Court of Appeals felt obligated in this case to follow our decision in White v. Stewarts Dry Goods Co., Ky., 531 S.W.2d 504 (1975), which indeed held that the requirement of dependency in KRS 342.075 still applied to a widower's claim for benefits under KRS 342.750. SCR 1.030(8)(a). However, White is inconsistent with our later opinion in Palmore v. Jones, Ky., 774 S.W.2d 434 (1989), which held that the dependency determinations in KRS 342.075 had no application to a non-dependent widow's claim for benefits under KRS 342.730(3). The language of KRS 342.075(1) does not purport to apply only to survivors of a worker whose death was caused by the compensable injury or disease; thus, the statute would apply as well (if at all) to survivors of a worker whose death resulted from another cause. If Palmore v. Jones applies to death benefits payable under KRS 342.730(3), then it applies as well to death benefits payable under the virtually identical language of KRS 342.750. Moreover, since the statutory scheme provides greater benefits to survivors under KRS 342.750 when death is work-related than under KRS 342.730(3) when it is not, it would be illogical to conclude that the legislature intended to make it more difficult for survivors to obtain benefits under KRS 342.750 than under KRS 342.730(3).
We believe our decision in White v. Stewarts Dry Goods Co., supra, misconstrued the intent of the legislature in repealing KRS 342.070 and enacting KRS 342.750 and KRS 342.730(4)[now (3) ]. We now hold with respect to death benefits for widows, widowers and children that the provisions of KRS 342.075 were superseded by the enactment of the latter two statutes. Accordingly, we overrule White v. Stewarts Dry Goods Co., reaffirm Palmore v. Jones, supra, and hold that the reasoning expressed in Palmore applies as well to KRS 342.750 as to KRS 342.730(3).
II. 15% PENALTY.
The decedent was employed as a switchperson on a railway line within the employer's facility. Her duties involved moving along the railway line with the train and throwing the switches necessary to route the train to its destination. At the time of the accident, she was riding on a personnel ladder attached to the side of the first of three rail cars which were being pushed by an engine on the main railway line. Another car, which had been designated to be scrapped or repaired because its sides were bowed out approximately two feet, was parked on an adjoining spur line near the pinch point where it joined the main line. When the car on which the decedent was riding passed the pinch point, the clearance between the train and the damaged car was only five inches. As a result, the decedent was caught between the two cars and crushed to death.
Although there are no specific statutes or regulations pertaining to in-plant railways, the minutes of a January 1997 safety meeting indicated that the employer was aware that there were a number of cars with bowed sides which needed to be *519 scrapped or repaired, apparently because they were scraping against and damaging the building and doors in the plant. There was also evidence that although workers were not supposed to jump on and off moving trains or ride on the lead car, it was common practice for them to do so without correction or punishment. There was also evidence that new employees normally are given three to four hours of training by the human resources department and that the decedent received additional on-the-job training by a more experienced worker, including instructions not to ride on the railway cars, particularly the front end of a car which was being pushed.
An inspector from the Kentucky Labor Cabinet investigated the accident and issued a citation charging the employer with a violation of KRS 338.031(1)(a), the "general duty" provision of the Kentucky Occupational Safety and Health Act (KOSHA), viz:
(1) Each employer:
(a) Shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
The violation was classified as "serious." The citation recited that transportation employees were not trained in "common railway safety procedures" and listed several specific examples, including the failure to instruct workers "in the recognition and avoidance of unsafe conditions in their work environment." The proposed penalty was $5,000.00. The employer contested the citation and a settlement was ultimately reached with the Labor Cabinet by which the employer was to abate all items in the original citation, the penalty was reduced to $1,000.00, and $4,000.00 would be spent for safety training for employees operating the in-plant railway. The agreement did not contain an admission by the employer of any violation of KOSHA or any safety standards.
KRS 342.165(1) provides in pertinent part that:
If an accident is caused in any degree by the intentional failure of the employer to comply with any specific statute or lawful administrative regulation made thereunder, communicated to the employer and relative to installation or maintenance of safety appliances or methods, the compensation for which the employer would otherwise have been liable under this chapter shall be increased fifteen percent (15%) in the amount of each payment....
In Apex Mining v. Blankenship, Ky., 918 S.W.2d 225 (1996), a 15% penalty was imposed on the basis of an intentional violation of KRS 338.031(1)(a). There, the injured worker was required to operate a grossly defective piece of heavy equipment which was without brakes, with a decelerator which did not work properly, with the throttle fastened in the wide open position, and which had caused prior accidents but had not been repaired. The ALJ found that the employer had intentionally created a patently obvious safety hazard and that such conduct was sufficient to trigger KRS 342.165 despite the fact that KRS 338.031(1)(a) was the only safety law which had been violated. We agreed, explaining that although the "general duty" statute was not as specific as might be desired, the hazard created by requiring a worker to operate such a grossly defective piece of equipment was patently obvious to a lay-person, even in the absence of a specific statute or regulation addressing the matter.
In reversing the imposition of the 15% penalty in this case, a divided Court of Appeals panel relied instead on our decision in Cabinet for Workforce Dev. v. Cummins, Ky., 950 S.W.2d 834 (1997). In Cummins, as here, there was no statute or regulation specifically pertinent to the worker's injury and a penalty was sought for a purported violation of KRS 338.031(1)(a). In Cummins, however, the ALJ found that the evidence introduced by the worker did not warrant imposition of the 15% penalty and we held on appeal that the evidence did not compel such a *520 finding. That, of course, is the standard of review on appeal from a factual finding against an appellant in a workers' compensation case. Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985); Commercial Drywall v. Wells, Ky.App., 860 S.W.2d 299 (1993). Here, the ALJ found that the evidence proved a violation of KRS 338.031(1)(a) sufficient to warrant imposition of the 15% penalty. That finding was supported by evidence that (1) an obvious hazard was created by the presence of railroad cars with bowed sides; (2) complaints about such cars had been raised at a safety meeting a month before the accident; and (3) workers routinely rode railway cars, including the lead car, without punishment. An ALJ's award which is supported by substantial evidence will not be set aside on appeal. Hush v. Abrams, Ky., 584 S.W.2d 48 (1979); Addington Resources, Inc. v. Perkins, Ky.App., 947 S.W.2d 421 (1997). Although the evidence in this case was not as egregious as in Apex Mining v. Blankenship, supra, it was substantial and sufficient to support the ALJ's award of a 15% penalty. The fact that the employer settled the KOSHA citation without admitting a violation is immaterial. In the context of a workers' compensation claim, it is the responsibility of the ALJ to determine whether a violation of a statute or administrative regulation has occurred.
Accordingly, the decision of the Court of Appeals is reversed, the decision of the Workers' Compensation Board is reinstated, and this case is remanded to the ALJ with directions to enter a new, recalculated award in accordance with the contents of this opinion.
LAMBERT, C.J.; GRAVES, JOHNSTONE, KELLER and STUMBO, JJ., concur.
WINTERSHEIMER, J., concurs in result only without separate opinion.
NOTES
[1] Although KRS 342.750 does not specifically state that its provisions apply to a death resulting from a compensable occupational disease, application of the statute in that circumstance is provided for by KRS 342.316(4).
[2] 1916 Ky. Acts ch. 33.
[3] 1972 Ky. Acts ch. 78, eff. January 1, 1973.
[4] 1916 Ky. Acts ch. 33 § 12.
[5] Both sums were subject to a minimum limitation of 25% of 85% of the state average weekly wage.
[6] 1916 Ky. Acts ch. 33 § 13.
[7] A 1980 amendment added the language "and is actually dependent" to KRS 342.075(3). 1980 Ky. Acts ch. 104 § 2. The amendment appears redundant; regardless, for reasons discussed infra, it has no application to widows, widowers or children under the present statutory scheme.
[8] 1972 Ky. Acts ch. 78 § 36, eff. January 1, 1973.
[9] 1972 Ky. Acts ch. 78 § 16, eff. January 1, 1973.
[10] 1972 Ky. Acts ch. 78 § 14, eff. January 1, 1973.
[11] 1974 Ky. Acts ch. 386.
[12] 1974 Ky. Acts ch. 386 § 60.
[13] 1980 Ky. Acts ch. 104 § 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560767/ | 18 So. 3d 534 (2009)
REGENCY ELEC. CO., INC.
v.
CULPEPPER.
No. 1D09-0439.
District Court of Appeal of Florida, First District.
September 23, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561050/ | 171 S.W.3d 512 (2005)
SITE WORK GROUP, INC. and Richard C. Waller, Appellants,
v.
CHEMICAL LIME LTD, Appellee.
No. 10-05-00081-CV.
Court of Appeals of Texas, Waco.
July 27, 2005.
Rehearing Overruled September 6, 2005.
Andrew Parma, Christian, Smith & Jewell LLP, Houston, for Appellants.
Karen Hart, Bell, Nunnally & Martin LLP, Dallas, for Appellee.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
*513 OPINION
BILL VANCE, Justice.
Chemical Lime, Ltd sued Site Work Group, Inc. ("SWG") and its two individual guarantors, Richard Waller and Raymond Smith, on a sworn account.[1] Chemical Lime filed a traditional motion for summary judgment, and the trial court granted the motion. SWG and Waller ("Appellants") appeal, arguing that summary judgment was not proper because they raised a fact issue.
We will affirm the judgment.
BACKGROUND
SWG was a subcontractor in the construction of a new sanctuary for the Unity Church of Christianity in Houston, Texas (the "Project"). Chemical Lime supplied SWG with lime and related materials for the Project on a credit account. Waller and Smith personally guaranteed all amounts due to Chemical Lime. SWG allegedly notified Chemical Lime on at least two occasions that the Project was tax-exempt. Chemical Lime charged sales tax on the materials it supplied. After demand by Chemical Lime, SWG failed to pay the amounts due to Chemical Lime. Chemical Lime sued SWG for failure to pay the account, breach of contract, and quantum meruit, and it sued Waller and Smith for breach of guaranty. SWG and Waller filed a general and verified denial that each and every item in the statement of the account is not just or true. Chemical Lime's traditional motion for summary judgment was granted.
SUMMARY JUDGMENT
Standard of Review
We review the decision to grant or deny a summary-judgment motion de novo. See Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 653 (Tex.App.-Waco 2000, pet. denied). The standards for reviewing a traditional motion for summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). The movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to the summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Ash v. Hack Branch Distributing Co., 54 S.W.3d 401, 413 (Tex.App.-Waco 2001, pet. denied). The reviewing court must accept all evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 549; Ash, 54 S.W.3d at 413. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. American Tobacco, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413. The non-movant need not respond to the motion for summary judgment unless the movant meets its burden of proof. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex.1999). But if the movant meets its burden of proof, the non-movant must present summary-judgment evidence to raise a fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).
Relevant Law
A defendant's verified denial of the correctness of a plaintiff's sworn account, in the form required by Rule 185, destroys the evidentiary effect of the itemized account and forces the plaintiff to put on proof of its claim. Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex.1979). The essential elements of a cause of action on an account are (1) a sale *514 and delivery of the goods; (2) that the amount of the account is just, that is, that the prices are charged in accordance with an agreement or in the absence of an agreement, they are the usual customary and reasonable prices for those goods;[2] and (3) that the amount is unpaid. Jones v. Ben Maines Air Conditioning, Inc., 621 S.W.2d 437, 439 (Tex.App.-Corpus Christi 1981, no writ).
State sales tax is imposed on the sale of each taxable item in Texas. TEX. TAX CODE ANN. § 151.051(a) (Vernon 2002). A taxable item includes tangible personal property. Id. § 151.010 (Vernon 2002). All gross receipts of a seller are presumed to be subject to sales tax unless a properly completed resale or exemption certificate is accepted by the seller. Id. § 151.054(a) (Vernon 2002). A properly completed resale or exemption certificate should be in the possession of the seller at the time the nontaxable transaction occurs. Id. § 151.054(e). A seller who makes a sale subject to sales tax must add the amount of the tax to the sales price, and when the amount of the tax is added, it becomes a part of the sales price. Id. § 151.052(a)(1) (Vernon 2002).
Arguments
Appellants argue that they raised a genuine issue of material fact as to the justness of the amount of the account. They argue that the affidavit by Waller states that he notified Chemical Lime on at least two occasions of the tax-exempt status of the Project; and thus, the amount of the account is unjust because sales tax was charged. Appellants also argue that they were not required to prove the tax-exempt status of the Project by providing a tax-exemption certificate as summary-judgment evidence.
Chemical Lime argues that Appellants failed to present any summary-judgment evidence that anyone ever provided Chemical Lime a tax-exemption certificate.
Analysis
The burden in this summary judgment proceeding was first on Chemical Lime to show that there were no genuine issues of material fact and that it was entitled to the summary judgment as a matter of law. See American Tobacco, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413. The affidavit provided by Chemical Lime's credit analyst provides evidence that the sales prices of the materials were reasonable, and the usual and customary prices for such materials. See Jones, 621 S.W.2d at 439. Thus, Chemical Lime met its burden to prove that the amount of the account is just.[3] The burden then shifted to Appellants to present summary-judgment evidence to raise a fact issue. See Siegler, 899 S.W.2d at 197. To not charge sales tax on Appellants' account, Chemical Lime was required to have an exemption certificate at the time of the transaction. See TEX. TAX CODE ANN. § 151.054(a), (e). Appellants' burden was not to prove the tax-exempt status of the Project, but was to present summary-judgment evidence to bring a fact issue relating to whether or not they provided Chemical Lime with a tax-exemption certificate. We find Appellants failed to meet their burden. See Siegler, 899 S.W.2d at 197.
We overrule Appellants' issue.
CONCLUSION
Having overruled Appellants' issue, we affirm the judgment.
Chief Justice GRAY dissenting.
*515 TOM GRAY, Chief Justice, dissenting.
In this summary judgment proceeding, we have to determine whether Chemical Lime as a matter of law proved it was entitled to payment. It did not. When Site Work and Waller asserted the tax exempt status of the buyer, Chemical Lime had to prove, in this traditional motion for summary judgment, that either the buyer was not tax exempt or some other reason that Site Work could not assert a tax exemption.
The issue in this appeal is as old as summary judgment practice. This old issue is what is the burden on the movant. It has frequently been stated that the burden is for the movant to prove it is entitled to judgment as a matter of law. Sounds easy enough. I sympathize with the majority's struggle to apply this seemingly simple rule.
The simple rule begins to get complicated when there are sworn denials of verified accounts, defenses, affirmative defenses, and counter defenses. See Sonnichsen v. Baylor Univ., 47 S.W.3d 122, 124 (Tex.App.-Waco 2001, no pet.).
This seemed like a simple case. Suit on an account. The seller moved for summary judgment. The buyer then filed a verified denial. The buyer also filed a response to the motion for summary judgment asserting that the purchases were exempt from the collection of sales taxes, an item that was included in the invoices, and for which the seller had sued. A proper assertion that the invoice includes an entry for an item not owed defeats the justness of the invoice.
The majority misses the importance of a single word in their opinion. A word that comes directly from the statute; should. A seller should have a completed tax exemption certificate at the time of the sale. TEX. TAX.CODE ANN. § 151.054(e) (Vernon 2002). It is not, however, mandatory. See id.
The statute makes clear that the exemption certificate can be provided by the buyer to the seller long after the sales transaction is complete. The comptroller does not disallow the deduction claimed by the seller unless the certificate is not in the possession of the seller within 60 days from the date the comptroller gives notice to the seller. Id.
If 60 days has not passed after the comptroller has given notice requiring possession of the buyer's tax exemption certificate, the buyer can simply provide the certificate and the seller is not required to collect and remit the sales tax. This suit is not about the preferable practice for collecting the sales taxes. And why the buyer would not have provided the certificate by now escapes reason and logic, but that does not impact the proper analysis of this summary judgment proceeding.
I need not decide today whether tax exempt status is a defense to Chemical Lime's debt collection action, or whether the tax exempt status is an affirmative defense to the debt. If it is only a defense, the non-movant must present some evidence of it because Chemical Lime has otherwise presented its prima facie case. See "Moore" Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936-937 (Tex.1972); Sonnichsen v. Baylor Univ., 47 S.W.3d 122, 124 (Tex.App.-Waco 2001, no pet.). If it is an affirmative defense, the movant must affirmatively negate at least one element of the affirmative defense before the movant is entitled to judgment as a matter of law. Id. Because the defense was raised and some evidence of the tax exempt status of Site Work was presented, it does not matter if it is merely a defense or if it is an affirmative defense. In either circumstance, Chemical Lime did not *516 prove itself entitled to judgment as a matter of law.
Because Chemical Lime failed to overcome the defense/affirmative defense of Site Work, Chemical Lime has not shown that it is entitled to collect the full amount for which it has sued. Before it is entitled to collect the full amount, including the sales tax, Chemical Lime must show that Site Work is not tax exempt or has waived its right to assert its tax exempt status by failing to timely provide an exemption certificate.
Accordingly, I would reverse the judgment of the trial court and remand for further proceedings consistent with this opinion. The majority affirms the trial court. Accordingly, I dissent.
NOTES
[1] Smith did not respond to Chemical Lime's summary judgment motion and is not involved in this appeal.
[2] This is the only element at issue in this appeal.
[3] The amount added for sales tax being required by statute. TEX. TAX CODE ANN. § 151.051(a). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560820/ | 75 N.J. 127 (1977)
380 A.2d 698
ROBERT SCHERER, PLAINTIFF-RESPONDENT,
v.
ROBERT HYLAND, ADMINISTRATOR OF THE ESTATE OF CATHERINE WAGNER, DECEASED, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued September 20, 1977.
Decided December 5, 1977.
*129 Mr. Herbert M. Barnes argued the cause for defendant-appellant.
Mr. David A. Nicolette argued the cause for plaintiff-respondent (Messrs. Tumarkin and Nicolette, attorneys; Mr. Nicolette and Mr. Robert J. Rudy, Jr., on the brief).
PER CURIAM.
Defendant, the Administrator ad litem of the Estate of Catherine Wagner, appeals from an Appellate Division decision, one judge dissenting, affirming a summary judgment by the trial court holding that Ms. Wagner had made a valid gift causa mortis of a check to plaintiff. We affirm.
The facts are not in dispute.[1] Catherine Wagner and the plaintiff, Robert Scherer, lived together for approximately fifteen years prior to Ms. Wagner's death in January 1974. In 1970, the decedent and plaintiff were involved in an automobile *130 accident in which decedent suffered facial wounds and a broken hip. Because of the hip injury, decedent's physical mobility was substantially impaired. She was forced to give up her job and to restrict her activities. After the accident, plaintiff cared for her and assumed the sole financial responsibility for maintaining their household. During the weeks preceding her death, Ms. Wagner was acutely depressed. On one occasion, she attempted suicide by slashing her wrists. On January 23, 1974, she committed suicide by jumping from the roof of the apartment building in which they lived.
On the morning of the day of her death, Ms. Wagner received a check for $17,400 drawn by a Pennsylvania attorney who had represented her in a claim arising out of the automobile accident. The check represented settlement of the claim. Plaintiff telephoned Ms. Wagner at around 11:30 A.M. that day and was told that the check had arrived. Plaintiff noticed nothing unusual in Ms. Wagner's voice. At about 3:20 P.M., decedent left the apartment building and jumped to her death. The police, as part of their investigation of the suicide, asked the building superintendent to admit them to the apartment. On the kitchen table they found the check, endorsed in blank, and two notes handwritten by the decedent. In one, she described her depression over her physical condition, expressed her love for Scherer, and asked him to forgive her "for taking the easy way out." In the other, she indicated that she "bequeathed" to plaintiff all of her possessions, including "the check for $17,400.00 * * *." The police took possession of the check, which was eventually placed in an interest-bearing account pending disposition of this action.
Under our wills statute it is clear that Ms. Wagner's note bequeathing all her possessions to Mr. Scherer cannot take effect as a testamentary disposition. N.J.S.A. 3A:3-2. A donatio causa mortis has been traditionally defined as a gift of personal property made by a party in expectation of death, then imminent, subject to the condition that the donor *131 die as anticipated. Establishment of the gift has uniformly called for proof of delivery.
The primary issue here is whether Ms. Wagner's acts of endorsing the settlement check, placing it on the kitchen table in the apartment she shared with Scherer, next to a writing clearly evidencing her intent to transfer the check to Scherer, and abandoning the apartment with a clear expectation of imminent death constituted delivery sufficient to sustain a gift causa mortis of the check. Defendant, relying on the principles established in Foster v. Reiss, 18 N.J. 41 (1955), argues that there was no delivery because the donor did not unequivocally relinquish control of the check before her death. Central to this argument is the contention that suicide, the perceived peril, was one which decedent herself created and one which was completely within her control. According to this contention, the donor at any time before she jumped from the apartment roof could have changed her mind, re-entered the apartment, and reclaimed the check. Defendant therefore reasons that decedent did not make an effective transfer of the check during her lifetime, as is required for a valid gift causa mortis.
The majority and dissenting opinions in Foster v. Reiss contain thorough analyses of the evolution of the delivery requirement of the gift causa mortis. See also Mechem, "The Requirement of Delivery in Gifts of Chattels and of Choses in Action Evidenced by Commercial Instruments," 21 Ill. L. Rev. 341, 457, 568 (1926); Bruton, "The Requirement of Delivery as Applied to Gifts of Choses in Action," 39 Yale L.J. 837 (1930). For commentary on Foster v. Reiss, see Bordwell, "Testate and Intestate Succession," 10 Rutgers L. Rev. 293, 297 (1955); Note, 10 Rutgers L. Rev. 457 (1955); Note, 54 Mich. L. Rev. 572 (1956). We see no need to retrace that history here.
There is general agreement that the major purpose of the delivery requirement is evidentiary. Proof of delivery reduces the possibility that the evidence of intent has been fabricated or that a mere donative impulse, not consummated by *132 action, has been mistaken for a completed gift. Since "these gifts come into question only after death has closed the lips of the donor," the delivery requirement provides a substantial safeguard against fraud and perjury. See Keepers v. Fidelity Title and Deposit Co., 56 N.J.L. 302, 308 (E. & A. 1893). In Foster, the majority concluded that these policies could best be fulfilled by a strict rule requiring actual manual tradition of the subject-matter of the gift except in a very narrow class of cases where "there can be no actual delivery" or where "the situation is incompatible with the performance of such ceremony." 18 N.J. at 50. Justice Jacobs, in his dissenting opinion (joined by Justices Brennan and Wachenfeld) questioned the reasonableness of requiring direct physical delivery in cases where donative intent is "freely and clearly expressed in a written instrument." Id. at 56. He observed that a more flexible approach to the delivery requirement had been taken by other jurisdictions and quoted approvingly from Devol v. Dye, 123 Ind. 321, 24 N.E. 246, 7 L.R.A. 439 (Sup. Ct. 1890). That case stated:
[G]ifts causa mortis * * * are not to be held contrary to public policy, nor do they rest under the disfavor of the law, when the facts are clearly and satisfactorily shown which make it appear that they were freely and intelligently made. Ellis v. Secor, 31 Mich. 185. While every case must be brought within the general rule upon the points essential to such a gift, yet, as the circumstances under which donations mortis causa are made must of necessity be infinite in variety, each case must be determined upon its own peculiar facts and circumstances. Dickeschild v. Bank, 28 W. Va. 341; Kiff v. Weaver, 94 N.C. 274. The rule requiring delivery, either actual or symbolical, must be maintained, but its application is to be militated and applied according to the relative importance of the subject of the gift and the condition of the donor. The intention of a donor in peril of death, when clearly ascertained and fairly consummated within the meaning of well-established rules, is not to be thwarted by a narrow and illiberal construction of what may have been intended for and deemed by him a sufficient delivery * * *. [24 N.E. at 248]
The balancing approach suggested in Devol v. Dye has been articulated in the following manner:
*133 Where there has been unequivocal proof of a deliberate and well-considered donative intent on the part of the donor, many courts have been inclined to overlook the technical requirements and to hold that a "constructive" or "symbolic" delivery is sufficient to vest title in the donee. However, where this is allowed the evidence must clearly show an intention to part presently with some substantial attribute of ownership. [Gordon v. Barr, 13 Cal.2d 596, 601, 91 P.2d 101, 104 (Sup. Ct. Cal. 1939)][2]
In essence, this approach takes into account the purposes served by the requirement of delivery in determining whether that requirement has been met. It would find a constructive delivery adequate to support the gift when the evidence of donative intent is concrete and undisputed, when there is every indication that the donor intended to make a present transfer of the subject-matter of the gift, and when the steps taken by the donor to effect such a transfer must have been deemed by the donor as sufficient to pass the donor's interest to the donee. We are persuaded that this approach, which does not minimize the need for evidentiary safeguards to prevent frauds upon the estates of the deceased, reflects the realities which attend transfers of this kind.
In this case, the evidence of decedent's intent to transfer the check to Robert Scherer is concrete, unequivocal, and undisputed. The circumstances definitely rule out any possibility of fraud. The sole question, then, is whether the steps taken by the decedent, independent of her writing of the suicide notes, were sufficient to support a finding that she effected a lifetime transfer of the check to Scherer. We think that they were. First, the act of endorsing a check represents, in common experience and understanding, the only act needed (short of actual delivery) to render a check negotiable. The significance of such an act is universally understood. Accordingly, we have no trouble in viewing Ms. Wagner's endorsement of the settlement check as a substantial step taken *134 by her for the purpose of effecting a transfer to Scherer of her right to the check proceeds. Second, we note that the only person other than the decedent who had routine access to the apartment was Robert Scherer. Indeed, the apartment was leased in his name. It is clear that Ms. Wagner before leaving the apartment placed the check in a place where Scherer could not fail to see it and fully expected that he would take actual possession of the check when he entered. And, although Ms. Wagner's subsequent suicide does not itself constitute a component of the delivery of this gift, it does provide persuasive evidence that when Ms. Wagner locked the door of the apartment she did so with no expectation of returning. When we consider her state of mind as it must have been upon leaving the apartment, her surrender of possession at that moment was complete. We find, therefore, that when she left the apartment she completed a constructive delivery of the check to Robert Scherer. In light of her resolve to take her own life and of her obvious desire not to be deterred from that purpose, Ms. Wagner's failure manually to transfer the check to Scherer is understandable. She clearly did all that she could do or thought necessary to do to surrender the check. Her donative intent has been conclusively demonstrated by independent evidence. The law should effectuate that intent rather than indulge in nice distinctions which would thwart her purpose. Upon these facts, we find that the constructive delivery she made was adequate to support a gift causa mortis.
Defendant's assertion that suicide is not the sort of peril that will sustain a gift causa mortis finds some support in precedents from other jurisdictions. E.g., Ray v. Leader Federal Sav. & Loan Ass'n, 40 Tenn. App. 625, 292 S.W.2d 458 (Ct. App. 1953). See generally Annot., "Nature and validity of gift made in contemplation of suicide," 60 A.L.R.2d 575 (1958). We are, however, not bound by those authorities nor do we find them persuasive. While it is true that a gift causa mortis is made by the donor with a view to impending death, death is no less impending because of a *135 resolve to commit suicide. Nor does that fixed purpose constitute any lesser or less imminent peril than does a ravaging disease. Indeed, given the despair sufficient to end it all, the peril attendant upon contemplated suicide may reasonably be viewed as even more imminent than that accompanying many illnesses which prove ultimately to be fatal. Cf. Berl v. Rosenberg, 169 Cal. App.2d 125, 336 P.2d 975, 978 (Dist. Ct. App. 1959) (public policy against suicide does not invalidate otherwise valid gift causa mortis). And, the notion that one in a state of mental depression serious enough to lead to suicide is somehow "freer" to renounce the depression and thus the danger than one suffering from a physical illness, although it has a certain augustinian appeal, has long since been replaced by more enlightened views of human psychology. In re Van Wormer's Estate, 255 Mich, 399, 238 N.W. 210 (Sup. Ct. 1931) (melancholia ending in suicide sufficient to sustain a gift causa mortis). We also observe that an argument that the donor of a causa mortis gift might have changed his or her mind loses much of its force when one recalls that a causa mortis gift, by definition, can be revoked at any time before the donor dies and is automatically revoked if the donor recovers.
Finally, defendant asserts that this gift must fail because there was no acceptance prior to the donor's death. Although the issue of acceptance is rarely litigated, the authority that does exist indicates that, given a valid delivery, acceptance will be implied if the gift is unconditional and beneficial to the donee. See, e.g., Sparks v. Hurley, 208 Pa. 166, 57 A. 364, 366 (Sup. Ct. 1904); Graham v. Johnston, 243 Iowa 112, 49 N.W. 2d 540, 543 (Sup. Ct. 1951). The presumption of acceptance may apply even if the donee does not learn of the gift until after the donor's death. Taylor v. Sanford, 108 Tex. 340, 344, 193 S.W. 661, 662 (Sup. Ct. 1912) (assent to gift of deed mailed in contemplation of death but received after grantor's death should be presumed unless a dissent or disclaimer appears). A donee cannot be expected to accept or reject a gift until he learns *136 of it and unless a gift is rejected when the donee is informed of it the presumption of acceptance is not defeated. See id. at 344, 193 S.W. at 662. Here the gift was clearly beneficial to Scherer, and he has always expressed his acceptance.
Judgment affirmed.
For affirmance Chief Justice HUGHES and Justices MOUNTAIN, PASHMAN, CLIFFORD, SCHREIBER and HANDLER 6.
For reversal None.
NOTES
[1] A more detailed statement of the facts may be found in the Appellate Division decision. A summary is given here only to clarify the issue presented.
[2] For another application of this approach, see Mechem, supra, 21 Ill. L. Rev. 457 at 481. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858112/ | Appraisers v. Remington
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-589-CV
APPRAISERS, BROKERS & CONSULTANTS, INC.; GEORGE C. MACDONALD;
AND MARGARET E. MACDONALD,
APPELLANTS
vs.
REMINGTON INVESTMENTS, INC., ASSIGNEE OF THE FEDERAL DEPOSIT
INSURANCE CORPORATION, RECEIVER FOR BANCFIRST-AUSTIN, N.A.,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. 91-9451, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING
PER CURIAM
Appellee Remington Investments, Inc., sued appellants Appraisers, Brokers &
Consultants, Inc.; George MacDonald; and Margaret MacDonald to recover on a promissory note.
The trial court rendered an "Agreed Judgment" on January 15, 1992, in favor of appellee for the
amount of principal and interest due, plus attorney's fees. No party appealed this judgment. On
July 30, 1992, the trial court signed a second judgment between the parties on the same cause of
action. This judgment also granted appellee recovery of principal and interest due on the note and
further ordered the foreclosure of appellee's lien on certain real property and issuance of an order
of sale. From the judgment signed July 30, appellants bring this appeal.
In point of error one, appellants contend that the trial court's judgment of July 30
was void because it was rendered after the court had lost jurisdiction of the cause. On February
4, 1992, appellee filed a motion to set aside the judgment signed January 15, alleging that the
attorney for appellants had not consented to the judgment. Although appellee requested a hearing
on its motion to set aside, the record does not show that the trial court ever heard or ruled on the
motion. The next filed document appearing in the transcript is the judgment the trial court signed
on July 30.
A judgment is final if it disposes of all issues and parties in the cause and renders
unnecessary any further judicial action except to execute the judgment. Baker v. Hansen, 679
S.W.2d 480, 481 (Tex. 1984); Elizondo v. Williams, 643 S.W.2d 765, 767 (Tex. App.--San
Antonio 1982, no writ). An agreed judgment has the same degree of finality and binding effect
as does one rendered by the court after an adversary proceeding. Pollard v. Steffens, 343 S.W.2d
234, 239 (Tex. 1961); Hill v. Hill, 599 S.W.2d 691, 692 (Tex. Civ. App.--Austin 1980, no writ).
A trial court can render only one final judgment in a cause. Tex. R. Civ. P. 301. To set aside
a judgment during its period of plenary power, the court must either sign an order expressly
vacating the judgment or render a second judgment showing that the court vacates the first.
McCormack v. Guillot, 597 S.W.2d 345, 346 (Tex. 1980); Stephens v. Henry S. Miller Co., 667
S.W.2d 250, 252 (Tex. App.--Dallas 1984, writ dism'd by agr.).
The "Agreed Judgment" signed in January disposed of all issues and parties and
required no further action except to execute the judgment, making it a final judgment. Although
this judgment did not explicitly award appellee foreclosure of its lien, foreclosure would simply
be a means of satisfying the judgment alternative to directly paying the balance due on the note.
Thus, the first judgment did not determine that foreclosure was not an option. Treating appellee's
motion to set the judgment aside as a motion to modify, correct, or reform under Rule of Civil
Procedure 329b, the trial court's plenary power extended 105 days beyond the signing of the first
judgment or until April 29, 1992. Tex. R. Civ. P. 329b(c), (e); see 5 Texas Civil Practice § 29:4,
at 264 (Diane M. Allen et al. eds., 1992 ed.). During this 105 days, the trial court neither signed
an order expressly vacating the first judgment nor issued a second judgment indicating that it
vacated the first. After April 29, 1992, the trial court lost jurisdiction of the cause and could only
set the first judgment aside by bill of review for sufficient cause. Tex. R. Civ. P. 329b(f);
McCormack, 597 S.W.2d at 346. Beyond the period of plenary power, the trial court lost its
power not only to change the judgment, but to uphold it as well. Times Herald Printing Co. v.
Jones, 730 S.W.2d 648, 649 (Tex. 1987).
Because the trial court had no jurisdiction to render the judgment of July 30, the
judgment is void. Times Herald Printing Co., 730 S.W.2d at 649; Southern County Mut. Ins. Co.
v. Powell, 736 S.W.2d 745, 748 (Tex. App.--Houston [14th Dist.] 1987, no writ); Kollman Stone
Indus., Inc. v. Keller, 574 S.W.2d 249, 252 (Tex. Civ. App.--Beaumont 1978, no writ). We
therefore sustain point of error one. Our disposition of this point renders it unnecessary to
consider the remaining points of error.
This Court has jurisdiction of an appeal from a void judgment to declare its
invalidity and to set it aside. Continental Casualty Co. v. Street, 364 S.W.2d 184, 186 (Tex.
1963); Fulton v. Finch, 346 S.W.2d 823, 827 (Tex. 1961); Haun v. Steigleder, 830 S.W.2d 833,
834 (Tex. App.--San Antonio 1992, no writ); Caddell v. Gray, 544 S.W.2d 481, 483 (Tex. Civ.
App.--Waco 1976, no writ) (opinion on rehearing). We accordingly vacate the judgment the trial
court rendered on July 30, 1992, as being void.
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Judgment Vacated
Filed: December 8, 1993
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1743480/ | 710 N.W.2d 259 (2005)
IN RE C.S.
No. 05-1680.
Court of Appeals of Iowa.
December 7, 2005.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561330/ | 18 So. 3d 775 (2009)
THE CADLE COMPANY
v.
Harry S. ANDERSON.
No. 2009-CA-0068.
Court of Appeal of Louisiana, Fourth Circuit.
July 30, 2009.
As Amended on Grant of Rehearing September 2, 2009.
Mark C. Landry, Newman Mathis Brady & Spedale, APLC, Metairie, LA, for The Cadle Company.
Elizabeth A. Roussel, Philip A. Franco, Adams and Reese LLP, New Orleans, LA, for Defendant, Harry S. Anderson.
(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III and Judge MAX N. TOBIAS, JR.).
JOAN BERNARD ARMSTRONG, Chief Judge.
The defendant-appellee, Harry S. Anderson, appeals a judgment of November 7, 2008, denying his motion for summary judgment and granting the motion for summary judgment of the plaintiff-appellee, The Cadle Company, condemning him to pay to The Cadle Company $79,250.00, together with costs and interest from the date of judicial demand.
The parties agree that there are no genuine issues of material fact and the case turns entirely on questions of law.
On February 17, 1990, Harry S. Anderson, A Professional Law Corporation ("the PLC"), executed a Promissory Note in favor of Hibernia National Bank pursuant *776 to which the bank loaned the PLC the sum of $79,250.00. Mr. Anderson executed a personal standard form Commercial Guaranty of the Note which made provision for future advances, but none were ever made. Mr. Anderson's personal liability under the Guaranty was limited by its express terms to the sum of $79,250.00, the amount of the Note.
Hibernia sued only the PLC when the Note matured on February 17, 1991 and obtained a default judgment against the PLC on September 29, 1993 in the principal amount of $78,150.00, together with interest, attorney fees, and costs. Mr. Anderson was not personally named or served in the default judgment. Hibernia assigned the default judgment to The Cadle Company on November 6, 1996. It was not until November 2, 2005, over 12 years after Hibernia obtained the default judgment and over 14 years after the note matured that The Cadle Company filed suit against Mr. Anderson.
Mr. Anderson filed an exception of prescription which was overruled on June 6, 2008.
The parties then filed cross motions for summary judgment, agreeing that there were no genuine issues of material fact, but disagreeing on the law. Although The Cadle Company's original petition demanded a much larger sum, The Cadle Company conceded that, under the terms of the Guaranty, Mr. Anderson maximum principal exposure was $79,250.00. The Guaranty provides that:
The amount of this Guaranty Is Seventy Nine Thousand Two Hundred Fifty & 00/100 Dollars ($79,250.00)....
The Guaranty also contained additional language limiting recovery under it to:
U.S. $79,250.00, including principal, interest, cost, expenses and attorneys' fees.
The Guarantor, Mr. Anderson, guaranteed "all of Borrower's present and future Indebtedness in favor of Lender ..."
The Guaranty further provides that Mr. Anderson's obligation thereunder is solidary.
Although the trial court ruled against Mr. Anderson on his exception of prescription and he says that he is appealing the denial of his motion for summary judgment and not the denial of his exception of prescription, both parties argue that prescription is the only critical issue in the case. We agree with the assertion made on page three of The Cadle Company's brief that:
However, the only issue in the case is whether the claim against Mr. Anderson has prescribed.
Mr. Anderson does not argue that Hibernia was required to join him in the suit against the PLC on the Note. We have found no such requirement in the law. We noted above, under the terms of the Guaranty, Mr. Anderson is a "solidary surety" and as such his position before the law may be less favorable than that of a simple surety. Louisiana Bank and Trust Company, Crowley v. Boutte, 309 So. 2d 274, 279-280 (La.1975).
The Cadle Company argues that this court should affirm the trial court and apply the prescription applicable to the judgment which may be reinscribed every ten years ad infinitum under La. C.C. art. 3501. Mr. Anderson argues that he is entitled to the same prescription as that of the Note sued upon, in which case the claim against him would have prescribed.
Apparently, the Note provided for an original interest rate of 5 พ% per annum, which rate jumps to 25% upon default. The effect of 25% interest could quickly cause a small sum to grow to enormous proportions. Mr. Anderson argues that a *777 creditor could deliberately choose to keep re-inscribing a judgment bearing such a high interest rate, rather than trying to immediately execute upon the judgment, in an attempt to see how much interest could be accumulated โ in effect, an argument suggesting bad faith and/or laches. In fact, he argues that this is precisely what The Cadle Company attempted to do by what he refers to as "a pattern of prejudical delay." Moreover, we note that The Cadle Company originally attempted to collect more than $250,000.00 from Mr. Anderson early on in this litigation until Mr. Anderson countered with the provision in the Guaranty which protected him from such a possibility by limiting his liability to the amount of the original loan, $79,250.00, including interest. Thus, while Mr. Anderson's liability is limited by the terms of the Guaranty, the principal for which he contends should be strongly favored by considerations of fairness and public policy in consideration of those future litigants who may not have the benefit of such a favorably worded limitation.[1]
We find that the opinion in Britton v. Bush, 31 La.Ann. 264 (1879). which analyzes the legal principles involved, is fully dispositive of this case. The Britton court explained the legal theory behind the concept of co-solidary obligors (as Mr. Anderson and the PLC were by virtue of his execution of the Guaranty) as applied to prescription where a judgment is obtained against only one of the solidary obligors:
We are referred to Wilson v. McMain, 29 An. 298. That case only decided the very elementary doctrine that a citation interrupts prescription, which remains suspended until judgment, when it again commences its course. It is said that the effect of the rendition of the judgment was to make the prescription on the note similar to that on the judgment. This is erroneous. Hite v. Vaught, 2 An. 971[970]; Dwight v. Brashear, 5 An. 551; Richard v. Butman, 14 An. 144. This current of authority is now strenuously assailed, but we think unsuccessfully. Hite v. Vaught is charged as being ill-considered and not in accord with elementary principles. We do not think so.
The opinion of Mr. Justice Slidell is none the less perspicuous because of its terseness. The industry of counsel has been expended in collecting opinions from the commentators on the Napoleon Code, claimed as overwhelmingly showing the want of proper authority for Hite v. Vaught. We can not with any regard for conciseness review all the authorities quoted, but we will endeavor briefly to show the incorrectness of the propositions which are sought to be defended.
We are told that a judgment constitutes a perpetual acknowledgment on the part of the judgment debtor, therefore *778 the acknowledgment of the debtor interrupted as to his co-solidary obligors. The fallacy is exposed by saying that if the premise were true there would be no prescription of judgments. It is urged that the rendition of the judgment against one of the solidary obligors from the nature of things created a common term of prescription for all. Why so? The theory upon which the law proceeds in making an interruption as to one good as to others is the existence of a legal mandate, ad conservandum obligationem, but such mandate gives no power "ad augendam obligationem." This limitation on the scope of the fictitious legal mandate prevents a judgment rendered contradictorily with one only of the obligors from creating the presumption of res adjudicata as to the obligor not sued. C.C.2098; Rodiere de la Solidarit้, p. 84; Marcad้, vol. 5, p. 199; Duranton, vol.-, No. 520; Aubry et Rau sur Zacharie, vol. 5, p. 74; Mourlon, vol. 2, p. 541....
"Every thing," says Rodiere, in concluding his admirable examination of the scope of the agency between solidary obligors, "we have said can be resumed in two principles, which are that a co-debtor can never make the obligation of his co-obligor more onerous, but he can improve it." [Emphasis added.]
Id., at 265-266; see also, Wooten v. Wimberly, 272 So. 2d 303 (La.1973); Continental Supply Co. v. Fisher Oil Co., 156 La. 101, 100 So. 64 (1924).
The essence of what the Britton court is saying as it pertains to the instant case is that one solidary co-debtor can "never make the obligation of his co-obligor more onerous." Thus, the judgment against the PLC cannot enlarge the prescriptive period against Mr. Anderson as guarantor.[2] As explained in Britton, while suit filed against one co-solidary debtor, in the instant case the PLC, interrupts the five year prescription on the note, once the suit is concluded by the rendering of the judgment, the original five-year prescription against the solidary co-debtor, Mr. Anderson commences to run again.
We find that this imposes no particular hardship on the creditor. Hibernia *779 had five years to sue on the note and did so on February 19, 1991. Pursuant to Brock v. First State Bank & Trust Co., 187 La. 766, 175 So. 569 (1937) and Louisiana Bank and Trust Company, Crowley v. Boutte, 309 So. 2d 274 (La.1975), Hibernia could have sued Mr. Anderson at the same time as a co-solidary obligor, but chose not to do so for its own reasons. However, having done so, prescription as to Mr. Anderson as a co-solidary obligor was interrupted until Hibernia obtained the default judgment on September 23, 1993. At that point the five-year prescription commenced to run again.
It was not until November 2, 2005, over 12 years after Hibernia obtained the default judgment and over 14 years after the note matured, that The Cadle Company filed suit against Mr. Anderson. Clearly, by that time the claim had prescribed. Therefore, even if we were to apply the ten-year prescriptive period applicable to personal actions under La. C.C. art. 3499 based on the original contract of continuing guaranty, we would still have to find that the claim asserted by The Cadle Company had prescribed.
For the foregoing reasons, we vacate the judgment of the trial court and render judgment in favor of Mr. Anderson at plaintiff's cost.
VACATED AND RENDERED.
ON REHEARING GRANTED
This Court grants rehearing on its own motion in order to clarify its judgment rendered on July 30, 2009 by changing the first sentence found at the top of page "2" of judgment which currently reads as follows:
Mr. Anderson was not personally named or served in the default judgment.
That sentence shall now read:
Mr. Anderson was not personally named or served in the suit. Nor was he named or case in judgment in the default judgment.
In all other respects the language of the judgment shall remain as originally written.
NOTES
[1] The law would have to be very clear and compelling before we would consider such an open ended claim where the co-obligor could be subject without notice of the original judgment many years down the line. The reinscription of a judgment ad infinitum as regards a defendant cast in judgment is very different in that the judgment must be based on due process requirements of notice. Mr. Anderson was never served in his individual capacity with the suit on the note and was never served as such with a notice of judgment. We do not decide whether there may be Mennonite type issues imbedded in the potential for abuse to which a solidary co-debtor without notice could be subjected were we to adopt the position advocated by the plaintiff herein, but we can certainly see some comparisons to the factors that motivated the U.S. Supreme Court to take the position it did in that case. See Mennonite Board of Missions v. Adams, 462 U.S. 791, 800, 103 S. Ct. 2706, 2712, 77 L. Ed. 2d 180 (1983).
[2] We wish to make it clear that when we say that one solidary co-debtor cannot enlarge the obligation of another, we are not saying that the PLC could not bind Mr. Anderson for future advances under the Guaranty. We recognize that such a holding would be totally contrary to the entire concept of continuing guaranty. Such would not be an enlargement of the obligation of the solidary co-debtor as the solidary co-debtor expressly assumes the obligation of future advances under the terms of the continuing guaranty. Likewise, we do not rule out the possibility that it may be possible by express contractual provisions in the continuing guaranty to expand the scope of the guarantee to include judgments thereby making the prescriptive period applicable to the judgment applicable to the guarantor (assuming that there were no other defects, e.g., problems of notice, good faith or laches), but there is no reference to judgments in the continuing guaranty signed by Mr. Anderson in the instant case. As we are strongly of the opinion that the guaranty should be strictly construed against the creator of the guaranty form and its successors in interest, in this case the plaintiff, in the absence of any language expressly guaranteeing future judgments such that the prescriptive period applicable to such judgments should become applicable to the guarantor, we shall make no such inference. In other words, we are not persuaded by the plaintiff's argument that the judgment should be treated as another obligation covered by the general language of the continuing guaranty much as though it had been a future advance. In this case there was only one advance; that advance was represented by the Note, and that is the only advance or obligation guaranteed by the Guaranty as there were no future advances. Our holding is limited to the note and guaranty language sued upon by Hibernia. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858131/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-197-CR
CHARLES WILLIAMS, JR.,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT
NO. 7503, HONORABLE DAN R. BECK, JUDGE PRESIDING
This appeal is taken from a conviction for possession of cocaine less than twenty-eight grams. After the jury found appellant guilty, the trial court assessed punishment at ten
years' imprisonment.
Appellant advances seventeen points of error. First, he challenges the legal
sufficiency of the evidence to sustain the conviction. Next, in twelve points of error, appellant
complains that the trial court erred in admitting into evidence a recorded conversation and an
audio/video tape in violation of federal and state constitutional provisions and a state statute. In
two points of error, appellant raises Batson v. Kentucky, 476 U.S. 79 (1986), questions. The last
two points of error deal with claimed jury charge errors. We will sustain the challenge to the
sufficiency of the evidence and do not reach the other points of error.
About 9 p.m. on March 22, 1991, Texas Department of Public Safety Troopers
Scott Bayless and Justin Owen were patrolling on U. S. Highway 77, just north of LaGrange.
They stopped a 1977 Oldsmobile station wagon after seeing it weave and swerve over the shoulder
stripe on the right side of the highway. Appellant was the driver. He was accompanied by a
seventeen year old female, Me-Sheila Duncan, and a male juvenile. Appellant exited the
automobile and was questioned by the officers about his driver's license and proof of liability
insurance on the Oldsmobile. Appellant had neither a driver's license nor evidence of liability
insurance. A registration check by the officer showed that the vehicle was registered to a Douglas
Logan of LaGrange. With appellant's permission, the officers searched the Oldsmobile and found
nothing unlawful. No contraband was found on appellant's person, and there was no evidence that
he was under the influence of narcotics.
During the stop, the Assistant Chief of Police at LaGrange arrived on the scene.
After this officer conversed with the other officers, Trooper Bayless approached Me-Sheila
Duncan, who was apparently out of the vehicle at this time, to check her. Duncan told Bayless
that he could not search her because she was a female. She had both hands in her coat pockets.
Bayless asked her to remove her hands from the coat pockets. Duncan removed her left hand but
not her right hand. When Bayless reached for her right hand, Duncan removed her right hand and
threw two objects into a nearby ditch. Trooper Owen immediately recovered the objects, two
match boxes containing what the officers believed to be rock cocaine. Duncan was arrested for
possession of cocaine and warned of her rights. A search incident to her arrest revealed that she
had $240.00 on her person. The juvenile was not arrested. Appellant and Duncan were placed
in the back seat of the patrol car. A second search of the Oldsmobile station wagon also failed
to reveal any contraband.
The D.P.S. patrol vehicle was equipped with a video camera with on-camera and
remote microphone capabilities. Some of the activities and conversation outside the patrol vehicle
during the stop were recorded. When appellant and Duncan were placed in the patrol vehicle,
Trooper Bayless, without their knowledge, switched on the on-camera or inside microphone to
record what was said in the vehicle while the officers were outside. The audio/video tape and the
taped or recorded conversation between appellant and Duncan was introduced over objection as
State's exhibit number one. The exhibit reflects that when Duncan was arrested and handcuffed,
one officer told appellant, "You are going too." No warnings were given. Appellant was
handcuffed and placed in the patrol vehicle with Duncan. The tape was played for the jury but
was not transcribed.
Our playing of the tape reveals a disjointed conversation between two agitated and
excited individuals. Police dispatcher broadcasts obliterate the beginning of the conversation.
Duncan stated: "They said I threw it." Appellant inquired why Duncan had not thrown "it" when
he got out of the car and "why didn't you throw it when I told you?" Duncan began to cry and
stated that she was going to jail "for some time," was going "to the pen." Appellant complained
that he was being charged with it and somebody "set me up." Duncan lamented that she already
had three years, (1) "three months in Harris and I don't know how much here." Duncan then
declared that she had "no crack in my bag" and the officers had "nothing," and could not charge
her with what they picked up. Appellant reminded her that the officers saw her throw it and that
he saw her throw it, too. Duncan replied "I'm arrested, O.K.? I did it for Flash. (2) I want him
to get me out of this s--t." Appellant accused Duncan of not listening or hearing as he "was
getting the rap." Duncan responded that she was also getting "the rap," and then suddenly she
asked if he was being arrested, too. Appellant's reply was "you are g d right, I am."
Appellant told Duncan not to cry, but she should have thrown it. Duncan then told appellant: "If
you are not going to take the blame I have got to. It is not mine." Appellant answered: "It is not
mine, either." Appellant then inquired if Duncan had "more than two boxes," and she replied:
"That's it."
The conversation ended when an officer opened the car door. When appellant
inquired why he was being arrested, the officer told him the arrest was for "no insurance, unless
we find on you what we found on her." After later listening to the recorded conversation, the
officers charged appellant with possession of the cocaine in the match boxes. The officers
admitted that appellant was never seen in actual possession of the cocaine and the match boxes
were not connected to appellant. No fingerprints check was made on the match boxes.
Dennis Ramsey, a chemist/toxicologist with the Texas Department of Public Safety,
testified that he had performed a chemical analysis on the substance in the two match boxes
delivered to him by Trooper Owen. He determined that there was cocaine in each box. Ramsey
did not testify as to the amount of cocaine. When asked if he used all of the contents of the match
boxes in the chemical tests, Ramsey replied "No, sir. There is still what I determined to be
cocaine in each box." When the State rested its case at the guilt/innocence stage of the trial,
appellant also rested.
The standard for reviewing the legal sufficiency of the evidence to sustain a
conviction is whether, viewing the evidence in the light most favorable to the jury's verdict, any
rational trier of fact could have found the essential elements of the offense charged beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 n.12 (1979), Valdez v. State, 776
S.W.2d 162, 165 (Tex. Crim. App. 1989), cert. denied, 495 U.S. 963 (1990). The standard for
review is the same in both direct and circumstantial evidence cases. Herndon v. State, 787
S.W.2d 408, 409 (Tex. Crim. App. 1990); Christian v. State, 686 S.W.2d 930, 934 (Tex. Crim.
App. 1985); see also Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) (abolishing the
reasonable hypothesis of innocence analytical construct doctrine formerly used in circumstantial
evidence cases.). The instant cause is a post-Geesa case to which that decision is applies.
The sufficiency of the evidence must also be measured against the jury charge. If
the evidence does not conform to the jury instruction given, it is insufficient as a matter of law.
Nickerson v. State, 782 S.W.2d 887, 891 (Tex. Crim. App. 1990); Garrett v. State, 749 S.W.2d
784, 802-03 (Tex. Crim. App. 1988) (op. on reh'g); Boozer v. State, 717 S.W.2d 608, 610-11
(Tex. Crim. App. 1984); Krueger v. State, 843 S.W.2d 726, 727 (Tex. App.--Austin 1992, pet.
ref'd). The court's charge in the instant case did not include an instruction on the law of parties.
