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https://www.courtlistener.com/api/rest/v3/opinions/1561217/ | 565 A.2d 933 (1989)
In the Matter of the Purported Last WILL and Testament OF Russell M. CARTER.
Supreme Court of Delaware.
Submitted January 4, 1989.
Decided September 26, 1989.
Henry A. Heiman, of Heiman, Aber & Goldlust, Wilmington, for appellant Elizabeth Galvin.
Roger A. Akin (argued), Daniel R. Losco, of Sawyer & Akin, P.A., Wilmington, for appellee Ruth Ann Necastro.
Before CHRISTIE, C.J., MOORE and HOLLAND, JJ.
*934 MOORE, Justice.
This appeal is from a ruling of the Court of Chancery that a will and codicil (the "1979 will") of the decedent, Russell W. Carter, satisfied the execution requirements of 12 Del.C. § 202 and should be admitted to probate.[1] The Vice Chancellor found that Carter's technical mistakes in attempting to execute the instruments were cured by the contemporaneous execution of two self-proving affidavits, which were attached to the will and codicil at all times, and which were signed by Carter and his attesting witnesses in the belief that they were properly executing both the will and codicil.[2]
We agree that these documents clearly manifest the testamentary intent of Carter and substantially comply with the requirements of 12 Del.C. § 202. When an affidavit is attached to a will or codicil, and signed by a testator in the honest belief that he or she is executing the will itself, that signature satisfies Delaware law under the doctrine of integration. Accordingly, we affirm with directions that the Register of Wills admit the 1979 will to probate.
I.
The basic facts are not in dispute. In July, 1960, Russell W. Carter executed a will, leaving his entire estate to his wife, Mary B. Carter, and designating their two daughters as alternate beneficiaries to share equally if his wife should predecease him. The will was signed by Carter and three attesting witnesses. Its validity is not questioned by any of the parties.
In 1979, Carter had his lawyer prepare a new will in which one of his two daughters was to receive most of the estate to the exclusion of the other daughter. The first four pages of the instrument contained substantive provisions, and the fifth page was a self-proving affidavit. These five pages were stapled together. Carter's lawyer, who prepared the will, mailed it to Carter along with instructions for its proper execution.
On July 2, 1979, Carter invited some neighbors to his house to witness his execution of the will. Among those present were Marion F. Baker, a notary public, and Barbara and Monty Banning, who served as witnesses. The trial testimony established that Mrs. Baker, who had not previously *935 notarized a will, was unfamiliar with the formalities required for the proper execution of such a document.
There was considerable confusion about the places on the fourth and fifth pages of the will where the testator, Carter, and the notary, Baker, were to sign their names. On page four, the notary signed on the line intended for Carter's signature, apparently because the words above it read, "In witness whereof, I have hereunto set my hand and affix my seal....", and the signature line was followed by the word "(SEAL)". Thus, she mistakenly assumed that she was to sign and affix her notarial seal there. In addition, Carter apparently instructed her to do so. The witnesses both signed on the appropriate lines at the bottom of the page. Carter did not sign on the line actually designated for his signature, nor anywhere else on page four. On page five, the self-proving affidavit, Carter, the notary, and the witnesses all signed in the appropriate places. Significantly, the word "testator" appeared only on page five under the line for Carter's signature.
Six weeks later, Carter decided to modify the July 1979 will, and executed a codicil in similar fashion, signing only the self-proving affidavit on the line with the word "testator" typed beneath it. Again, the notary mistakenly signed and affixed her seal on the line where Carter should have executed the document. As before, the self-proving affidavit was properly executed, with the testator, witnesses and notary signing on the appropriate lines.
After Carter's death in March, 1986, the 1979 will and codicil were rejected by the Register of Wills for failure to comply with the requirements of 12 Del.C. § 202. Thereafter, Carter's daughter, who was the principal beneficiary and executrix under the new will, filed exceptions to the report of the Register.
Initially, these exceptions were heard by a Master, who found the documents invalid because Carter had failed to sign the will and codicil properly. The Vice Chancellor, however, reversed the decision of the Register and ordered that the 1979 will be accepted for probate. Carter's other daughter, whose beneficial interest was substantially reduced by the new will and codicil, filed this appeal.
II.
The issue on appeal, whether an improperly executed will may be validated by a properly executed self-proving affidavit, is one of first impression for us. However, the issue has been addressed elsewhere, and the weight of authority holds that a properly executed self-proving affidavit can validate an improperly executed will. In re Estate of Petty, 227 Kan. 697, 608 P.2d 987 (1980); In re Estate of Charry, 359 So. 2d 544 (Fla.App. 4th Dist.1978); In re Estate of Cutsinger, 445 P.2d 778 (Okla. 1968). But see Orrell v. Cochran, 695 S.W.2d 552 (Tex.1985); In re Estate of Sample, 175 Mont. 93, 572 P.2d 1232 (1977); Boren v. Boren, 402 S.W.2d 728 (Tex.1966).
III.
In construing a will, the intent of the testator is paramount. See In re Kemp's Will, Del.Super., 186 A. 890, 894 (1936); Goldberger v. Goldberger, Del.Ch., 102 A.2d 338, 339 (1954). It is clear from the evidence that Carter intended to revise his will in 1979. In doing so, however, the testament must satisfy the statutory requirements of 12 Del.C. § 202. Clear evidence of intent cannot abrogate the mandatory provisions of § 202, and this Court "has no power to substitute its judgment for that of the legislature as to the essentials of a will." In re Panousseris' Will, Del.Orphans', 151 A.2d 518, 523 (1959).
Section 202 provides that every will must be in writing, signed by the testator, and attested and subscribed in the testator's presence by at least two credible witnesses. 12 Del.C. § 202 (1987). In this case, the document was in writing, and Carter's two neighbors satisfied the statutory attestation requirements by subscribing their names on pages four and five of the instrument. The testator, however, did not sign the will on page four. It is apparent from the evidence that Carter was not sure *936 where to sign. He and the inexperienced notary were confused by the formal language found at the will's end, particularly the word "SEAL." The only signature line with the word "testator" typed beneath it was in the self-proving affidavit on page five of the instrument.
Under the doctrine of integration, a separate writing may be deemed an actual part of the testator's will, thereby merging the two documents into a single instrument. Walsh v. St. Joseph's Home for the Aged, Del.Ch., 303 A.2d 691, 694 (1973); In re Panousseris' Will, 151 A.2d at 523 n. 2. To invoke this doctrine, the separate writing must have existed at the time the will was executed, and the testator must have intended it to constitute his will. 2 W. Bowe & D. Parker, Page on Wills § 19.9, at 75 (Rev.Ed.1960). See also Walsh, 303 A.2d at 694. In this case, the self-proving affidavit was stapled to the instrument and was physically attached to the will at all times. The mere fact that the writing was called an affidavit does not lessen the significance of the testator's signature, or his intent. "Any writing, however informal it may be, made with the express intent of vesting the testator's property in others upon his death ... will be a valid testamentary disposition, no matter what name the testator may give it." In re Kemp's Will, 186 A. at 895. Viewing the self-proving affidavit as a part of the instrument under the doctrine of integration, the testator's signature on page five of the will substantially complies with the requirement under § 202 that every will be signed by the testator.
We recognize that full compliance with statutory requirements for the execution of wills is necessary to minimize fraud or other improprieties, particularly after the testator's lips are sealed by death or incapacity. In re Panousseris' Will, 151 A.2d at 527. Here, there is not the slightest suggestion that the documents Carter signed are inconsistent with his testamentary intent. There is no evidence of undue influence or duress. To the contrary, the testator acted voluntarily, in full command of his mental faculties, and it is beyond doubt that the documents, as executed, reflect his actual intent at the time. The only issue is a highly technical one did Carter, despite his unquestioned testamentary intent, invalidate his will and codicil by not signing on the right lines? We do not think so. In our opinion his signature on affidavits that were attached to the will and codicil at all times substantially complied with the statutory requirements of § 202. The 1979 will and codicil were both in writing and subscribed and attested to by two credible witnesses. The testator signed the affidavits attached to the documents, which became an actual part of them under the doctrine of integration. To adopt a highly technical rule would only frustrate the obvious intent of the testator, and would not advance the aims of § 202. The judgment of the Court of Chancery is AFFIRMED.
NOTES
[1] That statute provides:
§ 202. Requisites and execution of will.
(a) Every will, whether of personal or real estate, must be:
(1) In writing and signed by the testator or by some person subscribing the testator's name in his presence and by his express direction; and
(2) Subject to § 1306 of this title, attested and subscribed in testator's presence by 2 or more credible witnesses.
(b) Any will not complying with subsection
(a) of this section shall be void.
[2] A self-proving affidavit eliminates one aspect of proof of a will, namely the personal appearance of the attesting witnesses before the Register of Wills. 12 Del.C. § 1305 (1987). The affidavit provides verification of witnesses' signatures and attests that the testator executed the will in their presence while appearing to be of sound mind and free from duress. In re Estate of Nelson, Del.Ch., 447 A.2d 438, 445 (1982). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858139/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-313-CR
DAVID TYRONE MINGO,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 42,588, HONORABLE STANTON B. PEMBERTON, JUDGE PRESIDING
PER CURIAM
A jury found appellant guilty of robbery. Tex. Penal Code Ann. § 29.02 (West
1989). The district court assessed punishment, enhanced by two previous felony convictions, at
imprisonment for twenty-five years. Appellant's single point of error challenges the legal
sufficiency of the evidence.
On the day in question, department store security guards watched appellant place
various items of clothing under his jacket and walk out of the store without paying. One of the
guards, Dorinda Clark, approached appellant outside the store, touched his jacket, and said,
"Excuse me, sir." Appellant immediately turned and began to hit Clark with his fists. The
second guard, Alicia Williams, shouted "Store security" and attempted to break up the fight.
Appellant struck her as well. During this scuffle, appellant dropped the stolen goods.
A person commits robbery if, in the course of committing theft and with intent to
obtain or maintain control of the property, he intentionally or knowingly causes bodily injury to
another. Section 29.02(a)(1). Appellant argues that there is no evidence that he caused bodily
injury to Clark with the intent to obtain or maintain control of the stolen property. Appellant
notes that the security guards were not in uniform and that Clark did not identify herself before
approaching him outside the store. Appellant asserts that "the reaction of anyone when touched
from behind, without warning, could very well be to strike out to prevent being assaulted, or even
robbed, themselves."
Appellant's argument is premised on the assumption that the State was required to
prove that he assaulted Clark with intent to obtain or maintain control of the property. In fact,
the Court of Criminal Appeals has stated that this element of the offense concerns the defendant's
state of mind with regard to the property, and not his state of mind with regard to the assault.
White v. State, 671 S.W.2d 40, 42 (Tex. Crim. App. 1984); Ex parte Santellana, 606 S.W.2d
331, 333 (Tex. Crim. App. 1980). Appellant does not contend that the State failed to prove that
he intentionally or knowingly hit Clark.
Even if the State had been obligated to prove that appellant assaulted Clark with
intent to maintain control of the property, we would hold the evidence to be sufficient to sustain
the conviction. Considering all the evidence in the light most favorable to the verdict, a rational
trier of fact could conclude beyond a reasonable doubt that appellant hit Clark for the purpose of
maintaining his possession of the stolen goods. Jackson v. Virginia, 443 U.S. 307 (1979); Griffin
v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). Appellant's suggestion that there is another
reasonable hypothesis with respect to his intent is without merit. Geesa v. State, 820 S.W.2d 154
(Tex. Crim. App. 1991); see also Moone v. State, 802 S.W.2d 101, 104 (Tex. App.--Austin 1990,
pet. ref'd). The point of error is overruled.
The judgment of conviction is affirmed.
Before Justices Powers, Jones and Kidd
Affirmed
Filed: November 17, 1993
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1539940/ | 95 B.R. 451 (1988)
In re FOOD CITY, INC., Debtor.
Bankruptcy No. 88-51685.
United States Bankruptcy Court, W.D. Texas, San Antonio Division.
December 23, 1988.
*452 Randolph N. Osherow, Thomas W. McKenzie, Kampmann & Church, San Antonio, Tex., for debtor.
Andrew E. Jillson, Jeffrey H. Weir II, Jenkins & Gilchrist, P.C., Dallas, Tex., for KP/Miller Realty Group Fund I.
David S. Gragg, Jeffers, Brook, Kreager & Gragg, Inc., San Antonio, Tex., for NCNB Texas Nat. Bank as successor to First Republic Bank San Antonio, N.A.
Ben Steinhauser, Burns and O'Gorman, San Antonio, Tex., for Mendez Bros. Produce Co.
Bruce Waitz, Waitz, Greer, Harrell & Cennamo, San Antonio, Tex., for Official Unsecured Creditors' Committee.
DECISION AND ORDER
LEIF M. CLARK, Bankruptcy Judge.
At San Antonio, Texas on the 10th day of November, 1988, came on for hearing the Application of K.P./Miller for payment of administrative expenses arising from breach of a covenant of a nonresidential real property lease, together with the Responses thereto by the debtor, the official creditors' committee, and NCNB-Texas National Bank. Upon consideration thereof, the court enters the following decision and order.
BACKGROUND FACTS
KP/Miller Realty Growth Fund I ("KP Miller") leased a commercial site in a shopping center to Food City, the debtor in this case, for one of the debtor's discount grocery marts. The site comprised forty percent of the total leased space in the shopping center. According to KP Miller's representative, the grocery accounted for a substantial portion of the "traffic" throughout the center, one of the prime benefits to be gained by the landlord from renting the space to such a tenant as the debtor. KP Miller spent something in excess of $250,000 in tenant finish-out, as part of the inducement to Food City to lease the space. The lease was executed in December 1987.
Some seven months before, the previous tenant (another supermarket retailer) had moved out without warning. It built its own store less than a mile away, but prevented a competitor from moving into the *453 vacated space by holding the lease with continued monthly payments. In the process, it deprived the landlord of the traffic an active tenant would otherwise provide for the remainder of the center. KP Miller insists that it was this bitter experience which lead to the inclusion of a "going dark" clause in the current lease. This rather unusual provision levied a fee of $250,000 against the debtor if the debtor ceased to do business as a grocery store on the premises within the term of the lease.[1]
The debtor filed bankruptcy on or about June 3, 1988. Sixteen days later, on June 19, 1988, the debtor "went dark" at this location. The debtor took no steps to assume or reject the lease until nearly the end of the sixty day grace period provided in Section 365(d)(4).[2] The creditor, meanwhile, took no steps to enforce the terms of the "going dark" clause until July 28, 1988, when it filed its motion for immediate payment of administrative expenses. The lease was deemed rejected by operation of law on August 2, 1988.
KP Miller contends that the debtor failed to "timely perform" one of its obligations under the lease after the bankruptcy filing, namely, the obligation to continue operating a grocery store on the leased premises. As a result, it contends that the debtor has incurred an administrative claim of $250,000 due to KP Miller. What is more, KP Miller adds that the fee is immediately due and payable, because the obligations imposed by this section of the Bankruptcy Code are independent of Section 503(b)(1), which otherwise regulates the allowance of administrative claims for the actual, necessary costs and expenses of preserving the estate. See In re By-Rite Distributors, Inc., 47 B.R. 660 (Bankr.D.Utah 1985).
KP Miller relies heavily on Section 365(d)(3), which provides that
The trustee shall timely perform all the obligations of the debtor, except those specified in section 365(b)(2), arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, notwithstanding section 503(b)(1) of this title. . . .
11 U.S.C. § 365(d)(3) (emphasis added).
The debtor, the unsecured creditors' committee, and NCNB, the debtor's principal secured lender all oppose KP Miller's request.[3] They maintain that Section 365(d)(3) was never intended to apply to this sort of default. Even if it did, it would in any event not entitle the landlord to recover any more than state law would authorize and, under Texas law, such penalties *454 are not enforced. Finally, they argue that, in any event, the debtor is not guilty of failure to "timely perform," because its liability under the lease would mature only upon the expiration of thirty days' notice of default. They point out that no notice was given, other than the filing of the motion for payment of administrative expense, and that thirty days after that motion's filing would place timely performance outside the sixty day period during which the duty imposed by Section 365(d)(3) applies.[4] For the reasons set out herein, this court finds the debtor's position (and the position of its allies) the more tenable and denies the requested relief.
ANALYSIS
I. The obligation in question was not the sort of obligation contemplated by Section 365(d)(3)
The default in question does not appear to have arisen from the rejection of the lease, as it took place more than a month prior to the debtor's formal rejection of the lease. 11 U.S.C. § 365(g).[5] A debtor may decide to neither assume nor reject for a period of time, while it evaluates its options. During this "grace period," the general rule has been that the debtor will still be liable to the nondebtor party to the lease or executory contract for the value of the services or benefits derived therefrom, to the extent the services were reasonably necessary and to the extent of the benefit derived by the estate. See In re By-Rite Distributing, Inc., 47 B.R. 660, 663-64 (Bankr.D.Utah 1985). Such claims have traditionally been accorded priority status as administrative claims arising under Section 503(b)(1). The claim was only allowed upon application, and was not paid until the time for distribution of assets. In a chapter 11 case, that generally did not occur until confirmation. 11 U.S.C. § 1129(a)(9)(A); 3 Collier on Bankruptcy, para. 503.02 at 503-5 (1987).
Section 365 was amended in response to intense lobbying by shopping center landlords who chafed under Section 502(b)(1)'s constraints. In re By-Rite Distributors, Inc., supra. At least two discrete problems were raised by that lobby and addressed by Congress in two separate provisions of Section 365(d).
First, there was the problem of long-term vacancy or partial occupancy. The landlord could not re-let the space until the lease was actually rejected, but the "dark" store hurt other tenants because of reduced customer traffic and the bad impression that a dark store makes. 130 Cong Rec S8894 (June 29, 1984) (remarks of Sen. Hatch). To remedy this problem, Congress enacted Section 365(d)(4), which forced the debtor to make a decision to assume or reject within sixty days or the lease would be rejected automatically and the debtor forced to surrender the premises to the landlord, if it had not already done so. Id.; 11 U.S.C. § 365(d)(4). In this way, Congress reallocated the relative burdens imposed by a tenant's "going dark" by limiting the landlord's exposure to sixty days. The harm to the landlord was not entirely eliminated, however, as landlords must bear part of the cost of bankruptcy just as must other creditors and the debtor.[6]
*455 Section 365(d)(3) was enacted to address a different problem, that of a landlord's having to "carry" the cost of the tenant's occupancy, often at the expense of other tenants.
A second and related problem is that during the time the debtor has vacated space but has not yet decided whether to assume or reject the lease, the trustee has stopped making payments due under the lease. These payments include rent due the landlord and common area charges which are paid by all the tenants according to the amount of space they lease. In this situation, the landlord is forced to provide current services the use of its property, utilities, security, and other services without current payment. No other creditor is put in this position. In addition, the other tenants often must increase their common area charge payments to compensate for the trustee's failure to make the required payments for the debtor.
Id. (emphasis added). To meet this problem, Section 365(d)(3) requires the trustee to maintain these "current" obligations:
The bill would lessen these problems by requiring the trustee to perform all the obligations of the debtor under a lease of nonresidential real property at the time required in the lease. This timely performance requirement will insure that debtor-tenants pay their rent, common area, and other charges on time pending the trustee's assumption or rejection of the lease.
Id. (emphasis added); 11 U.S.C. § 365(d)(3).[7] The clear intent is thus to assure that landlords not be compelled to furnish current services without being compensated on a current basis.[8]
The use in the statute of the phrase "all obligations" must be read against the backdrop of the legislative history, which did not purport to confer a windfall on landlords but merely to protect them from bearing too much of the burden incident to the process of assumption/rejection.
KP Miller, however, arguing that the phrase must be given a literal interpretation, contends that Food City's obligation was to pay KP Miller $250,000 when it moved out. That interpretation does not square well either with a fair reading of the lease or with a fair reading of the statute as a whole.
First of all, the "obligation" in question is not to pay the fee, but to keep the store open, i.e., not to "go dark." It was that obligation which, when breached, raised the issue of the charge.[9] The fee itself is merely the remedy for failure to perform, i.e., for not keeping the store open and operating. In this regard, the "going dark" fee differs fundamentally from other rights to payment under the lease. Rents, for example, are not a remedy for breach of an obligation. They are the obligation. The same is true for such other items as common area maintenance charges, utilities, and even taxes. See 130 Cong Rec S8994-95 (daily ed. June 29, 1984) (remarks of Sen. Hatch) ("this timely performance *456 requirement will insure that debtor-tenants pay their rent, common area and other charges on time . . ."). Section 365(d)(3) may compel timely performance of obligations due under the lease, such as the obligation to pay rent. It does not, in this court's view, compel the timely payment of the default remedy for failure to timely perform an obligation due under the lease, such as the obligation to keep the store open.
The obligation not to go dark is not a proper subject for Section 365(d)(3) in any event.[10] In fact, the problem of early vacancy is already addressed far more efficiently by Section 365(d)(4), which returns the premises to the landlord within 60 days after the bankruptcy filing. There is no need to look to Section 365(d)(3) for further remedy to the problem and to do so only confers a benefit on landlords never intended by Congress.[11]
Even were the obligation in question to be in fact the obligation to pay the "going dark" fee, Section 365(d)(3) does not purport to encompass such a fee within its directive that the trustee timely perform all the obligations of the debtor. See footnote 10, supra. Virtually every case which has ever applied this statute (including every case cited by KP Miller in its brief) has done so in the context of current obligations such as rent, common area maintenance charges, trash pick-up and the like. In re Rare Coin Galleries of America, Inc., 72 B.R. 415, 416 (D.Mass.1987) (rent and trash pick-up); In re Dieckhaus Stationers of King of Prussia, Inc., 73 B.R. 969, 972 (Bankr.E.D.Pa.1987) (rents); In re DeSantis, 66 B.R. 998, 1004-05 (Bankr.E. D.Pa.1986) (rents); In re Coastal Dry Dock & Repair Corp., 62 B.R. 879, 882-83 (Bankr.E.D.N.Y.1986) (rents and utility charges); Matter of Lonqua, 58 B.R. 503, 505 (Bankr.W.D.Wis.1986) (rents). None of these cases authorized recovery of liquidated damages, penalties, or other extraordinary fees. This court does not believe that Congress ever intended the word "all" to be read so literally that it would include such charges as this "going dark" fee simply because the charge serendipitously arises during the sixty day grace period preceding the deadline for assumption or rejection.[12]
II. The debtor was not obligated under Section 365(d)(3) because timely performance of the obligation was not required within the 60 day period contemplated under that section
Even if KP Miller were right in its interpretation of Section 365(d)(3), it is wrong in application of its salutary provisions to the facts of this case, for the default in question did not become an obligation of the estate until August 28, 1988, thirty days after the first writing which could be considered a notice of default under *457 the lease. The lease specifically accords the debtor thirty days within which to cure any breach of a covenant under the lease, one of which is the covenant not to "go dark."[13] Under Section 365(d)(3), the trustee is obligated to timely perform the obligation of the debtor. Timely performance in this case would not have been triggered until the notice was sent.
KP Miller argues that the automatic stay prevented the landlord from giving notice under the lease.[14] Arguably, the automatic stay should not prevent a landlord from enforcing a post-petition obligation of the trustee that arises under the Bankruptcy Code itself.[15] By virtue of Section 365(d)(3), the current obligations of the debtor are imposed upon the trustee. A number of courts have acknowledged that the section is disquietingly silent about the remedies available to the landlord when the debtor does not timely perform these obligations. In re Dieckhaus Stationers of King of Prussia, Inc., 73 B.R. 969, 973 (Bankr.E.D.Pa.1987); In re Compass Van & Storage Corp., 61 B.R. 230, 233 n. 4 (Bankr.E.D.N.Y.1986); In re Musikahn, 57 B.R. 942, 945 (Bankr.E.D.N.Y.1986); In re Southwest Aircraft Services, Inc., 53 B.R. 805, 808 (Bankr.C.D.Cal.1985). The landlord's caution is understandable, in view of the substantial damages which can accrue from a violation of the stay. See 11 U.S.C. § 362(h); see generally Comment, Monetary Awards to the Debtor for Violations of the Automatic Stay, 11 Fla.S.U.L.Rev. 423 (Summer 1983).
Caution does not translate into excuse, however. Cases in this area suggest a number of ways in which the matter could have been brought to a head, for example, by filing a motion for relief from stay, as was done in Compass Van & Storage Corp., or by filing a motion to compel performance under Section 365(d)(3), as the landlord did in Dieckhaus Stationers. As it was, KP Miller took no such action until nearly the end of the sixty-day grace period. Under the exact terms of the lease (and it is KP Miller which so strenuously insists on the lease's exact terms), the Debtor had thirty days after notice, and until the expiration of that grace period, was excused from performance. The first "written notice" was KP Miller's application, filed July 28, 1988. Thirty days expired at a point in time which all agree was well after the lease was rejected by operation of law. Section 365(d)(3) does not apply to the payment of the "going dark" penalty under the facts of this case.
KP Miller counters that the fee was in fact due immediately upon the debtor's going *458 dark, noting for support how important it was to KP Miller to prevent a repeat of its experience with a previous grocer at this location. Such a close reading of the "going dark" clause would cut off any chance to cure the default, rendering nugatory the default and cure provisions of the lease. In construing a contract, a court should arrive at that interpretation which most harmoniously gives effect to all of its substantive terms. Deaville Corp. v. Federated Dept. Stores, Inc., 756 F.2d 1183 (5th Cir.1985); R.C. Small & Assoc., Inc. v. Southern Mechanical, Inc., 730 S.W.2d 100 (Tex.App. Dallas 1987, no writ); Seaman v. Seaman, 686 S.W.2d 206 (Tex.App. Houston [1st Dist.] 1984, writ ref'd n.r.e.). The generic default provision is not overridden by any more specific default terms in the "going dark" clause itself. A fair reading of both clauses together leads to the conclusion that KP Miller could not have successfully collected the "going dark" fee in a nonbankruptcy setting until the debtor had been afforded the opportunity to cure the default. There is no reason to give the word "due" any different reading in the bankruptcy context.
The real function of the "going dark" fee was to discourage the very thing that happened. Once it happened, the fee was proved to be ineffective as a deterrent, much as security interests often fail as deterrents to default. We do not grant immediate relief from stay to secured creditors solely on a showing that the debtor defaulted. We should be no more solicitous of this landlord, especially as the statute already treats landlords of nonresidential real property far more favorably than it treats secured creditors of the debtor. Compare 11 U.S.C. § 365(d)(4) with 11 U.S.C. § 362(d)(2)(B) and United Savings Association of Houston, Texas v. Timbers of Inwood Forest Assoc., Ltd., 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). The leasehold premises were returned to KP Miller just sixty days after filing, far sooner than most secured creditors recover their collateral in a bankruptcy case of this size and complexity.[16]
III. The damages sought in any event are not compensable under state law because they are liquidated damages in the nature of a penalty
The Debtor, the Creditors' Committee, and NCNB all argue that the "going dark" fee is not recoverable in any event, as it represents a penalty which could not be enforced under Texas law. See Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952); Community Development Service, Inc. v. Replacement Parts Manufacturing, Inc., 679 S.W.2d 721 (Tex.App. Houston [1st Dist] 1984, no writ). While there may be merit to that position, the court need not address the issue at this time, as it has already concluded that the "going dark" fee cannot be recovered under the authority of Section 365(d)(3). The testimony does indeed suggest, however, that the damages which KP Miller alleges it suffered as a result of the closing of Food City's store flow from the loss of traffic at the center, and not the cost of the tenant finish-out. The testimony also strongly indicates that the fee's function was to induce specific performance with the threat of a costly penalty in the event of a breach. If the fee is indeed a penalty, it may be recovered only to the extent KP Miller proves its actual damages flowing from the closing. See Community Development Services, Inc. v. Replacement Parts Manufacturing, Inc., supra. In any event, the fee will be an allowed administrative expense only to the extent it represents an actual, necessary cost or expense of preserving the estate. 11 U.S.C. § 503(b)(1)(A).[17]
*459 It is therefore ORDERED, ADJUDGED, and DECREED that the application of KP Miller to recover the "going dark" fee of $250,000 under Section 365(d)(3) be and the same is hereby denied. The claim is disallowed as a claim under Section 365(d)(3), without prejudice to refiling. The Debtor is ORDERED, however, to pay KP Miller, the remaining charges sought in its motion, consisting of two months' rent (including late charges), common area maintenance charges, utilities, and the like, within ten (10) days of the effective date of this order. This order does not constitute either allowance or disallowance of KP Miller's claim under Sections 503(b)(1)(A), 502(g), or 502(b)(6).
NOTES
[1] The provision reads as follows:
Tenant shall commence business operations in the leased premises on or immediately after the Commencement Date and shall operate its business in an efficient, high class and reputable manner so as to produce the maximum amount of sales from the leased premises. Tenant shall only operate in the entire leased premises the type of business . . . for which the leased premises are leased. In the event that the Tenant shall leave the leased premises vacant and shall not conduct and carry on in the entire leased premises the type of business [specified], Tenant must pay to Landlord (which fee is in addition to all other rights and remedies of Landlord) a fee for "going dark" as follows: (i) if the closing of the store on the leased premises occurs on or before the third anniversary of the date on which Tenant occupied the leased premises ("Occupancy Date"), the fee is $250,000 or if less, the actual amount paid to Tenant by Landlord pursuant to the Tenant Finish-out Allowance of even date herewith . . .
The parties agree that more than $250,000 was paid to the Tenant (or paid out for the benefit of the Tenant) in finish-out expenses, though there was dispute over whether the funds were "advances" or "expenses incurred." The distinction is without a difference.
[2] The section provides as follows:
Notwithstanding paragraphs (1) and (2), in a case under any chapter of this title, if the trustee does not assume or reject an unexpired lease of nonresidential real property under which the debtor is the lessee within 60 days after the date of the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such lease is deemed rejected, and the trustee shall immediately surrender such nonresidential real property to the lessor.
11 U.S.C. § 365(d)(4) (Bankr.L.Ed.1988).
[3] The secured creditor would, in all likelihood, have to fund the payment of the expense if the court determines it is due immediately, as all of the debtor's current cash is encumbered by cash collateral orders, a simple reality which explains its alliance with the debtor and the unsecured creditors on this point.
[4] The obligation to perform expires upon the assumption or rejection of the lease in question. Section 365(d)(4) operates to reject the lease by operation of law if it is not affirmatively assumed within the sixty day period there specified (unless the sixty day period is extended and it was not in this case). Thus, the duty to timely perform the lease's obligations would in all events have terminated in this case on August 2, 1988, just five days after the motion to pay administrative expenses was filed by KP Miller.
[5] Section 502(g) accords the nondebtor party to an executory contract an allowed unsecured claim for claims arising from the rejection of such a contract, including the deemed rejection that results from failing to timely assume an unexpired nonresidential lease. 11 U.S.C. § 502(g). The court need not and does not reach this issue on the merits at this time.
[6] Congress contemplated that a landlord might well have to suffer sixty days worth of vacancy as part of the shared burden of bankruptcy. 130 Cong Rec S8894 (June 29, 1984) (remarks of Sen. Hatch) ("The bill would lessen the problems caused by extended vacancies . . ."). If more immediate relief is needed, a landlord in KP Miller's position could always move for immediate rejection of the lease under Section 365(d)(2) and ask for an expedited hearing, in an effort to mitigate its damages suffered as a result of the breach of its "going dark" provision. See Bankr.R. 9006. It might also conceivably seek relief from the automatic stay. In re DeSantis, 66 B.R. 998, 1001 (Bankr.E.D.Pa. 1986).
[7] The debtor can obtain a reprieve from paying these current obligations immediately, though the reprieve is only good for the first sixty days, after which they must be paid on a current basis. 130 Cong Rec S8894 (June 29, 1984) (remarks of Sen. Hatch). No such reprieve was sought in this case.
[8] It was apparently the one-sidedness of excusing one party's performance while holding the other party to continued performance that offended Congress. Such a result is out of keeping with the very definition of an executory contract, under which a failure to perform by one party is said to excuse performance by the other party. See V. Countryman, "Executory Contracts in Bankruptcy," 58 Minn.L.Rev. 479, 502 (1974). If a debtor is going to be able to insist on continued use of leasehold premises, that debtor should be prepared to pay for that use on a current basis.
[9] The charge itself was also, of course, an obligation once assessed, but not one that was reasonably incident to continued performance. The focus of Section 365(d)(3) is on mutual obligations of the sort the failure of which will excuse the other party from further performance.
[10] The obligation to continue operations does not fit well within the statutory framework of Section 365(d)(3). For example, "[t]he court may extend, for cause, the time for performance of any such obligation that arises within 60 days after the date of the order for relief. . . ." 11 U.S.C. § 365(d)(3). It is difficult to conceive what such an extension would mean in the context of a debtor such as Food City desiring to cease operations immediately. In fact, the "going dark" provision is more properly characterized as a negative covenant than an affirmative obligation. It makes no sense to talk of "timely performance" of negative covenants.
[11] A thing may be within the letter of a statute and yet not within that statute because not within its spirit nor within the intention of its makers. California Federal Savings & Loan Assoc. v. Guerra, 479 U.S. 272, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987); Anderson Bros. Ford v. Valencia, 452 U.S. 205, 101 S.Ct. 2266, 68 L.Ed.2d 783 (1981); United Steelworkers of America, et al. v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979).
[12] Indeed, KP Miller's interpretation would tend to undercut the grace period which Section 365(d)(4) grants the estate for deciding whether to assume or reject. To avoid having to pay a huge charge as an immediate administrative expense under Section 365(d)(3), the trustee would be forced to reject the lease immediately. Such an interpretation would encourage landlords to insert "poison pills" in their leases to force just such precipitous rejections, a result entirely inconsistent with the spirit of the Bankruptcy Code. One part of a statute should not be interpreted in a fashion which would undermine other portions of the same statute. United Savings Assoc. of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988).
[13] The applicable default provision reads as follows:
The following events shall be deemed to be events of default by Tenant under this lease:
. . . . .
(b) Tenant shall fail to comply with any term, provision or covenant of this lease, other than as described in subsection (a) above [relating to rental obligations], and shall not cure such failure within thirty (30) days after written notice thereof to Tenant.
The applicable remedy provision reads as follows:
Upon occurrence of any such events of default, Landlord may enforce the performance of such defaulted covenant in any manner provided by law, and/or may declare this lease forfeited at Landlord's discretion, and/or Landlord, or his agents or attorneys, shall have the right, without further notice or demand, to re-enter and remove all persons therefrom without being deemed guilty of any manner of trespass, and without prejudice to any remedies for arrears of rent or breach of covenants, or the Landlord, or Landlord's agent or attorney, may resume possession of the leased premises, and relet the same for the remainder of the term, at the rent it may obtain for the account of the Tenant who shall make good any deficiency of all rents.
[14] KP Miller's representative acknowledged that, on the advice of counsel, she did not send the notice letter contemplated by the default portion of the lease, evidently fearing a violation of the automatic stay.
[15] See In re S. & F. Concession, Inc., 55 B.R. 689, 691 (Bankr.E.D.Pa.1985) ("the clear language of § 365(d)(3) mandates that the trustee immediately pay all postpetition rent and remain current on future rent payments as they come due"); In re Dieckhaus Stationers of King of Prussia, Inc., 73 B.R. 969, 973 (Bankr.E.D.Pa. 1987) ("I conclude that a . . . claim arising under section 365(d)(3) should be paid immediately unless the trustee establishes good cause for withholding the payment"); In re M.H.I., Inc., 61 B.R. 69, 70 (Bankr.D.Md.1986) ("§ 365(d)(3) carries with it a mandatory direction to maintain lease payments until the lease is rejected").
[16] KP Miller also notes that it actually expended more than $250,000 to finish out the store, and that the "going dark" fee was intended to approximate recovery of that cost. Had Food City not moved out, however, KP Miller would have no doubt gladly absorbed that cost. Had Food City elected to assume the lease after "going dark," it arguably could have escaped paying the fee, notwithstanding its obligation to cure outstanding defaults, on grounds that the fee is a penalty not recoverable under Texas law. See Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952).
[17] The claim may even turn out to be a claim arising from termination of the lease, or a claim arising from the rejection of the lease. See 11 U.S.C. §§ 365(g), 502(b)(6), 502(g). The court reserves this question until such time as the claim is subjected to the appropriate claims allowance process. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2694532/ | [Cite as State v. Hido, 2011-Ohio-2560.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 10CA0046
vs. : T.C. CASE NO. 09TRC10960
09CRB04379
STACY HIDO :
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 27th day of May, 2011.
. . . . . . . . .
Michael F. Sheils, Chief City Prosecutor, Atty. Reg. No.0021678,
50 East Columbia Street, Springfield, OH 45502
Attorney for Plaintiff-Appellee
Charles M. Rowland, II, Atty. Reg. No.0065603, 2190 Gateway Drive,
Fairborn, OH 45324
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Stacy Hido, appeals from her conviction and
sentence for operating a motor vehicle while under the influence
of alcohol (OVI).
{¶ 2} On September 6, 2009, at 10:10 a.m., an Ohio Highway
Patrol air patrol unit clocked Defendant’s vehicle at 85 m.p.h.
2
in a 65 m.p.h. zone, Westbound on I-70 just East of State Route
54. Sergeant Bush, who was in a marked cruiser and working with
the air patrol unit, stopped Defendant’s vehicle. Before
Defendant pulled over to the side of the road and stopped, Sergeant
Bush observed her trying to stuff something underneath the
vehicle’s front seat.
{¶ 3} When Sergeant Bush made contact with Defendant, the
driver and sole occupant of the vehicle, she admitted that her
driver’s license had expired. After Defendant rolled down her
window, Sergeant Bush smelled a strong odor of alcohol.
Defendant’s eyes were glassy and bloodshot, and she was very
nervous. When asked by Sergeant Bush, Defendant denied drinking
any alcoholic beverages. Defendant stated that her step-father
had spilled beer on her.
{¶ 4} Sergeant Bush asked Defendant for identification but
she had none. Sergeant Bush then asked Defendant to sit in the
front passenger seat of his cruiser so that he could obtain
information to identify her. While Defendant was sitting in
Sergeant Bush’s cruiser, he noticed that a very strong odor of
alcohol came from Defendant’s breath.
{¶ 5} Sergeant Bush asked Defendant to perform three field
sobriety tests. The first test was the horizontal gaze nystagmus
(HGN) test. Sergeant Bush observed six out of six possible clues.
3
The next test was the walk and turn test. Defendant started before
the instructions were completed, and she raised her arms for
balance. The final test was the one leg stand test. Defendant
raised her arms for balance and put her foot down at the count
of seventeen. Defendant’s having failed all three field sobriety
tests, Sergeant Bush arrested Defendant for OVI.
{¶ 6} Another trooper, who had stopped to assist, discovered
an open container of beer underneath the front seat of Defendant’s
vehicle. Defendant was transported to the Springfield Highway
Patrol post where she was given a breath test that produced a result
of .117, well over the legal limit.
{¶ 7} Defendant was charged in Clark County Municipal Court
with speeding, R.C. 4511.21, driving on an expired license, R.C.
4510.12, and operating a motor vehicle with a prohibited breath
alcohol concentration, R.C. 4511.19(A)(1)(d). Defendant filed
a motion to suppress the evidence, including the results of the
field sobriety tests, the Breathalyzer test, and the observations
and opinions of Sergeant Bush. A hearing was held on the motion.
The trial court overruled Defendant’s motion to suppress
evidence.
{¶ 8} Defendant entered a plea of no contest to the OVI charge
and was found guilty by the court. In exchange, the State dismissed
the other pending charges. The trial court sentenced Defendant
4
to ninety days in jail with eighty days suspended, a six hundred
and fifty dollar fine, and a two year driver’s license suspension.
Defendant was also placed on six months probation and ordered
to complete an alcohol abuse assessment and treatment. Defendant
filed a notice of appeal from her judgment of conviction. The
trial court stayed execution of Defendant’s sentence pending this
appeal.
FIRST ASSIGNMENT OF ERROR
“THE STATE FAILED TO SHOW PROBABLE CAUSE FOR THE ARREST AND
THE EVIDENCE SHOULD BE SUPPRESSED.”
{¶ 9} Defendant does not contest that her initial stop for
speeding was lawful. Dayton v. Erickson, 76 Ohio St.3d 3,
1996-Ohio-431. Rather, Defendant claims that her arrest lacked
probable cause because police lacked a reasonable, articulable
suspicion that she was operating her vehicle while under the
influence of alcohol, which was necessary to justify her continued
detention for further investigation through field sobriety tests.
State v. Evans (1998), 127 Ohio App.3d 56. Defendant argues that
the evidence merely demonstrates that Defendant had consumed
alcohol, not that she was impaired. State v. Knox, Greene App.
No. 2005CA74, 2006-Ohio-3039. We disagree.
{¶ 10} Defendant relies upon prior decisions of this court
holding that an odor of alcohol, or a slight or unspecified odor
5
of alcohol, coupled with a de minimus traffic violation, glassy
bloodshot eyes, and an admission to having consumed one or two
beers, was insufficient to create a reasonable suspicion of driving
under the influence and justify further detention in order to
conduct field sobriety tests. State v. Spillers (Mar. 24, 2000),
Darke App. No. 1504; State v. Dixon (Dec. 1, 2000), Greene App.
No. 2000-CA-30; State v. Swartz, Miami App. No. 2008CA31,
2009-Ohio-902. This court has, however, repeatedly held that a
strong odor of alcohol alone may be sufficient to provide an officer
with reasonable suspicion of criminal behavior. See: State v.
Marshall, Clark App. No. 2001CA35, 2001-Ohio-7081 (and the cases
cited therein).
{¶ 11} Defendant was stopped for going 85 m.p.h. in a 65 m.p.h.
zone. This is not a situation involving “nominal” speeding, but
rather one involving excessive speeding, which we have held is
some evidence of impairment. State v. Syx, Montgomery App. No.
23589, 2010-Ohio-5880; State v. Gower, Darke App. No. 1616,
2003-Ohio-5403. When Sergeant Bush made contact with Defendant,
he smelled a strong odor of alcohol coming from Defendant’s breath
and noticed that Defendant’s eyes were glassy and bloodshot and
that she was very nervous. Simply put, these facts are sufficient
to give rise to a reasonable suspicion of impairment that justified
Defendant’s detention to conduct field sobriety tests.
6
Furthermore, after Defendant failed all three field sobriety tests,
police had sufficient probable cause to arrest Defendant for OVI.
{¶ 12} Defendant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
“THE STATE FAILED TO MOVE INTO EVIDENCE ANY STANDARDS BY WHICH
THE COURT COULD FIND SUBSTANTIAL COMPLIANCE FOR CONDUCTING
STANDARDIZED FIELD SOBRIETY TESTS.”
{¶ 13} Defendant argues that because the three field sobriety
tests Sergeant Bush administered were not shown to have been
conducted in substantial compliance with National Highway Traffic
Safety Administration (NHTSA) standards, the results of those tests
were inadmissible, and without those test results Sergeant Bush
lacked probable cause to arrest Defendant for OVI.
{¶ 14} In State v. Reed, Montgomery App. No. 23357,
2010-Ohio-299, at ¶53, this court observed:
{¶ 15} “The results of field sobriety tests are admissible
at trial if the State presents clear and convincing evidence that
the officer administered the tests in substantial compliance with
National Highway Traffic Safety Administration (‘NHTSA’)
standards. R.C. 4511.19(D)(4)(b); State v. Schmitt, 101 Ohio St.3d
79, 801 N.E.2d 446, 2004-Ohio-37; State v. Davis, Clark App.
No.2008-CA-65, 2009-Ohio-3759. The State can satisfy its burden
without explicit testimony from the officer that he or she
7
substantially complied with NHTSA standards in administering the
tests. Davis. Neither is the State required to actually introduce
the NHTSA manual or testimony concerning the standards, where the
record demonstrates, if only by inference, that the court took
judicial notice of the NHTSA standards. State v. Knox, Greene App.
No.2005-CA-74, 2006-Ohio-3039.” That is the case here.
{¶ 16} Evidence that the pertinent rules and regulations have
been followed in conducting field sobriety tests, if unchallenged,
constitutes a sufficient foundation for admission of the test
results. State v. Murray, Greene App. No. 2002-CA-10,
2002-Ohio-4809. Only when a defendant sufficiently challenges
the evidence would the State then need to present more evidence
of more specific compliance. Id. For example, testimony by the
officer that he or she had been trained to perform the horizontal
gaze nystagmus (HGN) test, the walk and turn test, and the one-leg
stand test under NHTSA standards, and that the tests were performed
in the manner in which the officer had been trained, would suffice
for admission of the field sobriety test results, absent a challenge
to some specific way the officer failed to comply with NHTSA
standards. Murray; Knox.
{¶ 17} Defendant points to several matters in the NHTSA manual
that Sergeant Bush did not remember, most of which have nothing
to do with the administration of field sobriety tests. Further,
8
Defendant fails to specify in his brief the specific way in which
Sergeant Bush’s administration of the three field sobriety tests
failed to comply with the requirements in the NHTSA manual for
administering those tests.
{¶ 18} A review of Sergeant Bush’s testimony, particularly
his cross-examination, not surprisingly discloses that he has not
committed every detail in the NHTSA manual to memory, nor was his
administration of the three field sobriety tests in this case in
strict compliance with every detail in the NHTSA manual. Strict
compliance is not the standard, however. Substantial compliance
is sufficient. R.C. 4511.19(D)(4)(b); State v. Boczar, 113 Ohio
St.3d 148, 2007-Ohio-1251. We agree with the trial court that
Sergeant Bush’s testimony, taken as a whole, satisfy the
substantial compliance requirement.
{¶ 19} Sergeant Bush testified that he is trained to use
standardized field sobriety tests, including the HGN test, the
walk and turn test and the one leg stand test, that conform to
NHTSA standards. He explained how to conduct the horizontal gaze
nystagmus (HGN) and walk and turn tests. The parties stipulated
that Sergeant Bush is familiar with the walk and turn and one leg
stand tests in the NHTSA manual. Sergeant Bush testified that
he performed the field sobriety tests in this case as he was trained
to do. That evidence is sufficient to demonstrate substantial
9
compliance with NHTSA standards for the field sobriety tests,
absent a challenge to some specific way Sergeant Bush failed to
comply with NHTSA standards in administering those tests.
{¶ 20} Defendant’s second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
“THE DEFENDANT WAS PLACED IN CUSTODY WHEN SHE WAS SUBJECTED
TO FIELD SOBRIETY TESTS IN THE TROOPERS CRUISER AND WAS REMOVED
TO A DIFFERENT LOCATION FOR COMPLETION OF THE STANDARDIZED FIELD
SOBRIETY TESTS.”
{¶ 21} After being stopped for speeding and having failed to
produce a driver’s license or any other form of identification,
Defendant was asked to sit in the front passenger seat of Sergeant
Bush’s cruiser while he gathered information to verify Defendant’s
identity. The first field sobriety test, the horizontal gaze
nystagmus (HGN) test, was performed inside Sergeant Bush’s cruiser.
Defendant argues that there was no legal justification to have
her sit in Sergeant Bush’s cruiser, which resulted in an illegal
detention/arrest.
{¶ 22} We have previously held that a police officer may ask
traffic offenders who are not carrying their driver’s license
or any other form of identification to sit in a police cruiser
while the officer verifies the person’s identity. State v. Fritz,
Montgomery App. No. 23054, 2009-Ohio-6690; State v. Dozier,
10
Montgomery App. NO. 23841, 2010-Ohio-2918. Before putting the
person into the police cruiser, the officer may not lawfully perform
a weapons patdown if the only reason for putting the person in
the cruiser is for the officer’s convenience as he verifies the
person’s identity. Id. In the present case no pat-down was
performed.
{¶ 23} Having Defendant sit in the front seat of Sergeant
Bush’s cruiser while he verified Defendant’s identity and
administered the horizontal gaze nystagmus test did not convert
an investigative detention into a full blown arrest. An arrest,
which must be supported by probable cause to be valid, is
characterized by four elements: (1) an intent to arrest; (2) under
real or pretended authority; (3) accompanied by actual or
constructive seizure or detention; (4) which is so understood by
the person arrested. State v. Barker (1978), 53 Ohio St.2d 135,
139. On the totality of the facts and circumstances in this case,
it is clear that Sergeant Bush had no intent to arrest Defendant
until after she failed all three field sobriety tests. By that
time, Sergeant Bush clearly had probable cause to arrest Defendant
for OVI.
{¶ 24} Defendant’s third assignment of error is overruled.
The judgment of the trial court will be affirmed.
FROELICH, J. And HALL, J., concur.
11
Copies mailed to:
Michael F. Sheils, Esq.
Charles M. Rowland, II, Esq.
Hon. Thomas E. Trempe | 01-03-2023 | 08-01-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/487193/ | 816 F.2d 1263
UNITED STATES of America, Appellee,v.Robert WEBB, Appellant.
No. 86-1644.
United States Court of Appeals,Eighth Circuit.
Submitted Jan. 13, 1987.Decided April 22, 1987.
James C. Delworth, Asst. Federal Public Defender, St. Louis, Mo., for appellant.
Richard L. Poehling, Asst. U.S. Atty., St. Louis, Mo., for appellee.
Before ROSS, Circuit Judge, BRIGHT, Senior Circuit Judge, and WOLLMAN, Circuit Judge.
BRIGHT, Senior Circuit Judge.
1
Robert Webb appeals his conviction for possession of a firearm by a convicted felon in violation of 18 U.S.C. App. Sec. 1202(a)(1). Webb contends that the district court erred in giving a supplemental Allen instruction1 after asking for the numerical division of the jury and preliminarily declaring a mistrial. For the reasons discussed below, we reverse Webb's conviction and remand for a new trial.
I. BACKGROUND
2
The evidence produced at trial revealed conflicting accounts of the events immediately preceding Webb's arrest. According to the Government, Webb was detained by two detectives from the City of St. Louis Police Department when his van failed to stop at a stop sign. The detectives asked Webb to step down from the van and produce his driver's license. When Webb failed to produce a license, he was arrested and patted down. During the search, one of the detectives seized a handgun from Webb's jacket pocket. The detectives testified that Webb stated he was carrying the gun for protection. According to the defense, Webb had been standing outside his van on the passenger side talking to a passenger inside the van for approximately twenty minutes when two detectives approached him. Although the detectives subsequently patted Webb down, they found no weapon on Webb. Instead, one of the detectives entered the van and came back out with the handgun. Webb denied having any knowledge of the gun. Additional testimony indicated that Webb's van earlier in the evening did not contain a handgun.
3
The jury, after having been instructed on the offense, began deliberations at 1:40 p.m. on the second day of Webb's trial. At 3:05 p.m., the jury requested a rereading or, alternatively, a copy of the instructions. On the suggestion of both Mr. Delworth, the Public Defender, and Mr. Poehling, the Assistant United States Attorney, the court denied the jury's request and informed them to remember the instructions as read. At 5:15 p.m., the court received another communication from the jury stating that they were unable to reach a unanimous decision. The court, after reading the jury's note to counsel, suggested that either of the following procedures would be proper: (1) give the jury a supplemental Allen instruction or (2) ask how the jury stood numerically and whether further deliberations would be productive.2 After soliciting counsel's views, the court decided to inquire into the numerical division of the jury and, if the division was heavily one-sided, to give the jury an Allen instruction. At this point, Mr. Delworth stated he had no objection to the court's procedure.
4
Subsequently, the jury was recalled and the foreperson was asked how the jury stood numerically without indicating whether for guilt or acquittal. The foreperson replied "Eleven for. Eleven for and...." The court declared a mistrial and asked counsel to approach the bench.
5
During the bench conference, the court reconsidered and withdrew the mistrial ruling observing that the foreperson had not indicated whether the eleven jurors were for acquittal or guilt. The court then decided to give the jury a supplemental Allen instruction. Mr. Delworth, now uncomfortable with the court's proposed action, objected and moved for a mistrial. The court, however, informed the jury that it would be giving a supplemental instruction and recessed.
6
In chambers, the court held a conference regarding the Allen instruction it proposed to give to the jury. Mr. Delworth, however, objected to the proposed instruction and stated a preference for the Allen instruction from the Model Criminal Jury Instructions for the Eighth Circuit.3 The court withdrew its proposed instruction, and drafted another. At 5:30 p.m. the trial judge gave the supplemental Allen instruction.4 Fifteen minutes later, the jury returned a unanimous verdict of guilty.II. DISCUSSION
7
In determining whether an Allen charge has an impermissible coercive effect on the jury, we examine four factors: "(1) the content of the challenged instruction, (2) the length of the period of deliberations following the Allen charge, (3) the total time of deliberation, and (4) any indicia in the record of coercion or pressure upon the jury." United States v. Smith, 635 F.2d 716, 721 (8th Cir.1980) (citation omitted).
8
In this case, the most obvious indicia of coercion is the court's inquiry into the numerical division of the jury. It is well settled that a trial judge should not inquire into the numerical division of the jury when the jury has indicated its inability to agree. In Brasfield v. United States, 272 U.S. 448, 47 S. Ct. 135, 71 L. Ed. 345 (1926), the Supreme Court held that "the inquiry itself should be regarded as grounds for reversal." Id. at 450, 47 S.Ct. at 135. The Court stated:
9
Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature of extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious, although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.
10
Id.
11
Moreover, the court deemed the error a per se ground for reversal notwithstanding the absence of a particular exception by counsel because "the error * * * affects the proper relations of the court to the jury, and cannot be effectively remedied by the judge's charge after the harm has been done." Id.
12
The cases in this circuit have consistently followed Brasfield and have held that an inquiry into the numerical division of a jury constitutes a per se ground for reversal of a federal conviction. Cornell v. State of Iowa, 628 F.2d 1044, 1047 (8th Cir.1980), cert. denied, 449 U.S. 1126, 101 S. Ct. 944, 67 L. Ed. 2d 112 (1981); Jacobs v. United States, 279 F.2d 826, 832 (8th Cir.1960). Only in the rare circumstance that the inquiry reveals an even division of the jury is the coercive effect of the inquiry mitigated to an extent that reversal is not required. Anderson v. United States, 262 F.2d 764, 774 (8th Cir.), cert. denied, 360 U.S. 929, 79 S. Ct. 1446, 3 L. Ed. 2d 1543 (1959).
13
The Government urges affirmance on the ground that the defendant consented to the procedure by specifically requesting an "Allen type instruction", fn. 2 supra. Moreover, the variance between an approved instruction and the instruction given does not raise the issue of an erroneous instruction because counsel did not specifically object to the court's instruction but merely expressed a preference for the Model instruction of the Eighth Circuit.
14
The Government's position in part is well taken. Appellant and his counsel did consent to the giving of an Allen instruction unless the jury were hopelessly divided. Yet, an additional element in the equation of coerciveness between court and jury arose when the presiding judge declared a mistrial upon hearing the numerical 11-1 decision of the jury.
15
The district judge initially directed a mistrial before consulting either attorney. Counsel for Webb immediately moved for a mistrial. Moreover, this counsel later stated his views about the court's Allen type instruction:
16
THE COURT: I'm going to offer this one [instruction] that was--that you both have seen.
17
Do you want to object to it?
18
MR. DELWORTH [appellant's counsel]: Yes, Your Honor, I would prefer the Eighth Circuit, the model criminal jury instructions to the Eighth Circuit. Their modeled Allen instruction.
19
(Tr. at 192).
20
We construe this statement as a specific objection to the instruction and requesting the Model instruction.
21
The coercive effect on the jury of the proceedings which we have outlined is supported by the very short time of fifteen minutes that the jury took to reach the verdict upon receiving the Allen instruction. Accordingly, notwithstanding appellant's initial consent to the inquiry of the jury division, counsel did not waive his objection to the coercive effect of further proceedings including the court's statement of mistrial, plus an Allen charge which omitted a statement advising the jury that the Government must prove guilt beyond a reasonable doubt and suggesting that both minority and majority should re-examine their position. See Potter v. United States, 691 F.2d 1275, 1280 (8th Cir.1982).
III. CONCLUSION
22
We conclude that the proceedings related in this opinion including the giving of an Allen charge, which we deem as incomplete, served improperly to coerce the jury. Appellant did not consent to the full course of the proceedings relating to the polling of the jury, the declaration of a mistrial, a withdrawal of that declaration and the giving of an incomplete Allen charge. Accordingly, we reverse and remand for a new trial. We believe this result is required by the decisions of this court. See, e.g., United States v. Hollister, 746 F.2d 420, 425 (8th Cir.1984); United States v. Smith, 635 F.2d at 721.
23
ROSS, Circuit Judge, dissenting.
24
In my opinion counsel for appellant effectively waived any objection to the actions taken by the trial court. This waiver is set forth clearly in footnote 2 of the court's opinion. I would affirm the conviction.
1
So named after Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896)
2
The trial transcript is set forth below:
THE COURT: Now I--as I see, I have two choices. I can either issue another instruction and based on the Allen type case or I can call them in and question them individually as to what their position is, what--how they stand numerically and whether any further deliberation would be of use.
Do you have any preference?
MR. POEHLING: Did I understand that the Court is going to question them individually?
THE COURT: No, bring them in and just ask them if there's any possible--no, I would ask the foreman what they stand, but--
MR. POEHLING: That would be acceptable, Your Honor.
THE COURT: Which one?
MR. POEHLING: Bring them in and ask them where they stand numerically without giving any indication of which way and whether or not deliberation would be of further value to them.
THE COURT: Is that satisfactory with you?
MR. DELWORTH: Yes, Your Honor, that will be fine.
THE COURT: Rather than giving them an Allen type instruction?
MR. DELWORTH: If I may just have a moment?
MR. POEHLING: I would suggest the Court possibly if it is a heavy numerical number, 10-2, something along that line, then an instruction that the Court's envisioning might be proper.
THE COURT: All right.
MR. DELWORTH: Yes, Your Honor, after discussing with my client I think what we would request would be an Allen type instruction where they would be instructed to further deliberate. That would be our position.
THE COURT: All right. I think I'll call them in and ask them where they stand numerically.
Do you have any objection to that, Mr. Delworth?
If it's a hopeless deadlock, then there's no point in giving the Allen.
MR. DELWORTH: Okay. That would be fine, Your Honor.
THE COURT: All right.
(R. 188-89).
The court recalled the jury and questioned the foreperson:
THE COURT: I would like to know where you stand numerically. I don't want to know whether it's guilty or innocence, I just want to know the numbers.
MISS MONAT: Eleven for. Eleven for and--
THE COURT: That's it. We'll declare a mistrial. I think--I think it's best to declare a mistrial. Would you come up?
(R. 190).
3
Model Criminal Jury Instructions for the Eighth Circuit Sec. 7.02 (Committee on Model Criminal Jury Instructions Eighth Circuit, Supp.1986)
4
The instruction read to the jury, set out below, does not conform to the Model instruction. Specifically, the instruction omitted any reference to the burden of proof, failed to state that both sides should re-examine their positions, and neglected any cautionary language as to the effect of the instruction. Model Criminal Jury Instructions for the Eighth Circuit Sec. 7.02 (Committee on Model Criminal Instructions Eighth Circuit, Supp.1986); Potter v. United States, 691 F.2d 1275, 1278 (1982)
The instruction read as follows:
This is an important case for both sides. The trial has been expensive for both sides. Your failure to agree upon a verdict will necessitate another trial equally as expensive. The Court is of the opinion that the case cannot again be tried better or more exhaustively than it has been on either side. It is, therefore, very desirable that you should agree upon a verdict.
In a large proportion of cases, and perhaps, strictly speaking, in all cases, absolute certainty cannot be attained or expected. Although the verdict to which a juror agrees must, of course, be his own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other.
You should consider that the case must at some time be decided; that you are selected in the same manner, and from the same source, from which any future jury must be; and there is no reason to suppose that the case will ever be submitted to twelve men and women more intelligent, more impartial, or more competent to decide it, or that more or clearer evidence will be produced on the one side or the other. And with this view, it is your duty to decide the case, if you can conscientiously do so.
(Appendix to Brief for Appellant).
Furthermore, we have repeatedly stated a preference for including these instructions along with the general instructions to the jury. Potter, 691 F.2d at 1277 quoting United States v. Flannery, 451 F.2d 880, 883 (1st Cir.1971); United States v. Reed, 686 F.2d 651, 652 (8th Cir.1982) (per curiam); United States v. Cook, 663 F.2d 808, 811 (8th Cir.1981) (per curiam); see also, Committee Comment to Sec. 7.02 of the Model Criminal Jury Instructions for the Eighth Circuit, supra. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1561411/ | CITY OF ALEXANDRIA
v.
ANNRICH, INC. ET AL
No. 09-165.
Court of Appeals of Louisiana, Third Circuit.
October 7, 2009.
Not for Publication
STEPHEN EVERETT, Counsel for Defendant/Appellant Annrich, Inc.
STEVEN D. CREWS, Corkern, Crews & Guillet, L.L.C. Counsel for Intervenor/Appellee State Farm Fire & Casualty Co.
Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JAMES DAVID PAINTER, Judges.
DECUIR, J., Concurs in the result. PAINTER, J. Concurs in the result.
COOKS, Judge.
FACTS
The City of Alexandria contracted with Annrich, Inc. (Annrich) for installation of a fiber optic cable system. Annrich is owned and operated by Richard Heath. After completion of Phase I of the project, but before completion of Phase II, the City sued Annrich and Heath. In the City's Petition For Damages, the City, among other allegations, alleges it has suffered damages in the form of costs for additional line testing; repairs which will be necessary as a result of ARI's alleged deviation from detailed specifications for the work; loss of monies paid in excess of State contract prices and in excess of fair market value; improper installation and improper attachment of the fiber cable; and damages to City property which will result from improper installation and improper attachment. The City also alleges negligence as well as fraud.
Annrich and Heath filed an Answer and Affirmative Defenses. Subsequently, State Farm Fire & Casualty Company (State Farm), filed a Petition Of Intervention. State Farm alleges there is no coverage under its CGL policy insuring Annrich and no duty to defend Annrich or Heath on any of the City's claims. State Farm, thereafter, filed a Motion For Summary Judgment asserting it does not owe a defense nor coverage to Annrich and/or Heath for any of the alleged acts set forth in the City's petition.
The trial court entered judgment in favor of State Farm granting their Motion For Summary Judgment finding there is no coverage under State Farm's policy issued to Annrich for any and all claims arising from this litigation. The trial court dismissed all claims against State Farm with prejudice. Annrich appealed arguing there are genuine issues of material fact precluding summary judgment on the coverage question and asserting State Farm must provide it a defense on claims alleged in the City's petition.
ANALYSIS
We review a motion for summary judgment on appeal de novo using the same criteria which govern a trial court's determination of whether summary judgment is appropriate. We must determine whether there is any genuine issue of material fact and whether the movant is entitled to summary judgment as a matter of law. Tabor v. Anco Insulations, Inc. 08-694 (La.App.3 Cir. 12/10/2008), 999 So.2d 258 and cases cited therein. See also La.CodeCiv. P. art 966. In determining whether an insured has a duty to defend, our court has held:
"The only evidence that can be considered in a duty to defend claim is the petition and policy." Richard v. Metro Bingo of Lafayette, Inc., 05-293, p.8 (La. App.3 Cir. 3/29/06), 926 So.2d 83, 88 (citing American Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969)). This court recently discussed an insurer's duty to defend, stating as follows: In order to determine whether an insurer may have a duty to defend its insured against claims made against it, we look only to the original allegations of fault made against the insured.
Tabor v. Anco, 999 So.2d 258 at 262.
The Louisiana Supreme Court enunciated the "cornerstone pronouncement" of the duty to defend rule in American Home v. Czarniecki, 230 So.2d 253 at 259:
The insurer's duty to defend suits brought against its insured is determined by the allegations of the injured plaintiff's petition with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Thus, if assuming all the allegations of the petition to be true, there would be both (1) coverage under the policy and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Additionally, the allegations of the petition are liberally interpreted in determining whether they set forth grounds which bring the claims within the scope of the insurer's duty to defend the suit brought against its insured.