See Tex. Penal Code Ann. §§ 7.01, 7.02 (West 1989). Appellant's conviction cannot be sustained
on the theory that he was criminally responsible for the acts of Me-Shelia Duncan or that he acted
to aid or encourage her in the commission of the offense of possession of cocaine. Jones v. State,
815 S.W.2d 667, 671 (Tex. Crim. App. 1991); Krueger, 843 S.W.2d at 127. Therefore, we must
determine if there is legally sufficient evidence to support a finding beyond a reasonable doubt by
a rational trier of fact that appellant personally possessed the cocaine in question.
When an accused is charged with the unlawful possession of a controlled substance
such as cocaine, the State must prove two elements: (1) that the accused exercised care, control,
custody, or management over the contraband and (2) that the accused knew the matter possessed
was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988); Whitworth v.
State, 808 S.W.2d 566, 568 (Tex. App.--Austin 1991, pet. ref'd). "Possession" means actual care,
custody, control or management. See Tex. Health & Safety Code Ann. § 481.002(38) (West
1992). "Possession" is a voluntary act if the possessor knowingly obtains or receives the thing
possessed or is aware of his control of the thing for a sufficient time to permit him to terminate
his control. See Tex. Penal Code Ann. § 6.01(b) (West 1974). This definition in the Penal Code
applies to a prosecution under the Controlled Substances Act. Tex. Penal Code Ann. § 1.03(b)
(West 1974).
The mens rea requirement of a possessory offense is knowledge by an accused that
his conduct or the circumstances of his conduct constitutes possession of a controlled substance.
Tex. Penal Code Ann. § 6.03(b) (West 1974); Humason v. State, 728 S.W.2d 363, 368 (Tex.
Crim. App. 1987). Possession of a controlled substance need not be exclusive, and evidence that
an accused jointly possessed the controlled substance with another is sufficient. McGoldrick v.
State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); Oaks v. State, 642 S.W.2d 174, 176 (Tex.
Crim. App. 1982). Whether the theory of the prosecution is sole or joint possession, the evidence
must sufficiently link or tie the accused to the contraband by a showing that indicates the
accused's knowledge and control of the contraband. Waldon v. State, 479 S.W.2d 499, 501 (Tex.
Crim. App. 1979). The burden of proof rests upon the State. Damron v. State, 570 S.W.2d 933,
935 (Tex. Crim. App. 1978).
When there is an absence of direct evidence that an accused was in exclusive
possession of a controlled substance, then possession, if any, must be proved by circumstantial
evidence. Oaks, 642 S.W.2d at 179. Various facts and circumstances may be shown to prove
that the accused and another person or persons acted jointly in possessing a controlled substance.
Id. at 176. Proof, however, that amounts only to a strong suspicion or mere probability is not
sufficient to sustain a conviction. Urbano v. State, 837 S.W.2d 114, 116 (Tex. Crim. App.
1992); Skelton v. State, 792 S.W.2d 162, 167 (Tex. Crim. App. 1989), cert. denied, 111 S. Ct.
210 (1990). Mere presence of an accused at the scene of an offense, Oaks, 642 S.W.2d at 177,
or "even knowledge of an offense does not make one a party to joint possession." Rhyne v. State,
620 S.W.2d 599, 601 (Tex. Crim. App. 1981). Possession means more than being where the
action is; it involves the exercise of dominion and control over the thing allegedly possessed.
Oaks, 652 S.W.2d at 177. A defendant's close association with someone involved in criminal
activity will not alone support an inference of guilt. United States v. Osgood, 794 F.2d 1087,
1094 (5th Cir.), cert. denied, 479 U.S. 994 (1986).
In the instant case, there was no evidence placing appellant in actual physical
possession of the cocaine in question. No contraband was found on his person or in the vehicle
he was driving. Appellant was not shown to have been under the influence of narcotics nor did
he attempt to flee. He made no incriminating statements to the officers. The State relies heavily
upon the recorded conversation between appellant and Duncan. The conversation shows that the
cocaine was in Duncan's possession, not appellant's. If any of appellant's statements or remarks
in the conversation can be interpreted as showing that appellant aided or encouraged Duncan in
the possession of cocaine offense, they would not be sufficient to sustain appellant's conviction
for the law of parties was not submitted in the court's charge. Boozer, 717 S.W.2d at 610-11.
The conversation revealed that appellant did not know everything that Duncan may have had in
her possession, and he clearly denied that the cocaine discarded by Duncan was his. The State
relies upon appellant's remark that he was being "set up" as denoting "a consciousness of guilt."
In the context in which the remark was made, it is obvious that appellant was complaining of
being framed. Standing alone it does not establish that appellant had the actual possession of the
cocaine. While the evidence reflects that the thirty-eight year old appellant and the seventeen year
old Duncan and her juvenile brother were on the way to Giddings, there was no showing as to
how long Duncan had been in the station wagon, or what her past association with appellant had
been. There is nothing more than strong suspicion or mere probability that appellant had the
actual care, custody, control and management of the cocaine that Duncan threw into the ditch.
The State did not sustain its burden of proof.
The State relies upon Young v. State, 842 S.W.2d 365 (Tex. App.--Eastland 1992,
no pet.). Young did not even consider that mere presence or even knowledge of an offense does
not make one a party to joint possession of contraband. Rhyne, 620 S.W.2d at 601. (3) We are not
bound by Young.
Viewing the evidence in the light most favorable to the jury's verdict, we cannot
conclude that a rational trier of fact could have found beyond a reasonable doubt the essential
elements of the offense charged and as submitted to the jury in the court's charge. Our
responsibility does not include substituting our view of the evidence for that of the jury's,
Blankenship v. State, 780 S.W.2d 198, 207 (Tex. Crim. App. 1989); Moreno v. State, 755
S.W.2d 866, 867 (Tex. Crim. App. 1988), but our function is to insure as a matter of law that
no one is convicted of a crime except on proof beyond a reasonable doubt. "In carrying out our
task, we remain cognizant that 'proof beyond a reasonable doubt' means proof to a high degree
of certainty. Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991)." Urbano, 837
S.W.2d at 116. Point of error one is sustained.
In view of our disposition of the initial contention, we do not reach the other points
of error.
Because the evidence is insufficient to sustain the conviction, the principles of
double jeopardy apply and the appellant is ordered acquitted. Burks v. United States, 437 U.S.
1 (1978); Greene v. Massey, 437 U.S. 19 (1978).
The judgment of conviction is reversed and reformed to reflect an acquittal.
John F. Onion, Jr., Justice
Before Justices Jones, Kidd and Onion*
Reversed and Reformed
Filed: November 24, 1993
Do Not Publish
* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
1. Appellant's brief refers to this matter as "3 years probation."
2. "Flash" was shown to be Kevin "Flash" Bradley, Duncan's husband, who was in the Fayette
County Jail at the time.
3. Justice Arnot, dissenting in Young, wrote: "I cannot hold that driving an automobile,
knowing that contraband is in it, alone is sufficient to exercise control over the contraband [found
in the rear seat area]." Justice Dickerson, concurring in Young, stated: "Let the drivers of motor
vehicles beware! If you agree to drive a car as an accommodation to your friend, this case holds
that you can be found guilty of possession of cocaine if your friend testifies that he had cocaine
in his car." | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2858157/ | Duty
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-606-CV
PEGGY SCOTT DUTY AND THE ESTATE OF TONY DUTY,
APPELLANTS
vs.
TEXAS STATE LIBRARY AND ARCHIVES COMMISSION,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 485,859, HONORABLE JOE B. DIBRELL, JR., JUDGE PRESIDING
This is an appeal of a summary judgment in a replevin and declaratory judgment
action involving the ownership of twenty-one Texas historical documents. Appellee, the Texas
State Library and Archives Commission ("the Library"), filed suit against appellants Peggy Scott
Duty ("Duty") and the estate of Tony E. Duty ("the estate") to determine ownership of the
documents. (1) The trial court granted summary judgment in favor of the Library, ruling that "the
State of Texas has an absolute right to the possession of the documents." Duty and the estate
appeal. We will reverse the judgment and remand the cause to the trial court for further
proceedings.
BACKGROUND
Tony E. Duty of Waco, Texas, was an avid collector of Texana. He collected
books, historical documents, stamps, guns, and other items related to the history of Texas. After
Mr. Duty's death, his widow Peggy Scott Duty arranged to have her late husband's autograph and
book collection sold at auction. The auction was to have been held on February 10-12, 1990, by
Tom Keilman and Son.
After reading advertisements for the auction, Library officials suspected that over
forty of the documents in the collection had been stolen from the Library collection. Among these
were the twenty-one documents that are the focus of this suit. The twenty-one documents date
back to the 1830s, when Texas was an independent sovereign republic. Many contain the
signatures of famous figures from Texas history such as Stephen F. Austin, Sam Houston, and
William Barret Travis. The documents are of various types, mostly redeemed drafts and
promissory notes for goods and services provided to the government, letters written by civil and
military leaders in their official capacities, and petitions from citizens seeking political
appointments.
Duty refused to surrender any of the documents to the Library. However, Duty
and the estate did agree with the Library to withdraw the twenty-one documents from the auction,
and "not to sell or otherwise transfer ownership of these documents until the [Library] consents
to such a transfer or the [Library's] claims of entitlement to the documents are finally resolved."
In return, the Library agreed to relinquish claims to all but twenty-one of the documents to be
auctioned.
The Library filed suit against Duty and the estate for declaratory judgment and
replevin on June 15, 1990. On May 28, 1992, the Library filed a motion for summary judgment,
relying upon provisions of the Government Code that provide for the retention of state records
and documents of historical significance. Section 441.010(a) of the Government Code, in
pertinent part, provides that "[a] book, picture, document, publication, or manuscript received
through gift, purchase, or exchange or on deposit, from any source, for the use of the state, . .
. constitutes part of the state library and shall be placed in the state library for use by the public."
Tex. Gov't Code Ann. § 441.010(a) (West 1990) (emphasis added). The Library also relied upon
subpart b of the section:
A book or paper, including a picture, map, document, manuscript, memorandum,
or data, that relates to the history of Texas as a province, colony, republic, or state
and that is delivered to the director and librarian by an officer or other person, in
accordance with law, is considered a book or paper of the state library and
constitutes a part of the archives of the state library.
Tex. Gov't Code Ann. § 441.010(b) (West 1990) (emphasis added). The Library argued that
these provisions established as a matter of law that the documents were Library property.
The Library supported its motion for summary judgment with the affidavits of
Willliam D. Gooch, the Library Director and State Librarian, and Michael R. Green, the
Reference Archivist at the State Archives Division of the Texas State Library and Archives
Commission. Green's affidavit addressed each document individually, noting when library
records indicated that the document had once been part of the Library's collection or when the
document was a public record that should have been deposited with the Library. In response to
the Libary's summary judgment motion, Duty argued that fact issues remained because the affiants
did not have personal knowledge that the documents had actually been in the archives; the affiants
had seen only secondary evidence that the documents had once been in the archives.
The trial court granted the Library's motion for summary judgment on October 26,
1992, determining as a matter of law that "the State of Texas has an absolute right to the
possession of the documents." Duty and the estate appeal.
DISCUSSION
In their fifth point of error, Duty and the estate contend that the trial court erred
by granting the Library's motion for summary judgment because there were genuine issues of
material fact as to whether the documents were owned by the Library. The standards for
reviewing a motion for summary judgment are well-settled: (1) The movant for summary
judgment has the burden of showing that no genuine issue of material fact exists and that she is
entitled to it as a matter of law; (2) in deciding whether there is a disputed material fact issue
precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and
(3) every reasonable inference must be indulged in favor of the nonmovant and any doubts
resolved in her favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.
1985).
We agree with Duty and the estate that the Library failed to establish that no fact
issues exist regarding ownership of the documents. The strength of the evidence supporting the
Library's ownership of the documents varies. The Library makes the strongest case for ownership
of a letter from Stephen F. Austin to the Secretary of the Treasury Henry Smith, dated December
17, 1836. There is a record of this letter having been received by a predecessor of the Library
and later noted in an item-level inventory, though the date of this inventory is unclear. The letter
was no longer in the Archives by 1955, when Seymore V. Connor was unable to find it while
preparing Texas Treasury Papers, Letters Received in the Treasury Department of the Republic
of Texas, 1836-1844. The Library asserts that because a search of their records found no record
that the Library had transfered ownership of the document, the Library still owns the document.
The Library cites section 441.035 of the Government Code, which provides that the Library may
transfer, destroy, or otherwise dispose of a record only with the agreement of the comptroller,
state auditor, and attorney general along with the director and librarian of the Library. Tex.
Gov't Code Ann. § 441.035 (West 1990).
The Library's argument fails to remove all genuine issues of material fact regarding
ownership. The predecessor of section 441.035 was enacted in 1947. Act of June 2, 1947, 50th
Leg., R.S., ch. 403, § 1, 1947 Tex. Gen. Laws 945, 946 (Tex. Ann. Civ. St., art. 5441a, since
amended). Thus, prior to 1947, no statute established a procedure for the transfer of ownership
of the Library's contents. A fact issue remains whether, at some time during the period between
when the document was received and when this statutory procedure was adopted, a Library
official transferred ownership of the letter to a private citizen.
The Library's claims of ownership of the other documents are much less compelling
and, therefore, also inappropriate for resolution by summary judgment. Many are essentially
cancelled checks. The documents indicate that the Republic of Texas owed various individuals
money for goods or services they provided to the Republic and that the individuals presented their
claims and were paid by the Republic. The Library argues that once redeemed, the drafts became
property of the Republic of Texas, and would have been deposited with the predecessor of the
Library. The Library has failed to demonstrate that no fact issues remain concerning the
ownership of what amount to one-hundred-fifty-year-old cancelled checks. Because fact issues
remain that bear on the ownership of these and the other documents claimed by the Library, we
sustain appellants' fifth point of error. Since we sustain appellants' fifth point of error, we do not
address appellant's remaining points of error.
We reverse the judgment of the trial court and remand the cause to the district court
for a trial on the merits.
Mack Kidd, Justice
Before Chief Justice Carroll, Justices Kidd and B. A. Smith
Reversed and Remanded
Filed: November 3, 1993
Do Not Publish
1. Tom Keilman and Son, the auctioneers, were also defendants but do not appeal the
summary judgment. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1539762/ | 974 A.2d 315 (2009)
409 Md. 304
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
Donald Paul McLAUGHLIN.
Misc. Docket AG No. 70, September Term, 2007.
Court of Appeals of Maryland.
June 18, 2009.
*316 Marianne J. Lee, Asst. Bar Counsel (Melvin Hirshman, Bar Counsel, Atty. Grievance Com'n of Maryland), for Petitioner
Melvin G. Bergman, Greenbelt, MD, for Respondent.
Argued Before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.
ADKINS, Judge.
The Attorney Grievance Commission of Maryland, acting through Bar Counsel and pursuant to Maryland Rule 16-751(a),[1] filed a Petition for Disciplinary or Remedial Action against Respondent Donald P. McLaughlin. Bar Counsel charged McLaughlin with violating the Maryland Rules of Professional Conduct ("MRPC") in two matters, the first involving the complaint of client Ebony Fitzgerald and the second involving a trust account overdraft. Following a July 8, 2008 hearing in the Circuit Court for Prince George's County, the hearing judge issued Findings of Fact and Conclusions of Law that included the following findings in the Fitzgerald matter:
The facts underlying the alleged violations are, for the most part, undisputed. At the hearing, Respondent, through counsel, admitted that he engaged in professional misconduct but contended that the actions were not willful violations of the Maryland Rules of Professional Conduct (MRPC), as adopted by Maryland Rule 16-812.
I. Complaint of Ms. Ebony Fitzgerald
On or about March 29, 2006, the Respondent was notified by Bar Counsel of the complaint filed by Ebony Fitzgerald (hereinafter referred to as Ms. Fitzgerald). Bar Counsel alleges that the Respondent violated the following Maryland *317 Lawyers' Rules of Professional Conduct:
1) Rule 1.8 Conflict of Interest[2]
2) Rule 1.15 Safekeeping of Property[3]
3) Rule 8.4 Misconduct[4]
4) Rule 16-609 Prohibited Transactions[5]
5) Md.Code Ann., Business Occ. & Professions Art., § 10-306[6]
In December 2002, Ms. Fitzgerald retained the Respondent to represent her in her personal injury matter arising from a fire at her apartment in Suitland, Maryland. A contingency fee agreement was signed by Ms. Fitzgerald hiring the Respondent on December 8, 2002. Ms. Fitzgerald was referred to the Respondent by her mother, Antoinette Greene, who worked with Respondent's wife, Annette McLaughlin, at the law firm of Foley and Lardner.
During his representation of Ms. Fitzgerald, the Respondent loaned Ms. Greene, Ms. Fitzgerald's mother, a total of $3,000. Neither Ms. Greene, nor the Respondent, advised Ms. Fitzgerald of the transaction. In January and February of 2003, the Respondent issued checks in the amounts of $2000 and $1000 payable to Ms. Greene out of his attorney escrow account. At the time, Ms. Greene was not, and had never been, a client of the Respondent. No money was held in trust on behalf of Ms. Greene or his client, Ms. Fitzgerald. By *318 November 2003, Ms. Greene had not yet repaid the $3,000 loan to Respondent.
In November 2003, Ms. Fitzgerald requested from the Respondent a loan in the amount of $600 pending her personal injury matter. Per the testimony of both Ms. Fitzgerald and the Respondent, Ms. Fitzgerald was not aware of the Respondent's loan to Ms. Greene prior to this request. Although the Respondent's loan to Ms. Greene was unrelated to Ms. Fitzgerald's case, the Respondent advised that the only way he would give her the $600 loan would be if she agreed to pay back her mother's $3,000 loan. Ms. Fitzgerald agreed. The Respondent then prepared an assignment transferring a total of $3,600 from any funds received by settlement or judgment in her personal injury matter to himself. On November 13, 2003, the Respondent and Ms. Fitzgerald executed the assignment. The Respondent then issued a check in the amount of $600 payable to Ms. Fitzgerald from his attorney escrow account. Once again, the Respondent was not holding any funds in his attorney escrow account on behalf of Ms. Fitzgerald.
In June 2004, the Respondent made a second loan to Ms. Fitzgerald in the amount of $500. On June 22, 2004, the Respondent issued a check payable to Ms. Fitzgerald from his attorney escrow account in the amount of $500. The Respondent was not holding any funds in his attorney escrow account on behalf of Ms. Fitzgerald. This loan was also to be repaid from any funds received by the settlement agreement or judgment in Ms. Fitzgerald's personal injury matter.
During the course of the Respondent's representation of Ms. Fitzgerald in her personal injury matter, the Respondent also loaned Ms. Fitzgerald's grandmother, Jean Jacobs, a total of $2,245 from his attorney escrow account. The Respondent issued a total of three (3) checks to Ms. Jacobs from his escrow account: (1) on March 16, 2004, a check in the amount of $995, (2) on March 23, 2004, a check in the amount of $500, and (3) on May 20, 2004, a check in the amount of $750. Ebony Fitzgerald testified that she was unaware of the loans to her grandmother. The Respondent testified that Ms. Fitzgerald was present during the discussions of the loans to her grandmother, Ms. Jacobs. This Court finds the testimony of the Respondent to be more credible. Unlike the loan to Ms. Greene, the advances to Ms. Jacobs were fully disclosed to Ms. Fitzgerald. At the time the Respondent made these loans to Ms. Jacobs, the Respondent was not holding any funds in his escrow account on behalf of Ms. Jacobs. The parties agreed that these loans would also be repaid from any funds received by settlement or judgment in Ms. Fitzgerald's personal injury matter.
In June 2004, Ms. Fitzgerald's personal injury matter was settled for a total of $150,000. The Respondent prepared the settlement statement providing the breakdown of disbursements to be made from Ms. Fitzgerald's settlement funds, and presented it to her on June 22, 2004. Ms. Fitzgerald received $72,269 with $25,000 in annuities on behalf of her two (2) minor children, Sean and Jamie Fitzgerald. The Respondent received $70,000 in legal fees. The settlement statement also provided a deduction of $6,345 for the advances, which included the total amount of the loans the Respondent made to Ms. Greene ($3,000), to Ms. Jacobs ($2,245), and to Ms. Fitzgerald ($1,100).
Based on these findings, the Circuit Court drew the following conclusions of *319 law in the Fitzgerald matter:[7]
Pursuant to MRPC 16-757(b), Petitioner has the burden to prove the violations of the cited rules by clear and convincing evidence. This Court has applied that standard and found the following violations.
* * *
During the course of the Respondent's representation of Ms. Fitzgerald, the Respondent violated MRPC 1.8, 1.15, Maryland Rule 16-609, and Maryland Code Ann., Business Occupations & Professions Art., § 10-306. This Court finds the Respondent did not violate MRPC 8.4 regarding his representation of Ms. Fitzgerald. The pertinent rule sections and facts that support these findings are as follows:
Maryland Rules of Professional Conduct Rule 1.8Conflict of Interest
The Respondent entered into loan agreements with Ms. Fitzgerald, Ms. Greene (her mother), and Ms. Jacobs (her grandmother). At no time did the Respondent advise Ms. Fitzgerald to consult with independent counsel regarding the loans or her assignment, nor was she given a reasonable opportunity to do so. At the time the Respondent loaned Ms. Greene and Ms. Jacobs monies, he was not representing them in any client matters. Their agreements were not transmitted in writing, as there were no promissory notes between Ms. Greene and Respondent. The loan to Ms. Greene was not disclosed to Ms. Fitzgerald until she requested her own advance from the expected settlement check, at which time she was unfairly "forced" to repay the loan to her mother. Accordingly, this Court finds that the Respondent violated MRPC 1.8.
Maryland Rules of Professional Conduct 1.15 Safekeeping Property
Maryland Code Ann., Business Occupations & Professions Art, § 10-306 Misuse of Trust Money
Maryland Rule § 16-609Prohibited Transactions
At the time the advances or loans were disbursed to Ms. Fitzgerald, Ms. Greene or Ms. Jacobs, the Respondent did not hold any funds in his attorney escrow account on behalf of any of the women. The monies advanced to his client, her mother and her grandmother were from deposits entrusted to the Respondent on behalf of other clients or the Respondent's own monies. The loans were made without the prior consent, authority or consultation of any of the Respondent's other clients. The Respondent kept a single bank account for his practice and did not maintain complete records of account funds. The use of a single account without reference to individual clients made it impossible to match clients with their respective expenses. Accordingly, this Court finds that the Respondent violated MRPC 1.15 and Maryland Code Annotated, Business Occupations and Professions Article § 10-306.
Maryland Rules of Professional Conduct 8.4Misconduct
This Court does not find that the Respondent violated MRPC 8.4 regarding his representation of Ms. Fitzgerald.
The Circuit Court's findings of facts regarding the Trust Account Overdraft charge were as follows:
II. Trust Account Overdraft
*320 Bar Counsel also alleged that the Respondent violated the following:
1) Rule 1.15 Safekeeping property
2) Rule 8.1 Bar Admission and Disciplinary Matters[8]
3) Rule 8.4 Misconduct
4) Rule 16-607 Commingling of Funds[9]
5) Rule 16-609 Prohibited Transaction
6) Md.Code Ann., Business Occupations & Professions Art., § 10-306
On May 11, 2006, and May 16, 2006, Bar Counsel received two (2) overdraft notices from Bank of America concerning Respondent's escrow account. The first notice, dated May 4, 2006, reported that two (2) checks, Check No. 4958 for $100 and Check No. 4946 for $365, totaling in the amount of $465 were presented for payment on May 3, 2006. There were insufficient funds at the time of presentation, causing an overdraft on the escrow account in the amount of (negative) -$133.18. The second notice, dated May 8, 2006, reported that one (1) check, Check No. 4977 for $30 was presented for payment on May 4, 2006. Again, there were insufficient funds at the time of presentation, causing an overdraft on the escrow account in the amount of (negative) -$163.19. Bar Counsel contacted the Respondent regarding the overdraft notices. The Respondent explained that his office neglected to promptly deposit the settlement check to cover those payments, but that the overdraft was cured immediately by depositing the related checks. Further investigation by Bar Counsel revealed that the two checks that caused the first overdraft of Respondent's escrow account on May 3, 2006, were issued to medical care providers on behalf of two separate client matters, Sharon Williams and Mr. Cotton/Ms. Ashton, totaling $465. On May 9, 2006, the Respondent deposited a settlement check of a different client, Hakeem Blaize, to cure the overdraft. Accordingly, the settlement funds for Respondent's client Mr. Blaize was used to pay third party providers on behalf of different clients, Ms. Williams and Mr. Cotton/Ms. Ashton, unrelated to Mr. Blaize's matter.
The overdraft notices prompted a more detailed look at the Respondent's accounts. Bar Counsel subpoenaed the Respondent's bank records. The Respondent did not maintain separate operating, escrow and personal accounts from 2002 to 2006. The Respondent used the escrow account to pay for personal and business expenses on a regular basis. The escrow account was used pay bills for the purchase of home furnishings (Marlo Furniture), to pay his employees Marion King and Phillip Gelfo, to pay his monthly rent and telephone bills, and large disbursements to *321 his wife. The Respondent issued checks to "cash." The Respondent also advanced funds to or on behalf of his clients, and delayed disbursing funds to third party providers on behalf of his clients.
The Respondent did not reconcile his escrow account on a regular basis. If he had reconciled, the Respondent would have discovered the discrepancies. Bar Counsel's accounting expert testified credibly that the Respondent was out of trust on multiple occasions: November 2003, January 2004, February 2004, March 2004, October 2005, November 2005, December 2005, January 2006, April 2006, and May 2006. The Respondent believed he could better track all his checks from his personal injury settlements by having them "under one roof", to wit, his escrow account. On at least two occasions, the Respondent had to transfer money from his personal account to his escrow account to avoid potential shortfalls. The Respondent also indicated that he kept track of the balances constantly by calling the bank's automated accounting system, and checking off the paid checks in his checkbook, thus leaving only his fee in the account when all checks had cleared. In many instances, the Respondent took out less in fees than called for in his retainer agreements.
Based on these findings, the Circuit Court drew the following conclusions of law in the Trust Account Matter:
Regarding Bar Counsel's second complaint, this Court finds the Respondent violated MRPC 1.15, 8.1, 8.4, Maryland Code Ann., Business Occupations & Professions Art., § 10-306, and Maryland Rules 16-607 and 16-609. The pertinent rule sections and facts that support these findings are as follows:
Maryland Rules of Professional Conduct Rule 1.15 Safekeeping Property
Maryland Code Ann., Business Occupations & Professions Art., § 10-306 Misuse of Trust Money
From 2002 until his retirement from his law practice in 2008, the Respondent commingled his personal funds with the funds of his clients and their third parties in his escrow account. Respondent admitted such at trial. Respondent kept his fees (personal property) in his escrow account and used this money to draw checks payable to his wife, employees and personal creditors. Operating his practice out of a single checking/escrow account led to multiple violations of Rule 1.15. The Respondent was "out of trust" on at least 10 occasions. Expenses from one client were paid from settlement checks of others. Again, it was impossible to associate clients with their respective expenses. Accordingly, this Court finds that the Respondent violated MRPC 1.15 and Maryland Code Annotated, Business Occupations and Professions Article § 10-306.
Maryland Rules of Professional Conduct 8.1 Bar Admission and Disciplinary Matters
Maryland Rule of Professional Conduct 8.4 Misconduct
On May 15, 2006, the Respondent sent a letter to Deputy Bar Counsel, Mr. Grossman, regarding the overdraft complaint. This letter contained three separate misrepresentations addressed below.
The overdraft was the unfortunate result of a settlement check which an assistant in my office neglected to properly deposit. According to my understanding, the deposit was received and recorded by the bank on the same day as the overdraft, but after the overdraft had been entered. *322 As the bank states, the effected checks were, nevertheless, paid.
Contrary to the Respondent's explanation of the overdraft, the Respondent's bank records of his escrow account show that there were no deposits received or recorded by Bank of America on the same day as the May 3, 2006, overdraft. The only deposit made after the May 3, 2006, overdraft was on May 9, 2006, in the amount of $6,000 on behalf of Respondent's client, Hakeem Blaize. However, the two (2) checks presented for payment on May 3, 2006, were for two (2) separate client matters, Sharon Williams and Kenneth Cotton/Sharon Ashton.
I had anticipated being out of my office by this time, however, the four attorneys in our suite have a mutual agreement that anyone vacating an office will either obtain a replacement tenant, or pay six months rent. I have been advertising my office for rent in the Prince George's and Montgomery County Bar Bulletins, and had a replacement lined up. In the course of vacating my office, I, among other things, closed my office business checking account. Shortly thereafter, the party who was to rent my office suddenly reneged, and I am currently in the six-month rental mode, but with no office checking account. I attempted to re-instate the account, but it was too late.
The Respondent's statements clearly give the impression that Respondent's misuse of his escrow account was only for a short period of time while he was winding down his law practice. However, Respondent's bank records of his escrow account with Bank of America revealed that for over four (4) years the Respondent had commingled his funds with those of his clients and used his escrow account to pay for personal and business expenses. The Respondent's bank records clearly show that from at least 2002 to 2006, the Respondent negligently misappropriated funds of clients and their third parties and in some cases, failed to pay third party providers timely on behalf of his clients. The Respondent's bank records also show that Respondent used his escrow account for his personal use, such as to pay bills for the purchase of home furnishings (Marlo Furniture), to pay his employees Marion King and Phillip Gelfo, to pay his monthly rent and telephone bills, and large disbursements to his wife. Moreover, the Respondent's bank records and settlement statements of clients show that, in some cases, the Respondent advanced funds to or on behalf of his clients and delayed disbursing funds to third party providers on behalf of his clients. During the hearing, the Respondent admitted that he had commingled funds in his escrow account and essentially used his escrow account like his operating account for many years, since at least 2002. Accordingly, the Respondent's statements in his letter of May 15, 2006, to Deputy Bar Counsel regarding the length of time he was using his escrow account like an operating account was false and misleading.
Accordingly, I have been forced to make some of my on-going office expenses; i.e., rent and telephone, from the escrow account, albeit, with my own funds.
This reply was also a misrepresentation because the Respondent claimed the expenses were paid from his own funds. This statement is impossible to reconcile with the fact that there were two overdrafts, on May 11, 2006, and May 16, 2006, on his escrow account. It is clear that his client's money was no longer *323 held in trust. Again, the Respondent was out of trust on November 2003, January 2004, February 2004, March 2004, October 2005, November 2005, December 2005, January 2006, April 2006, and May 2006. An overdraft did not occur until May 2006 as monies were constantly "floating" in from other clients. Accordingly, this Court finds that the Respondent violated Rules 8.1 and 8.4.
Maryland Rule 16-607 Commingling of Funds
Respondent failed to maintain the required separate escrow, operating and personal accounts. All of the Respondent's bank notes, including employee salaries, attorney fees, and personal expenses were drawn from a single account, his attorney escrow account. Accordingly, this Court finds that the Respondent violated Rule 16-607.
Maryland Rule 16-609 Prohibited Transactions
The bank records and testimony from the Attorney Grievance Commission's John Debone revealed multiple made payable to cash (Checks # 4347, 4349, 4411, 4419, 4438, 4444, 4446, 4450, 4494, 4506, 4518, 4529, 3756, 3758, 3760, 3783, 3787, 3822, 4561, 4569, 4602, 4645, 4646, 4717, 4731, 4795, and 4870). From 2005 to 2006, there were cash withdrawals. Accordingly, this Court finds that the Respondent violated Rule 16-609.
MITIGATION
Despite Respondent's questionable accounting practices, this Court finds it noteworthy that all clients were fully paid. The Respondent did not act with dishonest or selfish motives. No evidence was presented that the Respondent ever shorted a client a penny. In many instances, the Respondent took out less in fees than called for in his retainer agreements. Once expenses were deducted, a net attorney fee rather than gross attorney fee remained. At the hearing, Respondent appeared to recognize the seriousness of his improper use of his escrow account, and was genuinely remorseful. His testimony was that he "felt like a jerk." The Respondent also credibly testified that his original business operating account was closed because he was in the process of winding down his law practice, and planning shortly to vacate his office. However, that process took much longer than expected. The Respondent is now retired.
The Respondent maintained an unblemished record throughout his legal career. There was no evidence of any other overdrafts in 40 years of practice. Upon his first contact from the Attorney Grievance Commission, the Respondent did reopen a separate checking account for operating expenses, albeit too late to avoid the escrow account issues presented herein.
DISCUSSION
Standard Of Review
In Attorney Grievance Comm'n v. Ugwuonye, 405 Md. 351, 368, 952 A.2d 226, 235-36 (2008), we articulated the standard of review we are to employ in deciding attorney grievance matters:
This Court has original and complete jurisdiction over attorney discipline proceedings in Maryland. Even though conducting an independent review of the record, we accept the hearing judge's findings of fact unless they are found to be clearly erroneous. This Court gives deference to the hearing judge's assessment of the credibility of witnesses. Factual findings by the hearing judge will not be interfered with if they are *324 founded on clear and convincing evidence. All proposed conclusions of law made by the hearing judge, however, are subject to de novo review by this Court.
(Citations and internal quotation marks omitted.)
Neither party took exceptions to the Circuit Court's Findings of Fact and Conclusions of Law. When no exceptions are taken, we "treat the findings of fact as established for the purpose of determining appropriate sanctions, if any." Md. Rule 16-759(b)(2). "We also accept the conclusions of law if they are supported by the factual findings." Attorney Grievance Comm'n v. Snyder, 406 Md. 21, 28, 956 A.2d 147, 151 (2008). Our independent review of the record reveals ample support for the Circuit Court's conclusions and we affirm them. We turn next to the question of appropriate sanctions.
Sanctions
The Circuit Court found, and McLaughlin's counsel confirmed during oral argument before this Court, that McLaughlin is retired from the practice of law with no intention to reenter. This is not a factor that we consider in crafting sanctions because "our aim is to protect the public and the public's confidence in the legal profession rather than to punish the attorney." Attorney Grievance Comm'n v. Taylor, 405 Md. 697, 720, 955 A.2d 755, 768 (2008). "The severity of the sanction depends upon the facts and circumstances of the case, taking account of any particular aggravating or mitigating factors." Id. In both the Fitzgerald and the overdraft matters, McLaughlin contends that "under the circumstances of this case, and in light of the strong mitigating circumstances found by the trial court, and his long unblemished record, that a public reprimand would be an appropriate sanction in this matter." Bar counsel argues that McLaughlin's "deceitful conduct in an attempt to conceal his multiple violations of rules concerning safekeeping clients' properties and their third parties' properties, misuse of clients' funds, and failure to keep an accounting of his escrow account, coupled with his misconduct in entering into a business transaction with a client, warrants a disbarment in this case." Rather than adopting the sanctions proposed by Bar Counsel and McLaughlin, we conclude that an indefinite suspension from the practice of law is the appropriate sanction.
Misrepresentations To Bar Counsel
The chief source of disagreement between McLaughlin and Bar Counsel is the nature of McLaughlin's violation of MRPC 8.4(c) when he made the three misrepresentations to Bar Counsel in his May 15, 2006, letter. Bar counsel characterizes these false statements as "lies" that warrant disbarment and cites three cases in which attorneys were disbarred for 8.4(c) violations: Attorney Grievance Comm'n v. White, 354 Md. 346, 731 A.2d 447 (1999), Attorney Grievance Comm'n v. Ellison, 384 Md. 688, 867 A.2d 259 (2005), and Attorney Grievance Comm'n v. Nussbaum, 401 Md. 612, 934 A.2d 1 (2007). Each of these cases is distinguishable from the one before us.
In White, the respondent was an assistant public defender alleged to have represented clients in private practice after the implementation of a ban on such representations. White originally testified in a postconviction proceeding that her post-ban representations stemmed from client contacts arising from before the ban was initiated, which she thought to be permissible. When it was revealed that White contacted victims of a fire regarding a personal injury matter more than a year after the implementation of the ban, she *325 testified in a deposition that she was not acting as a lawyer in this matter, but as a "law clerk." White, 354 Md. at 360, 731 A.2d 447 at 455.
We affirmed the following Circuit Court finding:
The [r]espondent obviously could not testify that she had been contacted prior to the date of the ban. Therefore, she asks this court to believe that a lawyer with her years of experience, who had tried any number of serious felony cases in Prince George's County, and had done so for a number of years, now considered herself a "law clerk" for purposes of obtaining this case. She further asked this court to believe that the attorney to whom the case was being referred was going to divide the fee evenly with someone who was acting as a law clerk in the case. This court cannot and does not accept such an explanation.
Id. at 361, 731 A.2d at 455. White was found by the Circuit Court to have violated MRPC 8.4(c) in her testimony in both the postconviction proceeding and the deposition. Id. at 361-62, 731 A.2d at 455-56. We confirmed that White "clearly violated Rule 8.4(c) because her testimony, made under oath, was, at the very least, dishonest, deceitful, and misrepresented the truth about her involvement in the case." Id. at 363, 731 A.2d at 457. This differs from the instant matter where the Circuit Court found that the misinformation in McLaughlin's letter was not dishonest or deceitful. Indeed, the Circuit Court noted that McLaughlin's testimony about winding down his business as an explanation for the misappropriation was credible. We deduce from the Circuit Court's opinion that its finding that McLaughlin acted "negligently" applies not just to his misappropriation of client funds, but to his misrepresentations as well.
In Ellison, the MRPC 8.4(c) violation arose out of an Assignment and Authorization agreement in which Ellison agreed to pay a physical therapist who had treated Ellison's client in a personal injury matter. Ellison later rescinded the Assignment in a letter which stated that he was no longer representing his client. We held that there was "ample evidence" to support the Circuit Court's conclusion that the letter "misrepresented his ongoing representation of [his client]" and that "this letter's main purpose was to declare erroneously the Assignment `null and void' and allow Ellison to avoid paying [the physical therapist] under the Assignment" in violation of MRPC 8.4(c). Ellison, 384 Md. at 711, 867 A.2d at 272. We also affirmed the Circuit Court's finding that Ellison misrepresented these facts to Bar Counsel's investigator. Id.
Our discussion of Ellison's conduct reveals a very different mens rea from the case at hand. The Circuit Court here found that McLaughlin was negligent and "did not act with dishonest or selfish motives" in connection with his misappropriation and the corresponding misrepresentation, whereas in Ellison, we found:
[Ellison's] transgressions include dishonesty with and misrepresentations to Bar Counsel in connection with this disciplinary matter, improper contingency fee arrangements, improper handling of property belonging to a third party assignee, various Maryland Rules violations regarding the handling of funds in attorney trust accounts, and attorney misconduct involving dishonesty and the administration of justice.
In reviewing Judge Geter's findings, we find that Ellison acted intentionally, the "most culpable mental state," because he acted with a "conscious objective or purpose to accomplish a particular result." Attorney Grievance *326 Comm'n v. Glenn, 341 Md. 448, 485, 671 A.2d 463, 481 (1996) (citing Standard 3.0 of the ABA Standards for Imposing Lawyer Sanctions, reprinted in Selected Statutes, Rules and Standards on the Legal Profession, 287, cmt. at 300 (1987)). It is evident from Judge Geter's findings that Ellison acted with intent to deny [the physical therapist] his fees. He further acted with intent to hide from Bar Counsel and [Bar Counsel's investigator] his continuing representation of [his client] and the receipt of a fee for that representation. Ellison knew of the details of his representation of [his client] and his duty to fulfill the Assignment. The hearing judge found that Ellison knew, or should have known, from the plain text of the Assignment that it was still valid. His subsequent conduct during the investigation demonstrated his intent to obscure the facts from the eyes of Bar Counsel.
Id. at 715, 867 A.2d at 274-75 (emphasis added, footnote omitted). Ellison's absence of a prior disciplinary record and relative inexperience were the only mitigating factors, and we held that they did not "temper sufficiently the intentional dishonesty exhibited by Ellison throughout his interactions with [the physical therapist] over the Assignment and with the Office of Bar Counsel during the investigation." Id. at 716, 867 A.2d at 275. We also held that "[i]n the absence of more significant mitigating factors than are present here, intentional dishonesty by a lawyer admitted to the Maryland Bar merits disbarment." Id. This presented a much different factual scenario from the instant matter where the Circuit Court found more than a half dozen mitigating factors that did temper McLaughlin's conduct by suggesting that he did not act intentionally in his misrepresentations to Bar Counsel.
In Nussbaum, we considered the following factual scenario, which is very similar to the one before us:
Respondent wrote checks from his escrow account and deposited the funds into his operating account in order to cover personal expenses. When it came time for Respondent to disburse funds from the escrow account to proper payees, he would "borrow" funds from other clients, from personal loans improperly deposited into the escrow account, or from rents received for office space in the building housing his law office.
Nussbaum, 401 Md. at 639, 934 A.2d at 16. We agreed with the hearing judge "that Respondent's conduct was dishonest and deceitful in violation of Rule 8.4(c) in that he misappropriated client funds and misrepresented to clients that the funds were properly safeguarded." Id. at 642, 934 A.2d at 18. Although the Respondent asked us to consider as mitigating factors "that no client was explicitly misled or suffered any financial harm, that all client obligations were timely discharged, and that Respondent never intended to deprive any client of the timely access to escrow funds or to defraud any client[,]" we nevertheless found that his "actions were dishonest, deceitful, and motivated by his own pecuniary interests." Id. at 644, 934 A.2d at 20.
Writing for the Court, Judge Battaglia observed: "We have repeatedly stated that the misappropriation of entrusted funds is an act infected with deceit and dishonesty, and, in the absence of compelling extenuating circumstances justifying a lesser sanction, will result in disbarment." Id., 934 A.2d at 19 (citation and international quotation marks omitted).
Nussbaum cited a number of cases for the proposition that not all findings of the misuse of client funds have resulted in *327 disbarment. Nonetheless, we recognized that the key to imposing sanctions in misappropriation cases is the attorney's simultaneous violation of Rule 8.4(c). We noted that "[i]n every case cited, except [Attorney Grievance Comm'n v. Calhoun, 391 Md. 532, 575, 894 A.2d 518, 544 (2006)], however, the hearing judge did not find a violation of MRPC 8.4(c)."[10]Id. at 646, 934 A.2d at 21. We summarized and distinguished Calhoun as follows:
In the singular case in which a violation of 8.4(c) was found and disbarment was not ordered, Calhoun, 391 Md. at 532, 894 A.2d at 518, the respondent was charged with violating multiple rules of professional conduct, including 8.4(c), in connection with her representation of a client in a sexual harassment suit. The hearing court found that Calhoun had commingled trust funds and personal funds by failing to deposit two $5,000.00 payments for fees and an $8,000.00 settlement check into a properly designated attorney trust account. The hearing judge found that Calhoun had misled her client concerning legal fees and costs owed by failing to keep him informed of the accrual of those fees and costs in a timely fashion, as was required by her representation agreement. Specifically, the court found that she "mislead by silence and lack of communication," id. at 548, 894 A.2d at 527, and that she violated 8.4(c) by her "failure to communicate properly."
Id. at 646-47, 934 A.2d at 21. In determining Calhoun's sanction, "this Court noted that while the hearing judge did find that respondent violated MRPC 8.4(c), he did not find specifically that respondent engaged in dishonest or fraudulent conduct, and focused on the respondent's treatment of the $8,000.00 in settlement funds." Id. at 647, 934 A.2d at 21 (citation and internal quotation marks omitted). "We noted that the hearing court did not find that Calhoun had intentionally misappropriated the settlement funds, but rather that the facts indicated that she may have believed, albeit erroneously, that the settlement funds were owed to her to cover fees and costs associated with representation." Id. at 647, 934 A.2d at 21. We concluded in Nussbaum:
The facts of the present case are different from those of Calhoun in two very important respects. First, in the present case the hearing court found by clear and convincing evidence that Respondent "engaged in dishonesty and deceit/misrepresentation." Second, there are no factual findings in the present case to support the premise that client funds were unintentionally or accidentally misappropriated. In Calhoun, the attorney had properly incurred fees and costs associated with the representation of her client; her violation of MRPC 8.4(c) was a result of her lack of diligence in communicating these expenses to her client and following appropriate procedures in obtaining payment. The violations in the present case do not result from the Respondent improperly utilizing client funds which he believed he had earned for services rendered; rather, he knowingly and intentionally misused client funds over a period of two years in order to *328 cover personal expenses unrelated to his representation of those clients.
Id. at 647, 934 A.2d at 21-22 (emphasis added, italics in original).
We consider McLaughlin's conduct closer to the "lack of diligence" exercised by the attorney in Calhoun than the intentional conduct found in Nussbaum. Nussbaum and Calhoun demonstrate that an attorney's mental state is a significant enough factor in misappropriation cases to merit a sanction less than disbarment, even when there was a corresponding MRPC 8.4(c) violation. The Circuit Court found that McLaughlin "did not act with dishonest or selfish motives" and "appeared to recognize the seriousness of his improper use of his escrow account, and was genuinely remorseful" at his hearing.
The Importance Of Negligence For The Underlying Misappropriation
In Nussbaum, Judge Battaglia also explained that "we have declined to order disbarment in cases where the misappropriation of funds was due to negligence, rather than intentional misconduct" but that indefinite suspension was not the appropriate sanction for Nussbaum because his "actions were intentional, not negligent." Id. at 648, 934 A.2d at 22.
One such case in which the attorney's actions were negligent was Attorney Grievance Comm'n v. Zuckerman, 386 Md. 341, 872 A.2d 693 (2005). There, we held that an indefinite suspension with the right to reapply after thirty days was the appropriate sanction "where there was a misappropriation of trust account funds based upon the lawyer's ineffectual accounting procedures and theft of funds by an employee." Id. at 377, 379, 872 A.2d at 714, 716. Though no employee theft was involved in the instant matter, McLaughlin also presents a case of misappropriation from "questionable accounting practices[.]" In Zuckerman, we considered the fact that there was "no evidence that Mr. Zuckerman acted with an intent to steal money, nor did he benefit personally from the misappropriation of the funds" and that "none of his clients suffered any financial loss[.]" Id. at 379, 872 A.2d at 716. Likewise, in the instant matter, the Circuit Court found that "[n]o evidence was presented that the Respondent ever shorted a client a penny. In many instances, the Respondent took out less in fees than called for in his retainer agreements. Once expenses were deducted, a net attorney fee rather than gross attorney fee remained." See also Attorney Grievance Comm'n v. Glenn, 341 Md. 448, 491, 671 A.2d 463, 484 (1996) (citing ABA standard indicating that "[s]uspension is generally appropriate when a lawyer ... should know that he is dealing improperly with client property and causes ... potential injury to a client").
By relying on our reasoning in Nussbaum, Bar Counsel has actually identified the very exceptions to disbarment that apply to McLaughlin. First, unlike the disbarred attorneys in White, Ellison, and Nussbaum, McLaughlin was found to have acted negligently rather than intentionally. In accord with our discussion in Zuckerman, the fact that McLaughlin was found to have acted with negligence in the misappropriation of client funds is a factor that weighs in favor of suspension, rather than disbarment. With regard to McLaughlin's 8.4(c) violation, the Circuit Court found that McLaughlin "credibly testified that his original business operating account was closed because he was in the process of winding down his law practice, and planning shortly to vacate his office. However, that process took much longer than expected." This lends further credence to the notion that McLaughlin's misrepresentations *329 to Bar Counsel were misunderstandings rather than abject lies.
In crafting this sanction, we are mindful of the impropriety stemming from McLaughlin's loans to Fitzgerald and her kin. However, our independent examination of the record sheds light on the Circuit Court finding that Fitzgerald was unfairly forced to enter the loan and payback agreement with McLaughlin. During cross-examination before the Circuit Court, Fitzgerald indicated that the loan, its terms, and the pressure she felt in agreeing to them were a function of her dire financial straits at the time:
[McLaughlin's Counsel]: When you went to Mr. McLaughlin to borrow money, why did you go to him as opposed to [a] family member?
[Fitzgerald]: Because the only closest family members are my mom and my grandmother, which they are not financially stable. And that was my last resort where I would be able to get that amount of money from[.]
[McLaughlin's Counsel]: Did you go to Mr. McLaughlin and tell him you needed money?
[Fitzgerald]: Yes, I told him I was on the verge of being put out of my apartment.
[McLaughlin's Counsel]: What would you have done if Mr. McLaughlin wouldn't loan you money?
[Fitzgerald]: Then I would have had to move.
Fitzgerald testified that McLaughlin proposed waiting for her settlement rather than loaning her the money, but that her circumstances would not permit her to wait: "He explained to me when I was asking for the loan, he was stating, you know, your settlement should be coming to a closure soon. And, you know, I'm stating to him that my rental office is not going to wait. And I had my documents with me being evicted and everything."
Fitzgerald also discussed the interests at play that led to her agreement to pay back her mother's loan:
[McLaughlin's Counsel]: Well, did you understand you didn't have to agree to pay your mother's money back? You understood that, didn't you?
[Fitzgerald]: Yeah, but I also understood that I would be put out if I didn't agree to pay that money back.
[McLaughlin's Counsel]: You understood that Mr. McLaughlin would not loan you the money without having some guarantee that he was going to be paid back from your mom, also, who apparently had not honored her agreement, is that correct?
[Fitzgerald]: Yes, that's correct.
We quote this testimony not to excuse McLaughlin for his inappropriate client dealings and his failure to direct Fitzgerald to independent counsel, but to show that McLaughlin made the loan upon request from Fitzgerald, in light of her pressing circumstances. This is in keeping with the Circuit Court's finding that McLaughlin violated rules related to conflict of interest in the Fitzgerald matter, but that this conduct did not rise to the level of an MRPC 8.4 violation. The nature of this misconduct supports a suspension sanction. See Attorney Grievance Comm'n v. Webster, 348 Md. 662, 679, 705 A.2d 1135, 1143 (1998) (issuing sanction of suspension for trust account violations paired with violation of the rules related to conflict of interest).
For the above reasons, we are persuaded that indefinite suspension is the appropriate sanction. We shall so order.
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING *330 COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-761. JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST DONALD P. MCLAUGHLIN FOR THE SUM OF SUCH COSTS.
HARRELL, J., dissents and files opinion in which BATTAGLIA and BARBERA, JJ., join.
Dissenting Opinion by HARRELL, Judge, which BATTAGLIA and BARBERA, JJ., join.
I dissent from the sanction of indefinite suspension. I would disbar McLaughlin.[1]
As regards the Fitzgerald complaint, McLaughlin was found by Judge Rattal apparently to have mis-appropriated intentionally trust monies. He found that McLaughlin violated MRPC 1.15 (Safekeeping Property), Maryland Code (1989, 2004 Repl.Vol.), Business Occupations and Professions Article, § 10-306 (Misuse of Trust Money), and Md. Rule 16-609 (Prohibited Transactions) by (a) making loans from funds in his trust account that belonged to other clients; (b) without the consent of the other clients; and (c) without maintaining complete accounting records of the funds in his trust account. In his analysis of whether violations occurred, Judge Rattal neither found nor concluded that the violations occurred as the consequence of merely negligent conduct.[2],[3]
Compounding the enduring misappropriation scheme presented in this record (taking into account the so-called negligent misappropriation portion reflected in the hearing judge's separate analysis of Bar Counsel's overdraft complaint) is McLaughlin's intentionally "false and misleading" "misrepresentations" to Bar Counsel.[4] Considered together, we are confronted with intentional misappropriation, negligent misappropriation, obvious conflict of interest, and intentional misrepresentations to Bar Counsel in the course of an investigation. This array, I think, cuts to the core of what we should expect minimally from a Maryland lawyer. "Candor and truthfulness are two of the most important moral character traits of a lawyer." Attorney Grievance Commission v. Myers, 333 Md. 440, 449, 635 A.2d 1315, 1319 (1994). Even where no client suffers actual financial loss, "misappropriation is a most egregious violation ... because ... *331 [t]he rule is concerned with the risk of loss, not only the actual loss." Attorney Grievance Commission v. Zdravkovich, 381 Md. 680, 704, 852 A.2d 82, 96 (2004), quoting Attorney Grievance Commission v. Glenn, 341 Md. 448, 489, 671 A.2d 463, 483 (1996).
I would disbar.
Judges BATTAGLIA and BARBERA join this dissent.
NOTES
[1] Maryland Rule 16-751(a) provides:
(a) Commencement of disciplinary or remedial action. (1) Upon approval of Commission. Upon approval or direction of the Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals.
[2] Rule 1.8. Conflict of Interest: Current Clients: Specific Rules.
(a) A lawyer shall not enter into a business transaction with a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction[.]
[3] Rule 1.15. Safekeeping Property.
(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and of other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
(b) A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for the purpose.
(c) Unless the client gives informed consent, confirmed in writing, to a different arrangement, a lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
[4] Rule 8.4. Misconduct.
It is professional misconduct for a lawyer to:
* * *
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice[.]
[5] Rule 16-609. Prohibited Transactions.
An attorney or law firm may not borrow or pledge any funds required by these Rules to be deposited in an attorney trust account, obtain any remuneration from the financial institution for depositing any funds in the account, or use any funds for any unauthorized purpose. An instrument drawn on an attorney trust account may not be drawn payable to cash or bearer.
[6] Maryland Code (1989, 2004 Repl.Vol.), Section 10-306 of the Business Occ. & Professions Article.
Misuse of trust money.
A lawyer may not use trust money for any purpose other than the purpose for which the trust money is entrusted to the lawyer.
[7] We have omitted the Circuit Court's quotation of the text of the various charged rule violations.
[8] Rule 8.1. Bar Admission and Disciplinary Matters.
An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6.
[9] Rule 16-607. Commingling of Funds.
a. General prohibition. An attorney or law firm may deposit in an attorney trust account only those funds required to be deposited in that account by Rule 16-604[.]
[10] We note that the 8.4(c) violations in Nussbaum and Calhoun stemmed from misrepresentations to clients, whereas here, the misrepresentation was to Bar Counsel. Neither the Rule nor our modern jurisprudence, however, draw sanction-related distinctions based on this difference. In addition, we held that Nussbaum's knowing misrepresentation of the legitimacy of his ledger entries was, indeed, a misrepresentation to Bar Counsel that violated the MRPC, albeit under MRPC 8.1(a) rather than 8.4(c). Attorney Grievance Comm'n v. Nussbaum, 401 Md. 612, 641, 934 A.2d 1, 18 (2007).
[1] It is probably of no great moment to McLaughlin, as a practical matter, whether we disbar or suspend him indefinitely. He claims to have retired entirely from the practice of law. Nonetheless, it is the precedential impact of the Majority's opinion that moves me to express a dissent.
[2] Judge Rattal's general findings in mitigation do not render unintentional or negligent the misconduct regarding the Fitzgerald complaint. The absence of "selfish or dishonest motives" generally, as found there by the hearing judge, may influence the sanction, but have no bearing on whether the violative conduct was unintentional or negligent in the first instance.
[3] In contradistinction, when addressing Bar Counsel's separate overdraft complaint, the hearing judge pointedly proclaimed that the misconduct of commingling and expenditures there reflected McLaughlin "negligently misappropriat[ing] funds of clients and their third parties." Because the hearing judge made no such qualified finding or conclusion that I could find with regard to the Fitzgerald complaint, I am unable to infer, as perhaps the Majority opinion does, that that conduct represented a negligent misappropriation.
[4] Again, finding generally as a mitigator that McLaughlin "did not act with dishonest or selfish motives" does not translate inexorably to his conduct being less than intentional (except perhaps as to the expressly found "negligent misappropriations" regarding the overdraft complaint). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/739099/ | 110 F.3d 494
65 USLW 2743, 30 Bankr.Ct.Dec. 772
In the Matter of Thomas R. VOLPERT, Jr., Debtor.Appeal of Bernard M. ELLIS.
No. 95-3379.
United States Court of Appeals,Seventh Circuit.
Argued Dec. 4, 1996.Decided April 1, 1997.
Bernard M. Ellis (argued), Chicago, IL, for appellant.
Joel A. Brodsky, Brodsky & Hoxha, Chicago, IL, for appellee.
Jennifer A. Keller (argued), Cassiday, Schade & Gloor, Chicago, IL, pro se.
Carolyn Quinn, Cassiday, Schade & Gloor, Chicago, IL, pro se.
Before RIPPLE, MANION and DIANE P. WOOD, Circuit Judges.
RIPPLE, Circuit Judge.
1
The appellant, Bernard M. Ellis, while representing a debtor in bankruptcy court, repeatedly filed untimely responsive pleadings and repeatedly failed to give notice of pleadings to opposing counsel. Explicitly relying on 28 U.S.C. § 1927 for authority, the bankruptcy judge fined Mr. Ellis $1,000 for his actions. The district court affirmed the bankruptcy court's sanction order. Mr. Ellis now appeals the district court's judgment. We affirm.
2
* BACKGROUND
3
On June 30, 1993, Thomas Volpert filed a petition for relief under Chapter 7 of the Bankruptcy Code, 11 U.S.C. §§ 101 et seq. Attorney Bernard M. Ellis represented Volpert in the bankruptcy proceedings. After Volpert filed his petition, Volpert's uncle filed a seven-count complaint, which Volpert was required to answer by January 29, 1994. Volpert did not respond by that deadline. Instead, on February 2, Mr. Ellis appeared at a status hearing before the bankruptcy court and received an additional fourteen days to answer. When the new deadline came and went without an answer being filed, Volpert's uncle moved for an order of default. On April 21, Mr. Ellis, in response, appeared before the bankruptcy court and succeeded in having the hearing on the motion for default continued until May 11.
4
On May 2, Mr. Ellis filed a motion to dismiss the uncle's complaint on the ground that the uncle had no standing. In addition, he sought the dismissal of counts 1, 2, 3 and 6 on other grounds. The bankruptcy court denied the motion to dismiss for lack of standing and ordered Mr. Ellis to respond to counts 4, 5 and 7 within seven days. On May 11, however, Mr. Ellis did not file an answer. Instead, he asked the bankruptcy court to reconsider the denial of the motion to dismiss. The bankruptcy court declined to reconsider its prior ruling and warned Mr. Ellis that failure to respond to counts 4, 5 and 7 by May 18 would result in an entry of default on those counts.
5
Despite repeated assurances that he would file an answer by May 18, Mr. Ellis again missed the deadline. Rather, on May 19, he again moved to dismiss counts 4, 5 and 7. In the alternative, Mr. Ellis asked for a more definitive statement with respect to each of those counts. On May 25, the bankruptcy court denied the motion to dismiss, but it ordered the uncle to file a more definitive statement within fourteen days. The bankruptcy court also ordered Mr. Ellis to answer counts 4, 5 and 7 after the more definitive statement was to be filed.
6
On June 22, almost five months from the date an answer was originally due, Mr. Ellis finally filed an answer to counts 4, 5 and 7. The answer, though, was found to be legally insufficient by the bankruptcy court. On July 1, the bankruptcy court struck the answer and entered an order of default on counts 4, 5 and 7. On July 11, Mr. Ellis moved to vacate the default order and for leave to file an amended answer. Because Mr. Ellis had failed to serve opposing counsel with a copy of the proposed amended answer, the bankruptcy court denied the motions. The bankruptcy court noted that this occasion was not the first time that Mr. Ellis had failed to serve counsel, notwithstanding the fact that both attorneys had their offices in the same building. Mr. Ellis again failed to serve counsel, this time on July 15, with a motion to reconsider the bankruptcy court's denial of the July 11 motions.
7
On July 25, the bankruptcy court gave Mr. Ellis until July 27 to give opposing counsel proper notice of the proposed amended answer. On July 28, the bankruptcy court vacated its default order and allowed Mr. Ellis to file the amended answer. By that time, six months had elapsed since Mr. Ellis was first ordered to file an answer. Volpert's uncle then moved for sanctions pursuant to 28 U.S.C. § 1927. The bankruptcy court ruled that Mr. Ellis' delays in filing Volpert's answer, the legal insufficiency of the answer that was filed, and Mr. Ellis' repeated failure to serve opposing counsel with proper notice demonstrated conduct that unreasonably and vexatiously multiplied the bankruptcy court's proceedings. Accordingly, the bankruptcy court granted the motion for sanctions and awarded Volpert's uncle $1,000 in attorney's fees under § 1927. See Volpert v. Ellis (In re Volpert), 177 B.R. 81 (Bankr.N.D.Ill.1995).
8
Mr. Ellis appealed the sanction to the district court. Before the district court, Mr. Ellis contended that, because bankruptcy courts are not "court[s] of the United States," they do not have the authority to order sanctions under § 1927. The district court took the view that bankruptcy courts are not "court[s] of the United States" because their judges do not serve during good behavior. Nevertheless, the district court held, bankruptcy courts are empowered indirectly with the authority of the district courts to impose sanctions under § 1927. The district court reasoned that, because 28 U.S.C. § 151 states that bankruptcy judges "shall constitute a unit of the district court," bankruptcy courts are subsumed within the district court apparatus and have the authority, as arms of the district court, to impose sanctions under § 1927 in cases that have been referred to them. Consequently, the district court affirmed the sanction. See Volpert v. Volpert (In re Volpert), 186 B.R. 240 (N.D.Ill.1995).
II
DISCUSSION
9
We note at the outset that Mr. Ellis does not contend that the bankruptcy court's sanction was unconstitutional under Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), or that the sanction was beyond the bankruptcy court's statutory authority under 28 U.S.C. § 157(b).1 Nor does Mr. Ellis claim that the $1,000 sanction was an abuse of discretion. Indeed, he concedes that the amount was reasonable and that he did in fact unreasonably and vexatiously multiply the proceedings before the bankruptcy court. His sole contention in this appeal is that the bankruptcy court lacked the authority to impose the sanction under § 1927.
10
The issue of whether bankruptcy courts possess the power to sanction under § 1927 is an unresolved one in this circuit. In re Memorial Estates, Inc., 950 F.2d 1364, 1369-70 (7th Cir.1991), cert. denied, 504 U.S. 986, 112 S.Ct. 2969, 119 L.Ed.2d 589 (1992). Although we affirmed a bankruptcy court's decision to impose fees under § 1927 in In re TCI Ltd., 769 F.2d 441 (7th Cir.1985),2 we did not discuss whether § 1927 applies to bankruptcy courts. See Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411 (1925) ("Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents."); cf. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 119 & n. 29, 104 S.Ct. 900, 918 & n. 29, 79 L.Ed.2d 67 (1984) (" '[W]hen questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.' ") (quoting Hagans v. Lavine, 415 U.S. 528, 533 n. 5, 94 S.Ct. 1372, 1377 n. 5, 39 L.Ed.2d 577 (1974)).
A.
Section 1927 of Title 28 provides:
11
Any attorney ... admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.
12
28 U.S.C. § 1927 (emphasis added). Bankruptcy courts, therefore, can impose sanctions under § 1927 only if they can exercise the powers that are conferred upon the "court[s] of the United States or any Territory thereof."3 Regardless of whether bankruptcy courts can exercise such powers, both parties in this case agree, as an initial matter, that bankruptcy courts are not themselves "court[s] of the United States" within the strict meaning of the term. That term is defined in 28 U.S.C. § 451, which defines terms for purposes of Title 28:
13
The term "court of the United States" includes the Supreme Court of the United States, courts of appeals, district courts constituted by chapter 5 of this title, including the Court of International Trade and any court created by Act of Congress the judges of which are entitled to hold office during good behavior.
14
28 U.S.C. § 451. Bankruptcy courts are not listed explicitly in the section. Nor are bankruptcy courts "district courts constituted by chapter 5 of [Title 28]," for bankruptcy courts are constituted by chapter 6 of Title 28. Likewise, bankruptcy judges are not "entitled to hold office during good behavior." Rather, they serve a specified term of fourteen years. See 28 U.S.C. § 152(a)(1). Moreover, as the Ninth Circuit has noted, because the "good behavior" language contained in § 451 mirrors that contained in Article III, it is reasonable to infer that the phrase "court[s] of the United States" denotes Article III courts whose judges have life tenure and may be removed only by impeachment. See Perroton v. Gray (In re Perroton), 958 F.2d 889, 893 (9th Cir.1992). Bankruptcy courts are not Article III courts. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 60-61, 102 S.Ct. 2858, 2866, 73 L.Ed.2d 598 (1982). Therefore, a bankruptcy court is not a "court of the United States" within the strict meaning of § 451.4
15
Building upon this premise, the Tenth Circuit has held that bankruptcy courts lack the authority to impose sanctions under § 1927. See Jones v. Bank of Santa Fe (In re Courtesy Inns, Ltd.), 40 F.3d 1084 (10th Cir.1994).5 In Courtesy Inns, the Tenth Circuit reasoned that § 1927, by its very language, authorizes only "court[s] of the United States" to impose sanctions. Because bankruptcy courts are not such courts, the Tenth Circuit held, they have no authority under § 1927 to sanction. The Tenth Circuit felt compelled by § 451's plain wording, especially when it viewed that wording in light of the section's legislative history. An amendment in the Bankruptcy Reform Act of 1978 explicitly added "bankruptcy courts, the judges of which are entitled to hold office for a term of 14 years" to the definition contained in § 451. Courtesy Inns, 40 F.3d at 1086 (quoting Pub.L. No. 95-598, § 213, 1978 U.S.C.C.A.N. (92 Stat.) 2549, 2661). The amendment's purpose was to "mak[e] the generally applicable provisions of title 28 applicable to bankruptcy courts." H.R.Rep. No. 95-595, at 436 (1977), reprinted in 1978 U.S.C.C.A.N. 5787, 6392. The amendment was to become effective on June 28, 1984, but a 1984 amendment explicitly eliminated the language adding bankruptcy courts to § 451. Courtesy Inns, 40 F.3d at 1086 (citing Pub.L. No. 98-353, § 113, 1984 U.S.C.C.A.N. (98 Stat.) 333, 343). The 1984 amendment, the Tenth Circuit concluded, evidences Congress' intent not to extend Title 28's general provisions to bankruptcy courts.
16
Mr. Ellis urges us to follow Courtesy Inns and hold that bankruptcy courts lack the power to impose sanctions under the plain language of § 1927. Amicus curiae, who filed a brief in support of the bankruptcy court, responds that the inquiry does not end with the determination that bankruptcy courts are not themselves "court[s] of the United States." According to the bankruptcy court, the district court and amicus, bankruptcy courts, notwithstanding their lack of Article III status, nevertheless can exercise the power of a "court of the United States" in cases that have been referred to them. Bankruptcy courts are not jurisdictionally separate courts; rather, "the bankruptcy judges ... constitute a unit of the district court," 28 U.S.C. § 151, and they exercise the bankruptcy jurisdiction of the district courts, see 28 U.S.C. § 1334; Diamond Mortgage Corp. v. Sugar, 913 F.2d 1233, 1237-38 (7th Cir.1990), cert. denied, 498 U.S. 1089, 111 S.Ct. 968, 112 L.Ed.2d 1054 (1991). Relying on Grewe v. United States (In re Grewe), 4 F.3d 299 (4th Cir.1993), cert. denied, 510 U.S. 1112, 114 S.Ct. 1056, 127 L.Ed.2d 377 (1994), amicus suggests that a bankruptcy court can impose sanctions under § 1927 indirectly as an arm of the district court. See id. at 304-05 (holding that "bankruptcy courts qualify as 'courts of the United States' under [26 U.S.C.] § 7430(c)(6)" because "bankruptcy courts are not separate from, but rather units or divisions of the district court").
17
Amicus submits that Congress' 1984 decision not to amend § 451 to include bankruptcy courts was a response to the Supreme Court's holding in Northern Pipeline, 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), that Congress' broad grant of jurisdiction to bankruptcy judges under the Bankruptcy Reform Act of 1978 was unconstitutional. To remedy that constitutional defect, amicus asserts, Congress decided to structure bankruptcy courts so that they were not distinct courts in and of themselves, but merely were subsumed within the district courts. As such, says amicus, it would have been redundant to list the bankruptcy courts as independent "court[s] of the United States." Amicus insists that, if a case properly is referred to the bankruptcy court,6 the bankruptcy court thereafter may exercise the power of the district court to impose § 1927 sanctions because the imposition of sanctions is a "core proceeding," see In re Memorial Estates, Inc., 950 F.2d 1364, 1370 (7th Cir.1991), cert. denied, 504 U.S. 986, 112 S.Ct. 2969, 119 L.Ed.2d 589 (1992). See generally 28 U.S.C. § 157(b)(1) (providing that bankruptcy judges may hear and determine "all cases under title 11 and all core proceedings arising under title 11"). In amicus' view, the bankruptcy court's order to sanction Mr. Ellis pursuant to § 1927 was in essence an order of the District Court for the Northern District of Illinois.7
18
Since Northern Pipeline, bankruptcy courts have indeed occupied a unique position in the country's judicial structure. Diamond Mortgage Corp., 913 F.2d at 1237-38. Because the phrase "court of the United States" is scattered throughout Title 28, we think it imprudent, especially in the absence of more extensive briefing, to so characterize the bankruptcy court for purposes of decision in this case. Given that we have determined, for reasons that follow, that the bankruptcy court in this case had ample authority, apart from § 1927, to sanction Mr. Ellis' behavior, we shall travel the more prudent course and leave unanswered whether bankruptcy judges can exercise the authority of a "court of the United States."
B.
19
Although the bankruptcy court and the district court relied upon § 1927 as the source of authority for the sanctions levied against Mr. Ellis, we may affirm the district court's judgment on a different basis if that basis is supported by the record and law. See Schweiker v. Hogan, 457 U.S. 569, 585 & n. 24, 102 S.Ct. 2597, 2607 & n. 24, 73 L.Ed.2d 227 (1982). As an alternative basis for affirmance, amicus invites our attention to 11 U.S.C. § 105(a). That section, entitled "Power of court," provides:
20
The [bankruptcy] court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.
21
11 U.S.C. § 105(a). We agree with amicus that the bankruptcy court had authority under § 105 to sanction Mr. Ellis' conduct in this case. Section 105 grants broad powers to bankruptcy courts to implement the provisions of Title 11 and to prevent an abuse of the bankruptcy process. The broad power to "issue any order ... appropriate to carry out the provisions" of Title 11 and "to prevent an abuse of process" certainly encompasses the power to issue an order to sanction an attorney who, in the words of 28 U.S.C. § 1927, "multiplies the proceedings ... unreasonably and vexatiously." We therefore hold that, under 11 U.S.C. § 105(a), bankruptcy courts may punish an attorney who unreasonably and vexatiously multiplies the proceedings before them. See Caldwell v. Unified Capital Corp. (In re Rainbow Magazine), 77 F.3d 278, 283-84 (9th Cir.1996); Courtesy Inns, 40 F.3d 1084, 1089 (10th Cir.1994).8 Mr. Ellis does not dispute that, for six months, he unreasonably and vexatiously multiplied the proceedings before the bankruptcy court. Even absent that concession, the bankruptcy court found independently that Mr. Ellis' "conduct in the case at bar could only be described as an abuse of the judicial process." Volpert v. Ellis (In re Volpert), 177 B.R. 81, 91 (Bankr.N.D.Ill.1995). The bankruptcy court further found that Mr. Ellis (1) "disregarded pleading rules and several direct court orders," (2) attempted "to avoid pleading properly" to certain counts in the complaint, (3) demonstrated "a 'serious and studied disregard for the orderly process of justice,' " (4) "repeatedly failed to serve opposing counsel," (5) "flagrant[ly] disregard[ed] ... the Federal Rules of Civil Procedure," (6) "reflect[ed] contempt for the law, the Court, and opposing counsel," and (7) "bedeviled opposing counsel with studied misconduct obviously intended to harass him and avoid proper service upon him." Id. at 91-92. The ability to prevent the type of behavior exhibited in this case is necessary if the bankruptcy courts are to carry out efficiently and effectively the duties assigned to them by Congress. As our colleagues in the Eighth Circuit have noted:
22
[W]e believe that to not allow a bankruptcy court to impose attorney's fees as sanctions against those who willfully abuse the judicial process would ignore the realities of present-day litigation and the relationship between the court systems. As best expressed by the court in In re Silver, 46 B.R. [772,] at 774 [D. Colo.1985]:Especially in these days where the number of proceedings in the federal courts continues to rise, the Court concludes that sanctions such as those imposed in this matter are necessary in order to protect the integrity of the Bankruptcy Code as well as the judicial process.
23
Brown v. Mitchell (In re Arkansas Communities, Inc.), 827 F.2d 1219, 1221-22 (8th Cir.1987).9 In sum, Mr. Ellis' behavior is precisely the type of behavior that bankruptcy courts must be able to sanction in order to maintain control of their courtrooms and of their dockets.
24
Our colleagues in the Ninth and Tenth Circuits, when faced with the issue before us, have arrived at the same conclusion. In Rainbow Magazine, the Ninth Circuit held that, pursuant to § 105, a bankruptcy court may sanction the bad faith filing of a bankruptcy petition. See 77 F.3d at 284 ("By providing that bankruptcy courts could issue orders necessary 'to prevent an abuse of process,' Congress impliedly recognized that bankruptcy courts have the inherent power to sanction that Chambers [v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) ] recognized exists within Article III courts."). Similarly, the Tenth Circuit, in Courtesy Inns, held that bankruptcy courts are authorized under § 105 to sanction the filing of a petition in bad faith: "We believe, and hold, that § 105 intended to imbue the bankruptcy courts with the inherent power recognized by the Supreme Court in Chambers." 40 F.3d at 1089.
25
We find it unnecessary to say that the power to sanction that we recognize today is properly characterized as an "inherent" one.10 We simply follow Rainbow Magazine and Courtesy Inns insofar as they hold that the plain language of § 105 furnishes the bankruptcy courts with ample authority to sanction conduct that abuses the judicial process, including conduct that unreasonably and vexatiously multiplies bankruptcy proceedings. Because Mr. Ellis, by his own admission, unreasonably and vexatiously multiplied the proceedings before the bankruptcy court and abused the judicial process, he was properly sanctioned by the bankruptcy court pursuant to authority conferred under 11 U.S.C. § 105(a).11Conclusion
26
For the reasons given in the foregoing opinion, we affirm the judgment of the district court.
AFFIRMED
1
Section 157(b)(1) reads:
Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title.
28 U.S.C. § 157(b)(1). Section 157(b)(2) furnishes a non-exhaustive list of examples of "core proceedings." See id. § 157(b)(2)(A)-(O).
2
See also Baker v. Latham Sparrowbush Assocs. (In re Cohoes Indus. Terminal, Inc.), 931 F.2d 222, 230 (2d Cir.1991) (same)
3
One court has held that § 1927 is not limited to the "court[s] of the United States" because the section authorizes the imposition of sanctions "by the court" without any modifier. See Novelty Textile Mills, Inc. v. Stern, 136 F.R.D. 63, 74-75 & n. 21 (S.D.N.Y.1991). That court noted that the limiter "of the United States" modifies the phrase "[a]ny attorney ... admitted to conduct cases in any court."
We are reluctant to place undue importance on the absence of the restriction "of the United States" from the second appearance of the word "court" in the statute. Under § 1927, a party may be required to pay costs, expenses and fees by "the court." The natural reading of the text of § 1927 is that "the court" to which the section refers is a "court of the United States." The Novelty Textile Mills approach fails to read the statute as a whole; rather, it severs "the court" from its contextual setting by disregarding the prior reference to "any court of the United States."
Moreover, the Novelty Textile Mills approach is not supported by the legislative history. Section 1927 of Title 28 was based on, and changed the phraseology of, old 28 U.S.C. § 829 (1940). See H.R.Rep. No. 80-308, at A164 (1947). In turn, old § 829, which was derived from Congressional Acts of 1813 and 1853, provided:
If any attorney, proctor, or other person admitted to conduct causes in any court of the United States, or of any Territory, appears to have multiplied the proceedings in any cause before such court so as to increase costs unreasonably and vexatiously, he shall be required, by order of the court, to satisfy any excess of costs so increased.
28 U.S.C. § 829 (1940) (emphasis added). The phraseology of old § 829, especially the reference to "such court," eliminated any ambiguity in that section: It was the "court[s] of the United States, or of any Territory" that were empowered to sanction attorneys who multiplied the proceedings before them.
4
On this basis, some courts have determined for the purposes of other statutory provisions that bankruptcy courts lack the authority conferred upon the "court[s] of the United States." See, e.g., Perroton, 958 F.2d at 893-94 (bankruptcy courts lack authority to waive payment of filing fees under 28 U.S.C. § 1915); Internal Revenue Service v. Brickell Investment Corp. (In re Brickell Investment Corp.), 922 F.2d 696, 701 (11th Cir.1991) (bankruptcy courts lack authority to award attorney's fees under 26 U.S.C. § 7430); Gower v. Farmers Home Admin. (In re Davis), 899 F.2d 1136, 1139-40 (11th Cir.) (bankruptcy courts lack authority to award fees under Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A)), cert. denied, 498 U.S. 981, 111 S.Ct. 510, 112 L.Ed.2d 522 (1990)
5
Accord Regensteiner Printing Co. v. Graphic Color Corp., 142 B.R. 815, 818 (N.D.Ill.1992); Farmers Home Admin. v. Jenkins (In re Richardson), 52 B.R. 527, 532 (Bankr.W.D.Mo.1985); In re Westin Capital Markets, Inc., 184 B.R. 109, 118 (Bankr.D.Or.1995); Phillips v. Burt (In re Burt), 179 B.R. 297, 301 (Bankr.M.D.Fla.1995); see also Brown v. Mitchell (In re Arkansas Communities, Inc.), 827 F.2d 1219, 1221 (8th Cir.1987) ("[I]t is questionable whether a bankruptcy court falls within the definition of 'courts of the United States' for purposes of imposing sanctions against attorneys under [28 U.S.C. § 1927].")
6
Section 157(a) provides:
Each district court may provide that any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judges for the district.
28 U.S.C. § 157(a). Pursuant to Local General Rule 2.33 of the Northern District of Illinois, all bankruptcy cases and proceedings in the district are automatically referred to the bankruptcy court.
7
See United States v. Guariglia, 962 F.2d 160, 162-63 (2d Cir.1992) (holding that district court could "punish for criminal contempt a violation of an order of a bankruptcy court where the bankruptcy court is a 'unit' of the district court imposing the punishment" because the order is an order of both the bankruptcy and district court; but noting that there is a "serious question" as to whether the bankruptcy court could have punished for criminal contempt a violation of its order in the first instance)
8
Accord Knepper v. Skekloff, 154 B.R. 75, 80 (N.D.Ind.1993) ("[Title] 11 U.S.C. § 105 permits bankruptcy courts to impose sanctions against both parties and counsel who willfully abuse the judicial process."); Regensteiner Printing Co. v. Graphic Color Corp., 142 B.R. 815, 819 (N.D.Ill.1992) ("[P]ursuant to 11 U.S.C. § 105, bankruptcy courts are empowered to impose sanctions on parties and counsel who wilfully abuse the judicial process.") (footnote omitted)
9
In holding that bankruptcy courts have the power to sanction under § 105, the Tenth Circuit expressed similar sentiments: "The power to maintain order and confine improper behavior in its own proceedings seems a necessary adjunct to any tribunal charged by law with the adjudication of disputes. We should not lightly infer its absence, and we see no reason to do so here." Courtesy Inns, 40 F.3d at 1089
10
Cf. Chambers, 501 U.S. at 58, 111 S.Ct. at 2140 (Scalia, J., dissenting). We note that the Sixth Circuit recently has written that "[b]ankruptcy courts, like Article III courts, enjoy inherent power to sanction parties for improper conduct." Mapother & Mapother, P.S.C. v. Cooper (In re Downs), 103 F.3d 472, 477 (6th Cir.1996)
11
Some of Mr. Ellis' conduct was sanctionable under Federal Rule of Bankruptcy Procedure 9011 as well. Rule 9011 provides in pertinent part:
Every petition, pleading, motion or other paper served or filed in a case under the Code on behalf of a party represented by an attorney ... shall be signed by at least one attorney of record.... The signature of an attorney ... constitutes a certificate that the attorney or party has read the document; that to the best of the attorney's or party's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation or administration of the case.... If a document is signed in violation of this rule, the court on motion or on its own initiative, shall impose on the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney's fee.
Fed. R. Bankr.P. 9011(a). Under Rule 9011, a bankruptcy court may sanction parties who file documents in bad faith or for an "improper purpose, such as to harass or to cause unnecessary delay or ... cost." Id. In this case, the bankruptcy court's findings reveal that Mr. Ellis' numerous filings were for improper purposes, such as delaying the resolution of the case without justification and harassing opposing counsel with "studied misconduct." As such, the sanction, insofar as it is traceable to Mr. Ellis' bad-faith filings, is supported by Rule 9011. See In re Excello Press, Inc., 967 F.2d 1109, 1112 (7th Cir.1992); In re Memorial Estates, Inc., 950 F.2d 1364, 1370 (7th Cir.1991), cert. denied, 504 U.S. 986, 112 S.Ct. 2969, 119 L.Ed.2d 589 (1992); Rainbow Magazine, 77 F.3d at 282-83; Arkansas Communities, 827 F.2d at 1222; Burt, 179 B.R. at 301-02; Knepper, 154 B.R. at 80; Regensteiner Printing Co., 142 B.R. at 819. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/439993/ | 741 F.2d 53
84-2 USTC P 9732
AIR POWER, INC., Appellant,v.The UNITED STATES of America, Appellee.
No. 83-1667.
United States Court of Appeals,Fourth Circuit.
Argued Feb. 6, 1984.Decided Aug. 9, 1984.
David Hugh Boyd, Fairfax, Va., for appellant.
William P. Wang, Tax Div., Dept. of Justice, Washington, D.C. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, William S. Estabrook, III, Tax Div., Dept. of Justice, Washington, D.C., on brief), for appellee.
Before HALL, MURNAGHAN and SPROUSE, Circuit Judges.
SPROUSE, Circuit Judge:
1
Air Power, Inc. (Air Power), appeals from the district court's decision granting a federal tax lien priority over its earlier state judgment lien against properties belonging to VWV Utility Construction Company, Inc. (VWV). The parties agree that Air Power's judgment lien was perfected under Virginia state law before the United States filed the required notice of its tax lien. 26 U.S.C. Sec. 6323(f). The single issue presented on appeal is whether Air Power's judgment was secured from a "court of record," as required by Supreme Court decision and the governing Internal Revenue Service (IRS) regulations, thus entitling Air Power to "judgment lien creditor" status and priority over a later-filed federal tax lien. United States v. Gilbert Associates, 345 U.S. 361, 73 S.Ct. 701, 97 L.Ed. 1071 (1953); 26 C.F.R. Sec. 301.6323(h)-1(g). See also 26 U.S.C. Sec. 6323(a). The district court resolved this issue in favor of the United States, noting that the Virginia legislature has characterized the Virginia general district court from which Air Power secured its judgment as a "court not of record." VA.CODE Sec. 16.1-69.5(a). We hold that whether a judgment issues from a "court of record" for purposes of section 6323 priority under the Internal Revenue Code is a question of federal law and that application of uniform criteria places the general district courts of Virginia in that category. Accordingly, we reverse.
2
* On April 22, 1982, Air Power secured a prejudgment writ of attachment from the General District Court of Loudon County, Virginia, against personal property belonging to VWV. The identified property was seized two weeks later by the Sheriff in satisfaction of VWV's $4,803 debt and default judgment was entered in Air Power's favor soon afterwards for the full amount of the debt. After the required legal notices were given, the general district court authorized the Sheriff to sell the seized property on June 25, 1982, with the proceeds to be paid to Air Power, the judgment lien creditor.
3
Meanwhile, the IRS had demanded payment from VWV for delinquent federal employment taxes. Although VWV failed to respond to its demand in early April 1982, the IRS did not file the required notice of tax levy against VWV with the Virginia State Corporation Commission until June 24, 1982, the day before the scheduled sheriff's sale. The IRS then notified the Sheriff of Loudon County not to release any proceeds from the sale to Air Power, contending the federal tax lien superseded its state court judgment. Air Power responded by bringing this wrongful levy action in federal district court claiming priority to the proceeds of the Sheriff's sale by virtue of its earlier perfected lien. See 26 U.S.C. Sec. 7426(a)(1). The district court, on proper motion, awarded summary judgment to the United States, ruling that Air Power's state lien was not entitled to priority because its judgment was not obtained from a "court of record." It based its ruling on the language of the Virginia statute specifically characterizing the general district court as a "court not of record."
4
On appeal, Air Power contends that the district court erred in relying solely on the label given by Virginia state law to the general district court in determining whether its judgment lien issued from a "court of record." It argues that whether a judgment issues from a "court of record" for purposes of determining priority under 26 U.S.C. Sec. 6323(a) is a question of federal law and that the specific and intrinsic attributes of Virginia general district courts make them courts of record for this purpose. We agree.
II
5
The United States possesses a statutory lien against all personal and real property belonging to a delinquent taxpayer from the time he refuses or neglects to heed a lawful demand for payment. 26 U.S.C. Sec. 6321. A federal tax lien's priority over other lawful debts is generally determined by applying "the first in time, first in right" rule. See United States v. Pioneer American Insurance Co., 374 U.S. 84, 87, 83 S.Ct. 1651, 1654, 10 L.Ed.2d 770 (1963). Originally, a federal tax lien took priority over virtually all other general liens perfected after the government made a lawful demand for payment from the delinquent taxpayer, even if the competing lienholder had no notice of the government's claim. Cf. United States v. City of New Britain, 347 U.S. 81, 84-88, 74 S.Ct. 367, 369-371, 98 L.Ed. 520 (1954). Although it has retained this basic scheme of priority for most competing general liens throughout the history of the Internal Revenue Code, Congress in the last fifty years has chosen to extend special protection to certain classes of creditors whose interests are perfected and specific before they have notice of outstanding federal tax liens. See 26 U.S.C. Sec. 6323(a). One such protected class is the "judgment lien creditor."1
6
The priority of a judgment creditor's lien over a federal tax assessment is determined from the time the government files its notice of a lien with appropriate state officials, rather than from the time of its demand for payment. 26 U.S.C. Sec. 6323(a). A qualifying creditor's rights are superior as long as his judgment is perfected2 before the government gives constructive notice of its right to the delinquent taxpayer's assets. Congress' purpose in imposing the notice requirement on the government was to protect the perfected interests of innocent third parties from "secret tax liens." Gilbert Associates, 345 U.S. at 363-64, 73 S.Ct. at 703.
7
The dispute between the parties in this appeal turns on whether Air Power qualifies as a "judgment lien creditor" for the purposes of special lien priority under section 6323(a). The IRS regulations implementing this statutory provision define a "judgment lien creditor" as:
8
... a person who has obtained a valid judgment, in a court of record and of competent jurisdiction, for the recovery of specifically designated property or for a certain sum of money ... [and] who has perfected a lien under the judgment on the property involved....
9
26 C.F.R. Sec. 301.6323(h)-1(g) (emphasis supplied). The "court of record" requirement, which was the basis of the ruling below in favor of the United States, originates from the Supreme Court's decision in United States v. Gilbert Associates, 345 U.S. 361, 73 S.Ct. 701, 97 L.Ed. 1071. In that case, the Town of Walpole, New Hampshire administratively assessed a local tax lien against a company facing a similar tax lien from the United States government. The town claimed priority over the federal tax lien because its assessment was perfected under state law before the United States filed the notice of its own lien, as required by the predecessor statute to section 6323. The United States conceded its filing was later in time, but argued that the town was not a "judgment creditor"3 within the meaning of the applicable statute, and thus not entitled to notice of the pre-existing lien. The Supreme Court agreed, explaining that the need for uniformity in defining "judgment creditor" required that the effect of the state's tax assessment on the federal priority question be determined according to federal law:
10
A cardinal principle of Congress in its tax scheme is uniformity, as far as may be. Therefore, a "judgment creditor" should have the same application in all the states. In this instance, we think Congress used the words "judgment creditor" in Sec. 3672 [predecessor to Sec. 6323] in the usual, conventional sense of a judgment of a court of record, since all states have such courts. We do not think Congress had in mind the action of taxing authorities who may be acting judicially as in New Hampshire and some other states, where the end result is something "in the nature of a judgment", while in other states the taxing authorities act quasi-judicially and are considered administrative bodies.
11
Gilbert Associates, 345 U.S. at 364, 73 S.Ct. at 703 (footnote omitted) (emphasis supplied).
12
The crucial languge in Gilbert for our purposes is that by which the Supreme Court equated the term "judgment creditor" with someone possessing "a judgment of a court of record." The IRS, which has incorporated Gilbert's "court of record" requirement into its administrative regulations, takes the position before this court that the Virginia statute labeling its general district courts as "courts not of record" should control the issue of whether Air Power's state judgment is entitled to priority over a federal tax lien. The district court below agreed. Air Power, seeking to overturn this ruling, argues that allowing the state's label to control would strike at the very heart of federal tax policy--the need for uniformity.
A.
13
The taxing power is one of the most jealously guarded prerogatives exercised by Congress. State law simply may not provide controlling guidance in this sensitive area unless "the federal taxing act by express language or necessary implication makes its operation dependent upon state law." Lyeth v. Hoey, 305 U.S. 188, 194, 59 S.Ct. 155, 158, 83 L.Ed. 119 (1938). See also Morgan v. Commissioner, 309 U.S. 78, 80-81, 60 S.Ct. 424, 425-426, 84 L.Ed. 585 (1940). State law unquestionably defines the property rights being asserted in section 6323(a) cases, for the very purpose of the provision is to give effect to certain state-created property interests when they are competing with a federal tax lien. See 1966 Senate Report, supra, note 3, at 3722-23. However, nothing in section 6323(a) of the Internal Revenue Code or its legislative history indicates that Congress, either explicitly or by necessary implication, contemplated giving state law preeminence in matters relating to the treatment or priority a judgment lien is to be accorded when competing with a federal tax lien.4 The relevant statutory language simply states that the government's lien "shall not be valid as against any ... judgment lien creditor until notice thereof which meets the requirements of subsection (f) has been filed by the Secretary or his delegate." 26 U.S.C. Sec. 6323(a) (emphasis supplied). Although the Internal Revenue Code offers no definition of "judgment lien creditor,"5 the senate committee report discussing this aspect of federal tax law makes it plain that a person qualifying for judgment creditor status "will be entitled as such to the protection of this section irrespective of the designation [state law gives to that person]" S.Rep. No. 1622, 83d Cong., 2d Sess., reprinted in 1954 U.S.Code Cong. & Ad.News 4621, 5224.6 Courts have confirmed congressional intent in this area by holding uniformly that judgment lien priority is governed by federal law and federal concerns. See, e.g., United States v. Speers, 382 U.S. 266, 270-72, 86 S.Ct. 411, 413-414, 15 L.Ed.2d 314 (1965); Gilbert Associates, 345 U.S. at 364, 73 S.Ct. at 703; United States v. Hunt, 513 F.2d 129, 133 (10th Cir.1975).
14
Gilbert's direction that the term "judgment [lien] creditor" be defined "in the usual, conventional sense of a judgment of a court of record," Gilbert, 345 U.S. at 364, 73 S.Ct. at 703, must be interpreted in light of the overriding and long-established principle that federal law governs tax policy.7 The United State's position on the resolution of the "court of record" issue would seriously undermine this principle and be at odds with Gilbert itself. The Supreme Court in Gilbert held that the Town of Walpole could not qualify as a judgment creditor for federal tax purposes simply because the state of New Hampshire conferred that status upon it. The Court, in essence, recognized that many state practices, although legitimate within their own jurisdictional sphere, could not be binding on a federal court in a lien priority case arising under the federal tax laws. The priority rights conferred by Congress, the Court explained, are distinctly federal in nature and must be decided accordingly. These rights cannot vary depending on the locale, but "should have the same application in all the states." Gilbert, 345 U.S. at 364, 73 S.Ct. at 703. Uniformity, the Court further emphasized, is the guiding principle in matters relating to the federal government's taxing power. In short, the unmistakable message of Gilbert is that inconsistent state practices, though controlling in the host jurisdiction, must yield to a consistent federal rule to insure uniform application of the tax laws.
B.
15
We obviously cannot intrude on the state of Virginia's prerogatives to organize and structure its courts in the way it deems appropriate to meet local concerns. Our purpose is simply to determine whether the judgment of one of its general district courts is entitled to respect from a federal court considering a federal lien priority case. The answer can only be supplied by analyzing the true character of the issuing court in light of Congress' expressed desire to confer special protection to certain qualifying state-created property interests.
16
The design Virginia has chosen for its court system generally conforms to the model used by other jurisdictions. The Virginia Supreme Court of Appeals is at the apex of the judicial hierarchy and has final appellate jurisdiction over all civil and criminal matters. See generally VA.CODE Secs. 17-93 to -116. Directly below it is the recently created Virginia Court of Appeals, which will assume appellate jurisdiction over lower court decisions beginning in 1985. VA.CODE Secs. 17-116.01 to -116.014. At the trial level, the various circuit courts fulfill the function of courts of general jurisdiction. They have original jurisdiction in all criminal matters involving felonies and in all civil matters involving more than $7,000. VA.CODE Sec. 17-123. They also possess concurrent jurisdiction with general district courts for civil cases involving less than $7,000 but more than $1,000, VA.CODE Sec. 16.1-76-77, and may undertake de novo review of the decisions of "courts not of record" in certain instances. VA.CODE Sec. 16.1-106.
17
At the bottom of the judicial ladder are Virginia general district courts. Despite their label as "courts not of record" and their limited jurisdiction in civil and criminal matters, these courts have many of the attributes of Virginia's circuit courts. General district courts keep and preserve a written record of their proceedings, VA.CODE Sec. 16.1-91 and are presided over by individuals trained in the law, VA.CODE Sec. 16.1-69.15. These courts also possess virtually all the same powers of their circuit court counterparts. They may punish contemnors, VA.CODE Sec. 16.1-69.24, issue subpoenas, VA.CODE Sec. 16.1-69.25, administer oaths, VA.CODE Sec. 16.1-69.27, permit discovery in certain cases, VA.CODE Sec. 16.1-82 to -89, and take affidavits, VA.CODE Sec. 16.1-69.27. Procedurally, it is likewise difficult to distinguish the general district court from a "court of record" as that institution was known at common law. Cf. 20 Am.Jr.2d Courts Sec. 26. Suits in general district court must be initiated by a warrant or motion for judgment served on the opposing party. VA.CODE Sec. 16.1-81. The defendant in any action has the right to assert counterclaims against the plaintiff and to have them determined in the same proceeding. VA.CODE Sec. 16.1-88.01. A losing party concededly may appeal an adverse decision to the circuit court and receive a de novo trial, but he is precluded from expanding either his claim or request for remedies beyond those presented to the general district court. VA.CODE Sec. 16.1-106. See also Stacy v. Mullins, 185 Va. 837, 40 S.E.2d 265 (1946); Addison v. Salyer, 185 Va. 644, 40 S.E.2d 260 (1946).
18
Finally, and perhaps most significantly, the substantive effect of a final decision from the general district court is the same as that of a final decision from a circuit court. Its decision not only can be enforced by the same mechanisms as the judgment of a circuit court, VA.CODE Sec. 16.1-116, but it is entitled to the same preclusive effect from other state courts. Petrus v. Robbins, 195 Va. 861, 80 S.E.2d 543 (1954). See also Boyd, Graves & Middleditch, Virginia Civil Procedure Sec. 12.11 (1982). Because federal courts are bound to honor state court judgments to the same extent as the issuing state itself, a Virginia general district court decision presumably would be entitled to full faith and credit if interposed as a defense in a federal suit between the same parties. See 28 U.S.C. Sec. 1738. See also Kremer v. Chemical Construction Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 1889, 72 L.Ed.2d 262 (1982); Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980).
19
In sum, the label "courts not of record" given to general district courts by the Virginia legislature, though no doubt serving a legitimate state purpose, is not entirely reflective of the true character or present day competency of those tribunals.
C.
20
The label a state gives its own courts, of course, provides some guidance on whether a judgment springs from a court of record, but it alone cannot be determinative. See, e.g., Gilbert, 345 U.S. at 363-64, 73 S.Ct. at 703. An individual state's reasons for labeling one tribunal "a court of record" and another "not a court of record" may have more to do with the jurisprudential history of the state than the present day competency of the particular tribunal. The factors the state weighed in reaching its labeling decision are almost certain to address different concerns than those implicated in federal tax policy. Weaving these wholly state concerns into the fabric of national tax policy could only negatively affect a tax policy designed to achieve uniform results. To insure consistency and fairness in the application of section 6323(a), a federal court must look to the basic structure and competency of the court issuing the judgment. The dispositive question is not whether the tribunal carries the rubric "court of record," but whether it has been cloaked by its host state with the usual and conventional powers of a "court of record" and operates as a judicial body. The general district courts of Virginia have those powers and operate in the usual manner of courts of record.
D.
21
Deferral to diverse state rules which purport to make ultimate conclusions on the "court of record" question in tax cases not only would defeat the uniformity Gilbert sought to achieve, but in given cases could create unconscionable results for individual creditors raising the same claim in different jurisdictions. The case we consider vividly makes this point: Air Power prosecuted its $4,800 claim against VWV in Virginia general district court, a tribunal with competent jurisdiction to hear such claims up to $7,000. VA.CODE Sec. 16.1-77. If we are bound to the label Virginia gave this court rather than the actual judicial powers it possesses, as the government urges, Air Power's claim could not take priority over a later filed federal tax lien, even though the state judgment creditor had no notice of the lien's existence and would be entitled to priority if he were competing with another state lienor.8 The rule's application to the very same claim now raised by Air Power in other states, however, would produce different results. In the adjoining state of West Virginia, for example, Air Power's claim would take priority over the identical federal lien because that state denominates courts with the power to rule on $4,800 claims as "courts of record." See generally W.VA.CODE Secs. 51-2-1,-2.
22
Congress obviously could not have intended such patently unfair and inconsistent results when it cast the language of section 6323(a). See Gilbert, 345 U.S. at 364, 73 S.Ct. at 703. The lien priority provisions of the Internal Revenue Code were specifically designed to preserve the perfected interests of innocent third parties from "secret tax liens." This overriding purpose completely unravels if a creditor's entitlement to protection becomes captive to the label the individual states give to the court issuing the judgment.9
23
In view of all these considerations, we hold that the general district court of Virginia is a "court of record" for the purpose of affording a judgment lien creditor the special protections contained in section 6323(a) of the Internal Revenue Code.
24
REVERSED.
K.K. HALL, Circuit Judge, dissenting:
25
I cannot agree with the majority's conclusion that the general district court of Virginia is a "court of record" for the purpose of affording a judgment lien creditor protection under 26 U.S.C. Sec. 6323(a) (1983). I, therefore, dissent.
26
As the majority recognizes, the cardinal principle of federal tax policy is to advance a uniform application of the federal tax laws among the states. In striving for such uniformity, the Supreme Court in United States v. Gilbert Associates, Inc.1 explicitly stated that only judgments from courts of record can confer upon a creditor the status of a judgment creditor for federal tax lien purposes.
27
All states have designated certain courts of original general jurisdiction as courts of record. In the instant case, the Virginia legislature determined that its general district courts were "courts not of record." Va.Code Sec. 16.1-69.5 (1972).2 The majority's opinion not only ignores the plain language of the Virginia statute but also violates the principle of uniformity. The majority's expansive construction of the phrase "court of record" will inevitably result in extensive inquiries concerning whether each particular court in the country is a court of record, and will foster inconsistent application of the federal tax laws among the states.
28
Reference to state statutes, on the other hand, promotes uniformity by providing consistent results as to whether a particular court is a court of record. The application of Sec. 16.1-69.5 in conjunction with federal tax laws dealing with judgment lien creditors would not prejudice creditors such as Air Power because they can proceed in the Virginia Circuit Court, which has been designated a court of record. Furthermore, the application of Sec. 16.1-69.5 in conjunction with federal tax laws provides a bright-line test which can easily be followed by both creditors and courts in other states.
29
In my view, Va.Code Sec. 16.1-69.5 (1972) is dispositive of this case. Its use advances a uniform application of the federal tax laws and is consistent with the principles of comity. Accordingly, I would affirm the district court.
1
The applicable provision of the Internal Revenue Code states that:
The lien imposed by section 6321 shall not be valid as against any purchaser, holder of a security interest, mechanic's lienor, or judgment lien creditor until notice thereof which meets the requirements of subsection (f) has been filed by the Secretary or his delegate.
26 U.S.C. Sec. 6323(a) (emphasis supplied). The predecessor provision to section 6323(a) only provided notice protection to a "mortgagee, pledgee, purchaser, or judgment creditor." See Priority of Federal Tax Liens and Levies, Hearings on H.R. 11256 and 11290 Before the House Comm. on Ways and Means, 89th Cong.2d Sess. 37 (March 2, 1966) (Statement of Stanley S. Surrey, Ass't Secretary of Treasury). The 1966 amendments to the Internal Revenue Code expanded this protected group to include mechanic's lienors and holders of a security interest. These same amendments created "superpriority" protection for certain creditors whose interests arose before notice of the federal tax lien, but were not choate until after notice was received. See 26 U.S.C. Sec. 6323(b), (c) and (d). These changes were designed to increase the protection afforded private sector creditors and to modernize the relationship between federal tax liens and other commercial creditors. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 738, 99 S.Ct. 1448, 1463, 59 L.Ed.2d 711 (1979).
2
Courts generally look to state law in determining whether a competing state court lien is perfected or choate against third party creditors, but federal law governs the actual legal effect of the judgment for tax priority purposes. See Hartford Provision Co. v. United States, 579 F.2d 7, 9 (2d Cir.1978). See also 26 C.F.R. Sec. 301.6323(h)-1(g). Additionally, certain threshold federal requirements of choateness must be satisfied before the lien can qualify for priority treatment. See United States v. City of New Britain, 347 U.S. 81, 84, 74 S.Ct. 367, 369, 98 L.Ed. 520 (1954)
3
Under the predecessor statute to section 6323, a "judgment creditor" was entitled to notice of an existing federal tax lien. In its 1966 revisions to the Internal Revenue Code, however, Congress changed "judgment creditor" to "judgment lien creditor." The Senate Report discussing this change made it plain that the addition of the word "lien" did not alter the definition courts had traditionally given to "judgment creditor." S.Rep. No. 1708, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Admin.News 3722, 3724 [hereinafter cited as 1966 Senate Report]
4
There are several references in the provisions of subsection 6323(b), (c), and (d) allowing lien priority to be determined in accordance with state law for certain claimants, but no similar expressions for a section 6323(a) judgment lien creditor. The legislative history indicates that Congress was satisfied with the interpretations courts had historically given to the notice provisions of 6323(a) and chose not to disturb them. Its clear purpose in tying section 6323(b) and (c) protection to state law, however, was to override federal court decisions that had made these identified state property interests subordinate to federal tax liens. United States v. Kimbell Foods, Inc., 440 U.S. at 720 n. 6, 99 S.Ct. at 1454 n. 6. Uniformity was not an overriding concern when Congress allowed state law to control in these special cases because most states had moved in the direction of incorporating the provisions of the Uniform Commercial Code into their own laws. The rules controlling "judgment lien creditor" status were presumably left undisturbed because the Uniform Commercial Code does not treat this category of creditors. See U.C.C. Sec. 9-104(h)
5
In conjunction with the 1954 revisions to the Internal Revenue Code, the House of Representatives passed a version of section 6323 that made a judgment lien creditor's priority rights contingent upon him "actually obtain[ing] a valid judgment in a court of record and of competent jurisdiction for the recovery of specifically designated property or for a certain sum of money," H.R.Rep. No. 1337, 83d Cong., 2d Sess., reprinted in 1954 U.S.Code Cong. & Ad.News 4017, 4555. The purpose of this proposed requirement was to make it clear "that particular persons [will] not be treated as judgment creditors because State or Federal law artificially provides or concedes such persons rights or privileges of judgment creditors, or even designates them as such, when they have not actually obtained a judgment in the conventional sense." Id. The competing Senate version did not contain this requirement and ultimately became the approach enacted into statute. The conferees adopted the Senate's version to continue in effect existing law, including applicable rules developed by judicial construction. H.R.Rep. No. 2543, 83d Cong., 2d Sess., reprinted in 1954 U.S.Code Cong. & Ad.News 5280, 5340
6
This discussion of the meaning of "judgment creditor" occurred before the 1966 revisions to section 6323 of the Internal Revenue Code. As previously mentioned, however, the only change affecting "judgment creditor" was the addition of the word "lien." See note 3 supra
7
In commenting on Gilbert's "court of record" language, the American Bar Association's Committee on Federal Liens indicated that "there appears no reason to discriminate against judgments rendered by lesser courts if, by docketing, they have become liens." American Bar Association Final Report of the Committee on Federal Liens, 26 (1959), reprinted in Priority of Federal Tax Liens and Levies: Hearings on H.R. 11256 and H.R. 11290 Before the House Comm. on Ways and Means, 89th Cong., 2d. Sess. 60, 167 (1966) (statement and submissions of Laurens Williams, Chairman, Special Committee on Federal Liens, ABA). The ABA Committee was a driving force in the successful effort to modernize the federal law respecting lien priority. The Supreme Court itself implicitly cautioned against a mechanical interpretation of Gilbert's "court of record language" in United States v. Speers, 382 U.S. at 270-71, 86 S.Ct. at 413-414
8
Although it is true Air Power could have proceeded against VWV in Virginia Circuit Court, a tribunal carrying the label "court of record," we see no justifiable reason for penalizing "it" for making a choice legitimately provided by Virginia law as long as the judicial tribunal to which it resorted had the necessary attributes of a court of record
9
The IRS makes the argument that deferring to the state's designation would actually enhance uniformity by drawing a bright line separating a "court of record" from a "court not of record." The uniformity Congress had in mind when it enacted section 6323, however, relates to ensuring the same treatment for a third party creditor wherever he resides; it does not refer to the ease with which the rule is applied. If the states had formulated a universal scheme for defining a "court of record," the position urged by the IRS would have more force. Such a scheme, however, does not exist, and federal courts are thus bound to formulate a rule that protects a Virginia judgment lien creditor to the same extent as a lienholder in other states
1
345 U.S. 361, 364, 73 S.Ct. 701, 703, 97 L.Ed. 1071 (1953)
2
When the Virginia legislature passed Sec. 16.1-69.5, in 1972, it was undoubtedly aware of the interrelationship the statute would have with the federal tax laws, as Gilbert had been decided in 1953, and Sec. 6623(a) had been amended to include an express reference to judgment lien creditors in 1966 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/716790/ | 82 F.3d 192
UNITED STATES of America, Appellant,v.Roger J. RAETHER; Russell Hawkins, Appellees.