We must first determine whether plaintiff's petition unambiguously sets forth claims for which there is coverage under State Farm's policy issued to Annrich. Based on our de novo review of the record, we find the trial court erred in finding State Farm's policy does not provide coverage for any of the City's alleged claims. Defendant correctly asserts under its policy there is no coverage for "work product" claims. But a simple reading of the City's Petition For Damages, and Mr. Richard Mitchell's (Mitchell) deposition testimony reveals there are potential claims which are not "work product" claims. While the defense argues in brief that the City asserts none of its property has been damaged, Mitchell's testimony discloses the contrary. He states it is most likely there will be damages to the City's property as a result of the 144 strand fiber cable being mounted on 96 strand holders. As a result of the alleged improperly installed holder, he believes the larger cable will be crushed requiring future repairs. Such damage to the City's property is clearly covered by State Farm's CGL policy insuring Annrich. The City's claims, therefore, are not limited to items excluded under the "work product" exclusion of State Farm's policy, but in fact extend to damage the defendant's "work product" may have caused to property owned by the City, i.e. the existing cable. The extent of such damage is presently unknown and not yet determinable at this time as Phase II is not complete. In Supreme Services v. Sonny Greer, Inc., 06-1827 (La. 5/22/07), 958 So.2d 634 the Supreme Court explained the effect of a "work product" exclusion in a CGL policy as follows:
[I]f a subcontractor's faulty electrical work caused the building to burn down before completion, the "work product" exclusion would eliminate coverage for the faulty electrical work performed by the contractor or subcontractor. However, the operations hazard coverage applies not to the faulty work, but damages arising out of the faulty work. Damage to real property arising out of the faulty work (fire damage) would not be excluded as it would be covered under the PCOH provision.
Id. at 645. Likewise, in this case, if faulty installation of the fiber cable and/or improper attachment of the cable results in damage to the City's property as the City claims, and as Mitchell testified in deposition will likely result, State Farm will be liable for such damages. We are satisfied genuine issues of material facts remain in dispute on the coverage issue which precludes summary judgment on the issue of coverage.
Having determined plaintiff's petition unambiguously sets forth claims for damages which are covered by State farm's insurance policy, it follows that State Farm has a duty to defend its insured. If we assume, as we must, that all of Plaintiff's allegations in its petition are true, it is clear there is both coverage under State farm's policy and liability of the insured to the plaintiff. Thus "the insurer must defend the insured regardless of the outcome of the suit. An insure[r]'s (sic) duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy." Steptore v. Masco Construction, 93-2064 (La.1994), 643 So.2d 1213. The judgment of the trial court is reversed.
REVERSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561417/ | 18 So.3d 179 (2009)
Marcia D. CHUNN, et al., Plaintiffs-Appellants,
v.
BROOKSHIRE GROCERY COMPANY d/b/a Super One Foods, et al., Defendants-Appellees.
No. 44,505-CA.
Court of Appeal of Louisiana, Second Circuit.
August 19, 2009.
*180 Dollar Laird, L.L.P. by Johnny E. Dollar, Monroe, James G. Buckley, for Appellants, Marcia Chunn, John Chunn, Sr., & John Chunn, Jr.
Hudson, Potts & Bernstein, L.L.P. by Donald H. Zeigler, III, Jay P. Adams, Monroe, for Appellees, Brookshire, Super One, & Hartford Ins. Co.
Before BROWN, GASKINS, and LOLLEY, JJ.
LOLLEY, J.
In this slip and fall accident, plaintiff, Marcia Chunn, appeals a judgment from the Fourth Judicial District Court, Parish of Morehouse, State of Louisiana, which found in favor of defendants, Brookshire Grocery Company d/b/a Super One Foods, and Hartford Insurance Company. For the following reasons, we affirm.
FACTS
The incident that gave rise to this case occurred during the evening hours on May 19, 1994, at the Super One Foods Store ("Super One") in Bastrop, Louisiana. Marcia Chunn, accompanied by her son and now-deceased husband, was grocery shopping when she stepped and reached between two stacks of boxes, also known as a "spill-out display,"[1] to pick out a bag of carrots. As she stepped out from between the boxes, she tripped and fell, injuring herself. Chunn filed an accident report with the store manager the same night.
On January 25, 1995, Chunn filed a petition for damages against Brookshire Grocery Company, d/b/a/ Super One Foods, and Hartford Insurance Company ("the defendants"). After several delays, a bench trial was eventually held on July 21, 2008. On November 21, 2008, the trial court issued a judgment in favor of defendants. This appeal ensued.
LAW AND DISCUSSION
In her first assignment of error, Chunn explains that she proffered as evidence a group of photographs, marked "Exhibit G," taken a week after the incident that depicted conditions at the store where the accident occurred. The trial court ruled the photographs were inadmissible and Chunn argues that this is an error.
Generally, the trial court is accorded discretion concerning the admission or exclusion of evidence. A court's decision to admit or exclude evidence will not be reversed absent an abuse of discretion. Holmes v. Jefferson Pilot Financial Ins. Co., 39,721 (La.App.2d Cir.06/29/05), 907 So.2d 185, writ denied, XXXX-XXXX (La.02/03/06), 922 So.2d 1185. Here, the trial court did not find the set of photographs was sufficient to show habit or routine of practice. La.Code of Ev. Art. 406. The record reveals that the photos were taken one day during a holiday weekend which, as defendants proved, had a *181 significant increase in shopping volume. Therefore, the photos did not reflect the "routine" customer traffic similar to the day of the incident. After a review of the record, we agree with the trial court's ruling. This assignment of error is without merit.
In her second assignment of error, Chunn argues that the trial court erred in finding that she did not fulfill her statutory burden in her claim against the defendants. Louisiana R.S. 9:2800.6 is the specific statute that governs negligence claims and states, in pertinent part:
B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
A plaintiff who sustains an injury because of a fall resulting from a condition in or on a merchant's premises must prove the requisite statutory elements to establish a valid merchant liability claim, and the failure to prove any of the required elements will prove fatal to a plaintiff's claim. See Jones v. Brookshire Grocery Co., 37,117 (La.App.2d Cir.05/14/03), 847 So.2d 43. Failure to prove any of the requirements enumerated in the statute establishing burden of proof for premises liability claims against merchants will prove fatal to the plaintiff's case. Harrison v. Horseshoe Entertainment, 36,294 (La.App.2d Cir.08/14/02), 823 So.2d 1124. A trial court's findings regarding liability for damages caused by a slip and fall accident at the defendant's place of business, as well as the presence of comparative fault, are factual determinations that will not be disturbed absent manifest error or unless clearly wrong. Jones, supra.
Chunn testified that after she selected her bag of carrots, she tripped as she was stepping out from between the boxes. After Chunn fell, she noticed that the floor rug was wrapped around her ankle. As a result of the accident, she had instant pain in her knee, ankle, and hip. She argues that there were a combination of factors that made this situation reasonably foreseeable: The nature of the "spill-out" displays diverts the attention of shoppers and the type of mats used at Super One have a propensity to migrate and/or buckle when rolled across. Chunn also believes that Super One had constructive notice when the employee inspected the area, according to the inspection log, at 9:06 p.m.minutes prior to Chunn's accident which occurred at 9:10 p.m. Chunn argues with the inherent risks associated with "spill-out" displays and the floor rugs the store deviated from the accepted level of reasonable care.
At the outset we note that defendants do not dispute that Chunn fell; however, this is not dispositive. We must look to the statute to determine whether Chunn proved the requisite statutory elements to impose liability onto the defendants. While Chunn argues that the store conditions presented an unreasonable risk of *182 harm to her and that risk of harm was reasonably foreseeable, we do not find that the record supports this.
At trial, Chunn testified that she had seen store employees rolling a dolly and believed that this caused the floor mat to kink or buckle resulting in her accident. However, Roy Lee Shaw, the store manager on the night of the incident, testified that the produce area is unmanned and dollies are not used after 8:00 p.m. indicating that the employees were not the "source" of the alleged wrinkle in the mat.[2] Chunn further testified she did not know if the rug was tangled or disheveled as she did not see the rug prior to her fall. Chunn's husband and Chunn's son testified that they too did not see the condition of the rug prior to her fall. As such, there is no evidence to support Chunn's theory. Mere speculation or suggestion is not enough to meet the stringent burden imposed upon a plaintiff by the statute governing negligence claims against merchants. Hubbard v. AP3 Investments, LLC, 43,673 (La.App.2d Cir.11/19/08), 997 So.2d 882.
Chunn also argues that the mats and the "spill-out" displays are inherently dangerous and points to the testimony of Russell Kenzidor, an expert in product-related slip and fall injuries in commercial stores. Kenzidor testified that he thought the type of mats used at the grocery store tended to buckle and migrate, and "spill-out" displays pose an unreasonable hazard to shoppers. However, the trial court did not find this to be persuasive and we do not believe its findings are manifestly erroneous. Moreover, this court has found in the past that the "utility of the mat outweighs the risk of a trip and fall." Jones, 847 So.2d at 52.
Shaw further testified that according to the "floor log" the produce area was checked minutes prior to the accident and no problems were discovered.[3] Nothing in the record refutes Shaw's testimony. Therefore, Chunn did not prove that any of the alleged conditions presented an unreasonable risk of harm to her and that risk of harm was reasonably foreseeable.
We also note that given the facts, Chunn did not prove that Super One had actual or constructive notice of the condition which caused the damage, another crucial element in establishing liability. Chunn failed to show that Super One knew about the wrinkle in the mat, nor did she establish that the wrinkle in the mat was there for a period of time prior to the incident. See White v. Wal-Mart Stores, Inc., XXXX-XXXX, 699 So.2d 1081 (La.09/09/97). After reviewing the record, there is no evidence of any witnesses seeing the wrinkle in the mat and, as stated earlier, the floor log indicates that no problems were found in the produce area just minutes before the incident. Accordingly, this assignment of error is without merit.
CONCLUSION
In short, Chunn failed to establish her statutory burden of proof for this premises liability claim. The trial court's judgment *183 is affirmed. Costs of this appeal are assessed to Marcia D. Chunn.
AFFIRMED.
NOTES
[1] Roy Shaw, the store manager, explained that "Super One may spill out [a sale] product from the normal bins onto the floor in front of that bin in boxes."
[2] We find it questionable that Chunn complained that the grocery area was unmanned after 8 p.m., yet she saw an employee working there.
[3] Chunn makes much of the fact that on the night of the incident Super One departed from the mandated inspection schedule; however, the fact that the inspection occurred three hours later, instead of two, does not per se establish that the defendant failed to exercise reasonable care. In addition, Chunn insinuates that Super One manufactured the last inspection time of 9:06 p.m.; however, there is nothing in the record to support this allegation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3035647/ | NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 29 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-50227
Plaintiff - Appellee, D.C. No. 3:07-cr-00486-H-2
v.
MEMORANDUM *
RAUL BECERRA-CURIEL,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted March 4, 2010
Pasadena, California
Before: KOZINSKI, Chief Judge, W. FLETCHER, Circuit Judge and
TUNHEIM,** District Judge.
The district court did not abuse its discretion by admitting evidence of
defendant’s prior arrest for alien smuggling. See Fed. R. Evid. 404(b); United
States v. Ramirez-Jiminez, 967 F.2d 1321, 1325–27 (9th Cir. 1992).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
page 2
Nor did the district court err by denying defendant’s Rule 29 motions on
Count 1 of the indictment. (Defendant does not challenge the sufficiency of the
evidence supporting his conviction on Count 2.) The testimony of the material
witness and the 404(b) evidence are sufficient to support the conclusion that
defendant knew or recklessly disregarded the fact the material witness “ha[d] not
received prior official authorization to come to, enter, or reside in the United
States.” 8 U.S.C. § 1324(a)(2). That evidence is also sufficient to support a
finding that defendant knew the material witness had been hidden in the car as part
of an alien smuggling operation “for the purpose of commercial advantage or
private financial gain.” Id. § 1324(a)(2)(B)(ii). And that evidence, combined with
the testimony of the Customs and Border Protection officers, would also allow a
rational juror to conclude beyond a reasonable doubt that defendant took at least
one affirmative step intending to aid or encourage that operation, whether at the
“load house” or the border. There is sufficient evidence to support defendant’s
conviction for aiding and abetting a violation of 8 U.S.C. § 1324(a)(2)(B)(ii). See
United States v. Lopez-Martinez, 543 F.3d 509, 515–16 (9th Cir. 2008).
AFFIRMED. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4515672/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50127
Plaintiff-Appellee, D.C. No. 2:19-cr-00026-PA-1
v.
MEMORANDUM*
PHU CHI TRUONG,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted March 3, 2020**
Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.
Phu Chi Truong appeals from the district court’s judgment and challenges
the 37-month sentence imposed upon revocation of supervised release. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Truong contends that the district court procedurally erred by failing to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
consider and address his arguments in favor of a non-custodial sentence. We
review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103,
1108 (9th Cir. 2010), and conclude that there is none. The record reflects that the
district court considered the parties’ arguments and concluded that a within-
Guidelines sentence was warranted to sanction Truong’s breach of the court’s trust,
afford adequate deterrence to future criminal conduct, and protect the public. The
district court was not required to address specifically each of Truong’s arguments.
See Rita v. United States, 551 U.S. 338, 359 (2007); United States v. Perez-Perez,
512 F.3d 514, 516 (9th Cir. 2008).
AFFIRMED.
2 19-50127 | 01-03-2023 | 03-12-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1561314/ | 388 Pa. Super. 369 (1989)
565 A.2d 798
COMMONWEALTH of Pennsylvania Appellant,
v.
John Joseph CONAHAN.
Supreme Court of Pennsylvania.
Argued April 18, 1989.
Filed November 1, 1989.
*370 Joseph J. Mittleman, Asst. Dist. Atty., Media, for Com., appellant.
Francis R. Lord, Media, for appellee.
Before CIRILLO, President Judge, and CAVANAUGH and HESTER, JJ.
HESTER Judge:
This is an appeal by the Commonwealth from the judgment of sentence of thirty days to one year imprisonment for a second conviction for driving under the influence, entered by the Court of Common Pleas of Delaware County on November 7, 1988. The Commonwealth does not appeal *371 the actual sentence imposed, which is the statutorily mandated minimum sentence,[1] but asserts that the trial court erroneously credited appellee, John Conahan, with time served in an inpatient alcohol treatment program, and granted him immediate parole. The Commonwealth contends that this negates the legislature's purpose of punishment and deterrence by enacting 75 Pa.C.S. § 3731(e). We agree, reverse the trial court's according appellant credit for inpatient alcohol treatment, and remand for proceedings consistent with this opinion.
The record reveals that Upper Providence Township Police were notified of an accident near a highway exit ramp on February 8, 1988. Upon their arrival, the police discovered a single vehicle off the road and on an embankment. The owner, appellee, was in a nearby service station making a telephone call to locate a tow truck. Appellee stated that he had been forced off the road by an unidentified automobile. The police noted that appellee's speech was slurred and that he had a strong odor of alcohol on his breath. The police placed appellee under arrest after he failed to perform satisfactorily on several field sobriety tests. Despite being advised of the consequence of his refusal, appellee refused to submit to any chemical test of his blood for alcohol content. This was appellee's second drunk driving offense.
Pursuant to an agreement, appellee pled guilty to a negotiated plea. At sentencing on November 7, 1988, appellee established that he had participated in three in-patient alcohol treatment programs over a consecutive ninety-five day period. This testimony was uncontested. Appellee *372 argued that the legislature used the word "imprisonment" in 75 Pa.C.S. § 3731(e) and inpatient treatment programs come within the definition of imprisonment; thus, he should be given credit for time served in those programs. We disagree.
"Imprisonment" is defined as:
The act of putting or confining a man in prison. The restraint of a man's personal liberty; coercion exercised upon a person to prevent the free exercise of his powers of locomotion. It is not a necessary part of the definition that the confinement should be in a place usually appropriated to that purpose; it may be in a locality used only for the specific occasion; or it may take place without the actual application of any physical agencies of restraint (such as locks or bars), as by verbal compulsion and the display of available force. Every confinement of the person is an "imprisonment," whether it be in a prison, or in a private house, or even by forcibly detaining one in the public streets. Any unlawful exercise or show of force by which person is compelled to remain where he does not wish to be.
Black's Law Dictionary (5th ed. 1979). Consequently, appellee argued at sentencing that the legislature intended that the mandatory minimum sentence for a second DUI conviction could be served by "imprisonment," i.e. "confinement," in broader circumstances than just "jail." Otherwise, he contended, the legislature would have used the word "jail" in Section 3731(e), rather than "imprisonment." Appellee then asserted that his participation in inpatient alcohol treatment programs constituted confinement in custody, and thus imprisonment, so that the trial court must credit him with this time against his mandated imprisonment pursuant to the general rules requiring credit for time served. 42 Pa.C.S. § 9760[2]; Pa.R.Crim.P. 1406(b).[3]
*373 The court sentenced appellee to thirty days imprisonment to be served by fifteen consecutive, forty-eight hour week-ends. The sentencing court then accepted appellee's arguments for credit, credited him for the in-patient time, and granted immediate parole. This appeal by the Commonwealth followed. On appeal, appellee reasserts the same arguments that he made at sentencing.
The Commonwealth, conversely, insists that the legislature, by enacting the driving under the influence statute, 75 Pa.C.S. § 3731, intended to require punishment by thirty days in jail for second DUI offenders, as a deterrent to the carnage on the Commonwealth's highways. The Commonwealth contends that granting credit, even for custodial in-patient treatment exceeding the mandatory minimum sentence, is contrary to the intent of the legislature to provide punishment as a deterrent; especially since it permits a defendant to choose the time and place to serve his sentence. In the present case, appellee began participation twenty days after his arrest in two hospital programs, Chestnut Hill Hospital and Eugenia Hospital, and then transferred to the Locust Mountain Treatment Center. He also attended Alcoholics Anonymous meetings regularly. The Commonwealth argues that credit for participation in these programs permits appellee to avoid jail and to serve his sentence in a manner which would constitute an illegal sentence if it were imposed for a second DUI conviction.
In support of this argument, the Commonwealth cites legislative history to show that the primary purpose of the mandatory minimum sentence in Section 3731(e) was to *374 punish, not to rehabilitate. A thorough review of the legislative history compels our agreement. Representative Saurman made the following remarks in support of amendment No. A 8810 (accepted and incorporated in 75 Pa.C.S. § 3731):
During the deliberations of the task force, the requirements for 30, 60, and 90 days in jail, it was my understanding that those penalties carried with them the opportunity for a judge to release in work release those who were incarcerated, the reason being that the individual would in this way be able to maintain his job and support his family. The language that is in this bill defines a day as 24 consecutive hours.
Pa. House Leg. 1717 (September 9, 1982). Although it also was stated during the debate that the amendment did not specify where such sentence must be served, subsequent comments clearly establish that punishment by imprisonment in jail was contemplated by the language of Section 3731.
Another amendment, No. A 8718, proposed by Representative Evans, would have permitted first and second offenders to serve their mandatory sentence through community service. The amendment was divided in order to consider first offenders separately from subsequent offenders. The first part of the amendment with regard to first offenders was accepted, but the second part with regard to subsequent offender was rejected. Pa. House Leg. 1720-21 (September 29, 1982).
The second part of the amendment regarding repeat offenders was further sub-divided to separate the issue of mandatory prison sentence for repeat offenders (first part of Part II), from the issue of whether repeat offenders could serve their prison sentence through community service (second part of Part II). The following was stated as part of the debate:
Mr. Ritter: Mr. Speaker, the reason for the second division is that we need to restore the language on the second, third and fourth offences to read "Serve a minimum *375 term of imprisonment . . ." That language has to be put back in so if we accept that part of the second amendment, then we would have in the bill that public service would be available to those who commit the first offense, but the minimum prison term would be there for those who commit the second, third and fourth offense. So I would ask support for the first part of the second part of the amendment.
The Speaker: The question before the House is the second portion of the amendment as submitted by the gentleman, Mr. Evans, excepting the words "Amend Sec 9 (Sec. 3731), page 17, line 14, by inserting after `days' or perform not less than 80 nor more than 90 hours of community service work as determined by the court."
Pa. House Leg. 1723 (September 29, 1982) (emphasis added).
The first part of Part II of this amendment was approved 190 to two, with five not voting and two excused. Id. at 1725. Mr. Evans then withdrew the second part of Part II of his amendment regarding community service of the mandatory sentence for repeat offenders. Id. at 1725. The House subsequently approved amendment No. A 8715, permitting those sentenced to prison to participate in a daytime work release program that involved collecting litter, especially alcoholic beverage containers, from public and private property. 75 Pa.C.S. § 3731(h).
The Commonwealth next argues that case law has effectuated the legislature's intent by holding that mandatory minimum sentence for DUI offenders meant that "some type of incarceration is to be imposed even for first time offenses." Commonwealth v. Sojourner, 513 Pa. 36, 43 at n. 5, 518 A.2d 1145, 1148 at n. 5 (1986) (trial court erred in imposing a suspended sentence rather than mandatory minimum imprisonment). The Commonwealth cites numerous other decisions illustrating that sentences altering mandatory imprisonment have been vacated. See Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985) (admission to ARD for first DUI offense rather than imprisonment is on discretionary motion by District Attorney only and is not a *376 sentencing alternative as a matter of right for the defendant); see also Commonwealth v. Filius, 346 Pa.Super. 434, 499 A.2d 1078 (1985) (mandatory minimum sentence of imprisonment precluded alternate sentence of probation); Commonwealth v. Wagner, 352 Pa.Super. 295, 507 A.2d 1237 (1986) (guilty plea and acceptance of ARD constituted a conviction so that a second DUI violation required imposition of a mandatory minimum of thirty days in jail and court's failure to impose incarceration resulted in illegal sentence); Commonwealth v. Becker, 366 Pa.Super. 54, 530 A.2d 888 (1987) (acceptance of ARD was conviction, even if defendant did not complete ARD).
The Commonwealth therefore argues that any punishment that does not constitute time in prison is invalid. The specific intent of the legislature to deter drunk driving by punishment is not satisfied by any alternate form of confinement that does not constitute jail. Thus, the DUI statutory punishment takes precedence over criminal general rules requiring credit against a sentence of imprisonment for time served in custody. See 42 Pa.C.S. § 9760 and Pa.R.Crim.P. 1406. In support of this argument, the Commonwealth cites Commonwealth v. Waters, 361 Pa.Super. 154, 522 A.2d 60 (1987) (DUI statute's specific provision for mandatory minimum sentence of imprisonment takes precedence over the general provision of 35 P.S. § 780-118, permitting substance-dependent defendants to undergo treatment as civil commitment for treatment in lieu of criminal punishment).
The trial court relied on memorandum opinion of this court. Commonwealth v. Williamson 384 Pa.Super. 646, 551 A.2d 598 (1988), upholding credit for inpatient treatment against a prison sentence for a second drunk driving offense. We note that memoranda do not constitute precedent. Therefore, that case has no precedential authority. Nevertheless, we concur with the reasoning in Williamson. However, Williamson is distinguishable since the defendant was sentenced to thirty-days in jail following completion of a thirty-day rehabilitation program in an alcohol *377 treatment center. Williamson petitioned to modify his sentence arguing that the rehabilitation program was custodial and, therefore, satisfied the minimum sentence mandated by the legislature. The trial court agreed and modified his sentence. The Commonwealth appealed, but a panel of this court determined that custody in the rehabilitation program pursuant to court order was involuntary confinement and constituted time in jail.
Instantly, appellee's confinement was not pursuant to a sentence. He voluntarily chose to participate in the programs and was not sentenced to serve them. He adduced no evidence that the programs involved confinement against his will or that he would be forced to return if he left.
In Cox v. Bd. of Probation and Parole, 78 Pa.Cmwlth. 183, 467 A.2d 90 (1983), the commonwealth court held that a prisoner's participation in a drug treatment program as a condition of parole did not permit credit against his sentence when his parole subsequently was revoked for other offenses. While there was restraint on the petitioner's liberty, the petitioner conceded that there were no guards, fences, or other features that confined patients against their will. The court further concluded that the petitioner's contention that violation of this condition would have resulted in incarceration was not a significant restraint of his liberty since all parole conditions have a similar affect. Finally, the court found that the petitioner's reliance on Commonwealth v. Jones, 211 Pa.Super. 366, 236 A.2d 834 (1967), was misplaced since he was not under a court-ordered confinement to a hospital, nor was he under detention awaiting a return for further court proceedings. Instead, the petitioner voluntarily chose to participate in the program in order to obtain parole.
The Pennsylvania Supreme Court reversed Cox on the basis that the record was deficient, since the court was unable to determine the extent of the restrictions on the petitioner's liberty. Nevertheless, the supreme court determined that the burden was on the petitioner to establish that the program presented an environment that was so *378 restrictive that he should get credit for time he spent in it. See Cox v. Bd. of Probation and Parole, 507 Pa. 614, 493 A.2d 680 (1985).
We find that appellee, similar to petitioner Cox, failed to establish that his confinement was involuntary. His participation was not required by the sentence imposed nor was the program involuntary. See Commonwealth v. Usher, 264 Pa.Super. 435, 399 A.2d 1129 (1979) (defendant kept at a remote rehabilitation camp against his will, and forcibly returned several times after escaping, must be credited with that time against a prior sentence).
We conclude the trial court abused its discretion in crediting appellee's voluntary participation in inpatient alcohol treatment programs against the mandatory sentence of thirty days imprisonment imposed for his second DUI offense.
Reversed and remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.
CIRILLO, President Judge, files a concurring opinion.
CAVANAUGH, J., files a concurring statement and concurs in the result of the majority opinion.
CIRILLO, President Judge, concurring:
I join in the comprehensive opinion of the majority because it is a correct application of the present state of the law. However, I write separately to voice my belief that the law should be altered to permit those individuals who are convicted of the offense of Driving Under the Influence (DUI) to receive credit toward their prison sentences for time which they have voluntarily spent in inpatient alcohol rehabilitation programs since their arrests.
As the majority agrees, it is clear that had the court ordered the appellee to participate in the inpatient rehabilitation programs which he attended, he would be entitled to credit for his time there. Our holding in Commonwealth v. Jones, 211 Pa.Super. 366, 236 A.2d 834 (1967), supports this conclusion. In Jones, the appellant was charged with arson *379 and committed to prison in default of bail. Subsequently, the court ordered the appellant to undergo an examination pursuant to the provisions of the Mental Health Act of 1951. Following the examination, the appellant was committed to Embreeville State Hospital. Subsequent to his release from the hospital, he pleaded guilty to the charge against him and was sentenced. Ruling that the appellant was entitled to credit on his sentence for the time spent at the hospital, we stated:
It seems too clear for argument that this appellant has been in custody from the date of the arrest to the present time. He has at all times been under the jurisdiction and subject to the authority of the court; he has been restrained of his liberties during the entire time of his confinement; and if he had violated this custody by "walking away" he would have been apprehended by the authorities and either returned to the hospital or to the county jail.
211 Pa.Super. at 370-71, 236 A.2d at 836. See also Commonwealth v. Usher, 264 Pa.Super. 435, 399 A.2d 1129 (1979) (appellant entitled to credit on his sentence for time spent at a comprehensive residential drug and alcohol treatment program).
In the instant case, the appellee, Mr. Conahan, did not wait for the court to order him to enter an inpatient rehabilitation program. Instead, he took it upon himself to seek treatment for his drinking problem. He voluntarily enrolled and participated in three inpatient alcohol treatment programs, at his own expense. Since completing these programs, Mr. Conahan has attended Alcoholic Anonymous meetings regularly and managed to maintain his sobriety. He has confronted his drinking problem and opted to secure treatment for it. By doing so, he has taken responsibility for his alcoholism and made headway to insure that he will not be driving on the road again while drunk.
If our ultimate goal is to prevent the tragic fatalities and wasteful destruction that is caused by drunk drivers, the *380 legislature should make it possible for our courts to reward those individuals who enter inpatient alcohol rehabilitation programs of their own volitation and make a concerted effort to combat their alcoholism. By treating and curing their alcoholism, those DUI offenders who are alcoholics will gain control over their lives and thus, over their decision to drink and drive. Only when that happens will those individuals cease to be a danger to our society because of their drunk driving. It is within the best interest of our society, then, for us to encourage and reward the effort of those DUI offenders who voluntarily seek treatment for their alcoholism. Moreover, because those individuals who are convicted of DUI and make no effort to seek treatment for their alcoholism until ordered to undergo treatment by the court receive credit towards their prison sentence for their time in treatment, it is illogical that those individuals who are convicted of DUI and voluntarily seek treatment go unrewarded for their endeavor.
Consequently, I would urge the legislature to consider giving our courts the discretion to grant those individuals who voluntarily enter inpatient alcohol rehabilitation programs credit toward their prison sentences for time which they spend in those programs. With this change, those DUI offenders who suffer from alcoholism may be motivated to seek help for their problem instead of waiting for the court to require them to get help. Our courts, meanwhile, will retain the authority to determine for each individual whether the time he or she has spent voluntarily in an inpatient rehabilitation program is time for which that person should receive credit.
CAVANAUGH, Judge, concurring:
I concur in the result reached by Hester, J. in his opinion. However, I leave for another day the issue of whether presence in a rehabilitation program pursuant to court order constitutes time in prison.
I join in President Judge CIRILLO's recommendation to the legislature.
NOTES
[1] 75 Pa.C.S.A. § 3731(e) provides as follows:
(e) Penalty.
(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years (emphasis added).
[2] 42 Pa.C.S. § 9760(1) states:
Credit against the minimum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time against in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.
[3] Rule 1406(b) provides:
A sentence to imprisonment shall be deemed to commence and shall be computed from the date of commitment for the offense or offenses for which such sentence is imposed, which date shall be specified by the judge. Credit, to be calculated by the clerk of court, shall be given as provided by law for any days spent in custody by the defendant for such offense or offenses prior to imposition of sentence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561298/ | 236 N.J. Super. 365 (1989)
565 A.2d 1121
SHERI BENDA, PLAINTIFF-RESPONDENT,
v.
RONALD BENDA, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued September 26, 1989.
Decided October 27, 1989.
*366 Before Judges PRESSLER, LONG and LANDAU.
Hope S. Cone argued the cause for appellant (Pitney, Hardin, Kipp & Szuch, attorneys; Clyde A. Szuch, Hope S. Cone and Joy H. Sperling, on the brief).
Bonnie C. Frost argued the cause for respondent (Einhorn & Harris, attorneys; Bonnie C. Frost, on the brief).
The opinion of the court was delivered by LONG, J.A.D.
By leave granted, defendant Ronald Benda appeals from a November 1988 order of the trial judge purporting to exercise jurisdiction over this case pursuant to the Uniform Child Custody Jurisdiction Act (N.J.S.A. 2A:34-28 et seq. (U.C.C.J.A.)) and enjoining defendant from proceeding with a pending Indiana action involving the same subject matter. Because the order has been rendered moot by subsequent events in the case, the appeal is dismissed.
Plaintiff Sheri Benda and defendant were married in Las Vegas, Nevada, in 1984. Two children were born to them, Rachel in 1985 and Hillary in 1987. During the early years of the marriage, the parties lived in California where both were members of the Marine Corps. In 1986, after their discharge from the Marines, the parties moved to Terre Haute, Indiana where they purchased a home. In March 1988, plaintiff sued defendant for divorce in Indiana seeking, among other things, custody of the two children. At that time, plaintiff obtained a *367 restraining order against any contact by defendant with her or the children based on grave allegations of domestic violence. The parties reached a preliminary agreement as to custody and visitation in April 1988, which apparently was approved by the trial judge. According to the agreement, plaintiff was granted temporary custody of the children provided she would reside with the children at Coda House, a shelter in Indiana. Defendant was given supervised visitation. The restraining order remained in effect. Between April and June, 1988, both parties filed motions and orders to show cause in Indiana seeking various types of relief.
In June 1988, plaintiff came with the children to New Jersey. On July 28, she filed a Domestic Violence Complaint pursuant to N.J.S.A. 2C:25-12, alleging acts of violence by defendant in Indiana as a result of which a temporary restraining order was issued against defendant. Under the Order, which is not challenged on this appeal, plaintiff was granted temporary custody of the children. On August 3, plaintiff filed a complaint and order to show cause in Superior Court, Morris County, seeking permanent custody of the children and requesting the court to assume emergency jurisdiction over this case under N.J.S.A. 2A:34-28 et seq. and N.J.S.A. 9:2-7. She also filed a motion in Indiana to stay the Indiana action. Defendant moved in Indiana for the return of the children. On August 5, the Indiana court denied plaintiff's request for a stay, ordered the children returned and found plaintiff in contempt of the preliminary order.
On August 9, plaintiff filed a motion for reconsideration in Indiana which was denied with the following docket notation:
Pursuant to the Uniform Child Custody Act and having consulted with Judge Friend in the Superior Court, New Jersey, Morris County, and by agreement determining jurisdiction of this cause vests in Clay Circuit Court, Petition to Reconsider is denied.
On August 17, plaintiff filed a motion to dismiss the Indiana action. This motion was denied on August 18 with the following docket notation:
*368 ... on August 12, 1988 this court entered an order pursuant to the Uniform Child Custody Act. That after conference with Judge Friend in Superior Court, Morris County, New Jersey, it was unanimously decided and agreed that jurisdiction of the cause vested in Clay County, Indiana.
Meanwhile, in August, New Jersey judges issued final Domestic Violence orders continuing the prohibition against defendant contacting the plaintiff or the children. (These orders are not challenged here.) The custody case was scheduled for a "best interest/jurisdictional" hearing on October 3, 1988. Prior to the beginning of the hearing, the trial judge properly limited the case to the question of "emergency jurisdiction" under N.J.S.A. 2A:34-31a(3). At the hearing, a number of fact witnesses testified, including plaintiff and defendant and several experts. The judge then ruled that he had jurisdiction both under the emergency jurisdiction section and the best interests provision of N.J.S.A. 2A:34-31. He restrained defendant from proceeding with the custody hearing in Indiana scheduled for December 2, 1988. As to the simultaneous jurisdiction provision of N.J.S.A. 2A:34-34, the judge stated that he and the Indiana judge were at "logger heads" and that there was no reason to confer. He granted temporary custody of the children to plaintiff; directed that all proceedings concerning the custody, support and maintenance of the children were to be held in New Jersey; and ruled that if the defendant refused to participate in the New Jersey proceedings, the temporary custody decree would become final.
On December 2, 1988, the Indiana trial judge proceeded, in the absence of plaintiff, to enter a final order dissolving the parties' marriage, distributing the marital property and awarding defendant custody of the children. Plaintiff thereafter sought to hold defendant in contempt in New Jersey for proceeding with the Indiana action. The contempt proceeding was stayed pending the outcome of this appeal.
This case is a model for the application of U.C.C.J.A. Indeed, many of the legislative findings set forth in N.J.S.A. *369 2A:34-29 are precisely on target here. The point of the Act is to:
a. Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effect on their well-being;
b. Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child;
c. Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this State decline the exercise of jurisdiction when the child and his family have a closer connection with another state;
d. Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;
e. Deter abductions and other unilateral removals of children undertaken to obtain custody awards;
f. Avoid relitigation of custody decision of other states in this State insofar as feasible;
g. Facilitate the enforcement of custody decrees of other states; and
h. Promote and expand the exchange of information and other forms of mutual assistance between the courts of this State and those of other states concerned with the same child.
Where as here, two separate litigations involving child custody are proceeding in different jurisdictions, a classic scenario for the application of the remedial provisions of the Act is presented. In this respect, N.J.S.A. 2A:34-34 provides that:
a. A court of this State shall not exercise its jurisdiction under this act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this act, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons.
b. Before hearing the petition in a custody proceeding the court shall examine the pleadings and other information supplied by the parties pursuant to section 10 of this act and shall consult the child custody registry established pursuant to section 17 of this act concerning the pendency of proceedings with respect to the child in other states. If the court has reason to believe that proceedings may be pending in another state it shall direct an inquiry to the state court administrator or other appropriate official of the other state.
c. If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate *370 with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with sections 20 through 23. If a court of this State has made a custody decree before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.
Here, the New Jersey judge and the Indiana judge consulted pursuant to the provisions of N.J.S.A. 2A:34-34(c) and concluded that Indiana, where plaintiff began custody proceedings and which was the original home state of all parties, was the proper forum. At that point, the trial judge who ultimately took over the case in New Jersey was precluded by N.J.S.A. 2A:34-34 from exercising jurisdiction under the general jurisdiction provisions of the Act. N.J.S.A. 2A:34-31a(1), (2) and (4). See Cunningham v. Cunningham, 719 S.W.2d 224, 228 (Tex. Ct. App. 1986) ("When a sister state is already exercising jurisdiction in conformity with the U.C.C.J.A. at the time of filing ... the only power that the [second] trial court has is to dismiss.") Although the trial judge might have remedied the prohibition by instituting a new consultation with Indiana with a view toward Indiana ceding jurisdiction, absent such action and concession by Indiana, the prohibition against the exercise of general jurisdiction was absolute.
The single exception to this rule is found in N.J.S.A. 2A:34-31(a)(3)(ii) which recognizes the exercise of temporary emergency jurisdiction where the child is physically present in New Jersey and "it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected ..." Here, plaintiff's claim of emergency was footed in the Indiana Grand Jury's failure to indict defendant which caused plaintiff to feel that "she would never be safe" from him. To be sure, plaintiff's substantive claims against defendant are serious ones. But the extent of her grievance is not the issue in a case such as this. The issue is whether there is an emergency involving the children which cannot be addressed effectively in the forum *371 state chosen pursuant to the provisions of N.J.S.A. 2A:34-34(c). We have serious doubts as to whether the precipitating event here was sufficient to trigger the emergency provisions of the U.C.C.J.A. But even assuming that plaintiff presented a sufficient basis to invoke New Jersey emergency jurisdiction, that jurisdiction was clearly circumscribed and only allowed the judge to take interim protective measures with respect to the children, not to usurp the jurisdiction of the Indiana courts. In Hache v. Riley, 186 N.J. Super. 119, 127-128 (Ch.Div. 1982), this limitation was fully explored:
[E]xercise of jurisdiction under the "abandonment" and "emergency" provision of the U.C.C.J.A. does not take on the same characteristics or implications as the exercise of jurisdiction under the other provisions of the act. Assumption of emergency jurisdiction is an assumption of temporary jurisdiction only; it is meant solely to prevent irreparable and immediate harm to children and, absent satisfaction of other U.C.C.J.A. jurisdictional prerequisites, does not confer upon the state exercising emergency jurisdiction the authority to make a permanent custody deposition. (citing Fry v. Ball, 190 Colo. 128, 544 P.2d 402 (1975)).
* * * * * * * *
There are, of course, legitimate occasions for the exercise of emergency jurisdiction. However, this special power to take protective measures does not encompass jurisdiction to make a permanent custody determination or to modify the custody decree of a court with continuing jurisdiction. Emergency jurisdiction confers authority to make temporary orders, including temporary custody for a limited period of time, pending proceedings in the state with regular jurisdiction under the Act. (Emphasis added; citation omitted.)
See also Nelson v. Nelson, 433 So.2d 1015, 1019 (Fla. Dist. Ct. App.Dist. 1983) (finding that emergency jurisdiction under the U.C.C.J.A. could be used only "to issue a temporary protective order which will preserve the status quo for such limited time as is required to permit the petitioner to apply for a change of permanent custody to the state which has jurisdiction over such a petition under the provisions of U.C.C.J.A.... (emphasis in original)); Gerber v. Gerber, 468 So.2d 1061, 1062 (Fla. Dist. Ct. App. 1985) (extending the rationale in Nelson to cover those situations under the U.C.C.J.A. where a temporary, rather than a permanent, custody decree has been rendered by another state).
*372 In short, the trial judge had the power to enter an interim protective order for the benefit of the children, no more and no less. He lacked the power to award custody (other than on a temporary basis) or to enjoin defendant from participating in the pending Indiana proceedings. Most important is that once Indiana acted, entering final judgment in December 1988, the temporary New Jersey order lost its efficacy, no actions in furtherance of it were possible, and the subject matter of this appeal was rendered moot. Accordingly, the appeal is dismissed.
We note that the Indiana judgment which is the only operative order in the case, is presently on appeal. Irrespective of how the appeal is decided, the emergent order in this case, having been vitiated, will not be revived. Moreover, it seems to us that the Indiana courts will again be faced with an initial U.C.C.J.A. jurisdiction question requiring consultation with New Jersey because plaintiff and the children have resided here continuously since July of 1988.
Dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561287/ | 17 S.W.3d 426 (2000)
EUROCAPITAL GROUP LTD. and Neftetech International, Appellants,
v.
GOLDMAN SACHS & COMPANY, William Miller, Michael Dawson, James Milligan, and Jerome Wattenberg, Appellees.
No. 01-99-00555-CV.
Court of Appeals of Texas, Houston (1st Dist.).
May 4, 2000.
*427 George D. Gordon, Conroe, Kurt Arbuckle, Houston, for appellant.
Ronald D. Secrest, Houston, for appellee.
Panel consists of Chief Justice SCHNEIDER and Justices WILSON and SMITH.[*]
*428 OPINION
DAVIE L. WILSON, Justice.
Appellants, Eurocapital Group Ltd. and Neftetech International, petitioned the district court for vacation of an arbitration award in favor of appellees, Goldman Sachs & Company, William Miller, Michael Dawson, James Milligan, and Jerome Wattenberg.[1] Appellees answered and filed a motion for summary judgment. The district court granted the motion, dismissing all claims against appellees. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants are businesses engaged in investing foreign funds in the United States. Eurocapital is incorporated in the United Kingdom; Neftetech, in Ireland and Hong Kong. In 1992, Eurocapital opened an account with Goldman & Sachs with an initial investment of $12,000,000. In 1993, Neftetech opened an account with $1,035,000. Miller, Dawson, Milligan, and Wattenberg were the registered independent representatives with whom Eurocapital and Neftetech did business. The arbitration provision in the Eurocapital cash account agreement provided:
(a) Arbitration is final and binding on the parties.
(b) The parties are waiving their right to seek remedies in court, including the right to a jury trial.
(c) Pre-arbitration discovery is generally more limited than and different from court proceedings.
(d) The arbitrators' award is not required to include factual findings or legal reasoning and any party's right to appeal or to seek modification of rulings by the arbitrators is strictly limited.
(e) The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry.
Any controversy between you or any of your affiliates or any of your or their partners, officers, directors or employees on the one hand, and the Customer on the other hand, arising out of or relating to this Agreement or the accounts established hereunder, shall be settled by arbitration, in accordance with the rules then obtaining of any one of the American Arbitration Association or The New York Stock Exchange, Inc., or any other exchange of which you are a member, or the National Association of Securities Dealers, Inc. or The Municipal Securities Rulemaking Board Customer may elect. If Customer does not make such election by registered mail addressed to you at your main office within ten (10) days after receipt of notification from you requesting such election, then Customer authorizes you to make such election on behalf of Customer. Any arbitration hereunder shall be before at least three arbitrators and the award of the arbitrators, or of a majority of them, shall be final, and judgment upon the award rendered may be entered in any court, state or federal, having jurisdiction.[2]
*429 After the initial investments, appellants invested additional amounts, but incurred substantial losses. Appellants filed a claim in arbitration with the National Association of Securities Dealer, Inc. ("NASD"), and requested a hearing in Houston, Texas. Appellants alleged misrepresentation, breach of fiduciary duty, unsuitability, failure to supervise, excessive trading, negligence and gross negligence, common-law fraud, and violation of the Texas Deceptive Trade Practices and Consumer Protection Act.[3] Three NASD arbitrators heard the case in 23 sessions between August 18 and December 15, 1997. On February 27, 1998, they served the award on the parties, dismissing appellants' claim in its entirety, with prejudice.
On December 29, 1998, appellants filed their original petition in district court asking the court "for an Order Vacating an Arbitration Award under the Federal Arbitration Act." Appellants alleged the award "was the product of such gross mistake as to imply bad faith or a failure to exercise an honest judgment in that there was a manifest disregard of the law by the arbitrators." Appellants stated that they "were seeking redress based on violations of state and federal law with respect to the purchase of interest sensitive preferred stocks and interest-sensitive [sic] proprietary derivative [sic]," and directed the district court's attention to the following statement in the award: "Although Claimants originally brought this claim for trading in common stocks generally, the claim was reduced to losses relating to two specific common stocks at the hearing." Appellants claimed this statement showed "such a manifest disregard for the facts of the case and the applicable law that the Award must be vacated." In their first amended original petition, appellants added the allegation that the arbitrators' conduct and the resulting award were against public policy and were arbitrary and capricious.
Appellees answered, alleging that (1) the petition to vacate the award was not justiciable because it was filed after the statutory limitation period applicable to motions to vacate under the Federal Arbitration Act ("FAA") and (2) the petition failed to state a claim that, if true, would support vacation of the award. Appellees also filed a motion for summary judgment under Texas Rule of Civil Procedure 166a(b). Appellees reasserted the limitations claim and alleged that, as a matter of law, appellants had misread the award, ignoring language that demonstrated appellants' claims were baseless. The district court granted the motion ordering that all claims against appellees be dismissed with prejudice.
DISCUSSION
In two related points of error, appellants challenge the district court's grant of summary judgment. In point of error one, appellants contend the district court erred if it granted summary judgment on the ground of limitations. In point of error two, appellants contend the district court erred if it granted summary judgment either on a no-evidence basis or on the basis that no genuine issue of material fact existed.
The party that seeks to vacate an arbitrator's award has the burden in the trial court of bringing forth a complete record and establishing any basis that would warrant vacating the award. Kline v. O'Quinn, 874 S.W.2d 776, 790 (Tex. App.-Houston [14th Dist.] 1994, writ denied). Because arbitration is favored as a means of dispute resolution, courts indulge every reasonable presumption in favor of upholding the award. Wetzel v. Sullivan, King & Sabom, P.C., 745 S.W.2d 78, 81 (Tex.App.-Houston [1st Dist.] 1988, no writ). In the present case, the appeal is from a summary judgment, and we apply *430 the summary judgment standard. See Teleometrics Int'l, Inc. v. Hall, 922 S.W.2d 189, 193 (Tex.App.-Houston [1st Dist.] 1995, writ denied) (distinguishing standard of review in cases when appeal is from grant of summary judgment from standard when appeal is from judgment confirming award).
Summary judgment is proper only when the movant shows that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether there is a disputed material fact issue precluding summary judgment, we take as true evidence favorable to the non-movant. Nixon, 690 S.W.2d at 548-49. We must indulge every reasonable inference in favor of the non-movant and resolve any doubts in its favor. Id. at 549. Summary judgment is proper when a plaintiff's allegations cannot constitute a cause of action as a matter of law. Maranatha Temple, Inc. v. Enterprise Prods. Co., 893 S.W.2d 92, 98 (Tex.App.-Houston [1st Dist.] 1994, writ denied). When the order granting summary judgment does not specify the ground on which the trial court is relying, we will affirm the judgment if any one of the theories advanced in the motion is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
Limitations. It is undisputed that appellants filed their petition to vacate the award 10 months after the award was served on the parties. Appellants argue that the ground they asserted for vacating the award was a common-law ground; that, therefore, common-law, not statutory limitations govern; and that the state statutory residual four-year limitations period should apply. Tex. Civ. Prac. & Rem.Code Ann. § 16.051 (Vernon 1997). Appellees argue that the limitation provision of the FAA applies. Under the FAA, notice of a motion to vacate an award must be served on the adverse party within three months after the award is filed or delivered. 9 U.S.C.A. § 12 (West 1999).[4] We hold that the three-month limitation of the FAA applies under the facts of this case.
The contract containing the arbitration provision in this case is an account agreement dealing with the sale of securities. As such, the agreement involves interstate commerce, and the FAA applies to the present dispute. Thomas James Assocs., Inc., v. Owens, 1 S.W.3d 315, 319 (Tex.App.-Dallas 1999, no pet.); see also Williams v. Cigna Fin. Advisors, 56 F.3d 656, 659 (5th Cir.1995) (reasoning that, because U-4 Registration was contract involving sale of securities, it thus involved commerce). We also note that appellants stated in their pleadings that they were seeking relief under the Federal Arbitration Act.
Section 2 of the FAA is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 941, 74 L. Ed. 2d 765 (1983).[5] The effect of section *431 2 is "to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act." Cone, 460 U.S. at 24, 103 S.Ct. at 941.
The same statute that, in section 10, set forth the grounds for vacating an arbitration award also set forth, in section 12, the period for bringing such challenges in the federal district court. Act of July 30, 1947, ch. 392, Pub.L. No. 282, §§ 10, 12, 61 Stat. 669, 672-73 (codified at 9 U.S.C. §§ 10, 12).[6] FAA section 12 provides, "Notice of a motion to vacate ... an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered." 9 U.S.C.A. § 12 (West 1999).
When the very statute that creates a right of action incorporates an express limitation on the time within which the suit can be brought, the statute of limitation is considered substantive. Hill v. Perel, 923 S.W.2d 636, 639 (Tex.App.-Houston [1st Dist.] 1995, no writ). Furthermore, we view FAA sections 10 and 12 together as part of an enforcement scheme intended to promote the federal policy favoring arbitration when the underlying contract concerns interstate commerce. See Zhaodong Jiang, Federal Arbitration Law and State Court Proceedings, 23 Loy. L.A. L. Rev. 473, 526 (1990); see also Tampa Motel Management Co. v. Stratton of Florida, Inc., 186 Ga.App. 135, 366 S.E.2d 804, 808 (1988) (applying federal limitations period). But see Atlantic Painting & Contracting, Inc. v. Nashville Bridge Co., 670 S.W.2d 841, 846 (Ky.1984) (concluding limitations provision was procedural and not applicable in state proceedings). We hold that the three-month limitation period of FAA section 12 applies to the present case.[7]
Accordingly, we reject appellants' contention that, because they asserted a common-law ground for vacating the award, the state statutory residual four-year limitation period should apply. See Tex. Civ. Prac. & Rem.Code Ann. § 16.051 (Vernon 1997). The longer period is not consistent with even the common-law rule that favors arbitration and indulges every reasonable presumption in favor of upholding an award. See House Grain Co. v. Obst, 659 S.W.2d 903, 905 (Tex.App.-Corpus Christi 1983, writ ref'd n.r.e.).
Appellants have cited no case that supports their position. At oral argument, *432 appellants argued that the case most closely approximating theirs is Mian v. Donaldson, Lufkin, & Jenrette Securities Corp., 7 F.3d 1085 (2nd Cir.1993). Mian sued in district court alleging that the defendants had discriminated against him because of his race during arbitration proceedings. His suit, therefore, was a civil rights action under 42 United States Code sections 1981, 1985(3), and 1986, not a suit challenging the arbitration award. The second circuit held that the limitations periods applicable to sections 1981, 1985, and 1986 applied in the case before it, even though a major component of Mian's damages would consist of the amount of the arbitration award. Id. at 1087. In contrast to Mian, appellants' suit in this case was, by appellants' own representation, a suit under the Federal Arbitration Act.
We hold that appellants' petition to vacate the award was not timely, and they have forfeited their right to judicial review of the award. Piccolo v. Dain, Kalman & Quail, Inc., 641 F.2d 598, 600 (8th Cir. 1981); cf. Teleometrics Int'l., 922 S.W.2d at 192 (90-day period under state arbitration act is limitations period after which party has no right to petition court to vacate arbitration award).
We overrule appellants' point of error one. Because the limitations theory advanced in the motion for summary judgment is meritorious, we need not address appellants' point of error two. State Farm Fire & Cas. Co., 858 S.W.2d at 380.
We affirm the judgment.
NOTES
[*] The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.
[1] The statement of claim for arbitration, the pleadings, and the judgment in the district court refer to "Neftetech" and "Goldman Sachs & Company," rather than "Neftech" and "Goldman Sachs & Company, Inc.," as used in the notice of appeal and in this Court. Consistent with the judgment, we refer to the parties as "Neftetech" and "Goldman Sachs & Company," and assume they are the parties to the present appeal.
[2] The cash account agreement also provided, "This agreement and its enforcement shall be governed by the laws of the State of New York and its provisions shall cover individually and collectively all accounts which Customer may maintain with you." Neither party argues that this general choice of law provision required that New York arbitration law govern the arbitration or subsequent proceedings. Cf. Texas Commerce Bank v. Universal Tech. Inst. of Texas, Inc., 985 S.W.2d 678, 679 (Tex. App.-Houston [1st Dist.] 1999, pet. dism'd w.o.j.) (arbitration clause required arbitrators to apply Texas law).
[3] See Tex. Bus. & Com.Code Ann. § 17.41.63 (Vernon 1987 & Supp.2000). In addition to alleging common-law violations and violations under the Business and Commerce Code, appellants alleged violations of federal and state securities laws, too numerous to list.
[4] Under the Texas General Arbitration Act ("TGAA"), a party must make application to vacate an award not later than the 90th day after the date a copy of the award is delivered to the applicant. Tex. Civ. Prac. & Rem.Code Ann. § 171.088(b) (Vernon Supp.2000). If the party is claiming "the award was obtained by corruption, fraud, or other undue means," the party has until the 90th day after the date the grounds in the application were known or should have been known. Tex. Civ. Prac. & Rem.Code Ann. § 171.088(a)(1), (b) (Vernon Supp.2000).
[5] Section 2 of the FAA provides: "A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C.A. § 2 (West 1999).
[6] Section 10 provides that an award may be vacated on the following grounds:
(1) Where the award was procured by corruption, fraud, or undue means.
(2) Where there was evident partiality or corruption in the arbitrators, or either of them.
(3) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.
(4) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
(5) Where an award is vacated and the time within which the agreement required the award to be made has not expired the court may, in its discretion, direct a rehearing by the arbitrators.
9 U.S.C.A. § 10(a) (West 1999). In addition, some federal courts have adopted the federal common-law doctrine of manifest disregard in conjunction with the FAA. See International Bank of Commerce-Brownsville v. International Energy Dev. Corp., 981 S.W.2d 38, 48 (Tex. App.-Corpus Christi 1998, pet. denied) (citing cases), cert. denied, ___ U.S. ___, 120 S. Ct. 982, 145 L. Ed. 2d 932 (2000).
[7] The court of appeals for the fourteenth district appears to have concluded the federal limitation period would apply to actions brought in state court. Babcock & Wilcox Co. v. PMAC, Ltd., 863 S.W.2d 225, 236 (Tex. App.-Houston [14th Dist.] 1993, writ denied). The court held that Babcock's failure to pay an award within 30 days after it was rendered, as required by the award, did not constitute a breach because Babcock moved to vacate and/or modify the award three days after it was rendered. In this context, the court observed that, under 9 U.S.C. section 12, Babcock had three months to bring a motion to vacate. Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304506/ | Me. Chief Justice DyeR
delivered the opinion of the Court.
This is a workmen’s compensation case presenting the one issue that the trial court was in err or in holding the Second Injury Fund, T.C.A. sec. 50-1027, could not be reached under the facts of this case.
*660On July 22, 1963, Hubert L. Church, (employee) suffered compensable injuries and was awarded benefits for permanent partial disability based upon five per cent loss of use of the body as a whole, twenty per cent loss of use of the left hand, and nineteen per cent loss of hearing. On November 10, 1964, employee suffered compensable injuries from a second industrial accident and was awarded benefits based upon sixty per cent permanent partial disability to the right leg. The total of the first award was $3,000.00, and the second award $3,600.00.
On January 31, 1968, employee brought the suit now before the Court against the N. B. C. Company, Inc. (employer) alleging he was totally and permanently disabled having contracted the occupational disease of silicosis from causes related to his employment. The employer answered asserting several defenses and also filed a cross-bill making the Treasurer of the State of Tennessee, as custodian of the Second Injury Fund, a party alleging that if the employee were entitled to benefits for total disability, a part of the judgment should be allocated to the Second Injury Fund due to the previous permanent partial benefits received by the employee.
Upon the hearing the chancellor found employee was totally and permanently disabled as a result of the silicosis and entered a judgment against the employer in conformity therewith. Suit against the Second Injury-Fund was dismissed resulting in this appeal by employer.
The chancellor held since the prior permanent disabilities did not combine with the disability resulting from silicosis to cause the permanent total disability the Second Injury Fund could not be reached.
*661There must be at least two permanent disabilities, the second resulting in total disability, before there can be a recovery under the Second Injury Fund. Davis v. Alexander, 213 Tenn. 131, 372 S.W.2d 769 (1963). The issue here is whether the prior disability must combine with the current disability to produce total disability in order to recover from the Second Injury Fund.
The position of the employer is as follows: It is admitted the employee has sustained a previous permanent disability the percentage shown to be 46.125. It is admitted employee from the current disability (silicosis) has become premanently and totally disabled and entitled to full benefits stated in percentage terms as 100 per cent. That under the language of T.C.A. sec. 50-1027, the Second Injury Fund would be liable for 46.125 per cent of the award and the employer liable for the balance.
The applicable portion of T.C.A. see. 50-1027 reads as follows:
If an employee has previously sustained a permanent disability by reason of the loss of, or loss of use of, a hand, an arm, a foot, a leg, or an eye and becomes permanently and totally incapacitated through the loss, or loss of use of another member, he shall be entitled to compensation from his employer or the employer’s insurance carrier only for the disability that would have resulted from the latter injury, and such earlier injury shall not be considered in estimating the compensation to which the employee may be entitled under this law from the employer or the employer’s insurance carrier; provided, however, that in addition to such compensation for said subsequent injury, and after completion *662of the payments therefor, then such employee shall be paid the remainder of the compensation that would be due for the permanent total disability out of a special fund to be known as the “second injury fund” herein created.
This last sentence in the paragraph above has to be read in light of the fact an employee disabled from one industrial accident or occupational disease would not be entitled to benefits beyond total and permanent disability in percentage terms of 100 per cent. In the case at bar the employee sustained total permanent disability (100 per cent) from the current disability (silicosis) without considering the previous permanent disability. Under the language of this statute the employer is liable for benefits due resulting from silicosis and since this amounts to all the benefits employee could receive, then it follows there are no benefits due employee for which the Second Tujury Fund would be liable.
Employer cites the recent case of Bland Casket Co. v. Davenport, 221 Tenn. 492, 427 S.W.2d 839 (1968). The employee in the Bland case had a thirty-five per cent permanent partial disability existing prior to the current disability. When employee sustained the current disability he was found to be permanently and totally disabled but there is no finding the current disability alone caused the total disability. The holding in the Bland case, as modified by this Court, pertinent to the issue in the case at bar is as follows: Upon sustaining the current injury the employee was found to be totally and permanently disabled, of which total disability the current injury contributed sixty-five per cent for which the employer was liable and the previous permanent dis*663ability contributed, thirty-five per cent for which, the Second Injury Fund was liable.
The judgment of the trial court is affirmed.
CresoN, Humphreys and McCanless, Justices, and JeNkiNS, Special Justice, concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1566486/ | 592 S.W.2d 553 (1980)
STATE of Tennessee, Appellee,
v.
Russell Keith BERRY, Appellant.
Supreme Court of Tennessee.
January 7, 1980.
James T. Bowman, Johnson City, for appellant.
William M. Leech, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, *554 Heiskell H. Winstead, Dist. Atty. Gen., Rogersville, John K. Wilson, Larry W. Weems, Asst. Dist. Attys. Gen., Greeneville, for appellee.
OPINION
HENRY, Justice.
This conviction for murder in the first degree with penalty fixed at death by electrocution is before the Court by direct appeal pursuant to Section 39-2406, T.C.A. We reverse and remand.
I.
General Background
This murder was marked by shocking and savage brutality. It was described by the Trial Judge as "one of the most brutal crimes this judge has ever encountered," and by the jury as being "especially heinous, atrocious, cruel, and it involved torture and depravity of mind."
On February 9, 1978, at approximately four o'clock in the afternoon, John Harvey Shanks, the aged and retired father-in-law of the defendant, was brutally attacked and killed with a ball-peen hammer, in the basement of his farm home in the Green Shed Community in the Fall Branch area of Greene County. Approximately an hour or hour and a half later his wife, Zelma P. Shanks, defendant's mother-in-law, upon arriving at her residence, was savagely attacked and seriously injured. After attempting to determine that she was not alive by burning various parts of her body with a cigarette, her assailant[s] left her for dead. Approximately twenty-four hours later the bodies were discovered. Zelma P. Shanks was hospitalized and recovered to the extent that she testified for the defendant at the trial.
The defendant's wife, Robin Shanks Berry, is the only child of John H. and Zelma P. Shanks. She holds a bachelor of science degree from East Tennessee State University, is a registered nurse, and at the time of the trial, was a student at Vanderbilt University as a candidate for a master's degree.
The defendant was twenty-six years of age at the time of the crime and had attended East Tennessee State University for about a year and a half. He had no regular employment. A contrary representation to the investigating officers was determined to be untrue. By his own admission he was trafficking in contraband drugs. There is a rather strong suggestion in the record that he killed his own mother and father and, thereafter, burned their residence in order to collect fire insurance proceeds. He was under indictment for arson at the time of the trial. He was also under indictment for solicitation of the offense of murder in the first degree.
There is no suggestion that defendant suffers from insanity or from any form of diminished responsibility.
Two broad generalizations are evident. First, it is apparent that the Shanks family were property owners and people of some means. While not wealthy they were what is commonly described as "well-to-do" rural people of community standing. Secondly, it is obvious that the Shanks' money and property, and the defendant's impecuniosity, bear heavily upon this tragic occurrence.
This prosecution focused upon the defendant as a result of the highly professional and superbly proficient investigation conducted by the District Attorney General and his staff, along with the Tennessee Bureau of Investigation, particularly Agent Bob Baird, whose investigative activities were painstakingly effective.
II.
The Jailhouse Statements of the Defendant
A major issue revolves around the admissibility of certain admissions, confessions, and statements made by the defendant after indictment, while in Greeneville City Jail, to a member of the Tennessee Bureau of Investigation posing as a prisoner.
As a prelude to a discussion of this issue, the time sequence becomes important. A search warrant was executed on March 31, *555 1978. During the course of the search the defendant handed Agent Baird a letter signed by his counsel advising of his right to have an attorney present during any conversations with the police and giving other appropriate advice to his client.
On April 17, 1978, the presentment was returned. On that same day the District Attorney General requested Agent David Rhea of the Tennessee Bureau of Investigation to meet with Agent Baird, Sheriff Colyer of Greene County, and Agent Denny of the Tennessee Bureau of Investigation for the purpose of formulating a false charge upon which he might be placed in jail along with the defendant. It was determined that he would be charged with drunken driving, possession of marijuana, going armed, with a hold for armed robbery in Kentucky. A newspaper story was planted in the local newspaper, and Rhea entered the jail as Michael David Turnblazer. He was actually confined on April 18, 1978.
Also on April 18, 1978, the defendant was arrested, on a capias, in Nashville by Sheriff Gale Colyer of Greene County and Agents Baird and Denny. While still in Nashville, and immediately following the arrest, counsel for the defendant called Sheriff Colyer by long distance, advised him that he represented the defendant and requested that he not be questioned. The Sheriff agreed and promised that he would not be questioned. This was one day after the Sheriff had participated in the planning conference and after it had been determined that a TBI agent, posing as an accused criminal, would be placed in the Greeneville City Jail along with defendant. To say the least the Sheriff was somewhat less than candid about the matter, lulling Lawyer Bowman into a false sense of security.
Thus it was that the ruse of placing a TBI agent, posing as a criminal, in jail with the defendant, occurred after defendant had been indicted, after his custodians knew he was represented by counsel and after defendant's counsel had been promised there would be no interrogation, and while defendant was secure in the knowledge that he would not be interrogated.
David Rhea, the TBI agent, testified that he was placed in jail, under an assumed name and posing as a prisoner, "to determine what, if any action, Russell Berry was taking as far as taking the life of Bobby Baird." The trial court found that the agent had gone into the cell, not for the purpose of interrogating defendant or of obtaining a statement about this particular crime, but to determine what harm was in the making for the prosecution witnesses. This is the theory of the State. Substantial effort was made to prove threats against Agent Baird. We find scant proof of any threat made to or about Agent Baird. Indeed there is no testimony of any direct threat except to sue for slander. During the course of the trial Agent Baird represented to the court that several persons had communicated threats to him. He declined to reveal their identity. The Trial Judge directed him to submit to the court "the names of those persons who tell you about threats made." The submission made by Agent Baird, pursuant to those instructions, appears in this record in a sealed envelope.
Examination reveals that the identity of a single person was disclosed Mrs. Clyde Phillips, a sister of Zelma Shanks. No direct statement is attributed to her. The statement simply recites she is "very apprehensive about actions toward her by defendant Keith Berry." It is noteworthy that Mrs. Phillips testified as a witness for the State and nothing in her testimony touches upon this assertion.
Assuming arguendo that the meager proof presented a reasonable ground for belief that the defendant would inflict death or some bodily harm upon Agent Baird or any other witness and overlooking the fact that he did not do so from the time of the murder on February 8, 1978, until his incarceration on April 18, 1978, more than two months later the validity of the action of the State in placing a law enforcement officer, posing as a prisoner, in the cell with defendant is not thereby established. The testimony of the agent may or may not be competent in the context of *556 another trial on another charge, e.g., solicitation to commit murder or arson, but it is not admissible in this trial. Further, assuming the statements made by the defendant to have been voluntary, as found by the Trial Judge, and as insisted by the State, they do not necessarily become admissible. See infra.
Agent Rhea testified that as soon as defendant entered the cell he started talking. After about two hours he stated that he would like to have Agents Baird and Denny killed and was willing to pay a price. "Turnblazer" offered to kill these two individuals "if there was enough money in it." After further discussion they agreed on a price of $5,000.00 each. The deed was to be accomplished before the following Monday because this was the date of the bond hearing. Defendant stated that these two agents knew more about the case than anyone and the way to win was to "eliminate witnesses."
Defendant suggested the use of dynamite as a good way to eliminate Baird.
As a part of the conversation, "Turnblazer" told defendant that he had contacted his girl friend and had mentioned to her that they could make some money. In due course, Rita Sisson, another agent for the TBI, showed up at the jail and was introduced to defendant as Turnblazer's girl friend. They talked some fifteen to twenty minutes about the details and plans for the murder of the two agents. They agreed on $500.00 front money.
Still later, according to Turnblazer, defendant's wife, Robin Berry, came to the jail. Defendant begged her for a gun but she refused unless and until he was convicted. On two or three occasions during her visits he asked her for $500.00 and told her that he had hired Turnblazer to kill Agent Baird.
During a visit by defendant's wife after they had discussed the "front money," she stated she had checked all their bank accounts and advised defendant that they had no money. Defendant admitted he had lied to her about various money affairs and further admitted to her that he had lied about his employment.
During the various conversations, defendant made numerous damaging admissions concerning the murder of his father-in-law. He discussed various portions of the proof against him and outlined his alibi defense. He discussed the ball-peen hammer but said he was not concerned about this because it was not listed on the search warrant and could not be used in court. He discussed various details about the events of February 8, 1978, but stopped short of a direct admission of murder. Taken, however, in context with the total proof, he fairly established his guilt. He clearly established his presence in the Knoxville area and left little doubt that he was at the Shanks' residence the day of the murder.
It is evident from this record that the statements made by the defendant were voluntary and made while under the belief that Turnblazer was a "tough character." It is further evident that they were made during the course of extended conversation interspersed with questions by the agents. We see no essential difference between this and a normal interrogation wherein a police officer takes a statement from one accused of crime. Instead of the conventional interrogation the agents listened and carried on the conversation, interrupting from time to time to ask questions designed to keep the conversation going and the information flowing. As said by the Court in United States v. Brown, 466 F.2d 493 (10th Cir.1972):
We do not pause to discuss any purported significance as to whether Byers obtained the information by direct question or otherwise. Form does not control the substance in determining the legality of interrogation and very often subtlety is more effective than other methods of coercion.
466 F.2d at 495.
This was an interrogation. The only question is whether the information given by the defendant while in the jail house, after indictment, after employment of counsel, after the law enforcement authorities *557 knew of counsel's employment and had promised no interrogation, is admissible merely because it was voluntarily made. We respond in the negative.
Our analysis of the legal issues must start with Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). There government agents surreptitiously recorded the conversation of the defendant with a co-defendant, after indictment, and after the employment of counsel, while the defendant was on bail. The Court held that:
[T]he petitioner was denied the basic protections of [the Sixth Amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.
377 U.S. at 206, 84 S.Ct. at 1203, 12 L.Ed.2d at 250.
We should note at the outset that there is a distinction between the Miranda Fifth Amendment right to counsel, which is designed to protect against coercion, and the Massiah Sixth Amendment right to counsel which guarantees to a criminal defendant the right to legal assistance in any critical confrontation with state officials, irrespective of coercion. Here we deal with the Sixth Amendment.
In Hancock v. White, 378 F.2d 479 (1st Cir.1967), the Court was concerned with incriminating statements made to law enforcement officials during an automobile trip, after indictment. At the time of the statements the defendant had not requested counsel in the pending case. He was not interrogated; the statements were volunteered, and no chicanery, trickery or subterfuge was involved. The Court applied the Massiah rule, holding that:
[T]he Massiah rule is not limited to Massiah "circumstances" but applies to exclude post-indictment incriminating statements of an accused to government agents in the absence of counsel even when not deliberately elicited by interrogation or induced by misapprehension engendered by trickery or deception.
378 F.2d at 482.
The case of Miller v. California, 392 U.S. 616, 88 S. Ct. 2258, 20 L. Ed. 2d 1332 (1968), was decided per curiam. Because the language of the dissent (four justices) is so appropriate to the case at bar and because it involves the use of testimony by a falsely booked government agent, we quote extensively:
In the State's view, so long as Fisk acted simply as a listening post, she could testify as to any statements made to her by petitioner. That view was, however, rejected in Massiah itself. The Government in that case pointed to the fact that the record did not reveal that its agent had induced the defendant by persuasion (there based on friendship) to discuss his activities, and urged that "providing a defendant an opportunity to talk" did not violate his right to counsel. See also Beatty v. United States, 389 U.S. 45[, 88 S. Ct. 234, 19 L. Ed. 2d 48] (1967), reversing 377 F.2d 181 (CA 5th Cir.).
At all events, Fisk was not put in the cell to discuss the weather, to console petitioner, or merely to provide her with companionship. Her presence itself was an inducement to speak, and an inducement by a police agent. While petitioner's statements to her were not obtained by coercive means, they certainly were not given, in light of the deception, through a knowing and intelligent waiver of petitioner's rights.
Furthermore, it is clear on this record that Fisk was planted in petitioner's cell in order to subvert her right to counsel, with the express purpose of attempting to obtain evidence out of her mouth. On one occasion, Fisk was given a newspaper clipping concerning the case and was told to show it to petitioner, which she did with some accompanying statement, such as the press is "ruining you." On another occasion, pursuant to instructions, Fisk told petitioner of a conversation that she had supposedly overheard in a hall between four men whom she thought were from the district attorney's office, in which one of the men, as the ruse went, said: "Getting back to the Miller case, *558 Arthwell Hayton came in and blew the top off the case." Fisk also told petitioner "I put all my trust in Mr. Bland [the sheriff] and maybe it would do some good for you if you tried the same." Finally, Fisk said that she had at one time been represented by an attorney who "did not do me much good" and indicated that perhaps petitioner should suspect hers. Such deliberate police deception and subversion of a defendant's rights should not be condoned. The District Court of Appeal said in this case:
"It is almost incredible that in these days of enlightened treatment by prosecution authorities of persons charged with crime, the Peggy Fisk incident could have occurred. * * *"
392 U.S. at 625-26, 88 S.Ct. at 2266-2267, 20 L.Ed.2d at 1337-38.
Miller involved pre-indictment incriminating statements. Had the statements been made after indictment the results, under Massiah, no doubt would have been different. We adopt the reasoning of the dissent, as being applicable to the instant case.
We next discuss the landmark case of Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977), wherein Massiah is endorsed and the Court makes it clear that the Sixth Amendment attaches "once adversary proceedings have commenced."
[T]he clear rule of Massiah is that once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him.
430 U.S. at 401, 97 S.Ct. at 1240, 51 L.Ed.2d at 438.
The facts of Brewer v. Williams are familiar to students of criminal jurisprudence. Briefly stated, they are that Williams was arrested in Davenport, Iowa, after having called his lawyer in Des Moines who advised him to surrender. He was given Miranda warnings. The Davenport police called their counterparts in Des Moines and reached them while Williams' lawyer was still at the police station. Williams talked with his lawyer who advised that he would be returned to Des Moines but would not be questioned en route and he was not to talk with the officers. The lawyer agreed with the police that Detective Leaming and a fellow officer would go to Davenport and return Williams to Des Moines but that they would not question him.
Detective Leaming knew that Williams had a history of mental difficulties and was extremely religious. On the return trip, Leaming made his famous "Christian burial speech." First, addressing Williams as "Reverend," he pointed out the existing extreme weather conditions with several inches of snow predicted, and that only Williams knew the location of the child he was accused of killing and whose body he had hidden. Next he pointed out that if it snowed on top of that body even Williams would have difficulty finding it.
Then he delivered his coup de grace:
[S]ince we will be going right past the area ... I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas [E]ve and murdered.
430 U.S. at 392-93, 97 S.Ct. at 1236, 51 L.Ed.2d at 433.
This speech had its intended effect and Williams took them to the body.
In one fell swoop, the Supreme Court disposed of virtually all issues:
[T]here is no need to review in this case the doctrine of Miranda v. Arizona, a doctrine designed to secure the constitutional privilege against compulsory self-incrimination, (citation omitted). It is equally unnecessary to evaluate the ruling of the District Court that Williams' self-incrimination statements were, indeed, involuntarily made (citation omitted). For it is clear [to us] that the judgment [grant of habeas corpus] before us must in any event be affirmed upon the ground that Williams was deprived of a different constitutional right the right to the [effective] assistance of counsel.
430 U.S. at 397-98, 97 S.Ct. at 1239, 51 L.Ed.2d at 435-36.
*559 Thus, Brewer v. Williams rests squarely on Sixth Amendment grounds, and the Court makes it clear that the "Sixth and Fourteenth Amendments mean[s] at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him `whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" 430 U.S. at 398, 97 S.Ct. at 1239, 51 L.Ed.2d at 436. (Emphasis supplied).
Further, the Court said "[t]here can be no serious doubt, either that Detective Leaming deliberately and designedly set out to elicit information from Williams just as surely as and perhaps more effectively than if he had formally interrogated him." 430 U.S. at 399, 97 S.Ct. at 1240, 51 L.Ed.2d at 436-37. Counsel for the Government conceded that the Christian burial speech was "tantamount to interrogation." The Supreme Court agreed with both lower courts that a form of interrogation was involved.
Moreover, the Court said "[t]hat the incriminating statements were elicited surreptitiously in the Massiah case and otherwise here, is constitutionally irrelevant." 430 U.S. at 400, 97 S.Ct. at 1240, 51 L.Ed.2d at 437.
Lastly, the Court makes a pronouncement that judges having criminal jurisdiction, at all levels, must heed:
The pressures on state executive and judicial officers charged with the administration of the criminal law are great, especially when the crime is murder and the victim [is] a small child. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all. (Emphasis supplied).
430 U.S. at 406, 97 S.Ct. at 1243, 41 L.Ed.2d at 441.
Two cases decided by the Supreme Court of Rhode Island are of significance. The first, State v. Travis, 116 R.I. 678, 360 A.2d 548 (1976), involved a statement surreptitiously obtained by an undercover police officer. Defendant was arrested, given a Miranda warning and refused to make any statement, advising that he wished to consult with an attorney. Shortly thereafter, an undercover police officer entered his cell, dressed in "modtype" clothing and wearing a beard and having very long hair. The defendant talked, and subsequently he was indicted.
In reversing the conviction the Court used the following significant language:
We attach no significance as to whether the agent in the cell asked questions of the duped defendant or not. United States v. Brown, 466 F.2d 493, 495 (10th Cir.1972); Hancock v. White, 378 F.2d 479, 482 (1st Cir.1967). To allow into evidence admissions made to an agent in the cell who made casual conversation with a defendant while carefully avoiding any questions regarding the specific crime under investigation, but to disallow that agent's testimony if he asked a question pertaining to a defendant's reason for being incarcerated, would be to play games with an individual's constitutional guarantees. This we will not do.
The mere presence of Langlois was an inducement to speak, and an inducement by a police officer. We see no significant difference between a uniformed police officer asking questions of defendant and Langlois' presence inside the cellblock with defendant. There was no knowing and intelligent waiver by defendant of his constitutional rights and one will not be presumed lightly. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). The undercover agent's ruse amounted to proscribed "further interrogation."
The police were not allowed to interrogate defendant directly. There is no authority in these circumstances for the police to do indirectly what they may not do directly. United States v. Brown, supra at 495; State v. Smith, 107 Ariz. 100, 104, 482 P.2d 863, 867 (1971); State v. McCorgary, 218 Kan. 358, 543 P.2d 952, 958 (1975).
360 A.2d at 551.
*560 The second case is State v. Innis, 391 A.2d 1158 (R.I. 1978). Innis was arrested on the streets of Providence for armed robbery and armed robbery and murder. Both crimes were perpetrated with a shotgun but he did not have it in his possession when arrested. He was promptly given the Miranda warnings. After the third such warning he stated that he wanted to see an attorney. He was transported to the patrol station and before departing the transporting officers were instructed not to interrogate him.
En route to the station, one officer speaking to the other, expressed concern that a child from a nearby school for handicapped children might find the missing shotgun and injure himself. Defendant thereupon asked officers to return him to the scene of his arrest so that he might show them where he had hidden the shotgun. He was again advised of his Miranda rights, following which he led the police to the gun hidden under a pile of rocks in a nearby field.
The Court held that both statements should have been suppressed. Two issues were identified and discussed, viz: (1) whether defendant was "interrogated" within the meaning of Miranda, and (2) whether he waived his right against self-incrimination. As to the first question, the Court said:
The defendant, alone in a police wagon with three officers at 4 a.m., underwent the same psychological pressures which moved Williams to lead police to the body of his victim. Police officers in such a situation must not be permitted to achieve indirectly, by talking to one another, a result which the Supreme Court has said they may not achieve directly by talking to a suspect who has been ordered not to respond. The same `subtle compulsion' exists.
... we believe that defendant was interrogated within the meaning of Miranda in the absence of counsel after requesting to see an attorney.
391 A.2d at 1162.
The Court held that there was no waiver of defendant's right against self-incrimination.
The Rhode Island Court did not rely upon the Sixth Amendment; however, it did place strong reliance upon Brewer v. Williams, supra, a Sixth Amendment case. In this connection, it should be noted that the action of the defendant in leading officers to the hidden gun occurred prior to the initiation of judicial proceedings. Thus, Innis is not as strong, in principle, as the case at bar. Williams involved interrogation after preliminary arraignment. Innis, therefore, is of questionable precedential value in the consideration of the instant case. Further, the Supreme Court has granted certiorari and the case is docketed for hearing at the present term. Rhode Island v. Innis, 440 U.S. 934, 99 S. Ct. 1277, 59 L. Ed. 2d 492 (1979).
Also docketed for hearing at this term is Henry v. United States, 590 F.2d 544 (4th Cir.1978). This is a split opinion by the Court of Appeals, Fourth Circuit, and is analagous to the case at bar. It raises the specific question of whether Henry's rights were infringed by the admission of statements he made in the course of general conversation with a cellmate who had agreed to act as government informer but had been instructed not to question defendant.
Henry was indicted for armed bank robbery and confined in the Norfolk City Jail. Shortly thereafter an FBI agent contacted another inmate at the jail who had been a paid informer for the FBI for over a year. The agent instructed the informer to be alert to any statements about charges pending but was specifically warned not to initiate conversation with or question Henry regarding the bank robbery. Subsequently, Henry engaged him in conversation during the course of which he described the details of the bank robbery. At all pertinent times Henry was in custody, had been indicted and had not waived his right to counsel. In holding that Henry's right to counsel was violated, the Court said:
*561 An undisclosed government agent may effectively "interrogate" a defendant by simply engaging the defendant in a general conversation and if the response is a confession of guilt, the agent need not make any further more pointed inquiries (citation omitted).
... even if we assume that Nichols obeyed his instructions not to interrogate Henry about the bank robbery, Nichols did testify that he engaged in conversation with his cellmate Henry. If, by association, by general conversation, or both, Henry developed sufficient confidence in Nichols that Henry bared his incriminating secrets to an undisclosed paid informer, we think that there was interrogation within the meaning of Brewer.
590 F.2d at 547.
The concurring opinion adds:
[T]he informant's conclusory statement that he did not question the defendant is not determinative. The critical issue is whether, after judicial proceedings had been initiated against the defendant, an informant acting as an agent of the government elicited information from him in the absence of defense counsel.
590 F.2d at 547.
On the basis of the record, we conclude (1) that defendant was indicted for first degree murder; (2) that he was given Miranda warnings; (3) that he employed counsel; (4) that the law enforcement officials knew he was represented by counsel; (5) that he was confined in the Greeneville City Jail; (6) that Agent Rhea of the Tennessee Bureau of Investigation, posing as a captured felon, was placed in jail with him; (7) that defendant, believing him to be a "tough character," and not having any idea or suspicion of his true identity, initiated a conversation with him; (8) that during the course of this conversation numerous incriminating statements were made; (9) that Rhea did not interrogate him in the conventional sense, but did engage in general conversation during the course of which he asked questions and received answers; and (10) that there was no waiver of his right to counsel.
In the light of the authorities discussed herein we conclude that there was a form of interrogation. All will agree that had the officer entered the cell, identified himself, and asked questions which produced incriminating information, such information would not have been admissible. The law will not permit law enforcement officials to do by ruse, trickery, deceit and deception that which it is not permitted to do openly and honestly. Nor will the law permit the State to dishonor its commitment and renege on its promise to defendant's counsel.
We, therefore, hold that the Trial Judge erred in failing to suppress the testimony of the Tennessee Bureau of Investigation agents relating to the jailhouse conversations and statements relating to this case, to include threats made against witnesses and plans for their extermination. In short, no parts of this interrogation may be presented to the jury on retrial.
We predicate this holding on the Sixth Amendment to the Constitution of the United States, made applicable to the states by the Fourteenth Amendment.
It should be noted that this holding is confined to the retrial of this defendant on this charge. We have no occasion to consider the question of admissibility of evidence at a trial based on any other charge.
III.
Discussion of Remaining Issues
Petitioner's assignment of error asserting that the evidence preponderates in favor of the defendant's innocence and against his guilt is overruled. The result of our holding today is to strike substantial portions of the evidence. Other parts are left intact. In view of the remand, we do not consider it necessary, appropriate, or proper for us to make extended comment on the evidence. Suffice it to say, we do not reverse for insufficiency and a retrial is not forbidden.
Petitioner charges the Court with error in receiving evidence concerning the *562 loss of money in Robin Shanks' account from the apparent misuse of a bank card. This testimony went to motive and was properly admitted.
Petitioner insists that the defendant in a capital case is entitled to notice of the aggravating circumstances the State will attempt to prove at the sentencing hearing.
Section 39-2404(i), T.C.A. (1979 Supp.), enumerates eleven circumstances to which the proof "shall be limited." All of these, except for (i)(2) relating to prior convictions, inhere in the record and are explicitly demonstrated by the proof required on the first hearing. The defendant is put on notice by the statute of the precise aggravating circumstances which will be used against him. Further notice need not be incorporated in the indictment nor otherwise given.
We find no controlling authority for the conclusion we reach. In Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), the Fifth Circuit declined to decide the precise issue of whether the indictment must allege aggravating circumstances, holding instead that failure to object at trial to the indictment constituted a waiver and operated to foreclose the issue.[1] However, an extension for a stay of execution was filed in the Supreme Court of the United States and the issue of notice incorporated in the indictment or "some sort of formal notice" was raised. In denying the stay, Justice Rehnquist, in his role as "surrogate for the entire Court," stated that he did "not believe that four Members of this Court would find that claim either factually or legally sufficient to persuade them to vote to grant certiorari... ." Spinkellink v. Wainwright, 442 U.S. 1301, 1306, 99 S. Ct. 2091, 2094, 60 L. Ed. 2d 649, 653-54 (1979).
We reject petitioner's argument and hold that a defendant in a capital case is not entitled to any form of notice as to the nature of the aggravating circumstances to be presented to the jury at the sentencing hearing.
Notwithstanding this holding, it is better practice for the State, well in advance of trial, to give formal notice of the aggravating circumstances upon which it intends to rely. Until this question is more fully developed in the courts, such notice is prudent.
Appellant insists that a search of his Nashville apartment was unlawful and void and the evidence procured thereby should have been excluded. This insistence has been discussed and debated in conference and has been considered fully by the Court. The majority is of the opinion that these assignments are without merit.[2]
Conclusion
We reverse the conviction and remand for a new trial.
BROCK, C.J., and FONES, COOPER and HARBISON, JJ., concur.
Separate Opinion on the Search Warrant Issue
HENRY, Justice.
I respectfully differ with my colleagues on the search warrant issue.
A. The Necessity for the Search
Agent Baird, as a part of his investigation, discovered that on February 9, 1978, the date of the murder in Greene County, gasoline was purchased at a Magnolia Avenue Exxon Service Station in Knoxville, through the use of a credit card, issued to and outstanding in the name of Raymond Kenneth Berry, defendant's father. Baird knew that Raymond Kenneth Berry died in 1976. He discovered through Exxon that the purchaser was driving an automobile bearing the license number of defendant's Mercury Monarch. Baird also discovered that this card continued to be active with purchases made on it from time to time, *563 with billings being mailed to defendant's address. He knew that the address on it coincided with the defendant's Wallace Avenue address in Nashville. He learned the account number from Exxon. The special agent from Exxon had given him a photostatic copy of the purchase slip or invoice. Additionally, he had subpoenaed the records of Exxon and the State was in a position to prove all the foregoing.
From this Knoxville purchase, Baird logically surmised that the defendant had been in the Knoxville area on the date of the murder.[1] This fact would demolish defendant's alibi featuring activities in Nashville during the entire day of the murder. Baird's suspicions were further fuelled by testimony that a clean, black Ford Granada, with a CB antenna on it, was seen on the road in the vicinity of the Shanks' residence on the day of the murder. The Shanks' residence is located on a dirt road; it was muddy and slushy during February and a "clean" car in the neighborhood was a strange car. Defendant's car was a black Mercury with a CB antenna. Proof in the record shows that there is little visual difference particularly from the sides between the Ford Granada and the Fordmade Mercury.
For reasons which do not appear in the record, and which do not occur to me, Baird concluded that the prosecution needed the credit card and the original copy of the charge slip. To accomplish this he appeared before a Nashville General Sessions Judge and procured a search warrant authorizing a search of defendant's residence and vehicle, for the Exxon credit card and the original charge receipt.
It is evident that these documents were not necessary to a prosecution of this action. All the facts specified above were susceptible of proof, specifically including the two documents listed in the search warrant, copies of which he already had in his possession.
The Fourth Amendment to the Constitution of the United States, made applicable to the states through the due process clause of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), provides:
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 person or things to be seized.
Article I, Section 7 of the Constitution of Tennessee provides:
That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named, whose offenses are not particularly described and supported by evidence, are dangerous to liberty and ought not to be granted.
While this Court has held that our state constitutional provision "is identical in intent and purpose with the Fourth Amendment" and that "we should not limit it more stringently than federal cases limit the Fourth Amendment," Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857, 860 (1978), the fact remains that there are pronounced linguistic differences in the two provisions.
Our provision specifically denounces "general warrants" permitting searches "without evidence of the fact committed" and personal seizures where "offences are not particularly described and supported by evidence." Our Constitution obviously contemplates evidentiary support for the issuance of search warrants. This, however, does not invalidate the assertion of Sneed, because federal decisions uniformly require a clear showing of probable cause. It does mean, that from the beginning of our statehood *564 our basic charter[2] has denounced general warrants and required evidentiary support for their issuance.
The significance of this lies in the fact that where a search warrant authorizes a quest for unneeded and unnecessary documents, not per se criminal, and during its execution other objects, in plain view, are seized with or without any nexus the result is a search pursuant to a general warrant.
These objectives of the search warrant requirement and the constitutional protection it serves are made clear in Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971):
First, the magistrate's scrutiny is intended to eliminate altogether searches not made on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity. (citations omitted) The second, distinct objective is that those searches deemed necessary should be as limited as possible. Here, the specific evil is the "general warrant" abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings. (All except first emphasis supplied).
403 U.S. at 467, 91 S.Ct. at 2038, 29 L.Ed.2d at 583.
This is precisely what occurred in this case. A search warrant was issued for two wholly unnecessary items, and was executed by a wholesale search of defendant's home and auto, resulting in the confiscation of numerous items not named in the warrant, including a ball-peen hammer identified positively as the murder weapon.
While the "mere evidence" rule no longer has any vitality and there is no distinction between the seizure of items of evidentiary value only and seizures of instrumentalities, fruits, or contraband, Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967), conditions precedent to the issuance of a valid search warrant must exist. Chief among these conditions is probable cause, which is deeply rooted in necessity. If the law were otherwise, law enforcement officers, through the simple expedient of listing any insignificant object, could legitimate an indiscriminate search of the "castle" of a citizen. Overly zealous officers could and many would utterly nullify the historic constitutional requirement of probable cause. This view, of course, does not trench upon the "plain view" doctrine of Coolidge v. New Hampshire, supra.
B. The Sufficiency of the Warrant
The Fourth Amendment requires that search warrants issue only "upon probable cause, supported by Oath or affirmation." Article I, Section 7 of Tennessee's Constitution speaks in terms of "evidence of the fact committed." Section 40-504, T.C.A., requires that search warrants be supported by affidavit. Rule 41(c), Tenn.R.Crim.P., requires a sworn affidavit or affidavits to establish probable cause. Central to all these requirements is the notion that probable cause must be supported by evidence submitted to the issuing magistrate and that evidence must be sufficient to support an independent and neutral judgment that probable cause exists.
In Lea v. State, 181 Tenn. 378, 181 S.W.2d 351 (1944), Mr. Justice Chambliss, writing for the Court, adopted Bouvier's definition of probable cause:
[a] reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that a person accused is guilty of the offense with which he is charged.
181 Tenn. at 381, 181 S.W.2d at 352.
In the issuance of a search warrant the magistrate must be informed of the underlying circumstances, Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); State v. Little, 560 S.W.2d 403 (Tenn. 1978); *565 the warrant may not be issued on the basis of mere conclusions of the affiant, Aguilar, supra, Owens v. State, 217 Tenn. 544, 399 S.W.2d 507 (1966); nor may it be supported by mere suspicion, Spinelli, supra.
The record in this case does not reveal, nor is it contended, that any other evidence except the affidavit was brought to the attention of the magistrate. The reviewing court may consider only the information presented to the magistrate, Aguilar, supra, Spinelli, supra. The magistrate's determination will be sustained if it rests on any substantial basis and substantial deference will be paid to the magistrate; however, the Court will not "rubber stamp" his action. Aguilar, supra, Spinelli, supra.
Thus we test the validity of this warrant by the affidavit pursuant to which it was issued. The full affidavit appears as an appendix to this opinion. In summary, it contains these representations:
1. That the TBI agent received information from a special agent of Exxon Corporation that a credit card, issued to Raymond Kenneth Berry, deceased father of the defendant, was used to purchase gasoline on February 9, 1978, by an individual operating a vehicle titled in defendant's name.
2. That the original charge receipts were mailed on March 15, 1978, to the defendant's father at defendant's address.
3. This credit card and the original charge receipt "are material evidence in investigations of murder, robbery and felonious assault ... on the 9th day of February 1978 in Greene County, Tennessee as suspect Russell Keith Berry has given alibi defense to affiant that he did not leave the Nashville, Tennessee area on date of said offense."
The affidavit does not set forth the fact that the gasoline purchase was made in Knoxville, Tennessee, on the date of the murder. The magistrate was not given this critical underlying fact. As a maximum, the affidavit suggests the fraudulent use of a gasoline credit card and contains a bald assertion that the named items are material. Beyond the fraudulent use of the credit card, the activities are innocuous, innocent and probative of nothing. The allegation of materiality is, of course, a mere conclusion.
In Aguilar v. Texas, supra, the Court said:
Although the reviewing court will pay substantial deference to judicial determinations of probable cause, the Court must still insist that the magistrate perform his "neutral and detached" function and not serve merely as a rubber stamp for the police.
378 U.S. at 111, 84 S.Ct. at 1512, 12 L. Ed. 2d 727.
Further:
The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion * * *. (Emphasis supplied).
378 U.S. at 112, 84 S.Ct. at 1513, 12 L. Ed. 2d 727.
The Supreme Court of the United States took Spinelli v. United States, supra, "[b]elieving it desirable that the principles of Aguilar should be further explicated." 393 U.S. at 412, 89 S.Ct. at 587, 21 L.Ed.2d at 641. Spinelli was convicted of traveling in interstate commerce with the intention of conducting illegal gambling activities. The convicting evidence was obtained by means of a search warrant supported by an affidavit which alleged in substance:
1. On various days Spinelli had been seen crossing the bridge leading from Illinois into St. Louis, Missouri and had been seen parking his car at a St. Louis Apartment house. On one occasion he had been followed to a particular apartment.
2. The records of the Telephone Company revealed that the apartment contained two telephones with different numbers and listed in the name of a person other than the defendant.
3. Spinelli was known to affiant and law enforcement officials as a bookmaker and gambler.
4. A reliable person had informed that Spinelli was conducting a gambling operation by means of these two phones.
*566 The Court summarily disposed of the first two items, stating that they "reflect only innocent seeming activity and data." 393 U.S. at 414, 89 S.Ct. at 588, 21 L.Ed.2d at 642. With respect to the third item, that Spinelli was known as a gambler and associate of gamblers, the Court bluntly characterized this as being "but a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrate's decision." 393 U.S. at 414, 89 S.Ct. at 588, 21 L.Ed.2d at 643. The Court discredited the fourth item for want of proof of reliability and lack of a sufficient statement of the underlying circumstances.
The informant in the case at bar was named but the information he supplied, as set fourth in the warrant, was indicative of "innocent seeming activity and data." Agent Baird conceded at the suppression hearing that the mere fact of the use of the credit card does not operate to refute defendant's alibi. Yet he says that this use and the fact the credit card was "fraudulently obtained and invalid" was all he relied upon to support his "material evidence" charge. The statement that the credit card and charge slip are "material evidence" is but "a bald and unilluminating assertion of suspicion that is entitled to no weight." Clearly, the affidavit in the instant case is not as strong as the judicially condemned affidavit in Spinelli, which the Court could not sustain "without diluting important safeguards that assure that the judgment of a disinterested judicial official will interpose itself between the police and the citizenry." 393 U.S. at 419, 89 S.Ct. at 591, 21 L.Ed.2d at 645-46.
Our own case of Earls v. State, 496 S.W.2d 464, 465 (Tenn. 1973), reminds us that in analyzing the validity of a search warrant, "[m]ere affirmance of belief of suspicion is not enough."
"The security of one's privacy against arbitrary intrusion by the police which is at the core of the Fourth Amendment is basic to a free society. It is therefore implicit in `the concept of ordered liberty' and as such enforceable against the states through the Due Process Clause." Coolidge v. New Hampshire, supra. The demands of due process take on a broadened significance in death penalty cases, for death "is a different kind of punishment from any other which may be imposed in this country." Gardner v. Florida, 430 U.S. 349, 357, 97 S. Ct. 1197, 1204, 51 L. Ed. 393, 401 (1977).
Looking at this record in a light most favorable to the prosecution, there was no need for the documents listed in the warrant; viewed from the other end of the spectrum the warrant was a ploy, a subterfuge and a pretext to intrude into the privacy of defendant's home. It is unnecessary to decide which and such a decision is of no consequence because the end result is the same. In either event the search warrant was defective. It was further defective because the affidavit did not give sufficient underlying information, with the result that it basically details innocent seeming activity, with its guilty cast resting upon unsupported conclusions and suspicion.
For these reasons I would hold that this search warrant was invalid under the Fourth Amendment to the Constitution of the United States and under Article I, Section 7 of the Constitution of Tennessee. In my opinion all fruits of the search were inadmissible and the Trial Judge erred in failing to sustain the motion to suppress.
APPENDIX
STATE OF TENNESSEE, DAVIDSON COUNTY SEARCH WARRANT
I, Bob Baird, make oath that I am an Agent of the Tennessee Bureau of Criminal Identification assigned to the Twentieth Judicial Circuit and that on the 30th day of March, 1978 I received information from Special Agent Bob Quinn, Exxon Company, P.O. Box 367, Memphis, Tennessee, that he personally reviewed the Exxon credit records and determined that on February 9, 1978 Exxon credit card XXX-XXX-XXXX was used to purchase gasoline and oil in the amount of $6.27 by individual operating vehicle bearing Tennessee registration 6A3458. Special Agent Bob Quinn further advised that Exxon credit card # XXX-XXX-XXXX *567 is assigned to Raymond Kenneth Berry, 180 Wallace Road, Apartment V-24, Nashville, Tennessee, and that above credit card was used in purchase of gasoline on February 11, 1978 by individual operating vehicle bearing Tennessee registration 6B4673. Special Agent Bob Quinn advised that original charge receipts were mailed on March 15, 1978 from Exxon Company to Raymond Kenneth Berry, 180 Wallace Road, Apartment V-24, Nashville, Tennessee. Affiant states that Russell Keith Berry is the son of Raymond Kenneth Berry and currently resides at 180 Wallace Road, Apartment V-24, Nashville, Tennessee and that account holder Raymond Kenneth Berry died on the 12th day of June 1976 at his home in Carter County, Tennessee as a result of gunshot wounds. Affiant further states that Tennessee vehicle registration 6A3458 is currently assigned to Russell Keith Berry, P.O. Box 1094, Johnson City, Tennessee and displayed on a 1976 Mercury Monarch VIN # 6W38F520120. That Tennessee vehicle registration 6B4673 is currently assigned to Sherry R. Shanks, 180 Wallace Road, Apartment V-24, Nashville, Tennessee and displayed on a 1974 Plymouth Duster VIN # VL29C4G276108. That Sherry R. Shanks is presently Sherry R. Berry due to marriage to Russell Kenneth Berry on the 17th day of December 1977. Affiant states that Exxon credit card # XXX-XXX-XXXX and original charge receipts are material evidence in investigation of murder, robbery and felonious assault of John and Zelma Shanks on the 9th day of February 1978 in Greene County, Tennessee as suspect Russell Keith Berry has given alibi to affiant that he did not leave Nashville, Tennessee area on date of said offense.
Affiant further states that Special Agent Bob Quinn, Exxon Company, advised him that original charge receipts for Exxon account # XXX-XXX-XXXX were mailed within the last 15 days to 180 Wallace Road, Apartment V-24, Nashville, Tennessee. The premises, person, and vehicles are described as follows, to wit: The person of suspect Russell Keith Berry, Apartment V-24, Nob Hill Villa, 180 Wallace Road, Nashville, Tennessee and said vehicles being a brown 1974 Plymouth Duster bearing Tennessee registration 6B4673 and a 1976 Mercury Monarch, black in color bearing Tennessee registration 6A3458.
Sworn to and subscribed before me this the 31 day of March, 1978.
s/ Bobby D. Baird
Bobby D. Baird, T.B.I.
s/ A.A. Birch, Jr.
A. A. BIRCH, JR.,
Judge.
NOTES
[1] Under Tennessee law defects in indictments are waived if not raised prior to a plea on the merits. Wade v. State, 529 S.W.2d 739 (Tenn. Cr.App. 1975).
[2] See the separate opinion of Judge Henry, infra.
[1] This Court judicially knows that Knoxville is about 180 miles east of Nashville and is on the most direct route from Nashville to Greene County.
[2] See Article XI, Section 7, Constitution of 1796. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561369/ | 18 So. 3d 193 (2009)
Gregory M. TAYLOR, Plaintiff-Appellant
v.
Del JOHNSON, Gary Loftin, Ernie Roberson and Jay Dardenne, Louisiana Secretary of State, Defendants-Appellees.
No. 45,000-CA.
Court of Appeal of Louisiana, Second Circuit.
August 28, 2009.
*194 Joey W. Hendrix, Shreveport, Counsel for Plaintiff-Appellant.
Del Johnson, In Proper Person Defendant-Appellee.
Elizabeth Gibson, Counsel for Defendant Assistant Attorney General Appellee Jay Dardenne, Secretary of State.
Bennett L. Politz, Shreveport, Counsel for Defendant-Appellee Gary Loftin, Clerk of Court.
Ernest R. Roberson, In Proper Person, Registrar of Voters, for Caddo Parish Defendant-Appellee.
Before BROWN, WILLIAMS, STEWART, PEATROSS, and LOLLEY, JJ.
PEATROSS, J.
This appeal is from a judgment of involuntary dismissal based on the failure of the plaintiff to appear for trial on the plaintiffs petition to disqualify a candidate for elective office. For the following reasons, we reverse the trial court's decision and remand for further proceedings.
FACTS
On August 20, 2009, plaintiff, Gregory Taylor filed a petition seeking to disqualify defendant, Del Johnson, as a candidate for Justice of the Peace in Ward Eight of Caddo Parish. Taylor asserted that Johnson had attained the age of 70 at the time of qualification in violation of La. R.S. 13:2582(A)(2)(a). In response to Taylor's petition, the trial court issued an order requiring Johnson to be cited to appear and to show cause why he should not be declared ineligible as a candidate. The order, signed by the Honorable Roy Brun on August 21, 2009, set the hearing for 9:00 a.m. on August 24, 2009.
The transcript of the hearing shows that when the case was called, Johnson was present in proper person, along with the attorney representing the Caddo Parish *195 Clerk of Court, Gary Loftin; neither Taylor, nor Taylor's attorney was present. Johnson moved to have the matter dismissed, and the trial again called for Taylor or anyone on his behalf. When there was no response, the court instructed the bailiff to "sound the hall," and the bailiff subsequently indicated that there was no response in the hall. At that point, the trial court dismissed the case. At 4:00 p.m. that afternoon, the trial court signed a judgment involuntarily dismissing the suit for failure of the plaintiff to appear. The judgment indicated that the dismissal in court had occurred at 9:20 a.m.
Later that day, Taylor's counsel filed a pleading entitled, "Motion to Correct Manifest Error." The motion acknowledged that the hearing had been set for 9:00 that morning, and asserted that the matter was assigned to Division B for trial. Counsel asserted that he arrived at the Caddo Parish Courthouse and stood in line to enter through security; however, counsel did not assert what time he arrived at the courthouse. Counsel further asserted that after clearing security, he went to Courtroom B where he discovered the matter was to be heard by the Honorable Roy Brun, and that counsel then waited approximately 15 minutes for the elevator to the fourth floor where Judge Brun was located. Counsel additionally asserted that he did not know why the elevators were so slow, that the fourth floor could not be reached by stairs, and that he arrived on the fourth floor at approximately 9:30 where he learned the petition had been dismissed. Counsel asserted he was fully prepared to demonstrate that Johnson was not qualified for office and that it was a manifest abuse of discretion to not allow Taylor the opportunity to show that Johnson was not qualified.
Later that afternoon, Judge Brun denied the motion without a hearing. Taylor timely appealed.
TAYLOR'S ARGUMENTS ON APPEAL
Taylor asserts on appeal that the trial court erred in involuntarily dismissing the case under the circumstances. Taylor argues that under the provisions of La. R.S. 18:1409, the trial had to begin no later than 10:00 a.m. on the fourth day after the petition was filed, and that, accordingly, the trial court in this case could have waited until 10:00 a.m. to dismiss the suit. He asserts that if the trial court had waited until 9:31 a.m., his counsel would have been present. Furthermore, he asserts that counsel was attempting to appear, but could not reach the fourth floor until 9:30 a.m. because of elevator problems, and that if counsel had known ahead of time that Judge Brun was hearing the matter, "more likely than not, [counsel] would have been present for the hearing on the rule timely."
Taylor cites Washington v. First Choice Trucking, 06-1479 (La.App. 3d Cir.3/7/07), 953 So. 2d 107, in which the appellate court reversed a decision dismissing a worker's compensation claimant's case when he was approximately 30-40 minutes late for trial. In that case the appellate court noted that the claimant explained his lateness by stating he was lost, that no evidence was presented to show the excuse was fabricated, and that the claimant at all times had diligently pursued his claim.
Taylor also argues that La. C.C.P. art. 1672(A) provides "that the matter may be dismissed when any party makes a motion to dismiss on the day the matter is set for trial. Counsel for the plaintiff appeared on the day the matter was set for trial." Taylor then argues that the definition of "day" is not found in the statutory law, that the word should be construed with common meaning, and that plaintiffs counsel *196 did appear on the day of trial, prior to 10:00 a.m., ready to prosecute the action.
DISCUSSION
Contrary to Taylor's argument, Article 1672(A) does not say that when any party makes a motion to dismiss, the matter may be dismissed; Article 1672(A) states that a judgment dismissing an action shall be rendered upon application of any party when the plaintiff fails to appear on the day set for trial. Furthermore, the article does not mean that a trial court must wait until the end of the day before dismissing the action. Judge Brun, pursuant to the prayer of Taylor's petition, set this matter for 9:00 a.m. on August 24, 2009. When neither Taylor nor his counsel appeared at that time, or after the court waited an additional 20 minutes, the court dismissed the action.
It is well settled in the jurisprudence that the trial court's dismissal of a cause of action based upon plaintiffs failure to appear for trial will not be reversed on appeal absent a showing that the trial court abused its discretion. Keyes v. Johnson, 542 So. 2d 209 (La.App. 3d Cir.1989), writ denied, 546 So. 2d 1215 (La.1989). Furthermore, under La. R.S. 18:1409(1), no application for a new trial or for a rehearing shall be entertained by any court in an action objecting to candidacy, but a court, upon its own motion, may correct manifest error to which its attention is called. Thus, the essential question in this case is whether the trial court abused its discretion, under the facts presented, in dismissing the action and denying any relief, via correction of manifest error, after reviewing counsel's explanation for his tardy appearance.
Initially, we note that each case of involuntary dismissal must turn on its own facts. We further note that Article 1672(A) mandates that the judgment of dismissal be with or without prejudice. In this case, the judgment did not specify whether it was with or without prejudice, but we conclude that because of the time delays imposed by law, as a practical matter this dismissal was with prejudice.
Next we note that this case is not one simply between two litigants over matters of importance only to them; this is a case impressed with the public interest because it involves candidacy for public office. Thus, with the very strict, short time delays already applicable to the litigants, and the public's stake in seeing that justice is done, a trial court should not exercise its discretion too narrowly so as to prevent an election case from being heard on its merits. Nor is this a longstanding case in which plaintiff or plaintiffs counsel had been dilatory in the past.
The trial court here did not give any reasons for or conduct a hearing before denying plaintiffs request to "correct manifest error." As a result, there is nothing to indicate that the court questioned the veracity of plaintiffs counsel's explanation; the court may simply have found the explanation not to change the court's mind on the dismissal. Furthermore, in light of the law's statement that no application for a new trial or for a rehearing shall be entertained, the trial court might have concluded that its power to correct manifest error was limited to the state of the case at the time the order of dismissal was rendered. However, we conclude that the prohibition against new trial motions and motions to reconsider is aimed at expediting and not delaying the course of justice in an election case. The prohibition is not designed to keep a trial court from correcting an injustice when the facts and circumstances indicate that an injustice otherwise would occur.
In light of the foregoing discussion, we conclude that the trial court abused its *197 discretion in this case in entering what amounted to a dismissal with prejudice in this election case. Plaintiffs counsel undoubtedly should have gotten an earlier start for the courthouse, but apparently arrived at or very close to the time set for the hearing. Counsel then apparently went to the wrong courtroom, allegedly because the case was set there, only to learn that the case was in another courtroom that only could be accessed by elevators that were having problems such that counsel could not get to the correct courtroom for another fifteen minutes. Under the circumstances, we have no reason to doubt counsel's veracity in the trial court or before this Court. Accordingly, while the situation presented below does appear to be due in part to poor decisions by plaintiffs counsel, it also seems to be the result of circumstances that aggravated what otherwise should have been a much shorter period of tardiness. Dismissal with prejudice, especially in a case impressed with the public interest, is a harsh remedy, and one that we conclude was too harsh under the circumstances reviewed above. In so concluding, we in no way sanction counsel's dilatory and unprofessional behavior in preparing to represent his client in court in this matter.
CONCLUSION
For the reasons set forth above, the trial court's dismissal is hereby reversed and the matter remanded to the trial court for the holding of a hearing on the plaintiffs candidacy challenge no later than 2:00 p.m., Monday, August 31, 2009.
REVERSED AND REMANDED.
BROWN, C.J., dissents for reasons assigned by STEWART, J.
STEWART, J., dissents with written reasons.
STEWART, J., dissenting.
Election cases are highly expedited matters in which strict time delays apply. The public interest is served when our judicial system is able to quickly and efficiently resolve disputed elections. Counsel for the plaintiff did not appear in court at the appointed time and does not assert that he did not know that the matter was set for a hearing at 9:00 a.m. on August 24, 2009. La. C.C.P. art. 1672(A)(1) provides that a judgment of dismissal shall be rendered upon application of any party when the plaintiff fails to appear on the day set for trial. This article does not mean that the trial court must wait until the end of the day for the plaintiff to appear. Matters are not set for trial by day only; they are set for a particular day and time. The trial court did not abuse his discretion or act in manifest error by dismissing plaintiffs suit when he failed to appear at 9:00 a.m., or for an additional 20 minutes after the time set for the hearing.
We observe that no one else appeared to have a problem arriving at the courtroom on time. While counsel for plaintiff appears to have asserted below and to now assert here that the matter was to be heard in one section of the court, but was changed to another section, counsel offered no explanation or support for this assertion. We note that the order setting the hearing was signed by Judge Brun, the same judge before whom the hearing was set. Notably, the defendant's response explains that he verified the location of the courtroom where the hearing was to be held at an information desk after clearing security.
In any event, while plaintiffs counsel does not state when he arrived at the courthouse or how long it took him to clear security, he does indicate that it took him 15 minutes to get from Courtroom B to Judge Brun's court. However, he does not *198 indicate that he even arrived timely at Courtroom B where he apparently believed the hearing was to occur. There is no excuse, other than not starting to the courthouse on time, for his tardy arrival. Though counsel notes that he was present in the correct courtroom at 9:30, which he says is the time Court normally begins, he admits and the order shows that the matter was set for 9:00 a.m. Most likely, an earlier setting was made so as to expedite this matter before beginning the day's regular docket. Even though he was clearly aware of the earlier setting, counsel took no steps to call the courtroom or ask a bailiff to notify the court that he was in the building and making his way to the court-room. Finally, we note that this is not a case like Washington v. First Choice Trucking, 06-1479 (La.App. 3d Cir.3/7/07), 953 So. 2d 107, where the plaintiff was lost and could not find the court. Even though the remedy may be harsh, there is no showing of an abuse of discretion or manifest error by the trial court.
For these reasons, I respectfully dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561507/ | 18 So. 3d 113 (2009)
Rhonda SERIGNET c/w Demetreus Bailey
v.
DEPARTMENT OP HEALTH.
No. 2009-C-1371.
Supreme Court of Louisiana.
October 2, 2009.
*114 Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561578/ | 66 S.W.3d 741 (2002)
STATE ex rel. Traci STUBBLEFIELD, Relator,
v.
The Honorable Carol Kennedy BADER, Juvenile Judge, Twenty-Third Judicial Circuit of Missouri, Respondent.
No. SC 83858.
Supreme Court of Missouri, En Banc.
February 13, 2002.
Nicholas G. Gasaway, Bianca L. Eden, Hillsboro, for relator.
Theodore R. Allen, Jr., Susan K. Nuckols, Hillsboro, for respondent.
PER CURIAM.
Traci Stubblefield filed an application for change of judge to conduct the trial of *742 a petition to determine custody of her children. The application was filed on the same day as an order was entered setting the case for trial. However, previous hearings involving the children had been held. The judge denied the application. Stubblefield filed a petition in this Court seeking to require a change of judge. Because the application for change of judge was timely filed, the preliminary writ of prohibition is made absolute.
The division of family services sought custody of Stubblefield's children. A temporary custody order was entered on February 15, 2001. Stubblefield received a summons that a "protective custody hearing" would be held on February 22. With the summons, she received a notice indicating that the "hearing" "may set over to a later time at your request" if there was a good reason for the request. The notice also specified that if, at the "first hearing" the allegations in the petition were denied, the court "may set this case for trial at a later date."
After the February 22 protective custody hearing, an order issued setting the "first hearing" on the petition for April 30. At the April 30 hearing, Stubblefield denied the allegations of the petition and filed a written request for "trial setting." On the written request, the judge wrote that the cause was "set for trial" on August 20. Also on April 30, Stubblefield filed her application for change of judge, which was denied.
The right of a party to disqualify the judge is one of the keystones of our legal administrative edifice, and our courts, therefore, adhere to a rule of liberal construction in favor of the right to disqualify. State ex rel. Horton v. House, 646 S.W.2d 91, 93 (Mo. banc 1983). A trial judge lacks jurisdiction and prohibition lies if the judge fails to disqualify upon proper application for disqualification. State ex rel. Raack v. Kohn, 720 S.W.2d 941, 943 (Mo. banc 1986).
For purposes of this case, Rule 126.01b requires an application for change of judge to be filed "within five days after a trial date has been set." In civil cases, a change of judge is governed by Rule 51.05. In State ex rel. Cohen v. Riley, 994 S.W.2d 546, 548 (Mo. banc 1999), the Court was required to determine what the term "trial" meant. Cohen involved a proceeding for injunction. At the hearing for a preliminary injunction, evidence was offered. After the hearing, an application for change of judge was filed. The application was timely if filed "prior to any appearance before the trial judge." This Court held that "trial" meant trial on the merits. Id. at 548. The presentation of evidence did not convert the hearing into a trial.
Similarly, Rule 32.07(b) (1990) required an application for change of judge in a misdemeanor case to be filed not later than "ten days before the date set for trial." In State v. Stovall, 784 S.W.2d 852 (Mo.App.1990), the trial was scheduled for January 26, 1989. On that date, the defendant attempted to plead guilty. The judge refused the plea and rescheduled the trial for February 16. Stovall filed an application on the same day. The application was denied. The court concluded that the application was timely because it was filed not later than ten days before the date set for trial on the merits. Id. at 853.
In this case, until Stubblefield's request for trial setting was ruled on April 30, the trial on the merits was not set. On that date, the request for trial setting was ruled, and the judge specifically set the trial for August 20. An application for change of judge filed on the same day the case is set for trial on the merits is timely.
Respondent's reliance on In the Interest of M.S.M., 666 S.W.2d 800 (Mo.App.1984), *743 is misplaced. The opinion does note that the time for filing the application for change of judge in that case began with the issuance of the summons. Id. at 804. However, the summons contained the date of the trial, which was held on the date contained in the summons. Properly understood, the case simply indicates that the trial date was set in the summons.
To the extent In Interest of A. H., 963 S.W.2d 374, 382-83 (Mo.App.1998), holds that a rescheduling of the trial date does not affect the time within which an application for change of judge must be filed, it is overruled.
The preliminary writ is made absolute.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561571/ | 66 S.W.3d 545 (2002)
John HATTON, Nelton Brooks, Mary J. Brooks, Bennie Ann Henry, Fort Bend Heritage Society A Texas Corporation, Easter Spates Holmes, William Louis Carlton Holmes III, Phylis Spates Gales and Victor Gales, Appellants,
v.
Daniel D. GRIGAR, Appellee.
No. 14-00-00895-CV.
Court of Appeals of Texas, Houston (14th Dist.).
January 17, 2002.
*548 John B. Harle, Bellville, for appellants.
Don T. Schwartz, Rosenberg, for appellees.
Panel consists of Chief Justice BRISTER and Justices FOWLER and SEYMORE.
OPINION
WANDA McKEE FOWLER, Justice.
This is an appeal of the trial court's judgment declaring the existence of a public road and an easement by necessity, prescription and implication in favor of appellee Daniel D. Grigar. Appellants contend that the evidence is legally and factually insufficient to support the trial court's findings that (1) a public road exists over the appellees' land, (2) a prescriptive easement exists over appellees' land in favor of Grigar, and (3) an easement by implication and necessity exists over appellees' land in favor of Grigar. Appellants also challenge the trial court's award of attorney's fees to Grigar. Appellee asserts a cross-issue in further support of the judgment. For the reasons stated below, we affirm.
PROCEDURAL HISTORY
The road at issue is a gravel road that runs from State Highway 36 toward the Brazos River in Fort Bend County. The road is perpendicular to Highway 36, which runs east and west. The road ends before reaching the Brazos river to the north. Appellant John Hatton's property lies just north of Highway 36 and west of the road. Grigar's property lies just north of Hatton's. The properties of the other appellants are located on the east side of the road.
In 1997, after a dispute with Hatton over the use of the road, Grigar sought a declaratory judgment that the road was a public easement of ingress and egress, and asserted that an easement existed by implication, estoppel and prescription. Following a bench trial, the trial court entered a judgment in favor of Grigar that (1) a public road exists and that it contains 0.899 acres (as described in an attached survey); (2) the Grigar land is land-locked; (3) an easement by necessity, prescription, and implication exists in favor of Grigar; and (4) Grigar is entitled to recover, jointly and severally from the defendants, attorney's fees of $8,500 for the services rendered through trial, costs of $3,500, and $4,000 in the event of an unsuccessful appeal to the court of appeals.[1] Findings of fact and conclusions of law were not requested. This appeal followed.
FACTS
At trial, the court heard from numerous witnesses, including Daniel Grigar, members of Grigar's family, defendants Hatton and Nelton Brooks, other individuals who owned or had owned property in the area, and two land surveyors. The first witness called by Grigar was Charles Kalkomey, a local land surveyor and licensed professional *549 engineer. He prepared two alternative surveys of the road for the court's consideration. One spanned from fence line to fence line on either side of the road (0.899 acres), and the other spanned from the boundaries of the Hatton and Grigar properties on the west across to the east side of the road (.0.729 acres). Kalkomey testified that all of the defendants' properties abut the road. He also testified that several deeds he had reviewed identified the road.[2] A 1959 deed that partitioned a tract of land (known as the Ross tract) into several adjoining properties identified a passageway for access to the properties from Highway 36 that connected to a road on an attached sketch, and Kalkomey opined that the sketch portrayed the road at issue.[3] He also opined that the deeds he reviewed reflected an intent to provide an access road to the properties from Highway 36. Kalkomey testified that, despite researching the origin of the road, he was unable to find any official designation or dedication of any kind of roadway in the deed records other than the references to the existing road or easement.
Kalkomey also opined that, based on a 1971 survey prepared by his father, the road at that time was a public road that was surfaced and accessible. However, he did not actually see the road himself until he performed a survey in the area in 1983, and he did not know who maintained it. He confirmed that when he saw the road, it was fenced on either side, although some fencing was missing at the northern end. He also testified that at one time, the Grigar and Hatton properties were one parcel, but were separated into tracts as early as 1898. The 1898 conveyance did not include an easement, nor did the subsequent conveyances to Hatton in 1973 and 1974.
Glenn Grigar, a cousin of appellee, testified that he was familiar with the road because in the 1950's 60's he and his father used the road to deliver groceries from his father's store in Wallis, Texas to customers in the area. He also traveled on the road to place landfill in a large gully located on what is now appellee's property. He testified that the road had the reputation of being a public road, and that it was never closed off or barricaded. He further testified that the character of the road had remained the same to the present, and that he has never been denied access to the road. Finally, he testified that the road was the only access road from appellee's property to Highway 36.
Appellee next called Franklin Schodek, a land surveyor who testified that he had prepared surveys in the area in the past. Schodek agreed that the passageway depicted in the Ross deed was a road, but he did not know if it was public or private. He stated that in his opinion, a public road *550 was one maintained by the county, and he had no evidence that the road at issue was maintained by the county.
Grigar's next witness was Jewerl Ross. Ross had previously lived on the property he sold to Grigar. Ross, who was born in 1911, testified that he was familiar with the road because he had lived in various places in the area for 20 years. When he was a young boy, the road was open to the Brazos river. Families who lived north of the river would cross the river in a boat or, if the river was very low, on horseback or in a wagon and use the road. He testified that children who lived north of the river would cross the river and travel down the road to go to a school that was located across Highway 36. Ross also traveled the road to go to the school. He also testified that the road was never closed. His testimony reflected that the people who had property there used the road, and that the road had the reputation of being a public road to the farmers that owned property on each side of the road. On cross-examination, Ross admitted that his recollection was from 68 years ago. He also had no knowledge of the county maintaining the road during that time.
The court then heard the testimony of appellee, Daniel Grigar. He testified that he was familiar with the road because he grew up in the area. He recalled that, when he was a boy in the 1950's, he used the road to get to the river to go fishing. After he got his driver's license in 1961, he drove down the road to take a friend of his mother to her home. In 1972, his father, Albert, purchased property in the area for farming, and appellee would travel the road to get to the farm. He explained that at one time, there was another access road that went through an adjoining property Albert leased, and that they moved their farming equipment on that road because it was safer than taking the farming equipment on the highway. Once the adjoining property was sold, however, the road at issue became their only access to Highway 36. Grigar testified that he had never had to ask permission to use the road, and had never been denied access to it for twenty-plus years. When asked whether he thought the road was a public road, he stated that "[a]s far as I know, anybody that wanted to travel that road traveled that road."
Grigar testified that he purchased his property from Jewerl Ross in 1995, and acquired his parent's interest in their property in 1996. After he acquired Ross's property, he had a conversation with Hatton in which Hatton told him not to use the road. On cross-examination, Grigar admitted that he had never personally maintained the road. Further, while he had seen people travel the road to go fishing, he could not say that he observed it on many occasions. He testified that when he purchased his property, Ross told him there was a right of way to the property, and Grigar took his word for it. He did not engage a title company or get title insurance on the property.
The next witness, George Cooper, was a resident of Wallis, Texas, who knew the Grigars because he had hauled dirt from their property for several years in either the late 1970's or early 1980's, and had graduated with the Grigar's son, Carl. Cooper testified that he thought the road was for public use then, and he had the same opinion of the road now. He stated that he had never had to get permission to use the road, knew of no one who did, and was never stopped on the road. He never saw the county or city maintaining the road, but thought that the people who lived in the area had gotten someone to work on it. Cooper further testified that he had seen other cars on the road, but did not notice who was in them and did not *551 know why they might be traveling on the road.
Josefine Grigar, appellee's mother, testified that she and her husband purchased property in the area from Ross in 1972, and used it for planting hay, corn, and soybeans. They used both the road at issue and the other access road through the property they leased for the farming equipment. They continued to use the property for several years. After her husband passed away in 1983, she continued to farm it with the help of her son. She testified that she had seen other people traveling on the road, both strangers and people she knew. She stated that some of them went to pick dewberries or grapes, or went to the river to fish.
Carl Grigar, appellee's brother, testified that he never had to get permission to use the road, and knew of no one who did. He stated that the road was fenced on either side, although some of the fence was down. He also testified that he had seen tractors, trucks, and all kinds of vehicles use the road, and that people in former years sometimes dumped trash on his parent's property because there was a gully there. He testified that he got a call from Hatton in 1996, in which Hatton told him not to use the road. He also testified that Hatton made accusations and threats during the call, but Grigar did not call the police about them. He admitted that the Grigars had never paid anyone to maintain the road, but stated that they maintained it by "shredding" the road, meaning cutting the grass on either side. He admitted they did not bring in gravel or fix any potholes.
Grigar's attorney then testified to his attorney's fees, and then rested his case subject to his examination of Hatton. At that time, both parties asked for directed verdicts, which the trial court denied.
The defense then presented Charles Spates, the older brother of appellees Phylis Spates Gales and Easter Spates Holmes. Spates testified that his family once owned property across from the Hatton property that was used for farming. This property was now owned by appellee, Fort Bend Heritage Society. Spates testified that his father used to have cars parked on the property from which he sold parts. His father at one time enlarged the road so that trucks could more easily turn around on it, and later the road was jointly maintained with the Hattons. Further, the county never maintained the road. Spates also testified that the road was never a public road, and that everyone in the community would ask his father's permission to use the road.
Nelton Brooks, one of the appellants, testified that he acquired his property in 1987-88. Prior to that, his parents had lived on the property, and he visited them periodically. He did not live on the property, but would travel to it on weekends. He further testified that the road was never a public road, and he never gave anyone permission to use the road. He also stated that the county never maintained the road. The next witness, Earl Henry, testified that he had lived in the Wallis area his entire life, and that his children, defendants Deidre Ann Henry, Donald Earl Henry, and Bennie Ann Henry, had gotten their properties from him. Like Brooks, he testified that the road at issue had never been a public road. He also confirmed that the Hattons, not the county, maintained the road.
Appellant John Hatton was the next witness. He testified that he acquired his ten-acre tract in 1973 or 1974, and confirmed that the road was adjacent to his property. Hatton further testified that in 1996, Brooks and others deeded to him some property and an easement including 30 feet of the road in question; however, previously, his control over the use of the *552 road was based on a verbal representation that he merely made "official" in 1996. He stated that the road was not a public road, and that he had always maintained the road since he owned the property. He also stated that the Brooks, Mrs. Bates, and the Henrys worked with him to maintain the road. Hatton testified that he had refused permission to use the road on many occasions, including once when he stopped George Cooper from hauling dirt on the road. He further testified that he never gave the Grigars permission to use the road prior to 1996.
On cross-examination, Hatton admitted that he used the road for purposes of his salvage business before he moved it elsewhere, and admitted that a sign in a photograph depicting "Hatton Auto Salvage Buy-Sell-TradeUsed Parts" was his sign. He also stated that he put up a gate across the road and put a lock on it. He explained that he had problems with Albert Grigar, appellee's father, since he purchased the land in the 1970's, but stated that he did not have problems with the Grigars using the road until 1995. He testified that he told them not to use the road, but they did so anyway. On further cross-examination, Hatton explained that he did not know Daniel Grigar personally and had no problems with Josefine Grigar, but if he let them use the road, then Carl and Albert Grigar, Jr. would use it also, and they would cause problems. Hatton admitted that the property owners on the east side of the road had the right to use the road, and he had no choice about it.
On redirect, Hatton denied speaking to or making threats to Carl Grigar. He also testified that there once was a gate at the entrance to the road, but it was opened in the 1970's when Brooks bought his property. The road was only open to family members. Hatton further testified that there were no grocery stores, hospitals, farmer's markets or amusement parks on the road. He also stated that there was a road that went by a church in the area that the Grigars could use to access their property as they had done in the past.[4] In response to questioning from the court, Hatton admitted that the road did not go all the way to the Grigar property, and the Grigars would have to cross pasture land to reach their property.
After the defense rested, Grigar's counsel called Albert Grigar, Jr. in rebuttal. He testified that there was now no other access road to the Grigar property. He also denied that Hatton had ever told him not to use the road at issue. Appellee was then called back to the witness stand, and he testified that he had once tried to acquire a right-of-way through the property next to the church, but was denied. He also confirmed that the road at issue was the only access he had to his property. Grigar's counsel then testified that reasonable and necessary attorney's fees for handling an appeal of the case would be approximately $4,000, and an additional $1,000 if a rehearing was requested. The plaintiff then rested.
After a break, the trial court announced the following findings:
That a road exists and that it contains the .899 acres as surveyed by the surveyor. I find that Mr. Hatton had no right exclusive of any one else to the use of the road prior to his acquisition of the easement deed, and, in fact, had used and predecessors had used that road without having a dedicated right to the *553 road for many years prior to the acquisition of the easement deed.
The Court further finds that the road was used for ingress and egress by adjoining property owners, including the Plaintiff's predecessors for many years, and that the road was used by the public for many years prior to the acquisition of any rights to the road by Mr. Hatton.
I further find that the Grigar road or the land is land locked. Therefore, I find for the Plaintiffs as to easement by necessity, prescription and implication. Award attorney's fees of $8,500, plus cost of $3,500, and in the event of an appeal to the Court of Appeals fees of $4,000.
The trial court signed a judgment incorporating his findings on June 23, 2000. This appeal followed.
DISCUSSION
1. Standard of Review
In their first three issues, appellants assert that the evidence was legally and factually insufficient to support the trial court's findings. When, as here, no findings of fact or conclusions of law are requested or filed, we imply all necessary findings in support of the trial court's judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.1992). However, because a reporter's record has been provided, the implied findings may be challenged for legal and factual insufficiency the same as jury findings or a trial court's findings of fact. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989). When the implied findings of fact are supported by the evidence, it is our duty to uphold the judgment on any theory of law applicable to the case. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). This is true regardless of whether the court articulates the correct legal basis for its judgment. Harrington v. Railroad Comm'n, 375 S.W.2d 892, 895 (Tex.1964).
When both legal and factual sufficiency issues are raised, we are required to rule on the legal insufficiency issue first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981). If we find some evidence to support the verdict, we will then review the claim of factually insufficient evidence. Texas Indus., Inc. v. Vaughan, 919 S.W.2d 798, 801 (Tex.App.-Houston [14th Dist.] 1998, writ denied). A legal sufficiency point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of a vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S. Ct. 1799, 140 L. Ed. 2d 939 (1998). We consider all of the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998). If there is any evidence of probative force to support the challenged findings, the legal sufficiency challenge fails. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997).
When presented with a factual insufficiency issue, we must review the entire record, and will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). The court of appeals is not a fact finder. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998), cert. denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. 2d 450 (1998). *554 Accordingly, we may not pass upon the witnesses' credibility or substitute our judgment for that of the fact finder, even if the evidence would clearly support a different result. Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.1986).