No. 95-3222SD.
United States Court of Appeals,Eighth Circuit.
Submitted March 11, 1996.Decided April 22, 1996.
Appeal from the United States District Court for the District of South Dakota; Hon. Lawrence L. Piersol, Judge.
Ted L. McBride, Assistant U.S. Attorney (argued), for Appellant.
Frank E. Denholm (argued), Brookings, SD, for Appellee Roger J. Raether.
Lisa Hansen Marso, Sioux Falls, SD, argued (James E. McMahon and Gregg S. Greenfield, on the brief), for Appellee Russell D. Hawkins.
Before FAGG, BRIGHT, and WOLLMAN, Circuit Judges.
FAGG, Circuit Judge.
1
Roger J. Raether and Russell Hawkins helped two Indian tribes obtain government equipment through the federal government's program for disposing of excess property. The program is administered by the General Services Administration (GSA). Contrary to GSA regulations, the tribes immediately resold some of the equipment. The Government then charged Raether with making material false statements to the GSA about the equipment's use, in violation of 18 U.S.C. § 1001 (1994). Alleging Hawkins conspired with Raether to make the false statements, the Government charged both Raether and Hawkins with conspiracy to commit an offense against the United States. See 18 U.S.C. § 371 (1994). At trial, over defense counsel's objections, the district court decided Raether's statements were material as a matter of law and instructed the jury not to consider materiality. The jury returned a guilty verdict on both counts, and the district court entered judgment on the verdict. A few weeks later, the Supreme Court held that when materiality is an essential element of a false statement crime, the Constitution requires trial courts to submit the issue of materiality to the jury. United States v. Gaudin, --- U.S. ----, ----, 115 S.Ct. 2310, 2320, 132 L.Ed.2d 444 (1995). Raether and Hawkins moved for a new trial based on Gaudin, and the district court granted the motion. The Government appeals. We affirm.
2
In treating materiality as a question of law, the district court followed well-established circuit law. See, e.g., United States v. Richmond, 700 F.2d 1183, 1188 (8th Cir.1983). Gaudin teaches that we and the district court were wrong. The question of whether Raether's statements were material, that is, whether the statements were capable of influencing the GSA, see United States v. Wodtke, 951 F.2d 176, 178 (8th Cir.1991), was for the jury to decide. Materiality is an essential element of an 18 U.S.C. § 1001 offense. United States v. Wells, 63 F.3d 745, 750 (8th Cir.1995), petition for cert. filed, 64 U.S.L.W. 3534 (U.S. Jan. 31, 1996) (No. 95-1228). No matter how overwhelming the evidence of materiality, the district court was not permitted to direct a finding for the Government on this element of the § 1001 charge against Raether. Gaudin, --- U.S. at ----, 115 S.Ct. at 2316; Sullivan v. Louisiana, 08 U.S. 275, 277, 113 S.Ct. 2078, 2080, 124 L.Ed.2d 182 (1993). The district court also should have instructed the jury to consider materiality when deciding whether Hawkins and Raether had conspired to violate § 1001.
3
Nevertheless, the Government contends the district court should not have granted a new trial because the instructional error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Hawkins and Raether assert the harmless error rule does not apply in this case. They claim Gaudin errors are structural errors rather than trial errors and thus always require reversal. See Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 S.Ct. 1246, 1264-65, 113 L.Ed.2d 302 (1991).
4
We conclude Gaudin errors are trial errors subject to harmless error review. There is a strong presumption that constitutional errors can be harmless. Rose v. Clark, 478 U.S. 570, 578-79, 106 S.Ct. 3101, 3106-07, 92 L.Ed.2d 460 (1986). The Supreme Court has applied the harmless error analysis to jury instructions that misstated an element of a crime and to instructions that set out unconstitutional presumptions about required elements. See Yates v. Evatt, 500 U.S. 391, 402, 111 S.Ct. 1884, 1892, 114 L.Ed.2d 432 (1991) (unconstitutional rebuttable presumption); Carella v. California, 491 U.S. 263, 266-67, 109 S.Ct. 2419, 2421, 105 L.Ed.2d 218 (1989) (per curiam) (unconstitutional mandatory presumption); Pope v. Illinois, 481 U.S. 497, 503, 107 S.Ct. 1918, 1922, 95 L.Ed.2d 439 (1987) (element misstated). The only instructional error the Court has classified as structural was a faulty reasonable doubt instruction that improperly lowered the Government's burden of proof on all the elements of a charged offense. See Sullivan, 508 U.S. at 278, 281-82, 113 S.Ct. at 2080, 2083. Because the jury in Sullivan did not make any findings under the correct standard of proof, the Court had no basis for determining how the erroneous instruction affected the jury's decisionmaking and the Court could not perform a meaningful harmless error review. Id. at 280-81, 113 S.Ct. at 2080. In contrast, at Raether and Hawkins's trial, the district court's failure to let the jury decide the materiality issue did not prevent the jury from properly deciding the other issues in the case. Accordingly, it is appropriate for us to examine the record and consider whether the error was harmless. See United States v. Nguyen, 73 F.3d 887, 894-95 (9th Cir.1995); United States v. Parmelee, 42 F.3d 387, 391, 393 (7th Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct. 63, 133 L.Ed.2d 25 (1995); United States v. Williams, 935 F.2d 1531, 1536 (8th Cir.1991), cert. denied, 502 U.S. 1101, 112 S.Ct. 1189, 117 L.Ed.2d 431 (1992). But see United States v. DiRico, 78 F.3d 732, 737 (1st Cir. 1996); United States v. Pettigrew, 77 F.3d 1500, 1511 (5th Cir. 1996); United States v. Johnson, 71 F.3d 139, 144-45 (4th Cir.1995).
5
The error was harmless if "the jury's actual finding of guilty ... would surely not have been different absent the constitutional error." Sullivan, 508 U.S. at 280, 113 S.Ct. at 2080. We are not persuaded beyond a reasonable doubt that the district court's faulty instruction on materiality "played no significant role in the finding of guilt." Id. at 281, 113 S.Ct. at 2080; see Yates, 500 U.S. at 403-04, 111 S.Ct. at 1892-93. The district court told the jury Raether's statements were material, and the record does not show the jury made an independent determination about materiality. The Government theorizes that because the jury rejected certain defenses raised at trial, the jury must have believed Raether's false statements were significant to the GSA and thus material. We cannot be sure the jury engaged in the same line of reasoning as the Government, however. The jury did not make any findings that are so closely related to the materiality issue that they are functionally equivalent to a materiality finding. See Sullivan, 508 U.S. at 280-81, 113 S.Ct. at 2080-81 (citing Carella, 491 U.S. at 271, 109 S.Ct. at 2424 (Scalia, J., concurring in judgment)); Nguyen, 73 F.3d at 895. We are not permitted simply to speculate about what the jury would have decided if the district court had properly instructed them. Sullivan, 508 U.S. at 281, 113 S.Ct. at 2081. The lesson from Gaudin is that juries, not judges, should decide all the elements of a charged crime. See Gaudin, --- U.S. at ----, 115 S.Ct. at 2320.
6
Because the Gaudin error in this case was not harmless beyond a reasonable doubt, we affirm the district court's decision to grant a new trial. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/398866/ | 668 F.2d 1114
Otto T. TRAPP, Plaintiff-Appellant,v.UNITED STATES of America, United States Civil ServiceCommission, et al., Defendants-Appellees.
No. 76-1801.
United States Court of Appeals,Tenth Circuit.
Jan. 26, 1977.
Frederick M. Kal, Aurora, Colo., for plaintiff-appellant.
James L. Treece, U. S. Atty., Jerre W. Dixon, Asst. U. S. Atty., Denver, Colo., for defendants-appellees.
Before HILL, McWILLIAMS and DOYLE, Circuit Judges.
HILL, Circuit Judge.
1
This is an appeal from an order of the United States District Court for the District of Colorado denying appellant attorney's fees for administrative and judicial proceedings to enforce his employment rights as a civilian pilot for the United States Army.
2
Appellant, a preference eligible employee as defined in 5 U.S.C. § 7511, was discharged from his position as an aircraft pilot with the United States Army Aviation Division at Dugway, Utah. He pursued his administrative remedies within the Civil Service Commission, finally appealing his discharge to the Board of Appeals and Review. At each level his termination was upheld.
3
This suit was commenced as a review by the district court of final administrative action, pursuant to 5 U.S.C. § 701 et seq. The district court found appellant's termination arbitrary and capricious and reversed the decision of the Board of Appeals and Review but denied appellant's request for attorney's fees for the prior administrative hearings and the proceeding in the district court.
4
As a sovereign, the United States is immune from suit, save as it consents to be sued. United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). A partial waiver of immunity authorizing costs to be assessed against the government in favor of successful litigants is found in 28 U.S.C. § 2412. That section specifically excludes attorney's fees, however, and makes it clear that they may not be awarded against the government absent express statutory authority. Pyramid Lake Paiute v. Morton, 499 F.2d 1095 (D.C.Cir.1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439. Finding no authority to support such an award for the judicial proceedings herein, we hold that the fees were properly denied.
5
We next consider appellant's request for attorney's fees incurred in the administrative proceedings. The record is not clear as to whether a request for fees was made at the administrative level. If it was not, the district court was without jurisdiction to consider the question of fees for the agency proceedings. As this suit is for judicial review of the Board's decision, the district court's consideration was limited by 5 U.S.C. § 702 to legal wrongs suffered because of agency action. Any matter not placed in issue before the Board was not a part of its action and, therefore, not properly before the district court.
6
If appellant did request fees before the Board, the question before the district court was the propriety of the Board's denial of appellant's attorney's fees and, therefore, the authority of the Board to award fees.
7
Agencies may not award attorney's fees without express statutory authority. Turner v. FCC, 514 F.2d 1354 (D.C.Cir.1975). Appellant cites 5 U.S.C. § 7701, the section by which he took his appeal to the Board, as authority for an award of fees. That section, inter alia, authorizes an aggrieved preference eligible employee to appear "through a representative." The section is silent, however, on the question of expenses for such representation. Section 7701 also contains a general provision authorizing the Board to direct "corrective action" with regard to the employee's grievance.
8
Where Congress has spoken to authorize an award of attorney's fees, it has done so in no uncertain terms.1 We decline to infer from the ambivalent language of the noted section a congressional grant of authority to the Board of Appeals and Review to award attorney's fees in proceedings before it by preference eligible employees.
9
AFFIRMED.
1
E.g., 42 U.S.C. § 2000e-5(k), which provides:
(k) In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/422086/ | 713 F.2d 247
4 Employee Benefits Cas. 2315
James F. JENKINS, Plaintiff-Appellant,v.LOCAL 705 INTERNATIONAL BROTHERHOOD OF TEAMSTERS PENSIONPLAN, Defendant-Appellee.
No. 82-2785.
United States Court of Appeals,Seventh Circuit.
Argued Feb. 7, 1983.Decided July 8, 1983.
1
Michael M. Mulder, Meites & Frackman, Chicago, Ill., for plaintiff-appellant.
2
Sherman Carmell, Carmell, Charone & Widmer, Ltd., Chicago, Ill., for defendant-appellee.
3
Before BAUER and COFFEY, Circuit Judges, and HOLDER, District Judge.*
4
HOLDER, District Judge.
5
Appellant, James F. Jenkins, appeals from the district court's October 28, 1982 (docketed November 1, 1982) order granting the motion of appellee, Local 705 International Brotherhood of Teamsters Pension Plan, for judgment on the pleadings. We reverse.
Procedural Background
6
The appellant commenced his action in the district court on June 4, 1982 with the filing of his three count complaint. The appellant brought his action pursuant to the Employee Retirement Income Security Act of 1974 (hereafter 'ERISA'), 29 U.S.C. § 1001, et seq., to obtain benefits and to enforce and clarify his rights under an employee pension benefit plan (hereafter 'Plan'). Count I of his complaint sought full retirement benefits based on normal retirement date and age of sixty-five (65). Count II reincorporated the allegations of Count I, and sought early retirement benefits based on appellant's age of fifty-seven in 1969. Count III reincorporated the allegations of Count I, and sought deferred vested retirement benefits under the Plan.
7
The appellant filed its answer to the complaint on June 30, 1982 in admissions and denials, along with certain affirmative defenses.
8
On September 3, 1982 the appellee filed its motion for judgment on the pleadings, based on the affirmative defenses of statutes of limitations barring each of the claims in Counts I, II and III of the complaint, and based on the affirmative defenses of failure to exhaust internal remedies of the Plan. In support of its motion, the appellee submitted a memorandum of law. The appellee argued that appellant's claims alleged in Counts I, II and III of the complaint were untimely filed and were barred by the ninety (90) day period set forth in Ill.Rev.Stat. ch. 10, § 112 for vacating an arbitration award and/or the six (6) month period provided in Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(b). The appellee also argued that the claims in Counts II and III were improperly before the trial court because they had not been presented to the Trustees as provided for in the Plan.
9
The appellant's response to the motion for judgment on the pleadings asserted that the applicable statute of limitations was the Illinois ten (10) year statute of limitations for actions on a written contract, Ill.Rev.Stat. ch. 110, § 13-206. The appellant's response also argued that he had exhausted the internal administrative remedies provided in the Plan and/or the exhaustion should be excused as further efforts would have been futile.
10
On October 28, 1982, the district court granted the motion for judgment on such affirmative defenses in the pleadings "for the reasons set forth in defendant's memorandum."The appellant timely filed his notice of appeal on November 3, 1982.1
Issues on Appeal
11
The issues presented on appeal by the parties may be characterized as follows: (1) did the district court err in concluding that the appellant's three count complaint was time-barred and if so, what statute of limitations governs each of the counts brought under Section 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B) to recover benefits under the employee pension benefit plan? and (2) did the appellant exhaust the internal remedies of the Plan, was such exhaustion required and is the exhaustion issue properly before this court?
Facts
12
The appellant, James F. Jenkins, was born on September 12, 1912. During some or a part of the years from 1954 through 1977, James F. Jenkins was employed by employers who had a collective bargaining agreement with Local 705 of the International Brotherhood of Teamsters. Local 705 International Brotherhood of Teamsters Pension Plan and Local 710 Pension Fund were parties to the Joint Council No. 25 Reciprocal Agreement and as such were engaged in covered or related employment providing for an employee pension benefit plan.
13
Local 705 International Brotherhood of Teamsters Pension Plan, as amended February 1, 1976, and its predecessors, contain the terms and conditions for entitlement to retirement, disability and death benefits for members of Local 705. The Plan and its predecessors were established through collective bargaining agreements between various union locals, including Local 705, and employers who agreed to provide contributions to the Pension Plan Fund on behalf of covered employees and to be bound by the Plan and Trust Agreement. The 1976 amended version of the Plan, and its predecessors, contemplate that employees for whom contributions to the Plan have been made by an employer, in a bargaining unit represented by the Union, will be a participant in the Plan and eligible for benefits under the Plan. If these conditions are met, employee coverage is automatic.
14
James F. Jenkins attained the age of sixty-five (65) on October 1, 1977. In June of 1978, Jenkins, proceeding without counsel, requested benefits under the Plan. Jenkins' request was denied. On October 5, 1978, in an open meeting the Board of Trustees of Local 705 International Brotherhood of Teamsters Pension Plan (hereafter 'Board'), considered appellant's claim for a normal or disability pension and/or an appeal for benefits. The Board denied Jenkins' request on October 5, 1978, and in a letter dated November 8, 1978 confirmed the earlier denial of his requests for benefits. On or about October 16, 1978, Jenkins sought the assistance of the Legal Assistance Foundation of Chicago. The attorney assigned to Jenkins' case sought employment information and records from both Local 705 International Brotherhood of Teamsters Pension Plan and the Social Security Administration of the Department of Health, Education and Welfare. The last of the requested employment information was received by Jenkins' attorney in August of 1980. In October of 1980, the Legal Assistance Foundation of Chicago determined that appellant's claim was potentially fee generating and thus referred it to a private attorney. Appellant's new attorney requested additional employment information from the Internal Revenue Service in January of 1981. The appellant completed the compilation of information from the Internal Revenue Service in December of 1981.
15
Based on the additional information and supplemented employment records, Jenkins requested the Board on March 22, 1982 to reconsider his claim for a pension, along with his newly made requests for an early retirement pension and/or a deferred vested pension under the Plan. Local 705 International Brotherhood of Teamsters Pension Plan denied the appellant's requests for reconsideration and review on May 12, 1982. The appellant filed his complaint on June 4, 1982.
Opinion
16
The appellant has brought his action pursuant to the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq. Specifically, Sections 502(a)(1)(B) and (e), 29 U.S.C. § 1132(a)(1)(B) provide in part as follows:
17
(a) A civil action may be brought--
18
(1) by a participant or beneficiary--
19
(A) ....
20
(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, to clarify his rights to future benefits under the terms of the plan;
21
(e)(1) Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, or fiduciary. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under subsection (a)(1)(B) of this section.
22
(2) Where an action under this subchapter is brought in a district court of the United States, it may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found, and process may be served in any other district where a defendant resides or may be found.
23
At the time of its enactment and in an attempt to resolve discrepancies between the House and Senate versions a joint explanatory statement was issued and made a part of the legislative history of ERISA. It provides, in part:
24
Under the conference agreement, civil actions may be brought by a participant or beneficiary to recover benefits due under the plan, to clarify rights to receive future benefits under the plan, and for relief from breach of fiduciary responsibility.... However, with respect to suits to enforce benefit rights under the plan or to recover benefits under the plan which do not involve application of title I provisions, they may be brought not only in U.S. district courts but also in State courts of competent jurisdiction. All such actions in Federal or State courts are to be regarded as arising under the laws of the United States in similar fashion as to those brought under section 301 of the Labor-Management Relations Act of 1947.
25
H.R.Conf.Rep. No. 93-1280, Joint Explanatory-Statement of the Committee of Conference, 93rd Cong., 2d Sess., reprinted in (1974) U.S.Code Cong. & Admin.News, pp. 4639, 5038, 5107 (emphasis supplied). Accordingly, the legislative history and subsequent case law have made it clear that federal jurisdiction exists over and federal law will control actions brought under Sections 502(a)(1)(B) and (e) of ERISA, 29 U.S.C. § 1132(a)(1)(B) and (e). Reiherzer v. Shannon, 581 F.2d 1266, 1271 (7th Cir.1978).
26
Section 301 of the Labor Management Relations Act (hereafter 'LMRA'), 29 U.S.C. § 185 does not contain any statute of limitations dealing with suits by and against labor organizations. Consequently, the timeliness of Section 301 actions is to be determined "as a matter of federal law, by reference to the appropriate state statute of limitations". United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 1562, 67 L.Ed.2d 732 (1981); International Union, UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 705, 86 S.Ct. 1107, 1113, 16 L.Ed.2d 192 (1966); Davidson v. Roadway Express, Inc., 650 F.2d 902, 903 (7th Cir.), cert. denied, 455 U.S. 947, 102 S.Ct. 1447, 71 L.Ed.2d 661 (1981). The court, in making this determination, must decide which statute of limitations period is "the most appropriate one provided by state law." United Parcel Service, Inc. v. Mitchell, supra, at 1563; Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295.
27
ERISA, like Section 301 of the LMRA, does not contain a statute of limitations for the bringing of civil actions. Therefore, guided by the principles announced in Section 301 cases on the statute of limitations issue, the court will look to the most appropriate state statute of limitations. See: Johnson v. Railway Express, supra; Livolsi v. City of New Castle, Pa., 501 F.Supp. 1146, 1151 (W.D.Pa.1980). In determining the most appropriate state statute of limitations, the court must be cognizant of and examine the underlying nature of the federal claim as well as the federal policies involved.
28
The employee benefit pension plan in this case is administered in the State of Illinois by an equal number of union and employee trustees. The Administrator of the Plan, who is also designated as the agent for service of process, has his office in the State of Illinois. The headquarters of the Plan and its principal place of business are located in Chicago, Illinois. The investment agents of the Plan are located in the State of Illinois as is Local Union No. 705 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Accordingly, the court will look to the State of Illinois in determining the most appropriate state statute of limitations.2
29
The parties have referred the court to various Illinois statutes of limitation. The appellee argued in the trial court that the ninety (90) day Illinois statute for vacating an arbitration award, Ill.Rev.Stat. ch. 10, § 1123 and/or the six (6) month period provided in Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. 160(b)4 should be applied to the facts of this case. Alternatively, the appellant has argued that the Illinois statutes of limitations for contract actions, Ill.Rev.Stat. ch. 110, § 13-2055 and Ill.Rev.Stat. ch. 110, § 13-2066 are more applicable.
30
It is clear that the characterization of a particular action for the purpose of selecting the most appropriate state statute of limitations is ultimately a question of federal law. International Union, UAW v. Hoosier Cardinal Corp., supra, 383 U.S. at 706, 86 S.Ct. at 1113-1114. In order to determine the appropriate state statute of limitations, the court must first properly characterize the action.
31
The appellant, Jenkins, has brought this action to recover benefits allegedly due him under the terms of the employee pension benefit plan and to enforce and/or clarify his rights under the terms of that Plan. Section 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B). The employee pension benefit plan and its predecessor, both of which were attached to the appellant's complaint, are in written form. Each of the Plans contain extensive and detailed terms and conditions governing the rights and duties of all participants in the fund. The employee pension benefit plans identify the participating union locals, union and employer trustees and the plan administrator. Although established through the collective bargaining process, the various collective bargaining agreements are not attached to the employee pension benefit plans. Further, the appellant in his action has not challenged the terms and conditions or the implementation of the various collective bargaining agreements.
32
The procedure outlined in the employee pension benefit plan, as amended February 1, 1976, calls for the submission of a benefit claim and/or application to the Plan Administrator for decision and action. Within sixty (60) days after the decision of the Administrator, an aggrieved person may appeal the Administrator's decision or action to the Plan's Trustees. The aggrieved person or his representative may appear before the Trustees to present their case. The Trustees shall make a full and complete review and shall issue their decision in writing within sixty (60) days after receipt of the written appeal request unless special circumstances require an extension of time, in which case the decision shall be rendered not later than one hundred twenty (120) days after receipt of the request. The decision of the Board of Trustees is final under the terms of the Plan.
33
The employee pension benefit plan does not contain an arbitration procedure. Further, the procedure outlined under the Plan for the submission of a benefit application is substantially different from an arbitration proceeding. In the traditional labor-management arbitration proceeding, the events which precipitate the arbitration process are often recent and do not span a great deal of time. The employee is frequently assisted in the presentation of his case before the arbitration panel by a union representative who is knowledgeable with the provisions of the collective bargaining agreement and, often, the events which have preceded the arbitration. Additionally, by the time the arbitration step has been reached, both sides, union and management, have had an opportunity to prepare and refine their arguments and complete preliminary research on any applicable facts and/or portions of the collective bargaining agreement which may be in issue.
34
In contrast to the above procedure for arbitration, a pension applicant will not usually be assisted by a representative of either his union or former employer when he requests pension benefits. He will, in all likelihood, be unfamiliar with the employee pension benefit plan, including its coverage and benefit rules. The pension applicant will not have access to his employment records, which may span decades, and involve different employers and union locals, along with interpretation and application of reciprocal employee pension benefit plan agreements.
35
The procedure outlined in the employee pension benefit plan for the submission of a benefit claim and the appeal of the denial of that claim are not analogous to a labor-management arbitration proceeding.
36
The complaint asserts claims under Section 503(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B), seeking pension benefits and a clarification of appellant's rights under the terms of the written employee pension benefit plan and does not challenge the terms of the collective bargaining agreements. The claims are creatures of contract law and not of labor law. Appellant's claimed eligibility for pension benefits is a matter of contract law. See: Paris v. Profit Sharing Plan For Employees Of Howard B. Wolf, Inc., 637 F.2d 357, 362 (5th Cir.), cert. denied, 454 U.S. 836, 102 S.Ct. 140, 70 L.Ed.2d 117 (1981).
37
Having characterized this action as a contract action, the court concludes that the ninety (90) day period for vacating an arbitration award7 and the six (6) month provision8 found in the National Labor Relations Act are inapplicable. The district court erred when it applied the ninety (90) day and/or six (6) month statutes of limitation to this action.
38
The employee pension benefit plan under which the appellant is seeking to recover is a written document. The individual employment contracts of the defendant's former employers and the actual employment periods themselves will need to be introduced for the appellant to properly explain his work history and qualify as a covered employee beneficiary under the terms of the Plan. Nevertheless, the action is based on the written contract pension plan. As such, the most analogous Illinois statute is Ill.Rev.Stat. ch. 110, § 13-206.
39
The court holds that the complaint is based on Section 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B), and appellant is seeking pension benefits and a clarification of his rights under the terms of the employee pension benefit plan based on the written terms of the Plan and the most analogous Illinois statute of limitations is the one for written contracts. Allen v. McWilliams Electric Co., Inc., 494 F.Supp. 53, 55 (N.D.Ill., E.D.1980); Brehm v. Sargent & Lundy, 66 Ill.App.3d 472, 23 Ill.Dec. 419, 384 N.E.2d 55, 56 (Ill.App.1978). Accord: Livolsi v. City of New Castle, Pa., 501 F.Supp. 1146, 1151 (W.D.Pa.1980); Morgan v. Laborers Pension Trust Fund For Northern California, 433 F.Supp. 518, 526 (N.D.Cal.1977).
40
The appellant received written notification that the Board of Trustees had denied his pension application on or about November 8, 1978. A cause of action under Section 502 of ERISA, 29 U.S.C. § 1132, arose when the trustees of the pension plan denied applicant's benefit application. Reiherzer v. Shannon, 581 F.2d 1266, 1272 (7th Cir.1978). Accord: Paris v. Profit Sharing Plan For Employees Of Howard B. Wolf, Inc., 637 F.2d 357, 361 (5th Cir.), cert. denied, 454 U.S. 836, 102 S.Ct. 140, 70 L.Ed.2d 117 (1981); Morgan v. Laborers Pension Trust Fund For Northern California, 433 F.Supp. 518 (N.D.Cal.1977).
41
Accordingly, appellant's claims for denial of pension benefits accrued on or about November 8, 1978. Appellant filed his civil complaint on June 4, 1982, within the ten year Illinois statute of limitations for actions on a written contract. The appellant's complaint was timely filed.
42
Further, the court holds that the appellant has exhausted the internal pension plan remedies on his requests for an early retirement pension or a deferred vested pension. On March 22, 1982, the appellant requested the Board of Trustees to reconsider its November 8, 1978 denial of his pension application, along with his requests for an early retirement pension and/or a deferred vested pension. The appellant's request for reconsideration and review was denied on May 12, 1982. The appellant has exhausted the internal remedies of the pension plan. Any other attempt by the appellant to proceed with these internal remedies would have been futile.
43
Accordingly, the judgment of the district court is vacated and the case is Remanded for further proceedings consistent with this decision.
*
The Honorable Cale J. Holder, District Judge of the United States District Court for the Southern District of Indiana, is sitting by designation
1
Appellant, James F. Jenkins, died on December 30, 1982. Counsel for the appellant has not moved to substitute the legal representative of Mr. Jenkins' estate. Further, it would appear and no one has raised the issue to the contrary, that the death of Mr. Jenkins has not rendered this action moot
2
The record indicates that Illinois is the forum State and the State in which the operative events occurred. Further, neither party has suggested that the limitations provisions of another State, other than Illinois, would be applicable or relevant to the facts of this case
3
Ill.Rev.Stat. ch. 10, § 112
§ 112. Vacating an award.
....
(b) An application under this Section shall be made within 90 days after delivery of a copy of the award to the applicant, except that if predicated upon corruption, fraud or other undue means, it shall be made within 90 days after such grounds are known or should have been known.
4
Title 29, U.S.C., § 160(b)
§ 160. ....
....
(b) ...: Provided, that no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces, in which event the six-month period shall be computed from the day of his discharge.....
5
Ill.Rev.Stat. ch. 110, § 13-205
Five Year Limitation.--
Except as provided in Section 2-725 of the "Uniform Commercial Code", approved July 31, 1961, as amended, and Section 11-13 of "The Illinois Public Aid Code", approved April 11, 1967, as amended, actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.
6
Ill.Rev.Stat. ch. 110, § 13-206
Ten Year Limitation--
Except as provided in Section 2-725 of the "Uniform Commercial Code", actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within 10 years next after the cause of action accrued; ....
7
The case of United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981) on which appellee relies, involved a complaint for alleged wrongful discharge from employment brought under Section 301 of LMRA. In Mitchell, supra, a discharged employee brought suit against his union and former employer, alleging that the union had breached its duty of fair representation and the employer discharged him not for its stated reasons but to replace full-time employees with part-time employees. The facts of Mitchell, supra, showed that the union had filed a grievance on behalf of the employee and that such proceeded through the arbitration procedure. The United States Supreme Court characterized the action as more a creature of "labor law" than of general contract law and picked the ninety (90) day State of New York statute to vacate an arbitration award as the most appropriate state statute
Davidson v. Roadway Express, Inc., 650 F.2d 902 (7th Cir.), cert. denied, 455 U.S. 947, 102 S.Ct. 1447, 71 L.Ed.2d 661 (1981) followed the Mitchell, supra, case. Davidson, supra, involved an employee suing his employer under Section 301 of LMRA for wrongful discharge and violation of the collective bargaining agreement. This court held that the most analogous state statute was the ninety (90) day statute to vacate an arbitration award.
Bigbie v. Local 142, International Brotherhood of Teamsters, 530 F.Supp. 402 (N.D.Ill., E.D.1981) an action in which union members sued their union for breach of duty of fair representation and denial of union membership rights under Section 301 of the LMRA. The court applied the ninety (90) day state statute of limitations to vacate an arbitration award as the most analogous.
The Mitchell, supra, Davidson, supra, and Bigbie, supra, cases may all be characterized as creatures of labor law rather than contract law. All three involved issues traditionally characterized as falling within the sphere of labor law, such as breach of duty of fair representation and violations of the terms of the collective bargaining agreement. As such, they are distinguishable from the case at bar.
8
The application of the six (6) month period found in Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(b), has been urged by Justice Stewart in Section 301 actions. United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 1565-1571, 67 L.Ed.2d 732 (1981). Justice Stewart's position became the law on June 8, 1983. Del Costello v. International Brotherhood of Teamsters, et al., --- U.S. ----, 103 S.Ct. 2281, 76 L.Ed.2d 476. Congress left for judicial determination the timeliness of the filing of ERISA actions including considering federal and State limitations of actions that closely resemble ERISA actions. See Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946); and Auto Workers v. Hoosier Corp., 383 U.S. 696, 703-704, 86 S.Ct. 1107, 1111-1113, 16 L.Ed.2d 192 (1966); Del Costello v. International Brotherhood of Teamsters, id | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/547495/ | 913 F.2d 211
UNITED STATES of America, Plaintiff-Appellee,v.Cynthia Diane ROBERTS, Johnny Binder, Jr., and Martha MariePreston, Defendants-Appellants.
No. 88-6185.
United States Court of Appeals,Fifth Circuit.
Sept. 19, 1990.
David Cunningham, Houston, Tex., (Court-appointed), for Roberts.
Kent A. Schaffer, Houston, Tex., for Binder.
Will Gray, David R. Bires, Houston, Tex., for Preston.
Mel R. Pechacek, Paula C. Offenhauser, Asst. U.S. Attys., Gulf Coast Drug Task Force, Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before GEE, RUBIN, and DAVIS, Circuit Judges.
GEE, Circuit Judge:
1
Today we decide--among other points of error--whether the government's use of four peremptory strikes to exclude black veniremembers violated the defendants' constitutional rights under Batson v. Kentucky, 76 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and whether an ex parte communication between the district court's case manager and the jury violated the defendants' fifth and sixth amendment rights. We find no reversible error by the district court and therefore affirm their convictions.
2
Appellants Cynthia Diane Roberts, Johnny Binder, Jr., and Martha Marie Preston appeal their convictions for aiding and abetting the distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Defendant Binder also challenges his conviction for aiding and abetting the maintenance of a place for the purpose of manufacturing "crack" cocaine in violation of 21 U.S.C. Sec. 856--the "crackhouse law." The three defendants jointly allege that the district court erred in denying their Batson motion--a motion challenging the government's use of peremptory strikes to exclude black veniremembers--and allege that an ex parte communication between the district court's case manager and the jury violated their constitutional rights under the Fifth and Sixth Amendments. Preston and Binder challenge the sufficiency of the evidence supporting their aiding and abetting convictions. We find nothing in the record supporting any of the defendants' points of error and therefore affirm.
Facts and Procedural History
3
The government indicted Roberts, Preston, Binder and twenty-five others for conspiracy to possess cocaine with intent to distribute (in both crack form and as a powder base) in violation of 21 U.S.C. Sec. 846 and Sec. 841(a)(1). Preston and Binder, the two lead defendants in the case, were separately indicted for engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848; for maintaining a facility for the manufacture and distribution of "crack" cocaine in violation of 21 U.S.C. Sec. 856; for aiding and abetting the possession of cocaine with intent to distribute; and for aiding and abetting the distribution of cocaine. Preston was separately indicted for the use of a communication facility in violation of 21 U.S.C. Sec. 843(b) and for attempting to influence a government witness in violation of 18 U.S.C. Sec. 1512. Binder was separately indicted for conspiracy to defraud the United States Government in violation of 18 U.S.C. Sec. 371 and for witness tampering in violation of 18 U.S.C. Sec. 1512. The indictments resulted from an intensive four year undercover investigation into a Houston cocaine trafficking network, an investigation which led to a series of Houston Police Department and Drug Enforcement Agency ("DEA") controlled buys of cocaine and to raids on Houston nightclubs and other establishments suspected of operating as crackhouses.1
4
All three appellants pled not guilty and were tried before a jury. The jury found Roberts guilty on one count of aiding and abetting the distribution of cocaine on or about December 17, 1986 and acquitted her of the remaining charges. The district court sentenced her to four years in the custody of the Attorney General and three years special parole, with the condition that she be placed in the prison closest to Houston having a drug treatment facility.
5
The jury found Preston guilty of aiding and abetting the distribution of cocaine on or about February 2 and on February 25, 1987, and of witness tampering. The court sentenced her to twenty years in the custody of the Attorney General, three years special parole and imposed a $60,000 fine for each count of aiding and abetting, with the sentences to run consecutively. The court further sentenced her to twenty-one months incarceration, two years supervised release and assessed a $20,000 fine for the witness tampering count, to run concurrently with the aiding and abetting sentences.
6
The jury convicted Binder of aiding and abetting the distribution of cocaine on or about December 17, 1986 and of aiding and abetting the maintenance of a place for the purpose of manufacturing, distributing and using "crack" cocaine on May 23, 1987, at 8515 Hearth Street, acquitting him of the remaining counts. The district court sentenced him to twenty years in the custody of the Attorney General, three years special parole, and imposed a $100,000 fine on each count, with the sentences to run consecutively. From these convictions, the defendants appeal.
The Batson Challenge
7
The three defendants, each of whom is black, contend that the government violated their Fifth Amendment rights by using its peremptory challenges to exclude blacks from the jury in the manner condemned by Batson v. Kentucky. Each defendant made timely objections to the prosecution's peremptory strikes of four black veniremembers. The government eventually used four of its seven peremptory strikes to exclude blacks from the jury. The government used the remaining three challenges to exclude non-blacks. Two blacks were ultimately selected as members of the jury.
8
To prevail on a Batson claim, defendant must allege a prima facie case of discrimination. To meet this burden, the defendant must show that he is a member of a cognizable racial group and that the prosecutor exercised peremptory challenges to remove from the venire members of his race. Batson, 476 U.S. 79 at 95, 106 S.Ct. 1712 at 1722. The prosecution denied any systematic exclusion of blacks, noting the presence of two black women on the jury.2 The district court ruled, however, that the defendants had established a prima facie Batson case.
9
Once a defendant establishes a prima facie Batson case, the burden shifts to the prosecution to offer a race neutral explanation for striking the black veniremembers. Batson, 476 U.S. 79 at 96, 106 S.Ct. 1712 at 1722-23; United States v. Moreno, 878 F.2d 817, 820 (5th Cir.1989). Such an explanation need not rise to the level justifying exercise of a challenge for cause, but need only give a "clear and reasonably specific explanation of his legitimate reasons for exercising the challenges." United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir.1989), aff'd on remand, 889 F.2d 559 (5th Cir.1989). Here, the district court conducted a formal hearing on the defendants' Batson motion and found the government's explanations sufficient to uphold the peremptory strikes.
10
The issues presented in a Batson motion primarily turn on evaluations of credibility and therefore we review the district court's finding that the government committed no Batson error under a clearly erroneous standard. See United States v. Terrazas-Carrasco, 861 F.2d 93, 94 (5th Cir.1988). Giving proper deference to the district court's decision, we conclude that the defendants' Batson challenge is without merit. Unlike the jury in Batson, the jury here ultimately held two black jurors. Moreover, our review of the record discloses a sufficient basis for the government's peremptory challenges of the three black veniremembers and the one black alternate veniremember excluded from the jury.
11
The prosecution struck juror number eight, a black woman, because of her disinterested demeanor, her inattentiveness, and her reluctance to serve on a jury because she worked nights and was responsible for the care of her small grandchild during the day. Intuitive assumptions about a potential juror's interest and attitudes can be acceptable as a neutral explanation for a peremptory challenge. See United States v. Moreno, 878 F.2d 817, 821 (5th Cir.1989). Here, the district court found a neutral basis in the government's explanation and we do not disturb its ruling.
12
The prosecution excluded juror number eleven, a black woman, because of her involvement in the political campaigns of Anthony Hall and of the late Mickey Leland and her statement that she was inclined to believe representations made to her by persons whose political candidacy she supported. The defendants listed Mr. Hall as a potential defense witness. Juror eleven also had been exposed to pre-trial publicity concerning the case. The district court found that these explanations offered sufficient justification for her exclusion from the jury and so do we.
13
Juror number fourteen, a black man, stated during voir dire that he would not consider tape recordings as evidence in a criminal case, even though they were lawfully obtained, because such evidence violated a defendant's "rights." Senator Craig Washington, counsel for one of the defendants, questioned juror fourteen during a sidebar conference and the juror recanted, agreeing with every statement made by Senator Washington regarding tape recorded evidence. The government maintains that this shift in view was insincere because the juror was in awe of Senator Washington and answered the sidebar questions in a submissive deference to the senator. We agree with the district court that the government could reasonably question this juror's ability to view the evidence presented impartially and find no Batson violation.
14
The government struck a prospective alternate juror, number thirty-six, a black woman, because she knew defendant Cynthia Roberts and had heard her sing at a local club. The government maintains that it feared that this juror would identify with the defense because of her earlier knowledge of a defendant and of her familiarity with Robert's singing career. Part of Binder's anticipated defense to the continuing criminal enterprise count was that he was a legitimate recording contractor and that defendant Roberts was his legitimate client. Knowledge of and familiarity with a named defendant in the case is a neutral basis upon which the government may exercise a peremptory strike.
15
We note that the court accepted these explanations only after extensive cross-examination of the prosecutor and argument by defense counsel. The jury ultimately contained two blacks, and the government's three remaining peremptory challenges excluded people of races different than that of the defendants. The district court's conclusion that none of the government's challenges disqualified any potential juror because of his race is supported by the record and is therefore not clearly erroneous.
The Ex Parte Communication
16
The three defendants next allege error at their trial as a result of the district court case manager's communication to the jury during its deliberations. The communication at issue involved an inquiry from a juror to the case manager as to whether the jury would deliberate on a Saturday. The jury began its deliberations on a Monday and the court initially advised the jury that it could "go within reason as long as it wanted to." With regard to weekend deliberations, the court told defense counsel at the beginning of the week that the choice would remain with the jury. On Tuesday, however, the court notified defense counsel that the jury would deliberate on Saturday if the deliberations were to last that long.
17
Two days later, on Thursday afternoon, the court's case manager went into the jury room to inquire about scheduling matters. On Friday morning defense counsel objected to the case manager's ex parte communication, contending that the effect of her inquiry could "possibly have some sort of subtle coercion toward a verdict." The court conducted a hearing at the request of the defendants, inquiring as to what had transpired between the case manager and the jury. The case manager's testimony reveals that several of the jurors asked whether they would deliberate on a Saturday and that the case manager advised them that the court had not yet decided. The case manager said nothing further to the jury other than "have a nice evening." The court directed that all further scheduling inquiries by the jury be made in open court. On Friday evening, the jury informed the court that they were breaking for the evening and again had a question as to the schedule. In open court, the court informed the jury that they should return on Saturday morning and continue their deliberations.
18
The deliberations continued for an additional five days before the jury returned its final verdict. The court instructed the attorneys in the case not to "approach any juror or to discuss anything with any juror without getting prior leave of court." Defense counsel made no objection. Later, defense counsel filed a written motion to communicate with jury to discover any misconduct that could warrant a new trial. The district court denied the motion.
19
The defendants now contend that the district court allowed an improper ex parte communication between the case manager and the jury and that the court failed to conduct a proper hearing to ensure that the jury was not prejudiced as a result of this communication. The defense made no objection at trial to the clerk's communication with the jury as violating the defendants' Sixth Amendment rights to be present at a critical stage of the proceedings, nor did they object at trial on the basis of Federal Rule of Criminal Procedure 43(a).3 Consequently, our review of these claims is limited to a determination whether the record shows plain error. United States v. Martinez, 604 F.2d 361, 365 (5th Cir.1979).
20
The procedures used to investigate allegations of juror misconduct and the decision as to whether to hold an evidentiary hearing are matters which rest solely within the sound discretion of the district court. United States v. Phillips, 664 F.2d 971, 998-99 (5th Cir.1981). The defendants here liken the case manager's ex parte communication to the one in United States v. Gypsum, 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). In Gypsum, the district court received reports of tension among the jurors and in response issued a modified Allen charge4 and shortened the hours of deliberation. The district judge then met with the foreman of the jury, without the presence of counsel, "to discuss the condition of the Jury and further guidance." The discussion contained several references to the jury's deadlock and the foreman was left with the impression that the judge wanted a verdict "one way or the other." The Supreme Court held that this ex parte communication established reversible error because the "discussion was inadvertently allowed to drift into what amounted to a supplemental instruction to the foreman relating the jury's obligation to return a verdict ... [and] counsel were denied any chance to correct whatever mistaken impression the foreman might have taken from [the] conversation." Gypsum, 438 U.S. 422 at 462, 98 S.Ct. 2864 at 2886.
21
The case before us today illustrates the "pitfalls inherent" in any form of ex parte communication that "even an experienced trial judge cannot be certain to avoid." Gypsum, 438 U.S. 422 at 460, 98 S.Ct. 2864 at 2885. We heed the caveat of the Supreme Court, however, that an ex parte communication alone does not constitute reversible error. Gypsum, 438 U.S. 422 at 462, 98 S.Ct. 2864 at 2886. Here we conclude that reversible error did not occur. A private exchange with the case manager here was less likely to act as an instructive or coercive force on the jury than was the private conversation with the trial judge which occurred in Gypsum. Here, the case manager's conversation with the jury did not drift "into what amounted to a supplemental instruction to the foreman"; rather, the jury remained afloat with no answers from the court even as to the collateral question of whether they would have Saturday off. Moreover, the defense counsel here were not denied the chance to correct any mistaken impression. The jury continued its deliberations for an additional six days after the case manager's communication--evidence itself indicating that the communication was not coercive in nature--and thus the defense had ample time to request that the jury be further instructed to correct any mistaken impression left by their fleeting encounter with the case manager.
Sufficiency of the Evidence--Preston
22
Preston separately contends that the evidence at trial was insufficient to sustain her convictions for aiding and abetting the distribution of cocaine on February 2, 1987 and February 25, 1987. The standard of review for claims of sufficiency of the evidence is whether, after viewing the evidence presented and all inferences that may reasonably be drawn from it in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir.1989). We review the record resolving all inferences and credibility determinations in a light most favorable to the jury's verdict. Lechuga, 888 F.2d at 1476.
23
The government must prove that a defendant (1) knowingly (2) distributed (3) cocaine to sustain a conviction for illegal distribution. Id. at 1478. To prove the aiding and abetting of cocaine distribution, the government must show that (1) the defendant associated in the criminal venture, (2) participated in the venture, and (3) sought by action to make the venture succeed. United States v. Casto, 889 F.2d 562, 565 (5th Cir.1989). We conclude that the evidence is sufficient to convict Preston of aiding and abetting the distribution of cocaine on both counts.
24
The facts giving rise to the two charges are as follows: Undercover DEA Agent Charlie Boyce met with co-defendant Roy Brock (a suspected cocaine dealer) and confidential informant John Hicks at the Myosha Club, a Houston nightclub owned by Preston on January 27, 1987, to arrange for an introduction to Preston in the hopes of purchasing eight ounces of cocaine from her. Later in the evening, Agent Boyce observed Preston record Brock's telephone number on a slip of paper and hand the slip to Mr. Hicks along with a one hundred dollar bill.
25
The next meeting occurred on February 2. Brock informed Agent Boyce that the "ounces were coming" and that it was "good stuff." Agent Boyce suggested that in the future they eliminate Mr. Hicks as the middleman and Brock agreed. For this transaction, however, Mr. Hicks acted as middleman and delivered the requested cocaine to Agent Boyce and gave $8,800 to Brock.
26
Agent Boyce contacted Preston directly on February 23, 1987, via recorded telephone conversation. In that conversation, Agent Boyce advised Preston that the February 2, 1987 delivery was two ounces short. Preston agreed to meet with Agent Boyce and Brock, but did not show. Agent Boyce made another telephone call to Preston--also recorded--on February 25, 1987. In this taped conversation, Preston admitted to supplying the six ounces of cocaine on February 2 and agreed to supply an additional two ounces. Later that day, Agent Boyce met with Preston and she explained to Agent Boyce that "her organization was capable of supplying multi-kilo quantities of cocaine" on a regular basis and that Brock would meet with him at Intercontinental Airport to deliver the additional two ounces. Brock delivered the cocaine to Agent Boyce at the airport and the agent paid him $2200. Agent Boyce continued his contact with Preston and Brock after February 25, arranging additional orders of cocaine and requesting lessons in converting the cocaine he purchased into "rock" form.
27
Preston contends that these facts are insufficient to sustain her aiding and abetting convictions, particularly the February 2 conviction, because Agent Boyce never dealt directly with her. We disagree. In her telephone conversation with Agent Brock on February 25th, Preston undeniably admits her participation in the February 2 distribution, saying that informant Hicks only ordered six ounces from her. In the same conversation, she unequivocally arranges for the distribution of two additional ounces of cocaine. Our review of the record leaves us in no doubt that Preston intentionally assisted the distribution of cocaine on both occasions and was guilty as charged.
Sufficiency of the Evidence--Binder
28
Binder challenges the sufficiency of the evidence to convict him of aiding and abetting the distribution of cocaine on December 17, 1986. Binder's conviction results from the undercover work of DEA Agent Anna Saulnier and confidential informant David Johnson. On December 12, 1986, the DEA wired informant Johnson with a KELL recorder to establish surveillance of activities at the Myosha nightclub. He met with Preston and agreed to return the following Monday. Mr. Johnson met with Preston on two subsequent occasions, with Preston again instructing him to return at a later date. At 2:30 p.m. on December 17, Mr. Johnson introduced Agent Saulnier to Preston. Preston told Mr. Johnson that he should return later that evening and that she would arrange for Binder to make a cocaine sale. She herself would not make the sale because of three recent police raids.
29
At 8:30 that evening, Agent Saulnier and Mr. Johnson returned to the Myosha club and awaited Binder's arrival. Binder arrived at 10:30 p.m. and sent a male companion of his over to Agent Saulnier. The man--later identified as Steve Culotta--told the agent that it had been suggested that they go outside the club and that he keep her company. Mr. Johnson and Binder then retired to a private room of the club and at Mr. Johnson's request, Agent Salnier gave him the $2400 required to purchase two ounces of cocaine. Agent Saulnier began to worry when Mr. Johnson did not rejoin them outside and returned to the club. Agent Saulnier observed Binder, Roberts, co-defendant Brenda Saxon, and several others in conversation with Mr. Johnson. At her suggestion that they leave, Mr. Johnson informed her that they were going to get the cocaine. Binder then ordered Roberts and Saxon to "take them to Denny's."
30
Agent Saulnier followed Roberts, Saxon and Johnson, who rode in a Chevy Blazer owned by Binder, to a Denny's restaurant to await delivery of the cocaine. At the request of a male child about twelve years old, Agent Saulnier went outside Denny's to move her car. Upon her return, Roberts told her that the cocaine had arrived and the group went outside. At the same time, surveillance officers observed a dark colored limousine, similar to one used by Binder earlier in the evening, pull up next to the Blazer in the Denny's parking lot.5 The limousine departed and, less than three minutes later, the surveillance officers saw Saxon reach down and pull a package of cocaine from underneath the tire or tire well of the Blazer and hand it to Roberts. Roberts, in turn, gave the cocaine to Agent Saulnier and Mr. Johnson.
31
Binder contends that none of this evidence proves he aided and abetted the delivery of the cocaine. We conclude that a reasonable jury could find from this evidence that Binder did aid in the December 17th distribution at Denny's. Binder asserts that his mere presence at the Myosha club meeting is insufficient to demonstrate that he aided Saxon and Roberts in the distribution of the cocaine. We agree that his mere presence is insufficient to convict him, but are mindful that neither we nor the jury are required to examine each circumstance surrounding the conviction in isolation. "Circumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof." Lechuga, 888 F.2d 1472 at 1476. Here Binder ordered his associates to take Agent Saulnier to the place where the final delivery of cocaine occurred, Roberts removed the cocaine from a tire well of a truck Binder owned, and police observed a black limousine by the truck just before the delivery--one similar to the one Binder arrived in at the Myosha club earlier that evening. A rational jury could infer beyond a reasonable doubt from these circumstances in addition to Binder's presence that the cocaine negotiations were arranged, controlled, and supervised by Binder; and we find no error in his conviction.
The "Crackhouse Law" Conviction--Binder
32
The jury also convicted Binder of aiding and abetting the offense described in 21 U.S.C. Sec. 856(a)(1)--the crackhouse statute. To sustain a conviction for this offense, the government must prove that the defendant (1) intentionally and knowingly (2) opened or maintained a place (3) for the purpose of using, manufacturing or distributing a controlled substance. United States v. Onick, 889 F.2d 1425, 1431 (5th Cir.1989). Binder contends that the government's evidence is insufficient to convict him under Sec. 856(a)(1) and further asserts that the district court incorrectly charged the jury on the "purpose" element required by Sec. 856(a)(1).
33
Binder's conviction arose from a Houston Police and DEA raid on May 23, 1987 on a condominium located at 8515 Hearth street. Roberts and Binder leased the condominium pursuant to a verbal agreement, and Binder paid most of the rents for it. The DEA discovered the possibility that the Hearth street condominium was a location for manufacturing crack through its communication with Cassandra Parker. Ms. Parker was pursuing a music career, and Binder was introduced to her as someone who could manage her career. Ms. Parker signed a management contract with Binder, and agreed to sing with defendant Roberts. Ms. Parker was originally unaware of Binder's cocaine trafficking activities. Three months later, however, Ms. Parker approached the DEA and informed them that Binder was not a legitimate music manager but rather a drug dealer. Ms. Parker continued to work for Binder and observed a number of suspicious activities over the next several weeks. Binder asked Ms. Parker if she would move into the Hearth condominium so that he could use her apartment to "get his business straight." Roberts told Ms. Parker that Binder probably wanted to use the apartment "to cook and probably store stuff in." After conferring with the Houston Police, Parker refused Binder's request and subsequently became a paid DEA informant.
34
In early May of 1987, Ms. Parker visited the Hearth location where three individuals showed her a suitcase containing drug paraphernalia and the general supplies needed for converting cocaine to crack form. Ms. Parker observed Roberts converting the cocaine, during which time Binder arrived and told her that he did not want her there. Before she left, Ms. Parker watched Binder in the bedroom with a large mirror on the floor, cutting the "crack" with a razor blade.6
35
Confidential informant Keith Davis told the DEA that Binder had cooked cocaine and planned to distribute it on May 23rd. On that day, DEA surveillance watched Binder meet several suspected drug dealers and later that evening continued their watch at the Hearth street condominium. DEA agents saw Binder's Mercedes Benz parked under the carport. The agents quietly arrested lookout Danny Jackson and approached the condominium with the assistance of the building's security guard. As the agents knocked on the door, they heard Binder ordering Roberts to get dressed and the noise of toilets flushing several times. Upon entry, Officer Steven Kwiatkowski recovered numerous small baggies of cocaine found flushing in the toilet. After obtaining a valid search warrant, the agents found two white envelopes containing thirty-two packs of crack cocaine, equipment required for the manufacture and packaging of crack cocaine7, forty-one white envelopes containing particles of crack cocaine, and crack cocaine stored in a laundry bag in the bathroom.8
36
DEA agents posted outside the condominium meanwhile saw Binder climb down the balcony of the Hearth condominium, lower himself to the ground and run down the alley. Agents pursued him but lost sight of him. Police recovered Binder's cap from the ground underneath the balcony and his jogging suit jacket from the condominium.
37
Binder contends that this evidence is insufficient to convict him under Sec. 856(a)(1). He asserts that the primary "purpose" of the Hearth street condominium was as Robert's residence and that Congress intended Sec. 856 to apply only to facilities for which drug trafficking is the sole purpose and not one of several purposes. He contends that any other interpretation would mean that casual drug users risk felony conviction for drug use in their own homes.
38
Had Congress intended convictions under Sec. 856 to be limited to those who open or maintain facilities having cocaine manufacturing as their sole purpose, it would have said so. Such a narrow construction as Binder suggests would eviscerate the statute, since it is highly unlikely that anyone would openly maintain a place for the purpose of manufacturing and distributing cocaine without some sort of "legitimate" cover--as a residence, a nightclub, a retail business, or a storage barn. Here, Binder was scarcely a "casual" user of cocaine. The quantity of cocaine and manufacturing equipment recovered from the condominium, together with Ms. Parker's testimony, demonstrate that a primary purpose for renting the Hearth location was to manufacture and distribute cocaine.
39
The defense requested a jury instruction regarding the "purpose" element of Sec. 856--an instruction which tracked the language of the statute but inserted the word "primary" before "purpose."9 We find no error in the district court's denying such an instruction because its language was superfluous and would serve only to confuse the jury. Section 856 states that it is an offense to maintain a place for "the purpose" of manufacturing or distributing cocaine. The meaning of that phrase lies within the common understanding of jurors and needs no further elaboration. See United States v. Beasley, 519 F.2d 233 (5th Cir.1975), vacated on other grounds, 425 U.S. 956, 96 S.Ct. 1736, 48 L.Ed.2d 201 (1976).
40
Binder further challenges the sufficiency of the evidence on the ground that he did not "open or maintain" the place as Sec. 856 requires. He cites United States v. Onick, 889 F.2d 1425, 1429 (5th Cir.1989) to support his contention. That case is factually distinguishable from the case before us today. In Onick, we reversed a conviction for possession of illegal drugs with intent to distribute under 21 U.S.C. Sec. 841(a)(1) because the only evidence linking one defendant to the crime was her presence when the police searched the house. We concluded that the evidence was insufficient to convict that defendant of constructive possession of the drugs. In the same case, however, we concluded that another defendant was guilty of possession of the drugs when the evidence indicated that he exercised dominion and control over the house.10 Onick, 889 F.2d 1425 at 1430.
41
Here we conclude that Binder did exercise sufficient dominion and control. He paid most of the rent on the condominium. He attempted to arrange a swap with Ms. Parker to trade the Hearth condominium for her apartment for a period of time. Police found him in residence the day of the search and heard him issuing orders to the condominium's occupants. His jacket was found inside the condominium and his cap on the ground just outside. Ms. Parker had observed Binder cutting cocaine in the condominium on one occassion prior to the police raid. We find the evidence sufficient to prove that he aided and abetted the maintenance of the Hearth condominium.
42
The government, in its litany of responses to Binder's motion to suppress the evidence gathered by the police at the Hearth location, added a single statement that Binder lacked standing to contest the search. The district court summarily denied all of the defendants' motions to suppress--save one unrelated to the Hearth location--and Binder now asserts that the government's standing argument recognizes Binder's lack of control over the Hearth location. We are unpersuaded. District courts should offer reasons for their decisions, but when a search warrant is not seriously contested by the defense and several grounds exist for denying a motion to suppress a transparently valid search warrant--as is the case here--the defendant may not seize on a non-essential response to create an inconsistency in the government's case. Moreover, the jury convicted Binder of aiding and abetting the substantive offense described in Sec. 856. It is not apparent to us that a prosecutor creates a conflict by alleging that a defendant lacks standing to contest the search of a location even while charging that he furthers the activities conducted at that location.
Conclusion
43
We conclude that the defendants have failed to demonstrate that reversible error occurred at their trial. Therefore, for the reasons set forth in our opinion today, their convictions are
44
AFFIRMED.
1
A "crackhouse" is a place where crack cocaine is manufactured, distributed, or sold
2
The prosecution also noted that one of the prosecutors in the case, John Kyles, is black
3
Fed.R.Cr.Proc. 43(a) provides: "The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule." For the reasons given in response to the defendants' Sixth Amendment argument, we conclude that any violation of Rule 43(a) was harmless error. See Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 2095, 45 L.Ed.2d 1, 6 (1975) ("a violation of Rule 43 may in some circumstances be harmless error"); Fed.R.Cr.Proc. 52(a) (any error which does not affect substantial rights shall be disregarded)
4
An Allen charge instructs the jury "to deliberate with a view toward reaching agreement if you can, without violence, to individual judgment." Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)
5
The surveillance officers could not identify the occupants of the limousine because the limousine's windows were tinted
6
Ms. Parker attempted to reach DEA agents immediately but was unsuccessful. She did scrape crack particles off of the mirror and delivered them to the Houston Police on May 13th
7
The equipment included: two glass test tubes with cocaine residue in them, two triple beam scales, three boxes of baking soda, three bottles of rubbing alcohol, one bag of king size cotton balls, razor blades, cotton tipped wires, and clear plastic bags. Police found all of this equipment in one large suitcase in the storage shed on the terrace of the apartment
8
Police also recovered written notations documenting sales of crack from the condominium, as well as from Binder's Mercedes
9
The requested instruction read: "You are instructed to look to the nature and character of the location in question to determine its primary purpose. In order for you to return a verdict of guilty as to this count, you must find that the main or primary purpose for the purpose [sic] for the opening or maintaining of the location was for the use, manufacturing, or distribution of a controlled substance. On the other hand, should you find that the location was not used for the manufacturing, use or distribution of a controlled substance, you must find the defendant not guilty. If you find that the primary purpose for the opening or maintain [sic] the location was other than the use, manufacture and distribution of a controlled substance, then you must acquit the defendant's [sic] and say by your verdict of not guilty."
10
The evidence included papers belonging to the defendant, the defendant's clothes and receipts written to the defendant at that address | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1539902/ | 369 B.R. 549 (2007)
In re Thomas LLOYD, Debtor.
Jeffrey E. Hoffman, Plaintiff,
v.
Thomas R. Lloyd, an individual, Edward L. Blum, an individual, and Does 1 through 20, inclusive, Defendants.
Thomas Lloyd, Cross-Plaintiff,
v.
Jeffrey E. Hoffman, dba H & B Properties; H & B Properties, LLC,; J. Edwards Investment Group, Inc., and Norcal Financial, Inc., Cross-Defendants.
Bankruptcy No. 04-32921 TEC, Adversary No. 05-3328 TC.
United States Bankruptcy Court, N.D. California.
April 30, 2007.
*550 *551 Catherine Schlomann Robertson, Ginger L. Sotelo, Stephen D. Pahl, Law Offices of Pahl and Gosselin, Stephen D. Pahl, Pahl & Gosselin, San Jose, CA, Dennis D. Davis, Goldberg, Stinnett, Meyers and Davis, San Francisco, CA, for Jeffrey E. Hoffman.
Jeffrey J. Goodrich, Law Offices of Goodrich and Assoc., Greenbrae, CA, for Thomas Lloyd.
Jerry R. Hauser, Phillips, Greenberg and Hauser, San Francisco, CA, for Edward L. Blum.
Catherine Schlomann Robertson, Law Offices of Pahl and Gosselin, Stephen D. Pahl, Pahl & Gosselin, San Jose, CA, Dennis D. Davis, Goldberg, Stinnett, Meyers and Davis, San Francisco, CA, for H & B Properties, LLC, J. Edwards Investment Group, Inc.
Dennis D. Davis, Goldberg, Stinnett, Meyers and Davis, San Francisco, CA, Thomas M. Gosselin, Law Offices of Pahl and Gosselin, San Jose, CA, for Norcal Financial, Inc.
OPINION
THOMAS E. CARLSON, Bankruptcy Judge.
The principal question presented is whether a homeowner who sells his home while facing foreclosure may cancel that sale long after the fact, because the sale *552 contract omitted one of two notices of the right to cancel required under section 1695.5 of the California Home Equity Sales Contracts Act. Because the sale contract failed to provide notice of the right to cancel "in immediate proximity to the space reserved for the equity seller's signature," the contract did not substantially comply with the requirements of section 1695.5 and, as a consequence, the time to cancel the sale never expired.
FACTS
Thomas Lloyd owned and resided in a single-family house in San Francisco (the Residence). In May 2003, he was in default on his mortgage payments and looking for help, when he met Jeffrey Hoffman. Lloyd sold the Residence to Hoffman in a transaction that Lloyd hoped would enable him ultimately to keep the Residence.
1. The Sale of the Residence
On May 28, 2003, Lloyd and Hoffman signed three related contracts regarding the Residence: the Purchase-Sale Agreement; the Lease; and the Option. The Purchase-Sale Agreement provided for Hoffman to purchase the Residence from Lloyd for $900,000. The Lease provided for Lloyd to rent back the Residence from Hoffman on a month-to-month basis. The Option permitted Lloyd to repurchase the Residence from Hoffman on or before June 30, 2005.[1]
Of great importance to the present action, the Purchase-Sale Agreement did not contain a notice of the right to cancel next to the line for Lloyd's signature. Through the Home Equity Sales Contracts Act[2] (HESCA), the California Legislature closely regulates sales of residences that occur after foreclosure proceedings have begun, to protect "homeowners in financial distress" against "the importunities of equity purchasers who induce homeowners to sell their homes for a small fraction of their fair market values. . . ." § 1695(a). Under HESCA, the Purchase-Sale Agreement should have contained notice of the right to cancel next to the line for Lloyd's signature, and Lloyd had a right to cancel the sale up to five calendar days after he was accorded proper notice of that right.
The sale of the Residence to Hoffman closed on August 25, 2003. On that date, Lloyd executed a grant deed, and Hoffman paid the purchase price by taking out a new loan against the Residence in the amount of $640,000. The proceeds of that loan were used to retire Lloyd's existing loans ($591,738) and to, pay Lloyd approximately $20,000. Lloyd remained on the premises under the Lease. Hoffman transferred his interest in the Residence to H & B Properties, an LLC in which he was the sole member.
2. Settlement of the Unlawful Detainer Action
Lloyd soon fell behind in the rent payments due under the Lease. H & B Properties filed an unlawful detainer action on June 2, 2004. This action was settled before trial via an agreement executed on August 3, 2004 (the Settlement Agreement). The Settlement Agreement allowed Lloyd 90 days either: (a) to find a buyer for the Residence; or (b) to repurchase the Residence himself. If Lloyd failed to perform either alternative, the Option and Lease would be terminated, *553 and judgment would be entered against Lloyd for unpaid rent and attorneys fees.
Shortly after the parties executed the Settlement Agreement, H & B Properties further encumbered the Residence by obtaining a $110,000 loan from Norcal Financial, secured by a second deed of trust. Norcal Financial is another entity controlled by Hoffman.
Of importance to this case, the Settlement Agreement contained broad mutual releases. Those releases apply to claims unknown at the time of the release, because the parties expressly waived the protections of California Civil Code section 1452. The Settlement Agreement did not expressly address any rights under HESCA.
Lloyd was unable to perform under the Settlement Agreement and filed a chapter 11 petition in this court on October 15, 2004.
3. The Notice of Rescission
On October 18, 2004, Lloyd recorded a document entitled Notice of Rescission of Grant Deed Recorded Pursuant to Home Equity Sales Contract (the Notice of Rescission). In that Notice, Lloyd asserted the right under HESCA to rescind both the grant deed to Hoffman and the Purchase-Sale Agreement.
Hoffman initially sought to litigate the validity of the Notice of Rescission in the California state courts. He filed a motion seeking relief from the automatic stay to permit him to file a state-court action against Lloyd. Noting that the validity of the Notice of Rescission turned upon California law, this court granted the requested relief from stay. Hoffman filed an action against Lloyd in the San Francisco County Superior Court seeking cancellation of the Notice of Rescission and damages resulting from the slander of title that the Notice created. Lloyd answered and asserted a cross complaint against Hoffman seeking an accounting, quiet title to the Residence, and other relief. On September 14, 2005, Lloyd removed the Superior Court action to this court. At this juncture, Hoffman did not file a motion to remand, but instead sought to have this court summarily grant relief in his favor.
4. The Settlement Agreement Does Not Bar Rescission
Hoffman filed a motion to have this court cancel the Notice of Rescission on the ground that it was barred by the general release in the Settlement Agreement. In opposing that motion, Lloyd argued that the release in the Settlement Agreement should not bar cancellation of the sale, because HESCA expressly provides "[a]ny waiver of the provisions of this chapter shall be void and unenforceable as contrary to public policy." § 1695.10.
The court determined that it must hold an evidentiary hearing. In light of section 1695.10, the general release would be enforceable, if at all, only if it represented a knowing and intelligent waiver of Lloyd's rights under HESCA. Lloyd had submitted a declaration stating that he was unaware of his right to cancel under HESCA at the time he signed the Settlement Agreement. There thus existed a genuine issue of material fact regarding the enforceability of the release.
Before the evidentiary hearing commenced, Hoffman disclosed a copy of a one-page document entitled "Notice Required by California Law" (the Signed Separate-Page Notice). This Notice explained the right to cancel under HESCA, stated the seller could cancel the sale on or before June 4, 2003, and purported to bear Lloyd's undated signature at the bottom. Lloyd's counsel asserted at a pretrial hearing *554 that the signature was a forgery and stated that he would object to introduction of the document at trial.
Following the evidentiary hearing, the court determined that the general release in the Settlement Agreement did not bar Lloyd from cancelling the sale of the Residence under HESCA. After hearing testimony from the parties and counsel involved in the negotiation of the Settlement Agreement (during which Hoffman did not attempt to introduce the Signed Separate-Page Notice), this court made the finding of fact that Lloyd was unaware of his rights under HESCA at the time he signed the Settlement Agreement. The court made the conclusion of law that the general release was not applicable to Lloyd's rights under HESCA if he was unaware of those rights at the time he executed that release.[3]
5. Summary Judgment Granted
Following the denial of Hoffman's motion, Lloyd filed a motion for summary judgment. He argued that Hoffman, as the equity purchaser, had the duty to comply with the HESCA requirements regarding notice of the right of cancellation. § 1695.5(a). He argued that the Purchase-Sale Agreement did not comply with those notice requirements because, among other reasons, it failed to provide notice of the right to cancel next to the space for the seller's signature (the Next-to-Signature Notice). § 1695.5(a). He argued that the right to cancel never expired and that the Notice of Rescission was timely, because proper notice of that right had never been given. § 1695.5(d).
In support of the motion for summary judgment, Lloyd submitted a declaration stating that on May 28, 2003, he signed only three documents (the Purchase-Sale Agreement, the Lease, and the Option), and that none contained the Separate-Page Notice.
Hoffman opposed the motion for summary judgment, contending that he had substantially complied with the notice requirements of HESCA. Hoffman argued that the Signed Separate-Page Notice fulfilled the purpose behind the required Next-to-Signature Notice. In support of his argument, Hoffman submitted his own declaration, in which he stated that the Signed Separate-Page Notice was part of his business records.
This court granted summary judgment for Lloyd regarding Hoffman's failure to comply with the notice requirements of *555 HESCA and the timeliness of Lloyd's Notice of Rescission. Hoffman, as the equity purchaser, had the duty to show compliance with the notice requirements of HESCA: § 1695.6(a). To have any hope of showing substantial compliance with the Next-to-Signature Notice requirement, Hoffman had to offer admissible evidence that Lloyd had signed the Separate-Page Notice on the same date he signed the Purchase-Sale Agreement. Lloyd's purported signature was not dated. Hoffman's declaration did not state that Hoffman saw Lloyd sign the Notice, and therefore did not constitute admissible evidence that Lloyd signed it at the same time he signed the Purchase-Sale Agreement. Hoffman had not requested further time under Rule 56(f) to obtain such evidence. In light of Hoffman's failure to comply with the notice requirements of HESCA, the time to cancel never ran, and the Notice of Rescission was therefore timely. § 1695.5(d).
On the basis of the summary judgment, the court ordered the dismissal of Hoffman's claims for slander of title and for cancellation of the Notice of Rescission. The court also stated its intent to grant Lloyd's claim to quiet title to the Residence in his name. The court reserved the issue of whether Lloyd should be required to return any consideration received as a condition of cancelling the sale, and did not immediately enter judgment on any of the claims.
6. Conditions on Rescission
The parties briefed the question whether any conditions should be imposed on Lloyd's cancellation of the sale. Hoffman asked that Lloyd be required to pay more than $500,000 to restore Hoffman to his former position. He sought reimbursement for many categories of expenses he had incurred: mortgage interest, property taxes, transfer taxes, maintenance, improvements, insurance, loan fees, management fees, attorneys fees, and unpaid rent. Lloyd acknowledged that he must return any net value received. He argued, however, that much of the amount Hoffman sought did not represent value Lloyd received, and that the value Lloyd did receive was fully offset by the increased debt against the property Lloyd would now be required to pay. The court issued a tentative ruling that no reimbursement would be required, and scheduled a hearing for February 28, 2007 to allow the parties to address the question further.
7. The Motion to Reopen the Summary Judgment
Hoffman responded to this tentative ruling by attempting to reopen the ruling granting Lloyd's motion for summary judgment. Hoffman first argued that the Signed Separate-Page Notice had been sufficiently authenticated by Hoffman's declaration stating that Notice to be part of his business records, and by the similarity between the signature on the Notice and Lloyd's signatures on the Purchase-Sale Agreement, Lease, and Option. He also argued that because the Notice itself was dated Mary 28, 2003, it constituted sufficient evidence, that Lloyd signed it on that date to create a triable issue of fact. Hoffman next sought to reopen the summary judgment by offering new evidence. He submitted a declaration from Asher Robertson, the broker who represented Lloyd in the sale to Hoffman, stating that Hoffman had signed the Separate-Page Notice on the same date he signed the Purchase-Sale Agreement, Lease, and Option.
In opposing Hoffman's motion, Lloyd first disputed that summary judgment had been improperly granted. Even if the Signed Separate-Page Notice was dated *556 May 28, 2003, the signature on the Notice was undated, and Hoffman had offered no evidence to controvert Lloyd's declaration that he did not sign the Separate-Page Notice on May 28th. Lloyd next contended that Hoffman should not be allowed to offer the Robertson declaration at such a late date, because Hoffman had met with Robertson for several hours in January 2006, well before the summary judgment motion.
At the February 28, 2007 hearing, it became apparent that there remained two legal questions the court must resolve. First, the parties agreed that the court should determine whether the Signed Separate-Page Notice would constitute substantial compliance with the HESCA notice requirements, before considering (or reconsidering) the factual question whether Lloyd had signed that notice at the same time he signed the Purchase-Sale Agreement. Second, the court should determine what categories of reimbursement Lloyd must make as a condition to cancellation of the sale. If the legal standard Lloyd urged was correct, Hoffman would not be entitled to reimbursement, even if Hoffman prevailed regarding the relevant factual disputes.
DISCUSSION
I.
COMPLIANCE WITH HESCA REQUIREMENTS REGARDING NOTICE OF RIGHT TO CANCEL, AND THE TIMELINESS OF THE NOTICE OF RESCISSION
1. Statutory Framework
The California Legislature enacted HESCA in 1979 to protect homeowners in foreclosure from fraudulent schemes by home equity purchasers. The Legislature found that homeowners in financial distress were often induced to sell their homes for a small fraction of their market value through various types of pressure and misrepresentation.[4] HESCA protects homeowners by: (1) requiring home equity sales contracts to be in writing and to contain certain disclosures; (2) providing the equity seller an opportunity to cancel the sale; and (3) prohibiting the equity purchaser from paying consideration, receiving a conveyance, or encumbering the property until the right to cancel has expired. §§ 1695.2 through 1695.6.
The protections of HESCA apply to the sales of residential property of 1-4 units that the seller occupies as his or her principal residence, and against which there is an outstanding notice of default under a deed of trust or mortgage. § 1695.1(b). The statute expressly excludes from its coverage various types of sales posing less opportunity for abuse: foreclosure sales, deeds in lieu of foreclosure, sales directed by court order, sales to a spouse or blood relative, and sales to a person who intends to reside in the property. § 1695.1(a).
HESCA closely regulates the form of home equity sales contracts. Such contracts must be in writing, must state the total consideration to be paid and the terms of payment, and must state the time at which possession is to be transferred, and the terms of any rental agreement. §§ 1695.2, 1695.3. The contract must also contain two types of notices: (1) a notice of the seller's right to cancel, described in more detail below; and (2) a notice that the buyer cannot ask the seller to sign any deed or other document until the right to cancel has expired. §§ 1695.3(h), 1695.5(a).
*557 The equity seller's right to cancel is the heart of the statutory scheme. The equity seller may cancel the contract until the earlier of midnight of the fifth business day after he or she signs a contract "that complies with this chapter," or 8:00 a.m. on the day scheduled for a foreclosure sale. § 1695.4(a). The seller may exercise the right to cancel by delivering to the equity purchaser any writing indicating the seller's intention to cancel the contract. § 1695.4(b), (c).
The written contract must contain two separate notices of the right to cancel. The first of these notices is what I shall call the Next-to-Signature Notice. The contract
shall contain in immediate proximity to the space reserved for the equity seller's signature a conspicuous statement . . . as follows: "You may cancel this contract for the sale of your house without any penalty or obligation at any time before (date and time of day). See the attached notice of cancellation form for an explanation of this right."
§ 1695.5(a).
The second of these notices is what I shall call the Separate-Page Notice. The contract must be accompanied by a "notice of cancellation" on a separate page attached to the contract that states the deadline for cancellation, explains how the seller may cancel the contract, and contains a space in which the seller may indicate his or her intent to exercise the right to cancel. § 1695.5(b).
HESCA states expressly that the right to cancel does not expire before the seller has received the required notices. Section 1695.5(d) states "[u]ntil the equity purchaser has complied with this section [governing notice of the right to cancel], the equity seller may cancel the contract." Section 1695.4(a) provides that the five-day cancellation period begins when "the equity seller signs a contract that complies with this chapter."
To make the right to cancel more effective, the equity purchaser may not pay any consideration, accept a deed, record a deed, or transfer or encumber the property until the right to cancel has expired. § 1695.6(b). Thus, the Legislature contemplated that the equity seller would not have to return any consideration, or undo any other aspect of the contemplated sale, as a condition of cancelling the sale contract. The statute also states that the seller's right to cancel is "[i]n addition to any other right of rescission. . . ." § 1694.5(a).
The equity seller is not protected against third parties who in good faith and without knowledge "of a violation of this chapter" purchase the property for value from the equity purchaser or who loan money to the equity purchaser secured by the property. § 1695.6(b)(3).
HESCA provides that an equity seller may recover damages and attorneys fees if the equity purchaser does not promptly and "without condition" honor a timely notice of cancellation. § 1695.7. The court must treble any actual damages resulting from the equity purchaser encumbering the property before the cancellation period has expired. Id.
2. Facts Related to Compliance with the Statute
The Purchase-Sale Agreement did not contain the Next-to-Signature Notice required under section 1695.5(a). The parties used a standard-form purchase-sale agreement that did not contain or provide room for such a notice next to the signature line. Lloyd may, however, have signed the Separate-Page Notice. As noted above, this is disputed. For the purpose of the present inquiry, I will assume *558 that Lloyd signed the Separate-Page Notice on the same day he signed the Purchase-Sale Agreement.
Whether the equity sale contract contained the required notices of right to cancel determines whether Lloyd timely exercised the right to cancel. As noted above, HESCA states in two different places that the time limit on the right to cancel does not begin to run until the equity seller signs a contract that provides the required notices of that right. §§ 1695.4(a), 1695.5(d).
Lloyd contends that he timely exercised the right to cancel, because the contract he signed did not contain the Next-to-Signature Notice. Hoffman contends that Lloyd did not timely exercise the right to cancel, because the Purchase-Sale Agreement together with the Signed Separate-Page Notice substantially complied with the statutory requirements. Hoffman contends that Lloyd's signature on the Separate-Page Notice brought that notice to Lloyd's attention, thereby fulfilling the statutory purpose behind the Next-to-Signature Notice.[5]
3. The Doctrine of Substantial Compliance
The California Supreme Court defined "substantial compliance" regarding consumer-protection laws in Stasher v. Harger-Haldeman, 58 Cal.2d 23, 22 Cal. Rptr. 657, 372 P.2d 649 (1962). The statute at issue there required contracts concerning conditional sales of motor vehicles to be in writing and to contain various notices regarding purchase price and payments. The court set forth the following test for determining whether the notices given satisfied the requirements of the statute.
Substantial compliance, as the phrase is used in the decisions, means actual compliance in respect to the substance essential to every reasonable objective of the statute. But when there is such actual compliance as to all matters of substance then mere technical imperfections of form or variations in mode of expression by the seller, or such minima as obvious typographical errors, should not be given the stature of non-compliance and thereby transformed into a windfall for an unscrupulous and designing buyer.
Id. at 29, 22 Cal.Rptr. 657, 372 P.2d 649.
The California Court of Appeal applied Stasher to a notice requirement similar to the one involved here in Malek v. Blue Cross of California, 121 Cal.App.4th 44, 16 Cal.Rptr.3d 687 (2004). Malek involved Health and Safety Code section 1363.1, which provides that an arbitration agreement in a health care plan is enforceable only if notice of the arbitration provision is prominently displayed "immediately before the signature line" and clearly discloses that the parties are giving up their constitutional right to trial in a court of law. Id. at 50, 16 Cal.Rptr.3d 687. The enrollment form at issue disclosed that the parties relinquished their right to trial "in a court of law before a jury." This notice, however, was not displayed immediately before the signature line. Id. at 61, 16 Cal. Rptr.3d 687.
*559 Malek held that the notice provided did not substantially comply with the statute. The court reasoned that placement of the notice next to the signature line was essential to one of the objectives of the statute.
The purpose of section 1363.1 is to disclose the requirement to arbitrate and to ensure a knowing waiver of the right to a jury trial. . . . [T]here is no indication that the Maleks knowingly waived their right to a jury trial based on the juxtaposition of the signature line. The arbitration provision is on the left-hand side of the enrollment form while the signature line is on the lower right-hand side of the form. The signature line appears directly below the authorization to obtain or release medical information. This placement is not a technical defect of form because it leaves in doubt whether the Maleks knowingly waived their right to a jury trial. Under these circumstances, the statutory objectives of section 1363.1 have not been met.
Id. at 72-73, 16 Cal.Rptr.3d 687 (emphasis in original).
Stasher and Malek do not directly resolve the present case. Stasher does tell us, however, that substantial compliance means actual compliance with every reasonable purpose of the statute. Malek tells us that placement of a notice next to the signature line of a contract may be essential to the purpose of a statute.
4. Does the Present Contract Substantially Comply with Section 1695.5?
To determine whether Hoffman substantially complied with section 1695.5, we must determine whether the legislative purpose behind the Next-to-Signature Notice is satisfied by Lloyd's signature on the Separate-Page Notice.
The Legislature stated that the right to cancel is intended to help homeowners make sound decisions while they are under the strain of foreclosure proceedings. The "Legislative findings and declarations" state in relevant part:
(a) The Legislature finds and declares that . . . [d]uring the time period between the commencement of foreclosure proceedings and the scheduled foreclosure sale date, homeowners in financial distress, especially the poor, elderly, and financially unsophisticated, are vulnerable to the importunities of equity purchasers. . . .
(b) The Legislature declares that it is the express policy of the state to preserve and guard the precious asset of home equity, and the social as well as the economic value of homeownership.
. . .
(d) The intent and purposes of this chapter are the following:
(1) To provide each homeowner with information necessary to make an informed and intelligent decision regarding the sale of his or her home to an equity purchaser [and] . . . to afford homeowners a reasonable and meaningful opportunity to rescind sales to equity purchasers. . . .
(2) This chapter shall be liberally construed to effectuate this intent and to achieve these purposes.
§ 1695.
The most important expression of legislative purpose, of course, is the language of the statute itself. Cal. School Employees Ass'n. v. Governing Bd. of the Marin Cmty. Coll. Dist., 8 Cal.4th 333, 338, 33 Cal.Rptr.2d 109, 878 P.2d 1321 (1994) (en banc). A salient characteristic of HESCA is that it requires two notices of the right to cancel: the Next-to-Signature Notice and the Separate-Page Notice. Under the oft-cited doctrine that courts must attempt to give effect to all provisions of a statute, I assume that each of *560 the required notices serves a function the other does not. Cal.Code Civ. Proc. § 1858; Parris v. Zolin, 12 Cal.4th 839, 845, 50 Cal.Rptr.2d 109, 911 P.2d 9 (1996). More specifically, because the Separate-Page Notice explains the right to cancel in more detail than the Next-to-Signature Notice, I must assume that the Next-to-Signature Notice provides some separate, additional benefit.
It is not hard to discern the benefit to be derived from the Next-to-Signature Notice: the equity seller is more likely to notice it. People of all degrees of sophistication understand the importance of the signing of a written contract. It is at that stage that the seller should be focused most carefully on the details of the transaction. I conclude that the Legislature required that notice of the right to cancel be placed "in immediate proximity" to the signature line to increase the likelihood that the equity seller would effectively comprehend that right. While the Separate-Page Notice provides a full description of the right to cancel, it does not have the same ability to grab the attention of the equity seller by being in the seller's field of vision at the key moment when the seller executes the contract.
Does Lloyd's signature[6] on the Separate-Page Notice make up for Hoffman's failure to place a notice next to the signature line on the Purchase-Sale Agreement?
The Legislature could have required the equity seller to sign and date the Separate-Page Notice. By requiring instead that notice be placed next to the signature line of the sale contract, the Legislature determined that the signing of the sale contract provides a unique opportunity to draw the seller's attention to the right to cancel. Such a determination is not unreasonable. It is reasonable to assume that most people who sell a home view the signing of the sale contract as the crucial event, and treat the numerous other papers they complete as formalities subsidiary to that event.
I determine that actual compliance with the Next-to-Signature Notice requirement is essential to the purpose of HESCA. This is so because of the Legislature's express finding that homeowners in foreclosure are often pressured to make poor decisions, the central role of the right to cancel in the statutory scheme for helping homeowners to avoid poor decisions, and the existence of a reasonable basis to believe that placing notice of the right to cancel next to the signature line of the sale contract affords a unique opportunity to draw attention to that right. Thus, the Purchase-Sale Agreement, even with the Signed Separate-Page Notice, does not substantially comply with the requirements of section 1695.5, because it is not in "actual compliance in respect to the substance essential to every reasonable objective of the statute." Stasher, supra, 58 Cal.2d at 29, 22 Cal.Rptr. 657, 372 P.2d 649.
II.
CONDITIONS UPON CANCELLATION
Hoffman contends that Lloyd should be permitted to cancel the sale only upon tendering to him more than $500,000, the amount Hoffman contends is necessary to restore him to his former position. Lloyd concedes that the court may require him to return value he received to prevent unjust enrichment. Lloyd argues, however, that *561 when all facets of the transaction are properly accounted for, he received no net value. The most important difference between the parties concerns the viewpoint the court should apply to the question of restitution. Hoffman argues that he must be restored to the status quo ante, even though he is the party responsible for the circumstances justifying cancellation of the contract. Lloyd argues the contrary.
1. The Appropriate Legal Standard
California law does not support Hoffman's theory. The Civil Code instructs the courts to prevent unjust enrichment of the rescinding party whenever possible, but does not require that the party against whom rescission is invoked be restored to the status quo ante. Section 1691 states that the party rescinding a contract must offer to "[r]estore to the other party everything of value which he has received from him under the contract. . . ." Section 1692 states in relevant part:
If in an action or proceeding a party seeks relief based upon rescission, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require and may otherwise in its judgment adjust the equities between the parties.
Case law confirms that the primary goal is to avoid unjust enrichment when possible, and that the court enjoys broad discretion in setting appropriate conditions upon rescission. See McCoy v. West, 70 Cal. App.3d 295, 302, 138 Cal.Rptr. 660 (1977).[7]
The Restatement of Restitution provides that even restitution aimed at preventing unjust enrichment should not be ordered when that would frustrate the policy giving rise to the right to rescind.
A person who renders performance under an agreement that is illegal or otherwise unenforceable for reasons of public policy may obtain restitution . . . as necessary to prevent unjust enrichment, if the allowance of restitution will not defeat or frustrate the policy of the underlying prohibition.
RESTATEMENT (THIRD) OF RESTITUTION § 32 (Tentative Draft No. 3, 2004).[8]
2. Accounting for Benefits and Setoffs
Viewed against this standard, Hoffman is entitled to no restitution. Much of the restitution Hoffman seeks does not represent value provided to Lloyd. Furthermore, as explained in the following paragraphs, the value Hoffman did provide Lloyd is more than offset by the increased debt that Hoffman placed on the Residence and that Lloyd will likely have to pay.
Lloyd does not dispute that he received value equal to the cash he received and his prior debt that Hoffman paid. Upon closing, Hoffman paid Lloyd $20,000 in cash. Hoffman also paid off the loans Lloyd had previously taken out against the Residence, *562 which had a balance due of approximately $592,000.
Improvements to the Residence Hoffman made may also represent value Lloyd received. The parties differ largely as to how these improvements should be valued. Hoffman seeks reimbursement of the entire $14,500 he claims he spent on the improvements. Lloyd contends that the proper measure should be the value of the improvements to him. For the present analysis, I will use Hoffman's figure.
Operating expenses Hoffman paid should be considered value provided to Lloyd only for the period Lloyd had possession of the Residence. Hoffman seeks reimbursement of $163,000 he paid for property taxes, mortgage interest, insurance, and maintenance during the 40 months between the transfer and the end of 2006. Hoffman argues that if he had not purchased the Residence, Lloyd would have had to make these payments. While this is true, it is also true that if Lloyd had not sold the Residence and had made those payments himself, he also would have enjoyed possession and the other benefits of ownership for the entire 40-month period. It is undisputed that the Residence is now leased to third parties, and that Lloyd has been denied possession of the Residence for at least 15 of the 40 months since the sale closed. It is appropriate to make Lloyd responsible for expenses only for the period he had possession of the Residence. Runyan, supra, 2 Cal.3d at 315, 85 Cal.Rptr. 138, 466 P.2d 682; McCoy, supra, 70 Cal.App.3d at 301, 138 Cal.Rptr. 660. Thus, Lloyd is properly charged with no more than $101,875, which represents 25/40 of the $163,000 claimed.[9]
Lloyd should not be deemed to have received the rental value of the Residence in addition to the expenses of maintaining the property for the period he had possession of the Residence. To adjust for both rental value and avoided expenses would constitute double-counting. Charging Lloyd for the property taxes, maintenance, insurance, and mortgage interest Hoffman paid while Lloyd had possession is sufficient to prevent unjust enrichment, and more accurately measures the benefit Lloyd received. McCoy, supra, 70 Cal. App.3d at 302, 138 Cal.Rptr. 660 (monetary adjustment required upon rescission of sale of property to take account of post-transfer, pre-rescission possession is not rent, but is merely a means to prevent unjust enrichment). Lloyd's possession should not be valued under the terms of the Lease, because Hoffman could not have become Lloyd's landlord without violating the statutory prohibition against taking title before the cancellation period expired. § 1696(b).
The other amounts Hoffman seeks do not represent value transferred to Lloyd. Hoffman seeks reimbursement of $26,500 in fees paid in obtaining the loan used to make the purchase, transfer taxes of $6,000 paid on the purchase, and $45,000 in management fees payable to himself for leasing the Residence. Finally, Hoffman seeks reimbursement of $400,000 in attorneys fees incurred, and to be incurred, in the present action. None of these amounts represent amounts Lloyd would have had to pay but for the transfer to Hoffman.[10]
*563 The total value Lloyd received from Hoffman is more than offset by the corresponding detriment that Lloyd has suffered in the form of increased debt against the Residence. To effect the purchase, Hoffman obtained a loan from GreenPoint Mortgage in the amount of $640,000, secured by a deed of trust on the Residence. Later H & B Properties took out a second loan from Norcal Financial in the amount of $110,000, secured by a junior deed of trust on the Residence. The current combined balance on these loans is approximately $754,000.[11] The debt the Residence is now subject to exceeds by $26,125 the sum of all value Lloyd received from Hoffman.
Cash purchase price $ 20,000
Prior debt retired 592,000
Adjusted operating expenses 101,875
Improvements 14,500
Sub-total 728,375
Less debt Hoffman incurred (754,500)
Net benefit conveyed $ 26,125
The rescinding party need not restore value received from the other party where that value has been fully offset by other effects of the transaction. Gatje v. Armstrong, 145 Cal. 370, 374, 78 P. 872 (1904).
3. Additional Policy Considerations
Finally, I determine that imposing any condition on cancellation of the sale of the Residence would unduly interfere with both the express language and the policies of HESCA. The Legislature designed the equity seller's right to cancel not to require the unwinding of a completed transfer, by expressly prohibiting the equity purchaser from accepting consideration, receiving a deed, or encumbering the property before the right to cancel has expired. § 1695.6(b). Cancellation is more complex here, solely because Hoffman did not take care to ensure that the right to cancel had expired before he completed the purchase. This is a case where Hoffman and Lloyd cannot both be restored to the status quo ante, because some of the reimbursements Hoffman seeks are for transactions costs that do not represent value provided to Lloyd, and because those transaction costs were simply lost when the sale was cancelled. In such circumstances, it is Hoffman who should bear the loss. By violating section 1695(b), Hoffman created the circumstances that prevent both parties from being restored to the status quo ante. McCoy, supra, 70 Cal.App.3d at 303, 138 Cal.Rptr. 660.
I determine that Lloyd need not tender any sum to Hoffman as a condition to cancelling the sale of his Residence to Hoffman. I also determine that the policies embodied in HESCA require that the Residence be restored to Lloyd immediately. *564 § 1695. This court will therefore order immediate entry of a judgment cancelling the sale, quieting title to the Residence in Lloyd, and dismissing Hoffman's claims. Fed.R.Bankr.P. 7054(a); Fed.R. Civ. P. 54(b). Lloyd's claims for damages and attorneys fees will be determined at a later date.
CONCLUSION
The Purchase-Sale Agreement did not substantially comply with HESCA, because it did not contain the Next-to-Signature Notice of the right to cancel required under section 1695.5(a). Lloyd's exercise of the right to cancel was timely under section 1695.5(d), because he had not previously been afforded proper notice of that right. No conditions should be placed on Lloyd's right to cancel, because Lloyd received no net benefit from the transaction that he should be required to return to Hoffman.
NOTES
[1] The Option does not state the price at which Lloyd could repurchase the Residence.
[2] HESCA is codified in sections 1695 through 1695.17 of the California Civil Code. Unless otherwise noted, all statutory references in this decision are to sections of the California Civil Code.
[3] In an unpublished Decision After Trial filed on March 20, 2006, this court explained its conclusions of law in the following language.
I conclude that the release was effective with respect to Lloyd's rights under Section 1695 only if: (1) the release occurred in the settlement of a ripe controversy in which the significance of those rights had become apparent; and (2) the release constituted a knowing and intelligent waiver of those rights. In so concluding, I note the following. First, the California Legislature expressly provided that rights under Section 1695 cannot be waived. Cal. Civ.Code § 1695.10. Although I do not believe that the Legislature meant to bar settlement of ripe claims arising under Section 1695, the anti-waiver provision suggests that any such settlement should be attended with adequate safeguards. Second; California courts have held that any waiver of an important statutory right must be knowing and intelligent. Cathay Bank v. Lee, 14 Cal.App.4th 1533, 1539, 18 Cal.Rptr.2d 420 (1993); accord In re Acosta, 182 B.R. 561, 566-67 (N.D .Cal.1994). Third, Section 1695 is important consumer protection legislation, much like the Federal Truth-in-Lending Act. Thus, I find both persuasive and pertinent a decision in which a general release that did not specifically acknowledge the right to rescind under TILA was held not to bar the later exercise of that right. Mills v. Home Equity Group, Inc., 871 F.Supp. 1482, 1485-86 (D.D.C.1994).
[4] In section 1695, the Legislature made detailed findings and conclusions, which are set forth in more detail in part II.4, infra.
[5] The contract also did not contain the notice required by section 1695.3(h), stating that the equity purchaser cannot ask the equity seller to sign any deed until the right to cancel has expired. It appears, however, that the failure to provide this notice is immaterial. If the contract substantially complied with the statutory requirements regarding notice of the right to cancel, the right to cancel expired before Lloyd signed any deed. If the contract did not substantially comply, the right to cancel has never expired, without regard to any violation of section 1695.3(h).
[6] As noted above, for the purpose of this decision, the court assumes without deciding that Lloyd signed the Separate-Page Notice on the same date he signed the Purchase-Sale Agreement.
[7] Hoffman cites Runyan v. Pacific Air Industries, Inc., 2 Cal.3d 304, 316, 85 Cal.Rptr. 138, 466 P.2d 682 (1970) as stating "[i]t is the purpose of rescission `to restore both parties to their former position as far as possible.'" Neither Runyan, nor any other case Hoffman cites, actually holds that the party responsible for the circumstances justifying rescission must be restored to the status quo ante when that would require the rescinding party to restore more than the value that party received, and when that would impose a loss on the rescinding party for the benefit of the more culpable party.
[8] The notes accompanying this draft provision provide that it reformulates the applicable rules of sections 197-99 of the Second Restatement of Contracts without altering specific outcomes.
[9] Lloyd also contends that Hoffman is not entitled to reimbursement for any interest payments made, because any such amounts would represent payment on a loan subject to rescission under the Federal Truth-in-Lending Act. I need not reach this issue because, as noted below, I determine that Lloyd is not required to make any reimbursement of Hoffman as a condition to cancelling the sale, without regard to the TILA issue.
[10] Hoffman appears to seek these attorney fees under the fee clause in the Settlement Agreement. As noted above, this court has determined that the release in the Settlement Agreement does not bar Lloyd's right to cancel the sale under HESCA, because of the anti-waiver provisions of section 1695.10. To the extent that Hoffman seeks to enforce the fee clause to require Lloyd `to pay fees Hoffman incurred in unsuccessfully contesting Lloyd's exercise of the right to cancel under HESCA, the fee clause should also be considered an illegal contract. Under section 1695.7, Lloyd is entitled to recover attorneys fees as the prevailing party.
[11] It is far from certain that Lloyd will be able to avoid these encumbrances. HESCA affords broad protection to loans extended by lenders unrelated to the purchaser, such as GreenPoint Mortgage. That the transfer to the equity purchaser may be set aside does not mean that a loan placed on the property by that equity purchaser may also be set aside. §§ 1695.6(b)(3), 1695.6(e), 1695.12, 1695.14(c). The holder of the second loan, Norcal Financial, is apparently owned by Hoffman, and Hoffman has at various times stated that he would cause that loan to be released. To date he has not done so. It is not appropriate at this stage for this court to disregard for Hoffman's benefit a loan that Hoffman continues to assert. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561714/ | 236 N.J. Super. 294 (1989)
565 A.2d 1084
JOHN IACONIANNI, ADMINISTRATOR OF THE ESTATE OF FRANK IACONIANNI, DECEASED, AND GLORIA IACONIANNI, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
NEW JERSEY TURNPIKE AUTHORITY, DEFENDANT-APPELLANT, AND RAYMOND E. LORD, KENT M. MONTGOMERY, C & D ENTERPRISES AND GRAYSON MITCHELL, DEFENDANTS.
Superior Court of New Jersey, Appellate Division.
Argued October 2, 1989.
Decided October 19, 1989.
*295 Before Judges J.H. COLEMAN and SKILLMAN.
No one argued the cause for appellant. (Donington, Leroe, Salmond & Luongo, attorneys for appellant New Jersey Turnpike Authority; Susan G. Rankin on the brief).
Robert T. Ford argued the cause for respondent (Russo, Courtney, Foster, Secare, Tassini & Ford, attorneys for respondents; Robert T. Ford on the brief).
The opinion of the court was delivered by COLEMAN, J.H., P.J.A.D.
In this case involving an action for wrongful death and survival, the key issue raised is whether a notice of claim was given to the New Jersey Turnpike Authority (Turnpike Authority) "within 1 year after the accrual of [the] claim" within the meaning of N.J.S.A. 59:8-9. The trial court held that notice of claim should be permitted more than one year after the accident and death. We disagree and reverse.
The facts essential to our disposition are undisputed. On April 27, 1987, decedent Frank Iaconianni was involved in a multi-vehicular accident. Two tractor trailers that were operated by defendants Raymond E. Lord and Kent M. Montgomery *296 hooked bumpers as they proceeded north along the New Jersey Turnpike. Both trucks crashed through a guardrail. The tractor trailer that was operated by defendant Lord collided with Frank Iaconianni's vehicle that was travelling south along the New Jersey Turnpike. Frank Iaconianni died on May 25, 1987 as a result of injuries sustained in the accident.
Plaintiffs retained New York counsel on July 25, 1987 who instituted suit in the United States District Court, Eastern District of New York, on or about August 4, 1987. Thereafter, (the date is not revealed in the record), plaintiffs retained New Jersey counsel who filed a complaint in the present litigation on August 9, 1988 against all named defendants except the Turnpike Authority. Plaintiffs filed a motion on December 12, 1988 for leave to file a late notice of claim against the Turnpike Authority. In support of this motion, plaintiff relied upon the depositions of Daniel Meritz, an eyewitness to the accident, which were taken on November 16, 1988. He stated that the guardrail was "flattened like a pancake" and it "splintered like a toothpick" at the time of impact. This deposition testimony conflicted with the report of the state trooper who investigated the accident. He reported that the tractor trailers jumped the center guardrail.
The trial court granted the motion and stated the following reasons:
I'm going to grant the application on the basis that the plaintiff in this matter being deceased and the police report being misleading as to the condition of the guardrail, that the report . . that the knowledge did not accrue in the police . . and the claim was filed within the time limits of the accrual when counsel had knowledge.
While perhaps I would agree that New York counsel was not as diligent as perhaps it . . he or she should have been, I don't think under these circumstances that I would blame the plaintiff.
I suggest that we get [take an appeal] this up. Let's get a definitive decision as to whether I'm right or I'm wrong.
On this appeal, the Turnpike Authority argues that the judge was without jurisdiction to grant the motion because the causes of action accrued on the dates of the accident and death *297 and also because the discovery rule, see Lopez v. Swyer, 62 N.J. 267 (1973), has no application to this case. We agree. Plaintiffs retained New York counsel on July 25, 1987, who filed suit in New York without naming the Turnpike Authority as a party. Both New York and New Jersey counsel apparently failed to initially attribute any fault to the erection or maintenance of the guardrail because the Turnpike Authority was not made a party in the original complaint. There is no evidence that the death of the decedent impeded the investigation in any sense. In addition, nothing has been called to the attention of the court which would indicate that either the decedent's death or the state trooper's report of the accident delayed ascertaining the identity or whereabouts of Daniel Meritz. The difference between the eyewitness's version respecting the guardrail and of the state trooper's was simply one of focus on a different theory of fault, and not whether the guardrail was implicated in the accident. Indeed, it was apparent to three other attorneys representing three other plaintiffs within 90 days of the accident that the guardrail may not have performed its anticipated purpose by not preventing the tractor trailers from crossing over into the southbound traffic lanes. These three attorneys filed timely claims within 90 days based on the initial police report without the benefit of depositions of Daniel Meritz.
We find no factual basis for application of the discovery rule. Fuller v. Rutgers, the State University, 154 N.J. Super. 420, 423-424 (App.Div. 1977), certif. den. 75 N.J. 610 (1978); Bell v. County of Camden, 147 N.J. Super. 139, 143 (App.Div. 1977). Under the facts, counsel for plaintiffs knew, "or by an exercise of reasonable diligence and intelligence should have discovered that [plaintiffs] may have a basis for an actionable claim" against the Turnpike Authority before May 25, 1988. Lopez v. Swyer, 62 N.J. at 272. Reasonable diligence required an investigation of the accident that went beyond a mere reading of the police report before the discovery rule may be invoked. Furthermore, the cases discussing toxic torts and the discovery *298 rule are unique, and for this reason they have no application to this case. See Lamb v. Global Landfill Reclaiming, 111 N.J. 134 (1988); Vispisiano v. Ashland Chemical Co., 107 N.J. 416 (1987); Ayers v. Township of Jackson, 106 N.J. 557 (1987).
Absent evidence to support an application of the discovery rule, for purposes of N.J.S.A. 59:8-9, the survival cause of action accrued on the date of the accident, see Fuller, supra, and the wrongful death cause of action accrued on the date of death, Dyer v. City of Newark, 174 N.J. Super. 297, 299 (App.Div. 1980); Torres v. Jersey City Medical Center, 140 N.J. Super. 323, 326 (Law Div. 1976). Because the late notice of claim was filed well beyond the one-year outer limit, the trial court had no jurisdiction to extend the filing period. See Barbaria v. Township of Sayreville, 191 N.J. Super. 395, 400 (App.Div. 1983); Priore v. State, 190 N.J. Super. 127 (App.Div. 1983); Hill v. Board of Educ. of Middletown, 183 N.J. Super. 36 (App.Div.), certif. den. 91 N.J. 233 (1982).
Therefore, the order dated March 16, 1989 is reversed. So much of the amended complaint that alleged a claim against the Turnpike Authority is dismissed. See Guzman v. City of Perth Amboy, 214 N.J. Super. 167, 171 (App.Div. 1986).
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/993335/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4148
MARK ANTHONY WALTERS,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
James A. Beaty, Jr., District Judge.
(CR-95-193)
Submitted: October 20, 1997
Decided: October 31, 1997
Before MURNAGHAN and ERVIN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
William E. Martin, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Clifton T. Barrett,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Mark Walters appeals from his convictions of thirteen firearms
offenses for which he was sentenced to a total of 96 months imprison-
ment. Walters claims that the district court erred in admitting evi-
dence of firearms transactions other than those charged in the
indictment and that he was improperly given an adjustment for
obstruction of justice, see U.S. Sentencing Guidelines Manual
§ 3C1.1 (1995). We affirm.
The Bureau of Alcohol, Tobacco and Firearms began an investiga-
tion in the fall of 1994 at the request of the police department in
Winston-Salem, North Carolina, after a large number of semi-
automatic handguns were recovered with obliterated serial numbers.
Laboratory testing of three such firearms revealed that each had been
purchased from RSR Wholesale by Walters, who was a federally-
licensed firearms dealer. The same tests were conducted on two addi-
tional sets of firearms (one set of seven and one set of five) and again
revealed that they had been purchased by Walters from RSR Whole-
sale. Records from RSR Wholesale established that, between June 6,
1994, and March 13, 1995, Walters, doing business as "Marksman,"
purchased 291 semi-automatic handguns from RSR Wholesale.
Walters was indicted on thirteen counts of federal firearms viola-
tions. Walters pleaded guilty to Count One, which charged him with
violating 18 U.S.C. §§ 922(m), 924(a)(3) (1994), for failing to main-
tain records of receipts, sales, and dispositions of 291 listed firearms,
and not guilty on the remaining twelve counts. The indictment also
charged Walters with possession of a firearm with an obliterated
serial number, in violation of 18 U.S.C. §§ 922(k), 924(a)(1)(B)
(1994) (Counts Two, Three, Four, and Five); sale of a firearm to a
person under age twenty-one, in violation of 18 U.S.C. §§ 922(b)(1),
924(a)(1)(D) (1994) (Count Six); sale of a firearm to an individual in
2
violation of state law, in violation of 18 U.S.C. §§ 922(b)(2),
924(a)(1)(D) (1994) (Counts Seven and Eight); failure to record a sale
of a firearm in violation of 18 U.S.C. §§ 922(b)(5), 924(a)(1)(D)
(1994). Counts Nine, Ten and Eleven charged Walters with selling a
Lorcin .380 semi-automatic pistol and failing to (1) obtain the buyer's
name, age, and place of residence (18 U.S.C. §§ 922(b)(5),
924(a)(1)(D) (Count Nine); (2) obtain a Firearms Transactions Record
(Form 4473) (18 U.S.C. §§ 922(m), 924(a)(3) (1994) (Count Ten);
and (3) obtain from the buyer a statement as required by 18 U.S.C.
§ 922(s) (1994) (Count Eleven). Count Twelve charged Walters with
selling a Jennings 9 mm semi-automatic handgun without receiving
from the buyer a statement as required by 18 U.S.C.§ 922(s). Finally,
in Count Thirteen, Walters was charged with violating § 922(s) in
connection with the sale of another Lorcin .380 semi-automatic pistol.
All of these counts related to the sale of firearms to four individuals.1
At Walters' trial, the government introduced evidence of thirteen
other guns sold by Walters where the serial number had been obliter-
ated. All thirteen were listed in Count One of the indictment.