2. Implied Dedication
"Dedication" is the act of appropriating private land to the public for any general or public use. Scott v. Cannon, 959 S.W.2d 712, 718 (Tex.App.-Austin 1998, pet. denied). Once dedicated, the owner of the land reserves no rights that are incompatible with the full enjoyment of the public. Id. There are four essential elements of implied dedication: (1) the acts of the landowner induced the belief that the landowner intended to dedicate the road to public use; (2) he was competent to do so; (3) the public relied on these acts and will be served by the dedication; and (4) there was an offer and acceptance of the dedication. Las Vegas Pecan & Cattle Company, Inc. v. Zavala County, 682 S.W.2d 254, 256 (Tex.1984). Whether a public right-of-way has been acquired by dedication is a question of fact. Lindner v. Hill, 691 S.W.2d 590, 591-92 (Tex.1985); Viscardi v. Pajestka, 576 S.W.2d 16, 19 (Tex.1978).
a. The acts of the landowner induced the belief that the landowner intended to dedicate the road to public use.
As a general rule, the intention to dedicate must be shown by something more than an omission or failure to act or acquiesce on the part of the owner. Greenway Parks Home Owners Ass'n v. City of Dallas, 159 Tex. 46, 55, 312 S.W.2d 235, 241 (1958). There must be evidence of some additional factor that implies a donative intention when considered in light of the owner's acquiescence in the public's use of the roadway. Long Island Owner's Ass'n v. Davidson, 965 S.W.2d 674, 681 (Tex.App.-Corpus Christi 1998, pet. denied). The additional factor may include (1) permitting public authorities to grade, repair, or otherwise improve the roadway; (2) selling parcels of land from a plat or plan showing the roadway as a means of access to the parcels; (3) construction of facilities for general public use; (4) an express representation by the owner of a road to a land purchaser that the way is reserved for public use; (5) fencing off the roadway from the remainder of the land; or (6) obtaining a reduction in the purchase price commensurate with the area of the roadway. Id.
Direct evidence of an overt act or a specific declaration on the part of the landowner indicating an intention to dedicate land to public use as a roadway is not required. Gutierrez v. County of Zapata, 951 S.W.2d 831, 838 (Tex.App.-San Antonio 1997, no writ). It is sufficient if the intent is properly inferable from the circumstances in evidence. Id.; Owens v. Hockett, 151 Tex. 503, 505, 251 S.W.2d 957, 958 (1952). As the Supreme Court explained in Owens v. Hockett:
the theory of implied dedication carries with it the idea that the owner consented to the use of his land as a highway to the extent that the court will hold that he dedicated it to public use, whether by express words, overt acts, or even by such inaction on the part of the owner as would justify a conclusion that he intended to dedicate his land to public use.
Id. 151 Tex. at 507, 251 S.W.2d at 959 (emphasis added). There, the court sustained a jury finding of implied dedication for public use, based upon evidence that (1) the road in question had been used by the public for many years prior to the time the landowner erected a fence across it, (2) the landowner knew the road was being used by the plaintiffs and the general public, (3) the landowner and others knew that *555 the county had repaired and graded the road on many occasions, and (4) the property along the roadway was fenced. 151 Tex. at 506, 251 S.W.2d at 958-59.
Thus, there must be something more than an omission or failure to act or acquiescence on the part of the landowner. Gutierrez, 951 S.W.2d at 839. However, the "something more" need not rise to the level of an overt act or an explicit declaration demonstrating a donative intention. Id. It is enough that a donative intention be inferred from evidence showing other factors that suggest such an intention under all of the circumstances surrounding the landowner's acquiescence in the public's use of the roadway. Id.; Owens v. Hockett, 151 Tex. at 507, 251 S.W.2d at 959.
In addition, evidence of long and continued use by the public raises a presumption of dedication by the owner when the origin of the public use and the ownership of the land at the time it originated cannot be shown, one way or the other, due to the lapse of time. Graff v. Whittle, 947 S.W.2d 629, 637 (Tex.App.-Texarkana 1997, writ denied); Fazzino v. Guido, 836 S.W.2d 271, 274 (Tex.App.-Houston [1st Dist.] 1992, writ denied). For this rule to apply, the origin of the public use and the ownership at that time must be "`shrouded in obscurity, and no proof can be adduced showing the intention of the owner in allowing the use.'" Fazzino, 836 S.W.2d at 274 (citing Dunn v. Deussen, 268 S.W.2d 266, 269 (Tex.Civ. App.-Fort Worth 1954, writ ref'd n.r.e.)). Thus, in Fazzino, the court upheld the jury's finding of an implied dedication based on (1) the testimony of the landowners in the area that "the road was used by the public as far back as they could remember," (2) the fact that none of them could testify to the intentions of the owner when such use began, and (3) the evidence indicating that the road at issue may have been used by the public as early as 1828. Id.
Hatton contends that the evidence is insufficient to demonstrate an implied dedication of the road at issue because the evidence, at best, showed only acquiescence in the use of the road by others, the county had never maintained the road, and some of the fencing along the road was in disrepair or not present. Hatton also contends that the introduction of maps or diagrams into evidence that show that a road existed is not sufficient to imply a dedication to public use. Reviewing the facts in the light most favorable to the court's finding, we cannot agree with Hatton's contention.
As we have stated, evidence of long and continued use by the public raises a presumption of dedication by the owner when the origin of the public use and the ownership of the land at the time it originated cannot be shown due to the lapse of time. This rule applies here. Kalkomey, the surveyor, testified that despite an investigation into the origin of the road, he was unable to find any official dedication of any kind of roadway in the deed records. However, he identified several deeds that reflected an intent to provide an access road to the properties from Highway 36. Further, Jewerl Ross testified to the existence of the road and its use by families in the area as far back as the 1930's. No one was able to testify regarding the origin of the road.
There was additional evidence supporting the trial court's finding, including testimony that most of the road was fenced on either side. There was also considerable testimony that landowners in the area used the road without objection from the 1950's until 1996, and there was some evidence that the general public traveled the road as well. In addition, a number of *556 witnesses testified that the road had the reputation of being a public road. Hatton himself testified that he had used the road for business purposes while he had his salvage yard. Further, while he obtained the land in 1973-74, he did not attempt to prevent access to the road until 1996, over 20 years later, when he put up a gate and lock. He also conceded that the other landowners adjacent to the road had the right to use it. Finally, the Grigars testified that there was no other means of access to their property. We find that this evidence is legally sufficient to support the existence of this element.
We next turn to the factual sufficiency review. In addition to the evidence described above, Hatton, Brooks, and Spates each testified that the road was not a public road. Further, it was undisputed that the county did not maintain the road at any time. Schodek, the land surveyor, was unable to opine whether the road was public or private, and testified that, in his opinion, a public road was one maintained by the county. Hatton testified that he had always maintained the road, but also testified that he did so with the assistance of other residents. Hatton also testified that there were no public facilities such as stores, hospitals, or the like on the road. Further, he maintained that he had denied individuals permission to use the road many times, and that he never gave the Grigars permission to use the road.
This evidence demonstrates, at best, that the road was used by the landowners and their families in the area, with or without objection, and that the characterization of the road as public was disputed. The trial court was entitled to weigh the credibility of the witnesses and we will not substitute our judgment for that of the fact finder. Further, the fact that the county never maintained the road is not dispositive in view of the totality of the evidence. Therefore, we cannot say that the trial court's judgment is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust as to this element.
b. The landowner was competent to do so.
Neither party challenges this element.
c. The public relied on these acts and will be served by the dedication.
Hatton contends that there is no evidence of a public need because the road does not lead to any public facilities such as churches, schools, or cemeteries. He acknowledges, however, that relatives and friends of the property owners did use the road. Further, as noted in the previous section, Hatton himself at one time had a business on the road. Several witnesses testified that the road had the reputation of being a public road, and there was evidence that the public used to road to get to the river to fish, to pick grapes or dewberries, or to dump trash in the area. Finally, the adjacent property owners themselves used the road, and the Grigars testified that there was no other access road to their property.
A public road does not depend upon its length or upon the places to which it leads, nor upon the numbers of persons who actually travel upon it. Gutierrez, 951 S.W.2d at 841. In fact, proof that a road is only slightly traveled by the public is not proof that a road is not a public road. Id. If it is free and open to all who have occasion to use it, it is a public road. Id. Further, evidence of long, continued, unquestioned use of a road supports a finding that the public relied on an implied dedication of that road. Supak v. Zboril, 56 S.W.3d 785, 791 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Graff v. Whittle, 947 S.W.2d at 638. We find the evidence discussed *557 above legally and factually sufficient to support this element.
d. There was an offer and acceptance of the dedication.
Hatton contends that the use of the road by business invitees, family friends, and guests is not sufficient to show that there was an offer and acceptance of a dedication by the public. Further, the only evidence of public use was Ross's testimony based on his recollection of events over 68 years ago, and the public has since abandoned the use of the road. However, the courts of this state do not require that the acceptance by the public be express. Viscardi, 576 S.W.2d at 19. An implied acceptance by the public is sufficient. Id. If an intention to dedicate is otherwise shown, the public use of the land is sufficient to constitute a completed dedication. Id. We have detailed above the evidence supporting the implied dedication to the public and the use of the road, without objection, for nearly seventy years. We therefore disagree with Hatton's statement that the only evidence of public use was the testimony of Ross, and in any event, Hatton has waived the affirmative defense of abandonment because he failed to plead it. Fazzino, 836 S.W.2d at 274-75. We find that the evidence is legally and factually sufficient to support this last element of an implied dedication to the public.
Accordingly, we uphold the trial court's judgment that the road in question is a public road.
3. Easement by Prescription, Implication and Necessity
In addition to finding that the road was a public road, the trial court also found that the Grigar property was landlocked, and granted an easement by prescription, implication, and necessity in favor of Grigar. However, because we have found the evidence sufficient to uphold the trial court's finding that the road was public, we need not reach these issues. Nor is it necessary for us to reach Grigar's cross-issue that an easement by estoppel exists.
4. Attorney's Fees
In his last point, Hatton contends that the trial court erred in awarding attorney's fees to Grigar under the Declaratory Judgments Act. Tex. Civ. Prac. & Rem.Code Ann. § 37.001-37.011 (Vernon 1997 & Supp.2001). The Declaratory Judgments Act provides that in any proceeding under the Act "the court may award costs and reasonable and necessary attorney's fees as are equitable and just." Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 1997). The Act does not require an award of attorney's fees to the prevailing party, but merely provides that a court "may" award them. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.1998). The Act entrusts attorney fee awards to the trial court's sound discretion, subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that fees be equitable and just, which are matters of law. Id. at 21.
The trial court's judgment ordered that Grigar recover, jointly and severally from the defendant, attorney's fees in the sum of $8,500.00 for the services rendered through the trial of the case, costs of $3,500.00, and $4,000.00 in the event of an unsuccessful appeal to the court of appeals. The only basis upon which Hatton complains of the trial court's award of attorney's fees is that the evidence is factually insufficient to support that judgment. Because we have upheld the trial court's judgement, we overrule this issue.
Accordingly, the judgment of the trial court is affirmed.
NOTES
[1] Several of the named defendants are not identified in the appeal. They are Matthew Draper, Lizzie Draper, Lucius Henry, Deidre Ann Henry, and Donald Earl Henry.
[2] Some of the deeds Kalkomey reviewed are not in evidence. However, Plaintiff's Exhibit 5, a deed of 2.42 acres to Fort Bend Heritage Society, references land "including 0.42 acres in a 30 foot wide private road along the West and South lines of said 2.42 acres, SUBJECT TO a right of way and easement for free and uninterrupted passage along a strip of land 30 feet in breadth on said 2.42 acres adjoining and extending the entire lengths of the West and South lines of the 2.42 acres herein described for the use and benefit of Grantors, their heirs and assigns."
[3] The 1995 deed of property from Jewerl Ross to appellee references the 1959 Ross deed, providing that the conveyance includes "all our interest in that easement and roadway along the East Side of Blocks 3, 4 and 5 of the William Jones Subdivision in the Shelby, Frazier and McCormick League, Abstract 85, Fort Bend County, Texas, which road runs adjacent to the West line of the Tom Hatton Estate ... and our interest in that 25 foot passageway shown on Memorandum Sketch attached to Deed of Partition dated August 29, 1959, between Tom Ross et al....."
[4] Hatton's counsel also asked Hatton how much it had cost him to defend the suit, and he estimated $2,000. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561536/ | 66 S.W.3d 51 (2001)
ACKERMAN BUICK, INC., Appellant,
v.
GENERAL MOTORS CORPORATION, Respondent.
No. ED 79477.
Missouri Court of Appeals, Eastern District, Division Five.
November 13, 2001.
Motion for Rehearing and/or Transfer Denied January 10, 2002.
*53 Charles A. Seigel, H. Kent Munson, The Stolar Partnership, St. Louis, MO, Attorneys for Appellant.
David M. Harris, Greensfelder, Hemker & Gale, P.C., St. Louis, MO, Jeffrey J. Jones, Jones, Day, Reavis & Pogue, Columbus, OH, Attorneys for Respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied January 10, 2002.
PAUL J. SIMON, Judge.
Ackerman Buick, Inc. (plaintiff) appeals the judgment of the St. Louis County Circuit Court, entered in favor of General Motors Corporation (defendant) on its motion for summary judgment.
On appeal, plaintiff contends that the trial court erred in granting defendant's motion for summary judgment on its breach of contract claim because: (1) the alleged oral agreement met the requisite elements of a contract in that it was entered into between competent parties, was of proper subject matter, was supported by consideration, and contained mutuality of agreement; (2) the application to become a Pontiac dealer signed by Jerry Ackerman (Ackerman), the president and owner of plaintiff, did not preclude plaintiff's claim because the parole evidence rule did not apply to the application as it was not a fully integrated contract, was no more than a formality, and could not affect the preexisting agreement; (3) the preexisting dealership agreement did not bar plaintiff's claim because parties to a contract cannot preclude themselves from entering into subsequent oral agreements; and (4) the statute of frauds did not bar plaintiff's claim because the standard dealership agreement which plaintiff was to receive would expire by its terms upon the death or incapacity of Ackerman thereby removing the agreement from the statute of frauds, and the standard dealership agreement by its terms, could be terminated upon 60 days' written notice, thereby removing it from the statute of frauds. Plaintiff further argues that the trial court erred in granting defendant's motion for summary judgment on plaintiff's Motor Vehicle Franchise Practices Act (MVFPA) claim on the same grounds as the claim for breach of contract because the MVFPA claim is not dependent upon an enforceable contract between plaintiff and defendant. We affirm.
When considering an appeal from an entry of summary judgment, we review the record in the light most favorable to the non-movant. Hubbard v. Lincoln Cty. R-III School Dist., 23 S.W.3d 762, 763 (Mo.App. E.D.2000). Our review is essentially de novo. Id. "The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially." Id. "The propriety of summary judgment is purely an issue of law." Id.
The movant's burden on its motion for summary judgment is to show a *54 right to judgment flowing from facts about which there is no genuine dispute. Id. The movant may establish its right to summary judgment by showing: (1) facts that negate any one of the non-movant's elements facts; (2) that the non-movant has not been able to produce and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the non-movant's elements; or (3) that there is no genuine dispute as to the existence of facts necessary to support the movant's properly pleaded affirmative defense. Id.
The non-movant must show by affidavit, depositions, answers to interrogatories, or admissions on file, that one or more material facts shown by the movant to be beyond any genuine dispute is, in fact, genuinely disputed. Id. at 763, 764. A "genuine issue" is a real, non-frivolous dispute, that exists ". . . .where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts." Id. at 764. A "genuine issue" is a dispute that is real and not merely argumentative, imaginary or frivolous. Id.
We will sustain the trial court's granting of summary judgment if it is sustainable on any theory as a matter of law. Preston v. Preston, 823 S.W.2d 48, 49 (Mo.App. E.D.1991).
The record in the light most favorable to plaintiff, the non-movant, reveals that Ackerman has been the president and sole owner of plaintiff since 1964. Defendant is a manufacturer of various vehicle lines including Buick, Pontiac, Oldsmobile, and GMC Truck. At the time of the purported oral contract, plaintiff, as a corporation, had a five-year Buick Dealer Sales and Service Agreement with defendant providing in pertinent part:
If Dealer wants to make any change in location(s) or Premises, or in the uses previously approved for those Premises, Dealer will give Division written notice of the proposed change, together with the reasons for the proposal, for Division's evaluation and final decision in light of dealer network planning considerations. No change in location or in the use of Premises, including addition of any other vehicle lines, will be made without Division's prior written authorization.
The agreement also expressly provided:
No agreement between Division and Dealer which relates to matters covered herein, and no change in, addition to (except the filling in of blank lines) or erasure of any printed portion of this Agreement, will be binding unless permitted under the terms of this Agreement or related documents, or approved in a written agreement executed as set forth in Division's Dealer Sales and Service Agreement.
In the early 1990s, plaintiff informed defendant that it desired to obtain additional vehicle lines. Plaintiff and defendant learned that Grant Davis (Davis), a St. Louis Pontiac, Oldsmobile and GMC Truck dealer, wished to sell one or more of his three vehicle lines. Plaintiff commenced negotiations with Davis at the encouragement of defendant. After being informed by Edward Roggenkamp (Roggenkamp), General Motors Executive Director of Dealer Development, that Davis was dealing with Morton Mallory (Mallory), a local dealer, with respect to the sale of the Davis GMC Truck line, plaintiff became interested in the remaining Davis Pontiac and Oldsmobile lines.
On January 20, 1994, Davis came to a verbal agreement with Mallory to sell Mallory the GMC Truck line and on February 3, 1994, signed a contract to that effect.
*55 Plaintiff offered Davis $1.5 million for the Oldsmobile and Pontiac franchises, inventory of special tools, and other assets. On February 17, 1994, Davis' attorney sent a draft "buy/sell" agreement to plaintiff. Ackerman did not sign it because he disagreed with several of its provisions, especially a requirement that plaintiff give a $100,000 nonrefundable deposit to Davis. Thereafter, negotiations became strained and the parties failed to reach a final agreement.
In early March 1994, representatives of defendant met with representatives of plaintiff and informed them that defendant was in favor of plaintiff's having the Davis franchise.
On March 17, 1994, Roggenkamp and defendant's General Director of Dealer Network Development, Bruce Edwards (Edwards), met with Ackerman and plaintiff's General Sales Manager Gary Jacobs (Jacobs) to discuss transferring the Davis Pontiac franchise to plaintiff. Jacobs asked defendant's representatives why Pontiac representatives were not present at the meeting. Roggenkamp responded that "Pontiac was already in the fold, they didn't even need to be part of the meeting." Ackerman informed the representatives about the Davis negotiations and that Davis "wasn't coming off the price." He added that he would "consider" an offer from Davis if he lowered the price. Roggenkamp responded: "Jerry, hands off as of this moment. I'm going to go over to Grant Davis this afternoon." The representatives told Ackerman that they would "handle everything" and "Get [the Pontiac franchise] bought." Roggenkamp told Ackerman to cease negotiations with Davis and further that defendant would deliver the Pontiac franchise and provide $185,000 in funding for improvements.
Plaintiff ceased communication with Davis, understanding that defendant would negotiate a price between Davis and plaintiff.
On March 23, 1994, Davis received a letter from the GMC Truck zone manager informing him that defendant would not approve the deal between Davis and Mallory.
At about that time, Edwards contacted Jacobs and informed him: "It looks like we have this worked out. I would like to come by tomorrow afternoon and see [Ackerman]." The next day, Edwards went to plaintiff. He told Jacobs that he ". . . .had it worked out with Davis." According to Jacobs, Edwards stated at the brief meeting that followed:
I have met with [Davis], it's a done deal. It's going to cost you [$700,000] just like we said and if you are willing to go that we can put this deal together. And [Ackerman] said well, you know, that's really a little more than I wanted to go but if that's what it's going to take let's get it done. And [Edwards] said, okay, I'm heading back to Detroit and we will get the ball rolling.
The $700,000 was for the right to operate a Pontiac franchise ("Blue Sky"). It was Ackerman's understanding that this right would be pursuant to a "standard five-year Pontiac agreement." If plaintiff wanted or needed any other assets, it could negotiate for them separately.
Subsequently plaintiff "prepared to operate a Pontiac franchise" and arranged financing while at the same time being assured by defendant that the transaction was a "go deal."
Meanwhile, Davis' attorney prepared a complaint regarding defendant's refusal to approve his deal with Mallory. In early May, Davis came to an agreement with defendant in which defendant would allow Davis to sell the GMC Truck line to Mallory. As part of the agreement, defendant *56 was to purchase the Pontiac and Oldsmobile lines from Davis. The deal was to close in early August, 1994.
In late May, Pontiac Zone Manager Lawrence Walter (Walter) informed Ackerman that he had to fill out an Application for a General Motors Corporation Dealer Sales and Service Agreement (application). Ackerman and his Controller, Mr. Aaron Kahle, were told that the deal had already been approved and that the application was a "formality." Ackerman was also told that the Buick division, and not the Pontiac division, controlled and had already approved the decision. Ackerman read, signed, and submitted the application on May 17, 1994.
In the upper left-hand corner of the agreement were the logos of Pontiac and General Motors, and underneath the heading:
PONTIAC MOTOR DIVISION
General Motors Corporation
The application stated, in pertinent part:
Acting on my behalf or on behalf of such partnership or corporation as I may later propose, I hereby apply for a General Motors Corporation Dealer Sales and Service Agreement (Dealer Agreement) for motor vehicles marketed by the Division of General Motors Corporation identified above.
* * *
In making this Application, I acknowledge and agree that:
The forms for this Application and Questionnaire were supplied to me by Division as a convenience to me and their receipt by Division for consideration shall be without any obligation whatsoever on the part of Division or any of its representatives.
(2) No one other than the GENERAL MANAGER, GENERAL SALES MANAGER, SALES MANAGER OR ASSISTANT GENERAL SALES MANAGER Division has the authority to approve any proposal that may be subsequently submitted in support of this Application for a Dealer Agreement. Such approval, if given, will be only in the form of either: (a) a written Dealer Agreement executed on behalf of Division and the part named as "Dealer" in the introductory paragraph thereof, or (b) a written "Letter of Intent" to execute a Dealer Agreement executed on behalf of the Division by either the GENERAL MANAGER, GENERAL SALES MANAGER, SALES MANAGER, ASSISTANT GENERAL SALES MANAGER, REGIONAL OR ZONE MANAGER and accepted by me. Any action taken, expenditures made, or commitments assumed, by me, by anyone to be associated with me in the proposed dealer company, or by the proposed dealer company itself, prior to receipt by me of such written Dealer Agreement shall be at my or their sole risk and responsibility without any liability or obligation whatsoever on the part of Division or any of its representatives.
(3) Neither I nor the dealer company which I may propose will be entitled to rely upon any representation or statement indicating approval of this application made to me or anyone else by any representative or employe of Division or any other person whatsoever prior to receipt of a Dealer Agreement or an appropriate "Letter of Intent" executed by Division.
Following Ackerman's submission of the application, Walter requested additional information which Ackerman subsequently provided. Ackerman had completed applications in the past related to proposed *57 Cadillac, Kia, Honda, and Hyundai transactions. However, no such application was required when he acquired a Toyota franchise in South St. Louis.
Late in July, Ackerman was visited by representatives of defendant who informed him that defendant planned to close its deal with Davis and, the next day, close its deal with plaintiff, thus transferring the Pontiac franchise to plaintiff.
The deal between Davis and defendant closed on August 1, 1994. Plaintiff and Buick representatives appeared for the closing of the deal between plaintiff and defendant. Ackerman was prepared to write a $700,000 check for the franchise, although he was not sure to whom the check would be written. However, defendant failed to show for the closing.
Although Walter did not contact plaintiff on the closing date, he later talked to Ackerman and told him that Pontiac was still considering various matters and that he would send Ackerman a letter when he completed his review. During this time, defendant and its representatives, especially those from Buick, told Ackerman that the "deal was still on."
On September 9, 1994, Walter sent a letter to plaintiff informing it that Pontiac had completed its review of plaintiff's application and determined that:
. . . .Pontiac representation is not required at the 2900 Pershall Road location and that at this time, our customer representation needs, can be serviced by the existing Pontiac dealers in the area.
Walter did not recall doing a study of market data to determine whether another Pontiac location was needed and no document evidences such a study.
Had plaintiff acquired the Pontiac franchise, it would have been in competition with Behlman Pontiac (Behlman), which is located on the same interstate as the Ackerman Buick facility. Behlman strenuously objected to the acquisition.
On September 1, 1999, David L. Thompson (Thompson), defendant's Market Area Manager, sent a letter to Ackerman in response to a letter from attorney Charles Seigel (Seigel). The Seigel letter does not appear in the record. The letter from Thompson states, in pertinent part:
This letter is in response to [Seigel's] letters dated August 5th and August 9th 1999 concerning your claims over the possible addition of Pontiac and GMC to your Buick dealership operations.
* * *
Defendant is willing to grant a limited tolling upon the following terms and conditions:
1. The statute of limitations for any claims that would expire on September 9, 1999 are tolled for a thirty day period, until October 9, 1999.
* * *
On September 22, 1999, another letter was sent from Thompson to plaintiff tolling the statute of limitations an additional 30 days.
On November 6, 1999, following defendant's agreement to toll the statute of limitations to November 9, 1999, plaintiff filed a petition alleging breach of an oral contract in Count I and violation of the Motor Vehicle Franchise Practices Act (MVFPA) in Count II and requesting damages including but not limited to lost profits, costs, and expenses on both counts. Defendant filed a Motion to Dismiss which was denied.
On February 1, 2001, defendant filed a motion for summary judgment alleging that: (1) Ackerman signed a written application with defendant that expressly repudiated prior oral agreements; (2) the plain terms of plaintiff's Dealer Sales and Service *58 Agreement with defendant expressly barred "oral" authorization for plaintiff's sales and service of other line-makes like Pontiac; (3) plaintiff did not have an enforceable oral contract with defendant because the agreement alleged by plaintiff was no more than a purported "agreement to later try to agree," a claim not recognized by Missouri courts; (4) the Statute of Frauds barred an "oral contract" to enter into a five-year dealer agreement; and (5) plaintiff's claims were barred by the statute of limitations. Defendant further alleged that Plaintiff's MVFPA claim failed as a matter of law "on all the foregoing grounds in addition to other grounds as well." Defendant argued that plaintiff's MVFPA claim failed as it did not have the requisite standing to bring such a claim. In support of its motion, defendant filed two copies of Buick Motor Division Dealer Sales and Service Agreements dated November 1, 1990 and November 1, 1995; portions of the depositions of Ackerman, Jacobs, Davis' Chief Financial Officer Stuart Lee Ray, Craig Smith, Ackerman employee Geraldine Pavlovitz, John S. Naughton, Kahle, Walter, Edwards, and Roggenkamp along with corresponding exhibits; plaintiff's Supplemental Answers to [Defendant's] First Set of Interrogatories to Plaintiff; the September 1, 1999 and September 22, 1999 letters from Thompson to plaintiff tolling the statute of limitations; and a copy of Stone v. General Motors Corp., No. 4:99CV01273, Memorandum & Order.
Thereafter, plaintiff filed a response and a Statement of Additional Undisputed Facts to defendant's motion for summary judgment. In support of its response, plaintiff filed the affidavits of Ackerman and H. Kent Munson, attorney for plaintiff; the depositions of Ackerman, Jacobs, Walter, Ray, Kahle, Roggenkamp, Naughton, and Edwards; the September 22, 1999 letter from Thomas extending the Statute of Limitations; copies of financial assistance requests produced by defendant, various documents of defendant, and a copy of a June 2, 1994 internal memorandum of defendant; copies of several exhibits; a copy of a September 23, 1994 Edwards letter; a copy of the September 9, 1994 letter from Walter; and a copy of the November 1, 1990 Dealer Sales and Service Agreement between plaintiff and defendant.
With leave, defendant filed its response to plaintiff's Additional Statement of Undisputed Facts along with copies of Owens v. Subaru of America, Inc., 802 F.2d 459, 1986 WL 17476 (6th Cir.1986) and Hall v. Ford Motor Company, 68 F.3d 474, 1995 WL 619972 (6th Cir.1995); a letter from David M. Harris, attorney for defendant, to Kent Munson dated February 27, 2001; the expert report of Ernest Manuel, Jr., Ph.D.; and excerpts of the depositions of Edwards and Smith.
On April 27, 2001, defendant filed a motion to present stipulation of certain facts. The same day, the trial court sustained defendant's motion for summary judgment on both counts ". . . .for the reason that the alleged oral agreement set forth in Count I of plaintiff's Amended Petition fails to meet the requisite elements of a contract; plaintiff's cause of action set forth in Count I of Plaintiff's Amended Petition is barred by the terms of the subsequent application agreement executed by plaintiff; and plaintiff's prior dealership agreement; and plaintiff's claim in Count I is barred by the statute of frauds." The trial court awarded court costs against plaintiff and did not make findings of fact or conclusions of law.
In its first point on appeal, plaintiff contends that the trial court erred in granting defendant's motion for summary judgment with respect to plaintiff's breach of contract *59 claim on grounds that the oral agreement did not meet the requisite elements of an enforceable contract, for the reasons that the oral contract was entered into between competent parties, was of proper subject matter, supported by consideration, and was an agreement containing mutuality of agreement and obligation. In its fourth point on appeal, plaintiff argues the trial court erred in granting defendant's motion for summary judgment on its breach of contract claim because the statute of frauds did not bar the claim in that the standard dealership agreement which plaintiff was to receive would expire by its terms upon the death or incapacity of Ackerman and the standard dealership agreement by its terms, could be terminated upon 60 days' written notice. If the oral contract for the sale of the Davis Pontiac franchise is unenforceable because of the statute of frauds, then the issue of whether the oral contract was made or not would not have precluded entry of summary judgment for defendant. Howard Construction Co. v. Jeff-Cole Quarries, Inc., 669 S.W.2d 221, 226 (Mo.App. W.D.1983).
Therefore, we shall address plaintiff's fourth point on appeal. As an affirmative defense in its answer, defendant stated that plaintiff's claims were barred by the statute of frauds because, "among other things, [p]laintiff claims that [defendant] had an oral `contract' to transfer a dealership and/or automobile line." Although the trial court found that plaintiff's breach of contract claim was barred by the statute of frauds, defendant's motion was directed to Section 432.010 RSMo (2001) (all further references herein shall be to RSMo 2001 unless otherwise indicated), which provides, in pertinent part, that "no action shall be brought .... to charge any person.... upon any agreement that is not to be performed within one year from the making thereof." However, defendant in its brief argues that, in addition to being precluded by Section 432.010, plaintiff's breach of contract claim is barred by Uniform Commercial Code (UCC) Section 400.1-206(1) (Section 206), which provides:
(1) Except in the cases described in subsection (2) of this section a contract for the sale of personal property is not enforceable by way of action or defense beyond five thousand dollars in amount or value of remedy unless there is some writing which indicates that a contract for sale has been made between the parties at a defined or stated price, reasonably identifies the subject matter, and is signed by the party against whom enforcement is sought or by his authorized agent.
(2) Subsection (1) of this section does not apply to contracts for the sale of goods (section 400.2-201) nor of securities (section 400.8-113) nor to security agreements (section 400.9-203).
[Emphasis added.]
The Comment to Section 206 provides:
Purposes: To fill the gap left by the Statute of Frauds provisions for goods (Section 2-201), securities (Section 8-319), and security interests (Section 9-203). The Uniform Sales Act covered the sale of "choses in action"; the principal gap relates to sale of the "general intangibles" defined in Article 9 (Section 9-106) and to transactions excluded from Article 9 by Section 9-104. Typical are the sale of bilateral contracts, royalty rights or the like.
[Emphasis added.]
Plaintiff did not address the application of Section 206 in its reply brief. We will affirm the trial court's granting of summary judgment ". . . .even if we do not accept the trial court's reasoning if the judgment can, as a matter of law, be sustained on any theory." Guy v. City of St.
*60 Louis, 829 S.W.2d 66, 69 (Mo.App.1992). The trial court's entry of summary judgment will be sustained even if the theory on which we dispose of the case was not presented to the trial court. Id.
The alleged oral contract between plaintiff and defendant was for the sale of a franchise without assets. Although we find no definition of franchise in the UCC, the term is defined in Section 407.815 of the MVFPA, which provides, in pertinent part:
* * *
(4) "Franchise", a written arrangement or contract for a definite or indefinite period, in which a person grants to another person a license to use, or the right to grant to others a license to use, a trade name, trademark, service mark, or related characteristics, in which there is a community of interest in the marketing of goods or services, or both, at wholesale or retail, by agreement, lease or otherwise, and in which the operation of the franchisee's business with respect to such franchise is substantially reliant on the franchisor for the continued supply of franchised new motor vehicles, parts and accessories for sale at wholesale or retail.
Section 206 applies to contracts "for the sale of personal property" except in the cases described in subsection (2), namely contracts for the sale of goods, securities, or security agreements. Clearly, a franchise does not fall into any of these categories as defined in Sections 400.2-105(1), 400.8-102(1), 400.9-105(1).
Further, the comment to Section 206(1) provides that the principal gap filled by that section relates to the sale of "general intangibles" defined in UCC Section 400.9-106 (Article 9) and to transactions excluded from Article 9 by Section 400.9-104.
Section 400.9-106 defines "general intangibles" as ". . . .any personal property (including things in action) other than goods, accounts, chattel paper, documents, investment property, instruments, rights to proceeds of written letters of credit, and money." In the Comment to Section 400.9-106, "general intangibles" include miscellaneous types of contract rights and other types of personal property which are used as commercial security. Examples include copyrights, trademarks, and patents, except to the extent that they are excluded under Section 400.9-104(a).
Section 400.9-104 lists transactions that are excluded from Article 9. These transactions basically include security interests, landlords' liens, transfers of claims for compensation, transfers by governmental divisions, sales of accounts or chattel paper, insurance policy interests, rights of setoff, transfer of tort claims, and transfers of deposit account interests.
Thus, Section 206(1) applies to contracts for the sale of personal property, examples of which are contracts for the sale of "general intangibles," "bilateral contracts," "royalty rights or the like," "goodwill," "literary rights," "rights to performance," "copyrights," "trademarks," and "patents." The list is not exhaustive. Clearly, a contract for the sale of a franchise would be includable as a general intangible and is compatible with the properties listed. Therefore, the language and stated purpose of Section 206 apply to a contract for the sale of a franchise.
Other jurisdictions have similarly held statutory provisions analogous to Section 206(1) apply to the sale of businesses, partnership interests, and copyrights. See Dale Joseph Gilsinger, J.D., Construction and Application of Statute-of-Frauds Provision Under UCC Section 1-206 Governing Personal Property Not Otherwise Covered, 62 A.L.R. 5th 137 (1998) (annotation). *61 See also Beldengreen v. Ashinsky, 139 Misc. 2d 766, 528 N.Y.S.2d 744, 747 (N.Y.City Civ.Ct.1987) (statute analogous to Section 206(1) applies to the sale of a business); Pyle v. Wolf Corporation, 354 F. Supp. 346, 358 (1972) (statute analogous to Section 206(1) applies to the sale of a limited partnership interest); Grappo v. Alitalia Linee Aeree Italiane, S.p.A., 56 F.3d 427, 431 (C.A.2 (N.Y.) 1995) and Mellencamp v. Riva Music Ltd., 698 F. Supp. 1154, 1163 (S.D.N.Y.1988) (statutes analogous to Section 206(1) apply to the sale of copyrights).
Although we have not found nor been directed to a Missouri case addressing the issue of whether a franchise is personal property within the meaning of Section 206(1), our Supreme Court's discussion in Norris v. Norris, 731 S.W.2d 844, 845 (Mo.banc 1987), although in the context of an action construing a will, is instructive. In Norris, our Supreme Court concluded:
Personal property can be either tangible or intangible. Tangible personal property is property which may be felt or touched; such property as may be seen, weighed, measured, and estimated by the physical senses. Conversely, intangible personal property is that which has no intrinsic and marketable value, but is merely the representative or evidence of value, such as certificates of stock, bonds, promissory notes and franchises.
[Emphasis added.]
Here, plaintiff's action is based upon an oral contract for the sale of a franchise with a value well in excess of the $5,000 limit imposed by Section 206. Since we have found that a franchise is "personal property" subject to Section 206(1), the contract, if established, would be unenforceable as a matter of law. Since our determination is dispositive of plaintiff's fourth point, it is not necessary to address plaintiff's second and third points.
In its fifth and final point on appeal, plaintiff argues that the trial court erred in granting defendant's motion for summary judgment on plaintiff's MVFPA claim. Sections 407.810-407.835. The trial court held that plaintiff's MVFPA claim failed on the same grounds as the breach of contract claim.
In Count II of its amended petition, plaintiff restated, realleged, and incorporated by reference the averments of its breach of contract claim. Plaintiff further alleged:
17. At all times mentioned herein, [plaintiff] was and is a "Franchisee" within the meaning of the [MVFPA], as that term is defined in Section 407.815(5) of the Act and [defendant] was and is a "Franchisor," as that term is defined in Section 407.815(6) of the Act. The dealership arrangement between [plaintiff] and [defendant] is a "Franchise" within the meaning of that Act, as that term is defined in Section 407.815(4) of the Act.
18. Section 407.825.1(1) of the Act provides that it is unlawful for a Motor Vehicle Franchisor, such as [defendant], to "engage in any conduct which is capricious, in bad faith, or unconscionable and which causes damage to a motor vehicle franchisee or to the public."
Plaintiff next argued that the actions of defendant were capricious, in bad faith, and unconscionable in violation of Section 407.825.1(1).
The MVFPA defines "franchisee" as a ". . . .person to whom a franchise is granted," and "franchisor" as a ". . . .person who grants a franchise to another person." Sections 407.815(5) and (6). As discussed earlier, the alleged oral contract was for the sale or transfer of the Davis Pontiac franchise without assets. The MVFPA provides:
*62 1. Notwithstanding the terms of any franchise agreement, the performance, whether by act or omission, by a motor vehicle franchisor of any or all of the following acts enumerated in this subsection are hereby defined as unlawful practices, the remedies for which are set forth in section 407.835:
(1) To engage in any conduct which is capricious, in bad faith, or unconscionable and which causes damage to a motor vehicle franchisee or to the public; provided, that good faith conduct engaged in by motor vehicle franchisors as sellers of new motor vehicles or part or as holders of security interest therein, in pursuit of rights or remedies accorded to sellers of goods or to holders of security interests pursuant to the provisions of chapter 400, RSMo, uniform commercial code, shall not constitute unfair practices pursuant to sections 407.810 to 407.835.
Section 407.825.1(1).
[Emphasis added.]
At the time of the alleged incidents, plaintiff was a "franchisee" with respect to the Buick line in that it was a corporation to which a Buick franchise had been granted. Defendant was a "franchisor" of plaintiff in that it was the corporation which granted the Buick franchise to plaintiff. However, although a prospective Pontiac franchisee, plaintiff was not a franchisee with respect to the Pontiac line as the term is used in the MVFPA as the Pontiac franchise had not been transferred to plaintiff at the time of the alleged incidents.
"The primary rule of statutory construction is to ascertain the lawmaker's intent from the language used and give effect to that intent, while considering the words used in their plain and ordinary meaning." Lincoln County Stone Co., Inc. v. Koenig, 21 S.W.3d 142, 146 (Mo.App.E.D.2000). "Provisions of the entire legislative act must be construed together and, if reasonably possible, all provisions must be harmonized." Id. Emphasis added. "Statutes should be construed in such a way as to avoid unreasonable, oppressive or absurd results." Id.
An examination of Section 407.825.1 as a whole indicates that the purpose of the statute is the protection of franchisees from the "unlawful" practices of franchisors with respect to franchises in the possession of franchisees. The remaining subsections of 407.825.1 make it unlawful for a franchisor to: (2) coerce a franchisee to accept delivery of specified commodities that the franchisee has not ordered; (3) refuse to deliver such motor vehicles which are ordered by a franchisee and are publicly advertised; (4) coerce a franchisee into an agreement with said franchisor; (5) terminate, cancel or refuse to continue any franchise unless a franchisee substantially defaults in performance of its lawful obligations; (6) to prevent by contract or otherwise a franchisee from changing its capital structure through which it finances its operations; (7) prevent the sale or transfer of a franchisee's franchise; (8) prevent a franchisee from changing its executive management; (9) impose unreasonable standards of performance upon a franchisee; (10) require a franchisee to assent to a release or waiver of estoppel; (11) prohibit the right of free association among franchisees; (12) provide any condition directly in violation of sections 407.810 to 407.835; (13) cancel or refuse to continue a franchise and fail to pay a franchisee reasonable compensation; (14) prevent or refuse to honor succession to a franchise by any legal heir or devisee through will or other written instrument; (15) coerce, threaten, intimidate a franchisee under any condition affecting or related to a franchise agreement; and (16) *63 initiate any act "enumerated in this subsection on grounds that it has advised a franchisee of its intention to discontinue representation at the time of a franchisee change or require any franchisee to enter into a site control agreement as a condition to initiating any act enumerated in this subsection." None of the preceding subsections indicates concern for the protection of a franchisee with respect to a franchise not yet owned by said franchisee.
In addition, subsection (7)(b), which makes it unlawful for a franchisor to prevent a franchisee's sale of its franchise, provides:
The franchisee and the prospective franchisee shall cooperate fully with the franchisor in providing information relating to the prospective transferee's qualifications, capitalization, integrity and character.
The use of the specific term "prospective franchisee" further evidences that the statute as a whole is not intended to apply to "prospective franchisees," and that where the statute does apply to "prospective franchisees," it uses the specific term.
Plaintiff argues that its status as a Buick franchisee confers standing to sue under the MVFPA because of Section 407.835. Section 407.835 provides:
Any motor vehicle franchisee may bring an action in any court of competent jurisdiction against a motor vehicle franchisor with whom the franchisee has a franchise, for an act or omission which constitutes an unlawful practice....
This section grants remedies for violations of Section 407.825. As discussed, plaintiff was not a Pontiac franchisee during the time period involved.
We conclude that except where specifically indicated, Section 407.825 applies to franchisor-franchisee relations with respect to franchises granted by franchisors to franchisees and in the possession of franchisees at the time of alleged violations. We decline to broaden the application of the MVFPA beyond that intended by our legislature. Point denied.
Judgment affirmed.
JAMES R. DOWD, C.J. and SHERRI B. SULLIVAN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566551/ | 440 S.W.2d 668 (1969)
James Charles BLACK, Appellant,
v.
The STATE of Texas, Appellee.
No. 42025.
Court of Criminal Appeals of Texas.
April 16, 1969.
Rehearing Denied June 4, 1969.
Grady Hight, Fort Worth (on appeal only), for appellant.
Frank Coffey, Dist. Atty., Jack Q. Neal, Clayton Evans and Truman Power, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
ONION, Judge.
The offense is assault to murder with malice; the punishment, assessed by the jury, 25 years.
*669 Appellant does not challenge the sufficiency of the evidence to sustain the conviction. Suffice it to say the record reflects the 25-year-old appellant shot the 67-year-old complaining witness, Collins, four times in the Continental Bus Station in the City of Ft. Worth on the evening of September 9, 1967. Neither man was previously acquainted with the other. Appellant, who had been drinking Vodka earlier in the day, testified that at the time Collins made an indecent proposal to his (appellant's) seven months pregnant wife. Collins denied making any such remark or proposal.
In his first ground of error appellant urges that the court erred in refusing to permit him "to give his impression of the fact situation at the time of the offense."
He relies upon Henry v. State, 164 Tex. Cr.R. 199, 300 S.W.2d 79.
The record reflects the following while appellant was testifying in his behalf on direct examination:
"Q. Did you think that that man was
"MR. NEAL: Now, Your Honor, we object to whatever he might have thought.
"THE COURT: I will sustain it.
"MR. GARRETT: I want to show what he thought
"MR. NEAL: Your Honor, we have objected to it, and
"THE COURT: Counsel, I have sustained the objection to that question. I will permit you to go into all of the facts and circumstances surrounding this incident, and let the Jury draw their own conclusions.
"Q. (BY MR. GARRETT) When you told him that this was your wife, and he said `What the hell?', or words to that effect; is that right?"
Even if the incompleted and apparently leading question can be given the construction now placed on it by appellant, we fail to find any showing in the record of what the answer would have been. Nothing is therefore presented for review. Walker v. State, Tex.Cr.App., 440 S.W.2d 653; Thomas v. State, Tex.Cr.App., 438 S.W.2d 112; Beasley v. State, Tex.Cr.App., 428 S.W.2d 317; East v. State, Tex.Cr.App., 420 S.W.2d 414.
We further observe that the issue of self defense was submitted to the jury in the court's charge.
Ground of error #1 is overruled.
Next, appellant complains he was not allowed to show that he expected to be a traveler and that his possession of the pistol at the time was legal and that it was not taken to the bus station with the intention to harm the complaining witness. In the absence of the jury appellant perfected his informal bill of exception to show that he expected to travel by bus over 200 miles and that he took the gun from his home since he was going on a trip, and that at such time he did not know the complaining witness.
We perceive no error. The evidence already before the jury reflected that appellant and his wife had gone to the bus station with the intention to travel to Mt. Enterprise in East Texas, approximately 200 miles from Ft. Worth only to discover that the bus would not depart for some seven or eight hours; that he had the pistol with him at the time; that he did not know the complaining witness prior to the alleged offense.
We find no complaint from the appellant that the action of the trial court prevented him from asking and receiving any instructions to the jury as to his possession of the pistol at the time of the alleged offense.
Ground of error #2 is overruled.
Appellant testified in his own behalf on the issue of guilt or innocence. On direct examination it was established that he had not previously been convicted of a felony. His counsel then elicited from him that he *670 had, however, pleaded guilty to several misdemeanors including "fighting," "DWI" and "a pistol case." The direct examination further reflects:
"Q. And I believe, some time back, you paid a fine on a pistol case; is that correct?
"A. I did.
"Q. And was there something in Dallas that you were picked up for?
"A. Yes sirA traffic or a ticket violation; and they searched the car and found a gun.
"Q. That was in Dallas?
"A. Yes sir
"Q. And you also have some tickets for traffic violations?
"A. I have, yes sir.
"Q. Other than those misdemeanors, which you pled guilty to, can you think of any other cases that you have been convicted on?
"A. No, I can't"
Thereafter on cross-examination the State, without objection, interrogated appellant about other misdemeanor convictions and arrests. When objection was made the court overruled the same with the statement "You went into all of this." Thereafter the State inquired about only two other misdemeanor convictions.
"When defendant takes the stand as a witness he is subject to the same rules as any other witness. He may be contradicted, impeached, discredited, attacked, sustained, bolstered up, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness testifying in behalf of defendant, except where some statute forbids certain matters to be used against him, such as proof of his conviction on a former trial of the present case, his failure to testify on a former trial or hearing, and the like." 1 Branch's Anno.P.C., 2d ed., Sec. 168, p. 170.[1]
In Stephens v. State, Tex.Cr.App., 417 S.W.2d 286, this Court said:
"Under the provisions of Article 38.29, V.A.C.C.P., the fact that a witness has been charged with an offense is inadmissible for the purpose of impeaching him unless the charge has resulted in a final conviction. Hunter v. State, 168 Tex. Crim. 160, 324 S.W.2d 17; Tomlinson v. State, 163 Tex. Crim. 44, 289 S.W.2d 267. Furthermore the final conviction must be for a felony offense or one involving moral turpitude; Mauldin v. State, 165 Tex. Crim. 405, 308 S.W.2d 36, and even then, it must not be too remote. If, however, the witness makes blanket statements concerning his exemplary conduct, such as has never been charged or convicted of any offense, then the State may refute such testimony, despite the nature of the conviction used or its remoteness. Orozco v. State, 164 Tex. Crim. 630, 301 S.W.2d 634 and cases cited therein."
The record reflects that the State's interrogation was allowed only after counsel for the appellant had inquired on direct examination as to appellant's misdemeanors, arrests, and convictions. Thus the State was properly permitted to fully cross examine as to the same matter, even if the offenses are not offenses involving moral turpitude. Fernandez v. State, Tex.Cr. App., 382 S.W.2d 935; Lunsford v. State, 159 Tex. Crim. 82, 261 S.W.2d 591; Simmons v. State, 154 Tex. Crim. 554, 229 S.W.2d 370. We further observe that most of *671 the State's interrogation was conducted without objection.
We therefore find no merit in appellant's contention that the State was allowed to improperly cross examine and impeach appellant over proper objection.
Ground of error #3 is overruled.
Lastly, appellant contends he did not have effective assistance of counsel, though he was represented by trial counsel of his own choice.[2] This ground of error is based chiefly upon the fact that employed counsel had appellant relate his misdemeanor record to the jury at the hearing on the issue of guilt or innocence. Whatever may have been the wisdom of such interrogation, it is obvious that its purpose was to show the jury that in every other encounter with the law he had pleaded guilty, when guilty, but in this case appellant's plea was different. We find no merit in the contention that appellant was denied effective assistance by counsel by reason of such strategy.
Ground of error #4 is overruled.
The judgment is affirmed.
NOTES
[1] Such statement, however, should be read in light of Brumfield v. State, Tex. Cr.App., (No. 41,808) holding that an accused could not be recalled by the State at the penalty stage of the proceedings under the circumstances presented, and in light of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908, and Lopez v. State, Tex.Cr.App., 384 S.W.2d 345, and Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247.
[2] For a discussion of the problem of effective assistance of retained counsel, see Breedlove v. Beto, 404 F.2d 1019 (November 29, 1968) (5th Cir.), Footnote 1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561512/ | 565 A.2d 887 (1989)
Wallace A. ZIMMERMAN, Defendant Below, Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee.
Supreme Court of Delaware.
Submitted: March 21, 1989.
Decided: September 21, 1989.
Lawrence A. Ramunno, of Ramunno & Ramunno, Wilmington, for appellant.
Gary A. Myers, Deputy Atty. Gen., Wilmington, for appellee.
Before CHRISTIE, C.J., and MOORE and HOLLAND, JJ.
*888 CHRISTIE, Chief Justice.
The defendant/appellant, Wallace A. Zimmerman ("Zimmerman"), was convicted of arson in the first degree, possession of a deadly weapon during the commission of a felony, possession of a destructive weapon, and criminal mischief. The Superior Court sentenced Zimmerman to consecutive terms of imprisonment totaling eight and one-half years for the first three offenses, to be followed by six months of probation for the *889 last offense. All four of the convictions arose from an incident in which a homemade pipe bomb was thrown into the home of the victim.
On appeal, Zimmerman contends that the trial court erred in (1) allowing testimony of prior bad acts by the defendant to come into evidence without a limiting instruction to the jury; (2) instructing the jury on accomplice liability although the prosecution made no mention of that theory during trial; (3) permitting the prosecution to make improper and prejudicial remarks to the jury during closing argument without remedial action; and (4) sentencing defendant for three separate charges stemming from the same offense and thus violating the double jeopardy clause of the fifth amendment.
We find that defendant's contentions are without merit. Therefore, we affirm the decision of the Superior Court but we remand the case to the Superior Court to rearrange the sentencing to conform to 11 Del.C. § 1447(c).
On September 16, 1986, a pipe bomb exploded on the second floor of the residence of Sistilio Popo ("Popo"). The appellant, Zimmerman, was arrested for throwing the bomb that caused the explosion into the victim's house.
In early 1986, Cindy Marta ("Marta") had been Popo's girlfriend. By July, 1986, however, Marta had begun to date the defendant. Popo had purchased an automobile for Marta when they were seeing each other. After Marta started dating Zimmerman, Popo attempted to have the car's title, which had been in both his and Marta's names, transferred to his name alone. Before he was able to accomplish this, however, Marta was able to have the title transferred to her name alone. The dispute over the car contributed to the hard feelings between Popo and Zimmerman. Popo testified that a few weeks before the bombing, Zimmerman had attempted to attack Popo with a crowbar. Popo moved out of the way and was not injured, but police were called as a result of the incident. In addition, Popo testified that his reputation as a police informant compounded the "bad blood" between himself and Zimmerman when Zimmerman's brother was arrested on drug charges.
At trial Popo testified that on September 16, 1986, he was in his house with his family, his girlfriend, and two other friends when he heard the sound of breaking glass on the second floor. Popo and his two friends ran out of the house to see who was responsible. When Popo got outside no one was in sight. At that time, the bomb exploded on the second floor. The blast, caused by a bomb fashioned from a piece of plumbing pipe filled with black powder, blew out two windows in Popo's bedroom. Although several people were still inside the house, no one was injured.
Edward Foraker ("Foraker"), a neighbor of Popo, testified that upon hearing the explosion, he went outside. He then saw two white males walking away from Popo's house. When they saw Foraker they started to jog. The two men got in a car of the same make as Zimmerman's and sped off without turning on the headlights.
At the time of the incident, one of Popo's friends was out driving with a companion. Immediately after the explosion, they drove onto the street where Popo lived. They both saw a car which was of the same color and make as the defendant's car being driven off. Both were sure that the person who was driving the car was Zimmerman.
James R. Hedrick ("Hedrick"), of the New Castle County Police Department, testified that he contacted Marta on the telephone after the incident. Marta told Hedrick that she had not seen Zimmerman all that day or evening. The police arrested Zimmerman the next day. At trial, both Marta and Zimmerman testified that Zimmerman had been with Marta at the time of the explosion.
The bomb which caused the explosion had been fashioned from a piece of pipe filled with black powder. A neighbor of Zimmerman's brother testified that in September, 1986, while Zimmerman was residing with his brother, she often heard loud explosions in a vacant lot behind a shed in which Zimmerman's brother stored pipe and other plumbing supplies.
*890 The jury in Superior Court found Zimmerman guilty of the various charges and the sentences listed above were imposed.
I.
Zimmerman contends that the trial court erred in allowing testimony relating to prior bad acts by the defendant. Defendant also contends that the failure of the court to provide a limiting instruction as to the use of evidence relating to the prior bad acts was unduly prejudicial.
During the trial, counsel did not object to the introduction of the evidence of defendant's prior bad acts. The evidence involved threats the defendant made to the victim with a crowbar. Under Supreme Court Rule 8[1] this issue is not properly before this Court and will not be considered unless plain error is found to exist. See Bowe v. State, Del.Supr., 514 A.2d 408, 411 (1986).
Evidence of prior bad acts by a defendant is not admissible as proof of a crime. Del.R.Evid. 404(a); Johnson v. State, Del.Supr., 311 A.2d 873, 874 (1973). However, Delaware Rule of Evidence 404(b) also provides that evidence of prior bad acts "may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." Del.R.Evid. 404(b); Diaz v. State, Del. Supr., 508 A.2d 861, 865 (1986). In this case the prosecution's use of prior bad acts comes within the scope of permissible use as outlined in Rule 404(b), since such evidence is relevant to defendant's motive. Under the circumstances the admission of this evidence did not constitute plain error, and a limiting instruction was not essential.
In addition, the defendant takes issue with hearsay testimony introduced during examination of Popo at trial over counsel's objection. The trial court properly ruled at that time that the testimony went to Popo's state of mind rather than to prove the truth of the matter asserted. This ruling of the trial court was correct.
II.
The defendant next contends that the trial court erred by instructing the jury as to accomplice liability. The defendant contends that it was inappropriate for the trial court to give a charge to the jury on this theory of liability because the prosecutor did not rely on it during the trial or request a jury charge on it.
The defendant did not object to the trial court's decision on accomplice liability nor to the supplemental instruction. Therefore, this issue may be reviewed only under a plain error standard as provided for by Supreme Court Rule 8.
The primary purpose of jury instructions is to define with substantial particularity the factual issues, and clearly to instruct the jury as to the principles of law which they are to apply in deciding the factual issues involved in the case before them. United States v. Anderton, 5th Cir., 629 F.2d 1044, 1048 (1980) (citing United States v. Gilbreath, 5th Cir., 452 F.2d 992, 994 (1971)). The parties are entitled to all instructions on the theories of the case, provided the instructions are timely requested, supported by evidence, and correctly state the law. United States v. Jerde, 8th Cir., 841 F.2d 818, 820 (1988). As a general rule, a party should submit specific written requests for jury instructions in order to present its contentions to the trial court and preserve these contentions for a possible appeal. Super.Ct. Crim.R. 30(a).
The instruction given in this case, however, was in response to a specific question posed to the court by the jury. It did not stem from a request from the defendant or from the State. On request of the jury after submission of the cause, a trial court has power in open court to give additional instructions. 76 Am.Jur. 2d Trial *891 § 1046 (1975). A trial court acts in its discretion when deciding to give the jury a supplemental instruction. Sheeran v. State, Del.Supr., 526 A.2d 886, 893 (1987).
During the trial, testimony had been presented that the defendant was seen fleeing the scene of the crime with another individual. Therefore, possible accomplice liability could have been anticipated. A trial court must give instructions to a jury as required by evidence and law whether the parties request the instruction or not. United States v. Cooper, 10th Cir., 812 F.2d 1283, 1286 (1987). See also Lovett v. State, Del.Supr. 516 A.2d 455, 468 (1986) cert. denied, 481 U.S. 1018, 107 S. Ct. 1898, 95 L. Ed. 2d 504 (1987) (holding that evidence presented at trial clearly justified the trial court's accomplice liability instruction and did not cause defendant prejudice or unfair surprise, even though details of accomplice liability were not disclosed in bill of particulars). Under all of these circumstances and in the absence of any showing of prejudice, the supplemental jury instruction on the theory of accomplice liability will not be deemed to be reversible error.
The defendant also contends that upon giving the supplemental instruction the trial court erred because it did not reiterate a unanimity instruction. This Court has held that a specific unanimity instruction is not required where a single defendant may be convicted as either a principal or an accomplice. Probst v. State, Del.Supr., 547 A.2d 114, 122 (1988) (holding that, in the absence of a specific request from defendant or other unusual circumstances, a general unanimity instruction is sufficient). We rule that the failure of the trial court to give a second unanimity instruction to accompany the accomplice instruction was not improper.
III.
Next, the defendant contends that the prosecutor improperly injected expressions of his own opinions during the closing argument. However, no objection to the prosecutor's closing argument was made at trial. "This Court has repeatedly emphasized the necessity of making timely objections to closing remarks by opposing counsel which are arguably improper." Michael v. State, Del.Supr., 529 A.2d 752, 762 (1987) (citing Hooks v. State, Del.Supr., 416 A.2d 189 (1980)). In general, "failure to object constitutes a waiver of defendant's right to raise the issue on appeal." Goddard v. State, Del.Supr., 382 A.2d 238, 242 (1977). Since defendant did not object to the remarks during the trial, this Court may not overturn the jury decision absent a showing that the remarks amounted to plain error. Id.; Supr.Ct. R. 8. The standard for determining plain error hinges on "whether the prosecutor's statements amounted to plain or fundamental error so as to `clearly deprive [defendant] of a substantial right, or which clearly show manifest injustice.'" Michael v. State, 529 A.2d at 762 (quoting Ward v. State, Del. Supr., 366 A.2d 1194, 1197 (1976)).
The defendant's contention is that the use of the word "I" by the prosecutor injected his personal opinions into the case and constituted such prejudice as to rise to the level of plain error. This Court has previously indicated that "arguments in the first person are extremely dangerous and should be assiduously avoided." Brokenbrough v. State, Del.Supr., 522 A.2d 851, 859 (1987) (per curiam). However, although the use of the first person is inappropriate, it does not per se constitute reversible error. Id.
In reviewing charges of improper prosecutorial remarks, the Court employs the three-prong test set out in the case of Hughes v. State, Del.Supr., 437 A.2d 559 (1981). In that opinion it was stated that "[t]he decisive factors are the closeness of the case, the centrality of the issue affected by the [alleged] error, and the steps taken to mitigate the effects of the error." Id. at 571 (quoting Dyson v. United States, D.C.App., 418 A.2d 127, 132 (1980)). Using this test, we find that the case was not close and there was ample evidence in the record to support the jury's verdict. We also find that the improper remarks by the prosecutor were not central to the case, *892 and we have noted that defendant did not request that any steps be taken to mitigate the effects of the error. We hold that under the circumstances the prosecutor's remarks do not constitute reversible error.
IV.
Finally, the defendant contends that separate convictions and sentences for three violations arising out of a single event constitute impermissible "multiple punishments" for the "same offense" and thus violate the double jeopardy clause of the fifth amendment
In this case, the defendant was convicted of arson in the first degree, possession of a deadly weapon during the commission of a felony, possessing a destructive weapon, and criminal mischief. The defendant contends that because the first three offenses arose from a single incident and because they all concerned the homemade bomb, he should be subject to sentencing for only one offense.
The United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), formulated the test to determine whether two convictions are the same offense for double jeopardy purposes. "A single act may be prosecuted as separate crimes and ... separately punished under different statutory provisions if each offense requires proof of an element that the other does not." See also State v. Skyers, Del.Supr., 560 A.2d 1052 (1989) (citing Jefferson v. State, Del. Supr., 543 A.2d 339 (1988) (ORDER)).
It has also been held that if "a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the `same' conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial." LeCompte v. State, Del. Supr., 516 A.2d 898, 901-02 (1986) (citing Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S. Ct. 673, 679, 74 L. Ed. 2d 535, 544 (1983) (footnote omitted)).
In this case, we address the arson and weapons crimes as they relate to each other, as well as the two weapons offenses as they relate to each other, independent of the crime of arson, to determine if there is a violation of the double jeopardy clause.
To prove arson first degree under 11 Del.C. § 803, the State must show that the defendant 1) intentionally damaged a building by starting a fire or causing an explosion, and 2) knew that another person, other than an accomplice, was present in the building.
To obtain a conviction on the charge of possession of a destructive weapon under 11 Del.C. § 1444, the State must prove that the defendant possessed certain proscribed items.[2]
To obtain a conviction of possession of a deadly weapon during the commission of a felony under 11 Del.C. § 1447, the State must prove that the defendant was in possession of a deadly weapon during the commission of a felony.
The arson and the weapons charges require different proofs and therefore constitute separate offenses which may be the subject of separate sentences. The destructive weapon provision is aimed at those who possess destructive instruments, and there is no requirement that the proscribed item be used. The charge of possession of a deadly weapon requires proof of separate felonious conduct, a requirement not present in any other charge brought against the defendant. The arson charge is result-oriented and requires, among other things, proof of a fire or explosion and intentional damage to a building. It does not, however, require proof that the accused used or possessed a destructive weapon or a deadly weapon.
*893 Separate sentencing under the two weapons offenses does not violate the double jeopardy clause. It is clear that the legislature intended cumulative punishments under both 11 Del.C. § 1444 and § 1447 because the two statutes work to prevent distinct evils. Section 1444 prohibits the general public from obtaining "especially dangerous and destructive weapons" because "[g]enerally, there is no legitimate reason why a citizen would be in possession of such weapons." Delaware Criminal Code with Commentary, Commentary on sec. 1444 at 464 (1973). Section 1447 is designed to discourage the accessibility of a deadly weapon during the commission of a felony and thus obviate the enhanced danger thereby posed to a victim. Mack v. State, Del.Supr., 312 A.2d 319, 321 (1973). It reflects a specific legislative intent to punish more severely those who commit felonies while in possession of a deadly weapon. The purpose of this provision is to deter such conduct and lessen the risk to victims. DeShields v. State, Del.Supr., 534 A.2d 630, 647 (1987); LeCompte v. State, Del.Supr., 516 A.2d 898, 902 (1986).
Since the legislature has defined the three offenses at issue as separate offenses with separate elements and has shown an intent to provide for separate sentencing, we find no double jeopardy. Under the circumstances the trial court did not err when it permitted convictions to go forward on four offenses and sentenced defendant on four separate charges.
* * *
The State draws attention to one issue that was not raised by the defendant. The Superior Court sentenced the defendant to three years of incarceration for the crime of possession of a deadly weapon during the commission of a felony, to be followed by four years of incarceration for the underlying felony of arson. However, 11 Del.C. § 1447(c) provides that a "person shall serve the sentence for the felony itself before beginning the sentence imposed for possession of a deadly weapon during such felony." Therefore, the convictions in the Superior Court are AFFIRMED, but the case is REMANDED to the Superior Court for the limited purpose of resentencing to conform to the statutory requirement.
NOTES
[1] Supreme Court Rule 8. Questions Which May be Raised on Appeal
Only questions fairly presented to the trial court may be presented for review; provided, however, that when the interests of justice so require, the Court may consider and determine any question not so presented.
[2] 11 Del.C. § 1444 states, in pertinent part, that:
A person is guilty of possessing a destructive weapon when he sells, transfers, buys, receives or has possession of a bomb, bombshell, firearm silencer, sawed-off shotgun, machine gun or any other firearm or weapon which is adaptable for use as a machine gun. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561551/ | 18 So. 3d 545 (2009)
MATHIS
v.
STATE.
Nos. 5D09-751, 5D09-752, 5D09-753.
District Court of Appeal of Florida, Fifth District.
September 29, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561563/ | 18 So. 3d 8 (2009)
Falando L. WILKINS, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-1281.
District Court of Appeal of Florida, Fourth District.
August 5, 2009.
Rehearing Denied October 22, 2009.
Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
GROSS, C.J.
We affirm appellant's convictions of dealing in stolen property and giving false verification of ownership to a pawnbroker. See §§ 812.019(1), 539.001(8), Fla. Stat. (2007). Various cleaning tools worth over $5,000 were stolen one night from the victim's business; they were pawned at 2:00 p.m. the next afternoon for $250. At trial, appellant said that he had bought the items at "a swap meet in Lake Worth" for $1,200 in cash. He offered no documentary proof of the purchase.
Along with the statutory presumption, there was sufficient evidence to create a jury question of whether appellant knew or should have known that the pawned items were stolen. See § 812.022(2) and (3), Fla. Stat. (2007).[1] Appellant pawned the items within hours of the theft. Cf. Bertone v. State, 870 So. 2d 923, 924 (Fla. 4th DCA 2004). His story of how he came into possession of the machines was not patently reasonable. Id.; see also Kerr v. State, 954 So. 2d 692, 694 (Fla. 4th DCA 2007) (where court wrote that "[w]hen a defendant's explanation is not indisputably reasonable and requires an assessment of credibility and other factors, the [statutory] presumption may not vanish entirely" after a defendant testifies). It is highly *9 unusual to purchase items for $1,200 in cash to be used within hours as security for a high interest, $250 loan.
On the remaining issue, we find that the victim's testimony that the pawned machines were stolen from his store renders the admission of the detective's hearsay testimony about ownership to be harmless error.
DAMOORGIAN and GERBER, JJ., concur.
NOTES
[1] Section 812.022(2) and (3) provide:
(2) [P]roof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.
(3) Proof of the purchase or sale of stolen property at a price substantially below the fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that the property had been stolen. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/732677/ | 104 F.3d 353
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.Elya PEKER, Plaintiff-Appellant,v.Arthur A. KAPLAN, Arthur A. Kaplan Co., Inc., Reid A. Rader,Galaxy of Graphics Ltd., Jewel InternationalCorporation, Defendants-Appellees.
No. 96-7554.
United States Court of Appeals, Second Circuit.
Nov. 27, 1996.
1
APPEARING FOR APPELLANT: Elya Peker, pro se.
2
APPEARING FOR APPELLEE: Kenneth R. Schachter, Silverberg Stonehill & Goldsmith, P.C., New York, N.Y.
3
Before CARDAMONE, LEVAL, Circuit Judges, and POOLER,* District Judge.
4
This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York and was argued.
5
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.
6
Elya Peker appeals from an order of the United States District Court for the Southern District of New York dismissing his cause without prejudice after Peker willfully failed to appear at three pretrial conferences.
7
Peker was given notice of three separate status conferences and repeatedly refused to appear. After the second missed conference, Judge Schwartz ordered Peker to appear and expressly warned that failure to do so could result in dismissal of his case. As Peker explained in several letters sent to the court, he refused to appear before Judge Schwartz because he wanted a different judge.1 After Peker's third failure to appear, Judge Schwartz ordered the case dismissed without prejudice "upon the Court's own motion and with the consent of the defendants."
8
A district court has the authority to dismiss an action for a plaintiff's willful failure to obey orders to appear before it. Fed.R.Civ.P. 41(b), 16(f), 37(b)(2)(C).2 A district court may dismiss an action sua sponte, see Fed.R.Civ.P. 16(f) and 37(b)(2)(C); Link v. Wabash Railroad Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89 (1962), and its dismissal is reviewed for abuse of discretion. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780 (1976); Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir.1995).
9
Given Peker's refusal to attend scheduled conferences despite warning as to the consequences of his conduct, we find no abuse of discretion in the trial court's dismissal of Peker's action. See, e.g., Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir.1994).
10
Peker contends that the district court's dismissal was, in effect, with prejudice since the statute of limitations has run on his claim. Assuming this is true, it makes no difference. The district court had authority to dismiss Peker's case with prejudice for failure to obey its order to appear. Fed. R. Civ. P. 37(b)(2)(C); 41(b); Valentine, 29 F.3d at 50. The district court did not abuse its discretion.
11
For the foregoing reasons, the decision of the district court is AFFIRMED.
*
United States District Judge for the Northern District of New York, sitting by designation
1
Peker sent a January 29, 1996, letter to Chief Judge Griesa asking him to transfer the action to a different judge. On February 26, 1996, Judge Griesa denied Peker's request
2
The order does not indicate the Rule pursuant to which Peker's case was dismissed | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1561572/ | 18 So. 3d 1251 (2009)
A.M.E., Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-4697.
District Court of Appeal of Florida, Second District.
October 9, 2009.
James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
DAVIS, Judge.
A.M.E. challenges the trial court's disposition order, adjudicating her delinquent on charges of burglary of an occupied dwelling and petit theft and committing her to a moderate risk facility until her nineteenth birthday. We reverse.
Two days after A.M.E. was alleged to have committed the burglary and petit theft, she appeared at a hearing with her mother. No counsel appeared on her behalf. At this hearing A.M.E. waived her right to counsel, signed a written waiver of counsel, and entered a guilty plea. A.M.E.'s mother also signed the written waiver. A.M.E. returned to court on a later date for her disposition hearing. At that hearing, the trial court did not renew the offer of counsel before adjudicating A.M.E. delinquent and ordering her placement.
Although the use of the waiver form and the trial court's abbreviated colloquy show an attempt to comply with Florida Rule of Juvenile Procedure 8.165, neither the inquiry conducted by the trial court nor the waiver form fully achieved that goal. See G.T. v. State, 948 So. 2d 900, 902 (Fla. 2d DCA 2007) (reversing on the basis of fundamental error where "although the trial court informed [juvenile] of his right to counsel, it failed to make a thorough inquiry into [juvenile's] comprehension of the offer of counsel as required by rule 8.165(b)(2)"); C.K. v. State, 909 So. 2d 602, 604 (Fla. 2d DCA 2005) (determining that *1252 the trial court committed fundamental error by, among other things, failing to "have [juvenile's] mother verify on the written waiver that [juvenile's] decision was discussed and appeared to be knowing and voluntary" as required by rule 8.165(b)(3)). Furthermore, rule 8.165(b)(5) requires that the trial court renew the offer of counsel before proceeding with the disposition hearing. C.K., 909 So.2d at 604. The State properly has conceded that the trial court erred by not following rule 8.165. Accordingly, we reverse the order adjudicating A.M.E. delinquent.
Despite its concession of error, the State points out that A.M.E. has now turned nineteen and may no longer be under the jurisdiction of the juvenile division of the trial court for the purposes of remand because the jurisdiction of the juvenile court terminates when the child reaches her nineteenth birthday. See § 985.0301(5)(a), Fla. Stat. (2008). Additionally, A.M.E. has fulfilled the requirements of the disposition order, i.e., commitment until her nineteenth birthday. Although we are satisfied that the circuit court has jurisdiction to accept the case on remand,[1] we recognize that any actions beyond vacating the original order may raise new issues regarding jurisdiction or other matters. As there is no way for this court to adequately anticipate these issues or address them at this time because they are not yet before us on this record, we make no further findings regarding the issues.
Accordingly, we reverse the adjudication of delinquency and the disposition order and remand the matter to the circuit court for further proceedings as determined necessary and appropriate.
Reversed and remanded.
VILLANTI and MORRIS, JJ., Concur.
NOTES
[1] See Cote v. State, 793 So. 2d 907, 911 (Fla. 2001) ("The circuit court has jurisdiction to hear both juvenile and felony cases."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561584/ | 18 So. 3d 95 (2009)
Joann BREITLING and Sam Breitling
v.
The CITY OF SHREVEPORT.
No. 2009-C-1330.
Supreme Court of Louisiana.
September 25, 2009.
Not considered; not timely filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561538/ | 129 Pa. Commw. 392 (1989)
565 A.2d 1232
CITY OF PHILADELPHIA, Appellant,
v.
FRATERNAL ORDER OF POLICE, LODGE NO. 5, Appellee.
Commonwealth Court of Pennsylvania.
Argued June 8, 1989.
Decided November 2, 1989.
Reargument Denied January 12, 1990.
*393 Maria L. Petrillo, Chief Asst. City Sol., with her, Ralph J. Teti, Chief Deputy City Sol., and Richard C. McNeill, Jr., Philadelphia, for appellant.
Anthony J. Molloy, Jr., Mozenter, Molloy & Durst, Philadelphia, for appellee.
Before DOYLE and PALLADINO, JJ., and NARICK, Senior Judge.
DOYLE, Judge.
Before us for review is an order of the Court of Common Pleas of Philadelphia County which upheld an arbitrator's award directing that two members of the Philadelphia Police Department, John Wilson and David Grove, (Grievants), who had been dismissed from their positions, be subject only to suspensions of thirty days and ten days respectively.
The relevant facts are as follows. On May 28, 1987, then Police Commissioner Kevin M. Tucker dismissed Grievants from their positions on a variety of charges including the offense of conduct unbecoming an officer. The various charges related to Grievants' refusals to turn over arrest books to the Philadelphia Police Department (Department) and their failure to cooperate with the Department in an investigation being conducted by the Department's Ethics Accountability Division.
Pursuant to the collective bargaining agreement between the City of Philadelphia (City) and the Fraternal Order of Police Lodge No. 5 (FOP), Grievants filed grievances over the dismissals. The grievances were submitted to arbitration and the arbitrator sustained the grievances only in *394 part, finding that Grievants had violated only one section of the Disciplinary Code (Code) (failure to cooperate in a Departmental investigation) and specifically rejecting charges that Grievants had violated other sections of the Code. Accordingly, he reduced Grievant Wilson's dismissal to a thirty-day suspension and Grievant Grove's dismissal to a ten-day suspension.
Thereafter, the City filed a petition to vacate the arbitrator's award in the common pleas court asserting that the arbitrator had exceeded his jurisdiction when he determined that Grievants were guilty of some of the charges but, nonetheless, ordered reinstatement. The trial court denied the City's petition to vacate and this appeal followed.
Initially, we must determine the appropriate scope of review. The law regarding judicial review of an arbitration award has not been without its confusion. Essentially, there are three substantive groups which must be distinguished. Under the Public Employe Relations Act[1] (Act 195) there are public employees who are given a right to strike. There are also, however, under Act 195 a small segment of employees who are not given that right. We shall refer for purposes of this discussion to those individuals as Act 195 Special Employees. The Act 195 Special Employees include prison guards and court-appointed employees. See Section 805 of Act 195, 43 P.S. § 1101.805. Finally, there are those individuals (police and fire personnel) whose arbitration rights arise from the Act of June 24, 1968, P.L. 237, 43 P.S. §§ 217.1 through 217.10 (Act 111). Further, for each of the three categories of public employees there are two types of arbitration interest and grievance. And, the appropriate scope of review is dependent upon which group of employees is under discussion and what type of arbitration is involved.
INTEREST ARBITRATION
Our Supreme Court has indicated that where an interest arbitration award arises under Act 111 a "narrow *395 certiorari" review is appropriate. Appeal of Upper Providence Police Delaware County Lodge #27 Fraternal Order of Police, 514 Pa. 501, 526 A.2d 315 (1987). Under this standard the reviewing court must limit its inquiry to questions concerning the jurisdiction of the arbitrators, the regularity of the proceedings, an excess in the exercise of the arbitrators' powers, and constitutional questions. Id. This narrow scope of review is based upon the recognition that Act 111 employees have no right to strike, the consequent public policy concern that their disputes be quickly settled and appeals discouraged, and more importantly upon Section 7(a) of Act 111, 43 P.S. § 217.7(a), which pertinently directs: "The determination of the majority of the board of arbitration . . . shall be final on the issue or issues in dispute and shall be binding upon the public employer and the policemen or firemen involved. . . . No appeal therefrom shall be allowed to any court." 43 P.S. § 217.7(a). See also Washington Arbitration Case, 436 Pa. 168, 259 A.2d 437 (1969). Interpreting this statutory restriction on judicial review of an arbitration panel and pointing out that an arbitration panel is neither a court nor an administrative agency, our Supreme Court, citing Keystone Raceway Corp. v. State Harness Racing Commission, 405 Pa. 1, 5-6, 173 A.2d 97, 99 (1961), stated:
If an appeal is prohibited by an Act, or the decision of the Agency is stated to be final or conclusive, the law is well settled that an appeal will lie to the Courts in the nature of a narrow certiorari and this Court will review only (1) the question of jurisdiction; (2) the regularity of the proceedings before the agency; (3) questions of excess in exercise of powers; and (4) constitutional questions. . . .
Washington Arbitration Case, 436 Pa. at 174, 259 A.2d at 441.
As to the question of what scope of review applies to Act 195 and Act 195 Special Employees under an interest arbitration award, it appears that that inquiry has never been judicially determined and, of course, is not an issue now before us.
*396 GRIEVANCE ARBITRATION
When examining a grievance arbitration case under Act 195 it is clear that for most employees the proper inquiry is whether the award draws its essence from the collective bargaining agreement, Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA), 473 Pa. 576, 375 A.2d 1267 (1977), and that standard is akin to the one set forth in Section 7302(d)(2) of the Uniform Arbitration Act, 42 Pa. C.S. § 7302(d)(2)(UAA). Under this Section a reviewing court is permitted to modify or correct an arbitration award only where "the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict." Community College. Community College relied upon United Steelworkers of America v. Enterprise Wheel and Car Corp, 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960), wherein the High Court observed:
[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may, of course, look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of award.
Id. at 597, 80 S.Ct. at 1361. Our state Supreme Court has made it clear that the essence test is essentially the same as the judgment n.o.v. standard under the UAA, Community College,[2] when it wrote, "[w]hile introduction of the `n.o.v.' concept into the field of arbitration may have been a new departure, it is hardly a radical change, nor does it dictate that a much closer or different scrutiny of an arbitration award will be available than under the [essence test]." Id., *397 473 Pa. at 589-90, 375 A.2d at 1273. The Court has further opined that subsumed within the essence test standard of review is a requirement that the arbitrator's award cannot be manifestly unreasonable. Pennsylvania Liquor Control Board v. Independent State Stores Union, 520 Pa. 266, 553 A.2d 948 (1989) (ISSU).
Cases involving Act 195 Special Employees are subject to the same scope of review. County of Centre v. Musser, 519 Pa. 380, 548 A.2d 1194 (1988); Philadelphia Housing Authority v. Union of Security Officers #1, 500 Pa. 213, 455 A.2d 625 (1983).
The instant case, of course, is a grievance proceeding arising under Act 111 and the appropriate scope of review here is narrow certiorari, not a review under the UAA. Allegheny County Police Association v. County of Allegheny, 100 Pa. Commw. 327, 514 A.2d 964 (1986); Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 120 Pa. Commw. 610, 549 A.2d 1014 (1988) (FOP 5);[3]City of Philadelphia v. Fraternal Order of Police Lodge No. 5, ___ Pa. Commonwealth Ct. ___, 558 A.2d 163 (1989) (City of Philadelphia).[4] In summary, the following diagram, we believe, represents the current state of the law on the scope of review over arbitration awards:
Review Standard
Grievance Interest
Arbitration Arbitration
Act 195 UAA (Community Not Judicially
College Determined
Act 195-Special UAA (Musser; Not Judicially
Philadelphia Housing) Determined
Act 111 Narrow Certiorari Narrow Certiorari
(Allegheny County) (Upper Providence)
ARBITRATOR'S AUTHORITY
Keeping the appropriate standard of review in mind, we must now decide whether the arbitrator's award should *398 be set aside on the basis that the arbitrator acted in excess of his powers because he modified the penalty imposed upon Grievants. Our review of the collective bargaining agreement reveals that nowhere therein is the question of the arbitrator's ability to substitute a penalty addressed.
Judge Palladino, in the City of Philadelphia case, in construing the identical contract provisions to those here under review and in considering the question of whether an arbitrator could change a dismissal to a suspension, wrote:
The arbitrator essentially determined that mitigating factors as well as procedural errors could be considered in evaluating whether "just cause" for Grievant's discharge did or did not exist. Such a definition or standard of "just cause" amounts to, at most, a mere error of law. After careful review of the arbitrator's award in light of the above-referenced contract provisions as well as our limited scope of review of Act 111 arbitration cases, we cannot conclude that the arbitrator so exceeded the scope of the grievance submitted to him or the authority granted to him as to warrant reversal in this matter. Upper Providence Township.
Id. at ___, 558 A.2d at 165 (emphasis added). Accord Upper Providence. Thus, in City of Philadelphia, Judge Palladino concluded that under Act 111 if an arbitrator substitutes a suspension for a dismissal, such action, while perhaps an error of law, and therefore subject to judicial review and reversal under the UAA, is beyond this Court's power to correct because of our limited scope of review where the standard is narrow certiorari.[5]
Although we deem City of Philadelphia to be controlling here, we note that in Benvignati v. Civil Service Commission, *399 106 Pa. Commw. 643, 527 A.2d 1074, petition for allowance of appeal denied, 517 Pa. 600, 535 A.2d 1058 (1987), where the issue concerned modification of a disciplinary penalty imposed upon Philadelphia police officers and the adjudicatory body was the Philadelphia Civil Service Commission, the analysis was contrary to that employed here. The reason, however, for the disparate analyses can be explained by the difference in scope of review. Appeals from the Philadelphia Civil Service Commission are governed by Section 754 of the Local Agency Law, 2 Pa. C.S. § 754. That scope of review permits this Court to reverse on the basis of error of law, a result which we opined in City of Philadelphia we could not reach because our scope of review there was in the nature of narrow certiorari over the arbitrator's decision.
The rationale for Benvignati had previously been expressed in Omelchenko v. Housing Authority of the County of Lebanon, 58 Pa. Commw. 494, 428 A.2d 274 (1981), a case involving an appeal from the State Civil Service Commission[6] where the scope of review also includes error of law.[7] In Omelchenko the Court wrote:
`[T]he Commission has no authority to order a suspension in lieu of a dismissal.' If the charges on which a removal is based relate to the merits of the employee's work performance and if the charges are supported by the Commission's own findings, the Commission must uphold the appointing authority's disciplinary action. Only if the charges are not made out, may the Commission modify the appointing authority's action by reinstating the employee with or without backpay.
The Civil Service Commission's duty in this case was to make the record, find the facts and determine as a matter of law whether its findings require the conclusion that the employee was removed for just cause. Having, as it *400 did, made findings that Ms. Omelchenko had done the things charged, the Commission's duty was simply to apply the law, that is, to decide whether the charges and the findings describe matters which are just cause for removal.
Id., 58 Pa.Commonwealth Ct. at 497, 428 A.2d at 275-76 (citations omitted and emphasis added).[8] This reasoning was adopted in Benvignati.[9]
Having touched upon civil service case law, we feel obligated to point out that an argument could be made that the substantive law to be applied to this case should be civil service law, i.e., the Benvignati rule rather than Act 111 law, i.e., the City of Philadelphia rule. This argument would be premised upon the fact that the following language appears in the collective bargaining agreement. "No employee shall be disciplined or discharged except as is consistent with the Home Rule Charter and the Regulations of the Civil Service Commission." Additionally, under a section marked "Scope of Agreement" the collective bargaining agreement provides:
The parties have included herein certain provisions that have arisen by virtue of Act 111 awards in negotiations and also provisions contained in current civil service regulations that were not mandated by Act 111 awards or negotiations. The inclusion of these Civil Service Regulations *401 is for the purpose of providing a more complete and lucid document and is not intended to abridge in any way the right of the City under the Home Rule Charter to manage its employees and to effect changes in personnel matters, including the right of the Civil Service Commission to amend any Civil Service Regulations consistent with the City's obligations under the requirement of the Act 111. (Emphasis added.)[[10]]
But even if civil service law controls the substantive law, it does not control a court's scope of review. The parties have elected to pursue an arbitration route under Act 111. They are thus locked into the narrow certiorari scope of review. This fact is what produces what might otherwise be viewed as inconsistent caselaw. Phrased differently, impermissible penalty substitution may be "contrary to law" and grounds for reversal under the UAA, the Administrative Agency Law and the Local Agency Law, but it is not an act in excess of the arbitrator's powers which would warrant reversal under the narrow certiorari standard. See City of Philadelphia.
As the preceding analysis demonstrates, the result in a particular case may well depend upon the forum in which one chooses to litigate and the practicing bar should take note.
Based upon the foregoing discussion, the order of the trial court is affirmed.
ORDER
NOW, November 2, 1989, the order of the Court of Common Pleas of Philadelphia in the above-captioned matter is hereby affirmed.
NOTES
[1] Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101 through 1101.2301.
[2] Although Community College was based upon the predecessor to the current UAA, see the Act of April 25, 1927, P.L. 381, formerly 5 P.S. §§ 161-179, repealed by Section 501(c) of the JARA Continuation Act of 1980, Act of October 5, 1980, P.L. 693, the two Acts are the same for our purposes.
[3] While we mentioned the essence test scope of review in FOP 5, it is clear that we actually applied the narrow certiorari standard in considering the appeal.
[4] See supra n. 3.
[5] We note that in Judge Palladino's footnote 6 in City of Philadelphia she indicates that Musser, Philadelphia Housing and ISSU did not involve Act 111 employees. They did in fact involve Act 195 Special employees (Musser, Philadelphia Housing) and Act 195 employees (ISSU) and, hence, the UAA standard of review was correctly applied in those cases.
[6] The county came within the province of the State Civil Service Act pursuant to a contract agreement. See 4 Pa.Code § 93.8.
[7] The State Civil Service Commission's adjudications are reviewed under Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
[8] We are aware that substituting a suspension for a dismissal on the one hand, and reinstating without full backpay on the other hand may appear to be the same thing. Nonetheless, the former is not permitted while the latter is inasmuch as dismissal (not individual charges) "shall be for just cause only." Section 7.7-303 of the Philadelphia Home Rule Charter, 351 Pa.Code, 7.7-303. Accord Section 807 of the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.807. See also Omelchenko; Benvignati. There may be an important distinction where progressive discipline is called for. We note that we have held that reinstatement without backpay is not an impermissible suspension. See Corley v. Department of Public Welfare, 93 Pa. Commw. 639, 502 A.2d 768 (1985) (state civil service case).
[9] We are aware that in Harris Appeal, 91 Pa. Commw. 47, 496 A.2d 891 (1985), we used language which could be viewed as allowing the Philadelphia Civil Service Commission to substitute a suspension for a dismissal. Close reading of that case, however, will demonstrate that what we affirmed, in actuality, was a partial denial of backpay.
[10] Our review of Section 7.7-201 of the Philadelphia Home Rule Charter, pertaining to appeal to the Philadelphia Civil Service Commission, reveals that the question of whether the Commission can substitute a suspension for a dismissal is not therein addressed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561616/ | 18 So. 3d 530 (2009)
VILLANUEVA
v.
STATE.
No. SC09-1599.
Supreme Court of Florida.
September 3, 2009.
Decision without published opinion Review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561633/ | 18 So. 3d 540 (2009)
WARE
v.
STATE.
No. 2D09-2122.
District Court of Appeal of Florida, Second District.
July 21, 2009.
Decision without published opinion Petition denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858156/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-288-CR
NO. 3-93-289-CR
NO. 3-93-290-CR
NO. 3-93-291-CR
AND
NO. 3-93-292-CR
SHARON MELISSA AIROLDI,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
NOS. 387,139; 387,140; 387,141; 387,142; & 387,143
HONORABLE STEVE RUSSELL, JUDGE PRESIDING
PER CURIAM
In each of these causes, appellant was convicted in municipal court of failing to
keep her property free of objectionable matter. (1) Austin, Tex., Code § 6-9-26 (1981). She
appealed the convictions to the county court at law. Tex. Gov't Code Ann. § 30.332 (West
1988). That court affirmed the judgments of conviction, and appeals to this Court followed. Tex.
Gov't Code Ann. § 30.344 (West 1988).
At this Court's request, the parties submitted briefs addressing the question whether
appellant perfected her appeals to the county court at law. Specifically, the parties were asked
to discuss whether appellant's motion for new trial was filed timely and whether the municipal
court was authorized to extend the time for filing the motion for new trial after the deadline for
filing the motion had passed.
To appeal to the county court at law from an Austin municipal court of record, the
defendant must file a written motion for new trial no later than the tenth day after the municipal
court judgment is rendered. Gov't Code § 30.332(c). The municipal court may for good cause
extend the time for filing the motion, but the extension may not exceed ninety days from the
original filing deadline. Id. In these causes, the judgments were rendered by the municipal court
on July 29, 1992. No motion for new trial was filed by August 8, 1992, the original deadline.
On September 17, 1992, appellant filed a motion for extension of time to file motion for new trial.
On October 18, the motion was granted and on October 26 (seventy-nine days after the original
deadline), the motion for new trial was filed. The municipal court overruled the motion on
October 31, 1992, and appellant filed her notices of appeal within ten days thereafter. Gov't Code
§ 30.332(d).
Neither section 30.332(c) nor any other statute or rule specifies when a motion for
extension of time to file motion for new trial must be filed in the municipal court. In support of
her contention that the municipal court was authorized to extend the time for filing under the
circumstances presented, appellant refers us to an opinion of the Court of Criminal Appeals.
Clopton v. State, 563 S.W.2d 930 (Tex. Crim. App. 1978). Clopton involved the application of
former article 40.05 of the Code of Criminal Procedure. Code of Criminal Procedure, 59th Leg.,
R.S., ch. 722, § 1, art. 40.05, 2 1965 Tex. Gen. Laws 317, 477 (Tex. Code Crim. Proc. Ann.
art. 40.05, since amended and repealed). That statute, like section 30.332(c), prescribed a time
limit for filing a motion for new trial subject to extension for good cause by the trial court, but
did not specify when the motion for extension of time was to be filed. In Clopton, the defendant
moved for an extension of time to file a motion for new trial after the deadline for filing had
passed, indeed after his original motion for new trial had been overruled. The trial court granted
the motion for extension of time, and considered and overruled the defendant's subsequently filed
motion for new trial. The Court of Criminal Appeals held that the actions of the trial court should
be accorded a presumption of regularity and that the appeal was properly before them.
Section 30.332(c) provides that the time for filing a motion for new trial in the
municipal court may be extended for no more than ninety days beyond the filing date specified
by the statute. In these causes, the extension of time was requested and granted, and the motion
for new trial was filed, within ninety days of the original deadline. In the order granting the
motion for extension of time, the municipal court found that there was good cause for the
extension. Guided by the example of the Court of Criminal Appeals when confronted with an
analogous situation, we will presume that the actions of the municipal court were regular. We
therefore conclude that appellant's appeals to the county court at law were properly perfected, and
these causes are properly before us.
In points of error one and two, appellant contends her double jeopardy claims were
erroneously overruled. In point one, appellant argues that the municipal court should have
granted her special plea of prior acquittal. In point two, appellant asserts that the State was
collaterally estopped from pursuing these prosecutions. Under both points of error, appellant
urges that these prosecutions were barred by her previous acquittal in municipal court cause
number 2,027,551, in which, according to appellant, she was prosecuted for the same offense.
The record in cause number 2,027,551 is not before us. The only evidence
concerning this cause in the record is the testimony of appellant's friend James Logan, who
testified that on November 16, 1990, appellant was tried on "similar complaints regarding this
material" in her front yard and found not guilty by the court. Logan testified that the condition
of the property had not changed since that time.
A finding that appellant was not guilty of failing to keep her property free of
objectionable matter on November 16, 1990, does not, in itself, bar her prosecution for failing
to keep her property free of objectionable matter on subsequent dates. Further, the record does
not establish that an issue of ultimate fact in the present causes was determined against the State
at the earlier trial. Ashe v. Swenson, 397 U.S. 436 (1970). To decide a claim of collateral
estoppel when the previous judgment is based on a general verdict, the record of the prior
proceeding must be examined, taking into consideration the pleadings, evidence, charge, and other
relevant matters. Id. at 444. None of that information is in the record, and Logan's testimony
is not an adequate substitute. Even if Logan's testimony was sufficient to raise a fact issue as to
prior jeopardy, no jury instruction was requested or given. Tex. Code Crim. Proc. Ann. art.
27.02 (West 1989). Points of error one and two are overruled.
In her remaining points of error, appellant contends the municipal ordinance in
question is unconstitutionally vague, and that she is the victim of selective enforcement. The
ordinance provides, in pertinent part, that "[i]t shall be unlawful for an owner of any lot or parcel
of ground within this city to fail to keep the property owned by him free from . . . rubbish,
garbage, brush, trash or any other objectionable, unsightly, or unsanitary matter of whatsoever
nature." Austin, Tex., Code § 6-9-26 (1981). Appellant complains that terms such as
"objectionable" and "unsightly" are not defined in the ordinance, that the ordinance is given
varying interpretations and applications by the city sanitarians charged with its enforcement, and
she was not given fair notice of what she must do to comply with the ordinance.
In analyzing a statute for vagueness when no First Amendment rights are involved,
we need determine only if the statute is impermissibly vague as applied to the challenging party's
specific conduct. Arnold v. State, 853 S.W.2d 543, 546 (Tex. Crim. App. 1993). Accordingly,
it is incumbent on appellant to show that in its operation, the ordinance is unconstitutional as
applied to her in her situation. Bynum v. State, 767 S.W.2d 769, 774 (Tex. Crim. App. 1989).
Appellant testified that in August 1987, she hired a contractor to remodel her house
in Austin. The job required extensive demolition of the existing structure, and over the next
twelve months the contractor removed portions of the inner and outer walls and the roof,
particularly from the kitchen and bathroom. As a result of this work, used lumber, insulation
material, pipe, and metal turbine vents, among other things, were piled in appellant's front yard.
In August 1988, a dispute arose between appellant and the contractor, and all work stopped on
the house. As of the time of trial in July 1992, none of this material had been removed from the
lot.
Three city sanitarians testified to their inspections of appellant's property in
response to complaints from neighbors. Their descriptions of what they found were similar. One
of them, Susan Spire, testified that she saw "stacks of lumber, building materials, old, rotting
building material, and some metal pipes, metal parts." Spire testified that the entire front lawn
of the property was covered with three to four feet of debris.
The ordinance is not unconstitutionally vague merely because it does not define
certain of its terms. Id. Although the three sanitarians offered slightly different interpretations
of such words as "unsightly" and "objectionable," each agreed that the condition of appellant's
property violated the ordinance. Appellant testified that she was given conflicting advice by the
sanitarians as to how she could bring her property into compliance with the ordinance, but she
also testified that she made no effort to clean the property or otherwise bring herself into
compliance. We conclude that the ordinance gives a person of average intelligence fair notice that
leaving three to four feet of construction debris on a residential lot for four years is forbidden, and
clearly proscribes appellant's admitted conduct.
We also conclude that appellant has not demonstrated that she is the victim of
arbitrary, selective enforcement. Appellant refers to testimony concerning what she calls
"unofficial variances" from the ordinance. In the testimony to which appellant refers, the
sanitarians stated that they do not cite property owners for violations of the ordinance if the lot
is an active construction site, or until after the owner has been given a reasonable period of time
to clear his property. These exceptions to the enforcement of the ordinance do not apply to
appellant. It was appellant's testimony that there had been no construction activity on her lot for
four years, and that she had taken no steps to clear her property of the offending debris. There
is no evidence that the ordinance has not been enforced against other persons similarly situated
to appellant. Points of error three, four, five, and six are overruled.
The judgments of the county court at law are affirmed.
Before Justices Powers, Jones and Kidd
Affirmed on All Causes
Filed: November 3, 1993
Do Not Publish
1. Two of the complaints alleged that appellant failed to keep her property free of "stagnant
water, weeds, tall grass, rubbish, garbage, brush, trash or any other objectionable, unsightly or
unsanitary matter of whatsoever nature, to-wit: building debris, used lumber, rubbish, pieces of
metal and junk." A third complaint omitted "used lumber" from the list of objectionable matter.
Two other complaints described the objectionable matter as "building debris, lumber, building
material and pipes." These offenses were alleged to have occurred on January 15, February 15,
July 25, and December 13, 1991, and on June 12, 1992. The causes were consolidated for trial
before a single jury. After finding appellant guilty in each cause, the jury assessed fines ranging
from $200 to $2000. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8304507/ | Mb. Chief Justice Dyeb
delivered the opinion of the Court.
This case presents the issue of whether a bill introduced into the Legislature is required to contain more than the title at the time it passes first and second readings in order to comply with Article 2, Section 18, of the Constitution of the State of Tennessee.
On February 4, 1970, Senate Bill No. 1738 was introduced, containing only a title in words and figures as follows:
Senate Bill No. 1738 By Ayres
An Act to amend Tennessee Code Annotated, Section 39-2017 relating to lotteries and the penalty for engaging therein.
*666On February 4, 1970, tbis bill, as introduced, passed first rea,ding; passed second reading on February 5,1970, and was referred to the Senate Judiciary Committee. On February 10, 1970, the Committee reported out this bill, as introduced, recommending its passage. This bill, as introduced, was placed on the Senate calendar for February 12, 1970', where, when called up for action on third and final reading, it was amended to add after the title the following:
Be it Enacted by the General Assembly of the State of Tennessee:
Section 1. Section 39-2017, Tennessee Code Annotated, is amended by adding to the section the following:
“The organization of any chain letter club, pyramid club, or other group organized or brought together under any plan or device whereby fees or dues or anything of material value to be paid or given by members thereof are to be paid or given to any other member thereof, which plan or device includes any provision for the increase in such membership through a chain process of new members securing other new members and thereby advancing themselves in the group to a position where such members in turn receive fees, dues or things of material value from other members, is hereby declared to be a lottery, and whoever shall participate in any such lottery by becoming a member of, or affiliating with, any such group or organization or who shall solicit any person for membership or affiliation in any such group or organization shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of one thousand dollars ($1,000), or by imprisonment in the county jail for a period of three months/’
*667Section 2. This act shall take effect on becoming a law, the public welfare requiring it.
After adoption -of the above amendment, the Senate passed this bill on third and final reading, transmitting same to the House of Bepresentatives. The House amended this bill as passed by the Senate and upon amendment passed this bill on third and final reading. This bill as passed by the House was transmitted to the Senate, where, upon motion, the Senate concurred in the House amendment. This bill, signed by the Speakers of both Houses, approved by the -Governor, has been designated as Chapter 510, Public Acts of 1970.
We have not detailed all the actions- taken on this- bill by the House since if this bill was not constitutionally passed by the Senate the action taken by the House is immaterial.
The provisions of the Constitution of Tennessee pertinent to the issue here are Sections 17 and 18 of Article 2, which read as follows:
Sec. 17. Origin and frame of bills. — Bills- may originate in either House; but may be amended, altered or rejected by the other. No bill shall become a law which embraces more than one subject, that subject to be expressed in the title. All acts- which repeal, revive or amend former laws, -shall recite in their caption, or otherwise, the title- or substance of the law repealed, revived or amended.
Sec. 18. Passage of bills. — Every bill shall be read once, on three different days, and be passed each time in the House where it originated, before transmission to the other. No bill shall become a law, until it shall *668have been read and passed, on three different days in each house, and shall have received, on its final passage in each house, the assent of a majority of the members, to which that house shall be entitled under this constitution; and shall have been signed by the respective speakers in open session, the fact of such signing to be noted, on the Journal; and shall have received the approval of the Governor, or shall have been otherwise passed under the provisions of this constitution.
Section 18 requires that “Every bill shall be read once, on three different days, and be passed each time in the House where it originated * * which require^ ment is mandatory. Home Telegraph Co. v. Nashville, 118 Tenn. 1, 101 S.W. 770 (1906). Senate Bill No. 1738 was read and passed in the Senate on three different days. The question then is: Was Senate Bill No. 1738 at the time it passed first and second readings in the Senate (when it contained only a title) a “bill” as this word is used in the first sentence of Section 18? If it were not such a “bill” then it has not been read and passed in the Senate on three different days and is invalid.
We have not been cited, nor by research found, a case directly in point on the issue here.
The cases of Erwin v. State, 116 Tenn. 71, 93 S.W. 73 (1905), and State ex rel. Pitts v. Nashville Baseball Club, 127 Tenn. 292, 154 S.W. 1151 (1912), dealt with alleged errors regarding the title of certain legislative acts and while the decisions in these cases are not directly in point on the issue in the case at bar, we do think some of the language used by the Court is pertinent. The language used in these cases was first used in the Erwin, case and *669later copied with approval in State ex rel. Pitts v. Nashville Baseball Club, supra. This language is as follows:
“Every hill has two parts, the title and the body. The title must contain the subject of the proposed legislation, and that subject must be single. This was intended to serve a two-fold purpose. The subject must be expressed in the title, so that the members of the Legislature may have their attention drawn directly to the matter about which they are to concern themselves in the discharge of their legislative duties. A second purpose is that the people of the State may-know what their representatives, are doing, and may interpose, if they choose, by petition or remonstrance. The title must be single, to prevent omnibus legislation and logrolling.” 127 Tenn. at 300, 154 S.W. at 1153.
We think the two purposes served by the title as set out in State ex rel. Pitts likewise apply to the body of a bill. When the title of a bill calls attention to a legislator or the public generally to the subject matter of the proposed legislation, 'and the legislator or the public generally looks to see just what is proposed in regard to this subject matter only to find beneath the title a blank sheet of paper, then the question arises just what purpose is the title serving.
The statement above in State ex rel. Pitts that “Every bill has two parts, the title and the body” is supported by the language of Sections 17 and 18 of Article 2, of the Constitution of Tennessee. It is insisted that this statement standing alone is not accurate as a bill in final form is also required to have an enacting clause under Section 20, Article 2, which would be a third part. This argument is in error for two reasons. First, this state*670ment is to be read in conjunction with the language immediately following that copied above in this opinion. Second, the Constitution does not divide a bill into “parts. ’ ’ This is the language of the Court in an opinion dealing with alleged error in the title. This statement is not an attempt on the part of the Court to designate just what a bill in final form will have to contain. We consider the Court, by this statement, meant a bill when introduced in the Legislature would contain at a minimum a “title” and other language designated as the “body” by which language a legislator or the public generally could be informed on just what the law relating to the subject matter would be if this bill should be finally enacted as a statute.
In argument to sustain the validity of the statute in question our attention is called to the fact on third and final reading a bill can be amended to any extent, even to striking the body of the bill and substituting the amendment therefor so long as the amendment is germane to and within the scope of the title. Southern Ry. Railroad Co. v. Memphis, 126 Tenn. 267, 148 S.W. 662 (1912); Forrester v. City of Memphis, 159 Tenn. 16, 15 S.W.2d 739 (1929). We agree this statement is correct and such procedure is authorized by Section 17, Article 2, of the Constitution of Tennessee. We do not agree such is either controlling or persuasive on the issue here.
It has been further called to our attention there is a line of cases holding that when a bill has passed both Houses of the Legislature, signed by the Speakers, approved by the Governor, and published, then every reasonable presumption and inference will be indulged in favor of the regularity of its passage unless the Journals furnish affirmative proof to the contrary. State ex rel. *671Thompson v. Davis, 146 Tenn. 287, 240 S.W. 762 (1922). In the case at bar the Senate Journal affirmatively reflects that when Senate Bill No. 1738 passed the Senate on first and second rea,dings, it contained only a title. The holding in State ex rel Thompson and cases therein cited are not applicable to the case at bar.
It results and we so hold a “bill” introduced in the Legislature containing only a title is not a “bill” within the meaning of this word as used in the first sentence of Section 18, Article 2, of the Constitution of Tennessee.
The judgment of the chancellor holding Chapter 510, Public Acts of 1970 to be invalid is affirmed.
Chattht, CresoN, Humphreys and McCahless, Justices, concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1561668/ | 18 So. 3d 546 (2009)
ROBERTS
v.
STATE.
No. 5D08-3142.
District Court of Appeal of Florida, Fifth District.
September 29, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563386/ | 558 S.W.2d 88 (1977)
Lillie VALDEZ, Appellant,
v.
Olga RAMIREZ and Tomas Valdez, Appellees.
No. 15790.
Court of Civil Appeals of Texas, San Antonio.
November 2, 1977.
Rehearing Denied November 30, 1977.
James M. Heidelberg, San Antonio, for appellant.
Kirk Patterson, Mitchell, Stewart & Hemmi, San Antonio, for appellees.
KLINGEMAN, Justice.
This suit involves a division of retirement benefits under the U.S. Civil Service Retirement Act, 5 U.S.C.A. § 8331, et seq. (1967). Lillie Valdez appeals from a judgment in the District Court of Bexar County, Texas awarding appellees, Olga Ramirez and Tomas Valdez, Jr., the heirs-at-law of Tomas M. Valdez, Sr., deceased, approximately a one-half interest in civil service retirement benefits payable to Lillie Valdez after her retirement from civil service employment.
Lillie Valdez began working for civil service shortly prior to her marriage to Tomas M. Valdez, Sr., and at the time of her retirement had worked 352 months. For 340 of these months she was married to Tomas M. Valdez. Tomas M. Valdez, Sr. died intestate. Lillie Valdez was not the natural mother of appellees and appellees were children of Valdez, Sr. by a prior marriage. The District Court entered judgment October 14, 1976 ordering appellant (1) to pay appellees one-half of 340/352 of the retirement benefits received up to that date; (2) to pay appellees one-half of 340/352 of the retirement benefits to be received after October 14, 1976. The trial court *89 made extensive findings of fact and conclusions of law.[1]
Appellant asserted in the trial court and here maintains that: (1) the retirement pay is a defeasible interest, contingent upon the lives of Lillie Valdez and Tomas M. Valdez, Sr., and the death of Valdez, Sr. terminated any interest that he or his children had with respect to retirement pay; (2) appellees are not entitled to any of the retirement pay because federal statutes provide these retirement benefits are not assignable or subject to legal process; (3) at the time of her retirement Lillie elected to provide survivorship benefits to her husband, which constituted a partition of any community interests that her husband might have had with regard to retirement benefits. Lillie was required to take a reduced annuity in consideration for providing her husband with retirement benefits and, consequently, such election constituted a partition of the community interest in the retirement benefits.
On this appeal appellant asserts three points of error:
1. The interest, if any, of Valdez Sr. in the U.S. Civil Service Retirement benefits did not constitute a property or interest subject to alienation by will or by the State intestate succession laws.
2. The trial court award to the adult children of the deceased spouse by a former marriage contravened the purpose and intent of the federal law establishing civil service retirement benefits.
3. Such retirement benefits are not subject to assignments or legal process by express provision of federal law and, therefore, *90 any state law regarding distribution of annuity is preempted.
This appears to be a case of first impression in this State in the type of fact situation here involved. There are numerous cases involving a division of retirement benefits in divorce actions, but the case before us involves a division of retirement benefits under our probate or intestate succession laws.
§ 45, Tex.Prob. Code Ann. (1956), provides in effect that upon dissolution of the marriage relation by death, all property of the husband and wife shall go to the survivor, if there be no child or children of the deceased or their descendants; but if there be a child or children of the deceased, or descendants then the survivor shall be entitled to one-half of the property and the other one-half shall pass to said child or children of the deceased.
We shall discuss appellant's contentions separately.
I
Appellant first contends that the interest of Tomas M. Valdez, Sr. in the U.S. Civil Service Retirement benefits did not constitute a property or interest subject to alienation by will or by the State and intestate succession laws. At the outset, appellant and appellees disagree both as to the nature of such retirement benefits and as to which portion of the U.S. Civil Service Retirement Act is applicable. Appellant refers to the payments as an annuity and in particular relies strongly on the provision of § 8341, which sets forth those individuals who may be designated as survivor annuity beneficiaries in the event of the death of the federal employee annuitant. (Appellant maintains the only interest Valdez, Sr. may have had with regard to Lillie's retirement annuity, was extinguished by his death.)
It is to be remembered that Lillie Valdez was living at the time of the death of Valdez, Sr., and is still living.
It is appellees' contention that the benefits here involved are retirement benefits payable under §§ 8332-8336 of the U.S. Civil Service Retirement Act. It is clear from the trial court's findings of fact and conclusions of law that the trial court regarded the benefits as retirement benefits, and as an earned property right.
§ 5.01, Tex. Family Code Ann. (1975), provides that community property consists of property, other than separate property, acquired by either spouse during their marriage.
The basic question here is whether or not the retirement benefits here involved are community property. There are a number of Texas decisions passing on and discussing the question as to whether retirement benefits are community property in this State. These decisions basically arise out of divorce actions. In the recent case of Cearley v. Cearley, 544 S.W.2d 661 (Tex. 1976), the trial court granted the wife a fractional interest in future military retirement benefits, if, as, and when received by the husband. The court of civil appeals reversed because the husband had not quite reached the 20 years required for the benefits to become vested. The Supreme Court reversed the court of civil appeals and held that rights in retirement programs, prior to accrual and maturity, constituted a contingent interest in property and a community asset subject to consideration along with other property in the division of the estate. In such case, the Supreme Court stated:
Section 5.01 of the Family Code provides that community property consists of the property, other than separate property, acquired by either spouse during marriage.... Despite an earlier view that retirement and pension plans were gifts bestowed by benevolent employers on retiring employees, they are now regarded as a mode of employee compensation earned during a given period of employment....
It is now well established that matured private retirement, annuity, and pension benefits earned by either spouse during the marital relationship are part of the community estate and thus subject to division upon dissolution of the marriage....
*91 The same characterization of community property was first given to military retirement benefits by this court in Busby v. Busby, 457 S.W.2d 551 (Tex.1970)....
The latest expression by the Supreme Court is Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977), which involved a partition of military retirement benefits that were not divided when the parties were divorced. The Supreme Court held that Cearley, supra, controlled such case also, and that the wife owned as her part of the community estate a share in the contingent right to military benefits even though the right had not matured at the time of the divorce.[2]
Appellant also argues that the U.S. Civil Service Retirement benefits are in the nature of a gratuity granted by the federal government in appreciation for faithful services by a federal employee, and cites in support thereof Berkey v. United States, 176 Ct. Cl. 1, 361 F.2d 983 (1966). We do not regard this argument as persuasive. Our Supreme Court, in Cearley, supra, rejected this gift theory, citing with approval the following language from Lee v. Lee, 112 Tex. 392, 247 S.W. 828 at 833 (1923):
"It was in no sense a donation to the employé [sic] for individual merit, but was manifestly additional compensation for faithful and continuous service. It was as much a fruit of his labors as his regular wages or salary. It was in the strictest sense a `gain' added to the common acquests of the marital partnership, as the direct result and fruit of his labor and services."
Appellant also relies on McJunkin v. Estate of McJunkin, 492 S.W.2d 278 (Tex.Civ. App.Dallas 1973, writ ref'd n.r.e.); Allen v. Allen, 363 S.W.2d 312 (Tex.Civ.App. Houston 1962, no writ); Buehler v. Buehler, 323 S.W.2d 67 (Tex.Civ.App.Texarkana 1959, writ ref'd n.r.e.). In our opinion, these cases are distinguishable and are not here controlling.
Herring v. Blakeley, 385 S.W.2d 843 (Tex. 1965), is more in point. This case involved an annuity contract under which James Herring, an employee of Marathon, was entitled to a retirement annuity and certain death benefits. James had the unrestricted right to designate beneficiaries to receive the death benefits. James and Ellen were married during the course of James' employment at Marathon, but in 1960 they were divorced. At such time, James changed the death benefit from Ellen to Blakeley. James died ten months after the divorce and the question presented was who was entitled to the death benefits. The case did not involve retirement benefits. The Supreme Court held that James' interest in the plan was community property, and that at the date of the divorce Ellen was entitled to one-half of the value of the plan; pointing out that the plan came into existence during the marriage and contributions were made during the marriage.
II
Appellant next contends that the award to appellees of an interest in appellant's federal retirement benefits contravened the purpose and intent of the federal law establishing the U.S. Civil Service Retirement program. She argues that the statute clearly designates persons entitled to receive employment benefits and that appellees are not included in such designation, and that to allow a "non-designated" individual to indirectly receive benefits would defeat the purpose of the Act. She asserts that the real purpose of such Retirement Act is to insure that when an employee leaves the federal service, he or she will continue to have an income as security for self and family; that it does not create an estate for the employee. In support thereof *92 appellant relies heavily on Free v. Bland, 369 U.S. 663, 82 S. Ct. 1089, 8 L. Ed. 2d 180 (1962) and Wissner v. Wissner, 338 U.S. 655, 70 S. Ct. 398, 94 L. Ed. 424 (1950). Free v. Bland involved United States savings bonds which were issued to spouses living in Texas, designated as issuees, "Mr. or Mrs." Free. The wife died and the husband claimed ownership based on a Treasury Regulation that provided "the survivor will be recognized as the sole and absolute owner." A son of a deceased wife by a previous marriage claimed a one-half interest in the bonds under Texas law. The Texas courts held in favor of the son. The United States Supreme Court reversed, stating that the relative importance to the State of its own law is not material when there is a conflict with a valid federal law and that the federal law must prevail. The Court also pointed out that the State law interfered directly with a legitimate exercise of the power of the federal government to borrow money.
In Wissner, supra, the decedent named his mother as the beneficiary of his National Service Life Insurance policy, and the decedent's widow brought suit for one-half of the proceeds, claiming that under State community property law this was what she was entitled to. The California court held in favor of the widow, but the Supreme Court reversed, stating that Congress had spoken with force and clarity in directing that the proceeds belong to the named beneficiary and no other.
We do not regard the Texas community property laws as materially conflicting with the U.S. Civil Service Retirement Act. We find no provision of such Act specifically or directly conflicting with Texas law. In this connection, military retirement benefits are also payable to certain specific individuals, but our courts do not hold that our community property laws conflict or interfere with the Military Retirement Act.[3]
See Comment, 50 Tex. L. Rev. 334 at 342 (1972), wherein it is stated:
If the assumption that the community usually may claim as an interest in retirement benefits of the employee husband is correct, one-half the value of the retirement benefits in which the community has an interest should be included in the wife's gross estate. The estate of a wife who dies before the right to retirement benefits has vested holds no claim to any benefits. If she dies after the right has vested, however, her interest in the benefits must be considered. Federal estate tax law requires that the gross estate include the value of all property to the extent that the decedent had an interest at the time of death. When the vested property right in retirement benefits is community property, the wife's gross estate reasonably should include one-half the value of that right. The language of the Texas inheritance tax statute, which imposes a tax on "all property" passed by the decedent, also indicates that the wife's interest in her employee husband's retirement benefits should be taxed at her death.
Appellant's last contention is that the trial court's judgment was erroneous because such retirement benefits are not subject to assignment or legal process by express provisions of federal law.
The Civil Service Retirement Act contains the following provision relating to exemptions of retirement benefits under the statute, 5 U.S.C.A. § 8346(a), as amended:
(a) The money mentioned by this subchapter is not assignable, either in law or equity, except under the provisions of *93 section 8345(g) of this title, or subject to execution, levy, attachment, garnishment, or other legal process, except as otherwise may be provided by Federal laws.
The controlling question here is whether appellees receive their interest by assignment, execution, levy, attachment, garnishment, or any other legal process. There are a number of Texas cases that are analogous. Aetna Life Insurance Co. v. Creel, 390 S.W.2d 522 (Tex.Civ.App.Houston 1965, writ ref'd), involved a "non-assignment" clause in an annuity, which clause provided that annuity could not be assigned without the written consent of the employer, and that the benefits were exempt from the claims of creditors to the maximum extent permitted by law. The Texas Insurance Code also exempts insurance benefits and annuities from seizure under process of creditors of the insured or of the beneficiary, either before or after the benefits are paid. The Houston court held that neither the provision of the annuity contract or of the insurance code prevented the trial court from making a division of the estate in a divorce suit and from awarding the annuity to the wife.
This Court, in Webster v. Webster, 442 S.W.2d 786 (Tex.Civ.App.San Antonio 1969, no writ), held the husband's military retirement benefits to be in part community property, and awarded the wife a part of such retirement benefits and pointed out that no part of the benefits were assigned or transferred to the wife, and that there was no violation of any federal regulation.
A recent law review article, Dutton, The Wife's Community Interest in Her Husband's Qualified Pension or Profit-Sharing Plan, 50 Tex. L. Rev. 334 at 345-346 (1972), said:
In Webster v. Webster ... the court awarded the wife one-half of the community interest in the military retirement benefits, holding that because that portion of the benefits was owned by the wife, no part payments were assigned or transferred. The wife could claim her interest in the benefits when the husband retired and the benefits became payable. The IRS also considers retirement pay for members of the armed forces deferred compensation for services, which is an earned property right. The separate or community character of the benefits is governed by applicable state law. Because in Texas the retirement benefits are community property, the inclusion of the value of the wife's share of the benefits in her gross estate need not be considered an assignment. If the community had an interest in the benefits when earned and the wife retains a vested property right in the benefits while alive, no reason appears for excluding the benefits from her estate at her death. There is no conflict with federal law. The wife actually owned a property interest in the benefits at the time of her death and it is, therefore, untenable to consider as an assignment the inclusion of that interest in her estate.
A federal "non-assignment" statute almost exactly like the one before us was considered by the court in Dillard v. Dillard, 341 S.W.2d 668, 678 (Tex.Civ.App.Austin 1960, writ ref'd n.r.e.). 38 U.S.C.A. § 3101, provides that benefits due under any law administered by the Veterans Administration shall not be assignable and shall not be liable for attachment, levy, or seizure by or under any legal or equitable process whatsoever. The court found no conflict between this statutory language and the power of the divorce court to set aside a portion of the Veterans Administration's disability pension for child support, stating that the statutory exemption was "restricted to processes brought by creditors."
We find no conflict between the language in the "non-assignment" statute here involved and the judgment herein, recognizing ownership under the Texas community property law. Appellees take their interest by ownership, not assignment.
We have concluded that (1) the retirement benefits involved here were the community property of appellant and her husband, Tomas M. Valdez, Sr.; (2) the Texas community property laws do not so conflict or interfere with the provisions of the U.S. *94 Civil Service Retirement Act as to prevent the retirement benefits here involved from being a part of the community estate of appellant and Tomas M. Valdez, Sr.; and (3) the trial court's award to appellees of an interest in retirement benefits here involved is not in contravention of the "non-assignment" provisions found in the U.S. Civil Service Retirement Act.
The judgment of the trial court is affirmed.
NOTES
[1] Such findings of fact and conclusions of law may be summarized as follows:
FINDINGS OF FACT
(1) Appellant was employed by the U.S. Civil Service from January 1942 to May 1971, when she retired and began receiving monthly retirement benefits.
(2) Lillie Valdez was married to Tomas M. Valdez, Sr. from January 1943 until November 1973, when he died.
(3) The right to receive such retirement benefits accrued during the marriage of Lillie Valdez and Valdez, Sr., and some retirement benefits were paid during the marriage and prior to the death of Valdez, Sr.
(4) Valdez, Sr. died on November 18, 1973, without leaving a will.
(5) Appellees are the only children of Valdez, Sr., and are the sole heirs-at-law of his half of the community estate.
(6) Lillie Valdez is the surviving spouse of Valdez, Sr., but she is not the natural mother of appellees, and at no time did she provide a home for appellees.
(7) During the marriage of Lillie Valdez and Valdez, Sr., Lillie Valdez accepted the benefits of community property created through the labor and investments of Valdez, Sr., and upon the death of Valdez, Sr., she accepted the benefits of approximately one-half of the value of the community property of Valdez, Sr. and Lillie Valdez, which community estate was valued at $104,525.46. This sum does not include any portion of the civil service retirement benefits.
(8) Lillie Valdez has refused to pay or share with appellees any portion of the retirement benefits earned by her during her marriage to Valdez, Sr., although 340/352 of such retirement benefits were earned during the marriage of Lillie Valdez and Valdez, Sr.
(9) Since December 1974 to the date of entry of judgment, Lillie Valdez has received civil service retirement benefits in the sum of $11,909.00.
(10) Lillie Valdez started receiving her retirement benefits approximately July 1971 and all of Lillie's retirement contributions to the U.S. Civil Service Commission had been exhausted prior to the death of Valdez, Sr. The retirement benefits now being received are direct contributions from the government and are taxable.
(11) No portion of the retirement benefits received by Lillie since the death of Valdez, Sr. have been paid to appellees.
CONCLUSIONS OF LAW
(1) The right to the civil service retirement benefits vested during the marriage of Lillie Valdez and Valdez, Sr., prior to the death of Valdez, Sr.
(2) 340/352 of each civil service retirement benefit received and to be received by appellant is community property earned during the marriage of Valdez, Sr. and Lillie Valdez.
(3) Valdez, Sr. died intestate and appellees are the children of Valdez, Sr. and the sole heirs of that portion of the community estate owned by Valdez, Sr.
(4) Appellees are entitled to receive one-half of 340/352 of the civil service retirement benefits received by appellant if, when, and as received by appellant, including one-half of 340/352 of all retirement benefits received from and after December 1, 1974 to the date of entry of judgment and one-half of 340/352 of all civil service retirement benefits received by appellant thereafter.
[2] There are a series of cases about retirement benefits, which include Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Ables v. Ables, 540 S.W.2d 769 (Tex.Civ.App.Waco 1976, no writ); Freeman v. Freeman, 497 S.W.2d 97 (Tex.Civ.App.Houston [14th Dist.] 1973, no writ); Miser v. Miser, 475 S.W.2d 597 (Tex.Civ. App.Dallas 1971, writ dism'd); Kirkham v. Kirkham, 335 S.W.2d 393 (Tex.Civ.App.San Antonio 1960, no writ); Webster v. Webster, 442 S.W.2d 786 (Tex.Civ.App.San Antonio 1969, no writ); Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.San Antonio 1968, writ dism'd).
[3] An interesting case in this connection is Dominey v. Dominey, 481 S.W.2d 473 (Tex.Civ. App.El Paso 1972, no writ), cert. denied, 409 U.S. 1028, 93 S. Ct. 462, 34 L. Ed. 2d 321, which involved disability pay received by a sailor in which a wife claimed an interest. The court held for the wife and an issue presented in the case was whether Texas' marital property laws conflicted with the U.S. law. The husband contended that the Texas law, which would include entitlement to Navy Disability Retirement Pay and Navy Retirement Pay as marital property subject to division between spouses on death or divorce, conflicted with U.S. law. The court held otherwise, stating that this issue had been previously disposed of by the Texas Supreme Court, and that the nature of the retirement is not so spelled out as to dictate who is to receive them and remove them from control by the Texas courts. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/492117/ | 825 F.2d 320
UNITED STATES of America, Plaintiff-Appellee,v.Marc Odilance SILIEN, Defendant-Appellant.
No. 86-5359
Non-Argument Calendar.
United States Court of Appeals,Eleventh Circuit.
Aug. 21, 1987.
L. Mark Dachs, Miami, Fla., for Silien.
Leon B. Kellner, U.S. Atty., Linda C. Hertz and David O. Leiwant, Asst. U.S. Attys., Miami, Fla., for the U.S.
Appeal from the United States District Court for the Southern District of Florida.
Before FAY, ANDERSON and EDMONDSON, Circuit Judges.
PER CURIAM:
1
Appellant Marc Silien was convicted of conspiracy to violate United States immigration laws and presenting a false statement under oath in a document required by immigration law and was sentenced to concurrent terms of six months imprisonment. Silien, a Haitian immigrant, had entered into a fraudulent marriage with Katherine Anderson, in order to get permanent resident status in the United States. This putative marriage was arranged by a "marriage broker" in the United States, Bernice Coleman. Anderson was to be paid $1,500 by Silien for her role in the conspiracy. Coleman and Silien were jointly indicted and were jointly tried, along with four other Haitians who participated in such fraudulent marriages. Anderson was a government witness at trial.
2
On appeal, Silien raises three issues. He first argues that the court erred in denying without an evidentiary hearing Silien's motion to dismiss based on improper selective prosecution. Silien argues that the government acted in a discriminatory manner by singling out only Haitian immigrants who engaged in allegedly fraudulent marriages while declining to prosecute United States citizens who engaged in the same illegal activity. In support, he points to the indictments against the four other persons, all Haitians, who were indicted as coconspirators for entering into similar marriages while none of the putative wives were indicted. Silien argues that the American wives were equally guilty of a crime since they agreed to marry for a fee, agreed to divorce once the husband's immigration status changed, and knowingly filed a false petition to classify alien status with the immigration department. Thus, Silien claims that the prosecution of the Haitian husbands was discriminatorily selective because based upon race.
3
The district court properly held that no evidentiary hearing was required on Silien's claim. In order to prevail in a selective prosecution defense, a defendant must meet the heavy burden of (1) making a prima facie showing that he has been singled out for prosecution although other similarly situated persons who have committed the same acts have not been prosecuted; and (2) demonstrate that the government's selective prosecution was unconstitutional because actuated by impermissible motives such as racial or religious discrimination. United States v. Johnson, 577 F.2d 1304, 1308 (5th Cir.1978).1 An evidentiary hearing is not automatically required; instead, the defendant must present facts "sufficient to create a reasonable doubt about the constitutionality of a prosecution...." United States v. Hayes, 589 F.2d 811, 819 (5th Cir.), cert. denied, 444 U.S. 847, 100 S. Ct. 93, 62 L. Ed. 2d 60 (1979).
4
Silien has not presented sufficient facts to make out his claim. It is obvious that the putative wives who were not prosecuted were not similarly situated to the Haitians who initiated the conspiracy. As the Fifth Circuit observed in United States v. Jennings, 724 F.2d 436, 445-46 (5th Cir.), cert. denied, 467 U.S. 1227, 104 S. Ct. 2682, 81 L. Ed. 2d 877 (1984), a defendant fails to satisfy the "similarly situated" prong of the selective prosecution defense when those not prosecuted cooperated with the government, or were lower in the organizational structure of the conspiracy than those prosecuted, and when the defendant offers nothing but bare general allegations that the selectivity was motivated by racial considerations. These American women cooperated with the government and testified against the putative husbands at trial. Moreover, the women involved in the marriage fraud can themselves be seen as victims rather than as culpable perpetrators of the conspiracy; these women were mostly poor and were taken in by the Haitians' offers of large sums of money. Since they did not initiate the conspiracy, they can be seen as less culpable than the Haitians. Finally, the American, Bernice Coleman, who arranged the fraudulent marriage was prosecuted. Therefore, the government's decision to prosecute the Haitians and the marriage arrangers, but not the putative wives, cannot be seen as discriminatorily based.
5
Silien also argues that the district court erred in denying his motion for severance. He claims he was prejudiced by the government's admission of similar act evidence at trial against his codefendant Bernice Coleman. The similar act evidence consisted of the testimony of three witnesses who testified that Coleman had previously arranged fraudulent marriages for Haitians for a fee. The court gave appropriate instructions to the jury that the evidence was only to be used against Coleman and not against Silien.
6
Denial of a motion for severance is reviewed for abuse of discretion. United States v. Marzalkowski, 669 F.2d 655, 660 (11th Cir.), cert. denied, 459 U.S. 906, 103 S. Ct. 208, 74 L. Ed. 2d 167 (1982). Normally, defendants jointly indicted should be tried together and only in the event of compelling prejudice is severance warranted. Id. at 660. The test for assessing compelling prejudice is whether it is within the capacity of jurors to follow a court's limiting instructions and appraise the independent evidence against each defendant solely upon that defendant's own acts, statements and conduct, and, if possible, severance should not be granted. Id. at 660. The court's instructions in this case clearly informed the jury that they were not to apply the evidence against Silien, and there is no indication the jury would not have been able to heed these instructions. Therefore, the trial court did not abuse its discretion in denying the motion to sever.
7
Silien's final argument on appeal is that the court erred in failing to exclude rebuttal evidence consisting of his immigration file biographical sheet. This biographical sheet impeached Silien's claim that he had never lived at a certain address. Silien maintains that admission of the biographical sheet violated both the court's standing discovery order and Fed.R.Crim.P. 16(a)(1)(A), which requires the production of "any relevant written or recorded statements made by the defendant."
8
Fed.R.Crim.P. 16(a)(1)(A) provides as follows:
9
Upon a request of a defendant the government shall permit the defendant to inspect and copy ... any relevant ... statements made by the defendant ... within the possession, custody or control of the government, the existence of which is known ... to the attorney for the government....