Walters first claims that this was evidence of "other crimes" which
was inadmissible under Fed. R. Evid. 404(b).2 This court reviews the
district court's evidentiary rulings for abuse of discretion. See United
States v. Clark, 986 F.2d 65, 68 (4th Cir. 1993). "Evidence of
uncharged conduct is not considered `other crimes' evidence if it
arose out of the same . . . series of transactions as the charged offense,
. . . or if it is necessary to complete the story of the crime [on] trial."
United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994). See also
United States v. Mark, 943 F.2d 444, 448 (4th Cir. 1991) (evidence
_________________________________________________________________
1 Counts Two, Seven, Nine, Ten, and Eleven arose out of the sale of
a handgun to Kenneth Bernard Cook. Counts Three and Twelve relate to
the sale of several firearms to Alvin Lamont Boston. Counts Five, Eight,
and Thirteen relate to the sale of a firearm to Theodore Frazier. Counts
Four and Six relate to the sale of a firearm to Andre Damorris Kennedy.
2 Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in confor-
mity therewith. It may, however, be admissible for other pur-
poses, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.
3
of uncharged criminal conduct is admissible where it furnishes "part
of the context of the crime."). Rule 404(b) is one of inclusion, rather
than exclusion, permitting introduction of all evidence except that
which proves only criminal disposition. Id. We find the evidence con-
cerning the firearms other than those listed in the indictment was
admissible under Rule 404(b) because the evidence arose out of the
same series of events as the charged offenses and was necessary to
"complete the story" at Walters' trial. Therefore, the district court did
not abuse its discretion in admitting the evidence.
Next, Walters claims that the enhancement he received for obstruc-
tion of justice was factually unsupported. The guidelines provide for
a two-level enhancement for obstruction of justice where "the defen-
dant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice during the investigation, prose-
cution, or sentencing of the instant offense." USSG § 3C1.1. The
enhancement is intended to apply to defendants "who engage in con-
duct calculated to mislead or deceive authorities or those involved in
a judicial proceeding . . . and applies to a wide range of conduct."
United States v. Ashers, 968 F.2d 411, 413 (4th Cir. 1992).
The district court properly determined that Walters obstructed jus-
tice based on his false statements to police that his wife had thrown
twelve firearms into a local lake and by claiming to have thrown the
remainder into a landfill. Based on Walters' statements, Winston-
Salem police devoted a significant number of man hours to searching
the lake where Walters claimed to have thrown the weapons. See
USSG § 3C1.1, comment. n.3(g) (conduct to which enhancement
applies includes "providing a materially false statement to a law
enforcement officer that significantly obstructed or impeded the offi-
cial investigation or prosecution of the instant offense.").
Accordingly, we affirm Walters' conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
4 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/993338/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4878
WILLADEUR ALPHONSE, a/k/a Kiki,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4892
JOSEPH HUGHEY, JR.,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Richard C. Erwin, Senior District Judge.
(CR-96-108)
Submitted: October 7, 1997
Decided: October 31, 1997
Before HALL and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
D. Erik Albright, SMITH, HELMS, MULLISS & MOORE, L.L.P.,
Greensboro, North Carolina; John Stuart Bruce, Acting Federal Public
Defender, Gregory Davis, Assistant Federal Public Defender, Greens-
boro, North Carolina, for Appellants. Walter C. Holton, Jr., United
States Attorney, Douglas Cannon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Willadeur Alphonse and Joseph Hughey, Jr. ("Defendants"), each
pled guilty to conspiring to possess with intent to distribute crack
cocaine and cocaine hydrochloride in violation of 21 U.S.C.A.
§§ 841(b)(1)(A), 846 (West Supp. 1997).* The court sentenced
Alphonse to 160 months imprisonment to be followed by a five-year
supervised release term and sentenced Hughey to an 87-month prison
term and five years of supervised release. They appeal their sentences,
contending that the district court erred in sentencing them based on
crack cocaine instead of cocaine hydrochloride. Finding no error, we
affirm.
I.
Hughey told a confidential informant that he knew Alphonse and
could obtain drugs from him. The informant arranged for Alphonse
to deliver about ten ounces of crack cocaine to a buyer. Hughey and
_________________________________________________________________
*Alphonse and Hughey also were indicted for possession with intent
to distribute 288.2 grams of crack cocaine and 8 grams of cocaine hydro-
chloride, but the court dismissed this count on the government's motion.
2
the informant met Alphonse at the airport, and they drove to a motel
to wait for the buyer to arrive. Before they arrived at the motel,
authorities conducted a felony vehicle stop, arrested Hughey and
Alphonse, and seized 288.2 grams of crack cocaine and eight grams
of cocaine hydrochloride. The district court accepted Alphonse and
Hughey's guilty pleas to conspiracy, finding that they were entered
knowingly and voluntarily and that a factual basis supported the
pleas.
At the sentencing hearing, Defendants objected to the probation
officer's calculation of their base offense levels based on crack
cocaine rather than cocaine hydrochloride. They contended that there
was no sodium bicarbonate present to bring the drugs within the defi-
nition of "crack" in U.S. Sentencing Guidelines Manual § 2D1.1(c),
note (D) (1995).
Testimony at the hearing from an agent with the Drug Enforcement
Administration ("DEA") disclosed that the drugs seized from Defen-
dants were in two packages, that the larger package contained an off-
white rocky substance, and that based on his experience, he believed
the larger package contained crack cocaine. And an expert in forensic
chemistry testified that she conducted several tests that determined
the larger package contained cocaine base, commonly referred to as
crack. On cross-examination, the chemist stated that the drugs could
be crack cocaine even when sodium bicarbonate, baking powder,
ammonia, or lye--substances commonly used to cook powder
cocaine into crack--did not appear in the laboratory analysis. She
noted that none of those additional substances appeared in the tests
she ran but that she did not test specifically for their presence.
Based on the testimony presented at the sentencing hearing, the
district court found the evidence sufficient to sentence Defendants
based on crack cocaine. The court also noted that the indictment
charged Defendants with conspiring to possess with intent to distrib-
ute 288.2 grams of cocaine base ("crack"); that at the plea colloquy,
Defendants entered guilty pleas to that indictment; and that a factual
basis supported the pleas. This appeal followed.
II.
Defendants contend that the district court erred in calculating their
base offense levels because the government failed to prove that the
3
drugs they conspired to distribute were crack cocaine, as opposed to
another form of cocaine base. See U.S.S.G. § 2D1.1(c), note (D) (spe-
cifically noting that "crack" is but one form of "cocaine base"). In
reviewing the district court's application of the sentencing guidelines,
we review factual determinations for clear error, while legal determi-
nations are subject to de novo review. See United States v. Blake, 81
F.3d 498, 503 (4th Cir. 1996).
Although Defendants rely primarily on United States v. James, 78
F.3d 851 (3d Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3259
(U.S. Oct. 7, 1996) (No. 95-9224), and United States v. Munoz-
Realpe, 21 F.3d 375 (11th Cir. 1994), their reliance is misplaced.
James involved an indictment that charged possession of "a detectable
amount of cocaine base" and an ambiguous plea colloquy. See 78
F.3d at 855-56. Furthermore, the issue was hotly litigated at sentenc-
ing, and the district court eschewed any specific factual findings,
holding only that "cocaine base means crack for purposes of the
guidelines." Id. at 856-57. Faced with the ambiguities in the record
and the lack of factual findings by the district court, the Third Circuit
found that the government had failed to prove that the substance at
issue was crack cocaine. The court then remanded for resentencing.
Id. at 858.
In Munoz-Realpe, the defendant pled guilty to importation of "co-
caine." He argued at sentencing that the drug at issue in his case, "co-
caine base in liquid form," should be treated as cocaine powder for
sentencing purposes. The Eleventh Circuit affirmed the district
court's factual finding that the substance was not crack cocaine. See
21 F.3d at 376-77 (noting that cocaine base in liquid form requires
further processing and can just as easily be made into powder cocaine
as crack cocaine).
Unlike James and Munoz-Realpe, however, the evidence in this
case is unambiguous--the record discloses no indication that the
cocaine attributed to Alphonse and Hughey was any form of cocaine
base other than crack. See United States v. Hall, 109 F.3d 1227, 1235-
36 (7th Cir. 1997). The DEA agent testified that the larger package
of drugs contained an off-white rocky substance that, based on his
experience, he believed was crack cocaine. Moreover, a forensic
chemist testified that the drugs were crack cocaine and that the
4
absence of sodium bicarbonate did not conclusively determine
whether or not the drugs were crack cocaine. Finally, Defendants
offered no proof that the drugs were any other form of cocaine base.
We therefore find that the district court's factual finding that the
cocaine was crack cocaine for purposes of the sentencing guidelines
was not clearly erroneous and that the court properly sentenced
Defendants based on crack cocaine.
Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
5 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561742/ | 565 A.2d 627 (1989)
In re Harold B. PEEK, A Member of the Bar of the District of Columbia Court of Appeals.
No. 89-128.
District of Columbia Court of Appeals.
Argued September 7, 1989.
Decided November 3, 1989.
*628 Elizabeth A. Herman, Office of Bar Counsel, Baltimore, Md., for the Bd. on Professional Responsibility, majority report.
Joan L. Goldfrank, Executive Atty., for the Bd. on Professional Responsibility, minority report.
John W. Karr, Washington, D.C. for respondent.
Before FERREN and FARRELL, Associate Judges, and GALLAGHER, Senior Judge.
FERREN, Associate Judge:
This disciplinary proceeding presents two principal questions: (1) whether an attorney's chronic depression at the time of misconduct may be used as a mitigating factor in fashioning the appropriate disposition, and (2) if so, whether the attorney's depression may serve as the basis for imposing a period of probation, premised on mitigation, that exceeds the period of suspension from the practice of law that would otherwise be warranted. The Board on Professional Responsibility found respondent had neglected a legal matter entrusted to him, DR 6-101(A)(3), had intentionally failed to seek a client's lawful objectives, DR 7-101(A)(1), and had engaged in conduct involving misrepresentation, DR 1-102(A)(4). Respondent offered medical evidence of his chronic depression and, at the hearing before the Hearing Committee, consented to a two-year period of probation. When the matter came before the Board, a majority found a causal nexus between respondent's depression and his professional misconduct and recommended four months' suspension from practice, with two months of suspension stayed on condition that respondent comply with the terms of a two-year supervised probation. Respondent filed no objection to this recommendation. A minority of the Board, however, found no causal nexus between respondent's depression and his misconduct and, accordingly, recommended the full four-month suspension without a stay, followed by a two-year period of supervised probation. We adopt the findings of the Board majority as well as the disposition it recommends.
I.
In March 1978, respondent Peek agreed to represent complainant in a civil suit. Complainant had filed a complaint with the Metropolitan Police Department alleging that, on March 8, 1978, she had been forcibly abducted from a common area of her apartment building, dragged into an adjacent, unlocked, abandoned laundry room, and forcibly raped. Three years later on March 7, 1981, the last day before the statute of limitations for bringing the civil suit expired, respondent filed a complaint in Superior Court. Summonses were issued for three defendants. The first two defendants were served promptly and answered the complaint. The third defendant was never served, however, and did not answer.
Because respondent never obtained service on the third defendant, the case was not set for trial. Nor did respondent undertake any discovery. On January 29, *629 1985, the two defendants who had answered filed motions to dismiss for failure to prosecute, pursuant to Super.Ct.Civ.R. 41(b). Respondent failed to oppose; the motions were granted with prejudice. Respondent took no action to reinstate the complaint within the time permitted by local court rules.
Throughout this period, complainant telephoned respondent on many occasions to ascertain the status of her claim. Respondent failed to return most of these calls. When complainant was able to reach respondent, he assured her that everything "was fine." In February 1986, complainant contacted an attorney in Miami, Florida, where complainant had moved. That attorney called, as well as wrote, respondent to inquire about complainant's case but received no answer.
On April 7, 1986, respondent wrote complainant a letter explaining:
Your case is sitting in limbo right now, but I am taking the steps to get it on the calendar as soon as possible. This requires a motion which will be filed this week. It will be several weeks before a date is set, but I will be in touch with you before then.
Respondent apologized for the delay, attributing it to personal problems. After receiving the letter, complainant retained Steven M. Pavsner, an attorney in the District of Columbia, to assist in determining the status of her claim. Pavsner reviewed the court jacket and discovered that the case had been dismissed with prejudice.
On May 9, 1986, Pavsner wrote to respondent, indicating he would give respondent ten days to seek vacation of the judgment. Approximately five days later, Pavsner spoke by telephone with respondent, who asked for a little more time to complete his work. Respondent, however, never filed a motion to vacate. On May 22, 1986, Pavsner filed a malpractice action for complainant against respondent in the United States District Court for the District of Columbia. The case was settled in February 1987.
II.
On July 3, 1986, Bar Counsel, who had learned of complainant's lawsuit, wrote to respondent about complainant's allegations of misconduct. On April 29, 1987, respondent replied, through counsel, that "extreme depression and a personal decline" had "impaired his ability to conduct his law practice."
Bar Counsel filed a petition instituting formal disciplinary proceedings, alleging that respondent had violated four Disciplinary Rules, as summarized by the Board:
A. Rule 6-101(A)(3), for neglect of a legal matter by allowing a suit which Respondent had filed on behalf of [complainant] to be dismissed for failure to place the cause at issue and by failing to take any action to reinstate the matter.
B. Rule 7-101(A)(1), for an intentional failure to achieve his client's lawful objectives by taking no action on behalf of [complainant] after Respondent had been given several opportunities to do so.
C. Rule 1-102(A)(4), for conduct involving misrepresentation by stating to his client that her case was still pending when, in fact, it had been dismissed.
D. Rule 2-110(B)(3), for failure to withdraw from his representation of [complainant] when Respondent knew that his mental or physical condition rendered it unreasonably difficult for him to carry out his employment on behalf of [complainant].
The Hearing Committee found clear and convincing evidence that respondent had violated the first three disciplinary rules as charged (but not the fourth).
In evaluating respondent's emotional state in mitigation of sanction, the Hearing Committee considered letters in the record from two psychiatrists: Dr. Eleanor A. Sorrentino, respondent's therapist, and Dr. Thomas Goldman, Bar Counsel's retained expert. Both professionals agreed that respondent had been suffering from chronic depression. Dr. Goldman described respondent's condition as
characterized by low mood, suicidal ideas without serious suicidal intent, social withdrawal, general disorganization with *630 distinct self-punitive trends, (for example failure to file CJA vouchers for payment for work already completed) and difficulty maintaining his interest and concentration on his legal practice resulting in acts of omission etc., despite a conscious attitude of wishing to do a good job and a generally clear understanding of what his responsibilities are.
Both doctors agreed that, despite this condition, respondent was still able to practice law, although both stressed the need for continued psychiatric counselling and professional monitoring.
As for the connection between respondent's emotional condition and his professional misconduct, Dr. Sorrentino wrote: "In my professional opinion, Mr. Peek's failure to act in a timely manner in his client's behalf in [complainant's] case stemmed directly from his acute depressed state." Dr. Goldman offered no opinion as to the causal nexus between respondent's condition and his disciplinary violations. The Committee made no findings as to the causal nexus between respondent's depressed state and his disciplinary violations, other than to reject any argument that respondent's condition had rendered him wholly unable to perform his professional duties.
As to sanction, both Bar Counsel and counsel for respondent favored a two-year period of supervised probation.[1] Bar Counsel acknowledged that "no attorney suffering from an emotional disability (as opposed to alcoholism) has ever been placed on probation in this jurisdiction" but argued, nonetheless, that respondent would be an appropriate candidate for probation. While agreeing that this was an appropriate case for probation, the Committee believed that respondent's previous disciplinary record,[2] coupled with a lack of contrition for his actions in complainant's case, indicated the need for a brief period of actual suspension from practice.
The Hearing Committee, therefore, recommended a thirty-day suspension, followed by an additional two-year period of suspension to be stayed on two conditions: that respondent continue to receive psychotherapy from Dr. Sorrentino throughout the period of probation unless medically terminated earlier by Dr. Sorrentino, and that respondent meet with a lawyer designated to monitor his practice not less than biweekly during the period of probation. Both respondent and Bar Counsel consented to the Hearing Committee's recommended disposition, and neither filed an objection with the Board.
The Board agreed with the Committee's findings that respondent had violated Disciplinary Rules 6-101(A)(3), 7-101(A)(1), and 1-102(A)(4) but differed with the Committee as to the appropriate sanction. The Board compared respondent's misconduct to the misconduct in In re Dory, 528 A.2d 1247 (D.C.1987). Dory was a straightforward case: neglect of a legal matter entrusted to the attorney, failure to seek a client's lawful objectives, and failure to carry out an employment contract. There, the Board recommended, and we imposed, a thirty-day suspension.[3] In the present case, however, the Board reasoned that, because of the added element of misrepresentation involved, respondent's transgressions warranted a stiffer penalty than the thirty days assessed in Dory. The misrepresentation in this case did not appear as extreme to the Board as the misrepresentation at issue in In re Reback, 513 A.2d 226 (D.C.1986) (en banc), where we imposed a six-month suspension for counsel's attempt to cover up neglect by forging the client's name on a substitute complaint and then lying about the signature in order to have the forged complaint notarized. Accordingly, after reviewing Dory, Reback, and *631 other cases, the Board unanimously agreed that, absent the emotional disability factor, respondent's conduct warranted a four-month suspension.
III.
The next question how respondent's emotional difficulties should affect the disposition of this case, if at all created a division within the Board. All nine members agreed that diagnosable chronic depression could be a mitigating factor if expert testimony demonstrated a causal relationship between the depression and the ethical default. A Board majority found that causal nexus here; two members did not. As a consequence, the Board majority accepted respondent's depression as a mitigating factor, recommending that we stay two of the four months of suspension and impose a two-year period of probation along the lines proposed by respondent's counsel, by Bar Counsel, by Drs. Sorrentino and Goldman, and by the Hearing Committee.[4] The Board minority, finding no basis for mitigation, voted to leave the four-month suspension intact and, in addition, to impose the two-year probation.
In evaluating whether chronic depression should serve as a mitigating factor, the Board looked for guidance in In re Kersey, 520 A.2d 321 (D.C.1987), where the respondent was disbarred but the sanction was stayed pending satisfactory completion of a five-year period of supervised probation. In Kersey, this court concluded that, when an attorney cites alcoholism in mitigation of a disciplinary sanction, the attorney must show that but for alcoholism, the misconduct would not have occurred. Id. at 327. To make such a showing the attorney must demonstrate that his or her professional conduct was "substantially affected by . . . alcoholism." Id. at 326. See also In re Miller, 553 A.2d 201, 203 (D.C. 1984) (attorney must show by preponderance of the evidence that alcoholism substantially affected charged misconduct).
In the present case, the Board recognized that the Hearing Committee had not made a finding that respondent's depression substantially affected his professional conduct. In accepting the proposal for probation, therefore, the Board majority identified five factors[5] in the record which, in its view, "can serve as a legal surrogate of a specific finding under the Kersey `but for' test of causation for purposes of imposing a period of probation in lieu of all or part of the suspension that the misconduct would otherwise warrant." The majority expressed a concern, however, that by tacking probation onto a period of suspension, the Hearing Committee essentially had treated evidence of respondent's medical condition introduced in mitigation as an aggravating factor instead, using probation *632 as an additional, not lesser, sanction. The majority, therefore, sought to achieve mitigation, despite the lengthy probation, by recommending a stay of two of the four months of suspension provided the latter two months of suspension would be reinstated if respondent violated his probation. The majority recognized that "the proposed sanction of two months' actual suspension plus two years of probation may be viewed by many attorneys . . . as a more onerous sanction than four months' suspension without probation," but the majority premised this recommendation on the fact that "both Bar Counsel and respondent have consented to the recommended bifurcated sanction." Neither respondent nor Bar Counsel filed any exception to the Board majority's recommendation.
Two members of the Board did not agree with the majority's findings of causation. More specifically, they did not find the two therapists' letters persuasive evidence that respondent's depression substantially affected his professional conduct. Consequently, the Board minority recommended against staying a portion of respondent's four-month suspension. The minority acknowledged, however, that there was record evidence that respondent "has and continues to suffer from emotional problems, and that such problems have potential to affect his law practice." (Emphasis added.) The Board minority, therefore, also recommended a two-year period of supervised probation in addition to the suspension.
IV.
District of Columbia Bar Rule XI, § 7(3)[6] provides the appropriate standard for our review of the Board's Report and Recommendation:
[T]he Court shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or otherwise would be unwarranted.
See In re Smith, 403 A.2d 296, 302-03 (D.C.1979).
In the usual case, the Hearing Committee makes factual findings and the Board reviews those findings. See D.C.Bar R. XI, §§ 4(3)(c), 4(3)(g), 5(2)(c), 7(2), 7(3).[7] In this case, however, the Board, not the Hearing Committee, made the critical factual finding: that respondent's chronic depression substantially affected his professional conduct. The Board clearly has authority to find facts. D.C.Bar R. XI, § 4(3)(g)[8] gives the Board the power "[t]o review the findings and recommendations of hearing committees. . . and to prepare and forward its own findings and recommendations . . . to this Court." When making its own factual findings, moreover, the Board must rely on "clear and convincing evidence," the same standard that governs the Hearing Committees. D.C. Court of Appeals Disciplinary Digest, Board Rules ch. 13.6 (1988) (hereafter "Board Rules"), see also Smith, 403 A.2d at 302.
As a preliminary matter, we agree with the Board's unanimous recommendation that, absent consideration of respondent's emotional condition, the misconduct at issue warrants a four-month suspension. The Board properly applied the relevant factors, including (1) the seriousness of respondent's neglect, see In re Knox, 441 A.2d 265 (D.C.1982), (2) the presence of misrepresentation or dishonesty, see In re Haupt, 422 A.2d 768 (D.C.1980), (3) respondent's attitude toward the underlying misconduct, see In re Lieber, 442 A.2d 153 (D.C.1982), (4) prior disciplinary violations, see In re Roundtree, 467 A.2d 143, 147-48 (D.C.1980), and (5) mitigating circumstances, *633 see In re Willcher, 404 A.2d 185 (D.C. 1979). The Board's references to previously reported cases makes clear that this sanction will not "foster a tendency toward inconsistent dispositions for comparable conduct. . . ." D.C.Bar R. XI, § 7(3).[9]
We conclude, moreover, that the Board majority's finding that "Respondent's misconduct was substantially affected by his mental problems" is supported by substantial evidence of record. See id.; Smith, 403 A.2d at 303. Both therapists who offered evidence agreed that respondent suffers from chronic depression. Furthermore, there appears to be no dispute that respondent experienced a particularly acute period of depression during the time in question. Respondent's letter of April 7, 1986, to his neglected client attributed his delay in her case to personal problems. More significantly, the record contains a letter from respondent's psychiatrist offering her professional opinion that respondent's acutely depressed state caused his professional neglect.
It would have been better if the psychiatric testimony had been live and subject to cross-examination and to examination by a Hearing Committee that addressed the causal nexus issue. As it turned out, the Board had to engage in fact-finding, and not all members of the Board were satisfied that the letters from the psychiatrists were convincing on the crucial question of causation. Nonetheless, given the fact that respondent, Bar Counsel, and a majority of the Board were satisfied with the proffered psychiatric testimony, we are comfortable in this particular case with the proof presented. Other cases, however, may not be uncontroverted and thus may require more substantial proof.
We therefore must consider whether the Board's sustainable finding of a causal nexus between respondent's depression and his misconduct warrants a stay of all or part of the four-month suspension, coupled with a period of supervised probation for two years.
V.
Respondent has not contested the proposed stay, coupled with imposition of a two-year probation (including monitoring by medical and professional experts). We are required, nonetheless, to review its suitability. See D.C. Bar R. XI, § 7(3).[10] Furthermore, this is the first instance, other than a case of reciprocal discipline,[11] where the Board has recommended a term of probation that exceeds the period of suspension which would otherwise be imposed. Cf. In re Kersey, 520 A.2d 321 (D.C.1987) (imposing five-year probation in lieu of non-permanent disbarment).
We agree with the concern of the Board majority that a lengthy period of probation in addition to, or even in lieu of, a shorter period of suspension may amount to a greater, not a lesser, sanction. The question, then, is how, if at all, a lengthy period of probation can properly be used to reflect mitigation (in contrast with enhancement) of sanction for a disciplinary violation.
With respect to diagnosable, chronic depression we conclude as a general rule, first, that unless a causal nexus can be shown between the depression and the misconduct, the depression can be used neither in mitigation, cf. Kersey, nor for enhancement, see D.C.Bar R. XI § 3(7),[12] of sanction. If a causal connection is not shown, depression that is insufficient for mitigation cannot be sufficient for a sanction, such as probation, imposed in addition to the maximum sanction that otherwise would be warranted. For this reason, the Board minority's recommendation the four-month suspension required for the misconduct plus a two-year, supervised probation based merely on the "potential" *634 impact of respondent's depression on his practice of law is unacceptable.
We conclude, second, that when, as in this case, the respondent himself proffers evidence of chronic depression at the time of the alleged misconduct and consents to the recommended probation, we can appropriately approve an extended, supervised period of probation in lieu of all or part of a shorter period of suspension.[13] Absent objection, we cannot conclude that a respondent attorney will be aggrieved by a long probationary term that affords an obvious advantage: the continuation or early resumption of a law practice that otherwise would be suspended.
We reserve for another day various questions about the use of probation in a disciplinary proceeding, pursuant to the amended D.C.Bar R. XI § 3(a)(7), to increase the sanction, over objection, beyond the sanction that otherwise would be indicated. We note the possible interplay between the use of probation "in lieu of, or in addition to, any other disciplinary sanction," id., and the use of probation in connection with a disability proceeding, see id. § 13(c); Board Rules ch. 14.6(a)(3) (providing for Bar Counsel to seek court-ordered suspension or probation pursuant to D.C.Bar R. XI § 16(3) [amended Rule XI § 13(c)] with documentary proof that attorney is incapacitated by "disability or addiction").
On this record and analysis, we order that respondent, Harold B. Peek, be suspended from the practice of law in the District of Columbia for a period of four months, effective thirty days from the date of this order. Execution of the final two months of this suspension shall be stayed, provided respondent complies with the following conditions of probation for a period of two years beginning on the effective date of his resumption of practice after the initial two months of suspension:
1. Supervision of respondent's professional conduct by a practice monitor selected by the Board on Professional Responsibility sufficient to make reasonable determinations at appropriate intervals that respondent is not neglecting any legal matter entrusted to him or attempting to conceal any such prior neglect. At the beginning of each calendar quarter year, the practice monitor will submit to the Board Office (Executive Attorney) a progress report on respondent's professional conduct.
2. Counselling by Dr. Eleanor A. Sorrentino (or other medical expert acceptable to the Board on Professional Responsibility) on a weekly basis, or less frequently if so recommended by such medical expert, who will in any event submit monthly reports to the Board Office (Executive Attorney) concerning respondent's participation and progress in such counselling.
We further order that the Executive Attorney of the Board submit a copy of each monitor's report to Bar Counsel and to the Lawyer Counselling Committee of the District of Columbia Bar. If either monitor reports, or if Bar Counsel alleges, or if the Lawyer Counselling Committee advises the Board Office, that there is reasonable cause to believe a violation of any of the above terms of probation has occurred, the Board on Professional Responsibility shall promptly convene an evidentiary hearing before a Hearing Committee with directions to submit a report to the Board as soon as practicable. If the Board finds any violation of the terms of probation, the probation shall be revoked immediately and the previously stayed two months' suspension shall be reinstated and become effective ten days after the date the Board submits to the court its report that respondent has violated the terms of probation.
In the event that respondent were to violate his probation, this order shall be without prejudice to Bar Counsel's instituting proceedings pursuant to amended Rule XI § 13(c) (attorneys who may be incapacitated).
So ordered.
NOTES
[1] Bar Counsel proposed that respondent be suspended from the practice of law for six months, that the entire period of the suspension should be stayed, and that respondent should be placed on probation for two years.
[2] Previously, respondent had received two informal admonitions: one involving neglect, the other involving loss of client documents and failure to return papers when requested.
[3] Dory had repaid the client's $500 retainer after the Board had included restitution in the recommended sanction.
[4] The Board's recommendation as to probation read, in part, as follows:
2. Execution of the final two months of suspension is hereby stayed contingent upon Respondent's continued compliance with all applicable conditions of probation set forth in paragraph 3 below.
3. Respondent is hereby placed on probation for a period of two years commencing on the effective date of Respondent's suspension pursuant to paragraph 2 above.
(Emphasis added.) We assume the Board meant to say that probation commences on the effective date of the stay of respondent's suspension, i.e., on the date when respondent resumes practice. To read the Board's report as recommending that respondent be placed on probation at the same time he is ordered to begin his suspension would be contrary to the normal understanding that probation is in lieu of another sanction. Furthermore, one of the two recommended conditions of probation is professional monitoring, which cannot possibly take place while respondent is suspended from practice.
[5] The Board listed the following factors:
(1) Respondent has received treatment over a number of years for chronic depression; (2) Respondent's misconduct in this case occurred in a period during which his depression was severe and was not under control; (3) Respondent's doctor concluded that "his failure to act in a timely manner in [complainant's] case stemmed directly from his acute depressed state"; (4) both medical experts who provided evidence in this proceeding believe that Respondent's depression is now sufficiently under control to allow him to practice law responsibly; and (5) the Hearing Committee recommended, and both Bar Counsel and Respondent have accepted by consent, a period of probation with conditions related to Respondent's medical problems.
[6] D.C.Bar R. XI was amended effective September 1, 1989. Our citations here refer to the previous version of Rule XI, as that was the governing rule at the time of the misconduct and the disciplinary proceedings before submission to this court. The amended Rule XI does not differ from the previous Rule XI in any way that is material to this case. The language cited above is found in amended Rule XI, § 9(g).
[7] Amended Rule XI, §§ 4(e)(4), 4(e)(7), 5(c)(2), 9(a), 9(c).
[8] Amended Rule XI, § 4(e)(7).
[9] Amended Rule XI, § 9(g).
[10] Amended Rule XI, § 9(g).
[11] See In re Hirschberg, 565 A.2d 610 (D.C.1989) (imposing one-year suspension that was stayed conditioned on two-year probation, where respondent had already received same sanction from Supreme Court of Wisconsin for billing clients for 807 personal phone calls).
[12] Amended Rule XI, § 3(a)(7).
[13] See amended D.C.Bar R. XI § 3(a)(7) (providing for imposition of probation by Board with consent of attorney and approval by court). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561751/ | 138 A.2d 308 (1958)
APPLIANCE ACCEPTANCE CO.
v.
Robert B. RAYMOND, Hazel M. Raymond.
No. 1290.
Supreme Court of Vermont. Windsor.
January 7, 1958.
Russell A. Clark, Jr., Springfield, Bernard R. Dick, Rutland, for plaintiff.
William F. Kissell, Tony F. Kissell, Bellows Falls, for defendants.
Before CLEARY, ADAMS, HULBURD and HOLDEN, JJ., and SYLVESTER, Superior Judge.
HOLDEN, Justice.
The defendants by this appeal seek to obtain a review of an order of one of the superior judges. The bill of exceptions is directed to an order signed by a superior judge, which adjudged the affidavit of defense filed by the defendants to be insufficient.
It appears from the record that the plaintiff instituted a collection suit as defined by Rule 9 of the Rules of County Court, 1946. The defendants thereafter filed an affidavit of defense as provided in Rule 9(2).
Thereupon the plaintiff questioned the sufficiency of the affidavit by notice in writing. The defendants, relying on their affidavit, notified the plaintiff to appear before a superior judge for hearing as provided in Rule 9.
*309 The order sought to be reviewed states the matter came on for hearing before the Honorable Milford K. Smith, Superior Judge. The affidavit of defense was adjudged insufficient. The order further provides: "Pursuant to Section 2124, V.S.1947, the undersigned Superior Judge, in his discretion, passes the foregoing to the Supreme Court before final judgment for hearing and determination of the exceptions taken and allowed."
V.S. 47, § 2124 provides: "When exceptions are taken and filed in a civil or criminal cause or proceeding in county court or court of chancery, in its discretion, such court may pass the same and such cause or proceeding to the supreme court before final judgment, for hearing and determination on the exceptions; and the supreme court shall hear and determine the question upon such exceptions and render final judgment thereon, or remand the same to the county court, as seems just."
The statute upon which this appeal is founded conveys no authority to review the decision of a superior judge. It does not provide for the transfer of a cause before final judgment on the order of a superior judge, acting alone.
In the absence of a constitutional requirement, the Supreme Court has the power of appellate review only where the right is conferred by statute. Johnson v. Rickard, 115 Vt. 514, 515, 66 A.2d 23; Stevens v. Wright, 108 Vt. 359, 360-361, 187 A. 518; Cutting v. Cutting, 101 Vt. 381, 384, 143 A. 676. The right to review by this Court is granted or withheld at the election of the legislature. State v. Ploof, 116 Vt. 93, 96, 70 A.2d 575; Roddy v. Fitzgerald's Estate, 113 Vt. 472, 475, 35 A.2d 668; In re Walker Trust Estate, 112 Vt. 148, 151, 22 A.2d 183; Miles Block Co. v. Barre & Chelsea R. Co., 96 Vt. 526, 527, 121 A. 410. Thus far, the legislature has withheld authority to review the decision of a single superior judge. Stevens v. Wright, supra, 108 Vt. at page 360, 187 A. at page 519; Bagley v. Tudor, 108 Vt. 163, 164, 183 A. 335; Cutting v. Cutting, supra, 101 Vt. at page 384, 143 A. at page 677.
The Supreme Court is without jurisdiction to determine the defendants' exception. Since the defect is jurisdictional, we are required to dismiss the defendants' exceptions at our own instance. In re Estate of Towner, 117 Vt. 554, 555, 97 A.2d 538; Beam v. Fish, 105 Vt. 96, 99, 163 A. 591; Page v. Page's Adm'r, 91 Vt. 188, 189, 99 A. 780.
Exceptions dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561785/ | 26 N.J. 33 (1958)
138 A.2d 529
EDWARD BIGLIOLI, GENERAL ADMINISTRATOR OF THE ESTATE OF ETHEL BIGLIOLI, DECEASED, PLAINTIFF-APPELLANT,
v.
DUROTEST CORPORATION, A CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT.
EDWARD BIGLIOLI, ADMINISTRATOR AD PROSEQUENDUM OF ETHEL BIGLIOLI, DECEASED, PLAINTIFF-APPELLANT,
v.
DUROTEST CORPORATION, A CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT.
The Supreme Court of New Jersey.
Argued November 25, 1957.
Decided February 3, 1958.
*34 Mr. Aaron Gordon argued the cause for appellant.
Mr. Robert Shaw argued the cause for respondent (Messrs. Shaw, Pindar, McElroy & Connell, attorneys).
The opinion of the court was delivered by HEHER, J.
The gravamen of these actions in tort for negligence is the wrongful exposure of plaintiff's decedent, Ethel Biglioli, in the course of her employment with the defendant corporation, to "beryllium and its various compounds and combinations" used in the manufacture of fluorescent and incandescent electric light bulbs.
The first action was brought February 26, 1952 by Ethel Biglioli herself. The complaint alleged total permanent disability from the inhalation of toxic beryllium dust and fumes while in the pursuit of her work. Her death, August 13, 1952, in consequence of the injury thus pleaded, as is said, was followed by the substitution of her general administrator as the plaintiff in the action and the bringing of *35 plaintiff's suit as administrator ad prosequendum under the Death Act, N.J.S. 2A:31-1 et seq.
There was summary judgment for defendant in each action in the Hudson County Court; and the Appellate Division of the Superior Court affirmed. The case is here by our certification.
As stated by Judge Clapp in the Appellate Division, 44 N.J. Super. 93 (1957), the facts were orally stipulated by the attorneys "[f]or the purposes of the motion for summary judgment." Defendant had made use of beryllium in a manufacturing process "for some considerable time prior to January 1, 1950, but never on or after that date, and had exposed Miss Biglioli to the beryllium up until a certain day in October 1949, but not subsequently"; "[o]n that day she left work and never returned to it, except for two days in January and again on February 27, 1950, which was the last day of her employment"; she "became ill in 1947 toward the latter part of the year"; she "was treated by doctors for stomach trouble, for what they diagnosed as colds, but nobody told her that she had beryllium and beryllium did not develop in her and she did not know she had it until after she had stopped working on February 27, 1950"; the "beryllium poisoning of her lungs did not develop, was not manifest or diagnosed until 1951 in July when they had a test done at Trudeau Sanatarium in Saranac Lake"; "[t]hen and only then in July of 1951 was there a manifestation that she had this condition"; "[t]hen and only then can we assume because if her doctors didn't know it, how could she have known it did she know that she had any condition which could be attributed to her exposure in the plant."
The County Court held that defendant "used no beryllium in its factory at anytime during the year 1950," and the deceased employee "suffered no exposure to beryllium * * * subsequent to January 1, 1950"; and "after that date there was no wrongful act by the defendant causing injury to the plaintiff"; the "statute of limitations started to run from the last wrongful act * * *, that is, * * * *36 the exposure to beryllium," and the bar of the statute became effective two years thereafter, "regardless of when plaintiff discovered that her illness" was the consequence of the pleaded wrongful act.
The significance of January 1, 1950 is that beryllium poisoning was not, prior to that date, a "compensable occupational disease" under section 2 of the Workmen's Compensation Act, R.S. 34:15-7 et seq., but was brought within its coverage by the amendment of sections 30 and 31 made by L. 1949, c. 29, N.J.S.A. 34:15-30; 34:15-31, effective on the given day.
In the Appellate Division, Judge Clapp ruled that "* * * if a definite bodily impairment occurs after January 1, 1950 as a result of berylliosis, a right to compensation accrues under the statute at, or possibly subsequent to, the time of the impairment," to the exclusion of the common-law remedy for negligence; and that, on the contrary hypothesis, the statute of limitations, N.J.S. 2A:14-2, bars an action for negligence. This, on the assumption, citing Tortorello v. Reinfeld, 6 N.J. 58 (1950), among other cases, that the common-law cause of action "accrues * * * on the conjunction of two events, the wrongful act and the injury," and here "the last wrongful act or acts occurred in October 1949 when she was last exposed to beryllium, and (under the assumption above made) the injury occurred prior to January 1, 1950," and if she suffered "a definite bodily impairment as a result of the beryllium" before then, the pleaded causes of action are barred by the statute of limitations; and if her own action for negligence was barred, no right of action for negligence vested on her death in her administrator ad prosequendum and the statutory beneficiaries under the Death Act, N.J.S. 2A:31-1; 2A:31-4, citing Knabe v. Hudson Bus Transportation Co., 111 N.J.L. 333 (E. & A. 1933); Turon v. J. & L. Construction Co., 8 N.J. 543 (1952).
The amended section 30 of the Compensation Act, N.J.S.A. 34:15-30, effective January 1, 1950, provides that when "employer and employee have accepted the provisions *37 of this article as aforesaid," compensation for personal injuries or death suffered by the employee "by any [work-connected] compensable disease" shall be made as therein directed, save when the injury or death is caused by "willful self-exposure to a known hazard with the intention of contracting an occupational disease." And the amended section 31, N.J.S.A. 34:15-31, defines the phrase "compensable occupational disease" to "include all diseases arising out of and in the course of employment, which are due to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or employment, or which diseases are due to the exposure of any employee to a cause thereof arising out of and in the course of his employment." This all-embracive definition supplants the prior specific enumeration of compensable occupational diseases not inclusive of berylliosis.
The compensation for death or "disability total in character and permanent in quality" attributable to an occupational disease is the same in amount and duration as for "death or disability" caused by a compensable "accident"; also the mode of determining the "duration of temporary and permanent partial disability, either or both, and the duration of payment for the disability due to occupational diseases" shall be according to "the same rules and regulations" as are applicable to "accident or injury." R.S. 34:15-32.
Section 33, as amended by L. 1948, c. 468, N.J.S.A. 34:15-33, provides that no compensation shall be payable for death or disability by occupational disease unless the employer "during the continuance of the employment shall have actual knowledge that the employee has contracted a compensable occupational disease," or unless the employee, or someone on his behalf, or some of his dependents, or someone on their behalf, shall give to the employer written notice or claim that the employee has contracted such disease, such notice to be given "within a period of five months after the date when the employee shall have ceased to be subject to exposure" to the disease, "or within ninety days after the employee knew or ought to have known the nature of *38 his disability and its relation to his employment, whichever period is later in duration, * * *."
And section 34, as amended by L. 1948, c. 468, N.J.S.A. 34:15-34, bars all claims for compensation for occupational disease unless a petition is filed with the Bureau "within two years after the date on which the employee ceased to be exposed in the course" of the employment to such disease, "or within one year after the employee knew or ought to have known the nature of his disability and its relation to his employment, whichever period is later in duration." There is a time limitation also where there has been a default in the payments provided for in an agreement of compensation, and where "a part of the compensation" has been paid by the employer; and there is an overall provision that, at all events, claims for compensation for such disease shall be "forever barred" unless a petition is filed "within five years after the date on which the employee ceased to be exposed" in the course of the employment to the disease, provided that in the event of the death of an employee who has been paid compensation on account of such disease, a petition on behalf of the dependents shall be timely if filed within two years after the last payment to the employee, even though such two-year period, or a part thereof, extends beyond the given five-year period.
The contention is that the act of 1949 enlarging the occupational disease coverage of the Compensation Act, "effective January 1, 1950," is "not retroactive in language or in intent and if the Legislature had endeavored to make [such provisions] retroactive," the statute "would be invalid," as in contravention of Article IV, section VII, paragraph 3 of the 1947 State Constitution, forbidding the passage of "any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or depriving a party of any remedy for enforcing a contract which existed when the contract was made," citing J.W. Ferguson Co. v. Seaman, 119 N.J.L. 575 (E. & A. 1938); A.P. Smith Mfg. Co. v. Court of Common Pleas of Essex County, 107 N.J.L. 38 (Sup. Ct. 1930); Erie Railroad Co. v. Callaway, 91 N.J.L. *39 32 (Sup. Ct. 1917); Baur v. Court of Common Pleas, 88 N.J.L. 128 (Sup. Ct. 1915).
It is said in argument that the word "were" in the amended section 31, N.J.S.A. 34:15-31, "is not indicative of the intent * * * to give the statute a retroactive effect to prior noncompensable occupational diseases," but "only applies to occupational diseases suffered from exposure * * * occurring on and after January 1, 1950, which were due to exposure during period from and after January 1, 1950 and before a claim petition is filed," and here "there is no remedy available" under the Compensation Act for the worker's death "because all of her exposure to beryllium occurred before January 1, 1950 and not after that date, * * * even though she worked for defendant on several days in 1950."
Compulsory compensation, in lieu of the employer's common-law responsibility for negligence or default of duty, is comprehended in the police power reserved to the States; the principle of compensation is grounded in reason and natural justice, said Mr. Justice Pitney in New York Central R. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667 (1917), and the provisions of the particular act constituting such exercise of sovereignty are to be assayed accordingly.
But ours is an elective or optional system, contractual in nature, the first of its kind in this country, deemed the preferable course as a matter of social policy or as a means of avoiding the constitutional challenge later overruled in New York Central R. Co. v. White, supra. By mere inaction, the parties to the contract of service impliedly stipulate for the payment of compensation under Article 2 of the act, headed "Elective Compensation," for the disabling consequences of an accident of the statutory class. Miller v. National Chair Co., 127 N.J.L. 414 (Sup. Ct. 1941), affirmed 129 N.J.L. 98 (E. & A. 1942).
The Compensation Act enters by operation of law into every contract of hiring made within this State, unless there be an affirmative disavowal of the scheme for the alternative *40 common-law liability for negligence as modified by the provisions of Article 1 of the act. The "agreement" may be "either express or implied," R.S. 34:15-7; and unless there be, R.S. 34:15-9, "as a part of such contract an express statement in writing prior to any accident, either in the contract itself or by written notice from either party to the other," that the provisions of Article 2 "are not intended to apply, then it shall be presumed that the parties have accepted the provisions" of that article "and have agreed to be bound thereby." Thus, reality of consent is not an indispensable element, although it may exist in the individual case, for Article 2 is applicable even though the parties did not know of the existence of the statute or, knowing, did not in fact have it in view, in such circumstances an agreement "implied by the law," quasi-contractual in nature. And the compensation provided by Article 2 is exclusive of all else; there can be no other recovery or measure of compensation in cases ruled by its terms. Miller v. National Chair Co., supra. See also Sexton v. Newark District Telegraph Co., 84 N.J.L. 85 (Sup. Ct. 1913), affirmed 86 N.J.L. 701 (E. & A. 1914); J.W. Ferguson Co. v. Seaman, supra; Streng's Piece Dye Works, Inc. v. Galasso, 118 N.J.L. 257 (E. & A. 1937). Article 2 of the act is designed to provide social insurance in the common and individual interest. Young v. Sterling Leather Works, 91 N.J.L. 289 (E. & A. 1917); Imre v. Riegel Paper Corporation, 24 N.J. 438 (1957).
Here, the employer and employee had indisputably accepted the provisions of Article 2 of the act, as amended by the 1949 statute cited supra, at the time when the employee's service was terminated by the disability then not known to be work-connected. And while the amended section 30, L. 1949, c. 29, N.J.S.A. 34:15-30, allows compensation for "personal injuries" or death, the amended section 33, L. 1948, c. 468, N.J.S.A. 34:15-33, speaks of compensation payable for "death or disability by occupational disease," in limiting the time for notice to the employer that the employee "has contracted a compensable occupational disease."
*41 Disability, actual or presumed, measures the employer's obligation to render compensation. Everhart v. Newark Cleaning & Dyeing Co., 119 N.J.L. 108 (E. & A. 1937). There, compensation was allowed for "disfigurement, in addition to the strictly functional loss ensuing from the scars," as within the provision for "disability" resulting from "personal injuries" bearing the statutory relation to the employment; the test under the cited provision of the act was held not to be "the immediate impairment of the earning power," but rather the "loss ensuing from personal injury which detracts from the `former efficiency' of the workman's `body or its members in the ordinary pursuits of life'"; the benefits given by the particular provision were deemed to be "in the nature of an indemnity for the personal injuries sustained, rather than for the mere loss of earning power."
This interpretive principle was applied in Sutkowski v. Mutual Chemical Co. of America, 115 N.J.L. 53 (Sup. Ct. 1935), where the workman suffered a perforation of the nasal septum from a service-connected use of chrome, a permanent condition not serious in its immediate consequences; there was no disablement, no interruption of service, and no loss of earnings; an award was made at the rate of five percent of total permanent disability for "a functional loss, permanent in quality," even though the worker's "capacity to render the service at which he was engaged was not thereby impaired, or his earning power diminished"; the provision of the act that compensation shall not accrue until there has been seven days' disability was held to be inapplicable, as a measure relating to temporary disability.
The old Court of Errors and Appeals read the statute as intending that compensation for an occupational disease, in that case benzol poisoning, be determinable "when the disability or death occurred"; compensable "disability" from an occupational disease "must necessarily occur when the employee is incapacitated for work." Textileather Corporation v. Great American Indemnity Co., 108 N.J.L. 121 *42 (E. & A. 1931). See also Natural Products Refining Co. v. Hudson Common Pleas, 123 N.J.L. 522 (Sup. Ct. 1940), affirmed 125 N.J.L. 309 (E. & A. 1940); Belanowitz v. Travelers Insurance Co., 123 N.J.L. 574 (Sup. Ct. 1940), affirmed 125 N.J.L. 301 (E. & A. 1940); Koval v. Natural Products Refining Co., 25 N.J. Misc. 489 (Sup. Ct. 1947).
And in a review of the cited cases, this court, Mr. Justice Case speaking, held that "* * * the status of compensability from such an occupational disease as chrome poisoning may be attained when * * * a definite fault akin to a traumatic injury occurs." Calabria v. Liberty Mutual Insurance Co., 4 N.J. 64 (1950).
There was no such showing here, that is to say, a definite fault akin to a traumatic injury, but rather a continuing, progressive occupational disease although not then known to be such, even by the attending physicians that culminated in disability total in character and permanent in quality and only then became compensable as such, at a time when berylliosis was a compensable occupational disease under a system of compensation that had had the parties' prior mutual acceptance. This is not a case of a known partial permanent injury as, e.g. in Sutkowski see also Cleland v. Verona Radio, Inc., 130 N.J.L. 588 (Sup. Ct. 1943) but the consequence of a progressive occupational disease from successive exposures to a poisonous element that becomes compensable when it becomes disabling. It is disability that is to be compensated, not the mere loss of physical function that detracts from the former efficiency of the body or its members in the ordinary pursuits of life and yet has had no immediate effect upon earning power.
In principle compensation, apart from medical benefits, is a recompense, not for physical injury as such, but for "disability" ensuing from such injury; "[f]ixed payments for loss of specified members are due even if the claimant during the period is back at work at higher wages than before"; the loss is measured in terms of permanent disability, even though there be no immediate impairment of *43 earning ability, described as a benefit of "arbitrary character," yet a disability from a service-induced injury that presumably affects earning capacity. Larson, Workmen's Compensation Law, sections 2.40; 57.10. See also section 95.21.
This concept of disability benefits for an occupational disease is implicit in the limitation periods, N.J.S.A. 34:15-33; 34:15-34, made to run from the time when the employee's exposure to the disease shall cease or within the given time after the employee knew or ought to have known of the nature of his "disability" and its relation to his employment, whichever period is later in duration.
Indeed, appellant's counsel argues, citing Church of Holy Communion v. Paterson Extension R.R. Co., 66 N.J.L. 218 (E. & A. 1901), that here the "exposure was the wrongful act and the beryllium poisoning, which was manifest, when ascertained, in July 1951, was the injury the loss resulting from that wrongful act," and there was "then and only then, in July 1951, a coalescence or combination of `damnum and injuria' giving rise to a cause of action at law," and the two-year limitation period did not begin to run until then. And, as said, it was stipulated that the "beryllium did not develop in [the stricken employee]" until after January 1, 1950.
Certain it is that when disability became a fact, subsequent to January 1, 1950, the extended occupational disease coverage under section 2 of the Compensation Act had become an integral part of the contract of service, and the compensation thus afforded is the exclusive measure of relief, by the employee's own choice. The employment continued after January 1, 1950, and service as well. We need not consider now whether these are in themselves conclusive considerations.
And it goes without saying that the statute, so applied, does not infringe constitutional principle.
A petition for compensation under section 2 of the statute is pending in the Compensation Bureau, awaiting the outcome of these proceedings.
*44 We have no occasion to review the holding of the Appellate Division that on the contrary hypothesis the last wrongful act occurred in October 1949, when the employee was last exposed to beryllium, and thus "the injury occurred prior to January 1, 1950," and if she suffered "a definite bodily impairment as a result of beryllium" before then, an action in tort for negligence would be barred by the Limitation Act.
By force of the statute itself, the limitation period in proceedings for compensation does not begin to run until the employee knows or ought to have known the nature of his disability and its relation to his employment. See Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). The injustice of the rule barring actions in tort for negligence in a comparable context unless brought within two years after the cause of action shall have "accrued" was long since demonstrated by Justice Oliphant, then sitting in the old Circuit Court, in Hughes v. Eureka Flint and Spar Co., Inc., 20 N.J. Misc. 314 (Cir. Ct. 1939). And see Weinstein v. Blanchard, 109 N.J.L. 332 (E. & A. 1932); Church of Holy Communion v. Paterson Extension R.R. Co., supra; also Emerson v. Gaither, 103 Md. 564, 64 A. 26, 8 L.R.A., N.S., 738 (Ct. App. 1906). It would seem that a concession to fairness is indicated where one, through no fault of his own, does not know and cannot know of his cause of action until after the limitation period has expired. It is a matter of accommodating competing considerations of policy, between repose against stale claims and the prejudicial consequences of undue delay and the just rights of the injured person who did not have and could not have had timely knowledge of his right of action, ordinarily a legislative function.
As to policy, in A'Court v. Cross (1825), 3 Bing. 329, 332, Best, C.J. said: "Long dormant claims have often more of cruelty than of justice in them." And more recently, in Board of Trade v. Cayzer, Irvine & Co., Ltd., [1927] A.C. 610, 628, Lord Atkinson declared: "The whole purpose of the Limitation Act is to apply to persons who *45 have good causes of action which they could, if so disposed, enforce, and to deprive them of the power of enforcing them after they have lain by for a number of years respectively and omitted to enforce them. They are thus deprived of the remedy which they have omitted to use."
Affirmed.
For affirmance Chief Justice WEINTRAUB, and Justices HEHER, WACHENFELD, BURLING, JACOBS and PROCTOR 6.
For reversal None. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858151/ | howard v. casey
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-091-CV
BRENT HOWARD,
APPELLANT
vs.
MICHAEL E. CASEY,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. 91-6574, HONORABLE JERRY A. DELLANA, JUDGE PRESIDING
This is an appeal from a personal injury action arising out of an automobile
accident in which appellant Brent Howard was a passenger in a vehicle operated by appellee
Michael Casey. On appeal, Howard argues the trial court abused its discretion by denying his
motion for new trial because the jury's failure to award damages in the case was against the great
weight and preponderance of the evidence. We will affirm the trial court's judgment.