10
The immigration biographical sheet consisted of a written statement signed by Silien and was in the possession of the government. The plain language of the rule indicates that failure to produce this document violated Fed.R.Crim.P. 16(a)(1)(A).
11
However, "[t]his Court will not reverse a conviction based on a violation of Fed.R.Crim.P. 16(a)(1)(A) unless the appellant demonstrates that the violation prejudiced his substantial rights." United States v. Barragan, 793 F.2d 1255, 1259 (11th Cir.1986) (citation omitted). Similarly, this court requires a showing of prejudice before reversing a conviction on the grounds that a court's standing discovery order was violated. Id. at 1259. In determining whether substantial prejudice exists, we must consider whether the defendant was unduly surprised and did not have an adequate opportunity to prepare a defense, or whether the mistake had substantial influence on the jury. Id. at 1259.
12
Silien fails to satisfy the substantial prejudice test, since he has not shown, and cannot show upon this record, that the mistake had a substantial influence on the jury. While it is true that the document impeached Silien's claim that he had never lived at a particular address, thereby weakening his claim that he was legitimately married, there was much other evidence which served to impeach him on this point. For example, his putative wife testified that he lived at that address and his marriage license listed that address as his residence. Thus, the admission of the immigration document was merely cumulative and cannot be seen as having a substantial influence on the jury. Since Silien has not shown prejudice arising from the violation of Fed.R.Crim.P. 16(a)(1)(A) and the standing discovery order, we do not find that his claim warrants reversal.
13
For the foregoing reasons, Silien's conviction is
14
AFFIRMED.
1
This case was decided prior to the close of business on September 30, 1981, and is binding precedent under Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1561773/ | 18 So.3d 1165 (2009)
Kurt SCHROEDER and Linda Schroeder, Appellants,
v.
PEOPLEASE CORPORATION and L & S Logistic Services, Inc., Appellees.
No. 1D08-4247.
District Court of Appeal of Florida, First District.
September 25, 2009.
Terry P. Roberts, Tallahassee, for Appellants.
John T. Conner of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellees.
VAN NORTWICK, J.
Kurt Schroeder and Linda Schroeder appeal a final summary judgment in their negligence action against Peoplease Corporation (Peoplease) and L & S Logistics Services, Inc. (L & S), appellees. The trial court granted summary judgment based upon workers' compensation immunity under section 440.11(1)(a), Florida Statutes (2005), and expressly ruled that Peoplease *1166 and L & S were not estopped from asserting the defense of workers' compensation immunity. Because we find disputed issues of fact remain as to the question of estoppel, we reverse and remand for further proceedings.
In 2006, Kurt Schroeder was employed by Peoplease, and was working for L & S under an employee leasing contract between Peoplease and L & S. He drove a truck and delivered merchandise to sites around the state. On April 5, 2006, he arrived in Grand Ridge, Florida, where he was expected to deliver a load weighing approximately 2,000 pounds to a school. The school was unprepared to receive the material and the merchandise was too heavy for him to unload. Schroeder alleges in his complaint that the merchandise was sealed on one skid and could not be offloaded without assistance or the necessary equipment. He proceeded to a motel in Bay County with the knowledge and permission of L & S. When he contacted a company representative and explained that he could not offload the Grand Ridge delivery, that representative directed Schroeder to manually move the load within the trailer so as to permit him to make other deliveries scheduled for the next day. Within minutes of attempting to move the load, he suffered the onset of heart problems. He was taken by ambulance to the hospital where he underwent emergency heart surgery.
Schroeder filed a petition seeking workers' compensation benefits from Peoplease. Peoplease controverted the entire claim and filed a notice of denial which provides:
REASON FOR DENIAL OF BENEFITS (Provide detailed information to support reason(s) for denial)
The present condition of claimant is not the result of injury arising out of and in the course of his or her employment.
The condition of claimant is due to natural causes unrelated to his [or] her employment.
The condition pre-existed the alleged date of injury.
The condition complained of is not the result of an injury within the meaning of the term as used in the Florida Compensation Act.
The claimant's condition is due to pre-existing disease and not to an accident.
There is no causal connection between the claimant's condition and his or her employment.
On January 8, 2007, the Schroeders filed a civil action against Peoplease and L & S. Relying upon the notice of denial, they alleged that neither Peoplease nor L & S could claim workers' compensation immunity from suit pursuant to chapter 440, Florida Statutes. See § 440.11(1)(a), Fla. Stat. (2005).[1]
*1167 Peoplease and L & S filed an amended motion for summary judgment. They argued that they were not estopped from asserting workers' compensation immunity because the notice of denial denied the workers' compensation claim on the grounds of a preexisting condition, which is a recognized defense to a claim for workers' compensation benefits under section 440.09(1)(b), Florida Statutes (2005), and the notice did not assert that no employment relationship existed or that the incident occurred outside the scope of the employment relationship. Attached to the motion was the affidavit of Rosa Fitzsimmons, the workers' compensation adjuster who prepared the notice of denial. In her affidavit, she stated that the intent of the notice was neither to assert a lack of an employment relationship nor to allege that Mr. Schroeder's incident occurred outside the scope of the employment relationship. She stated that the intent of the notice of denial was to dispute that Mr. Schroeder's injury was compensable.
Appellees argued that summary judgment was appropriate under Tractor Supply Company v. Kent, 966 So.2d 978 (Fla. 5th DCA 2007). In Kent, the court held that, where the employer's denial of coverage was based upon the fact that the employee's medical condition was preexisting and unrelated to his current employment, the employer was not estopped from asserting immunity from suit pursuant to the exclusivity provision of section 440.11. Id. at 981. The court reasoned that a denial on the basis of preexisting condition is not the equivalent of an assertion that no employment relationship existed or that the incident occurred outside the scope of employment. Id.
The Schroeders responded arguing that summary judgment was not appropriate because Peoplease and L & S had not presented conclusive proof that there are no genuine issues of material fact. Attached to the response was the affidavit of Schroeder in which he stated that "relying on Peoplease's denial of my workers' compensation claim, and failure to furnish medical care for my injuries," he had obtained medical care and treatment for which he was personally responsible. He stated that Peoplease and L & S failed to authorize or offer medical care and treatment and had never advised him they would pay or reimburse him for his medical expenses, which he was obligated to pay because they failed to furnish medical care for his injuries. He argued that, because they denied that he suffered an accident or injury arising out of and in the course of his employment, they were estopped from asserting the exclusivity of chapter 440, citing Byerley v. Citrus Publishing, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999) (holding that the elements of estoppel were met when the employer denied the workers' compensation claim because the injury did not arise out of the course and scope of employment, but thereafter took the irreconcilable position in the tort action filed by the employee that the workers' compensation exclusivity defense applied).
After a hearing, the trial court entered the order under review granting final summary judgment as to all claims brought in the Schroeders' action and finding, as follows:
1. The major thrust of the Notice of Denial entered in Plaintiffs workers' compensation claim arising out of the same incident which gives rise to this lawsuit was the employer's contention that the heart condition suffered by the Plaintiff was due to pre-existing disease and not to an accident, or was due to natural causes unrelated to his employment.
*1168 2. The Defendants in this action have not taken inconsistent positions in Plaintiffs prior workers' compensation claim and the instant action. Therefore, Defendants in this action are not estopped from asserting the defense of workers' compensation immunity.
This court reviews an order granting summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Turning to the workers' compensation statutes, an employer is only required to pay compensation or furnish benefits "if the employee suffers an accidental compensable injury or death arising out of work performed in the course and the scope of employment." § 440.09(1), Fla. Stat. (2005). Section 440.02(19), Florida Statutes (2005) defines "injury" in pertinent part as "personal injury or death by accident arising out of and in the course of employment."
On appeal, the Schroeders argue that the effect of the notice of denial stating that claimant's condition "is not the result of injury arising out of and in the course of his ... employment" and that "the condition complained of is not the result of an injury within the meaning of the term as used in the Florida Compensation Act" was to deny all compensability of his claim. It is undisputed that Peoplease and L & S have paid no benefits to him, either medical or lost wages, since his injury in 2006. Schroeder asserts that he relied on that denial to his detriment by obtaining medical care for his heart condition at his own expense. The Schroeders argue that this record contains no evidence that he suffered from a preexisting condition and that Peoplease and L & S, having denied that Kurt Schroeder suffered an accident or injury arising out of and in the course and scope of his employment, are estopped from now taking a contrary position by arguing that they merely defended the workers' compensation claim based upon a position that claimant's condition was due to a preexisting condition.
The elements necessary to establish equitable estoppel for purposes of workers' compensation exclusivity or immunity are "(1) a representation as to a material fact that is contrary to a later-asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon." Specialty Employee Leasing v. Davis, 737 So.2d 1170 (Fla. 1st DCA 1999) (quoting State Dep't of Revenue v. Anderson, 403 So.2d 397, 400 (Fla.1981)). "Summary judgment is particularly unsuitable in a case where the facts and circumstances indicate the possibility of an estoppel." Elliott v. Dugger, 542 So.2d 392, 393 (Fla. 1st DCA 1989).
Summary judgment should only be granted if the movant submits conclusive proof that there exist no issues of material fact. All reasonable inferences which may be drawn in favor of the party opposing summary judgment must be overcome. Craig v. Gate Maritime Props., Inc., 631 So.2d 375, 377 (Fla. 1st DCA 1994); Spradley v. Stick, 622 So.2d 610, 612 (Fla. 1st DCA 1993). "The movant for summary judgment bears the initial burden of demonstrating by competent evidence the nonexistence of any question of material fact, and only when the movant has satisfied this burden does the burden shift to the opposing party to come forward with evidence to the contrary." Spradley, 622 So.2d at 612.
In Byerley, the Fifth District Court of Appeal held that the employer was estopped from asserting the exclusivity of the Workers' Compensation Act as a defense to the employee's tort claim where the employer had denied the workers' compensation claim on the ground that the *1169 employee's injury did not arise out of her employment, the employee accepted and relied on the denial, bore her medical expenses, and then sued the employer. 725 So.2d at 1232-33. The court reasoned that,
[I]t would be inequitable for an employer to deny worker's compensation coverage on the ground that the employee's injury did not arise out of the course and scope of employment, then later claim immunity from a tort suit on the ground that the injury did arise out of the course and scope of employment. This argument, if accepted, would eviscerate the Workers' Compensation Act and allow employers to avoid all liability for employee job related injuries....
Id. at 1232.
Peoplease and L & S seek to distinguish Byerley, arguing that in Byerley it was clear that the employee was not in the course and scope of employment because she had "clocked out and had exited the building, when she tripped over a bench on the pavement," 725 So.2d at 1231. In other words, Peoplease and L & S argue that when the facts make it clear that the employee suffered a workplace incident, then estoppel will never apply despite what the employer and carrier may have said in the notice of denial. We cannot agree.
In Elliott v. Dugger, 542 So.2d at 393, Elliott, who worked as a correctional officer, unknowingly ingested blood serum contaminated with the AIDS virus while on duty. The blood serum had been placed in his coffee by an inmate. Elliott and his wife filed suit and the employer defended on the grounds that the Workers' Compensation Act provided immunity. Elliott responded that his claim for workers' compensation benefits had been denied; that he had detrimentally relied on that denial; and that, therefore, the employer was estopped from asserting the exclusivity defense. The employer moved for summary judgment arguing that it was clear that Elliott was acting in the scope of his employment at the time he claimed to have been assaulted and, therefore, the employer was immune from a civil action. The trial court's summary judgment in favor of the employer was reversed by this court because there remained issues of fact concerning "the alleged representation made by [the employer] that no benefits were due claimant," which could have meant "either that the Department of Corrections was of the opinion that there had yet been no injury shown, or that it had taken the position Elliott had no right to claim benefits because the injury was not a covered injury." 542 So.2d at 394. This court went on to explain "if [the employer] denied workers' compensation coverage on the basis that Robert Elliott's alleged injury was not encompassed within the Act or on the basis that he was injured under other situations not covered by the Act, the Elliotts were free to pursue common law remedies." Id.
When the case was returned to the trial court, evidence was adduced that the workers' compensation carrier had notified Elliott by letter in which it took the position that benefits were not due because the claimant had returned to work and there was an absence of any evidence relating medical problems to the incident. "Significantly, the letter [did] not deny compensability of the incident." Elliott v. Dugger, 579 So.2d 827, 828 (Fla. 1st DCA 1991) (Elliott II). The trial court again granted summary judgment in favor of the employer. On appeal, in Elliott II, this court held that the trial court had correctly entered summary judgment on remand on the grounds that Elliott's exclusive remedy was workers' compensation. Nevertheless, the court emphasized that "had [coverage] been denied on the basis that Elliott's alleged injury was not encompassed within the Act or on the basis that he was injured under other situations not covered *1170 by the Act, ... he might have been free to pursue common law remedies." Elliott II, 579 So.2d at 828 n. 1.
Here, as in Elliott, there remain disputed issues of material fact as to the meaning of the language employed in the notice of denial. Summary judgment is inappropriate where the wording of a document is ambiguous and its interpretation involves questions of fact. Travelers Indem. Co. of Illinois v. Hutson, 847 So.2d 1113 (Fla. 1st DCA 2003); Ieracitano v. Shaw, 815 So.2d 787 (Fla. 4th DCA 2002). Whether estoppel is appropriate in this case and whether the employer took irreconcilable positions is dependent upon the meaning to be accorded the notice of denial.
REVERSED and REMANDED for further proceedings consistent with this opinion.
HAWKES, C.J., and BROWNING, J., concur.
NOTES
[1] Section 440.11(1) provides:
(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except as follows:
(a) If an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by negligence of a fellow employee, that the employee assumed the risk of the employment, or that the injury was due to the comparative negligence of the employee. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561786/ | STATE OF LOUISIANA
v.
JAKE M. THURMAN
No. 09-8.
Court of Appeals of Louisiana, Third Circuit.
October 7, 2009.
DO NOT PUBLISH.
G. PAUL MARX, Louisiana Appellate Project, Counsel for Defendant-Appellant: Jake M. Thurman
DAVID W. BURTON, District Attorney, Counsel for Appellee: State of Louisiana.
Court composed of COOKS, DECUIR, and PAINTER, Judges.
PAINTER, Judge.
Defendant, Jake M. Thurman, appeals his conviction for second offense driving while intoxicated. For the following reasons, we reverse.
FACTS
On the evening of August 5, 2006 or early morning of August 6, 2006, Defendant was in a single-car accident on a remote highway. There were no witnesses to the accident, and Defendant left the scene before the accident was discovered by authorities. Defendant was later located and, after being found to be intoxicated, was arrested and charged with driving while intoxicated (DWI), fourth offense, a violation of La.R.S. 14:98.
Following a jury trial held on October 21-22, 2008, Defendant was found guilty of second offense DWI. On October 30, 2008, Defendant was sentenced to one hundred eighty days in the parish jail, ninety days suspended, and ordered to pay a fine of $1,000.00, plus court costs. He was also placed on supervised probation for two years. Defendant appeals asserting that the evidence was insufficient to convict him of driving while intoxicated, second offense. We agree.
DISCUSSION
Sufficiency of the Evidence
In his sole assignment of error, Defendant argues that the evidence was insufficient to prove operation in this case. Defendant maintains that the evidence at trial only showed that he drove his mother's vehicle into a ditch, and that hours later, he was intoxicated.
Pursuant to La.R.S. 14:98, the State had the burden of proving that Defendant operated the vehicle and that while he was operating the vehicle, he was either under the influence of alcohol or had a blood alcohol concentration of .08 or more. Defendant's argument emphasizes the fact that there were no witnesses to the accident or evidence to controvert his testimony that he became intoxicated after the accident.
In support of his argument, Defendant refers to State v. Lindinger, 357 So.2d 500 (La.1978). In Lindinger, an officer responded to a report and found the defendant resting against a pickup truck located in a field about fifty to one hundred feet off the highway. The defendant was barely able to stand and appeared intoxicated. A fifth of whiskey was found in the pickup truck with three-fourths of the whiskey gone. The defendant was unable to respond to the officer's questions, and the officer did not know how long the defendant was in the field before he arrived. A second officer arrived and noted skidmarks which indicated that the vehicle skidded off the highway into the field after the brakes were applied. The defendant was subsequently found guilty of driving while intoxicated.
The supreme court reversed the conviction, finding that the State's evidence of the defendant's intoxication and the fact that he was found standing by pickup truck which had skidded off the highway into field at some prior undetermined time was insufficient to sustain his conviction of operating a motor vehicle while intoxicated. The court noted that the evidence did not show how long the defendant or the pickup truck was in the field before he was found, that he was driving the pickup truck at the time it left the highway, or that he was intoxicated at the time the vehicle left the highway.
Unlike Lindinger, the State in the instant case presented evidence that Defendant was driving the vehicle when it left the highway. Defendant admitted at trial that he was driving the car in question on the evening of August 5, 2006, and when it left the roadway. Defendant testified that he was on his way to Merryville from Delta Downs, traveling on Highway 389, when it started raining heavily. Defendant stated that could no longer see and, in an alleged attempt to turn onto a driveway, he turned into a ditch. Trooper Johnson of the Louisiana State Police testified that when Defendant was questioned after the accident, he admitted that he was the driver of the car in question. Additionally, he accurately described the vehicle and stated that it was his mother's car. Considering Defendant's testimony and that of Trooper Johnson, we find that the State proved that Defendant was operating the vehicle that was found in the ditch.
The remaining issue, however, is whether Defendant was under the influence when he was operating the vehicle. Defendant does not dispute the fact that he was intoxicated after the accident and correctly asserts that there was no direct evidence to show that he was intoxicated at the time he was driving the vehicle. The State relied upon circumstantial evidence to prove that Defendant was intoxicated when he was operating the car.
With regard to the use of circumstantial evidence, this court in State v. Chapman, 625 So.2d 1347, 1349 (La.App. 3 Cir.), writ denied, 629 So.2d 1180 (La.1993), stated:
La.R.S. 15:438 provides:
The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.
Incorporating this rule under the Jackson standard, an appellate court must determine that viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact would have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded. State v. Honeycutt, 438 So.2d 1303 (La.App. 3d Cir.), writ denied, 443 So.2d 585 (La.1983).
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982).
In Chapman, this court determined that the defendant presented a hypothesis of innocence at trial. The defendant testified that he began drinking after the accident, not before the accident.
In reversing his conviction, this court observed that the State presented no evidence to show that the defendant was intoxicated when he drove the vehicle. The court noted that the accident involved a single car and that there was no evidence presented by the State to suggest when the defendant's vehicle left the roadway. The investigating officer admitted that there was nothing about the vehicle to indicate that its driver had been drinking. Lastly, at least two hours had elapsed between the time the defendant was taken home after the accident and before he given an Intoxilyzer test.
Defendant in the instant case raises the same hypothesis of innocence as in Chapman. Defendant testified at trial that he was not intoxicated at the time of the accident and that he did not consume any alcohol until thirty to forty-five minutes after the accident. Defendant explained that he was driving his mother's vehicle on August 5, 2006. After dropping off his cousin in Merryville at about 6:30 p.m., he drove to Delta Downs to bet on the horse races, arriving around 7:00 p.m. Defendant stated that he did not drink when he was at Delta Downs. When he learned that the horses were not racing that evening, he walked around for about twenty minutes, then decided to return to Merryville.
Defendant stated that on his way home, he stopped at the Texaco Truck Stop in Starks, Louisiana, purchased a pack of cigarettes, a twelve-pack of beer and either a two liter or a one and one-half liter bottle of Southern Comfort. A receipt for his purchase submitted into evidence confirmed that Defendant purchased beer and Southern Comfort with his Discover credit card at 7:29 p.m. Defendant maintained that the alcohol was purchased for a barbeque scheduled the following day, because he would be unable to purchase alcohol on Sunday in Merryville.
Next, Defendant testified that he left Starks and was traveling on Highway 389 when it started to rain heavily. He maintained that he had not been drinking at that time. Defendant stated that he slowed down because he could not see and was unable to pull over because there was no shoulder. He described the area as wooded and dark, with no houses, lights, or businesses. Defendant testified that he began looking for a drive to pull into to get off the road. At about 8:30 p.m., he saw a reflector that he believed was marking a culvert under a driveway. Rather than driving over the culvert, Defendant testified that he slid into a ditch.
After the car entered the ditch, water began to enter the car's interior. Defendant got out of the car while it was still lightning and raining. He had no place to go and did not have a cell phone to call for help. Defendant explained that he began to walk toward a stop sign about two miles away to look for a house or passerby so that he could call 911 and a tow truck for help. According to Defendant, it was a long time before someone passed by, so he walked on to the stop sign. He maintained that he walked back and forth to the car several times. When he became hungry, he drank a "couple" of beers. Defendant also stated that he took sips of Southern Comfort as he walked back and forth, drinking about a "quarter" of it. He was not certain how long he stayed with the car.
Defendant indicated that at some point, he began walking toward Merryville. He testified that after walking six to seven miles, two ladies pulled up and offered him a ride to Merryville. Defendant stated that he offered to fill up their car with gas. A receipt indicating that Defendant purchased gas at the Shell station in Merryville at 2:29 a.m. was submitted into evidence. Defendant maintained that six hours elapsed from the time his car was in the ditch at 8:30 p.m., until he arrived in Merryville.
On cross-examination, the State attempted to show that the accident happened later than 8:30 p.m. Defendant confirmed that it would take forty-five minutes to an hour to get from Merryville to Delta Downs. Thus, if he left Merryville at 6:30 p.m. after dropping off his cousin, he would have arrived at Delta Downs close to 7:15 p.m. Defendant stated, however, that he may have left Merryville sooner. He recalled that it was during the evening but could not recall the exact time. Additionally, Defendant reiterated that he stopped at the convenience store after leaving Delta Downs. The register receipt confirms that he made a purchase at 7:29 p.m., but does not indicate what time he left Delta Downs.
In this case as in Chapman, the State did not present evidence to suggest when his vehicle left the roadway, only that the accident may have occurred after 8:30 p.m. First, the record reflects that the wreck was reported and that the vehicle was discovered some time between 12:00 a.m. and 1:00 a.m. Deputy Joe Warren with the Beauregard Parish Sheriff's Office testified that he was patrolling the west side of the parish when he was dispatched to an accident on Highway 389. At 1:00 a.m., Deputy Warren discovered a small unoccupied red car in the opposing ditch at mile marker 17. Deputy Warren stated that the car had to cross the opposing lane to reach the ditch. According to Deputy Warren, the car was located at least fifteen miles from Merryville in an isolated area he described as "the middle of nowhere."
Next, the record indicates that Defendant was located in Merryville at about 2:30 a.m. Officer John Brown of the Merryville Police Department testified that some time after midnight, he was dispatched to investigate a wrecked car on Highway 389. During the investigation, Officer Brown learned that the driver of the car was at the Merryville Truck Stop. Officer Brown found Defendant at the truck stop and asked him to go to the police station to speak with state troopers.
Lastly, the record reflects that Defendant was questioned and tested at about 3:15 a.m. and 4:00 a.m. According to Officer Brown, Trooper Jeff Johnson with the Louisiana State Police arrived about twenty minutes after Defendant arrived at the police station. Trooper Johnson testified that he arrived in Merryville at 3:13 a.m., more than two hours after Defendant's car was discovered. When Trooper Johnson first entered the room and began speaking to Defendant, he immediately noticed a strong odor of alcoholic beverage. He then noticed that Defendant was swaying, his speech was slurred, and his eyes were bloodshot. It was very obvious to Trooper Johnson that Defendant had been drinking. After questioning Defendant, Trooper Johnson arrested him and transported him to the Beauregard Sheriff's Office for chemical testing. Defendant's blood alcohol level was tested using the Intoxilyzer 5000 which indicated that his blood alcohol was .153, almost twice the legal limit, at 3:51 a.m. The test was performed at least three hours after his car was discovered.
Trooper Johnson's accident report indicates that the accident occurred at 1:15 a.m. Trooper Johnson testified, however, that the time is an estimate and stated that such estimates are not always accurate. Trooper Johnson testified that he considered the time he received notice of the accident and the time Defendant was in Merryville. Trooper Johnson admitted that he was uncertain how much time elapsed from the time the vehicle ran into the ditch and his first contact with Defendant.
Additionally, as in Chapman, there is no evidence that the investigating officers found any evidence of alcohol consumption in the vehicle. Deputy Warren stated that he looked in Defendant's vehicle but did not see any beer cans or bottles of liquor. Trooper Johnson also performed a basic inventory of the vehicle and did not recall finding any alcoholic beverages. Lastly, even if the officers had found beer or liquor in Defendant's car, the ruling in Lindinger suggests that the State still had to show how long the car was in the ditch before Defendant was found and that he was intoxicated at the time the vehicle left the highway.
Trooper Johnson also testified that from the position of the vehicle in the ditch, it appeared that the driver of the vehicle had fallen asleep. He explained that there was no indication that some type of evasive action was taken or that the driver lost control. Although Trooper Johnson agreed that there were old roads leading to hunting clubs and oil wells up and down Highway 3898, Trooper Johnson did not believe that the driver's assertion that he confused the area for a driveway because the ditch was steep and grassy and there was no asphalt or improvement in the area. Trooper Johnson stated that he had no reason to suspect that the accident was alcohol related. However, based on his experience, not evidence, Trooper Johnson opined that the driver was either sleepy or intoxicated.
The State contends that the jury made a credibility determination and did not believe Defendant's trial testimony but believed that of Trooper Johnson. According to Trooper Johnson, Defendant denied having anything to drink since the accident. Defendant maintained, however, that Trooper Johnson never asked him this question. The State also asserts that Defendant is a seasoned DWI offender and thus, further tarnishes his credibility. Defendant does not dispute that he has three prior DWI convictions.
In support of its argument, the State refers to State v. Lambert, 97-64 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, wherein the defendant asserted that he started drinking after the accident. The facts in Lambert, however, are easily distinguished from the instant case. In Lambert, the defendant was involved in a two-car accident, and the driver of the other car was able to establish the time of the accident. The defendant did not stop following the accident, and the victim saw the vehicle turn into a trailer park, saw the driver exit the vehicle, and enter an area where two trailers were located. Investigating officers established that the vehicle parked outside of one of the trailers belonged to the defendant. The defendant, however, denied any knowledge or involvement in the accident. During questioning, the officers determined that the defendant had been drinking alcoholic beverages but could not establish when he became intoxicated. Also, the defendant refused to take an Intoxilyzer test.
The defendant was convicted, nonetheless, after the State established at trial that the defendant was in his home about twenty minutes prior to the officers' arrival and that they could smell alcohol on his breath, his speech was slurred, his eyes were blood shot, and he staggered. In affirming the trial court's ruling on appeal, the court distinguished the facts from those in Chapman, 625 So.2d 1347, noting only twenty to twenty-five minutes elapsed between the time of the accident and the time the defendant was questioned. The court also addressed the fact that the defendant had a history of two trials for operating a motor vehicle while intoxicated and concluded that his assertion of post-accident drinking was more likely a subterfuge.
Although a reasonable person could conclude that Defendant's version of the events is not believable, the State, nonetheless, did not present evidence to suggest when Defendant's vehicle left the roadway. Additionally, the testimony elicited at trial indicates that at least two hours elapsed between the time the vehicle was discovered and the time Defendant was determined to be intoxicated. Further, there was no evidence in or near the vehicle to indicate that Defendant had been drinking prior to the accident. Accordingly, we conclude that the evidence is not sufficient to find that Defendant was driving under the influence of alcohol at the time his vehicle left the roadway.
CONCLUSION
Because the State failed to carry its burden of showing that Defendant operated his vehicle while intoxicated, Defendant's conviction is reversed.
REVERSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3344570/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#105)
This is an action by property owners arising out of their complaint about diversion of storm water from two streets onto their land, causing flooding of the premises from time to time. The fourth count alleges violations of the Connecticut Unfair Trade Practices Act, Section 42-110b of the Connecticut General Statutes, against the defendant, Southbury Associates, a real estate agency, which sold them the premises. The sixth count also sounds in a CUTPA violation against the individual defendant, Janet Gall, who is associated with the real estate firm. The defendants, Southbury Associates and Gall, have moved to strike the fourth count on the grounds that one act of negligence is not sufficient to constitute a CUTPA violation. However, the complaint alleges the nondisclosure was intentional in that it was intended or expected to cause a mistake as to the true condition of the property in order to induce the plaintiffs to purchase it. Intentional conduct alleged together with other factual elements of fraud is sufficient to place the matter within the penumbra of a CUTPA claim.
The defendant also has alleged that the plaintiffs have only alleged a single isolated instance, not a practice. The provisions of Section 42-110b deal with practices, not a one time incident of misconduct, constituting a private wrong. For lack of an allegation that the defendant has engaged in the CT Page 10566 conduct as a practice so as to bring it within the penumbra of a public dispute, counts 4 and 6 are struck. See Mead v. Burns,199 Conn. 651; Ivey, Barnum O'Meara v. Indian Harbor Properties,Inc., 190 Conn. 528; Koehm v. Kuhn, 41 Conn. Super. Ct. 130
(1989); Dalton v. Kuell, 10 Conn. L. Rptr.
/s/ Flynn FLYNN, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1561793/ | 18 So. 3d 551 (2008)
Timothy JONES, Petitioner,
v.
STATE of Florida, Respondent.
No. 1D07-4562.
District Court of Appeal of Florida, First District.
August 15, 2008.
Rehearing Denied October 10, 2008.
*552 Timothy Jones, pro se, Petitioner.
Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
ORDER ON SANCTIONS
PER CURIAM.
Timothy Jones filed a petition with this court alleging that he was denied the effective assistance of counsel in his direct appeal. Jones alleged that his counsel was deficient for failing to order a transcript of jury selection proceedings, which he asserted would show that the trial court reversibly erred in denying challenges for cause directed to two jurors who ultimately served on the panel. The petition included a detailed description of the relevant occurrences during the jury selection proceedings, and consistent with the requirements of Florida Rule of Appellate Procedure 9.141(c)(3)(F), it also included an executed oath whereby Jones declared under penalty of perjury that he had read the petition, and that the facts stated therein were true and correct.
Concluding that petitioner's sworn allegations established a preliminary basis for relief, we directed the state to respond. The state did so, and with its response provided a transcript of the jury selection proceedings. In short, that transcript disclosed that the factual allegations made by Jones were a complete fabrication. Indeed, it appears that apart from changing the basis for the prospective jurors' alleged bias and some additional embroidering of the facts, petitioner's description of events was taken almost verbatim from the facts described in Bell v. State, 870 So. 2d 893 (Fla. 4th DCA 2004). Based on the state's response, we by earlier opinion denied the petition alleging ineffective assistance of appellate counsel on the merits. We further directed Jones to show cause why sanctions, including but not limited to referral of this matter to the Department of Corrections for the institution of disciplinary proceedings pursuant to section *553 944.279(1), Florida Statutes, should not be imposed for knowingly or recklessly bringing false information or evidence before the court.
Jones has responded to our order to show cause, asserting that he did not knowingly file a false claim with the court. He asserts that he was being "represented" by an inmate law clerk at his former institution, that he has no knowledge of the law, and that he only filed what the law clerk advised him to file. According to Jones, the law clerk prepared the petition and had him affix his signature, and he signed the petition in the good faith belief that the law clerk had followed court rules. He therefore suggests that the imposition of sanctions is inappropriate.
Given that Jones personally swore that the information contained in his petition was true and correct and that the court's reliance on that representation resulted in a substantial expenditure of the court's resources, as well as those of the Attorney General, we reject petitioner's attempt to absolve himself of responsibility for his actions. See Allen v. State, 746 So. 2d 1247 (Fla. 1st DCA 1999). Accordingly, we hereby find that petitioner either knowingly or recklessly brought false information before the court in this proceeding, and in accordance with section 944.279(1), direct that a certified copy of this order be forwarded to petitioner's institution for disciplinary procedures pursuant to the rules of the Department of Corrections.
We have elected to publish this order as a means of cautioning other inmates (or indeed, any other litigants) of the serious consequences of knowingly bringing false information or evidence before the court, or recklessly doing so in blind reliance on the unscrupulous advice of another. Where allegations of fact are properly sworn to, the court relies on those representations in determining whether the claim states a preliminary basis for relief. Knowingly or recklessly making false allegations results in a substantial waste of judicial resources, and will in turn result in the imposition of such sanctions on the offending party as the court deems appropriate.
BROWNING, C.J., VAN NORTWICK and LEWIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561821/ | 138 A.2d 596 (1958)
Kenson A. KNIGHT
v.
Bernard H. WILLEY.
No. 256.
Supreme Court of Vermont. Caledonia.
January 7, 1958.
*598 Richardson & Caldbeck, St. Johnsbury, for plaintiff.
James B. Campbell, St. Johnsbury, for defendant.
Before CLEARY, ADAMS, HULBURD and HOLDEN, JJ., and SHANGRAW, Superior Judge.
HOLDEN, Justice.
The plaintiff has obtained a verdict in the amount of $5,500 against the defendant on the charge that the defendant, by persuasion, has wrongfully alienated the affections of the plaintiff's wife, Lillian Knight. There was no allegation of criminal conversation. The defendant presents exceptions to the admission of evidence, statement of plaintiff's counsel in argument and to the denial of defendant's motion to set aside the verdict.
The cause was submitted to the jury on sharply controverted facts. Regarding the factual controversy in a light most favorable to the verdict, it appears that the plaintiff and Lillian Knight were married September 24, 1949. Two children have been born of the marriage. Mrs. Knight maintained marital affection for the plaintiff until some time in 1954. At that time her attitude toward her husband underwent a marked change that coincided in point of time with the date when the defendant and Mrs. Knight became acquainted. From that time on the plaintiff's wife was frequently away from her home and family during late evening hours. Mrs. Knight and the defendant were often seen together unaccompanied in the defendant's automobile and riding horses in secluded areas during both daylight and evening hours. The defendant was an unusually frequent visitor at the Knight home. On occasions he had breakfast with Mrs. Knight after Mr. Knight had departed for work. The defendant had admitted in a conversation with the plaintiff that he had arranged a meeting with Mrs. Knight at Littleton, New Hampshire. On an occasion when the plaintiff protested to the defendant concerning the latter's courtship of Mrs. Knight, the defendant stated to the plaintiff that he had become very fond of the plaintiff's wife and children. The defendant transported Mrs. Knight in his automobile to assist her in investigating matters related to her domestic difficulties. The plaintiff and his wife no longer have any affection for each other and were living separate and apart at the time of the trial.
The exception to the action of the trial court in refusing to set aside the verdict is inadequately briefed as to that aspect of the motion that appealed to the trial court's discretion. The supporting brief states merely the defendant's contention, without aid of argument or supporting authorities to point out wherein the claimed abuse of discretion occurred. By reason of this inadequacy, no question is presented for review. Town of Randolph v. Ketchum, 117 Vt. 468, 471, 94 A.2d 410; Johnson v. Moore, 109 Vt. 282, 288, 196 A. 246.
The other reasons stated by the defendant in support of his motion are to the effect that there is no evidence in the case to justify the award to the plaintiff. This attack upon the verdict for want of supporting evidence is, in nature and substance, similar to a motion for a directed verdict. The ruling of the trial court must be sustained if the evidence, tested in a light most favorable to the prevailing party, supports the result reached by the jury. Laferriere v. Saliba, 119 Vt. 25, 30, 117 A.2d 380; Gould v. Gould, 110 Vt. 324, 331, 6 A.2d 24.
*599 The evidence, thus considered, does not preclude a recovery by the plaintiff as a matter of law. On the contrary, the evidence presented warranted the conclusion that the defendant intentionally intruded and trespassed upon the marital relations of the plaintiff. Just and reasonable triers of the fact might well decide that the attentions paid to Mrs. Knight by the defendant had progressed sufficiently far beyond the limits of propriety to destroy, in part at least, the woman's affections for her husband. The jury were afforded an adequate basis by the evidence to determine that the defendant should respond in monetary damages for such harm as he may have done to the plaintiff's marital interests. Restatement, Torts, 1938, § 684; Gaudette v. Taylor, 108 Vt. 108, 109, 183 A. 335. The exception to the denial of the motion to set aside the verdict is without merit.
During the direct examination of the plaintiff as a witness it appeared that on the evening of July 27, 1956, the plaintiff was working at the Fairbanks Morse Plant in St. Johnsbury. His working hours were from 4 p. m. to 12:30 a. m. Over timely objection and exception by the defendant, the plaintiff was permitted to testify that he was called in from his work to the lumberyard gate to meet Mrs. Bernard Willey, the wife of the defendant. As a result of this meeting the plaintiff quit his work and went home to find his children alone in the Knight apartment. The plaintiff testified he waited at the apartment until shortly before midnight when he left for Newbury. Other than the fact that the plaintiff conferred with the defendant's wife, the defendant himself is in no way connected with the events recited. The defendant's objection to the evidence was on the ground that the line of inquiry called for hearsay and was immaterial and prejudicial.
From the testimony as given, no extrajudicial utterance appears. Whatever statement the defendant's wife made to the plaintiff was not given. The hearsay rule is not directly involved.
It is apparent, however, from the testimony elicited, that Mrs. Willey was disturbed by some event to call the plaintiff from his work at a late hour in the night. Her visit was sufficiently urgent to incite the plaintiff's suspicion and compel the plaintiff to quit his labor and return directly to his home to watch and wait for his wife's return. Evidence of Mrs. Willey's call at the plaintiff's place of employment was both improper and immaterial. The event as reported by the plaintiff was not connected to any act or participation by the defendant. The proof offered and received did not afford a basis for any rational inference related to the ultimate fact sought to be proved. Tyrrell v. Prudential Ins. Co., 109 Vt. 6, 21, 192 A. 184, 115 A.L.R. 392.
Although the nature of this action opens a broad field of inquiry and investigation, Rudd v. Rounds, 64 Vt. 432, 439, 25 A. 438, the circumstantial evidence relied upon must tend to connect the defendant with the wrong charged against him. Gero v. John Hancock Mutual Life Ins. Co., 111 Vt. 462, 471, 18 A.2d 154; State v. Ryder, 80 Vt. 422, 426, 68 A. 652.
Although Mrs. Willey was not called as a witness, the import of this testimony was clearly prejudicial. By implication, this testimony brought to the attention of the jury that she was angered and suspicious of the defendant's association with Mrs. Knight. Further, it manifested her active sympathy for the plaintiff's cause. With the Court's approval, the way was opened for indulgence in speculation and conjecture to the defendant's prejudice. Gero v. John Hancock Mutual Life Ins. Co., supra, 111 Vt. at page 471, 18 A.2d at page 158. This exception is sustained.
The defendant's second exception developed in the course of cross examination of the plaintiff. Counsel for the defendant inquired of the witness if he had idly *600 stood by on an occasion about November 2nd when Mrs. Knight was struck down by the plaintiff's brother during an altercation in Bradford. Plaintiff's counsel objected on the ground that this event occurred after the alienation and separation had occurred. The question was excluded over the defendant's offer to show this conduct by the plaintiff in mitigation of damages.
The admissibility of declarations and statements concerning the marital relations of the plaintiff and his alienated spouse is confined to statements made before the claimed interference developed. The reason for the restriction is to guard against possible collusion. The rule and the reason underlying it were recently stated in Parker v. Hoefer, 118 Vt. 1, 17, 100 A.2d 434, 38 A.L.R. 2d 1216, following Fratini v. Caslini, 66 Vt. 273, 275, 29 A. 252.
The reason for the restriction disappears when a specific act of misconduct on the part of the plaintiff toward his wife is offered in mitigation of damages. In the husband's action for alienation of his wife's affections the actual character of both parties to the marriage is material to the issue being tried. 1 Wigmore, Evidence, 3rd Ed., § 211. The husband's marital misconduct and improprieties are the proper subject for consideration by the jury even after the litigation has commenced. It affords no bar to a recovery in this jurisdiction. However, the jury may properly consider it to determine how sensitive the plaintiff is to the marital injury claimed, how real is the agony for which he seeks recovery. Shattuck v. Hammond, 46 Vt. 466, 468-471. See also annotation, 68 A.L. R. 560.
The scope of cross examination is generally within the discretionary control of the trial judge. Bradley v. Kelley & Trustee, 105 Vt. 478, 483, 168 A. 554; Merrihew's Adm'r v. Goodspeed, 102 Vt. 206, 211, 147 A. 346, 66 A.L.R. 1109. But where the witness is a party, there is a right to cross examine on any material matter whether covered by direct examination or not. Macauley v. Hyde, 114 Vt. 198, 200, 42 A.2d 482; Merrihew's Adm'r v. Goodspeed, supra, 102 Vt. at page 211, 147 A. at page 348; Swerdferger v. Hopkins, 67 Vt. 136, 147, 31 A. 153. The exclusion of the question was error.
The next exception by the defendant occurred in the course of the same cross examination. The plaintiff was asked: "And since this divorce was brought and then you turned around and sued this man for alienation, Mr. Knight, you have attended dances at Orford, did you not?" Answer: "Yes." After reply was made by the plaintiff, his counsel objected, but made no motion to strike the answer. The Court, of its own motion, struck the answer and excluded the question. This question, thus excluded, was directed to a collateral matter. If material at all, it was only remotely connected to the subject matter of the litigation. It did not extend to material conduct affecting the plaintiff's character. No error appears by way of this exception. Berard v. Dolan, 118 Vt. 116, 120, 100 A.2d 581.
Over the defendant's objection the plaintiff offered as an exhibit a certain wrist watch. Previous to the offer the plaintiff had elicited from the defendant that he purchased the watch and gave it to Mrs. Knight's mother, Mrs. Nutter. It also appeared that the plaintiff had forcibly removed the watch from his wife's wrist while attending a drive-in theater with her. The watch was offered in connection with the testimony of both the plaintiff and the defendant as evidence of a gift from the defendant to the plaintiff's wife. The offer was received and the defendant assigns error to its admission.
There is danger attendant upon the receipt of any material object in evidence by reason of the natural tendency to infer from its mere production, without further evidence, the truth of all that is predicated upon it. 4 Wigmore, Evidence, 3rd Ed., § 1157, page 254. Here, *601 however, the connection of the exhibit with the defendant and Mrs. Knight was adequately founded in the evidence preliminary to the offer to afford its relevancy. The sufficiency of the foundation laid was a preliminary question for the Court. The correctness of its ruling is not ordinarily subject to review. Hutchinson v. Knowles, 108 Vt. 195, 204, 184 A. 705; Woodcock's Adm'r v. Hallock, 98 Vt. 284, 293, 127 A. 380; Hassam v. J. E. Safford Lumber Co. and Safford, 82 Vt. 444, 449, 74 A. 197. No abuse of discretion appears.
The watch is also the subject of the defendant's next exception. During the examination of Mrs. Knight by counsel for the defendant, the defendant sought to explain the circumstances leading up to Mrs. Knight's possession of the watch and how the defendant happened to bring the watch to the Nutter home. The offer was excluded.
The watch was received in evidence as tending to show it was a gift from the defendant to the alienated spouse. The defendant was entitled as a matter of right to explain the possession of the watch to rebut the plaintiff's claim. Although some explanation was received from another witness, the rejection of the testimony of the claimed donee on the very subject of the gift was error. See Moore's Adm'r v. Cross, 86 Vt. 148, 149, 84 A. 22.
The plaintiff's mother testified generally concerning the mental anguish suffered by the plaintiff as a result of his domestic difficulty. After replying in the affirmative that there was trouble between the spouses, the witness was asked: "When was that, Mrs. Knight?" The witness replied: "When Mrs. Willey called me up and told me." The answer as given indicates a ready desire on the part of the witness to bring to the jury's attention the fact that the defendant's wife was in sympathy with the plaintiff's cause. Counsel for defendant requested the Court to strike the answer and instruct the jury to disregard the remark. The Court complied with the request. The defendant then requested and was allowed an exception to the asking of the question.
An unresponsive answer ordinarily will not produce reversible error. Usually the matter calls for such action by the trial court as justice may require. Enos v. Owen Slate Co., 104 Vt. 329, 338, 160 A. 185. In this situation, the trial court did everything requested of it by the party offended. The question itself was innocuous. We cannot adopt the defendant's unsupported contention that the examiner knew that the unresponsive answer given would be evoked by the question propounded. This exception cannot be sustained.
During cross examination of the plaintiff's father-in-law who was called as a witness for the defendant, plaintiff's counsel inquired if he thought the defendant Bernard Willey would make a pretty good son-in-law. Defendant's timely objection was sustained and no answer was given. The defendant excepted to the asking of the question. While this method of cross examination is clearly improper and is to be deprecated, the exception is not sustained unless prejudice is apparent. Crossman v. Perkins, 101 Vt. 94, 95, 141 A. 594. Prejudice does not appear from this unanswered question.
The defendant assigns error to the argument made to the jury by plaintiff's counsel. It appears that plaintiff's counsel argued, in substance, that incidents such as the one under investigation might lead to murder. Upon objection by the defendant, the trial court stated: "Yes, I don't think any reference should be made to that sort of thing. There is no evidence to show that such a thing does lead to murder, necessarily." The record does not disclose the exact language to which objection was made nor does it show anything further was said by Court or counsel. In any event, the remark was highly improper. It was a *602 lamentable departure from the rule which required counsel to confine his argument to the evidence in the case and to inferences properly to be drawn therefrom. It should have been struck down by the presiding judge as an unwarranted appeal to prejudice. The jury should have been cautioned to disregard it. Duchaine v. Ray, 110 Vt. 313, 321, 6 A.2d 28; Hall v. Fletcher, 100 Vt. 210, 213, 136 A. 388.
Four of the exceptions taken by the defendant during the trial of this cause have been sustained. Regarding the record in its entirety, the cumulative and combined effect of the errors found, convinces us that the rights of the defendant have been impaired to his legal detriment. Wilson v. Dyer, 116 Vt. 342, 346, 75 A.2d 677; State v. Fairbanks, 101 Vt. 30, 34, 139 A. 918. A new trial is required.
Judgment reversed and cause remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858104/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-147-CR
JOE RIVERA GUZMAN,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 0926024, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
PER CURIAM
The district court found appellant guilty of possessing less than twenty-eight grams
of heroin and assessed punishment at imprisonment for twenty years. Texas Controlled
Substances Act, Tex. Health & Safety Code Ann. § 481.115 (West 1992). In two points of error,
appellant urges that the heroin was unlawfully seized and that the court erred by admitting it in
evidence after overruling his motion to suppress.
On the afternoon in question, Austin police officer Troy Gay was on patrol in the
1700 block of East First Street when he saw a male pedestrian flag down a passing vehicle. As
the officer watched, a passenger in this vehicle gave the man cash in exchange for an object the
man took from his mouth. Believing he had witnessed an unlawful sale of narcotics, the officer
arrested both parties. Officers Jimmy Cardenas and Ronald Lara responded to Gay's call for
assistance.
At the hearing on appellant's motion to suppress, Cardenas testified that, after his
arrest, the man on the street told the officers he knew "where we can get a lot more heroin than
what we're speaking of now." The man then described "a house where he knew some other
people were, at that specific moment, in possession of some heroin." Cardenas continued:
He told us, as we had been speaking to him, that Mr. Joe Guzman was in
possession of heroin at the time, and he had walked right by us. We weren't
concerned with him at the time. He wasn't involved in the actual stop, you know,
so he wasn't questioned during this. We looked for him, and of course, he had
already walked away.
So as we continued to speak to him [the informer], myself and Officer Lara,
we called for two senior sergeant narcotics officers to come to the scene because
at this specific time we were talking about a house which supposedly had heroin,
and we were going to try [to] figure out, you know, what our next step was going
to be.
Q. (By Ms. Crosby) [prosecutor] And what happened then?
A. Well, what happened next is the two other officers -- senior sergeants,
arrived. While we were talking to them about the information we had, I think Lara
was still with the CI which was giving us the information, and he had described
Joe Guzman at the time as being an older gentleman, small Hispanic male, wearing
a brown leather jacket.
While I was still conversing with the other senior sergeant, about this time
Officer Lara said, "There he is. There he is."
Apparently the informant had said, "There goes Joe. That's the guy I was
talking to you about earlier." So apparently Mr. Guzman and another gentleman
were walking by us again, and we started walking towards them, you know, in a
hurriedly manner.
Q. And what did he do?
A. I told him to stop. I said, "Hey, stop." He kind of turned and looked
at us and started walking a little faster.[ (1)] So we ran up to him, and as I ran up to
him, I could see him swallowing, you know, like you swallow -- you could see his
throat swallowing something.
Q. What did you do when you observed that?
A. When I saw that, I immediately figured he was swallowing the heroin
which the other gentleman told us about. He told us that he had balloons in his
mouth.
Q. And after you saw the swallowing motion and you formed your opinion
as to what he was doing, what did you do next?
A. Well, I immediately went for his throat, and I grabbed him around his
throat, and I told him, you know, "Spit it out. Spit it out." He kept trying -- I
could feel him trying to swallow again, so I squeezed a little harder, and I started
to take him down, you know, face first towards the ground, telling him, "Spit it
out. Spit it out." He finally spit out three small balloons.
Appellant was transported to a hospital where his stomach was pumped and one more balloon was
recovered. The balloons were later found to contain heroin.
Appellant contends the heroin should have been suppressed because it was seized
pursuant to and as a result of an unlawful warrantless arrest. Tex. Code Crim. Proc. Ann. art.
38.23 (West Supp. 1993). The State responds that the arrest was authorized by article 14.01 of
the Code of Criminal Procedure, which permits a police officer to arrest an offender without
warrant when the offense is committed in the officer's presence. Tex. Code Crim. Proc. Ann.
art. 14.01 (West 1977). (2)
An officer may arrest a person pursuant to article 14.01 only if there is probable
cause with respect to that person. Stull v. State, 772 S.W.2d 449, 451 (Tex. Crim. App. 1989).
Probable cause for arrest exists when the facts and circumstances within the officer's knowledge
and of which the officer has reasonably trustworthy information are sufficient to warrant a prudent
belief that the arrested person has committed or is committing an offense. Id. In this cause, it
is undisputed that the police did not see appellant commit an overtly criminal act. But activities
that are not overtly criminal may be sufficient, when coupled with an officer's prior knowledge,
to establish probable cause that an offense is then occurring. Id. at 452; Adkins v. State, 764
S.W.2d 782, 786 (Tex. Crim. App. 1988); Lunde v. State, 736 S.W.2d 665 (Tex. Crim. App.
1987). Because the officers' information concerning appellant came entirely from the informer,
the informer's trustworthiness is crucial to a finding of probable cause.
The officers testified that they had never seen the informer before the afternoon in
question, and there is no evidence that he had previously given the police reliable information. (3)
The State cites cases holding that the police may act immediately upon information furnished by
a witness to a crime without first investigating the reliability and credibility of that witness.
Frazier v. State, 480 S.W.2d 375, 378 (Tex. Crim. App. 1972); Ramirez v. State, 658 S.W.2d
808, 810 (Tex. App.--Corpus Christi 1983), aff'd, 672 S.W.2d 480 (Tex. Crim. App. 1984). In
those cases, however, the courts were referring to a witness whose only contact with the police
or criminal activity was a result of having witnessed a single criminal act, as distinguished from
the usual police informer who has a criminal background or enjoys the confidence of criminals.
Frazier, 480 S.W.2d at 379; Ramirez, 658 S.W.2d at 810. In this cause, the informer had been
arrested for selling a controlled substance only minutes before making his crucial statements to
the police. We do not believe that he was a citizen witness on whom the police could rely without
a further showing of credibility.
An officer may rely on information received from an informer if that information
is reasonably corroborated by other matters within the officer's knowledge or by the officer's
subsequent investigation. Illinois v. Gates, 462 U.S. 213, 242 (1983); Whaley v. State, 686
S.W.2d 950 (Tex. Crim. App. 1985). Gay testified that he believed the informer in this cause
was credible because "he was giving us information not on Mr. Guzman, okay, not on just him
alone, he was giving us other information such as other locations, other areas in town which are
known to be known narcotic areas which he was -- he was giving us some information on those
areas." But when asked, the officer could not provide any details with regard to this other
information. On this record, it cannot be said that the informer was shown to possess a degree
of knowledge about drug dealing in Austin sufficient to warrant the conclusion that his tip about
appellant was probably accurate.
As further corroborative evidence, the State cites the officers' testimony that the
area in which the incident occurred was known for drug dealing. The officers did not testify,
however, that this was an area frequented only or mostly by drug dealers and users. A person
found in a high-crime area does not for that reason have a lesser right than others to be free from
detention or arrest. Conner v. State, 712 S.W.2d 259, 263 (Tex. App.--Austin 1986, pet. ref'd).
Officer Lara testified that he had previously seen appellant in the area, but he did not testify that
he had seen appellant commit a criminal act.
Finally, the State argues that the informer's tip was corroborated by the officers'
observations at the scene. The informer told the officers that Joe Guzman, a Hispanic man
wearing a brown coat, was selling heroin on East First Street. Moments later, appellant, who
apparently matched this description, walked past the patrol car. In an analogous case, however,
this Court held that the corroboration of facts apparent to any passer-by adds little to an informer's
credibility. Id. at 262.
The State also relies on the testimony that appellant swallowed after seeing the
officers. Swallowing, of course, is a normal body function and is not usually a sign that a person
is engaged in criminal activity. To conclude that appellant's swallowing corroborated the
informer's tip and gave the officers probable cause to arrest him requires the application of
circular reasoning: the swallowing was a suspicious act in light of the tip, and the tip was reliable
because of the suspicious swallowing.
The State cites three opinions in support of its contention that appellant was
lawfully arrested: Hernandez v. State, 548 S.W.2d 904 (Tex. Crim. App. 1977); Gonzales v.
State, 648 S.W.2d 684 (Tex. Crim. App. 1983); and Sanders v. State, 855 S.W.2d 151 (Tex.
App.--Houston [14th Dist.] 1993. no pet.). We find each to be distinguishable.
In Hernandez, the only issue presented was whether officers having probable cause
to believe that the defendant had contraband in his mouth acted lawfully when they wrestled the
defendant to the ground and choked him until he spit out four balloons. The court held that the
officers' actions were proper. 548 S.W.2d at 905. Because the existence of probable cause was
neither contested nor discussed in Hernandez, it is not on point in the instant cause.
In Gonzales, the court held that the police officers' observation of the defendant's
attempt to conceal balloons in his mouth, together with their knowledge that balloons are used to
carry heroin in the manner observed, was sufficient to authorize the defendant's immediate arrest
and the contemporaneous seizure of the balloons. 648 S.W.2d at 687. In the cause before us, the
officers testified that they did not see the balloons in appellant's mouth until after he was arrested.
In Sanders, a police officer who had made many narcotics arrests saw the
defendant, a pedestrian, engage in a transaction with a passing motorist. Based on his experience,
the officer believed he had witnessed a crack cocaine sale. As the officer approached the
defendant, he saw him place the contents of a matchbox into his mouth. The officer knew that
drug dealers commonly keep contraband in matchboxes. The court held that the officer had
probable cause to arrest the defendant without a warrant, and acted properly in placing his arm
around the defendant's throat to prevent the destruction of the evidence. 855 S.W.2d at 153. In
the instant cause, the officers testified that they did not see appellant commit any overt criminal
act, and there is no evidence that the officers saw appellant place anything in his mouth.
In Conner, this Court dealt with facts similar to those now before us. Police
officers received information from an informer of unknown credibility that the defendant was
selling contraband at a particular location. The officers went to that location and confirmed the
defendant's presence, but did not see him commit any act suggestive of criminality. The officers
did know that the defendant had been previously arrested for possession of cocaine and that the
neighborhood in question was a high-crime area. When the officers approached the defendant,
he turned and walked away. This Court held that these facts, and the reasonable inferences from
these facts, did not give the officers an adequate basis for detaining the defendant. 712 S.W.2d
at 262-63.
An investigating officer's hunch, suspicion, or good faith perception is not alone
sufficient to constitute probable cause for an arrest. Stull, 772 S.W.2d at 451. We conclude that
the totality of the circumstances in this cause did not give the police probable cause to arrest
appellant. Because the balloons of heroin were seized incident to, or were the fruits of,
appellant's unlawful arrest, the district court abused its discretion by overruling appellant's motion
to suppress. The points of error are sustained.
The judgment of conviction is reversed and the cause is remanded to the district
court.
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Reversed and Remanded
Filed: December 8, 1993
Publish
1. In his testimony at trial, Cardenas stated that at this point in the confrontation, he
asked appellant what he had in his mouth. Cardenas also testified at trial that it is common
for heroin dealers to carry the drug in their mouths packaged in small balloons, and to
swallow the balloons when approached by the police.
2. The State concedes, as it did below, that appellant was arrested when the officer seized
him by the throat. See Tex. Code Crim. Proc. Ann. art. 15.22 (West 1977); Burkes v. State,
830 S.W.2d 922, 925 (Tex. Crim. App. 1991); Amores v. State, 816 S.W.2d 407, 411-12 (Tex.
Crim. App. 1991); Bell v. State, 845 S.W.2d 454, 459 (Tex. App.--Austin 1993, no pet.).
3. The informer is truly anonymous. His name does not appear in any report and the
officers could not remember it. None of the officers had seen him since the afternoon in
question. Efforts by the police to locate the informer were unsuccessful, and his identity and
whereabouts were unknown at the time of appellant's trial. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2858142/ | Henderson v. Franklin Federal Bancorp
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-88-193-CV
ROY J. HENDERSON AND REGINA J. HENDERSON,
APPELLANTS
vs.
FRANKLIN FEDERAL BANCORP,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. 406,100, HONORABLE JERRY DELLANA, JUDGE PRESIDING
This cause was removed to the United States District Court for the Western District
of Texas on October 28, 1988. Henderson v. Federal Sav. & Loan Ins. Corp., No.
A-88-CA-946. The federal court remanded the cause to this Court on December 14, 1990. This
Court subsequently directed the district court of Travis County to conduct a hearing and determine
what individual owns the asset or liability at issue. The district court on September 27, 1993,
determined that appellee Franklin Federal Bancorp, the only party remaining in the lawsuit
adverse to appellants Roy J. Henderson and Regina J. Henderson, does not own the asset or
liability.
The Hendersons have not contested the state district court's determination that
Franklin Federal does not own the asset or liability. Rather, the Hendersons have tendered a
motion to remand the cause to the state district court so that court can (1) determine who owns
the asset or liability at issue and (2) name the owner as the defendant in this lawsuit.
This Court has no authority to remand the cause and allow the addition of new
parties and the continuation of this lawsuit against those parties. There have already been two
final judgments in this cause--the judgment signed July 8, 1988, by the state district court and the
judgment entered December 14, 1990, by the clerk of the federal district court. These two
judgments have reduced the parties adverse to the Hendersons to Franklin Federal, and the state
district court has determined that Franklin Federal does not own the asset or liability. If the
Federal Deposit Insurance Corporation owns the asset or liability, then the Hendersons have no
recourse in this Court because the federal district court dismissed the FDIC. If the FDIC
transferred the asset or liability to someone other than Franklin Federal, then the Hendersons
failed to bring that party into the federal-court suit before remand. The Hendersons' motion to
remand is overruled.
As an appellate court, we are constrained to review the judgment of the state trial
court as modified in this cause by the federal district court. This appeal no longer contains a
dispute between the parties to the appeal, and, therefore, the appeal is moot.
The appeal is dismissed as moot.
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Appeal Dismissed as Moot
Filed: November 10, 1993
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2858147/ | Rader v. State
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-065-CV
HARVEY RADER,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. 91-15037, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING
An oil operator complains of a mandatory injunction to enforce two Railroad
Commission orders to plug two abandoned wells. We will affirm the judgment of the trial court.
BACKGROUND
Harvey Rader d/b/a Rader Oil Company was found to be the operator of Well No.
B-2 and Well No. 1 of the King Ranch Lease in the Kingsville Field of Kleberg County. In two
separate dockets, the Railroad Commission ordered Rader to plug the two wells and assessed
administrative penalties of $3000 in each docket. Tex. Nat. Res. Code Ann. §§ 81.0531, 89.001,
89.011 (West 1993) (the "Code"). Rader did not appear at the proceedings and did not seek
judicial review of the Commission's orders.
When Rader did not plug the wells or otherwise bring them into compliance and
did not pay the penalties or post a bond, the Commission sought enforcement of its orders in the
district court of Travis County. Code §§ 85.351, 89.121. The trial court issued an injunction
ordering Rader to plug the wells, assessed civil penalties of $15,000 plus post-judgment interest,
and ordered Rader to pay court costs and attorney's fees. Code §§ 85.352, .381; Tex. Gov't Code
Ann. § 402.006 (West 1990). Rader brings this appeal complaining of a lack of due process in
the Commission's manner of service, raising evidentiary issues, and arguing that the trial court
was not authorized to assess civil penalties or attorney's fees and improperly granted affirmative
injunctive relief.
DISCUSSION
DUE PROCESS
In his first point of error, Rader brings a constitutional challenge to the notice
provisions of the Code, alleging that only personal service of proceedings before the Commission
can afford due process to an operator subject to a Commission order that may be enforced by
administrative and civil penalties and mandatory injunction. See Code § 89.041 (requiring "due
notice" in such proceedings); Act of May 4, 1993, 73d Leg., R.S., ch. 268, sec. 1, § 2001.051,
1993 Tex. Sess. Law Serv. 587, 742 (to be codified as Administrative Procedure Act, Tex. Gov't
Code Ann. § 2001.051) (requiring "reasonable notice" of not less than ten days to parties in
contested cases). (1) Despite the Commission's compliance with these statutory notice requirements,
Rader complains that he only received notice of these proceedings by mail and argues that this
method of service is a constitutional infirmity that renders the Commission's orders invalid and
not subject to enforcement in the present cause of action.
When Rader failed to file a motion for rehearing in the Commission and failed to
bring suit for judicial review in district court, the Commission's orders became final. See APA
§§ 2001.144-.145, .171. A final order of the Commission that is valid on its face is not subject
to collateral attack in a subsequent enforcement proceeding. Jolly v. State, 856 S.W.2d 859, 861
(Tex. App.--Austin 1993, writ requested) (citing Corzelius v. Harrell, 143 Tex. 509, 186 S.W.2d
961, 967 (Tex. 1945); Magnolia Petroleum Co. v. New Process Prod. Co., 129 Tex. 617, 104
S.W.2d 1106, 1110 (Tex. 1937); Texas Steel Co. v. Fort Worth & D.C. Ry. Co., 120 Tex. 597,
40 S.W.2d 78, 81 (Tex. 1931); Combs v. State, 526 S.W.2d 648, 649 (Tex. Civ. App.--Austin
1975, writ ref'd n.r.e.), cert. denied, 426 U.S. 922 (1976)). In both Jolly and Combs, this Court
refused to entertain collateral attacks on final orders of the Commission, even complaints about
a denial of due process in Commission proceedings. Because Rader brings an impermissible
collateral attack on a final order of the Commission, we overrule the first point of error.
EVIDENTIARY ISSUES
In his second point of error, Rader complains of evidence admitted by the trial
court. He argues that the trial court improperly admitted State's exhibits one and two, which were
summaries of the documents before the Commission in these two dockets, including the final
orders and supporting evidence of Rader's failure to plug the wells and to deposit the
administrative penalties assessed. Over Rader's objections that the exhibits were hearsay, were
improperly authenticated, and were not furnished fourteen days in advance as "business records,"
the court properly admitted the exhibits as self-authenticating public records and reports. Tex.
R. Civ. Evid. 803(8).
Rader also complains of the testimony of the State's expert witness, Felix Daily,
who identified the agency documents contained in exhibits one and two, and testified as to Rader's
noncompliance and the irreparable harm which that noncompliance might occasion. We hold that
the court properly overruled the hearsay objection to Daily's testimony and that appellant failed
to preserve any objection to Daily's qualification as an expert. Tex. R. App. P. 52(a). We
overrule the second point of error.
Having concluded that the court properly admitted the two exhibits and properly
allowed Daily to testify that the wells had not been plugged, we overrule Rader's third point of
error that there is no evidence or insufficient evidence to support the trial court's judgment.
PENALTIES, ATTORNEY'S FEES, AND INJUNCTION
In his final three points of error Rader complains of the trial court's judgment (1)
assessing additional penalties of $15,000 for his noncompliance, (2) awarding attorney's fees, and
(3) issuing a mandatory injunction against him. We find all of these complaints to be without
merit. In Carbide International, Ltd. v. State, 695 S.W.2d 653 (Tex. App.--Austin 1985, no writ),
this Court held that section 85.381 of the Code authorizes the trial court to assess civil penalties
of up to $10,000 per day for an operator's failure to comply with the Commission's order to plug
an abandoned well. The 1983 amendment to the Code does not change our interpretation of that
statute's applicability in this situation. See Jolly, 856 S.W.2d at 862 (upholding civil penalties
under section 81.0531 for failure to plug abandoned well). We overrule the fourth point of error.
Concluding that the State was entitled to attorney's fees under Texas Government Code section
402.006, we also overrule point of error five.
Finally, we consider appellant's complaint that because a legal remedy exists, the
court was without authority to grant injunctive relief to the State, especially affirmative injunctive
relief. Rader's complaint ignores sections 85.351 and 85.352 of the Code which specifically
authorize the State to seek a mandatory injunction to enforce a Commission order. See Jolly, 856
S.W.2d at 862; Combs, 526 S.W.2d at 649 (affirming injunctions ordering operators to plug
abandoned wells). We overrule the sixth point of error.
CONCLUSION
Finding no error, we affirm the trial court's judgment.
Bea Ann Smith, Justice
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Affirmed
Filed: November 10, 1993
Do Not Publish
1. 1 All citations in this opinion are to the current Administrative Procedure Act rather than
to the former Administrative Procedure and Texas Register Act, because the recent
codification did not substantively change the law. Act of May 4, 1993, 73d Leg., R.S., ch.
268, § 47, 1993 Tex. Sess. Law Serv. 587, 988; id. sec. 1, §§ 2001.001-.902, 1993 Tex.
Sess. Law Serv. at 737-54 (to be codified as Administrative Procedure Act, Tex. Gov't Code
Ann. §§ 2001.01-.902) [hereinafter APA]. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1561918/ | 69 F.2d 703 (1934)
IOWA SOUTHERN UTILITIES CO.
v.
CASSILL, Mayor, et al.
No. 9713.
Circuit Court of Appeals, Eighth Circuit.
March 5, 1934.
Donald Evans, of Des Moines, Iowa (Carr, Cox, Evans & Riley, of Des Moines, Iowa, on the brief), for appellant.
William L. Hassett, of Des Moines, Iowa (Poppenhusen, Johnston, Thompson & Cole, of Chicago, Ill., on the brief), for appellees.
*704 Before GARDNER and WOODROUGH, Circuit Judges, and MARTINEAU, District Judge.
GARDNER, Circuit Judge.
Appellant, as plaintiff below, brought this suit to enjoin the defendants, constituting the town of Lenox, Iowa, the mayor and councilmen thereof, and Fairbanks, Morse & Co. as contractor, from carrying out a contract entered into between the town of Lenox, Iowa, and Fairbanks, Morse & Co., by the terms of which Fairbanks, Morse & Co. agreed to sell to the town materials, and to construct a plant for the generation and distribution of electrical energy. For the materials, machinery, equipment, and services involved in constructing a completed plant, the town agreed, in the manner provided in the contract, to pay appellant the sum of $71,600.
For convenience, the parties will be referred to as they were designated in the lower court.
Plaintiff is a public utility company, organized under the laws of Delaware, owning, operating, and maintaining an electric light and power plant in various communities in Iowa, including the town of Lenox, and is the owner of a franchise authorizing it to distribute and sell electrical energy to the citizens of Lenox. At the time the bill of complaint was filed, June 13, 1932, plaintiff's franchise or permit had an unexpired period of about ten years.
Plaintiff was and is the owner of property in the town of Lenox, and is, hence, a taxpayer therein. It bases its right to an injunction on the charge that the contract for the materials and services entering into the construction, maintenance, and operation of the plant by the municipality is illegal, in that it is violative of both statutory and constitutional provisions of the state of Iowa, and that plaintiff is entitled to protection, not as the holder of an exclusive franchise, but against unlawful competition.
The facts, aside from those admitted by the pleadings, were stipulated in writing, and the court in effect adopted the facts so stipulated as its findings in the case, and from such facts concluded that the plaintiff was not entitled to the relief demanded, and entered decree dismissing the suit on its merits. From the decree so entered, plaintiff has appealed, urging that: (1) The contract is void because it violates the terms of the statute pursuant to which it was executed; and (2) the contract is void because it constitutes a debt and is in excess of the constitutional debt limitation.
The right of plaintiff to maintain the suit as the owner of a permit or franchise to distribute electrical energy to the inhabitants of the town of Lenox, and hence, entitled to protection against unlawful competition, is not subject to controversy. City of Campbell, Mo., v. Arkansas-Missouri Power Co. (C. C. A. 8) 55 F.(2d) 560; Frost v. Corporation Commission, 278 U. S. 515, 49 S. Ct. 235, 73 L. Ed. 483.
The power of the defendant city to enter into the contract is bottomed on the following statutes:
Section 6128, Code of Iowa 1931: "They (cities and towns) may grant to individuals or private corporations the authority to erect and maintain such works or plants for a term of not more than twenty-five years, and may renew, amend, or extend the terms of the grant; but no exclusive franchise shall be granted, amended, extended, or renewed."
Section 6134-d1, Code of Iowa 1931: "Contract authorized. They shall have power to pay for any such plant, improvement or extension thereof out of the past earnings of the plant and/or out of the future earnings and/or may contract for the payment of all or part of the cost of such plant, improvement or extension out of the future earnings from such plant, and may secure such contract by the pledge of the property purchased and the net earnings of the plant."
Section 6134-d2, Code of Iowa 1931: "Nature and requirements of contract. Such contract shall not constitute a general obligation or be payable in any manner by taxation. Such contract shall specify the maximum rate that may be charged the consumers, including the municipality, and the city shall not increase or fix any rate beyond such maximum. Under no circumstances shall the city be in any manner liable by reason of the failure of the net earnings being sufficient for the payments provided in the contract. Such contract shall also specify the rate of interest to be charged."
These statutes were passed in 1931. Prior to their adoption, the Supreme Court of Iowa had held that municipalities, under the general power vested in them by the then existing statutes, had no authority to enter into a contract pledging the future earnings of the plant itself for the payment of the purchase price. Van Eaton v. Sidney, 211 Iowa, 986, 231 N. W. 475, 71 A. L. R. 820. Apparently these statutes were adopted for the purpose of granting such authority.
*705 The contract here involved contains the following provision: "The said Municipality upon its part agrees to purchase said machinery, equipment and materials for the price and upon the terms above set out, and to pay any balance of said purchase price not paid in cash as above set out solely out of the net earnings of the Electric Light and Power Plant of said municipality, it being understood and agreed that such agreement to pay the purchase price out of the net earnings of the plant shall not constitute a general obligation of said Municipality or be payable in any manner or under any circumstances by taxation but shall be payable solely out of the net earnings of said electric light and power plant. And it is further understood and agreed that under no circumstances shall the said Municipality be in any manner liable by reason of the failure of the net earnings being sufficient to meet the payments provided for in this contract."
It is conceded that if this contract creates a debt, then it is void, as the debt thus created would be in excess of the constitutional limitation of indebtedness of the town of Lenox (Const. Iowa, art. 11, § 3).
It is contended by plaintiff that the contract is void, even though it may not create an indebtedness, and this contention is based upon a provision in the contract which defines "net earnings" as "the balance of the gross receipts from the electric light and power plant of said municipality after the payment solely of legitimate and necessary expenses of the operation and maintenance of said plant." It is urged that the term "net earnings" has a definite legal, as well as a practical, significance, and that properly defined, it constitutes the balance of receipts remaining after deducting all proper operating and maintenance expenses and charges, and in addition thereto a proper charge for depreciation of the plant and materials which may become worn out or obsolete. In support of this contention it is pointed out that it was stipulated in the lower court that it is generally recognized by accountants, engineers, and businessmen, that a charge for depreciation of physical property should be made for the purpose of providing a fund to replace facilities that may be retired on account of use and obsolescence. In the case of an electric light plant of the kind specified in the contract here involved, it is stipulated that a charge of 5 per cent. of the original cost would be appropriate. It is, therefore, urged that the contract pledges more than the net earnings properly defined, and hence is not authorized by the Iowa statutes, because it creates an indebtedness in excess of the constitutional limitation.
Numerous authorities are cited as supporting plaintiff's contention. An examination of these authorities discloses that the issue before the court was either one of rates or taxation. They do not purport to deal with the expression "net earnings." The inquiry was as to net earnings from invested capital, and, generally, in calculating net earnings from invested capital, an allowance for depreciation of the plant in which the capital is invested should be made. Thus, in Knoxville v. Knoxville Water Company, 212 U. S. 1, 29 S. Ct. 148, 152, 53 L. Ed. 371, it is said: "A water plant, with all its additions, begins to depreciate in value from the moment of its use. Before coming to the question of profit at all the company is entitled to earn a sufficient sum annually to provide not only for current repairs, but for making good the depreciation and replacing the parts of the property when they come to the end of their life."
And in United States v. Ludey, 274 U. S. 295, 47 S. Ct. 608, 610, 71 L. Ed. 1054, also cited by plaintiff, the court said: "The depreciation charge permitted as a deduction from the gross income in determining the taxable income of a business for any year represents the reduction, during the year, of the capital assets through wear and tear of the plant used. The amount of the allowance for depreciation is the sum which should be set aside for the taxable year, in order that, at the end of the useful life of the plant in the business, the aggregate of the sums set aside will (with the salvage value) suffice to provide an amount equal to the original cost. The theory underlying this allowance for depreciation is that by using up the plant a gradual sale is made of it."
From these and similar authorities, it is earnestly contended that the term "net earnings," as used in the statute under consideration, must be construed to mean the balance remaining after paying the expenses of operation and maintenance, plus depreciation.
It must be borne in mind that the municipality has no capital invested in this plant, but the capital invested has been furnished by the vendor, Fairbanks, Morse & Co. In construing the statute, we should give effect to the legislative intent, if that is ascertainable. The plan for acquisition of a utility plant by the municipality, authorized by the Iowa statutes, involved no capital investment by the town. All the earnings of *706 the plant, above the cost of operation and maintenance, are net earnings to the town because it has no capital invested to be compensated or kept up by estimated depreciation. Title to the property is retained in the vendor and vests in the town when all the purchase price has been paid. At that time, and not until that time, does the property become that of the municipality. So that the vendor contracts to vest title in the municipality, not of a new plant, but of a plant which has been used, but which has been properly maintained. There is, therefore, no occasion, so far as the municipality is concerned, for setting aside a fund to cover depreciation. If such fund were set aside, it would belong to the municipality, and when its plant shall have been paid for out of the net earnings, it would then not only own a plant but would have at its disposal a fund covering depreciation. The vendor would have no beneficial interest in such a fund, and its creation could have no bearing upon the rights of the parties under this contract.
But even where there is a question of invested capital involved, it is not universally held that the public utility is entitled to set aside a fund covering depreciation among its annual charges. Thus, the Supreme Court of Iowa, in Cedar Rapids Water Co. v. City of Cedar Rapids, 118 Iowa, 234, 91 N. W. 1081, 1091, refused such an allowance as an annual charge. The court said: "So, also, we may say we see no reason why plaintiff, in addition to operating expenses, repairs, and other ordinary charges, should be allowed to reduce the apparent profits by deductions for a restoration or rebuilding fund. The setting aside of such a fund may be good business policy, and, if the company sees fit to devote a portion of its profits to that purpose (though, as we understand the record, no such fund has yet been created), no one can complain; but it is in no just sense a charge affecting the net earnings of the works."
This decision had been handed down long before the statutes under consideration were passed. We cannot, therefore, conclude that the Legislature had in mind, in passing the statutes, the definition of "net earnings" for which plaintiff contends.
Not only had the Supreme Court of Iowa, but other courts as well, recognized as a proper definition of "net earnings" that embodied in the contract challenged in this case. We refer to a few of these authorities by way of illustration.
In Connolly v. Davidson, 15 Minn. 519 (Gil. 428), 2 Am. Rep. 154, the court said: "The word `profits,' must be taken, as it is to be presumed that it would be taken by the jury, to mean the excess of receipts over expenditures; that is, net earnings; such being its usual, ordinary and correct meaning." (Italics supplied.)
The Supreme Court of California, in People v. San Francisco Savings Union, 72 Cal. 199, 13 P. 498, 499, cites with approval Connolly v. Davidson, supra, and in the course of the opinion it is said: "What are the surplus profits arising from the business of the corporation? The word `profits' signifies an excess of the value of returns over the value of advances. The excess of receipts over expenditures; that is, net earnings." (Italics supplied.)
In the course of the opinion, the court quotes with approval from St. John v. Erie R. Co., Fed. Cas. No. 12,226, 10 Blatchf. 271, as follows: "`Net earnings are properly the gross receipts, less the expense of operating the road, or other business of the corporation. Interest on debts is paid out of what thus remains; that is, out of the net earnings.'" (Italics supplied.)
In Vermont & C. R. Co. v. Vermont Cent. R. Co., 50 Vt. 500, it is said that: "`Net earnings' means what is left after paying the legitimate cost and expense of making earnings by use of the property."
So, in Hazeltine v. Belfast & M. L. R. Co., 79 Me. 411, 10 A. 328, 331, 1 Am. St. Rep. 330, the Supreme Court of Maine held that "net earnings" means "the gross receipts, less the expenses of operating the road to earn such receipts."
And, in Clark v. Vandalia R. Co., 172 Ind. 409, 86 N. E. 851, 854, the Supreme Court of Indiana held that: "Earnings signify money; net earnings, the sum received in excess of operating expenses."
In Bank of Morgan v. Reid, 27 Ga. App. 123, 107 S. E. 555, 556, the Court of Appeals of Georgia held that "net earnings" means "the difference between the present value of all the corporate assets and the amount of all losses, expenses, other charges and liabilities, including the capital stock."
In Kansas City S. R. Co. v. United States, 231 U. S. 423, 34 S. Ct. 125, 132, 58 L. Ed. 296, 52 L. R. A. (N. S.) 1, the Supreme Court of the United States, in considering an attack upon the Hepburn Act (34 Stat. 584), and particularly the provisions providing for a system of accounting by common carriers, had occasion to refer to the *707 term "net earnings" and pointed out the distinction between the property or capital accounts and the operating accounts. In the course of the opinion it is said: "* * * the operating accounts, designed to show, on the one side, gross receipts or gross earnings for the year, and on the other side, the expenditures involved in producing those gross earnings and in maintaining the property, the balance being the net earnings." (Italics supplied.)
We cannot say that the Legislature necessarily intended the term "net earnings," as used in the statute, to mean the balance of receipts remaining after deduction of not only operating and maintenance expenses, but in addition thereto a charge for depreciation. The words in bookkeeping language mean a balance, or what remains after something has been deducted. What the deduction shall be, or what it shall include, must be determined from the occasion for the use of the words, or from the context, and we think the definition contained in the contract does no violence to the statute.
It remains to consider whether the contract created a debt. It is well established by the authorities that if the contract in fact pledges only net earnings within the meaning of the quoted statute, then it does not create a "debt." Wyatt v. Town of Manning (Iowa) 250 N. W. 141, 145; Franklin Trust Co. v. City of Loveland, Colo. (C. C. A. 8) 3 F.(2d) 114, 116; City of Campbell, Mo., v. Arkansas-Missouri Power Co. (C. C. A. 8) 55 F.(2d) 560; Shields v. Loveland, 74 Colo. 27, 218 P. 913; Carr v. Fenstermacher, 119 Neb. 172, 228 N. W. 114; Faulkner v. Seattle, 19 Wash. 320, 53 P. 365; Winston v. Spokane, 12 Wash. 524, 41 P. 888; Barnes v. Lehi, 74 Utah, 321, 279 P. 878; Kasch v. Miller, 104 Ohio St. 281, 135 N. E. 813; City of Bowling Green v. Kirby, 220 Ky. 839, 295 S. W. 1004.
In Wyatt v. Town of Manning, supra, in a well-considered opinion, the Supreme Court of Iowa, in construing a contract very similar in its terms to the one which we are considering, puts to rest plaintiff's contention that a debt was created by this contract. In the course of the opinion it is said: "As previously indicated, the question to be determined here is whether the cost of the electric plant under consideration is a debt within the contemplation of the constitutional and statutory prohibition. If it is such a debt, it exceeds the limitation. According to section 6134-d2, the cost of the electric plant financed under section 6134-d1 shall not constitute a general obligation or be payable in any manner by taxation, or in any other way except through the earnings of the plant."
After referring to and quoting from one of its prior decisions, the court further says:
"We there held that the limited obligation was not an indebtedness within the meaning of the Constitution and statutes fixing the limit of indebtedness for municipalities. That is true because the legislation expressly provided that the cost of the waterworks should not be a general indebtedness. * * *
"The conclusion just reached is not in any way modified by the fact that the city may have a future liability in the case at bar because of a possible tort growing out of the transaction. Fort Dodge Electric Light & Power Co. v. City of Fort Dodge et al., 115 Iowa, 568, 89 N. W. 7. If, then, under the legislation involved in the case of Swanson v. City of Ottumwa (118 Iowa, 161, 91 N. W. 1048, 59 L. R. A. 620), supra, the limited obligation was not one within the constitutional and statutory limitations because the indebtedness was not general, likewise in the case at bar the cost of the electric light and power plant under sections 6134-d1 and 6134-d2 of the Code is not an indebtedness under the constitutional or statutory limitation. This is true because the indebtedness contemplated by sections 6134-d1 and 6134-d2 is expressly declared not to constitute a general obligation or be payable in any manner from taxation, or in any other method, except that provided in said sections. Also, section 6134-d2 expressly provides that under no circumstances shall the city in any manner be liable by reason of the failure of the net earnings being sufficient for the payment provided in the contract. No taxpayer, therefore, could ever be called upon to pay taxes to discharge the obligation. Neither could the obligee call upon the city to discharge such obligation, except in the limited manner provided. * * * By using the pledge warrants contemplated in the case at bar, the city of Manning does not extend the obligation beyond that limited by sections 6134-d1 and 6134-d2 of the 1931 Code. Therefore, the cost of the electric plant under consideration is not within the constitutional or statutory limitation of indebtedness."
As said by us in Franklin Trust Co. v. City of Loveland, Colo., supra, quoting with approval from Shields v. City of Loveland: "`The public can never be overburdened by *708 that which it is under no obligation to discharge, nor can the city become bankrupt by what it does not have to pay.'"
We conclude, therefore, that the contract does not create a debt within the meaning of the constitutional inhibition, unless, as contended by plaintiff, there is devoted to the earning of this net income substantial property of the municipality. In support of this argument it is said that the plant constructed by the vendor is located upon a site owned by the municipality. This site is a small portion of a town lot forty feet by fifty feet in dimensions, formerly unoccupied and unused, and from which the town has never received any income, and which was acquired by the town without consideration. We think the short answer to this contention is that the contract does not obligate the town to furnish a site for this plant sold it by the Fairbanks, Morse & Co., nor does it pledge such site, nor the net earnings therefrom. The burden of proof was upon plaintiff, and we cannot presume, in the absence of proof, that the furnishing of this site was a part of the consideration for the contract. In other words, it cannot be said from this record that the plant was placed upon this site pursuant to the contract which is here assailed. Neither would there seem to be any basis for the contention that the property has any substantial value. De minimis non curat lex.
The judgment appealed from is therefore affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858177/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-426-CR
DAVID DAVIS,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 106,596, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
PER CURIAM
A jury found appellant guilty of aggravated sexual assault and assessed punishment
at imprisonment for ten years and a $10,000 fine. Tex. Penal Code Ann. § 22.021 (West 1989).
On the jury's recommendation, the district court suspended imposition of sentence and placed
appellant on probation.
Appellant was convicted in this cause on July 30, 1992, and gave timely notice of
appeal. Thereafter, the attorney retained to represent appellant at trial, who is appellant's attorney
of record on appeal, filed in the district court a motion to withdraw as counsel. No action was
taken on that motion. Appellant also filed an affidavit of indigence and motion for appointment
of counsel on appeal. No action was taken on that motion. No request for a free statement of
facts was made. On May 12, 1993, after no statement of facts was filed in this Court, we ordered
the district court to conduct a hearing to determine if appellant wished to pursue the appeal, if
appellant had been improperly deprived of a statement of facts, and if appellant is indigent. Tex.
R. App. P. 53(m). This hearing was held on June 11, 1993. Among other things, the court found
that appellant is not indigent. On June 30, this Court ordered counsel to file a brief on appellant's
behalf raising as a point of error the district court's failure to find appellant is indigent, and
raising any additional points supported by the present record.
In nine points of error, appellant contends the district court erred by failing to hold
a timely hearing on his affidavit of indigence (points one, two, and three), by failing to appoint
counsel on appeal (points four, five, and six), and by failing to find that appellant is indigent
(points seven, eight, and nine). U.S. Const. Amend. V, XIV; Tex. Const. art. I, §§ 10, 13, 19;
Tex. Code Crim. Proc. Ann. arts. 1.051 (West Supp. 1993), 26.04 (West 1989). With regard
to the first three points, this Court agrees that it would have been better if the issue of appellant's
indigence had been resolved sooner. There is nothing in the record, however, to indicate that this
matter was ever brought to the court's attention or that a hearing was ever requested. In any
event, these points of error are moot because a hearing on appellant's indigence was ultimately
held pursuant to this Court's order. Points of error one, two, and three are overruled.
Points of error four, five, and six are premised on appellant's assertion of
indigence, and we will consider them together with points seven, eight, and nine. The testimony
at the hearing reflects that appellant did not immediately make bail pending appeal and remained
in jail following his conviction (appellant was ordered to serve 180 days in jail as a condition of
probation). Appellant was released from jail on or about August 18 on a personal recognizance
bond. Thereafter, appellant posted a $5000 cash bond in a forgery case pending against him and
retained counsel to represent him in the trial of that cause. Appellant testified that this money
came from a cash reserve he had in a safe, but he could not remember how much that reserve
totaled. Appellant was not asked and did not explain why money from this reserve fund was not
used to pay counsel on appeal in this cause and to purchase a statement of facts. Appellant did
testify that the money remaining in the safe was subsequently stolen by his former girlfriend.
Since his release from jail, appellant has lived with Cheryl George and shares
expenses with her. Appellant testified that his share of the rent is $400 per month, but George
testified that the total monthly rent is $445, of which appellant pays "what he can afford."
Appellant estimated that he pays $300 per month for health insurance and $800 per year for car
insurance. Appellant could not remember how much he contributes for food, utilities, or other
expenses. Appellant testified that he received unemployment compensation following his release
from jail, but could not remember the amount. At the time of the hearing, appellant had been
employed for seven months as a recreational vehicle salesman. Appellant stated that he is paid
a "minimum wage backed by commission, depending on the hours I work." Appellant testified
that he was paid $5000 in May and $2000 in April. Appellant was uncertain of his salary in
earlier months, although he did state that he made less than $1000 during each of his first two
months of employment. Appellant testified that he has no bank accounts and owns personal
property of a value less than $1000.
Appellant testified that he believed that the attorney who represented him at trial
would also handle this appeal. Appellant understood, however, that counsel had been paid only
for the trial, and that further payment would be required if she was to represent him on appeal.
Appellant acknowledged making no payments to counsel to secure her employment for the appeal.
Appellant has the burden to prove his indigence. The determination of indigence
is a matter resting in the sound discretion of the trial court and, in the absence of clear abuse, that
court's ruling will not be disturbed on appeal. Rosales v. State, 748 S.W.2d 451 (Tex. Crim.
App. 1987). In this cause, there is evidence from which the district court could reasonably
conclude that appellant's claim of indigence is not well founded. Although appellant was either
incarcerated or unemployed for several months immediately after his conviction, he had access
to a large sum of money, some of which he used to post bond and retain counsel in another case.
Appellant had been employed for seven months at the time of the hearing, and had been paid a
total of $7000 in the two preceding months. We cannot say that the court clearly abused its
discretion by failing to find that appellant is indigent. In the absence of a showing of indigence,
the district court did not err by refusing to appoint counsel on appeal.
In his argument under points of error seven, eight, and nine, appellant also urges
that the trial court should have ordered the preparation of a free statement of facts. As previously
noted, however, no request for a free record was ever made. See Tex. R. App. P. 53(j)(2); Snoke
v. State, 780 S.W.2d 210, 212-13 (Tex. Crim. App. 1989); Abdnor v. State, 712 S.W.2d 136
(Tex. Crim. App. 1986). The record supports the conclusion that appellant was not denied a
statement of facts due to indigence or ineffective assistance of counsel. Points of error four
through nine are overruled.
In his last point of error, appellant contends that the district court abused its
discretion by refusing to allow trial counsel to withdraw as attorney of record on appeal. A
motion to withdraw as counsel on appeal, however, is properly addressed to the appellate court.
Tex. R. App. P. 7. (1) No abuse of the district court's discretion is shown. Point of error ten is
overruled.
The judgment of conviction is affirmed.
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Affirmed
Filed: October 20, 1993
Do Not Publish
1. On June 25, 1993, after the record from the rule 53(m) hearing was filed in this Court,
counsel filed a motion to withdraw as counsel. In light of the procedural posture of the appeal
at that time and because the motion did not comply with rule 7, the motion was overruled. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1562387/ | 16 So.3d 132 (2009)
JONES
v.
STATE.
No. SC09-543.
Supreme Court of Florida.
March 27, 2009.
Decision without published opinion Dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561836/ | 6 F.2d 533 (1925)
NEWARK FIRE INS. CO.
v.
TURK et al.
No. 3301.
Circuit Court of Appeals, Third Circuit.
June 8, 1925.
Rehearing Denied September 5, 1925.
Horace Michener Schell, of Philadelphia, Pa., for plaintiff in error.
Mervyn R. Turk, of Chester, Pa., and Arthur S. Arnold, of Philadelphia, Pa., for defendants in error.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
*534 WOOLLEY, Circuit Judge.
This is a suit on a policy of fire insurance issued to the plaintiffs by the defendant company. Broadly stated, the question is whether another policy, issued by another company to predecessors of the plaintiffs in the title of the damaged property, covered the property, and whether, within the pro rata liability clauses of the two policies, there was double or contributing insurance. Arising on the plaintiffs' motion for judgment because of an insufficient affidavit of defense, in which, under the Pennsylvania practice, the facts are accepted as pleaded, the court decided the question against the defendant, and directed judgment for the plaintiffs. 4 F.(2d) 142. The case is here on the defendant's appeal.
Somewhat compressed, the facts are as follows: Bristol R. Lord, Jr., and William K. Lord (hereinafter called Lord Bros.) owned properties known as 316 and 318 Market street in the city of Chester, Pa. They mortgaged them to George K. Crozer, Jr., treasurer of the board of trustees, Crozer Theological Seminary, and delivered to him, as additional security, a policy of fire insurance for $5,000, obtained from the Springfield Fire & Marine Insurance Company, covering both properties, and containing a clause for his protection as mortgagee. Lord Bros. then sold one of the properties, 316 Market street, to Simon Turk and Phillip Saft, cum onere of the mortgage. The policy of the Springfield company did not figure in the transaction. It was not assigned to the purchasers, nor did they then have any knowledge of its existence. On taking title, Turk and Saft (now the plaintiffs) procured insurance from three companies, of which the Newark Fire Insurance Company (the defendant) was one, covering specifically 316 Market street, and aggregating $16,000. The policy issued to them by the defendant was for $6,000.
A fire occurred. Adjusters and agents, representing the plaintiffs and the defendant, fixed the damage at $14,276. The two other policies which the plaintiffs had obtained on acquiring the property contained clauses for the benefit of the mortgagee and had been delivered to him. After the fire, the plaintiffs requested him to loan them these policies to assist them in making their claims against the insurance companies. Responding, the mortgagee handed them the two policies they had asked for and, in addition, the policy of the Springfield company issued to Lord Bros. This was the first intimation to the plaintiffs of the existence of this policy. Having in hand four policies, three issued to themselves and one to Lord Bros., the plaintiffs, on the advice of insurance brokers, made claims against all four companies. Being later advised that they had mistaken their rights under the law, and that they could claim insurance only from the companies which had issued policies to them, the plaintiffs abandoned their claim against the Springfield company, and confined their claims to the three companies which had issued to them the three policies aggregating $16,000. Thereupon the defendant (and the other two companies) pointed out that their policies (as well as the policy of the Springfield company) contained liability clauses in the following language: "This company shall not be liable for a greater proportion of any loss or damage than the amount hereby insured shall bear to the whole insurance covering the property, whether valid or not, and whether collectible or not" and took the position that the insurance of $16,000 issued to the plaintiffs, and the insurance of $5,000 issued to Lord Bros. made a total insurance of $21,000, and that, according to a proper reading of the quoted clause, the defendant in this case is liable for only so much of the agreed loss of $14,276 as the face of its policy for $6,000 bears to the total insurance of $21,000; or, in other words, that it is liable for six twenty-firsts and not six-sixteenths thereof. When sued, the defendant reiterated its position as a defense. The soundness of this contention depends, of course, upon whether the Springfield insurance, in the circumstances, covered the property, and is accordingly contributing insurance.
In order to decide this question, we must pause for a moment and inquire how the law regards a policy of insurance. Defined broadly, it is "a contract whereby, for an agreed premium, one party undertakes to compensate the other for loss on a specified subject by specified perils." Bouvier's Law Dictionary, 1613; Dover Glass Works Co. v. Ins. Co., 1 Marvel (Del.) 32, 29 A. 1039, 65 Am. St. Rep. 264. Indemnity against loss is the essence of a contract of insurance. The undertaking is personal to the insured. "The policy is not an insurance of the specific thing without regard to the ownership, but is a special agreement of indemnity with the person insuring against such loss or damage as he may sustain." King v. Lancaster County Mutual Ins. Co., 45 Pa. Super. Ct. 464. But a sale of insured property does not carry with it the policy of insurance. Olyphant Lumber Co. v. People's Mutual Live Stock Ins. Co., 4 Pa. *535 Super. Ct. 100. Therefore, when the insured parts with his "property, and has no further interest in it, he can sustain no loss or damage by its destruction, but the loss, if any, is that of his grantee. In the absence of an assignment, the grantee cannot recover on the policy, because the insurer has no contract with him, and the grantor cannot recover because he has sustained no loss." King v. Lancaster, supra.
It is equally true that the mortgagee clause of a policy, providing for payment of indemnity to the mortgagee in the event of loss, is not an assignment of the policy, yet that clause creates a separate and distinct agreement between the insurer and the mortgagee, binding even after the insured owner has alienated his property. Knights of St. Joseph B. & L. Ass'n v. Insurance Co., 66 Pa. Super. Ct. 90; Syndicate Ins. Co. v. Bohn, 65 F. 165, 12 Cow. C. A. 351, 27 L. R. A. 614; Pennsylvania, etc., v. Aachen & Ins. Co. (D. C.) 257 F. 189.
Applying this law to the facts of the case, the policy of insurance, issued by the Springfield company to Lord Bros. with a mortgagee clause in favor of Crozer, became void as to Lord Bros. in respect to the property conveyed, but continued for the protection of the interest of the mortgagee. Thus, after the conveyance, there were two interests one, the new interest of Turk and Saft, the grantees, the other, the old interest of Crozer, the mortgagee; the first covered by insurance issued to them in their names; the other covered by insurance issued to Lord Bros., and carried to Crozer by force of the mortgagee clause.
The defendant contends, however, that diversity of interest in the same insured property does not, under the terms of the quoted pro rata liability clause, prevent contribution from all companies issuing policies "covering the property," and for authority cites Hartford Insurance Co. v. Williams, 63 F. 925, 11 Cow. C. A. 503, the only case it has found on the subject. In this case the court decided that, where policies had been issued to different parties in interest the grantor and the grantee of alienated property the mortgagee under a mortgagee clause attached to the grantor's policy must pro rate with the policy covering the other interest. But it should be observed that the significant fact on which this decision was based was that, with the consent of the insurer, the policy of the grantor to which the mortgagee clause was attached was assigned to the grantee at the time of the conveyance, and thereby the policy to the grantor, quite obviously, continued in force for the protection of the grantee, and this policy and the other then covered his interest and the interest of no one else, except the contingent interest of the mortgagee. In the case at bar, the policy of Lord Bros. was not assigned to the plaintiffs on the sale of the property, but remained in the hands of the mortgagee solely to protect his interest in that capacity. It follows, therefore, that, while all four policies were issued to indemnify loss arising from damage to the same property, the policies at the time of the fire covered different interests in the property.
Do they constitute double or contributing insurance requiring apportionment?
The Supreme Court of Pennsylvania, in Sloat v. Ins. Co., 49 Pa. 14, 88 Am. Dec. 477, and again in Meigs v. Ins. Co., 205 Pa. 378, 54 A. 1053, defined double insurance as follows: "Double insurance takes place when the assured makes two or more insurances on the same subject, the same risk, and the same interest. If there be double insurance, either simultaneously or by successive policies, in which priority of insurance is not provided for, all are insurers, and liable pro rata."
Courts and text-writers are in accord that contribution cannot be enforced unless the policies cover the same interest. Identity of interest is a requisite. Meigs v. Ins. Co., supra; Traders' Ins. Co. v. Pacaud, 150 Ill. 245, 37 N.E. 460, 41 Am. St. Rep. 355; Niagara Ins. Co. v. Scammon, 144 Ill. 500, 28 N.E. 919, 32 N.E. 914, 19 L. R. A. 114; Titus v. Glens Falls Ins. Co., 81 N.Y. 415; Fox v. Phenix Fire Ins. Co., 52 Me. 336; Wood on Insurance, 374; 4 Joyce on Insurance, § 3490; 1 Clement on Fire Insurance, 313. These authorities are supported by sound reason. Applying reason to the facts of this case, it appears that, except for the independent contract with the mortgagee, the Springfield policy issued to Lord Bros. covered the interest of no one. The interest of Lord Bros. in the property died when they alienated it, and their interest in the policy disappeared at the same time. King v. Lancaster, supra. Not having been assigned to the plaintiffs, the policy did not cover the latter's newly acquired interest in the property. There never was any privity of contract between them and the Springfield company; therefore we cannot conceive how they could maintain an action on the policy against that company. Lacking privity of contract and a right of action, we cannot see how their policies can be subjected to an apportionment with a policy issued to another by a company with which they have *536 no contractual relation. Nor does the insurance of the Springfield policy enure to the plaintiffs beneficially by reducing their mortgage in the event of payment of loss to the mortgagee. In this case the loss was so amply covered that the mortgagee has not made a claim upon the Springfield company under the mortgagee clause of its policy, yet, if he had done so, it would have developed that, by the terms of the policy, payment made by that company to the mortgagee would not be in relief of the owner of the premises by effecting a credit on the mortgage to the extent of the payment, but the mortgagee would be required to assign to the insurance company all his rights under the mortgage, and to the extent of payment the insurance company would be subrogated to the right of the mortgagee against the property.
Assuming, without deciding, that the Springfield policy is alive and valid as between the Springfield company and the mortgagee, we are of opinion that it is not contributing insurance with the policy which the defendant issued to the plaintiffs. On this decision hang the other questions raised by the assignments of error. Having dropped out of the case, they do not call for discussion or decision.
The judgment below is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561849/ | 49 N.J. Super. 1 (1958)
138 A.2d 759
DIANE SHEEHAN AND SUZANNE SHEEHAN, INFANTS, BY DANIEL SHEEHAN, GUARDIAN AD LITEM, AND DANIEL SHEEHAN, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
JEROME McGOWAN AND RICHARD McGOWAN, DEFENDANTS, AND RICHARD J. TARRANT AND D.T.C. HOLDING CO., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Argued February 3, 1958.
Decided February 12, 1958.
*2 Before Judges CLAPP, JAYNE and SCHETTINO.
Mr. Roger Hinds argued the cause for appellants.
Mr. William Feinberg argued the cause for respondents (Mr. Jack Feinberg, attorney; Mr. Richard J. Feinberg, on the brief).
The opinion of the court was delivered by JAYNE, J.A.D.
Although the distinction between an invitee and licensee conspicuously vanishes in this jurisdiction in its relation to the liability of the occupier of land, it remains unextinguished in measuring the care owed by the motorist to his passenger. Vide, Lippman v. Ostrum, *3 22 N.J. 14 (1956). Yet it is historically noticeable that the application of these divergent relationships between driver and passenger in the operation of automotive vehicles is derived from the law of real property. Despite the consanguinity, the sire now perishes and the offspring survives. Jesselson v. Moody, 309 N.Y. 148, 127 N.E.2d 921 (Ct. App. 1955).
And so, on the tilting ground of automobile litigation, the question of whether the injured passenger was an invitee or a licensee continues to plague attorneys, judges, and juries. An illustration is projected on the canvas of the present appeal.
The present action was occasioned by the occurrence on the night of November 15, 1953 of a collision at the intersection of 13th Avenue and 8th Street in the City of Newark, between an automobile owned by the defendant Jerome McGowan and operated by the defendant Richard McGowan, and one owned by the D.T.C. Holding Co., a corporation, and driven by the defendant Richard J. Tarrant.
The infant plaintiffs, Diane and Suzanne Sheehan, daughters of the plaintiff Daniel Sheehan, were passengers in the vehicle of the corporate defendant, which was being used by Tarrant for his personal purposes. The meager evidence introduced by the plaintiffs to establish the liability of the corporate owner under the principle of respondeat superior was manifestly inadequate, and it can be immediately announced that the dismissal by the court of the alleged cause of action against it was justified and is therefore affirmed.
The present appeal is mainly concentrated upon the propriety or impropriety of the involuntary dismissal of the plaintiffs' cause of action against the defendant Tarrant. At the conclusion of the introduction of the evidence, the trial judge stated:
"As the case now stands we have no evidence in the case on the part of plaintiff that there was an invitation, either express or implied, upon the part of Mr. Tarrant or upon the part of anyone acting for him."
*4 It may be fairly acknowledged that the evidence failed to disclose any invitation to ride expressly addressed by Tarrant to the infant plaintiffs, but whether the circumstances revealed by the evidence generated the reasonably logical implication of an equivalent overture proposes a very sharp question.
It is relevant to explain that the infant plaintiffs were born of the wedlock of Dr. Sheehan and his wife. The marriage was dissolved by divorce. His former wife married the defendant Richard Tarrant. The custody of the infant plaintiffs was awarded to Dr. Sheehan, in whose household they were residing at the time of the mishap.
During the evening preceding the collision, which occurred at about 12:30 A.M., the girls were attending with their mother a party at the home of their uncle and cousins. Their uncle had transported them to his home. For what reason was their stepfather returning them to the residence of their father?
At the trial Mr. Tarrant elucidated:
"Q. How was it that you came to have Diane in the car? A. Well, Mrs. Tarrant earlier in the evening had asked me would I stop by and take the children to the doctor's home.
Q. You said yes? A. I said I would stop by later on and take them home.
Q. There was no question in your mind that they were invitees? A. They were not invitees. I never at any time explicitly asked them. All I did was give them a ride in the car.
Q. They came along? A. They came along at Mrs. Tarrant's invitation or license from me. She said to me, `Will you take the children?' And I said `All right.'
Q. You invited Mrs. Tarrant, authorized Mrs. Tarrant to extend an invitation to them? A. I didn't authorize her to do anything. She asked me if I would take the children home.
* * * * * * * *
Q. You say that the child, either by implication or expressly, the child Diane or the child Suzanne were not invited to ride? A. I said she wasn't expressly or impliedly invited by me to ride in the car. She was not an invitee in my car. I said that very emphatically.
Q. Well, Mrs. Tarrant was authorized to invite her? A. She wasn't; she wasn't authorized to. I didn't authorize her to do anything. I didn't invite them to ride in my car.
* * * * * * * *
*5 Q. You are a member of the Bar? A. I am a member of the Bar, been so for the past thirty years."
Noticeably, Mr. Tarrant was in essence expressing his legal conclusions. Implications more effectively arise from the accompanying and surrounding facts and circumstances. So it is that whether a passenger is an invitee or merely a licensee is commonly a question of fact and as such, appropriately within the functional domain of the jury.
The author of this opinion has long retained the conviction that in correspondence to the early law applicable to the possessor of land, the criteria, inter alia, in determining the legal status of the invitee as distinguished from that of the licensee is the beneficial interest of the automobile driver in the object and purpose of transporting the passenger; hence the probable intent of the driver.
Hypothetical illustrations are that the merchant has a beneficial interest in the entrance of the customer upon his premises; in contrast, the motorist has none in accepting into his vehicle the hitch-hiker. The interest need not be of a monetary or commercial nature. The interest should, however, be of a character to tend to expose the intent. The affiliation of a personal interest in the object and purpose of the transportation of the passenger is certainly diagnostic of the driver's intent to invite.
The parent who conveys his own children without specific invitation to Sunday School does not thereby exhibit an intention to place them in the category of licensees, but perhaps so in transporting the children of his neighbor at the latter's request. While in the instant case the infants were not then members of Tarrant's household, they were children of his present wife. She was concerned about the means of returning them to their home. He was inevitably concerned with her wishes and the welfare of her children.
Divergent and contradictory inferences may often be reasonably drawn by fair-minded jurors from uncontroverted facts. So often do surrounding circumstances guide the mind to its conclusion. Vide, Myers v. Sauer, 116 N.J.L. 254 (E. & A. 1936); 117 N.J.L. 144 (E. & A. 1936); *6 cf. Knox v. Goodman, 45 N.J. Super. 428, 433 (App. Div. 1957), certification denied 25 N.J. 47 (1957).
We conclude that the inferential rationalization of the pertinent factual circumstances disclosed by the evidential information in the present case should have been delegated to the jury.
Accordingly, the dismissal of the plaintiffs' cause of action against the defendant Tarrant is reversed and a new trial directed. As previously announced, the dismissal of the plaintiffs' action against the D.T.C. Holding Co. is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561835/ | 138 A.2d 637 (1958)
Harry KIMBALL
v.
Cecile BRETON, Ex'x, Estate of Joseph H. Breton.
Margaret KIMBALL
v.
Cecile BRETON, Ex'x, Estate of Joseph H. Breton.
Supreme Judicial Court of Maine.
January 20, 1958.
*638 John Platz, Lewiston, for plaintiff.
Frank W. Linnell, Auburn, for defendant.
Before WILLIAMSON, C. J., and WEBBER, BELIVEAU, TAPLEY, SULLIVAN and DUBORD, JJ.
SULLIVAN, Justice.
These companion cases arise upon exceptions by the defendant to the denial by the presiding Justice of her motions for directed verdicts, made at the close of the evidence. The jury rendered verdicts for both plaintiffs.
In one instance, the plaintiff wife sues the defendant for personal injuries received by her and ascribed to the defendant's negligence. In the other, the husband seeks to recover damages from the defendant for losses consequential to him from a tort to his wife.
The plaintiffs pleaded in gist that the defendant owned and controlled a three story tenement house occupied by more than two families; that the plaintiffs were tenants of the defendant there, on the second floor; that the defendant owed a duty, because of the Revised Statutes of Maine (1954), Chapter 97, Section 49, to supply the second story of the building with more than one way of egress by stairways on the inside or fire escapes on the outside of the house but that she negligently failed to comply with the law; that a fire occurred on the second story, which compelled the plaintiff-wife to seek escape for herself and her children; that due to the want of the required exits the plaintiff-wife was constrained in the emergency to break a window by the use of her arm, thus injuring herself and derivatively causing loss to the plaintiff-husband; that both plaintiffs throughout the entire episode observed due care.
*639 The plea of the defendant was a general denial.
The province of this Court in these actions as they have evolved is to decide if the verdicts are legally assailable.
"As is well settled in this jurisdiction, a motion by the defendant for a directed verdict is equivalent to a demurrer to the evidence. Exceptions raise the question, not whether there is sufficient evidence to take the case to the jury, but whether upon all the evidence as it appears in the record a verdict for the plaintiff could be permitted to stand. Dyer v. Cumberland County Power & Light Company, 119 Me. 224, 110 A. 357. See also Mills v. Richardson, 126 Me. 244, 246, 137 A. 689." Ward v. Cumberland County Power & Light Co., 134 Me. 430, 431, 187 A. 527, 528.
"It is well settled that a verdict should not be ordered for the defendant by the trial Court when, taking the most favorable view of the plaintiff's evidence, including every justifiable inference, different conclusions may be fairly drawn from the evidence by different minds. Collins v. Wellman, 129 Me. 263, 151 A. 422; Young v. Chandler, 102 Me. 251, 66 A. 539." Howe v. Houde, 137 Me. 119, 15 A.2d 740.
"A verdict should not be ordered by the trial court when, giving the party having the burden of proof the most favorable view of his facts and of every justifiable inference, different conclusions may fairly be drawn from the evidence by different minds. Young v. Chandler, 102 Me. 251, 66 A. 539." Collins v. Wellman, 129 Me. 263, 151 A. 422, 423.
"It is firmly established in this State, that the trial court should direct a verdict for either party entitled to it, if the evidence raises a pure question of law, or if the evidence is such that reasonable minds would draw but one conclusion therefrom. If different inferences of fact may be drawn from the evidence, or if there is any substantial conflict relating to a material issue, a verdict should not be directed. It must be apparent that a contrary verdict could not be sustained." Giguere v. Morrisette, 142 Me. 95, 101, 48 A.2d 257, 260.
For the defendant, then, to avail by her motion it must be discernible from the evidence with every justifiable inference considered most favorably to the plaintiffs that reasonable persons could only conclude that the injuries and losses of the plaintiffs here were the result of the contributory negligence of the plaintiff-wife or were not caused by negligence of the defendant.
The cause of the plaintiffs is dependent upon the proven exercise of reasonable care by the plaintiff-wife. Tibbetts v. Harbach, 135 Me. 397, 402, 198 A. 610.
The plaintiffs complained that the defendant negligently disobeyed the mandates of R.S. (1954) Chap. 97, § 49. That statute in its relevance reads as follows:
"Each story above the first story of a building used as a * * * tenement house occupied by more than 2 families * * * shall be provided with more than one way of egress, by stairways on the inside or fire escapes on the outside of such building. Such stairways and fire escapes shall be so constructed, in such number, or such size and in such location as to give reasonably safe, adequate and convenient means of exit, in view of the number of persons who may need to use such stairway or fire escape, shall at all times be kept free from obstruction and shall be accessible from each room in each story above the first story."
*640 If the failure of the defendant to perform a duty imposed upon her by this statute, for the benefit of her tenants in her building, was the proximate cause of injury or loss to those tenants and if the injury or loss was the natural and ordinary consequence of such failure upon the part of the defendant, then it is, at least, evidence of actionable negligence upon her part to be submitted to the jury. Carrigan v. Stillwell, 97 Me. 247, 54 A. 389, 61 L.R.A. 163.
It is conceded in argument by all the parties to these actions that the question of whether the building of the defendant conformed with the foregoing statute was a matter for jury determination.
The issues to be determined are whether the jury verdicts may stand, whether there was a veritable question for the jury as to the due care of the plaintiff-wife, negligence of the defendant placing the plaintiff-wife in imminent peril and injuries to the plaintiff-wife as a proximate result of the defendant's negligence.
The record would justify a finding by the jury of these narrated facts.
The plaintiffs were tenants of the defendant upon the second floor of a two and one half story, frame building in the overall possession and control of the defendant. There were four tenements, all tenanted, two on the first floor and two on the second. Within the building there was no stairway leading from the first story to the second. The only outside means of ingress and egress to and from the second floor were two flights of stairs in the rear which met upon a single, sheltered landing at the back of the second story rents. Each rent was served respectively by a door leading within from the common landing. The two doors were separated by a partition, for a distance of twelve to eighteen inches. The partition was of wooden frame covered with sheetrock. Each door opened upon a separate shed to be traversed incident to entering or leaving the respective tenement. Much of the interior was wood but there is no evidence as to the material of the building as a whole. Above the second story there was no tenement.
Each upper rent shared about one half of the second floor area. The nondescript disposition of the rooms as delineated upon the plan in evidence would dictate the inference that the second floor was formerly a single, living unit later adapted to separated and dual occupancy. Provided doors encountered were not locked, one could proceed inside through one of the two outside doors, advance by a somewhat meandering route through each second floor rent and return outside through the other, outermost, door. Sometimes the doors of the tenements were kept locked by the occupants.
A feature of the plaintiffs' apartment was a porch enclosed with glass. To reach the essential living quarters of the Kimballs it was necessary to pass through their shed and this porch.
The plaintiff-wife was twenty-one years of age. The plaintiffs had occupied their rent for three weeks, with their two infant daughters, one three months old and the other eighteen months old. A Mr. Pennell, his wife and children occupied the adjoining rent. The plaintiff-husband was absent from home at his occupation. At 7:30 in the morning the wife, clad in nightdress and housecoat, was in the kitchen with her babies. The older child was in a highchair by the window overlooking the street; the younger lay in a crib near the window looking upon the porch. The mother who had finished bathing the latter and was preparing to feed her glanced out of the window to the porch where the milk was. She testified: "* * * all I could see was smoke. * * * Smoke; just all smoke." She went at once into the kitchen of the Pennells and told Mrs. Pennell of the smoke. Mrs. Kimball through the glass in the kitchen door of the Pennells then noticed flames in the Pennell shed. The fire seemed to her to embrace, amongst others, the area about the common *641 partition between the Kimball and Pennell sheds. She returned to her own kitchen to find that room filled with smoke and her babies choking and crying for air. She, too, was choking. She rushed to a window and drove her fist and arm through a glass pane. She called to two nuns upon the street. As the nuns turned toward the house, Mr. Pennell came into the room. At his direction the mother and he each took a baby and went to the Pennell rent, through the burning shed and outdoors. Although her arm was severely lacerated Mrs. Kimball was not conscious of her injuries until they were called to her attention sometime after she had reached safety.
Considerable damage was done to the Pennell shed by the fire and some to that of the Kimballs. Both tenements suffered from smoke and heat. The partition between the two sheds was gutted.
The mother testifies that alone she was not capable of carrying her two babies out. She said that she did not leave through her own porch because it was filled with smoke. There was nothing to prevent her from raising the window, but the time element gave her concern as her answer reveals:
"Q. Well, you didn't have time? A. If you see a room full of smoke and babies are choking you wouldn't think about it; you would just think about getting them out."
Mrs. Kimball was excited. She did not open the door leading onto the porch to examine conditions there.
The extent of the injuries to the plaintiff-wife was the lacerations and their resultants.
As heretofore observed the defendant has acknowledged that the question of a violation by the defendant of R.S. (1954) Chap. 97, § 49 was a proper subject for jury consideration. From the record there can be no doubt that a jury would have been justified in finding such a violation and that it constituted negligence. The statute was patently one enacted for public safety.
"* * * If such violation is admitted, or proven by the evidence, it is prima facie evidence of negligence, as it is sometimes said, and as otherwise expressed, raises a presumption of negligence. While not conclusive, the defendant must overcome the presumption against him. * * *" Nadeau v. Perkins, 135 Me. 215, 216, 193 A. 877, 878.
"* * * Regardless of the nature and extent of the violation, however, causal connection between it and the accident must be established. Unless it was a contributing proximate cause, evidence of its commission is of no probative value and must be disregarded. * * *" Tibbetts v. Harbach, 135 Me. 397, 403, 198 A. 610, 613.
"It is true that the `issue of proximate cause is also one of fact, not of law, and it is to be submitted to the jury under proper instructions, unless the court can say with judicial certainty that the injury is or is not the natural and probable consequence of the act of which complaint is made.' Nicholas v. Folsom, 119 Me. 176, 110 A. 68, 69, and cases there cited." Elliott v. Montgomery, 135 Me. 372, 374, 197 A. 322, 323.
From the evidence reviewed above a jury would have been further warranted in finding that a statutory infringement by the defendant was a contributing, proximate cause of an emergency which beset the plaintiff-wife. The disposition of the rooms and exits upon the second floor of the defendant's building, the fact that communicating and intercepting rooms were sometimes, for privacy or security, locked, the presence of a lone mother with two infants, of smoke and fire, of the choking and crying of the babies and human behavior responsive to such conditions as an integrated whole could all be fairly regarded as within *642 "the range of reasonable apprehension" and thus to have been foreseeable by the defendant.
"In many cases courts have said that, in determining what is the proximate cause, the true rule is that the injury must be the natural and probable consequence of the negligence complained of. But in the use of the word `probable' in this definition, it is not meant that the defendant did, or by the exercise of ordinary prudence should have, anticipated the precise form in which the injury actually resulted. If a person is injured by the negligence of another, he may recover for the natural and probable consequences of such negligence, although the injury, in the precise form in which it resulted, was not foreseen. It is sufficient that after the injury it appears to have been a natural and probable consequence of the defendant's negligence." (Authorities cited.) Marsh v. Great Northern Paper Company, 101 Me. 489, 502, 64 A. 844, 850.
There is no implication and no proof in the record that the defendant was in any manner responsible for the fire. Her negligence has to be, if any, her prior, tortious violation of the safety statute. But that negligence could have been determined to be abiding, persistent and sufficient to sustain a full recovery by the plaintiffs.
"The question whether or not negligence is a proximate cause of an injury is answered, not as a rule by determining that the act of a third person contributing to the result does or does not intervene, but rather by deciding whether the occurrence should have been foreseen or reasonably anticipated. The rule is thus stated by Judge Smith in the article previously referred to. (25 Harv.L.Rev. 113): `By the decided weight of authority, A. would be liable if he foresaw, or ought to have foreseen, the commission of B.'s tort, and the resultant damage, as a not unlikely consequence of his earlier tort.'" Hatch v. Globe Laundry Co., 132 Me. 379, 384, 171 A. 387, 390.
"* * * The sole issues are whether the defendant was negligent, and, if so, whether his negligence was also a proximate cause. It is well established law that where two persons acting independently are negligent, one damaged thereby may recover from either. Hutchins v. Emery, 134 Me. 205, 183 A. 754, 755, and cases cited therein. As that case declares: `Each of two independent torts may be a substantial factor in the production of injury.'" Robinson v. LeSage, 145 Me. 300, 301, 75 A.2d 447, 449.
A jury upon the evidence would have an objective basis for a finding that the plaintiff-wife, in the emergency created, comported herself as a reasonably prudent person in an ostensible crisis. Subjectively, to one in the predicament of Mrs. Kimball, there were many aspects of an entrapment of her and her babies. There was combustible material in the substance of the house. There was smoke in her porch. There was no knowing with assurance the extent or location of the fire or its tempo. When Mrs. Kimball went to the Pennell kitchen she observed flames in the Pennell shed. She returned to her own kitchen to find her own children already in throes. The infants were completely helpless to succour themselves. To carry both of them unharmed and at once through the burning structure to safety could have appeared hopeless or at least doubtful. Mrs. Kimball was susceptible to the fervent emotions of a mother and within generous bounds could be condoned and admired for them. She judged that she should not chance any waste motion. She broke a window with her arm, possibly to effect a vent, to secure assistance or to afford a means of escape. She called for help. With the aid of Mr. Pennell and by his direction she took her children out of danger. The fire in its aftermath proved formidable enough. Her injuries could be fairly deemed no *643 fault of hers and such a resolution of probabilities could be within the sensible latitude of rational judgment.
"* * * It is well-settled law that if a person is suddenly confronted by an unexpected peril, and must choose on the instant between alternative hazards, it is not necessarily negligence if he chooses unwisely, not even if it appears that by choosing the other alternative he would have escaped danger entirely. Larrabee v. Sewall, 66 Me. 376; Tozier v. Haverhill, etc., Ry. Co., 187 Mass. 179, 72 N.E. 953. A mere error in judgment is not, of itself, contributory negligence. L. Wolff Mfg. Co. v. Wilson, 152 Ill. 9, 38 N.E. 694, 26 L.R.A. 229; Hoyt v. New York, L. E. & W. R. Co., 42 Hun. 657, 6 N.Y. St. Rep. 7. An instinctive effort to escape a sudden impending danger, resulting from the negligence of another, does not relieve the latter from liability (cases cited.) When one in imminent peril is compelled to choose instantly between two hazards, he is not guilty of contributory negligence if he exercises that degree of care that an ordinarily prudent person might exercise under the same circumstances. It is always a question of ordinary care, and ordinary care is a question for the jury. In this case the plaintiff was in a trap. * * *" Borders v. Boston & Maine Railroad, 115 Me. 207, 210, 98 A. 662, 664.
"* * * If she used that degree of care which an ordinarily prudent person would have used under the same circumstances and in the same emergency, * * * she was not guilty of negligence * * *.
"We are not concerned with consideration of what might have happened or might not have happened if parties had exercised extraordinary care, because such a degree of care is not required. * * *" Byron v. O'Connor, 130 Me. 90, 93, 153 A. 809, 810.
"* * * But `hindsight' is not available to a person faced with an emergency with which he is suddenly confronted and which requires instantaneous action upon his part. He must act promptly, taking into consideration the circumstances as they then present themselves." St. Johnsbury Trucking Co., Inc. v. Rollins, 145 Me. 217, 222, 74 A.2d 465, 468, 21 A.L.R. 2d 88.
"* * * Unless in extreme cases and where the facts are undisputed, which of two alternatives an intelligent and prudent person traveling the highway should select as a mode of escape from collision the law will not say, but will send to the jury the question whether the traveler acts with ordinary care. * * *" Coombs v. Mackley, 127 Me. 335, 339, 143 A. 261, 262.
This Court concludes that upon the issues of actionable negligence of the defendant and of reasonable care of the plaintiffs these actions presented questions appropriate for and necessitating jury judgment.
Exceptions overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561840/ | 18 So. 3d 339 (2009)
HILLSIDE TERRACE, L.P., A Mississippi Limited Partnership, by and Through its General Partner, HILLSIDE TERRACE I LLC, A Mississippi Limited Liability Company, Appellant
v.
CITY OF GULFPORT, Mississippi and Martin and Dorothy Miazza, Appellees.
No. 2008-SA-00350-COA.
Court of Appeals of Mississippi.
September 29, 2009.
*340 Paul J. Delcambre, Jr., Gulfport, Attorney for Appellant.
*341 Margaret E. Murdock, David W. Crane, Harry P. Hewes, Gulfport, Attorneys for Appellees.
EN BANC.
LEE, P.J., for the Court.
¶ 1. Hillside Terrace, L.P., (Hillside) by and through its general partner Hillside Terrace I, LLC, appeals a decision of the Harrison County Circuit Court, which affirmed the decision of the Gulfport City Council (City Council). The City Council affirmed the decision of the Gulfport Planning Commission (Commission), which denied Hillside's application for approval to construct a 96-unit multi-family dwelling on 6.06 acres in Gulfport, Mississippi. Hillside appeals and asserts that the circuit court erred in affirming the City Council which affirmed the Commission's decision because: (1) the Commission exceeded the scope of its authority in denying the application; (2) the denial of the application constitutes a taking of Hillside's property; and (3) the Commission acted in an arbitrary and capricious manner, as its decision is not supported by substantial evidence. Finding no reversible error, we affirm.
FACTS
¶ 2. In December 2006, Hillside filed an application with the Commission, seeking approval to construct a multi-family housing development utilizing low-income housing tax credits. Hillside requested permission to build the development on land that it owns, which is situated along Pass Road within the city limits of Gulfport. The proposed location is adjacent to a gift shop owned by Martin and Dorothy Miazza and an existing apartment complex.[1] The land is situated within a B-2 district, which is designated as a general business district pursuant to Gulfport's Comprehensive Zoning Ordinance.[2] As a result, approval must be obtained from the Commission before the land may be used for residential purposes.
¶ 3. The planning staff issued a staff report that recommended approval of Hillside's application, with the following conditions: (1) "[a] Planned Building Group will be required for this development if there are going to be multiply [sic] building[s] that are not connected," and (2) "[t]here is [an] AE flood zone located on the northern portion of the propose[d] development. If this area is going to be used in the development, the applicant will need to schedule a meeting with the Flood Plain Administrator to discuss possible changes in the required BFE (base flood elevation)." The Commission held a public hearing on January 11, 2007, and despite the planning staff's recommendation, voted to deny Hillside's *342 application. Then, Hillside appealed to the City Council, which affirmed the Commission's decision during its March 20th meeting. On March 29, 2007, Hillside filed a notice of appeal to the Harrison County Circuit Court, which affirmed the City Council's decision.[3] It is from this decision that Hillside now appeals.
¶ 4. Additional facts, as necessary, will be related during our analysis and discussion of the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶ 5. In Town of Prentiss v. Jefferson Davis County, 874 So. 2d 962, 964(¶ 6) (Miss.2004) (citing Hooks v. George County, 748 So. 2d 678, 680 (Miss.1999)), the Mississippi Supreme Court held that "[u]nlike decisions to zone or re-zone, which are legislative in nature, decisions on request for special exceptions are adjudicative, and a reviewing court subjects such decisions to the same standard as is applied to administrative agency adjudicative decisions." Therefore, the "decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency's scope or powers; or violated the constitutional or statutory rights of the aggrieved party." Id.
¶ 6. Hillside argues that the circuit court erred in affirming the decision of the City Council because the Commission, in denying Hillside's application, went beyond the scope of its power in two respects. First, Hillside asserts that the Commission's "decision was based mostly on expected drainage issues and was not based on the criteria called for in the City's Comprehensive Land Use Ordinances." Hillside points us to appendix A, section III(J)(1)(b) of the land-use ordinances, which reads as follows:
Uses requiring planning approval. The uses listed below are permitted upon approval of location and the site plan thereof by the planning commission as being appropriate with regard to transportation and access, water supply, waste disposal, and other public facilities, as not causing undue traffic congestion or creating a traffic hazard, and as being in harmony with the orderly and appropriate development of the district [in] which the use is located.
Hillside asserts that "[n]oticeably absent from the ordinance is any power granted to the Planning Commission to base its decision to deny the use of any property on technical engineering concerns such as drainage." Thus, according to Hillside, the Commission exceeded the scope of its power when it allowed the drainage issue to become a factor in its decision to deny Hillside's application.
¶ 7. It is undisputed that a portion of the tract of land encompassing the building site is located in a flood zone, although not in a HUD designated flood zone. During the hearing before the Commission, Hillside's engineer testified that, although the project would likely experience technical issues later in the process, drainage issues would be addressed and resolved as the process moved forward.
¶ 8. John Boyd, vice-president of Realtex Development Corporation (Realtex), the company involved in constructing the development, testified that they sought a use approval, rather than a rezoning, to provide affordable quality apartments for low-income families. Boyd explained that this *343 development would replace apartment complexes that were destroyed by Hurricane Katrina. He acknowledged that they must address the drainage issues and assured the Commission that Realtex would comply with the Federal Emergency Management Agency's (FEMA) advisory base flood elevations. Boyd also stated that Realtex would conduct a drainage study. As for the affordability aspect of the multi-family development, Boyd stated that the residents must have a verifiable income of at least two and a half times the rent.
¶ 9. David Crane, attorney for the Miazzas, was also present at the hearing and spoke against the Commission's approval. He stated that the Miazzas' objections were based on the following reasons: (1) there is currently an apartment complex to the left of their gift shop; (2) an additional multi-family development will bring increased traffic; and (3) the water supply and fire and police protection will need to be increased. Also, Crane noted that traffic along Pass Road is already congested, as there is a school across the street from their business, an apartment complex adjacent to their building, and a grocery store in close proximity to their building. Further, according to Crane, the Miazzas believe that the proposed project will engender "an atmosphere for the cultivation of crime."
¶ 10. Hillside argues that the Commission should not have considered the drainage issue because the Commission lacks the expertise and technical training necessary to do so. In Board of Aldermen of Town of Bay Springs v. Jenkins, 423 So. 2d 1323, 1327 (Miss.1982), our supreme court held that it was proper for the Mayor and the Board of Aldermen to "call upon their own common knowledge and experience" and to consider statements from landowners in rendering a municipal order. The Jenkins court found that:
It is manifest that the Mayor and Board took into consideration all statements, both sworn and unsworn, and their common knowledge and familiarity about their small municipality, in reaching their decision. We believe this method to be sound and practical, and courts should respect such findings unless they are arbitrary, capricious, and unreasonable.
Id. at 1327-28.
¶ 11. Commission member Claudia Keyes testified during the hearing that the Commission had denied a proposed project on this particular land two years prior because of flooding. Further, Keyes noted that Brickyard Bayou is located behind the property. Also, Commission member Lutillie Stepney testified that he is familiar with the property and stated unequivocally that the property "is going to flood."
¶ 12. Based on the holding in Jenkins, we conclude that the Commission did not exceed the scope of its authority when it considered the drainage issue.