FACTS
On November 5, 1989, at approximately 1:00 a.m., Howard, Casey and another
person were traveling along the outskirts of Ruidoso, New Mexico. Casey was driving, with
Howard and the other person as passengers. Casey lost control of the car and, in an effort to
regain control, drove into a ravine. No one reported serious injuries at the scene; however, the
next day Howard went to the Texas Tech University Health Services Center in Lubbock
complaining of back pain. Howard subsequently was sent to Lubbock General Hospital, where
he was admitted and stayed for approximately five days. The doctors diagnosed Howard with a
fracture of the second vertebral body of the lumbar spine.
Howard filed suit against Casey to recover damages for his personal injuries. At
trial the jury found that Casey was negligent, and the trial court rendered judgment based on the
jury's verdict. The jury found damages as follows:
Reasonable and necessary medical expenses incurred in the past: $ 5,613.95
Reasonable and necessary medical expenses which in reasonable medical
probability will be incurred in the future: $ 882.00
Conscious physical pain and mental anguish in the past: $ 4,050.00
Conscious physical pain and mental anguish which will probably occur in the
future: $ 0
Loss of earning capacity: $ 0
Physical impairment: $ 0
Howard filed a motion for new trial, alleging that the jury's failure to award
damages for future physical pain and mental anguish and for impairment was against the great
weight and preponderance of the evidence in the case. The trial court overruled the motion, and
Howard appealed.
STANDARD OF REVIEW
A trial court has broad discretion in ruling on a motion for new trial, and its
decision will not be disturbed on appeal absent a clear abuse of discretion. Strackbein v. Prewitt,
671 S.W.2d 37, 38 (Tex. 1984); Hicks v. Ricardo, 834 S.W.2d 587, 590 (Tex. App.--Houston [1st
Dist.] 1992, no writ). In reviewing a factual sufficiency challenge, an appellate court must
consider and weigh all of the evidence presented in the case, and should set aside the verdict only
if the jury finding is so against the great weight and preponderance of the evidence as to be
manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Hicks, 834 S.W.2d at 590;
Marshall v. Superior Heat Treating Co., 826 S.W.2d 197, 199 (Tex. App.--Fort Worth 1992, no
writ). The appellate court may reverse and remand the case when the jury's findings are against
the great weight and preponderance of the evidence. Balandran v. Furr's, Inc., 833 S.W.2d 648,
650 (Tex. App.--El Paso 1992, no writ).
DISCUSSION
In two points of error, Howard contends the jury's failure to award damages for
future conscious physical pain and mental anguish and for impairment was so against the great
weight and preponderance of the evidence as to be manifestly unjust. Howard argues that by
awarding damages for future medical expenses ($882), the jury implicitly found that Howard
would suffer from future pain and mental anguish. (1) He further argues that the undisputed
testimony and other evidence presented at trial necessitated an award for impairment. The
evidence in the record provides the following:
Dr. Robert King, an orthopedic surgeon consulted by Howard's parents after the
injury, testified by videotaped deposition that after consultation, he diagnosed Howard with a
"compression" fracture of the second vertebral body of the lumbar spine. Dr. King stated that
as a result of the injury, Howard was "more likely" than not to develop arthritic changes in the
injured region and more likely to continue to have some pain associated with certain physical
activities. Later, however, Dr. King clarified this statement by agreeing that everyone is at risk
of developing arthritic changes, but that Howard was simply more predisposed than others. He
further stated that in his opinion, Howard had suffered 5% to 7% permanent impairment to his
body. Dr. King defined "impairment" as a term which attempts to quantify conditions in terms
of loss of function; however, he agreed that a 5% impairment rating would not necessarily
correspond with a 5% reduction in physical activities or a 5% loss of enjoyment of life. Dr. King
agreed that Howard was completely healed by the time of trial, and testified that after reviewing
an MRI scan done on Howard in February of 1992, he was unable to find from the scan any
objective medical or clinical reason why Howard might be having discomfort in his back over two
years after the injury. Dr. King stated that based on his own tests, and on the level of discomfort
Howard had reported, he had advised Howard to take Tylenol or Advil for any pain he may incur.
He had also prescribed certain exercises for Howard to help with discomfort. At the time of trial,
Dr. King was not restricting Howard from pursuing any physical activities. He stated that certain
physical activities could cause Howard pain in the future, and that the activities Howard reported
as still causing him pain would probably continue to do so. Dr. King agreed that some of the
activities that Howard complained caused him pain could cause pain in a non-injured person as
well. He testified that the only reason he was of the opinion that Howard was continuing to have
pain at the time of trial was because Howard had reported having such pain, and that Dr. King
had found no objective basis for the pain. Finally, Dr. King agreed with the statement that in all
probability, there was no reason that Howard could not lead a normal and productive life,
participating in the sports in which he currently participates, and simply continuing to take Advil
and aspirin as needed. The record reflects that Howard's arm was in a cast at the time of Dr.
King's deposition as a result of an injury Howard suffered while playing volleyball. Dr. King
stated that he was treating Howard for this injury but that Howard had not mentioned any
problems regarding back pain during these visits.
Dr. James L. Smith, another orthopedic surgeon who began treating Howard in
December of 1989, testified through written interrogatories taken on August 12, 1992. Dr. Smith
testified that in regard to his last examination of Howard on August 22, 1991, he was unable to
detect or confirm any objective, clinical, or medical reason for any back pain. He answered "yes"
when asked if it was possible Howard was complaining of back pain two and one-half years after
the accident because he was subconsciously motivated by secondary gain factors, but also stated
he had no personal opinion as to whether this was, in fact, the case. (2) Dr. Smith stated that under
the American Medical Association Guidelines to Evaluation of Permanent Impairment, Howard
had a 7% impairment of his whole person; however, Dr. Smith also testified that he felt these
guidelines were inapplicable to the instant case. (3) In a letter dated September 13, 1991, addressed
to Howard's previous attorney, Dr. Smith stated that he would not have anticipated Howard's
complaints of pain to last so long after the injury, did not expect them to be permanent, and in the
meantime had recommended limiting painful activities and taking over-the-counter anti-inflammatories such as Advil for any pain. Dr. Smith further stated in the letter that Howard was
not at a great risk for developing osteoarthritis because the fracture involved the upper lumbar
region of the spine, and most arthritic conditions occur in the lower lumbar region. When asked
about the "reasonable medical probability" of chronic pain and discomfort, Dr. Smith replied that
it was possible Howard would have mild discomfort for two years following the injury, and that
the need for future medical care for Howard was "unlikely."
Howard testified that after being released from his initial hospitalization, he was
in a great deal of pain. Three and one-half weeks after the accident, he began resuming a
"somewhat normal lifestyle," but still wore a back brace prescribed by the doctors, and was
restricted from strenuous physical activities. Howard stated he wore his back brace full time for
four months, then wore it for another two or three months when performing any sporting activity,
and then was fully released from its use after March 19, 1990. He stated that for the first six
months after his injury, he was instructed by Dr. Smith to "moderate" his participation in physical
sporting activities; thereafter, he was instructed to resume a normal lifestyle, except that he was
to avoid heavy lifting and contact sports for the next several months. Howard testified that before
the accident he was very active: he lifted weights, played tennis, basketball and football, and
water skied. He stated that at the time of his testimony he was still having pain in his back, often
from sitting for long periods of time in a car or from physical activities. He stated he had not
been able to resume the normal lifestyle he had before the injury, but that he had attempted to do
almost everything he was able to do before the injury. Finally, Howard testified he was worried
about the activities he would be able to enjoy in the future.
Howard admitted that Dr. Smith had told him six months after the accident that
over the long-run he should have little trouble with his back. Howard stated the only medicine
he had been prescribed since the accident was Tylenol 3 when he left the hospital in Lubbock, but
that he had not refilled that prescription. Howard admitted he participated in volleyball and
softball during the spring of 1990; played soccer for his fraternity team; played intramural
football; water skied (some twenty times during the summer of 1991); played racquetball; played
tennis; boogie-boarded; went inner-tubing; went to Schlitterbahn (a water amusement park);
played water volleyball; and shot baskets a few times. In his opinion, however, Howard felt he
was not as competitive in some of these sports as he was before the injury. When asked about
his use of Advil or aspirin, Howard admitted he had taken none that day and had none with him
while in court that day or the previous day, but stated that he usually carries some in his car.
Howard's mother and his girlfriend also testified at trial. Both witnesses testified
that Howard was limited in performing certain physical activities and that sitting for prolonged
periods of time would cause Howard pain. Both witnesses supported Howard's testimony
regarding the pain he felt at the time of trial and the general decrease in his ability to function as
he did before the injury.
At least one Texas court of appeals has held that the fact that an injury has been
proven is not, in itself, a sufficient basis for an award of pain and suffering or physical
impairment. Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 805 (Tex. App.--Dallas
1988, no writ). The determination of damages for past and future physical pain, mental anguish,
and physical impairment are issues that are "particularly within the province of the jury."
Marshall, 826 S.W.2d at 200; see Hicks, 834 S.W. 2d at 591; see also Balandran, 833 S.W.2d
at 648. When faced with conflicting evidence on these issues, the jury "may believe one witness
and disbelieve others" and "may resolve inconsistencies in the testimony of any witness."
McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Indeed, it is up to the jury "to
weigh opinion evidence and the judgment of experts. . . . [and] to decide which expert witness
should be credited." Pilkington v. Kornell, 822 S.W.2d 223, 230 (Tex. App.--Dallas 1991, writ
denied). A jury may believe all or any part of a witness' testimony, and may disregard any or all
of that testimony. Id.
Texas courts of appeals do not agree whether a party necessarily is entitled to
damages for future physical pain and mental anguish, when the jury finds that he will incur future
medical expenses. See Hyler v. Boyter, 823 S.W.2d 425, 427 (Tex. App.--Houston [1st Dist.]
1992, no writ); Blizzard, 756 S.W.2d at 805. The Blizzard court, in attempting to distinguish the
two lines of cases, concluded that:
The cases perhaps indicate that appellate courts are more reluctant to hold jury
findings of no damages for pain and suffering contrary to the great weight and
preponderance of the evidence when the indicia of injury and damages are more
subjective than objective. The more evidence of outward signs of pain, the less
findings of damages depend upon the claimant's own feelings and complaints, the
more likely appellate courts are to overturn jury findings of no damages for pain
and suffering.
Blizzard, 756 S.W.2d at 805 (emphasis added). Although Blizzard addressed the issue of a jury
awarding past medical expenses and refusing to award damages for past pain and suffering, we
find the same analysis applies to the instant case, wherein the jury awarded future medical
expenses while failing to award damages for future pain and mental anguish. See Hyler, 823
S.W.2d at 427.
In the instant case, there was conflicting evidence relating to the award of damages
for future physical pain and mental anguish. Although Howard, his mother, and his girlfriend all
testified that Howard was still having pain in his back at the time of trial, Dr. King and Dr. Smith
both testified that they had found no objective, medical reason for the continued pain.
Furthermore, although Howard claimed that strenuous physical activities caused him discomfort,
he also testified as to his continued participation in sports and other strenuous physical activities.
Considering this conflicting evidence, we cannot say that the jury's failure to award
damages for future physical pain and mental anguish is so against the great weight and
preponderance of the evidence as to be manifestly unjust. The jury "is the sole judge of the
witnesses' credibility and the weight to be given their testimony." Pilkington, 822 S.W.2d at 231.
Furthermore, under the "indicia of injury" analysis set forth in the Blizzard case, we find that the
complaints here relating to damages for future physical pain and mental anguish were subjective
in nature. Thus, our deference to the jury's findings of damages in this case is especially proper.
Hyler, 823 S.W.2d at 427; Blizzard, 756 S.W.2d at 805. Accordingly, we overrule Howard's
first point of error.
Howard contends in his second point of error that the jury's failure to award
damages for physical impairment was against the great weight and preponderance of the evidence.
Howard argues that the jury was not asked to divide the issue into past and future impairment and
that evidence of the fracture, the five-day hospitalization, the requirement of wearing a back brace
for three to four months, the inability to participate in normal physical activities and the
impairment ratings to which both doctors testified, required a finding of at least some physical
impairment in the past.
To recover damages for physical impairment, the injured party must "`sustain the
burden of proving that the effect of his physical impairment extends beyond any impediment to
his earning capacity and beyond any pain and suffering to the extent that it produces a separate
and distinct loss that is substantial and for which he should be compensated.'" Landacre v.
Armstrong Bldg. Maintenance Co., 725 S.W.2d 323, 324 (Tex. App.--Corpus Christi 1986, writ
ref'd n.r.e.) (emphasis added) (citations omitted); Allen v. Whisenhunt, 603 S.W.2d 242, 243
(Tex. Civ. App.--Houston [14th Dist.] 1980, writ dism'd) (quoting Green v. Baldree, 497 S.W.2d
342 (Tex. Civ. App.--Houston [14th Dist.] 1973, no writ)). Furthermore, a finding of damages
for physical impairment is a "subjective determination particularly in the province of the jury."
Marshall, 826 S.W.2d at 200; Landacre, 725 S.W.2d at 325. Thus, "[t]he mere fact of injury
. . . does not prove compensable pain and suffering, and certainly not impairment and lost
earnings. . . ." Blizzard, 756 S.W.2d at 805 (emphasis added); see Landacre, 725 S.W.2d at 324;
but cf. Robinson v. Minick, 755 S.W.2d 890, 894 (Tex. App.--Houston [1st Dist.] 1988, writ
denied) (holding that undisputed, objective evidence of facial fractures, surgery, and
hospitalization required an award for past physical impairment).
Based upon the record, we cannot say that the jury's failure to award damages for
impairment was not based upon factually sufficient evidence. Although the doctors testified
Howard had suffered a 5% to 7% impairment, Dr. Smith went on to testify that the guidelines
used to determine this rating were inapplicable to the instant case. The only other evidence
relating to impairment was subjective in nature, and the jury's finding in this regard was based
essentially on the weight and credibility it chose to give to various evidence and testimony.
Furthermore, the jury had before it evidence of Howard's participation in numerous physical
activities since his injury, which may have contributed to its failure to find that Howard suffered
any impairment. Even if the jury believed that Howard was unable to perform certain physical
activities as well as before the injury, such a finding would not mandate an award for physical
impairment. See Landacre, 725 S.W.2d at 325; see also Platt v. Fregia, 597 S.W.2d 495 (Tex.
Civ. App.--Beaumont 1980, writ ref'd n.r.e.).
Howard had the burden to prove a substantial loss for which he deserved
compensation beyond that awarded for pain and suffering. Landacre, 725 S.W.2d at 324; Allen,
603 S.W.2d at 243. Based on the evidence as a whole, we cannot say that the jury's failure to
find that Howard met this burden was against the great weight and preponderance of the evidence.
Accordingly, we overrule Howard's second 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: November 10, 1993
Do Not Publish
1. Although no one challenges the award of $882 for future medical expenses, our
review of the record does not reveal the basis for the jury's award of this specific amount.
2. Dr. King previously defined the term "secondary gain" as the situation in which
people may amplify their complaints of pain "because of other tangible or perceived
tangible rewards."
3. Dr. Smith testified that he used the AMA guidelines at the request of an attorney
who at one point was the attorney of record for Howard. While still representing
Howard, the attorney sought medical information from Dr. Smith regarding Howard's
injuries, and requested him to use the AMA guidelines in assigning an impairment rating
to Howard's condition. Dr. Smith testified that these guidelines are required by law to be
used for worker's compensation claims, and though "not really applicable in this case . . .
at her request I used it." | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2858170/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
ON MOTION FOR REHEARING
NO. 3-93-216-CV
LINDA FISCHEL PREWITT,
APPELLANT
vs.
GARY AND DIANE CARGILE,
APPELLEES
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 128,622-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
PER CURIAM
Appellant Linda Fischel Prewitt has filed a motion for rehearing urging that this
Court reverse the trial-court judgment and remand the cause because the trial exhibits have been
lost or destroyed. See Tex. R. App. P. 50(e); Owen-Illinois, Inc. v. Chatham, No.
B14-91-00539-CV (Tex. App.--Houston [14th Dist.] 1993, n.w.h.); Hidalgo, Chambers & Co. v.
Federal Deposit Ins. Corp., 790 S.W.2d 700, 702 (Tex. App.--Waco 1990, writ denied). We will
overrule the motion for rehearing without a reconsideration of the question whether Rule 50(e)
mandates a remand of the cause in this instance.
In her motion, Prewitt asserts that, "[t]o adequately prosecute her appeal," she
intended to rely upon the provisions of a contract that was admitted into evidence "and of course,
this exhibit has been lost through no fault to the Appellant[,] which in turn, denies her right to
appeal." Prewitt seemingly overlooks her burden to prosecute her appeal. An appellate court
may dismiss an appeal for want of prosecution if an appellant fails to prosecute the appeal. Tex.
R. App. P. 54(a), 74(l)(1); Dickson v. Dickson, 541 S.W.2d 895, 896 (Tex. App.--Austin 1976,
writ dism'd w.o.j.).
The Clerk of this Court filed the transcript in this cause on May 3, 1993, and
received the statement of facts on May 5th. Because the statement of facts was untimely, the
Clerk notified Prewitt, by postcard, that she should file a motion for extension of time. Tex. R.
App. P. 54(c), 73. Prewitt did not do so. Furthermore, she filed neither a brief nor a motion for
extension of time within which to file a brief.
Accordingly, we overrule the motion for rehearing.
Before Justices Powers, Kidd and B. A. Smith
Filed: October 20, 1993
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1561023/ | 380 A.2d 521 (1977)
TOWN OF NARRAGANSETT
v.
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO, LOCAL 1589.
No. 76-312-M.P.
Supreme Court of Rhode Island.
December 8, 1977.
James E. McGwin, Asst. Solicitor, Narragansett, for petitioner.
Hogan & Hogan, Thomas S. Hogan, Providence, for respondent.
OPINION
BEVILACQUA, Chief Justice.
This is a certiorari proceeding wherein the petitioner, the town of Narragansett (town), challenges the jurisdiction of an arbitration board impaneled pursuant to the Fire Fighters' Arbitration Act (Act), G.L. 1956 (1968 Reenactment) §§ 28-9.1-7, -8, to issue an order concerning minimum manpower requirements at a town fire station.
In 1976, negotiations were conducted by the town and respondent, International Association of Fire Fighters, AFL-CIO, Local 1589 (union), bargaining agent for the town's firefighters, regarding fourteen proposed changes to the collective bargaining agreement between the parties for fiscal year July 1, 1976 to June 30, 1977. Impasse was reached on four issues, including the one presently before us, a proposal to increase from three to five the minimum number of permanent employees on duty at all times in Station No. 1. The unresolved issues were submitted for arbitration to a duly constituted arbitration board, which conducted hearings on March 31, 1976 and April 12, 1976. On May 4, 1976 the board rendered an order regarding all four disputed issues, mandating as to minimum manpower that there be at least four permanent employees on duty at all times in Station No. 1. The town implemented three of the awards but refused to effectuate the minimum manpower award, claiming that in fixing minimum manpower the arbitration board had abused its jurisdiction by subjecting to binding arbitration a matter that should have been reserved to the *522 discretion of management. The union submits that the number of firefighters on duty at Station No. 1 affects both the safety and workload of the individual firefighter and as such is a term and condition of employment properly subject to mandatory binding arbitration under the Act.
The issue before us is whether minimum manpower is a term and condition of employment. Section 28-9.1-4 of the Act recognizes the right of firefighters to bargain collectively as to "wages, rates of pay, hours, working conditions and all other terms and conditions of employment." Because this language closely parallels that of the National Labor Relations Act (NLRA), this court has recognized on numerous occasions the persuasive force of federal decisions construing the phrase "terms and conditions of employment." City of East Providence v. Local 850 Int'l Ass'n of Firefighters, 117 R.I. 329, 335, 366 A.2d 1151, 1154 (1976); Belanger v. Matteson, 115 R.I. 332, 338, 346 A.2d 124, 129 (1975). Federal cases have interpreted proposals affecting workload as terms and conditions of employment under the NLRA and therefore as mandatory subjects of arbitration. E. g., Gallenkamp Stores Co. v. NLRB, 402 F.2d 525, 529 n. 4 (9th Cir. 1968). Safety practices have also been recognized as terms and conditions of employment by courts interpreting the NLRA. Fireboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 222, 85 S. Ct. 398, 409, 13 L. Ed. 2d 233, 245 (1964) (Stewart, J., concurring). State courts, evaluating similar minimum manpower disputes under similar state and local scope of bargaining provisions, have concluded that, if there is evidence before the arbitrators disclosing that manpower affects the workload or safety of the individual firefighter, the minimum manpower proposal is arbitrable. Fire Fighters Union, Local 1186 v. City of Vallejo, 12 Cal. 3d 608, 619-21, 116 Cal. Rptr. 507, 514-15, 526 P.2d 971, 978-79 (1974); City of Alpena v. Alpena Fire Fighters Ass'n, Local 623, 56 Mich.App. 568, 575, 224 N.W.2d 672, 676 (1974).
On review by writ of certiorari, this court does not weigh the evidence before the lower tribunal, but merely examines the record to determine if there was any competent evidence, or reasonable inference therefrom, to support the finding of that tribunal. Lemoine v. Department of Mental Health, Retardation & Hosps., 113 R.I. 285, 288, 320 A.2d 611, 613 (1974); Hazen v. Hazen, 112 R.I. 363, 363, 310 A.2d 143, 143 (1973). The record before us reveals that evidence was presented to the arbitration board showing or tending to show that the number of people on duty affected the workload of each firefighter at the scene of a fire, and that the safety of the individual firefighter depended in part on the manpower complement.[1] Because there was evidence before the arbitration board which proved, or from which a reasonable inference could be drawn, that minimum manpower affects both the workload and safety of the firefighter, and because the issues of workload and safety have been held to be terms and conditions of employment, it is clear that minimum manpower requirements are within the purview of § 28-9.1-4 of the Act and are therefore arbitrable. Accordingly, we must hold that the arbitration board had jurisdiction to render the minimum manpower award.
The petition for certiorari is denied and dismissed, the writ previously issued is quashed, and the award of the arbitration board concerning minimum manpower is affirmed. The papers certified are ordered returned with our decision endorsed thereon. *523 appeal in the above-entitled matter should not be dismissed for lack of prosecution for
NOTES
[1] Union exhibits 44-47 detail the operation of the Town of Narragansett Fire Department at various manpower levels. Exhibits 48, 49, and 51 outline the reasons why increased manpower is necessary to improve response time to fire alarms, to handle the growing number of alarms turned in, and to fulfill obligations to an increasing population. Exhibit 52, a bulletin from the American Insurance Association, correlates on duty strength of a fire department with safety and working conditions of the individual firefighter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567297/ | 86 F.2d 629 (1936)
In re UNITED CIGAR STORES CO. OF AMERICA.
PICKER et al.
v.
IRVING TRUST CO. et al.
No. 71.
Circuit Court of Appeals, Second Circuit.
November 30, 1936.
*630 Charles Rosenbaum, of New York City (Mortimer Hays and Mortimer Feuer, both of New York City, of counsel), for petitioners-appellants.
Cravath, deGersdorff, Swaine & Wood, of New York City (Donald C. Swatland and R. L. Gilpatric, both of New York City, of counsel), for reorganization trustee.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
This is an appeal from an order in a proceeding under section 77B of the Bankruptcy Act (11 U.S.C.A. § 207) reducing the amount claimed as rent under a lease by the appellants to the above debtor, United Cigar Stores Company. The lease was for a term of 21 years from May 1, 1927, and covered buildings at Nos. 684, 686, and 688 Lexington avenue, New York City. It recited that the tenant was to pay specified monthly rentals and also "as additional rent, all taxes, assessments, water rents, ordinary and extraordinary and other charges on said property as and when hereinafter specified."
The lease provided that the tenant pay "when due all duties, taxes, assessments, water rates, water charges and other charges, extraordinary as well as ordinary, and demands of whatsoever nature and kind as shall during said term be made, charged, assessed, imposed, levied, grow due or payable upon, against, out of, on account of, for or by reason of the said demised premises or any appurtenances thereof, * * *" except inheritance or income taxes which the landlord may be obliged to pay. It also provided that the tenant, at its own expense, should "keep in good order and repair, inside and outside, all buildings, structures, premises, sidewalks, and street gutters now or that may be hereafter erected or placed thereon or appurtenant or in front of said premises, and all equipment thereof, including but not being limited to all glass, skylights, engines, dynamos, boilers, elevators, machinery, pipes, plumbing, wiring, gas and steam and electrical fittings and every other fixture or thing during the term belonging to or *631 used in connection with the leased premises; it shall from time to time when necessary make replacements of such equipment, at least equal to the original and sufficient for the same service, so that at all times, such buildings, structures, premises and equipment shall be in thorough good order, condition and repair."
The lease provided that the tenant should keep the leased property and equipment insured for the benefit of the landlord, and further (in paragraph "Twenty-second") provided that, if the tenant should fail to pay taxes, assessments, water rates, "or any other charge or payment required to be made and or paid * * * hereunder," the landlord might pay the same, and the tenant on or before the last day of the month during which such expense, expenditure, or payment should have been made or incurred by the landlord, and for which the tenant was responsible under the lease, should pay the landlord "as additional rent for said demised premises, in addition to all other sums of rent payable by virtue of these presents, a sum equal to the amount which shall have been so paid and or incurred by the Landlord in any and all of the cases hereinbefore in this paragraph referred to. * * *"
In paragraph "Twenty-third" the lease provided that, in case of "reentry or of the termination of the lease by summary proceedings or otherwise, whether the premises be relet or not, the Tenant shall remain liable until the time when this lease would have expired but for such termination thereof, for the yearly rent and additional rent reserved herein, less the avails of reletting. * * *"
August 29, 1932, the debtor was adjudicated a bankrupt on its voluntary petition. On September 26, 1932, an order was made authorizing the trustee in bankruptcy to assign to the landlords (the claimants herein) all the interest of the trustee in the lease and also in certain subleases which had been made by the bankrupt, without prejudice, however, to "any right of the landlord to declare the lease in full force and effect and to look to the bankrupt for full payment thereunder." The order recited that it was "intended to preserve every right that the landlord may now or hereafter have against the bankrupt except to release * * * the trustee * * * from liability under said lease."
No assignment of the main lease nor of the subleases was made, and on November 18, 1932, after refusal of the landlords to accept assignments, an order was made to be effective nunc pro tunc as of September 26, 1932, authorizing the trustee in bankruptcy to reject all interest in the lease by mailing a notice of rejection to the landlords, and on November 25 such a letter of rejection was duly mailed rejecting the lease as of September 26, 1932. On January 6, 1933, the landlords obtained an order in summary proceedings instituted in the Municipal Court of the City of New York, evicting the tenants under the subleases. Neither the trustee in bankruptcy, nor the bankrupt, had taken any steps either to cancel the subleases or to evict the subtenants, nor did the latter make any payment of rent to the landlords.
On June 9, 1934, the debtor filed its petition for reorganization pursuant to section 77B which was approved on June 14, 1934. In October, 1934, the landlords filed their proof of claim in which they sought to be allowed loss of rent at the rates reserved in the lease for three years from January 6, 1933, and also $10,916.17, the estimated cost of repairs and maintenance over the three-year period. The master allowed the three years' rent only from September 26, 1932, and, on the ground that no part of the $10,916.17 was "additional rent" within the meaning of the lease, declined to allow that item.
Claims for loss of rentals may be proved in a proceeding for reorganization under section 77B under the following provisions of subdivision (b) (10) thereof (11 U.S.C.A. § 207 (b) (10):
"In case an executory contract or unexpired lease of real estate shall be rejected pursuant to direction of the judge given in a proceeding instituted under this section, or shall have been rejected by a trustee or receiver in bankruptcy or receiver in equity, in a proceeding pending prior to the institution of a proceeding under this section any person injured by such rejection shall, for all purposes of this section and of the reorganization plan, its acceptance and confirmation, be deemed to be a creditor. The claim of a landlord for injury resulting from the rejection of an unexpired lease of real estate or for damages or indemnity under a covenant contained in such lease shall be treated as a claim ranking on a parity *632 with debts which would be provable under section 63 (a) of this Act [section 103 (a) of this title], but shall be limited to an amount not to exceed the rent, without acceleration, reserved by said lease for the three years next succeeding the date of surrender of the premises to the landlord or the date of reentry of the landlord, whichever first occurs, whether before or after the filing of the petition, plus unpaid rent accrued up to such date of surrender or reentry."
The landlords object to the decision of the District Court on the ground: (1) That the statutory three-year period of limitation did not begin to run until January 6, 1933, when the landlords evicted the subtenants and obtained actual possession of the demised premises, whereas it was held to run from September 26, 1932; (2) that the estimated cost of repairs to and maintenance of the demised premises during the three-year period was by the terms of the lease a part of the "rent" and should accordingly have been allowed as such.
The solution to the first objection is to be found in the proper interpretation of the words in section 77B (b) (10) "for the three years next succeeding the date of surrender of the premises to the landlord or the date of reentry of the landlord, whichever first occurs, whether before or after the filing of the petition."
Appellants argue that the rejection of the lease by the trustee did not terminate the lease as between the landlords and the debtor; that under the express terms of section 77B (b) (10) whereby such damages could be proved under the "Twenty-third" paragraph of the lease to the extent of three years succeeding the surrender of the premises the time did not begin to run until the "reentry of the landlord," which was not until January 6, 1933. Such a construction of the clause would permit landlords to extend the date from which the three years would commence indefinitely and at the same time to prove for "unpaid rent accrued up to such date of surrender or reentry." Moreover, landlords holding leases without damage clauses indemnifying them against loss of rent during the term could never safely re-enter, for, by doing so, the lease would be extinguished and any claim for three years' rent under section 77B (b) (10) would be lost. In re United Cigar Stores Company of America (City Bank Farmers' Trust Company), 83 F.(2d) 209 (C. C.A.). Therefore, if appellants' interpretation of the statute be correct, the period of limitation would never begin to run where the lease contained no damage clauses or indemnity covenants. In view of these considerations, it is reasonable to suppose that the words "the date of surrender of the premises to the landlord" refer to the time when the landlord is free to deal with the property as he chooses, and not to a technical surrender such as by the United Cigar Stores to its landlords.
The premises were all sublet and the trustee was never in actual possession. When it elected to reject the lease, obtained the order authorizing the rejection, and notified the landlords thereof, it surrendered all its rights in the premises and put the latter in a position where they could dispossess the subtenants and the tenant as well because of its neglect to pay rent under the main lease. It is true that under the strict law of landlord and tenant the lease was not surrendered, but the landlords were placed in control of the situation and there was a "surrender of the premises" within the meaning of section 77B (b) (10). By reason of their equitable lien for rent in default under the main lease, they could collect rents accruing from subtenants in order to satisfy their claims against their tenant. In re United Cigar Stores (Reisenwebers, Inc., v. Irving Trust Co.), 69 F. (2d) 513 (C.C.A.2); Louisville Woolen Mills v. Tapp, 239 F. 463 (C.C.A.6); Otis v. Conway, 114 N.Y. 13, 20 N.E. 628; Haley v. Boston Belting Co., 140 Mass. 73, 2 N.E. 785. Under such circumstances the surrender referred to in section 77B (b) (10) means notification to the landlord of the rejection of the lease authorized by order of the court. Had the trustee, rather than the subtenants, been in occupation, surrender would have meant vacating the premises and turning them over to the landlords. As the trustee was not in possession here, it did everything possible to surrender the premises by giving notice of rejection to the landlords. Although the bankrupt still had a sort of "scintilla juris" in the way of legal title to the lease after rejection by the trustee, we think there was a "surrender of the premises" to the landlords when the trustee empowered them effectively to control the disposition of the property. We *633 accordingly hold that September 26, 1932, and not January 6, 1933, was the date when the three-year period provided for in section 77B (b) (10) began to run.
The remaining question is whether the cost of repair and maintenance during the three-year period was by the terms of the lease a part of the "rent." Such items are described in it as "additional rent." Paragraph "Twenty-second" provides that "any other charge or payment required to be made and or paid" by the tenant can be paid by the landlords, that the tenant shall thereupon pay them an equivalent amount as "additional rent," and that, in the event of the failure of the tenant to pay this "additional rent," the landlords "shall have any of the remedies that would be available * * * in the event of the non-payment of the regular and specified rent."
It cannot be doubted that the "regular and specified rent," so called, was fixed with reference to the other burdens assumed by the tenant, as it is reasonable to suppose that the "regular" rent would have been larger if the tenant had not agreed to assume the very substantial obligation of keeping the premises in repair. These expenditures seem to us to have been made rent by agreement of the parties just as truly as were the taxes and water rates, and, so far as they are properly proved, they ought to be allowed as such. But the proof that the expenditures claimed were proper charges was so general that we cannot determine from the record how far the different items justify their allowance. A further hearing should be had as to these items, and evidence should be furnished to establish whether all the items set forth properly come within the categories of reasonable expenditures for maintenance and repairs.
The order of the District Court in so far as it fixed September 26, 1932, as the date from which the three-years' rental was to be computed is affirmed. In so far as it determined that the landlords were not entitled to include expenditures for repairs and maintenance as part of the "rent" allowable under the statute, it is reversed, and the proceeding is remanded, with directions to take such proof in regard to such expenditures as may be necessary and to determine the amount of the claim in accordance with the views expressed in this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561022/ | 18 So. 3d 950 (2009)
Mandy Nicole CLEVELAND
v.
Darrell Adam CLEVELAND.
2071116.
Court of Civil Appeals of Alabama.
March 20, 2009.
*951 Joan-Marie Dean, Huntsville, for appellant.
Submitted on appellant's brief only.
MOORE, Judge.
Mandy Nicole Cleveland ("the mother") appeals from a judgment of the Marshall Circuit Court ("the trial court") divorcing her from Darrell Adam Cleveland ("the father"). We affirm in part and reverse in part.
Following an ore tenus hearing, the trial court entered a judgment divorcing the parties on April 17, 2008. In that judgment, the trial court awarded the parties' joint legal custody of their two minor children. In regard to the oldest child, a son born on February 16, 2005, the trial court ordered that the parties would rotate physical custody on an alternating weekly basis. As to the youngest child, a daughter born on January 16, 2008, the trial court ordered as follows:
"2. Unless the parties agree otherwise, they shall rotate physical custody and visitation as follows:
"....
"b. Concerning [the daughter], until the child reaches one year of age, the father may visit with the child as follows: Each Saturday the father has physical custody of the child's sibling from 10:00 a.m. until 6:00 p.m., Father's Day from 10:00 a.m. until 6:00 p.m., and Christmas Day from 10:00 a.m. until 6:00 p.m.
*952 "c. Further concerning [the daughter], when the child reaches one year of age, said child shall go on the same joint custody rotation as said child's sibling."
The judgment further required the father to pay $260.84 per month as child support to the mother and required the mother to maintain medical insurance on the children.
In this appeal, the mother argues that the trial court erred in awarding the parties' joint legal custody of the children, in awarding joint physical custody of the son, in providing that the physical custody of the daughter would automatically transform into joint physical custody when the daughter turned one year old, in failing to establish a complete joint-custody plan in accordance with Ala.Code 1975, § 30-3-153, and in deviating from the guidelines for child support established in Rule 32, Ala. R. Jud. Admin., without providing an explanation therefor.
With respect to the clause of the divorce judgment divesting the mother of sole physical custody of the daughter when she reaches her first birthday, we agree that the judgment should be reversed. Alabama law forbids automatic modification clauses that change physical custody of a child based on future contingencies. See Hovater v. Hovater, 577 So. 2d 461 (Ala.Civ.App.1990); and Korn v. Korn, 867 So. 2d 338 (Ala.Civ.App.2003). Once a trial court awards physical custody of a child to one parent, the trial court may change that award based only on proof that, due to a material change of circumstances, the change would materially promote the best interests of the child and would more than offset the inherent disruption in the life of the child. See Ex parte McLendon, 455 So. 2d 863, 865-66 (Ala.1984). A provision automatically changing custody of the child based on some future event improperly relieves the noncustodial parent of his or her burden of satisfying the McLendon standard and can only be "premised on a mere speculation of what the best interests of the children may be at a future date." Hovater, 577 So.2d at 463.
In one recent case, we simply held that an automatic modification clause was void, without reversing the judgment. See Daugherty v. Daugherty, 993 So. 2d 8, 13 (Ala.Civ.App.2008) (holding that clause divesting mother of custody of children in the event mother relocated from the children's school district "was of no effect"). In this case, however, we cannot simply hold that the automatic modification clause is void because, unlike in Daugherty, it is not clear which custodial arrangement sole custody or joint custody would serve the best interests of the daughter. Therefore, we reverse that portion of the trial court's judgment containing the automatic modification clause and remand the case with instructions for the trial court to vacate the automatic modification clause and to determine the custodial arrangement that currently serves the best interests of the daughter.
With regard to the award of joint legal custody of the children, we begin by acknowledging the legislative declaration on the subject:
"It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage...."
Ala.Code 1975, § 30-3-150. Pursuant to that policy, Ala.Code 1975, § 30-3-152, requires trial courts to consider in every divorce case whether awarding joint custody *953 will serve the best interests of the child. In making that determination, trial courts
"shall consider the same factors considered in awarding sole legal and physical custody and all of the following factors:
"(1) The agreement or lack of agreement of the parents on joint custody.
"(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.
"(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.
"(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.
"(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody."
Ala.Code 1975, § 30-3-152(a).
The mother argues primarily that the trial court erred in awarding joint legal custody because of the history of domestic abuse and hostility between the parties. In addition to § 30-3-152(a)(4), which requires consideration of any history of or potential for child or spousal abuse, Ala. Code 1975, § 30-3-131, provides:
"In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption by the court that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of domestic or family violence. Notwithstanding the provisions regarding rebuttable presumption, the judge must also take into account what, if any, impact the domestic violence had on the child."
The mother maintains that the trial court ignored the law by awarding joint legal custody to the parties although the evidence established that the father had perpetrated domestic violence against the mother.
The mother testified that the father had injured the son when he was six to eight months old during a struggle to wrestle the child from the arms of the mother. The parties also testified that the father had flipped over a kitchen table, which had some plates and glassware on it, during an argument with the mother; the mother testified that, during that incident, she had had to shield the son's face so that nothing would "get on him." Both parties additionally testified at length regarding an incident in January 2007 during which the mother received injuries when, according to the mother, her arm became stuck in the steering wheel of the father's truck while she was attempting to stop the father from driving away from their premises. The January 2007 incident caused the mother to file a protection-from-abuse ("PFA") petition, see Ala.Code 1975, § 30-5-1 et seq., which she later dismissed.[1]
In its judgment, the trial court did not make written findings of fact regarding the mother's allegations of domestic violence. "`[W]here the trial court does not make specific findings of fact, it will be assumed that the trial court made those findings that were necessary to support its *954 judgment, unless the findings would be clearly erroneous.'" Mayer v. Mayer, 628 So. 2d 744, 746 (Ala.Civ.App.1993) (quoting Ex parte Walters, 580 So. 2d 1352, 1354 (Ala.1991)). Although the mother contends that she proved that the father had committed domestic violence on the three occasions cited above, the father's testimony provided sometimes overlapping but decidedly different versions of the facts surrounding those events. Based on the award of joint custody,
"we must assume that the trial court found either that the alleged acts of domestic or family violence did not occur, or that the acts did not constitute domestic or family violence, or that the father had rebutted the presumption that custody of the child should be placed with the mother by, among other things, proving that the acts of domestic violence had not negatively impacted the child."
McCormick v. Ethridge, 15 So. 3d 524, 531 (Ala.Civ.App.2008) (citing McClelland v. McClelland, 841 So. 2d 1264, 1268 (Ala.Civ. App.2002)), cert. denied, 15 So. 3d 532 (Ala. 2009). Because in ore tenus proceedings we presume that implied factual findings based on conflicting evidence are correct, see C.M.M. v. S.F., 975 So. 2d 975, 980 (Ala.Civ.App.2007), and because the record contains sufficient evidence disputing the mother's version of events, we "conclude that the trial court was authorized to make some or all of those findings [listed in McCormick] in relation to each alleged episode of domestic violence." McCormick, 15 So.3d at 531.
The mother next argues that the hostility of the parties as displayed in the three episodes cited above prevent the parties from amicably exercising joint custody. However, on February 6, 2007, shortly after the mother filed for a divorce, the parties entered into an agreement to share joint custody of the son; the trial court adopted that agreement in its pendente lite order. Both the mother and the father testified that, during the 15 months they had been sharing custody of the son, they had been able to work out holiday visitation amicably and no major issues had arisen that they had not been able to work out between themselves. The record does not support the mother's assertions on appeal that the parties are so hostile toward each other that the award of joint legal custody is unworkable.
The mother next argues that the trial court erred in awarding joint physical custody of the son. In Steed v. Steed, 877 So. 2d 602, 604 (Ala.Civ.App.2003), this court stated:
"The determination of an award of child custody is within the sound discretion of the trial court. Pierce v. Helka, 634 So. 2d 1031, 1032 (Ala.Civ.App.1994). A trial court's custody determination following the presentation of ore tenus evidence is presumed correct, and that judgment will not be set aside on appeal absent a finding that the trial court abused its discretion or that its determination is so unsupported by the evidence as to be plainly and palpably wrong. Pierce v. Helka, supra."
The mother maintains that the joint-physical-custody award is inappropriate because of the father's work schedule. The father testified that he typically works from 5:00 or 6:00 a.m. until either 3:00 p.m. or 7:00 p.m., five days a week. He stated that his work requires him to travel to Birmingham, Mississippi, and Tennessee, and that his work sometimes requires him to stay out of town overnight. The father testified that he resides with his mother ("the paternal grandmother"), that she cares for the son when he is away, that the son has his own room at the paternal grandmother's house, and that the parties' *955 daughter will also have her own room. The father testified that he plans to return to college and that, when he does, he will take on-line classes, which will allow him to stay at home with the children. The mother argues that the trial court should not have awarded the parties joint physical custody of the son because, she says, in Bryant v. Bryant, 739 So. 2d 53 (Ala.Civ. App.1999), this court affirmed a judgment denying joint custody because "the nature of the husband's employment prevents him from being in town during the week." 739 So.2d at 56. The mother reads too much into that statement. Just because a parent's employment prevents that parent from being in town on occasions does not make an award of joint physical custody plainly and palpably wrong in every case. The trial court evidently concluded that the father compensated for his occasional absences by providing the adequate substitute care of the paternal grandmother and that an award of joint physical custody still served the best interests of the son.
The mother next argues that the father, who now resides in Horton, which is approximately 30 miles from the mother's house in Guntersville, lives too far away to make joint physical custody feasible. See Ala.Code 1975, § 30-3-152(a)(5) (requiring court to consider geographical proximity of parents when deciding whether to award joint physical custody). The mother has not, however, presented evidence indicating that the parties' geographic distance has created a problem for them as it relates to their exercise of joint physical custody of the son. Again, both parties testified that they had been able to arrange holiday visitation and to address other issues relating to the custody of the son amicably. We conclude, therefore, that the trial court's award of joint physical custody of the son to the parties is not unsupported by the evidence so as to be plainly and palpably wrong.
The mother next argues that the trial court failed to implement a joint-custody plan in accordance with Ala. Code 1975, § 30-3-153.[2] To a large extent, the mother has waived this argument because she did not raise it in the trial court. "The oft-quoted and long-standing rule is that an appellate court may not consider an issue raised for the first time on appeal." D.A. v. Calhoun County Dep't of Human Res., 976 So. 2d 502, 504 (Ala.Civ.App. 2007). However, in her postjudgment motion the mother did argue that the trial court had failed to determine which parent would be designated as the custodial parent for purposes of enrolling the children in school. The trial court addressed that issue in its postjudgment order by designating the mother as the party having *956 primary authority over the academic activities of the children. We interpret that provision as designating the mother as the custodial parent for the purpose of enrolling the children in school. Hence, we find no error requiring reversal as to this issue.
The mother last argues that the trial court's award of child support is due to be reversed because, she says, the award of $260.84 per month deviates from the child-support guidelines established in Rule 32, Ala. R. Jud. Admin.[3] Based on the judgment, the parties have split physical custody of the children, with the mother having sole physical custody of the daughter for one year and the parties sharing joint physical custody of the son. Rule 32(B)(9) covers split-custody arrangements, but no provision of Rule 32 covers joint-physical-custody arrangements. The Comment to Rule 32 clarifies that the trial court may deviate from the Rule 32 child-support guidelines in joint-legal and "shared-physical-custody" situations; however, the trial court must specify and explain its reasons for the deviation. See Comment, Rule 32, Ala. R. Jud. Admin. Because we are reversing the trial court's judgment for it to reconsider its custody award regarding the daughter, we instruct the trial court, once it reforms the judgment, to refashion its award of child support and to explain any deviation from the child-support guidelines.
Based on the foregoing, we affirm those portions of the trial court's judgment awarding the parties joint legal custody of the children, awarding the parties joint physical custody of the son, and designating the mother as the custodial parent for academic purposes. We reverse those portions of the trial court's judgment regarding the custody of the daughter and the award of child support and remand the cause for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
PITTMAN, BRYAN, and THOMAS, JJ., concur.
THOMPSON, P.J., concurs in the result, without writing.
NOTES
[1] The mother's PFA petition does not appear in the record, and there is no evidence indicating that an order was entered either granting or denying the mother's petition. Although an agreement between the parties refers to the mother's dismissing her PFA "order," we instead refer to the parties' agreeing that the mother's PFA "petition" would be dismissed.
[2] Section 30-3-153 provides:
"(a) In order to implement joint custody, the court shall require the parents to submit, as part of their agreement, provisions covering matters relevant to the care and custody of the child, including, but not limited to, all of the following:
"(1) The care and education of the child.
"(2) The medical and dental care of the child.
"(3) Holidays and vacations.
"(4) Child support.
"(5) Other necessary factors that affect the physical or emotional health and well-being of the child.
"(6) Designating the parent possessing primary authority and responsibility regarding involvement of the minor child in academic, religious, civic, cultural, athletic, and other activities, and in medical and dental care if the parents are unable to agree on these decisions. The exercise of this primary authority is not intended to negate the responsibility of the parties to notify and communicate with each other as provided in this article.
"(b) If the parties are unable to reach an agreement as to the provisions in subsection (a), the court shall set the plan."
[3] By order dated November 19, 2008, the Alabama Supreme Court amended Rule 32, Ala. R. Jud. Admin., including the child-support guidelines, effective January 1, 2009. By order dated February 25, 2009, the Alabama Supreme Court amended Rule 32(A)(4) and Rule 32(B)(7), Ala. R. Jud. Admin., effective March 1, 2009. Those amendments are not applicable in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/993356/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4451
KEITH DESMOND WRIGHT,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Thomas A. Wiseman, Jr., Senior District Judge,
sitting by designation.
(CR-94-95)
Submitted: March 31, 1997
Decided: October 28, 1997
Before ERVIN and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Aaron E. Michel, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Gretchen C.F. Shappert, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Keith Wright was convicted by a jury of one count of
possession of crack cocaine with intent to distribute in violation of 21
U.S.C. § 841(a)(1) (1994), and aiding and abetting in the same in vio-
lation of 18 U.S.C. § 2 (1994). Wright raises ten issues on appeal: (1)
whether the district court abused its discretion when it limited defense
counsel's cross-examination of two witnesses; (2) whether the district
court erred by admitting his pre-polygraph statements; (3) whether he
was entitled to a hearing in which he would have the opportunity to
prove actual juror bias; (4) whether the district court abused its discre-
tion by denying his motion for new trial; (5) whether the evidence
was sufficient to support the finding of guilty; (6) whether the district
court was clearly erroneous in its determination of the amount of
drugs attributable to him; (7) whether the district court erroneously
determined that he exercised a supervisory role in the conspiracy; (8)
whether the district court erred by enhancing his base offense level
for possession of a firearm during the conspiracy; (9) whether the dis-
trict court erred by enhancing his base offense level for perjury; and
(10) whether the district court erred by not granting him a downward
adjustment for acceptance of responsibility. Finding no reversible
error, we affirm.
Wright was a member of a large drug conspiracy which distributed
approximately 100 kilograms of crack cocaine and six kilograms of
powder cocaine between 1990-94. The evidence showed that Wright
was a mid- to upper-level manager in the conspiracy. Police officers
eventually arrested him during a sting operation. Most of the testi-
mony against Wright at trial came from his alleged co-conspirators.
Restrictions on the scope of cross-examination are within the sound
discretion of the trial judge, and trial courts are generally given wide
latitude to set reasonable limits to prevent harassment, prejudice, or
2
confusion of the issues, United States v. Ambers , 85 F.3d 173, 175-76
(4th Cir. 1996), and we find no abuse of discretion in the present case.
Defense counsel's strategy was to discredit the witnesses by showing
that they had a motive to testify falsely (i.e., to receive a more favor-
able sentence). This was adequately accomplished by questioning the
witnesses about the terms of their plea agreements. We agree with the
district court's determination that the proposed lines of questioning
were irrelevant.
We also find that the district court did not err by denying Wright's
motions to suppress incriminating statements made during a pre-
polygraph interview, for an evidentiary hearing on alleged juror bias,
and for a new trial. Wright signed a written waiver of rights form
prior to the pre-polygraph interview. We find that the record supports
the district court's determination that Wright's execution of the form
was knowing, voluntary, and performed after consultation with coun-
sel, who was also present throughout the interview. We decline to
address whether Wright's failure to execute a prior non-attribution
agreement is dispositive because we find that the waiver superseded
any such agreement.
We review the district court's decision concerning whether to order
an evidentiary hearing on juror bias for abuse of discretion. United
States v. Gravely, 840 F.2d 1156, 1159 (4th Cir. 1988). "To justify a
post-trial hearing involving the trial's jurors, the defendant must do
more than speculate; he must show clear, strong, substantial and
incontrovertible evidence . . . that a specific, non-speculative impro-
priety occurred." Tejada v. Dugger, 941 F.2d 1551, 1561 (11th Cir.
1991) (citations and internal quotation marks omitted) (ellipses in
original). We find that Wright failed to meet this burden. His claims
were based solely on a telephone call allegedly made to defense coun-
sel after trial by a juror who informed counsel about the actions of
two jurors. Counsel did not produce an affidavit from the juror mak-
ing the allegations, only his notes from the telephone conversation.
Accordingly, Wright failed to make a threshold showing of juror bias,
and a hearing was not required. Moreover, the biases alleged by
Wright were internal in nature1 and any testimony concerning them
_________________________________________________________________
1 See Tanner v. United States, 483 U.S. 107 (1987) (jury's verdict can
only be impeached upon a showing of external influences such as media
reports and blackmail of a juror); see also Gravely, 840 F.2d at 1159
(burden on defendant to show that influence was external).
3
would have impermissibly infringed on the deliberation process.2
This court reviews the district court's decision denying Wright's
motion for a new trial for an abuse of discretion, United States v.
McMahan, 852 F.2d 337, 339 (8th Cir. 1988), and we find no such
abuse here. Motions for a new trial based on newly discovered evi-
dence are not looked upon favorably. Id. In the present case, Wright
fails to meet his burden established by this court in United States v.
Custis, 988 F.2d 1355, 1359 (4th Cir. 1993). 3
On direct appeal of a criminal conviction, a "verdict must be sus-
tained if there is substantial evidence, taking the view most favorable
to the Government, to support it." Glasser v. United States, 315 U.S.
60, 80 (1942). In the present case, we find that the evidence over-
whelmingly supports Wright's conviction, and we reject his assertion
that dismissal of the conspiracy count as a result of a hung jury was
the equivalent of an acquittal, which would preclude the consideration
of co-conspirator testimony.4
Finally, we find that the record supports the district court's deter-
mination as to the amount of drugs attributable to Wright and the
court's calculation of his base offense level under the Sentencing
Guidelines.5 We therefore affirm the findings and sentence of the dis-
trict court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the material before the
court and argument would not aid the decisional process.
AFFIRMED
_________________________________________________________________
2 See Fed. R. Evid. 606(b) (prohibiting inquiry into the deliberation
process).
3 Specifically, Wright failed to show that his claims concerning counsel
were material to his conviction or that having counsel of choice would
have resulted in acquittal. Wright's claims that one of the Government's
witnesses was coerced to testify, even if true, were merely impeaching.
Finally, Wright's claims concerning Government retaliation for proceed-
ing to trial were refuted by the counsel who represented him during plea
negotiations, and, in any event, they were not "new" because Wright was
aware of the Government's position prior to trial.
4 See United States v. Arrington , 719 F.2d 701, 703 n.3 (4th Cir. 1983).
5 United States Sentencing Commission, Guidelines Manual (Nov.
1995).
4 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561036/ | 18 So. 3d 65 (2009)
STATE of Louisiana
v.
Jonathan BOYER.
No. 2009-KK-2051.
Supreme Court of Louisiana.
September 21, 2009.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561064/ | 380 A.2d 69 (1977)
Edward TRIVENTO
v.
COMMISSIONER OF CORRECTIONS.
No. 202-76.
Supreme Court of Vermont.
October 31, 1977.
*70 James L. Morse, Defender Gen., and Glenn A. Jarrett, Defender, Correctional Facilities, Montpelier, for plaintiff.
M. Jerome Diamond, Atty. Gen., and Peter B. Brittin and Robert L. Orleck, Asst. Attys. Gen., Montpelier, for defendant.
Before BARNEY, C. J., DALEY, LARROW and HILL, JJ., and SMITH, J. (Ret.), Specially Assigned.
HILL, Justice.
This case presents three questions: I. Whether, given the facts alleged in this petition for a declaratory judgment, the Washington Superior Court had proper subject matter jurisdiction. II. Whether a convicted criminal who has been committed to a state penal institution as a "psychopathic personality" (under 18 V.S.A. § 8501 et seq., superseding 18 V.S.A. § 2811 et seq.) may accumulate "good time credit" (under 28 V.S.A. § 811, superseding 28 V.S.A. § 252), to be applied against a subsequently-imposed sentence. III. If not, whether failure to accord good time credit to such an individual constitutes a denial of equal protection under the Constitutions of the United States or the State of Vermont.
*71 In 1967, appellant was convicted of manslaughter and was subsequently adjudged to be a psychopathic personality. In accordance with the governing statute (18 V.S.A. § 2811 et seq., superseded by 18 V.S.A. § 8501 et seq.), appellant was not then sentenced on the criminal charge but was committed to the custody of the Commissioner of Mental Health, who arranged appellant's confinement at Windsor State Prison. Four years and eleven months later he was adjudged to be no longer a psychopathic personality, and he was sentenced on the manslaughter conviction.
In this case, appellant seeks a declaratory judgment requiring the Commissioner of Corrections to consider him for good time credit purportedly accumulated during his confinement as a psychopathic personality in Windsor State Prison, such credit to be applied to appellant's present sentence in execution.
The appellant's complaint alleges that during the initial period of his confinement at Windsor State Prison he was subject to the rules and regulations applicable to prisoners committed under sentence to the custody of the Commissioner of Corrections and that he received no special treatment designed to rehabilitate him as a psychopathic personality (a primary purpose of the presentencing commitment scheme, see 18 V.S.A. § 8502; State v. Newell, 126 Vt. 525, 526, 236 A.2d 656 (1967)). He therefore claims that because he was treated as were prisoners under sentence he is entitled to a reduction in sentence for good behavior (so-called good time credit), notwithstanding his technical status under the custody of the Commissioner of Mental Health. He contends that this statutory privilege (28 V.S.A. § 811, superseding 28 V.S.A. § 252), accorded to prisoners under sentence, is constitutionally compelled as to him by the mandate of equal protection. The State moved to dismiss the petition for lack of subject matter jurisdiction or for failure to state a claim upon which relief could be granted. The Washington Superior Court granted the State's motion, and this appeal resulted.
I.
Appellant here is really claiming that the sentence imposed by the Chittenden Superior Court, following his confinement as a psychopathic personality, was excessive and unconstitutional because it did not take into consideration his claim for good time credit. Such a claim falls within the ambit of 13 V.S.A. § 7131 et seq., relating to post-conviction relief.[1] Jurisdiction over this type of relief is given by the statute to the county (now superior) court of the county where sentence is imposed, with provision for a different presiding judge to sit.
"As a remedial statute the Declaratory Judgment [sic] Act is entitled to liberal construction to effectuate its salutary purpose." Flanders Lumber & Building Supply Co. v. Town of Milton, 128 Vt. 38, 44, 258 A.2d 804, 808 (1969), and cases cited therein. "Where a controversy exists a proceeding for a declaratory judgment may be maintained even though another remedy is available." Gifford Memorial Hospital v. Town of Randolph, 119 Vt. 66, 71, 118 A.2d 480, 483 (1955).
This is not a case where "a proceeding for a declaratory judgment may be maintained [in Washington Superior Court] even though another remedy is available," Id., at 71, 118 A.2d at 484, because here the other remedy is available only in another tribunal. Where the Legislature has provided that certain rights (here the right to have one's sentence modified) are enforcible in specified tribunals (here the superior court in which sentence was imposed), the declaratory judgments vehicle should not be *72 used to frustrate that legislative choice. To do so would be to ignore the message of 12 V.S.A. § 4711 and our prior holdings that the Act has not enlarged the subject matter jurisdiction of the courts. Id. at 70, 118 A.2d 480; Murray v. Cartmell's Executors, 118 Vt. 178, 180, 102 A.2d 853 (1954).
The Washington Superior Court did not have jurisdiction to hear appellant's request for a modification of sentence under 13 V.S.A. § 7131, and it could not acquire jurisdiction by virtue of the Declaratory Judgments Act. Therefore, the trial court was without jurisdiction to hear this case. The motion to dismiss was properly granted and the judgment must be affirmed. Our disposal of the jurisdictional issue renders unnecessary determination of the other questions presented.
It is arguable that this cause could be transferred by order to the appropriate court for a hearing on the petition for post-conviction relief. Cf. Trivento v. Smith, 129 Vt. 346, 348, 278 A.2d 722 (1971). However, Parts II and III of this opinion, in which we address appellant's substantive claims, explain why such transfer would be futile.
II.
It is clear that the appellant cannot claim a statutory privilege to good time credit. 28 V.S.A. § 811. The General Assembly has provided for the availability of good time credit only for those individuals in execution of sentence and in the custody of the Commissioner of Corrections. "Each inmate sentenced to imprisonment and committed to the custody of the commissioner [of corrections] for a fixed term or terms shall earn a reduction. . . . This section applies only while the inmate is committed to the custody of the commissioner [of corrections] . . .." Id. While physically situated in prison, the appellant was technically in the custody of the Commissioner of Mental Health throughout the period of his confinement as a psychopathic personality and was not, during that time, in execution of sentence. Any intimations to the contrary contained in Trivento v. Smith, supra, 129 Vt. at 347, 278 A.2d 722, are overruled. Therefore, he is not entitled to relief under 28 V.S.A. § 811. Furthermore, appellant has not directed us to any authority, nor can we find any, which permits the Commissioner of Corrections to award good time credit to persons committed to the custody of the Commissioner of Mental Health even if those persons are incarcerated in a correctional facility. Accordingly, we must declare that the appellant has no statutory right to have the Commissioner of Corrections consider his eligibility for good time credit. Cf., In re Trivento, supra, 131 Vt. at 614, 312 A.2d 910.
III.
The appellant also claims that to deny him consideration for good time credit for the period during which he was confined as a psychopathic personality violates his right to equal protection under the law guaranteed by the Fourteenth Amendment of the United States Constitution and Chapter I, Article 7 of the Declaration of Rights of the Vermont Constitution.
To uphold the distinction made by the statutory good time credit scheme between persons in prison under sentence and persons committed to prison by order of the Commissioner of Mental Health, we must only be satisfied that the challenged distinction is rational and promotes a legitimate state policy. We are not faced here with those suspect classifications or fundamental rights which demand a stronger showing of state interest. McGinnis v. Royster, 410 U.S. 263, 270, 277, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1973); Baldwin v. Smith, 2 Cir., 446 F.2d 1043, 1044 (1971); cf. Veilleux v. Springer, 131 Vt. 33, 40, 300 A.2d 620 (1973). In this case, the petitioner contends that he was treated as if he were in prison under execution of sentence, and that therefore the constitution requires that he be accorded the rights of such prisoners, including specifically the right to good time credit. We find, however, that there is a rational basis for the distinction challenged here.
*73 The considerations which call for the confinement of a psychopathic personality for an indeterminate term differ from those involved in the incarceration under sentence of other convicted criminals. The psychopathic personality is committed to the custody of the Commissioner of Mental Health for purposes of protection of the community, treatment of the offender and because of the difficulty of determining the necessary term of confinement. See State v. Newell, supra, 126 Vt. at 526, 236 A.2d 656. The punitive aspects of detention are, at least theoretically, de-emphasized until the offender is no longer classified as a psychopathic personality and is returned to the court for sentencing. Because the length of his confinement depends upon findings as to his fitness to re-enter society, the psychopathic personality has a built-in incentive to conform to prison rules and to work positively toward his recovery. Thus, the considerations of internal prison administration which led the Legislature to enact the good time credit provisions may not fully apply to those incarcerated as psychopathic personalities. The Legislature could quite rationally have concluded that it was inappropriate and/or unnecessary to provide for the extension of good time credit to the incarcerated psychopathic personality. Having concluded that the statutory good time credit scheme as applied may rationally promote a legitimate state policy, we need inquire no further.
Appellant further argues that because he was committed to prison, treated as a non-psychopathic prisoner and not provided any treatment as mandated by 18 V.S.A. § 8502, his classification as a psychopathic personality was a mere fiction which we should ignore in determining his eligibility for good time credit. While it may well be that the "treatment" accorded appellant was not the ideal visualized by the Legislature when it enacted the statutes governing presentencing commitment of psychopathic personalities, our analysis remains unaffected. Appellant was classified under a valid statutory scheme. See State v. Newell, supra, 126 Vt. at 526, 236 A.2d 656, citing State of Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 60 S. Ct. 523, 84 L. Ed. 744 (1940). Further, he has cited no case, nor have we found any, which suggests that even if properly classified, an individual is denied equal protection if he is not granted the benefits of another class to which he could have been assigned. To the extent that In re Trivento, supra, 131 Vt. at 614, 312 A.2d 910, suggests that such an argument is tenable, it is overruled.
As to the alleged lack of treatment, we recognize the necessarily wide discretion of the Commissioner of Mental Health to determine the "treatment" of those offenders committed to his custody under 18 V.S.A. § 8501 et seq. As we said in State v. Newell, supra, 126 Vt. at 526, 236 A.2d at 658: "Undoubtedly, the means and methods to accomplish the legislative purpose could be improved." However, such improvement is within the realm of the Legislature.
Affirmed.
NOTES
[1] In In re Trivento, 131 Vt. 610, 614, 312 A.2d 910, 913 (1973), an appeal of a proceeding under 13 V.S.A. § 7131, we said that "the determination of good time credit was not a proper area for the county court to render an opinion." That case, in which we refused to interfere with the duties which the Legislature had consigned to the Commissioner of Corrections, should be distinguished from the case at bar, which concerns appellant's eligibility for good time credit as a matter of law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1780200/ | 933 So. 2d 656 (2006)
Kenneth BOYD, Appellant,
v.
STATE of Florida, Appellee.
No. 1D01-1389.
District Court of Appeal of Florida, First District.
July 6, 2006.
Kenneth Boyd, pro se, Appellant.
Charlie Crist, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
On the court's own motion, the opinion of May 12, 2005, is withdrawn and the following is substituted therefor.
AFFIRMED. State v. Dickey, 928 So. 2d 1193 (Fla. 2006).
KAHN, C.J., WEBSTER, and HAWKES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561082/ | 18 So. 3d 1043 (2009)
BRANTLEY
v.
STATE.
No. 2D08-1806.
District Court of Appeal of Florida, Second District.
July 22, 2009.
Decision without published opinion Petition denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566496/ | 440 S.W.2d 99 (1969)
Ramon W. CALLAWAY, Appellant,
v.
Loreta ELLIOTT et vir, Appellees.
No. 419.
Court of Civil Appeals of Texas, Tyler.
April 10, 1969.
Rehearing Denied May 1, 1969.
*100 Sallas, Griffith & Meriwether, Gus E. Meriwether, Crockett, for appellant.
Adams, Granberry & Hines, F. P. Granberry, Crockett, for appellees.
*101 MOORE, Justice.
Appellant, Ramon W. Callaway, filed suit against appellee, Loreta Elliott, his former wife, for bill of review seeking to modify a previous divorce decree with respect to the division of the community property. The trial court granted appellees, Loreta Elliott and husband, Kenneth C. Elliott, a summary judgment and appellant, Ramon W. Callaway, perfected this appeal.
A brief history of the previous litigation between the parties will be necessary.
The litigation commenced on September 14, 1961, when Ramon W. Callaway filed suit against Loreta Callaway for divorce and a division of the community property in the District Court of Houston County, in Cause No. 13,606. Judgment of divorce and the division of the community property was entered on May 28, 1962. The judgment recited, in part, as follows:
"* * * Plaintiff and Defendant and their attorneys announced in open court that an agreement for settlement of the respective property rights of Plaintiff and Defendant had been agreed upon and the said agreement as follows was submitted to the Court for approval:
"These parties agreed that Defendant have as her part and share of all of the community property belonging to Plaintiff and Defendant: * * * the home of Plaintiff and Defendant situated in the City of Crockett in Houston County, Texas, on North 7th Street, described in a Deed of Trust given by Ramon W. Callaway and Loreta Callaway to J. G. Beasley, Trustee, to secure the payment of a Promissory note described in said Deed of Trust, which is dated the 20th day of December, 1948, and recorded in Book 51 at page 219 of the Deed of Trust Records of Houston County, Texas. * * *"
The judgment further recited that the agreement of the parties in settlement of their property rights was approved by the court and that Ramon W. Callaway was to execute a deed vesting title in Loreta Callaway to the foregoing property awarded her. No complaint was made of the judgment by either party and the judgment became final.
The deed of trust referred to in the foregoing judgment contains a metes and bounds description of a rectangular tract of land containing approximately three-fourths of an acre. It is without dispute that the home is situated on the south half thereof.
Subsequently, on October 9, 1962, Ramon W. Callaway conveyed to Loreta Callaway the south half of the three-quarter acre tract containing the home, but refused to convey to her the north half of the tract, maintaining that it was his separate property and that he had not agreed to the judgment awarding her the entire tract.
On November 6, 1964, Loreta Elliott nee Callaway filed suit against Ramon W. Callaway in the District Court of Houston County under Cause No. 8966 seeking to enforce the terms of the previous divorce decree in Cause No. 13,606, praying for judgment for the north half of the three-quarter acre tract. Ramon W. Callaway answered the suit denying generally the allegations of the petition and specially denying that he had agreed to the judgment awarding her the north one-half of the property. He did not allege, however, that such judgment was void by reason of fraud, accident or mistake, nor did he seek any other type of affirmative relief. That suit resulted in a summary judgment in favor of Loreta Elliott nee Callaway dated April 12, 1965, awarding her the entire three-quarter acre tract described in the deed of trust and divested Ramon W. Callaway of all title thereto. Ramon W. Callaway perfected an appeal to this court. We affirmed the judgment of the trial court on the ground that the appellant's attack upon the judgment amounted to nothing more than collateral attack and the judgment not being void, appellant was not *102 entitled to any relief. Callaway v. Elliott, (Tex.Civ.App.) 396 S.W.2d 242, dismissed.
On April 19, 1966, Ramon W. Callaway filed the present suit upon which this appeal is predicated. As stated, appellant brought the present suit in the form of a bill of review, seeking to change and modify the provisions of the former divorce decree in Cause No. 13,606. In substance, he alleged that the previous judgment granting Loreta Callaway the entire three-quarter acre tract was erroneous in that it did not reflect the true agreement of the parties. He alleges that under the agreement, Mrs. Callaway was to have the south one-half, including the home, and he was to have the north one-half, and that as a result of a mutual mistake between the parties, the judgment erroneously awarded her the entire three-quarter acre tract. Fraud was not alleged. His prayer was that judgment in Cause No. 13,606 be set aside and that judgment be reformed in accordance with the agreement of the parties awarding him the north half of the three-quarter acre tract and awarding appellee the south one-half of said tract.
Appellees answered with a general denial and affirmatively asserted that (1) appellant was guilty of laches and negligence in failing to file his petition for bill of review until April 19, 1966 seeking to re-open the judgment in Cause No. 13,606 dated May 28, 1962, and (2) the judgment in Cause No. 8966 is res judicata in the present suit because appellant is now seeking to litigate a defense which, by the use of reasonable diligence, could have been litigated in Cause No. 8966. Based on these defenses, appellees filed a motion for summary judgment asserting that no genuine issue of fact remained to be determined and that appellees were entitled to judgment as a matter of law. Appellant resisted the motion by filing a controverting affidavit asserting that under the agreement he was to have the north half of the property and Loreta Elliott was to have the south half of the property and that as a result of a mutual mistake, the judgment did not reflect the agreement of the parties and was therefore erroneous.
After a hearing, the trial court granted appellees, Loreta Elliott and husband, Kenneth C. Elliott, a motion for summary judgment and denied appellant any relief, from which judgment he duly perfected this appeal.
The record shows without dispute that almost four years elapsed between the date of the original divorce decree and the time appellant filed his petition for bill of review.
Appellees' motion for summary judgment alleging laches had the effect of casting the burden upon appellant to come forward with opposing evidentiary data showing due diligence and lack of negligence, or at least to show that a genuine issue of fact was created thereon. McDonald, Texas Civil Practice, Vol. 4, Sec. 17.26.3. Nowhere in appellant's petition does he allege that he acted with diligence. Nor does his petition show he made a motion for new trial in Cause No. 13,606, or allege any excuse for his failure to request relief from the divorce decree by filing such motion. Furthermore, appellant's petition fails to allege any excuse for the long delay in filing his bill of review. His affidavit in response to the motion for summary judgment fails to show any explanation, reason, or excuse for his failure to file a motion for new trial, nor does it contain any explanation or excuse for his long delay in filing the present suit.
The authorities are numerous to the effect that the petitioner on bill of review must show, not only that the rendition of the judgment against which he seeks relief was brought about by fraud, accident or mistake, without negligence on his part, and that he had a meritorious defense, but he must go further and show that he had not been guilty of negligence in failing to avail himself of any means to set the judgment aside, or to arrest or vacate it or in seeking relief by bill of review. *103 22 Tex.Jur.2d 572, Sec. 30; Garcia v. Jones, (Tex.Civ.App.) 155 S.W.2d 671; American Spiritualist Ass'n v. City of Dallas, (Tex.Civ.App.) 366 S.W.2d 97. It is fundamental on bill of review that petitioner must allege and prove a clear case of diligence and merit to obtain the interference of a court of equity. Johnson v. Templeton, Adm'r., 60 Tex. 238; Smith v. Ferrell, (Tex.Com.App.) 44 S.W.2d 962; McDonald, Texas Civil Practice, Vol. 4, page 1499, Sec. 18.27; 34 Tex.Jur.2d 98, Sec. 229.
While we recognize the rule that in summary judgment proceedings all doubts as to the existence of a genuine issue as to a material fact must be resolved against the movant, the facts showing lack of diligence are undisputed. Consequently, we have concluded that the record shows laches on the part of the appellant as a matter of law for the following reasons.
In the first place, it is without dispute that appellant made no effort to obtain relief from the divorce decree by filing a motion for new trial. Nowhere in his petition or in his reply to the motion for summary judgment does he offer any excuse for failing to seek such relief. According to the well established rule, before a litigant can successfully invoke a bill of review to set aside a judgment, he must allege and prove a valid excuse for not obtaining relief by a motion for new trial. Gehret v. Hetkes, (Tex.Com.App.) 36 S.W.2d 700; Whittinghill v. Oliver, (Tex. Civ.App.) 38 S.W.2d 896; Donovan v. Young, (Tex.Civ.App.) 127 S.W.2d 517; Dixon v. McNabb, (Tex.Civ.App.) 173 S.W.2d 228. A bill of review may not take the place of a new trial.
In the second place, appellant wholly failed to plead or prove that he exercised due diligence in bringing his suit for bill of review. Nowhere in his petition or in his reply to the motion for summary judgment does he attempt to excuse his delay of almost four years.
Where it appears, as it does in this case, that there was a lapse of time amounting to nearly four years from the rendition of the judgment, before the filing of the petition for bill of review, then such long delay must be explained and it must clearly appear that the delay was not the result of the lack of diligence on the part of petitioner. Otherwise, his remedy in equity will be cut off by his own laches. McLane v. San Antonio Nat. Bank, (Tex. Civ.App.) 68 S.W. 63; Osborn v. Younger, (Tex.Com.App.) 235 S.W. 558; Ruland v. Ley, (Tex.Com.App.) 135 Tex. 591, 144 S.W.2d 883; Garcia v. Jones, supra; McGlothing v. Cactus Petroleum, Inc., (Tex. Civ.App.) 394 S.W.2d 955. Since appellant failed to explain the long delay in filing suit, we think his lack of diligence is established as a matter of law.
We are of the further opinion that the summary judgment must be sustained upon the ground that the judgment in Cause No. 8966 is res judicata to the relief sought in the present suit. The basis of the cause of action asserted by the appellees in Cause No. 8966 was for the enforcement of the terms of the original divorce decree in Cause No. 13,606 granting appellee all of the three-quarter acre tract of land. In that suit appellees took the position that the divorce decree was a valid, subsisting judgment and that they were entitled to have the same enforced. Thus, the question of the validity of the judgment in Cause No. 13,606 was before the court in Cause No. 8966. Although appellant appeared and answered in Cause No. 8966, he wholly failed to take steps to obtain relief from the judgment, which he now says was void. As pointed out in our opinion in that cause, he suffered judgment to go against him without filing a cross-action or making any effort to vacate, modify or reform the divorce decree.
The rule of res judicata in Texas bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried *104 in a former trial, as well as those which were actually tried. Rule 97(a), Texas Rules of Civil Procedure; Ogletree v. Crates, Tex., 363 S.W.2d 431; Cannon v. Hemphill, 7 Tex. 184; Thomson v. Philips, (Tex.Civ.App.) 347 S.W.2d 832; Ladd v. Ladd, (Tex.Civ.App.) 402 S.W.2d 940. It cannot be denied that the validity of the previous divorce decree could have been litigated, in Cause No. 8966, wherein appellees specifically sought to enforce the provisions thereof.
Applying the foregoing rules to the facts adduced upon the motion for summary judgment, we are of the opinion that no genuine issue of material fact remained to be determined by a trial on the merits.
Accordingly, the judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858145/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-023-CR
MICHAEL EDWARD SUTTERFIELD,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
NO. CR92-023, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING
PER CURIAM
After accepting appellant's guilty plea, the district court found him guilty of
possessing diazepam. Texas Controlled Substances Act, Tex. Health & Safety Code Ann.
§ 81.117 (West 1992). Pursuant to a plea bargain agreement, the court assessed punishment at
imprisonment for two years and a $5000 fine.
In two points of error, appellant complains that he was not properly admonished
as to the range of punishment and that the district court erroneously refused to permit him to
withdraw his plea. We do not reach these contentions because we find fundamental error
requiring that the judgment of conviction be reversed. We first address, however, the State's
contention that appellant waived his right to appeal.
Appellant entered his plea of guilty before the district court on July 6, 1992. On
that same day, appellant, his trial counsel, and the district court signed a "guilty plea
memorandum" in which, among other things, appellant waived his right to appeal. Although
appellant's guilty plea was accepted by the court on July 6, the district court did not adjudge
appellant guilty and impose sentence until November 10, 1992. Because the written waiver of
appeal was signed before sentence was imposed, it was premature and not binding on appellant.
Ex parte Thomas, 545 S.W.2d 469 (Tex. Crim. App. 1977); Ex parte Townsend, 538 S.W.2d 419
(Tex. Crim. App. 1976). The State does not contend and the record does not reflect that appellant
waived his right of appeal after sentence was imposed.
Appellant judicially confessed to possessing more than 400 grams of diazepam, the
offense alleged in count three of the indictment. (1) The judgment of conviction recites that appellant
was adjudged guilty of "the Felony Offense of POSSESSION CONTROLLED SUBSTANCE --
DIAZEPAM." Possession of more than 400 grams of diazepam is, as it was on November 16,
1991, the date of the offense, an aggravated offense punishable by imprisonment for life or for
a term of not more than ninety-nine years or less than ten years, and a fine not to exceed
$100,000. Section 481.117(c), (d)(2). Possession of 200 grams or more but less than 400 grams
of diazepam is also an aggravated offense, punishable by imprisonment for life or for a term of
not more than ninety-nine years or less than five years, and a fine not to exceed $50,000. Section
481.117(c), (d)(1). Possession of less than 200 grams of diazepam is a class A misdemeanor,
punishable by confinement in jail for a term not to exceed one year and a fine not to exceed
$3000. Section 481.117(b); Tex. Penal Code Ann. § 12.21 (West Supp. 1993). There is no
circumstance under which possession of diazepam is a felony offense punishable by a term of
imprisonment of two years and a $5000 fine. Because the judgment in this cause imposes a
sentence not authorized by law, it is void. See Ex parte Spaulding, 687 S.W.2d 741 (Tex. Crim.
App. 1985); Bogany v. State, 661 S.W.2d 957 (Tex. Crim. App. 1983); Ex parte McIver, 586
S.W.2d 851 (Tex. Crim. App. 1979). Because appellant's bargained plea of guilty was premised
on the court assessing this unauthorized sentence, the plea was involuntary. See Ex parte Pruitt,
689 S.W.2d 905 (Tex. Crim. App. 1985).
The judgment of conviction is reversed and the cause is remanded to the district
court for new trial.
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Reversed and Remanded
Filed: November 10, 1993
Do Not Publish
1. The other counts accused appellant of drug-related organized criminal activity. Tex.
Penal Code Ann. § 71.02 (West Supp. 1993). | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2360110/ | 330 A.2d 793 (1975)
BANGOR SPIRITUALIST CHURCH, INC.
v.
Everett LITTLEFIELD and Jobie Robinson.
Supreme Judicial Court of Maine.
January 16, 1975.
*794 Paine, Lynch & Weatherbee by Peter M. Weatherbee, Bangor, for plaintiff.
Oscar Walker, Bangor, for defendants.
Before DUFRESNE, C. J., and WERNICK, ARCHIBALD and DELAHANTY, JJ.
ARCHIBALD, Justice.
This civil action was instituted for the purpose of recovering certain monies which were allegedly withdrawn from the Penobscot Savings Bank by the defendants without authority. The parties waived jury trial and a Justice of the Superior Court, after hearing, awarded the plaintiff a judgment in the sum of $2,654.24 plus interest and costs. The defendants have appealed. We deny the appeal.
Appellants justify their right to withdraw the funds in question because of authority which they contend was given them at a "meeting" of the church corporation held April 2, 1972. The legal significance of this meeting is the critical issue.
Since the Justice below made no findings of fact nor stated separately his conclusions of law pursuant to Rule 52(a), M.R.C.P. (nor was he requested to do so), "we must proceed on the assumption that the trial Justice found for the appellee on all factual issues necessarily involved in the decision," and "the findings thus assumed to have been made will not be set aside by this Court unless shown to be clearly erroneous." Blue Rock Industries v. Raymond International, Inc., 325 A.2d 66, 73 (Me.1974); Jacobs v. Boomer, 267 A.2d 376 (Me.1970). Looking to the record, therefore, to determine whether the plaintiff had established its legal entitlement to the funds in dispute, we note the following facts on which the Justice below could have predicated his ultimate conclusion:
(1) The plaintiff is an incorporated church as authorized by 13 M.R.S.A. §§ 3021-3029.
(2) The plaintiff does not have specific bylaws establishing a procedure for calling either regular or special business meetings.
(3) At the conclusion of a regular church service held on April 2, 1972, the then President presided at a church meeting for the purpose of inducting two persons into membership in the church, verbal notice of this meeting for that limited purpose having been previously given by the President.
(4) Because the President (who had been duly elected as such at the preceding annual meeting) refused to entertain a motion to go "independent of the National and Maine Associations of Churches" for lack of a proper prior notice, he and other previously elected officers were replaced by newly "elected" officers at this meeting, among whom were the appellants.
(5) As a result of this "election" and pursuant to a subsequent "vote" at the same meeting, the funds in dispute were then withdrawn by the defendants from the Penobscot Savings Bank.[1]
(6) Notice of the aforesaid business meeting of April 2, 1972, was verbal only and was not given by the Board of Trustees.
Since we are not required in this case to resolve any ecclesiastical issues that may exist between the litigants but are confronted only with the question of the legal ownership of the funds, we have no hesitancy in holding that this controversy is properly before us, our decision being controlled entirely by neutral principles of *795 law. St. Michael & Archangel Rus. O. G. Cath. Ch. v. Uhniat, 451 Pa. 176, 301 A.2d 655 (1973); Mount Zion Baptist Church v. Second Baptist Church, 83 Nev. 367, 432 P.2d 328 (1967).
A church which sees fit to become incorporated under Maine law is obligated to conduct its business activities in compliance therewith. 13 M.R.S.A. § 3026 requires that church corporations which have not adopted specific bylaws establishing a procedure for calling business meetings shall do so by having a Board of Trustees post "notices of the time, place and purposes of said meeting, in the same manner and for the same time as is prescribed in section 3022." Section 3022 requires that notices be posted in
"A conspicuous place near the main entrance to the usual place of meeting of such church and in one other public and conspicuous place in the same town, for 7 days, at least, prior to said meeting."
It is clear beyond question that the critical meeting of April 2, 1972, was not called in conformity with the notice requirements of Section 3026. The action of that meeting, despite participation therein by a considerable number of the church membership, was without legal significance. We find ample support in other jurisdictions for this position.
Where a special church business meeting was held without giving notice as required by the Religious Corporations Law, the New York Supreme Court has ruled that no corporate business could be validly transacted at such a meeting. Hayes v. Brantley, 53 Misc. 2d 1040, 280 N.Y.S.2d 291 (1967); Petition of Hayes, 38 N.Y.S.2d 66 (Sup.1942).
The Massachusetts Supreme Court has held that because a religious corporation is an artificial entity created by the law which can perform corporate acts only in the manner mandated by the statute or by controlling principles of law, essential compliance with the notice requirements of the statute is a prerequisite to a valid meeting. Syrian Antiochean St. George's Orthodox Church v. Ghize, 258 Mass. 74, 154 N.E. 839 (1927).
Other jurisdictions speak of the corporate meetings of religious societies as invalid, or void, where there was a failure to comply with bylaws either as to notice or to the manner in which the meetings were called. Mount Zion Baptist Church v. Second Baptist Church, supra; Padgett v. Verner, 51 Tenn.App. 285, 366 S.W.2d 545 (1963); McDaniel v. Quakenbush, 249 N. C. 31, 105 S.E.2d 94 (1958); State Bank of Wilbur v. Wilbur Mission Church, 44 Wash.2d 80, 265 P.2d 821 (1954); David v. Carter, 222 S.W.2d 900 (Tex.Civ.App. 1949); Schilstra v. Van Den Heuvel, 82 N.J.Eq. 155, 90 A. 1056 (N.J.1914); Mack v. Huston, 23 Ohio Misc. 121, 256 N.E.2d 271 (1970); see 76 C.J.S. Religious Societies § 18a.
Rather than being "clearly erroneous," the record demonstrates beyond any doubt that the decision of the Justice below was the only legal result that could have been reached.
The entry is:
Appeal denied.
All Justices concur.
WEATHERBEE and POMEROY, JJ., did not sit.
NOTES
[1] The record contains this stipulation:
"IT IS FURTHER STIPULATED AND AGREED, that the Defendants, Everett Littlefield and Jobie Robinson recieved from the Penobscot Savings Bank, the account of the Bangor Spiritualist Church, Inc., the sum of $2,654.24, with the issue to be tried as to whether or not said sum was properly or improperly recieved." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454027/ | 257 P.3d 663 (2011)
171 Wash.2d 1021
STATE
v.
JOHNSON.
No. 85664-8.
Supreme Court of Washington, Department I.
June 7, 2011.
Disposition of Petition for Review Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561316/ | 565 A.2d 306 (1989)
Winifred PHILLIPS, P.R. of Estate of Norman Gardner, et al.
v.
EASTERN MAINE MEDICAL CENTER.
Supreme Judicial Court of Maine.
Argued November 9, 1988.
Decided October 12, 1989.
*307 Warren M. Silver (orally), Wayne R. Foote, Bangor, for plaintiff.
Malcolm L. Lyons (orally) John C. Nivison, Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Augusta, for defendant.
Before ROBERTS, WATHEN, GLASSMAN, CLIFFORD, HORNBY and COLLINS, JJ.
ROBERTS, Justice.
The Eastern Maine Medical Center (Medical Center) appeals from a judgment entered after a jury trial in Superior Court (Penobscot County, McKinley, J.). The jury found that Norman Gardner's death was the result of the failure of the Medical Center's staff to detect and repair an esophageal tear. The Medical Center challenges the sufficiency of expert testimony on causation, an evidentiary ruling on the introduction of a deposition, and the jury instructions. It also contends the damages awarded are excessive. Because we agree with the last contention only, we order a remittitur.
On June 26, 1983, a piece of meat became lodged in Norman Gardner's esophagus as he was eating lunch. Several hours later, with the meat still lodged, Gardner went to the emergency room at the Medical Center. After an emergency room physician tried unsuccessfully to remove the meat, a surgeon was called. The meat was surgically removed from Gardner's throat in the early morning of June 27.
About an hour after surgery, Mrs. Gardner visited her husband and reported to the recovery nurse that he was wheezing and in pain. Although the symptoms signaled that there was a tear in the esophagus, the nurse did not inform the surgeon. When he was informed, some six hours later, he ordered an esophagram and performed a thoracotomy to repair a two millimeter esophageal tear.
After the thoracotomy, Gardner's condition continued to worsen and a specialist in internal medicine and infectious disease was consulted. The specialist testified at trial that Gardner's condition was the result of infection from the intestinal tract transmitted during the six hours before the tear was repaired. The specialist further testified that Gardner's death, 74 days later, probably could have been avoided had the tear been repaired quickly.
The jury returned a verdict totaling $1,026,700 in damages, of which $740,000 was allocated to Gardner's conscious pain and suffering and loss of enjoyment of life. This appeal ensued.
I. Proximate Cause
In order to establish liability in a medical malpractice case, the plaintiff must show that the defendant's departure from a recognized standard of care was the proximate cause of the injury. Cox v. Dela Cruz, 406 A.2d 620 (Me.1979). Evidence at trial indicated that pain was a symptom of *308 an esophageal tear and that, to prevent infection, the tear must be repaired quickly. The failure of the hospital staff to notify the surgeon was a departure from a recognized standard of care.
The Medical Center insists, however, that the evidence is insufficient to establish causation. The hospital argues that the patient's chances for survival, even if the tear were repaired in less than six hours, would have been less than 50% or less than probable. According to its argument the jury could not have found the hospital's negligence was the proximate cause of death.
There are different approaches to the evaluation of evidence of causation in medical malpractice cases. Some jurisdictions require the plaintiff to show a better than even chance of avoiding harm in the absence of medical negligence. See e.g. Cooper v. Sisters of Charity of Cincinnati, 27 Ohio St. 2d 242, 272 N.E.2d 97 (1971); Curry v. Summer, 136 Ill.App.3d 468, 91 Ill. Dec. 365, 483 N.E.2d 711 (1985); Gooding v. University Hospital Building, 445 So. 2d 1015 (Fla.1984).
Other courts employ what is called the "last chance" or "lost chance" of survival test, in which the plaintiff must show that he was deprived of a significant chance of avoiding harm. See e.g. Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984); Northern Trust Co. v. Louis A. Weiss Memorial Hospital, 143 Ill.App.3d 479, 97 Ill. Dec. 524, 493 N.E.2d 6 (1986); Sharp v. Kaiser Foundation Health Plan, 710 P.2d 1153 (Colo.App.1985).
Based on the testimony at trial, we conclude that the jury could rationally determine that the plaintiffs satisfied even the more stringent requirement. The specialist's opinion that, had the tear been repaired within six hours, Gardner would have had a better than even chance of survival is sufficient. The Medical Center's argument that cross-examination revealed factors affecting the 50% prediction misses the point. Properly interpreted, the specialist's testimony explained that any delay decreases the prospect of survival and that until six hours elapsed the prospect was better than 50%. Obviously, the jury was free to conclude that due care on the part of the Medical Center would have produced repair in far less than six hours.
II. Deposition
At the conclusion of the defendant's case, the Medical Center offered as evidence a deposition which allegedly contained contradictory testimony of Mrs. Gardner. The trial court refused admission on the grounds of unfairness because she had not been cross-examined on her deposition testimony.
The deposition of a party may be used at trial for any purpose. M.R.Civ.P. 32(a)(2). 1 Field, McKusick & Worth, Maine Civil Practice § 26.20, at 447 (2d ed.1970). The exclusion of Mrs. Gardner's deposition was error. Rulings of this kind are not disturbed, however, unless the party challenging the ruling shows prejudice. M.R.Civ.P. 61; 2 Field, McKusick & Wroth § 61.1, at 80. M.R.Evid. 103(a); Field & Murray, Maine Evidence § 103.1, at 5 (1987).
The Medical Center has not provided us with a copy of the deposition, which was not filed with the trial court or made a part of the record on appeal. We must, therefore, rely on the colloquy between the court and defense counsel to determine if the exclusion was prejudicial. The deposition testimony, as represented by this exchange with the court, was generally consistent with that given at trial. The Medical Center's attempt to introduce an additional statement that Mrs. Gardner thought her husband would die at the outset was simply not probative on the medical likelihood of his survival. We conclude that it is highly probable that the exclusion did not affect the verdict of the jury. Jucius v. Estate of O'Kane, 511 A.2d 1053, 1056 (Me.1986).
III. Jury Instructions
This Court will disturb a judgment on the grounds that the jury instructions were in error only if the instruction failed to inform the jury correctly and fairly in all necessary respects of the governing law. Eckenrode v. Heritage Management Corp., 480 A.2d 759 (Me.1984). Accordingly, *309 we conclude that the trial court's instruction to the jury on the "fragile condition" of the patient and the duties owed by the physician correctly stated the law.
The Medical Center argues that the issue of the "fragile condition" of the patient was never generated and that, in fact, the instruction was misleading on the issue of proximate causation. Throughout the trial, evidence of the patient's diabetes, weight, and age, as well as alleged emphysema, was presented by the defense as causes of the patient's death. It was the position of the Medical Center throughout the trial that the delay in repairing the tear was not fatal and that the patient's prognosis was, from the start, not good. The issue of the patient's "fragile condition" was properly raised by the evidence and the jury was properly instructed to consider the patient's fragile condition only after they had determined that the negligence of the hospital was a proximate cause of Gardner's injury.
IV. Damages
The Medical Center argues that the award of $740,000 for Gardner's pain and suffering is excessive. The Medical Center relies on Chenell v. Westbrook College, 324 A.2d 735 (Me.1974) as defining the duty of the court to set aside a verdict if the jury disregards the evidence or acts from passion or prejudice. Although we will not substitute our judgment for that of the jury, we must examine the record to determine whether the jury's award exceeds the limit of evidentiary support. We conclude that limit is exceeded in the case at bar.
The evidence viewed most favorably to the plaintiffs establishes that Gardner survived in a state of deteriorating health for less than three months. We recognize that, in addition to the mental anguish caused by his impending death, Gardner experienced varying degrees of physical pain throughout his ordeal. Nevertheless, we are left with the firm conviction that the jury was misled by the fact that death ultimately ensued. We are influenced by the special verdict form that asked the jury to assess a dollar amount for "conscious pain and suffering and loss of enjoyment of life." (emphasis added) Although the Medical Center does not challenge the form or the jury instructions, we find the instruction less than clear that "loss of enjoyment of life" must be limited to the period of survival. The decedent's loss of his full life expectancy is not an element of damage recoverable by a personal representative pursuant to 18-A M.R. S.A. § 2-804. The jury could reach the amount assessed only through consideration of elements of damage not covered by Section 2-804. Accordingly, we order a new trial on that aspect of damage alone unless plaintiff Phillips remits all in excess of $370,000.
V. Loss of Consortium
At oral argument the Medical Center conceded that the two claims for loss of consortium under 19 M.R.S.A. § 167-A (loss of consortium) and 18-A M.R.S.A. § 2-804 (wrongful death) were based on different time periods and were not duplicative.
The entry is:
Judgment for $10,000 in favor of Helen L. Gardner affirmed.
Judgment in favor of Winifred F.G. Phillips, P.R. vacated.
Remanded for entry of an order granting a new trial on the issue of damages for conscious pain and suffering only, unless plaintiff Phillips remits all of said judgment in excess of $646,700 within 30 days of the entry of the order.
WATHEN, CLIFFORD, HORNBY and COLLINS, JJ., concur.
GLASSMAN, Justice, concurring in part and dissenting in part.
I must respectfully dissent to part IV of the court's opinion. In this case the trial court, after a hearing, denied the Medical Center's motion for a new trial based on the ground that the damages awarded by *310 the jury were excessive.[1]
When the trial court is presented with a motion for a new trial, it must view the evidence in the light most favorable to the conclusion that the jury's finding was correct. Chenell v. Westbrook, College, 324 A.2d 735, 737 (Me.1974). The trial court cannot substitute its judgment as to the credibility of witnesses for the judgment of the jury. Id. The assessment of damages is the sole province of the jury, and the amount fixed must stand unless it is apparent the jury acted under some bias, prejudice or improper influence, or made some mistake of law or fact. Poulette v. Herbert C. Haynes, Inc., 347 A.2d 596, 599 (Me.1975).
It is well established that this court's scope of review of a trial court's disposition of a motion for a new trial is very limited when the motion is based on the excessiveness or inadequacy of damages awarded by a jury.[2] We have repeatedly stated that:
In deciding the correctness of the action taken by the presiding Justice we cannot substitute our judgment for his. His order may be reversed by us only `in the event that a clear and manifest abuse of discretion on the part of the trial judge is shown.'
Chenell v. Westbrook College, 324 A.2d 735, 737 (Me.1974)[3] (quoting MacLean v. Jack, 160 Me. 93, 99, 198 A.2d 1, 4 (1964)). See also Binette v. Deane, 391 A.2d 811, 813 (Me.1978); Poulette v. Herbert C. Haynes, Inc., 347 A.2d 596, 599, 600 (Me. 1975); Marr v. Shores, 495 A.2d 1202, 1206 (Me.1985); Werner v. Lane, 393 A.2d 1329, 1332 (Me.1978). Moreover, "[w]hen the determination of any question rests in the judicial discretion of the trial court, the exercise of that discretion can not [sic] be reviewed by an appellate court unless it is made to appear that the decision was clearly wrong or that it was based upon some error in law." Young v. Carignan, 152 Me. 332, 337, 129 A.2d 216, 218 (1957) (quoting Rioux v. Portland Water District, 132 Me. 307, 309, 170 A. 63, 64 (1934)).
The reasoning for our limited review was concisely set forth by this court in Mandarelli v. McGovern, 393 A.2d 533, 535 (Me.1978) (quoted with approval in Marr v. Shores, 495 A.2d at 1206).
[The trial court] before whom an action has been tried is in a far better position than an appellate court to know whether in light of [its] observations at the trial the damages awarded by the jury were so wholly inconsistent with the proof as to reflect some bias, prejudice or improper influence on the part of the jury or to support the conclusion that the verdict was the result of some mistake of fact or law on their part.
Clearly the burden is on the Medical Center to show that the record reveals that the trial court's ruling denying the Medical Center's motion for a new trial was a clear and manifest abuse of the court's discretion. The Medical Center has failed to meet this burden. It rests its claim that the trial court committed error on the bald assertion that the damages assessed by the jury are excessive. The Medical Center points to nothing in the record that would support a claim that the trial court clearly should have found the damages so wholly inconsistent with the proof as to reflect that the jury acted improperly, nor does it claim any error of law in the trial court's decision.
The Medical Center did not before the trial court and has not before this court challenged the special verdict form or the instructions given by the trial court to the jury. The first two questions of the special verdict addressed the issues of negligence and proximate cause. The third question addressed damages and was broken into *311 six subparts of (a) through (f). The sixth subpart, (f), dealt with damages for Mr. Gardner's conscious pain and suffering and loss of enjoyment of life. The trial court carefully instructed the jury as to each of the subparts. As to subpart (f), the trial court instructed the jury:
Conscious pain and suffering and loss of enjoyment of life, in that item we are talking about the pain and suffering suffered by Mr. Gardner during the period of time that he lived from the date of in [sic] the injury until the date ofuntil the date of his death. Now, included in pain and suffering there's both mental and physical suffering. Physicalphysical suffering, of course, is something that we are all somewhat familiar with, we have all had to endure pain to some degree and know something about what it is. Mental suffering is something that is more difficult to define. It's theit's the mental anguish that results from having suffered the physical injuries and the inability to carrythe loss of enjoyment of life, the inability of one to carry on one's life in the same fashion that it would have been carried on had the injury not occurred. The inability to do those things that one otherwise would be able to do; and, again, those are all matters within your discretion. Thethe law sets no magic formula forfor these matters. It's the function of the Jury to consider all of the evidence and to make a decision based upon that evidence and by evaluating that evidence inin the light of your collective wisdom and judgment and experience. (emphasis added).
Contrary to the court's assertion, nothing in this record suggests, nor does the Medical Center contend, that the jury misunderstood or was confused by either the special verdict form or the trial court's proper instruction as to the time span to be considered by the jury. In Michaud v. Steckino, 390 A.2d 524, 536 (Me.1978), we clearly stated the standard of our review of instructions on damages.
This court must presume that the jury followed the trial court's instruction respecting the several elements of damage to which the plaintiff was entitled, once they had decided on the question of liability, and that they did not base any part of their dollar verdict on matters not mentioned in the evidence nor in the charge. It must be presumed that the jurors were influenced in their verdict only by the law as given them by the trial justice and the legal evidence presented to them during the course of the trial, and that no significant extraneous matter infiltrated their decisionmaking. [citations omitted] Any other rule would assume misconduct on the part of the jury, an assumption in which we are not justified to indulge. (emphasis in original).
See also State v. Franzen, 461 A.2d 1068, 1073 (Me.1983) ("We cannot presume that the jury was too ignorant to comprehend the law given to them in this case and to apply the same to the facts which it was within their province to find.") "It is not for the reviewing court to interfere merely because the award is large, or because the court would have awarded less." Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117, 122 (Me.1970) (quoting Baston v. Thombs, 127 Me. 278, 281, 143 A. 63, 64 (1928)).
For the period of the 74 days that Mr. Gardner survived the injury imposed on him by the negligence of the Medical Center, the record is replete with the pain and suffering he endured and his inability to carry on his life in the same fashion that it would have been carried on had the injury not occurred.
The trial court properly exercised its discretion in determining both that the jury's assessment of damages was supported by credible evidence and that the jury had not acted under some bias, prejudice or undue influence or reached its verdict under some mistake of law or in disregard of evidentiary facts. Binette v. Deane, 391 A.2d at 815. Accordingly, I would affirm the decision of the Superior Court.
NOTES
[1] Eastern Maine Medical Center did not provide this court with a transcript of that hearing.
[2] With the adoption of the Rules of Civil Procedure on December 1, 1959, the former optional choice of presenting a motion for new trial directly to the Law Court was abolished. Accordingly, the decisions of this court between 1928 and 1956 cited by Eastern Maine Medical Center in its brief are of scant assistance.
[3] It should be noted that in Chenell v. Westbrook College, we held that the defendant had not demonstrated on the record that the trial court had manifestly abused its discretion in granting the plaintiffs' motion for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561396/ | 18 So. 3d 697 (2009)
STATE of Florida, Appellant,
v.
Robert KONEGEN, Appellee.
No. 4D08-2224.
District Court of Appeal of Florida, Fourth District.
September 30, 2009.
*698 Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellee.
LEVINE, J.
The jury convicted appellee, Robert Konegen, of uttering a forged or false instrument. After the jury returned its guilty verdict, the trial judge granted a defense motion for a judgment of acquittal based on Linn v. State, 921 So. 2d 830 (Fla. 2d DCA 2006). On appeal, the state argues that the trial court erred in granting the motion. Based on the specific facts of this case, we agree with the state and find the court's reliance on Linn to be misplaced.
The standard of review was summarized in State v. Burrows, 940 So. 2d 1259, 1261-62 (Fla. 1st DCA 2006):
A trial court's ruling on a motion for judgment of acquittal is reviewed de novo to determine whether the evidence is legally sufficient to support the jury's verdict. See Pagan v. State, 830 So. 2d 792, 803 (Fla.2002). In criminal cases, legal sufficiency, as opposed to evidentiary weight, is the appropriate concern of the district court, and a heightened standard of proof required in a trial court does not change the standard of review here. See McKesson Drug Co. v. *699 Williams, 706 So. 2d 352, 353-4 (Fla. 1st DCA 1998). It is well settled that, when reviewing a judgment of acquittal, the appellate court must apply the competent, substantial evidence standard and "consider the evidence and all reasonable inferences from the evidence in a light most favorable to the [S]tate." Jones v. State, 790 So. 2d 1194, 1197 (Fla. 1st DCA 2001) (en banc) (citations omitted); see also, Darling v. State, 808 So. 2d 145, 156 (Fla.2002). "If the State has presented competent evidence to establish every element of the crime, then a judgment of acquittal is improper." State v. Williams, 742 So. 2d 509, 511 (Fla. 1st DCA 1999).
At this trial, a bank teller testified that appellee asked her to cash a $5,000 cashier's check, which subsequently turned out to be invalid. The teller testified that appellee did not mention any concerns about the validity of the check and had never asked her to determine if the check was real. A detective, however, testified that appellee confessed that he told the bank teller that he did not know if the check was "fake or not." After the trial court denied his motion for judgment of acquittal at the close of the state's case, the appellee took the stand. The appellee testified that he worked for a real estate company for two months and that he received the check from a potential customer for the purpose of renting a property. He never met the prospective renter, a contract was not signed, and communication was only by email. Appellee also stated that he did not know anything about the person whose signature was on the check. He explained that he was suspicious about the check's validity because it was made out for more than the renter was required to pay. Appellee claimed that he feared the check was part of a "money-laundering scheme," which was why appellee says he related his fears regarding the check's validity to the teller.
The trial court granted the motion for judgment of acquittal, after the jury found him guilty as charged. The trial court relied exclusively on Linn, a case in which the court reversed the defendant's conviction for uttering a forged instrument.
In that case, Linn attempted to cash a forged personal check. Linn, 921 So.2d at 832. The person whose name was forged did not know when or how he lost the check, and he had never seen Linn before. Id. Linn testified that he received the signed check from a man who had introduced himself as the person whose name was on the check. It was payment for maintenance work on a car. Id. at 833. Linn's mother testified that she witnessed the man give him the check. Id. at 832.
Linn argued that the circumstantial evidence presented by the state to prove that he had actual knowledge that the check had been forged[1] was consistent with his reasonable hypothesis of innocence. Id. at 834-35 (citing State v. Law, 559 So. 2d 187, 189 (Fla.1989)). The court found that the state had "presented no evidence that was inconsistent with Linn's explanation" and therefore reversed the conviction. Linn, 921 So.2d at 835.
In this case, unlike Linn, the state presented evidence that was inconsistent with appellee's explanation. Appellee claimed he informed the teller he was concerned about whether the check was real *700 and asked the teller to verify it. The teller testified that appellee did not tell her he was concerned about the validity of the check and had not asked her to verify its validity. Here, the teller's testimony, directly contradicted the appellee's testimony, creating an issue of fact.
Where there is contradictory, conflicting testimony, "the weight of the evidence and the witnesses' credibility are questions solely for the jury," and "the force of such conflicting testimony should not be determined on a motion for judgment of acquittal." State v. Shearod, 992 So. 2d 900, 903 (Fla. 2d DCA 2008) (quoting Fitzpatrick v. State, 900 So. 2d 495, 508 (Fla.2005), and citing Darling v. State, 808 So. 2d 145, 155 (Fla.2002)). Accordingly, we reverse the order granting the judgment of acquittal and remand with directions to reinstate the jury's verdict, enter judgment, and sentence the appellee.
Reversed and Remanded with directions.
DAMOORGIAN and GERBER, JJ., concur.
NOTES
[1] Section 831.02, Florida Statutes (2008), titled "Uttering forged instruments," states as follows:
Whoever utters and publishes as true a false, forged or altered record, deed, instrument or other writing mentioned in s. 831.01 knowing the same to be false, altered, forged or counterfeited, with intent to injure or defraud any person, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3094323/ | The State of TexasAppellee/s
Fourth Court of Appeals
San Antonio, Texas
August 4, 2014
No. 04-14-00158-CR
Alejandro RODRIGUEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR5834
Honorable Melisa Skinner, Judge Presiding
ORDER
On July 31, 2014, Appellant has filed a pro se correspondence with this court requesting
assistance with an appeal. Appellant states he was sentenced on January 16, 2014. We therefore
consider Appellant’s correspondence as a motion is seeking assistance in filing a post-conviction
writ of habeas corpus. This court has “no jurisdiction over post-conviction writs of habeas
corpus in felony cases.” In re Coronado, 980 S.W.2d 691, 692 (Tex. App.—San Antonio 1998,
orig. proceeding); accord TEX. CODE CRIM. PROC. ANN. art. 11.07 (West Supp. 2010). Post-
conviction writs of habeas corpus are to be filed in the trial court in which the conviction was
obtained and made returnable to the Court of Criminal Appeals. See TEX. CODE CRIM. PROC.
ANN. art. 11.07(b) (West Supp. 2010).
Appellant’s motion is DENIED without prejudice to seeking relief in the proper court.
It is so ORDERED on the 4th day of August, 2014.
PER CURIAM
ATTESTED TO: ____________________________
Keith E. Hottle
Clerk of Court | 01-03-2023 | 10-16-2015 |
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