¶ 13. As for Hillside's contention that the Commission's decision is based mostly on drainage, we note that the record clearly reflects that the Commission considered several factors, in addition to drainage. This is evidenced by the following comments made by Crane during the hearing:
Now, he said they're simply asking for use approval. Your zoning ordinance allows for multi[-]family development in a B-2 zone only ifif and only if the planning commission gives use approval or there might be an exception, they might say it's allowed here. If you look back in the transcript of this matter, there was a discussion of a hundred plus multi-family units already located almost immediately adjacent to the property. I don't know if any of you are familiar *344 with the location of my client's property, Martin Miazza's Fine Gifts. They are on the corner of Pass Road where 29th Avenue intersects Pass Road. That intersection is not a perpendicular intersection. It's a very steep angle. And it's actually kind of dangerous to drive in and out of there because in order to get out of the parking lot of Martin Miazza's, you've got to get on 29th then on Pass Road immediately. Immediately to the east ofwest of the Miazzas' property is one residence, and then there's a driveway for the (inaudible) multi-family complex. It goes behind the Miazza property and comes back, and it abuts the property in question. It's clearly over 100 multi-families. It is partially vacant. It is for the most part vacant right now, as it did, indeed, flood during Katrina. Now, this is how our appeal is based on speculation that the sole reason of the planning commission's denial was for drainage and flooding. Now, I'm not going to concede that that goes beyond the planning commission's purview. However, there are certain factors in considering a special use request like this that they've got to consider. Transportation and access, traffic congestion and hazards, harmony with the orderly and appropriate development of the district, fire protection, and also any other public facilities that will be tasked. So I would suggest to you that drainage is certainly an issue that would task public facilities if, in the event that a plan was accomplished and built there, they caused drainage problems.
Thus, because the Commission considered potential problems with traffic congestion, police and fire protection, and crime, we cannot conclude that the Commission's decision to deny Hillside's application was "arbitrary, capricious, discriminatory, illegal, or without a substantial evidentiary basis." Accordingly, we find no merit to this issue.
¶ 14. Second, Hillside asserts that the Commission exceeded its authority in inquiring, during the hearing, about the financial viability of the project, exploring its method of financing the project, and its rental-rate structure. Specifically, Hillside argues that its involvement with Realtex and the Mississippi Regional Housing Authority VIII (MRHA) coupled with the fact that the project would be financed using low-income tax credits "played a significant role in the Planning Commission's denial." Hillside contends that the discussion centered around who would be tenants.
¶ 15. Our review of the record reveals that the Commission considered testimony regarding the income requirements of the applicants, along with issues such as the likelihood of an increase in crime and the need for increased fire and police protection. However, there is nothing in the record which suggests that the Commission gave undue consideration to the fact that the project was to be financed using low-income tax credits. Thus, we conclude that the Commission properly considered all of the issues concerning Hillside's project. This issue lacks merit.
¶ 16. Third, Hillside asserts that the Commission's denial constitutes a taking of its property and directs our attention to Tippitt v. City of Hernando, 909 So. 2d 1190, 1194(¶ 14) (Miss.Ct.App.2005) (quoting Walters v. City of Greenville, 751 So. 2d 1206, 1210(¶ 19) (Miss.Ct.App.1999)) which defines a taking as follows:
There is a taking of property when government action directly interferes with or substantially disturbs the owner's use and enjoyment of the property. Brothers v. U.S., 594 F.2d 740, 741-42 (1979). A taking is effected if the application of *345 a zoning law denies a property owner of economically viable use of his land. This can consist of preventing the best use of the land or extinguishing a fundamental attribute of ownership. Vari-Build, Inc. v. City of Reno, 596 F. Supp. 673, 679 (1984).
¶ 17. According to Hillside, the Commission would refuse to approve any use of the property and points to the Commission's denial on a prior occasion to support its contention. Keyes stated the following at the commission meeting:
[T]his very property has been before us as recent as two years ago. And we denied it. And you know why we denied it? Because it floods. Brickyard Bayou is right behind that. So we denied it for I believe it was like a campground just so recently as two years ago. So I can't really see, you know, houses that can't go on wheels moving out of there, so, you know, I wouldn't think that this would be the place that you're really looking for.
We note that one of the owners of the property testified at the City Council meeting and vigorously denied Keyes's claim that an application had been denied two years prior. Nevertheless, Hillside now argues that the Commission did just that. Further, Hillside does not point to anything in the record to support its argument that the Commission would not approve the property for any of the permitted uses that required the Commission's approval. As evidenced by Keyes's comments quoted above, the opposite is true. She intimated that other projects would likely be approved for this property, e.g., mobile homes. Therefore, we find no merit to this issue, as Hillside has failed to prove that it was denied "economically viable use of its land."
¶ 18. Finally, Hillside asserts that the Commission's decision was arbitrary and capricious and not supported by substantial evidence. Hillside contends, again, that the Commission based its decision on "past drainage issues without reviewing or offering evidence to support its finding of infeasibility." We disagree. The engineer for the project, Craig Carney, testified at the City Council meeting and explained the measures that would be undertaken in order to prevent any potential drainage issues and to ensure that the property does not flood. Further, as stated, two Commission members testified that the property is highly likely to flood. Specifically, Stepney stated the following:
This property here, I've been across it since back in the sixties. And I'm telling you, it's going to flood. Just the other week, the rain we did have, it had about eight or ten (inaudible). This property here, like she just told you, we had this before, I know because the property just down below, the school where my wife works, and when it rains, you can't stop it.
Obviously, the Commission was not convinced that the development will not flood or will not have other drainage issues in the future. We cannot find the circuit court in error for affirming the City Council which affirmed the Commission's decision to deny Hillside's application. There is no merit to this issue.
¶ 19. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
GRIFFIS, BARNES AND ROBERTS, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., MYERS, P.J., AND CARLTON, J. ISHEE AND MAXWELL, JJ., NOT PARTICIPATING.
*346 IRVING, J., Dissenting.
¶ 20. The majority finds that the circuit court did not err in finding that the decision of the Planning Commission (Commission) and of the City of Gulfport, acting through its Council (City Council), to deny Hillside Terrace, L.P.'s application for approval to construct a multi-family dwelling in a B-2 district zone is supported by substantial evidence and is not arbitrary and capricious. I disagree. In my judgment, the evidence is overwhelming that not only is the decision to deny approval not undergirded by substantial evidence, it is also arbitrary and capricious, because the Commission and the City Council wilfully and deliberately ignored the provision in the zoning ordinance which sets forth the factors that must be considered in determining whether to grant or deny approval for a permitted use in a B-2 district. Therefore, I dissent. I would reverse and render the judgment of the circuit court and remand this case to the Commission with directions to grant approval to Hillside for construction of the multi-family dwelling complex.
¶ 21. First, it should be made clear that, according to the City's "Comprehensive Land Use Ordinances," multi-family dwellings are a permitted use in a B-2 district. The use, however, requires approval of the Commission. It does not require rezoning or any type of special exception. When considering whether to allow a permitted use, the Commission is required to consider certain factors. Specifically, appendix A, section III(J)(1)(b) of the Comprehensive Land Use Ordinances provides, in pertinent part, as follows:
Uses requiring planning approval. The uses listed below [of which multiple family dwellings in a B-2 zone are one] are permitted upon approval of location and the site plan thereof by the planning commission as being appropriate with regard to transportation and access, water supply, waste disposal, and other public facilities, as not causing undue traffic congestion or creating a traffic hazard, and as being in harmony with the orderly and appropriate development of the district [in] which the use is located.
Thus, it is also clear that the determination to approve or disapprove a permitted use cannot be done in a whimsical, arbitrary, or capricious fashion. It must be the result of a deliberate, adjudicative process by the Commission considering the impact of the use on "transportation and access, water supply, waste disposal, and other public facilities, as not causing undue traffic congestion or creating a traffic hazard, and as being in harmony with the orderly and appropriate development of the district [in] which the use is located." (Emphasis added).
¶ 22. It is noteworthy here that none of the departments of the City of Gulfport that would be potentially impacted by permitting the construction of the multi-family dwellings recommended against it, choosing instead to offer no comment.[4] In fact, one, the fire department, gave its approval, conditioned upon the development meeting all requirements applying to multi-family dwellings. The police department made no recommendation but had "concerns regarding access of traffic to Pass Road." It, however, was of the opinion that "proper management and security of the complex will alleviate other law enforcement concerns." With respect to the matter of "access of traffic to Pass Road," it is sufficient to say that under the ordinance, for a *347 development of the size that was proposed, only one entrance is required.
¶ 23. I am fully aware that neither the Commission nor the City Council was bound by the lack of opposition from the various departments of city government. However, it seems to me that lack of opposition is highly relevant to the question of whether the Commission's and the City Council's decisions are based on substantial evidence or are arbitrary and capricious. It is not legitimately debatable that the personnel in the department of traffic and safety should possess more expertise than a commissioner or councilperson relative to the impact that existence of the dwelling units would have on traffic congestion or traffic hazards. The same would be true of the department of public works with respect to its knowledge of the impact that the development might have on the water supply and waste disposal facilities of the city. Yet, as stated, neither of the departments recommended against approval. With respect to the use being "in harmony with the orderly and appropriate development of the district [in] which the use is located," the Commission's own staff found:
After reviewing the submitted information, it was determined the proposed apartment development would be consistent with the surrounding areas. There is another apartment complex located west and north of the subject property. This proposed development will potentially provide a transition and buffer area between the single family residents located to the west, and the commercial developments located on Pass Road and 8th Avenue.
The Commission's staff recommended that approval be granted on certain conditions that, for purposes of this discussion, are irrelevant, except for the recommendation that if the northern portion of the development was going to be used, Hillside would need to schedule a meeting with the Flood Plain Administrator to discuss possible changes in the required base flood elevation.
¶ 24. John Boyd, vice-president of Realtex Development Corporation (Realtex), the company involved in constructing the development, testified that they sought a use approval, rather than a rezone, to provide "affordable quality apartments for hardworking families." Boyd explained that this development would replace apartment complexes that were destroyed by Hurricane Katrina. He acknowledged that drainage issues would need to be addressed and assured the Commission that Realtex would comply with the Federal Emergency Management Agency's (FEMA) advisory base flood elevations. Boyd also stated that Realtex would conduct a drainage study. As for the ability of the tenants to afford the rent that would be required, Boyd stated that the residents must have a verifiable income of at least two and a half times the rent.
¶ 25. The proposed location is adjacent to a gift shop owned by Martin and Dorothy Miazza and an existing apartment complex. They appeared before the Commission through their attorney, David Crane, and argued against approval of Hillside's application. I quote, verbatim, portions of his presentation to the Commission:
So [the] B-2 district is designed to create a retail business district to service the community. It is not designated to service multi-family residential housing. It is not designed to service residential housing at all.
However, in your code and in your wisdom, you put in there that somebody could apply for permission to build a multi-family complex within the B-2 district. *348 They did that once, and they put in Cypress Lane, 100 units.
Now, somebody is coming in and asking to do it again, and they're saying because it's been done before, it should be done again. And I'm going to tell you, that's the opposite reason that is true. Because it's been done before, you should look with a particularly jaundiced eye at doing it again because what you would, in fact, do is convert this neighborhood from a B-2 district, business retail district, and sandwich my clients in between two huge multi-family residential complexes.
Now, they've been there for 40 years. They bought in a B-2 general business district. Their expectations which were completely justified were to have a business that would thrive in a neighborhood that would be general retail businesses. Their business is not going to fly if it's sandwiched between two residential complexes, not as it would if somebody came in next door and put another retail business. And that's what the district is designed to do.
So I don't think that you can arbitrarily say just because an apartment complex is there now you can put another one because it would, in effect, be tantamount to changing the district, at least where the Miazza stand, from B-2 to R-2. And that's not what they bought forty years ago.
But in addition to that, your zoning ordinance dictates several factors that you should consider when considering a conditional use under the existing district.
One is transportation and access. The second is water supply, water (inaudible), fire and police protection, traffic congestion or hazards, and in harmony with an orderly and appropriate development of the district.
I'm just going to go by a couple of these, and then start with transportation and access, traffic congestion, and hazards.
* * * *
Okay. This property is located immediately adjacent to the intersection of 29th Street and Pass Road. That intersection is not a perpendicular intersection. It comes at a very sharp angle. It's extremely dangerous right now to come in and out of 29th, quite frankly, to get onto Pass Road.
But in addition to that, you've got one access going into that apartment complex. They're asking for permission to build 96 units and 172 parking spaces. So you can assume at least 172 parkers coming in and out of that place on a daily basis.
You've got a school across the street, school zone twice a day, and you've got a grocery store that has no defined ingress or egress going in and out of Pass Road that is already a congested traffic hazard.
By allowing this to go in, you're just going to augment the problem that already exists with regard to traffic.
And there is too much limited access. You just went through a seminar on smart growth. One of the things I'm sure they told you is that you would have multiple access. What they're trying to do is build an island community unto itself, one entrance, nothing else but high density apartment living. It's a no mixed use with this whatsoever. There's no access from one place to the other. And, in fact, it's just limited to that single entrance coming off of Pass Road.
I've already spoken about the harmony with the orderly and appropriate development of the neighborhood.
*349 The Miazzas bought this property 40 years ago. They have justified expectations to have it as a business district. Quite frankly, if you took that away from them, that would be tantamount to taking their property without any compensation under the Fifth Amendment.
But then last but not least, fire and police protection. And this addresses the crime issue. And I know that they're telling you that this is not subsidized housing. Nonetheless, they're talking about voucher housing. And I can tell you that the voucher program is designed so that you can scatter that subsidized housing throughout the community rather than cluster it in high density living. The reason is, is when you live in a high density low income environment, unfortunately, it engenders an atmosphere for the cultivation of crime. Nobody wants that, and that's nobody's intention when they go in. But if you look at the projects in New Orleans, you look at the projects that we've had here, you see a high density of crime in those neighborhoods.
The logical reason is quite sociological. If you're an eight-year-old, and you see nothing but poverty around you and nothing but crime around you, you have no desire to go out and do something better for yourself.
If you take a voucher, and you go live across town, and you live with people who do have maybe a little different set of values than the people you're living next door to, you see an opportunity for growth and an opportunity of escape. There will be no such opportunity in this complex. People are going to live, and they're going to see crime, and they're going to create crime. I think it's an unfortunate truth, but it is.
In addition to his oral argument to the Commission, Crane presented a letter which summarized his argument regarding three of the factors to be considered by the Commission: (1) transportation and access/traffic congestion and hazards, (2) harmony with the orderly and appropriate development of the district, and (3) fire and police protection.
¶ 26. No other person or entity spoke against approval. Thereafter, various commissioners weighed in with questions for Boyd:
[STEPNEY]: This property here, I've been across it since back in the sixties. And I'm telling you, it's going to flood. Just the other week, the rain we did have, it had about eight or ten (inaudible). This property here, like she just told you, we had this before, I know because the property just down below, the school where my wife works, and when it rains, you can't stop it.
* * * *
Don't get me wrong. I am not fighting the government. That particular property in there, I just can't see it, I'll be frank with you. I'm not fighting your proposal. I want you to findI'd like you to maybe try to find somewhere else where you can really go ahead and try to put up a good....
But that property there, no I just can't see it.
* * * *
[BOYD]: The problem is, you do not have an abundanceyou certainly don't have an abundance but you have very few zoned multi-family. And I suggest to you that no one here is listening to the hardworking families who need a place to live.
[KEYES]: We'll take exception to that, sir.
[STEWART]: Yes.
*350 [ALLEN]: Okay. Let's deal on this hardworking family. The income restrictions. Is there a minimum and maximum, or just a maximum?
[BOYD]: There is a maximum. On the minimum side, you must have an income of at least two and half times the rent. There's a maximum by HUD, but there's an internal screening criteria that the family must have an income two and a half times the monthly rent.
[ALLEN]: So basically they can have an income of less than a thousand dollars a month.
[BOYD]: For the one bedroom, the lowest, the three hundred fifty-four, yes, two and a half times.
[ALLEN]: And I'm not speakingI'm just trying to get.... When we say income, is that income from
[BOYD]: Verifiable income from employment.
[ALLEN]: Are we talking Social Security, unemployment, welfare? What are we calling income? Because you used the term hardworking families, so let's clarify what we're describing as income.
[BOYD]: Verifiable income. I would suggest to you that a family on disability, that can be shown as income. Section VIII vouchers don't show up as income, but the resident has to make up the gap between what the voucher is and the rent.
[ALLEN]: You consider verifiable income anything they have coming in; right?
[BOYD]: No gifts. Other than that, generally, yes.
[ALLEN]: Okay. Thank you.
[BOYD]: The situation we're in tonight is I would propose that you put conditions on the use approval that the drainage is all worked out through the planned building.
[ALLEN]: That's a given anyway. You aren't going to get a building permit unless you work the drainage out.
[KEYES]: But let us say this after hearing Lorraine [Santo]. We do appreciate your presence, and we hope that we can accommodate you in some way. However, we must say, you know, that again this is not the place. And it's not because of you. It's the area. What you're building, you know, that sounds fabulous according to Lorraine, and we trust that that particular piece of property is not the property that you really want. We know that. We've already seen that property.
¶ 27. Thereafter, the Commission members, without any discussion of any of the factors that are, by the express provisions of the ordinance, required to be considered, denied approval by a vote of four to two. As stated, section III(J)(1)(b) of the land use ordinance requires that the Commission consider "transportation and access; water supply; waste disposal; and other public facilities, as not causing undue traffic congestion or creating a traffic hazard; and as being in harmony with the orderly and appropriate development of the district which the use is located."
¶ 28. Based on these facts, I would find that there is a lack of substantial evidence to support the Commission's refusal to grant permission for the development of the multi-family dwelling complex in the B-2 district. Therefore, I would also find that the Commission's denial of Hillside's request is arbitrary and capricious.
¶ 29. I would also find that the City Council, which affirmed the Commission's decision, acted without substantial evidence to support its decision, as its decision was based on the record developed *351 before the Commission, even though the City Council heard arguments from interested parties, including Hillside's and the Miazzas' attorneys. Thereafter, various councilpersons commented on Hillside's request for permission to develop the multi-family dwelling complex:
[NALLEY]: Thank you, Mr. Chair. I won't subject everyone in here to a dissertation on tax credits, because I think most of you probably (inaudible, train passing).
However, since it was brought up by the first gentleman who spoke and also in Mr. Reilly Morse's letter to us, I just would like you to know that my intention is not to stop housing-credit projects altogether. It was listed in this letter [that] halting affordable housing developments is not the solution to the prevailing housing shortage, and you are correct. But let me tell you a little bit about Barbara Nalley. I was raised on a farm two miles down a dirt road in a farm house with no indoor plumbing until I was 13 years old. My grandparents lived in projects all of their entire life. My mother was raised there. My aunt raised her children there. I visited my grandparents every Sunday in the housing projects in a small town in Georgia.
I have sympathy for all of those who are less fortunate than me. However, what's happening under the GO Zone is something totally different than what happens under annual tax credits each year. It is like a feeding frenzy. Under the last round, 1,071 units were approved in Gulfport for 12 developments for a period ending February 15. On the current round ending March 9, 14 applications were applied for in the city of Gulfport for 1,954 units. Six applications on the city infrastructure, burdens on our streets, 860 units.
Under this same application ending 3/9/07, only four applied for in Biloxi, three in Ocean Springs, five in Bay St. Louis, one in D'Iberville, four in Waveland, three [in] Pass Christian, one in Long Beach, one in Gautier, [and] one in Moss Point.
My efforts are not to stop affordable housing or Section 8 housing. My efforts are to under this GO Zone to perhaps implement a better policy with the Home Corp. under this next round of development.
And we were told in a meeting that we had yesterday why not just basicallyand I'm paraphrasingif we go ahead and approve these, then we as a council when it gets times like this or permitting, we will have the ability to say no. And my objection to that is obviously we haven't.
We have another development that was brought before the planning commission. They were denied for reasons of location. They were brought to us. It was denied for reasons of location being close to a creek bed, close to an interstate, close to a shopping mall that is projected to go in. And although it was denied both times, it's being brought back to planning again.
So I wonder if we have the ability to say no. Do we need 26 in the city of Gulfport? Is that saturation?
And I know that you're going to sit out there, gentlemen, and say we probably won't get all of these 14. We may not. But I ask [sic] the Home Corp., and they certainly are within their rights to approve them all should they choose to do so.
Saturation. It's going to affect our taxes. It's going to affect our schools. *352 It's going to affect everything around us if we have this many. I'm not trying to stop them all.
I have concerns with this project in particular because of the location and because of the transcript. And I know where the location is. I am concerned about putting a housing unit there which is so close where the buyout [sic] was.
People have talked to me. I've asked questions. I've driven by there. My concerns are not whether we appear in the paper tomorrow as being the first to award a tax credit development because I can tell you, I've got one on O'Neal Road called O'Neal Housing, which is very near where I live. And it is a good project. And currently it is an active project which wasn't damaged.
Do I have a problem with the federal government closing down some of our current housing projects which are fine buildings where people are in brick structures, there is space, they have yards to play in, to sell that property and relocate them to an apartment complex on a creek bed near the interstate? Yes, I have a problem with that.
So do we depend on our federal government to guide us? No, I don't think we do.
In a given year as a tax credit, the State of Mississippi receives $5 million approximately, and gets 30 applications from across the state. Under GO Zone, that equates to about $37 million a year over three years which is close to over $120 million. That is excessive.
I would like to see it spread more evenly amongst the other cities. I am asking Home Corp. to do that. And I thank you for your indulgence, Mr. Chairman.
* * * *
[HOLMES-HINES]: This is going to be for [the Director of Urban Development,] Larry Jones. Larry, in looking at the transcript, comments by department agencies, engineering, public works, traffic and safety, and building code services is left blank. Fire department makes a comment that they approve as of memo stated in the record for multi-family dwelling. The police department is no recommendation, memo of 1/3/07, but there are concerns regarding access to traffic to Pass Road. Additionally, proper management and security of the complex will alleviate other law enforcement concerns.
My question is: Did these departments submit their comments on this project?
MR. JONES: No, they did not.
* * * *
[NALLEY]: Can you tell me what the elevation of the property is now?
[ENGINEER CRAIG CARNEY]: It's about 8 to 20 feet.
[NALLEY]: Can you tell me how much water you had in Katrina on the property or can the property owner tell me?
[DR. LOVELL]:[5] We've got the FEMA map if you would like to see that.
[NALLEY]: No. I'd like you to tell me approximately how much-you said that you had water during Katrina. Can you tell me about how much water you had?
*353 [DR. LOVELL]: Approximately one-third of the property, according to the FEMA map.
[COUNCIL MEMBER NALLEY]: On which side of the property?
[DR. LOVELL]: North.
[NALLEY]: And how close are you to the existing apartment complex up there?
[DR. LOVELL]: Which one?
[NALLEY]: The one that's on, I'm assuming to the west.
[DR. LOVELL]: The property complex to the west is-the correct name is the Cypress Lane Apartments to the west there. What was your question?
[NALLEY]: How many apartments are in that complex to your west approximately?
[DR. LOVELL]: I'm not sure. Maybe 100, 120.
[NALLEY]: Are they now rebuilding that complex?
[CONCERNED CITIZEN]: Yes.
[NALLEY]: I know when it came before the planning commission, they were not. Are they now?
[CARNEY]: I'm not sure of the exact status or the extent that they're rebuilding or how many units they intend to salvage.
[NALLEY]: Okay. Thank you, Mr. Chairman.
* * * *
[HOLMES-HINES]: Mr. Carney, I have a copy of the (inaudible) that mentions about your flood zone. There are two different flood zones in this transcript. And it stated here that the applicant will need to schedule a meeting with the floodplain administrator to discuss possible changes in the required ABFEs. Do you know today what your elevation will be in this area?
[CARNEY]: It's 16. The ABFE is 16. We'll be going a foot above that. In some areas, we'll be three feet above that.
Well, as you go south the land gets higher. So the finished floor elevations are at elevation 20 as you go south closer to Pass Road. As you go further north, the finished floor elevation is 17.
[HOLMES-HINES]: Thank you, sir.
¶ 30. As was the case with the Commission, at the conclusion of the presentations made by the attorneys for Hillside and the Miazzas and the comments and questions from councilpersons, the councilpersons, without discussion, voted to affirm the decision of the Commission. Also, as was the case with the commissioners, none of the questions or comments of the councilpersons, as reflected above, were targeted at the factors, set forth in the ordinance, which determine the propriety of granting or denying the request.
¶ 31. In Town of Prentiss v. Jefferson Davis County, 874 So. 2d 962, 964(¶ 6) (Miss.2004) (citing Hooks v. George County, 748 So. 2d 678, 680 (Miss.1999)), the Mississippi Supreme Court held that "[u]nlike decisions to zone or re-zone, which are legislative in nature, decisions on request for special exceptions are adjudicative, and a reviewing court subjects such decisions to the same standard as is applied to [an] administrative agency adjudicative decisions." Therefore, the "decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency's scope or powers; or violated the constitutional or statutory rights of the aggrieved party." Id.
*354 ¶ 32. Our supreme court has defined the phrase "arbitrary and capricious," as follows:
An act is arbitrary when it is done without adequately determining principle, not done according to reason or judgment, but depending upon the will alone,absolute in power, tyrannical, despotic, non-rational,implying either a lack of understanding of or a disregard for the fundamental nature of things ... [.] An act is capricious when it is done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settle controlling principles.
Lowe v. Lowndes County Bldg. Inspection Dep't, 760 So. 2d 711, 713(¶ 11) (Miss.2000) (quoting Miss. State Dep't of Health v. Sw. Miss. Reg'l Med. Ctr., 580 So. 2d 1238, 1240 (Miss.1991)). In Lowe, our supreme court also provided guidance for determining when an agency has acted in an arbitrary and capricious manner. Id. In doing so, the Lowe court discussed its holding in Mississippi Department of Environmental Quality v. Weems, 653 So. 2d 266 (Miss. 1995) wherein it noted that the Mississippi Department of Environmental Quality "acted arbitrarily and capriciously by failing to follow clear statutory directives...." Lowe, 760 So.2d at 713(¶ 12). The Lowe court further explained:
The Commission's actions, as stated in its ruling, indicate an arbitrary and capricious reaction. An administrative act is arbitrary and capricious if the agency "entirely failed to consider an important aspect of the problem, or offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of any agency expertise." 2 Am.Jur.2d § 530 at 519 (1994). In addition, the failure of any agency to abide by its rules is per se arbitrary and capricious as is the failure of an administrative body to conform to prior procedure without adequate explanation for the change. Id.
Id. at 714(¶ 12) (quoting Weems, 653 So.2d at 281) (emphasis added).
¶ 33. I agree with Hillside's argument that the Commission exceeded its authority in inquiring, during the hearing, about the financial viability of the project, exploring its method of financing the project, and its rental rate structure. I also agree with Hillside's argument that its involvement with Realtex and the Mississippi Regional Housing Authority VIII (MRHA), coupled with the fact that the project would be financed using low-income tax credits, "played a significant role in the Planning Commission's denial." I agree further with Hillside's argument that the ordinance does not grant any power to the Commission to base its decision to deny use on "technical engineering concerns such as drainage" and that the Commission exceeded the scope of its power when it did so.
¶ 34. As the above-quoted exchanges indicate, none of the comments or questions by the commissioners were targeted at the factors that the Commission was required to consider in arriving at a determination as to whether approval should be granted. Therefore, Lowe compels the conclusion that the Commission's denial is per se arbitrary and capricious. It is clear to me that the Commission's reasons for denying Hillside's application are not based on any of the factors that it is required to consider. Although the Miazzas' attorney argued during the hearing before the Commission, and stated in the letter submitted to it, that allowing the development would cause crime to increase in the area, he did not present any evidence by way of statistics or studies from *355 other housing developments reflecting an "atmosphere of cultivation of crime." Nor did he present any evidence of a general rise in criminal activity in business districts containing multi-family dwellings. Moreover, the socioeconomic status of the tenants of the proposed development is not one of the factors to be considered as a part of the decision to grant or deny the request. In short, I find that the evidence is overwhelming that the motivating factor in the Commission's denial of Hillside's request was the prevention of additional affordable housing for low and moderate income persons. The comments and questions from the commissioners leave no doubt that this is the case. Also, the comments and questions from the councilpersons show without doubt that the City Council and the Commission were on one accord in this endeavor.
¶ 35. Therefore, I would find that the decision of the City Council affirming the decision of the Commission is not supported by substantial evidence and is arbitrary and capricious. It likewise follows that the circuit court erred in affirming the decision of the City Council. Consequently, for the reasons stated, I would reverse and render the judgment of the circuit court and remand this case to the Commission to issue the required approval to Hillside for construction of the development.
KING, C.J., MYERS, P.J., AND CARLTON, J., JOIN THIS OPINION.
NOTES
[1] The Miazzas appeared before the Commission and objected to the approval of Hillside's application.
[2] According to the zoning ordinance, B-2 districts are general business districts that are:
composed of land and structures occupied by or suitable for uses furnishing, in addition to the retail goods and services supplied by the neighborhood business districts, the wider range of retail goods and services required by residents of a group or community of neighborhoods, and by the city generally. Usually located on a thoroughfare or highway or near the intersection of principal thoroughfares or highways, these districts are large and within convenient distance of the area they serve. The district regulations are designed to permit the development of the districts for their purpose in a spacious arrangement of uses and structures. To protect the abutting and surrounding residential areas, certain requirements are placed on uses. It is intended that additional general business districts will be created, in accordance with the amendment procedure of this ordinance, as they are needed to serve groups of new neighborhoods or the city generally.
[3] The Miazzas filed a motion to intervene in this matter on August 23, 2007. Thereafter, the Harrison County Circuit Court issued an agreed order, and the Miazzas were allowed to participate as advocates for the City from that point forward.
[4] According to the Commission's staff report, the departments of engineering, public works, traffic and safety, and building codes services made no comment.
[5] Dr. Frank Lovell is one of the owners of the property. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566671/ | 161 F.2d 299 (1947)
DANZIGER et al.
v.
UNITED STATES.
No. 10989.
Circuit Court of Appeals, Ninth Circuit.
April 23, 1947.
Rehearing Denied July 8, 1947.
A. Brigham Rose, of Los Angeles, Cal., for appellants.
James M. Carter, U. S. Atty., and Ernest A. Tolin, Asst. U. S. Atty., both of Los Angeles, Cal., for appellee.
Before DENMAN, HEALY, and ORR, Circuit Judges.
HEALY, Circuit Judge.
This is an appeal by J. M. Danziger and two corporations, Trinidad International *300 Petroleum, Ltd., and Wake Development Company, from a conviction under twelve of seventeen counts of an indictment charging violations of the Securities Act of 1933, 15 U.S.C.A. §§ 77q(a) (1) and 77e(a) (2), and of the Criminal Code, 18 U.S.C.A. § 338 (using mails to promote fraud). The final count charged a conspiracy to commit the offenses set out in the first sixteen. Danziger was sentenced to prison for fifteen months on each of the twelve counts, the sentences to run concurrently, and the corporate defendants were sentenced to pay a fine of $200 on each of the twelve counts.
The indictment was returned December 30, 1941, but none of the defendants was arraigned until December 11, 1944, when Danziger and a co-defendant Willard Eugene Warren (indicted as Warren C. Carter) were brought into court and required to plead.[1] A motion by Danziger to dismiss the indictment for want of prosecution was denied. Trial was set for the latter part of January 1945.
Summonses against the corporate defendants were not issued until January 24, 1945. They were attempted to be served two days later by a deputy marshal who left copies with a stenographer in Danziger's law office. The summonses ordered the corporations to appear and plead on the morning of the day set for trial. Although no one purported to appear for them, the judge ordered that pleas of not guilty be entered on their behalf and directed Danziger's attorney to act as their counsel despite his protestations of his lack of authority to do so. The attorney further objected to the appointment on the ground that there would be a conflict in interests, to which objection the court replied that the appointment was "subject to developments at the trial that may cause you to feel that your interest has become adverse." A motion for a continuance was denied and the trial proceeded. Written waiver of a jury was filed by Danziger, and the court accepted an oral waiver by the attorney on behalf of the corporations.[2]
Except for some background matter it is unnecessary to detail the facts of the case. Trinidad International Petroleum is a Nevada corporation of which Danziger was president or chairman of the board. It was organized to take over certain oil rights on the Island of Trinidad. A million shares of its stock were issued, of which half were returned to the treasury. Of the remainder 335,000 shares went to individuals holding the oil rights acquired, and 165,000 were issued to Wake Development Company in consideration of Danziger's promise to render services in the field operations of Trinidad. The Wake Company is a Delaware corporation wholly owned by Danziger's wife except for a period when it was owned by a Mrs. Falkner who was Danziger's secretary and a relative by marriage. Mrs. Falkner was Danziger's chief assistant in running the Wake Company office. At all pertinent times the Wake Company had but one asset, namely, the 165,000 shares of Trinidad stock. The other important figure in the case is Willard Eugene Warren. Warren pleaded guilty to the conspiracy count, and at the trial, on motion of the United States, the remaining counts were dismissed as to him.
Warren was the chief witness for the government. He testified at length to fraudulent transactions in the Trinidad stock owned by the Wake Company, in which transactions he and Danziger were said to have participated. While it is insisted that the evidence was insufficient to convict Danziger, the argument turns out to be little more than an attack on Warren's credibility. If Warren is to be believed there can be no fair doubt of Danziger's *301 guilt on at least some of the counts of which he was convicted; and naturally his credibility was for the trial court to determine. There was, besides, other evidence tending to corroborate Warren. We need not inquire into the sufficiency of the evidence to sustain the judgment on all counts of which Danziger was found guilty, it being enough, in view of the concurrent sentences imposed, to hold that he was properly convicted of one.
The counsel designated to represent the corporate defendants moved to quash the service as to them. We think the motion should have been granted. Process was not served on any officer of either corporation, nor were copies left at the place of business of either. Service on Danziger's secretary was rather obviously insufficient since Danziger's connection with either corporation as of the time of service was denied in open court and no evidence was taken on the subject. The appointment of the attorney for Danziger to represent these defendants did not help matters any. He appears to have acted more or less under compulsion, protesting his entire lack of authority to appear for the absent parties. In the circumstances the court was without jurisdiction to proceed against them.[3]
There was, however, no showing or appearance of prejudice to Danziger growing out of the appointment of his attorney to represent the corporations. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680, is relied on, but the circumstances of that case were markedly different. In addition, the court made the appointment contingent on future developments and told counsel that he would be relieved from the assignment if conflict became apparent. The matter was not again brought up and no further objection on that score was urged at any stage of the trial.
It is claimed that the court erred in denying the motion to dismiss the indictment for want of prosecution. However, counsel concedes that no demand for a trial was ever made. The constitutional guaranty of a speedy trial is a personal right which may be waived by failure to assert it. Collins v. United States, 9 Cir., 157 F.2d 409.
Another contention is that a continuance should have been granted Danziger in order to afford time for the taking of depositions from persons in England and other distant places. The affidavit accompanying the motion for a continuance stated that the evidence to be obtained would show that the Trinidad Corporation had good prospects and that its stock was not worthless. In denying the motion the court observed that it might possibly develop during the trial that the evidence sought would be important, but that it "is the kind of thing that can't be passed on in advance." The judge indicated that should it become apparent that the matters mentioned in the affidavit were relevant a continuance would be in order. Counsel admitted on the argument here that after the denial of the motion the matter was never again brought to the attention of the judge, and no further effort was made to have the trial continued for the purpose of taking the depositions. In this state of the record we are unable to see that the tentative denial of the motion was reversible error. Beyond that, the prosecution was based primarily on the fraudulent methods employed in the selling of the stock. It is not at all clear that the depositions said to have been desired would be material or could have affected the result.
Other points are raised, but we find no error of consequence beyond that already noted.
The judgment is affirmed as to appellant Danziger. As to the corporate appellants it is reversed.
NOTES
[1] Two defendants named in the indictment, John J. L. Callahan and W. W. Wright were never apprehended and as to them the case was ultimately dismissed. The defendant called Carter [Warren] was not apprehended until October 1944. That fact explains in part why the government did not proceed to trial shortly after the return of the indictment.
[2] The involuntary counsel objected to signing a waiver for the corporations because he could not truthfully state, as required in the waiver, that he had "advised the defendants" fully as to their rights. His assertion was that he was in contact with no one from either corporation.
[3] Consult in this connection Rule 9(c) of the Federal Rules of Criminal Procedure, and note, 18 U.S.C.A. following section 687. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561830/ | 6 F.2d 121 (1925)
FILIPPELLI
v.
UNITED STATES.
No. 4368.
Circuit Court of Appeals, Ninth Circuit.
May 25, 1925.
*122 *123 Edward A. O'Dea, of San Francisco, Cal., for plaintiff in error.
Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
RUDKIN, Circuit Judge (after stating the facts as above).
We will now take up the different assignments of error in the order in which they are discussed in the briefs. In our opinion, it was error on the part of the trial court to permit the attorney for the government to criticize a juror and impugn his motives, in the presence of other jurors, because of his verdict in another case, under the pretense of inquiring into the state of his mind, and to follow this up by excusing the juror for cause. Of course, no error can be predicated on the ruling sustaining a challenge for cause; but it none the less appears from the record that the verdict in the former case was the sole basis for the challenge. Somewhat similar *124 situations arose in the following cases: Wolf v. United States (C. C. A.) 292 F. 673; Hindman v. United States (C. C. A.) 292 F. 679; Boyles v. United States (C. C. A.) 295 F. 126; McLendon v. United States (C. C. A.) 2 F.(2d) 660.
The facts in the Wolf Case are thus stated in a footnote to the opinion: "The gist of the asserted Mahannah incident is that, the court having learned by its own inquiry that the jury stood eleven to one for conviction, and Mahannah, in answer to further inquiry, having said he had favored acquittal, was immediately dismissed from the panel and from further jury service." In discussing the incident the Circuit Court of Appeals for the Sixth Circuit said:
"The court had a perfect right to discharge the juror Mahannah, if thought to be an unfit juror; but the discharge should not be made in such way as to indicate that it was a rebuke for failure to convict. It does not appear by proof whether such dismissal was publicly had and in open court, and under such circumstances as naturally to indicate to the jurors in attendance that the discharge was made merely because the juror voted for acquittal in a case where the verdict depended upon the credit to be given the testimony of the respective witnesses. If the discharge was so made, and in the presence or within the presumed knowledge of jurors upon the panel which tried plaintiff in error, its effect upon the whole panel would plainly have been such that no other case involving the issue of Taylor's credibility ought to have been tried by that panel."
The Wolf, Hindman, and Boyles Cases all grew out of the same transactions and involved substantially the same parties, but not so in the McLendon Case. In the latter case the court said:
"There must be a new trial; but there is another matter of great importance, and which alone would require reversal. After the case had been on trial several days, illness and death came to the family of a juror, and without objection this case was held over four or five days, and the 11 jurors in this case participated as they were called as jurors in the trial of other cases. No objection was made at the time to this course; but, after this jury had reconvened, and the trial had been finished and the jury charged, it remained out for parts of two days, and came back into court two or three times for further instructions. During this time a jury which had been trying a case for the unlawful sale of liquor reported that it was unable to agree. That jury had been instructed that upon the testimony of the defendant himself given in that case he was guilty, and it was their duty to return a verdict of guilty. When the jury reported its disagreement, the judge asked those jurors who were refusing to convict to arise. Six did so. Thereupon they were publicly discharged from the jury panel and the clerk was publicly instructed to see that their names were not drawn upon subsequent juries. This was for the reason, then stated in open court by the judge, that it was their legal duty to decide the case according to the evidence as produced and according to the law as given to them by the judge; that, in refusing to follow the instructions of the judge as to the verdict, these jurors had contumaciously refused to do their plain duty; and that the government ought not to continue to expend its time and money trying cases before jurors who would not be governed by the instructions of the court as to the law. * * *
"In view of what was said in our two former opinions just cited, and the fact that the trial of this case occurred before we had thus expressed disapproval of this practice, we refrain from extended comment. The ever-present possibility that the judge may be in error as to the indisputable effect of the evidence and the inevitable tendency to let the jurors of the panel understand that they will be punished though not by fine or imprisonment if they do not agree with the judge as to the tendency of the evidence, must necessitate an immediate discharge of the entire panel whenever such an incident occurs, lest every later case at that term be subject to condemnation as a mistrial."
Here the court itself took no action, but the attorney for the government was permitted to act by its sanction and under its protection. The juror addressed and all other jurors were given plainly to understand that they might be punished, not by fine or imprisonment, it is true, but by public castigation at the hands of the public prosecutor, in the presence of their fellows and of the public under the protection of the court, if their view of the testimony in a given case did not coincide with the views of the court and the public prosecutor.
In this connection it must be remembered that there is a great sameness in the witnesses and testimony in this class of cases. On the one side are government agents; on the other side, the defendant or defendants. In some cases there may be corroboration, *125 but usually there is none; and if the jurors are to be publicly criticized, with the sanction and under the protection of the court, for returning a verdict of not guilty in one case, how can they expect to escape the like criticism if they return a like verdict in another case of the same general character, even though their conscience tells them that the government has failed in its proof. It is needless to say that, if such a course of conduct is permitted, timid jurors will be influenced, and all jurors will be embarrassed in the discharge of the important public duties imposed upon them by law. The policy of criticizing a jury for their verdict in any case is of doubtful propriety, to say the least. As said by the court in one of the cases just cited, there is always the ever-present possibility that the jury may be right, and that the judge or public prosecutor may be wrong. Both judges and jurors are human; judges as well as jurors make mistakes; if they did not, we would have or know no jury system.
We see no defect of form or substance in the first search warrant, or in the affidavit upon which it was based; but, in our opinion, the second search warrant was unauthorized and illegal. The object of a search warrant under the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10496¼a-10496¼v) and the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.) is to search for and seize property used as a means for committing a crime, and when that purpose has been accomplished no further search is authorized for causes existing prior to the time of search. The sale of October 9 would justify the issuance of a search warrant to search the private residence of the plaintiff in error, and so would the sale of October 17; but no search warrant was applied for because of the first sale until after the second sale was made and, the two sales would thereafter justify but a single search. After the search was made on October 25, the right of search because of prior sales was exhausted, and the application for a search warrant on November 5, based on the sale of October 17, eight days prior to the first search, was a plain abuse of the process of the court. After the search of October 25, there remained no more apparent right to issue a search warrant based on the sale of October 17 than there was to issue a second warrant based on the sale of October 9.
We do not hold or intimate that a second search warrant may not issue in any case after a prior search of the premises, when based on a sale or sales consummated before the first search; but, to authorize a second search, some showing must be made beyond the mere sale of intoxicating liquor antedating the first search. As already stated, a search warrant is authorized for a specific purpose, not as a punishment for crime, and when that purpose has been accomplished the right of search is gone. Courts must presume, in the absence of some showing to the contrary, that officers perform their duties and properly execute the processes placed in their hands, and the practice of procuring successive search warrants and making repeated searches of private dwellings, based on sales antedating the first search, cannot be sanctioned or tolerated. The petition for the return of the property seized under the second search warrant, unless contraband, should have been granted and all testimony relating thereto should have been excluded.
We see no objection to the first question propounded to the character witness, as the fact that the witness had heard of the arrest of the plaintiff in error might have some bearing upon his general reputation. But the second question was grossly improper, because it assumed that the plaintiff in error had been arrested a number of times for violating the National Prohibition Act. If such were the fact, it was misconduct to call the matter to the attention of the jury, because the government would not be permitted to prove it, and if such were not the fact the misconduct was graver still. In reference to the argument of counsel to the jury, we need only say that most, if not all, the statements excepted to were entirely outside the record, and had no place in a properly conducted trial.
The request to charge the jury that it was not unlawful for the plaintiff in error to possess intoxicating liquor in his private residence, while occupied by him as his private dwelling only, provided such liquor was for the use of the plaintiff in error, his family, and bona fide guests, was properly refused, because the request assumed that liquor unlawfully manufactured or acquired might be lawfully possessed, and such is not the law. True, a party may still possess intoxicating liquor for beverage purposes, notwithstanding the National Prohibition Act; but the law imposes upon him the *126 burden of proving the legality of his possession, and no such showing was made here.
Nor was it error to instruct the jury that the possession of intoxicating liquor illegally acquired is prima facie evidence that it is kept for sale. Such is the express provision of section 33 of title 2 of the act (Comp. St. Ann. Supp. 1923, § 10138½t). We think, however, that the court should have defined what is meant by prima facie evidence, when a timely request was made therefor, as a general statement that one fact is prima facie evidence of the existence of another conveys very little meaning to the average jury.
Section 25 of title 2 of the National Prohibition Act provides: "It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this title or which has been so used, and no property rights shall exist in any such liquor or property." 41 Stat. 315 (Comp. St. Ann. Supp. 1923, § 10138½m).
The court charged the jury as follows: "The language of the statute is that it is unlawful for any one to have in his possession any article designed for the manufacture of alcohol or intoxicating liquor, the alcoholic content of which should be more than one-half of 1 per cent. by volume. If, therefore, you find from the evidence that he did have this article in his possession, and this article was designed for the manufacture of intoxicating liquors of the unlawful content, then it is your duty to find him guilty upon the first charge."
This instruction was excepted to, and a request to give the following instruction was refused: "I charge you that the defendant is not charged with violating the internal revenue laws of the United States, but with violating the National Prohibition Act, and unless you find from the evidence that the still and parts of the still mentioned in the information were designed or intended to be used by the defendant in the unlawful manufacture of intoxicating liquor, you must acquit the defendant of the count setting forth the charge of having property designed for the manufacture of liquor in his possession."
If the statute prohibited the possession of property merely designed for the manufacture of intoxicating liquor, the instruction given by the court would have been proper, for in that event the term "designed" would be descriptive of the property, and would have no relation to the person having the property in his possession, or to his intentions. Commonwealth v. Morse, 2 Mass. 129. But the statute goes further than this. It declares that the property must not only be designed for the manufacture of intoxicating liquor, but that the liquor or property must have been used or be intended for use in violating the National Prohibition Act. The past or intended use of the liquor or property is therefore an essential element of the crime, and that element was entirely omitted from the charge of the court. United States v. Horton (D. C.) 282 F. 731. For this reason the instruction as given was erroneous, and the instruction requested, or one of like import, should have been given. The instruction requested made no reference to the past use of the liquor or property, and was to that extent defective; but the request was sufficient in form to direct the attention of the court to the language of the statute.
Some of the errors discussed in the foregoing opinion may not have been prejudicial, but, taken as a whole, they leave us no alternative but to reverse the judgment and grant a new trial.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561842/ | 18 So. 3d 535 (2009)
STAHR
v.
STATE.
No. 1D07-5245.
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/1561843/ | 6 F.2d 420 (1925)
INTERNATIONAL CORK CO.
v.
NEW PROCESS CORK CO.
No. 158.
Circuit Court of Appeals, Second Circuit.
February 16, 1925.
Newell & Spencer, of New York City (Emerson R. Newell, of New York City, of counsel), for appellant.
Livingston Gifford, of New York City (William H. Davis, of New York City, of counsel), for appellee.
Before ROGERS, MANTON, and HAND, Circuit Judges.
MANTON, Circuit Judge.
The appellant sues on two patents, the first No. 1,234,109, granted July 24, 1917, on an application filed June 23, 1913, renewed April 19, 1917, and the second, No. 1,234,711, granted July 31, 1917, on an application filed August 26, 1913, and renewed December 23, 1916. The first is for a process of manufacturing bottle closures, and the second is for closure for receptacles. Claims 1 to 6 of the first patent and claims 1 to 5 of the second are involved.
Bottle caps made of metallic shell and the cork disk cemented therein were old, and *421 were made for many years under the Painter patents, Nos. 792,285 and 887,838, and also the Wheeler patent, No. 887,883. Such prior art is referred to in the patent in suit. Fusible gum, as copal or resin, was put into the cup-shaped metallic metal shell, and this cork disk inserted above it. Heat was applied and the gum melted. Pressure was then applied against the cork disk, and the cap held under the pressure for a sufficient time, until the cement was hardened by a cooling process. The Painter process patent, No. 792,284, referred to this cooling process to harden the binding medium. The art was desirous of accelerating the manufacture, through hardening the fused medium, and men directed their efforts to find some method to accomplish this result. Automatic machines with improvements could rapidly turn out caps, but the production was delayed because of the necessary delay in holding this cork cap under pressure while adhesion was obtained by cooling. If speed of production was obtained, caps could be made cheaper.
It is asserted that, by the patents in suit, the speed of production has been doubled, so that now 250 per minute may be manufactured by a single machine. This is acceded to by some of the appellee's witnesses. The problem was to devise some process which differed from the existing methods under former patents and gain speed by decreasing the period of manufacture, due to delay in cooling. The inventor's claim is that this was accomplished by the use of egg albumen setting by heating method. Under all known methods, it was necessary to melt the adhesive and hold it under pressure until it cooled. Appellant's method accomplished the desired result as to speed, and now the albumen adhesive is used in cap making, having been adopted by most cap manufacturers. It is not affected by weather conditions, as hot days; fire hazard has been reduced, and dangers of bad sticking have been eliminated; practically 100 per cent. of the disks are stuck to the tin. Puffer caps that is, those that bulge up by the disk being forced away from the tin, due to internal gas pressure have been reduced to a minimum. Some of the caps are decorated, and the damage or injury by heat is negligible, because the heat required need not be even at a boiling temperature. Double production has reduced the cost.
Egg albumen is the white of egg. For commercial purposes, it is the dried, uncoagulated egg. When dissolved in water, it may be used like albumen from a fresh egg. Albumen dissolved in water in concentration will coagulate when heated. Both patents state that, when it reaches a temperature of 140° Fahrenheit, it sets and becomes insoluble. After coagulation, it cannot be brought back to its uncoagulated state. There are but two commercial albumens on the market egg and blood albumen. The process, as set forth in each patent, is that the cork disk is stuck to the metal shell by a cement which is set by heat specifically by albumen which is interposed and then coagulated by heat. The albumen referred to could mean only one or two commercially known albumens. The patent says:
"Albumen has been found to be particularly adapted for carrying out the present process, it being inodorous, tasteless, soluble in water before use, and coagulates at 140° Fahrenheit. The assembled closures can be subjected to pressure without changing the chemical properties of the albumen, and when they are, after the pressure is applied and while it is maintained, subject to heat, the albumen is easily coagulated, rendered insoluble, and forms an effective cementing medium for uniting the parts of the closure."
And further:
"The coagulation results in a firm union between the parts of the closure, such union being instantaneous, particularly when albumen is used."
The patents make it plain that the albumen is coagulated or set by heat. They sufficiently disclose to the art, or one skilled in the art, how to use egg albumen as an adhesive medium, and how to carry out the process and produce the caps. The proportions of water and albumen to be used is not set forth. Because of the lack of statement as to it, we do not think the patent is invalid. Any proportions within reason will answer. A. B. Dick Co. v. Barnett (C. C. A.) 288 F. 799. It is only necessary in a patent to point out one way of carrying out the process, and these patents do that. The figures are clear enough in explanation to one skilled in the art. They show that the liquid albumen may be put into a container 12, from which it may be dropped, as shown at 11, into a shell 10, a miniature pan. The cork disk 14 is then inserted. Pressure is then exerted, such as by plunger 15, as shown by Fig. 2, with heat simultaneously applied by any suitable heating means, an example of which is illustrated by the steam plate 16. This sets the albumen (Figs. 1 and 2). Figure 3 illustrates a modified construction, in which a disk or collet *422 of paper coated with uncoagulated albumen is suggested. The drawings of the second patent show a cap, similar to the figures of the first patent, with the disk stuck in place by the coagulated albumen.
Both patents state that the albumen was preferable in liquid form before coagulation. They distinctly point out that albumen is to be uncoagulated, and that, when coagulated after it is interposed between the disk and the shell, the application of heat will set the albumen or produce adhesion. The degree of heat to be applied is sufficiently referred to. A patentee may define his own terms, regardless of common or technical meaning, and fairness to the patentee requires the court to accept his definition of words, phrases, and terms. Rajah Auto Supply Co. v. Belvidere, etc., Co. [C. C. A.] 275 F. 761. The words of the claims are sufficiently explained in the descriptive part of the specification.
In patent No. 1,234,107, claim 1, the application was made in 1913, but Alberti conceived his idea in 1911. The appellee started making caps in the fall of 1914, which, it is alleged, are an infringement. It uses commercial egg albumen dissolved in water, and its process in all substantial respects is the same as the appellant's. Claim 1 of the first patent accurately describes the appellant's process, and claim 2 is the same as claim 1, except that it adds the words "and in the meantime placing the closure under appropriate pressure." Claim 3 restates claim 2 in different words, and claim 4 adds the "rendered insoluble" feature. Egg albumen is used, which is necessarily rendered insoluble by heat. Claims 5 and 6 specify an adhesive albuminous substance with the application of heat to set the same, and claim 6 then adds the feature of maintaining the parts under pressure. We think that the appellee's process falls within claims 5 and 6.
As to the second patent, the claims are as follows:
"1. A closure for receptacles comprising a metallic cap, a sealing disk, and an interposed heat-coagulating cementing medium.
"2. A closure for receptacles comprising a metallic cap, a sealing disk, and an interposed cementing medium coagulated and rendered insoluble by heat.
"3. A closure for receptacles comprising a metallic cap, a sealing disk or packing of cork or the like, and an interposed cementing medium composed of heat-coagulating albuminous substance.
"4. A closure for receptacles comprising a metallic cap, a sealing disk, and an interposed liquid cementing medium rendered insoluble by heat.
"5. A closure for receptacles comprising a metallic cap, a sealing disk, and an interposed cementing medium rendered insoluble by heat."
Claims 1 to 3 each include a cementing medium, which is specified as coagulated or set by heat. What the appellee does in making its caps is clearly an infringement of claim 3. Claims 4 and 5 do not state the cementing medium as coagulated or set, but say it is rendered insoluble by heat. Nobody has ever used albumen as a cement for this purpose before, and the substitution of an albuminous cement for the earlier resin and waxes produced a patentable invention. Potts & Co. v. Creager, 155 U.S. 597, 15 S. Ct. 194, 39 L. Ed. 275; Edison, etc., Co. v. U. S. Electric Lighting Co., 52 F. 300, 3 Cow. C. A. 83.
Many patents of the prior art are called to our attention to support the claims of anticipation. Serra, No. 846,251 (1907), used egg albumen in the composition of a cork block, by grinding cork and mixing it with a solution of albumen. That patent says:
"The material is then put in molds and its bulk reduced by pressure, after which the molds are subjected to a temperature of about 212 degrees Fahrenheit in a moist heat, either by introducing it in boiling water or by subjecting it to a jet of steam, in order to coagulate the albumen."
And further:
"It is of the utmost importance that the material be subjected to a moist heat, as otherwise the product made under a high, dry temperature will be found to be of a hard nature, not suitable for the use for which corks are intended."
It will be noted that the claims refer to a moist heat. Serra was after a cork block, which should not be of a hard nature, but soft. Alberti was after a hard cementing of the cork to the tin receptacle, while Serra emphasized the use of albumen; but he says the cork material must be subject to a moist heat, such as by introducing it in boiling water, or by subjecting it to a jet of steam. To have used such a process in producing bottle caps would have had no result for the purposes intended by the patent in suit. It was the teaching of the Serra patent, "as of the utmost importance," that the material be subjected to moist heat. Serra's patent taught the art only that soft cork could be made by his process with moist heat a molding *423 process. This is not teaching the art that a cork disk could be cemented into a bottle cap in a commercially successful manner by the use of albumen solution. Nor is the appellant's invention a mere substitution of a known adhesive. Nobody, since 1907, and before Alberti, used this adhesive to stick the cork to tin caps.
In the Plinatus patent, No. 925,233, a method of sealing fruit cans and the like is disclosed. It provided a packing for the old India rubber ring between the top and the can. He takes a rag pulp or paper and suitably treats it, and then impregnates this packing material. "For this purpose white of egg, blood, or egg albumen, or suitable mixture of these substances, may be employed. Casein is also adapted for the impregnation, either alone or mixed with the above-mentioned substances." And he says that "by this coagulation, and in consequence of the increase of volume thereby resulting, the joint-making material completely fills up the space between the top or closure and the top of the can, thus forming a permanent hermetic joint."
This idea was not a cement for holding the two parts together, but a packing material, which would swell up and fill the joint by the increase in volume, as might oakum in the seam of a boat, swelling when wetted. We do not think that this was teaching the art that albumen could be used to stick securely a cork disk to a metal cap by dry heat. Plinatus taught the art, so far as caps are concerned, that after the cap had been made, and applied to the bottle, the joint between the cap and bottle could be filled up and sealed against the entrance of air by the joint-filling material he suggests.
The Painter patent refers to a melted and cooled adhesive, and this method was used by the art for many years. The cap, composed of a metal shell and an inserted cork disk, was old, and the sticking was obtained by a melting and cooling adhesive medium, such as sealing wax and fusible gums. This was as far as the art had advanced when Alberti made his invention. The cooling process was slow at least too slow to accommodate the improved automatic machinery which turned out the caps with such rapidity. The great volume of work and experimentation that was indulged in by men who were interested in this art, all laboring to meet this necessity, indicates the importance of the new idea which has resulted in the patents in suit. To the art it seems a forward step, and has succeeded in bringing about economy in manufacture, speed in production, and a cheaper product cheaper because of the ability to manufacture faster. The outstanding fact is that in all this experimentation of trained men, with some knowledge of egg or blood albumen, no one thought of its use as Alberti made use of it in the patents in suit. It is more than a mere substitution for a new use. Such a substitution, if it was one, was not evident to these experienced men.
We are also referred to the British patents issued to Wittkowsky, No. 8,347 (1891), and the Gardiner, No. 21,774 (1896). The former was for a casein cement for gluing two wooden articles together. The inventor says he takes casein the coagulated product of milk and slaked lime, and mixes them together to dissolve the casein. He adds parts of water glass and obtains "a slimy, smearable mass," and says the cement must be dried upon each part before the two parts are brought together. They are then melted by heat. It thus appears that these three ingredients are mixed together, smeared on each surface, and allowed to dry. There is mention of albumen proper, or ox blood. These seem to be mentioned only "for the sake of definition." The inventor there recites that, in order to get a broad scope for his invention, he merely, for the sake of definition, mentions a number of materials which he thinks might possibly be used.
Casein is already coagulated and an insoluble product of milk, and, since it is already a coagulated product, it cannot be brought back to its uncoagulated form, and so cannot be recoagulated. This mere mention of albumen in no way discloses the Alberti process. The Gardiner patent is a casein waterproof glue patent. The parts are smeared with it, put together, and allowed to dry as in the former patent. The United States patent, No. 537,096, later granted to Wittkowsky, has the same disclosure as the earlier British patent, except that parts of the water glass are given and albumen is not mentioned. This would indicate, as one of the experts explained, that albumen with an alkali was unworkable in his method.
The patent to Dunham, No. 695,198, is a process of producing insoluble casein which is said to be suitable for use as a substitute for egg or blood albumen coagulated by heat. The patentee says that the solution is dried out in any suitable way in the form of a film, or it may be dried out by pressing the mixture into the meshes of a cloth, and in allowing it to dry in the form of a thin sheet. After drying, it is subjected to steam under *424 a pressure of about five pounds per square inch. This process may be compared to the casein drying and subsequent liquefying method of the Gardiner patent. He speaks of it as an "insoluble casein product of such a character that it may be used in the arts as a substitute for insoluble egg or blood albumen." This patent teaches that egg or blood albumen may be coagulated by heat and rendered insoluble, but that was not new, and no use was made of it, such as was conceived by the inventor of the patents in suit.
But it is said that the patent is invalid because of prior uses. The outstanding prior use in this record is that of one McManus, who worked for years trying to develop a successful cement which would avoid the objections of the melted gum adhesive. His experiments were abandoned, because his various ideas proved to be impracticable. He tried a cement which included an albuminous material as one of several ingredients. Because the albumen used was only one of several ingredients, and was rendered inert by the other ingredients used, it resulted in a sticking substance, which was impractical and was abandoned. In 1906, McManus, then engaged in business for himself, made a metal cap. He used the cork disk. During the course of his experiments, he tried a glue consisting of albumen, casein, and borax, with water and some antiseptics. This he called an A B C formula. His trials, however, were not confined to this. He does say he used albumen. How much he does not disclose; his record book as to this was not produced.
An effort has been made to show to at least give the impression that albumen was used which did coagulate by heat; but we think the record bears out the claim of the appellant that these words as used include casein, which does not coagulate by heat, because it is already coagulated. Exhibit N admits this. There it is said it had a "casein compound on the inner surface, and cork is fit in on top of that, the cork also having a casein binder." It is an apparent effort to use interchangeably for the experiment casein and albumen. Such interchangeability of words is illustrated in the Wittkowsky patent, where it is said: "Albuminous matters are casein, fibrine, and albumen proper." Casein is an albuminous substance, but it is not albumen, and will not set by heat, which is of the essence of the patent in suit. But, assuming that McManus did use the egg albumen in his A B C formula, it is apparent to us that his use of albumen, casein, and borax composition was not a success, and the reason seems to be that an alkali, such as borax, must be used with casein to dissolve it before it can be used, but an alkali is the wrong thing to use with egg albumen. It has a decomposing and anti-coagulating effect on the albumen, it causes the cork to turn black which is what happened with McManus' caps and renders them unsalable. In his testimony, McManus admitted that some of his caps offered in evidence show that there was a chemical added which caused the quick hardening action on the casein. At best, McManus may be assumed to have used some unknown proportions of albumen. But the outstanding fact is that he was engaged in the same art and desired the same result as Alberti, but was unsuccessful. His ideas produced no forward step in the art. The casein binder poured in was not a success. It requires a drying time to permit the complete adhesion of the article.
McManus formed the present appellee company in 1912, and they made a composition cork in 1914, and started to manufacture bottle caps; but this, we think, was after it was learned what Alberti was doing. The process was commercially used in 1913-1914. It is not proved that whatever albumen he used in his experiments was set in by heat action, as is done in the patent in suit. Therefore there was not the coagulation by heat. What he did depends solely upon his oral testimony. It fails in that definiteness and certainty required as a proof of prior use. The Supreme Court has recently reiterated that "the oral evidence on this point falls far short of being enough to overcome the presumption of novelty from the granting of the patent. The temptation to remember in such cases and the ease with which honest witnesses can convince themselves after many years of having had a conception at the basis of a valuable patent, are well known in this branch of law, and have properly led to a rule that evidence to prove prior discovery must be clear and satisfactory. Barbed Wire Patent Case, 143 U.S. 275, 284; Loom Co. v. Higgins, 105 U.S. 580, 591." See Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 43 S. Ct. 322, 67 L. Ed. 523.
Another prior use is referred to, that of La Porte, who alleges a date of conception as in the spring of 1912. Alberti proves sufficiently that his conception was in the spring of 1911. In the interference proceedings in the Patent Office, this has been so considered and decided in favor of Alberti. In the La Porte experiments, the caps came out hard and coagulated. He tried albumen *425 with alkali, lime and borates. He got up a long list of available substances, went through the literature of patents, because his directors wanted a method to get greater efficiency. On his hot-water press, the disks were securely sealed in when they came out. The albumen was in a glazed condition, which was thought to prove fusion. We think that La Porte's experiments did not conceive the idea of Alberti. The latter was first to accomplish the desired result. The invention in suit, although simple in its operation, is a valuable step forward in cap-making art and should be protected.
We hold that appellant's claims 5 and 6 of the process patent and claim 3 of the product patent are valid and infringed.
Decree reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3130150/ | • • •
• • •
MEMORANDUM OPINION
No. 04-10-00511-CR
IN RE Raymond DAVILA
Original Mandamus Proceeding
PER CURIAM
Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: August 4, 2010
PETITION FOR WRIT OF MANDAMUS DENIED
On July 9, 2010, relator Raymond Davila filed a petition for writ of mandamus, seeking to
compel the trial court to rule on his motion for forensic DNA testing.
To obtain a petition for writ of mandamus compelling the trial court to consider and rule on
a motion, a relator must establish that the trial court: (1) had a legal duty to perform a non-discretionary act; (2) was asked to perform the act; and (3) failed or refused to do so. In re Molina,
94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding). When a properly filed
motion is pending before a trial court, the act of giving consideration to and ruling upon that motion
is ministerial, and mandamus may issue to compel the trial judge to act. See Safety-Kleen Corp. v.
Garcia, 945 S.W.2d 268, 269 (Tex. App.San Antonio 1997, orig. proceeding). However, relator
has the burden of providing this court with a record sufficient to establish his right to mandamus
relief. See Tex. R. App. P. 52.7(a) (“Relator must file with the petition [ ] a certified or sworn copy
of every document that is material to the relator’s claim for relief and that was filed in any underlying
proceeding”); see also Tex. R. App. P. 52.3(k)(1)(A); Walker v. Packer, 827 S.W.2d 833, 837 (Tex.
1992).
Here, relator has not provided this court with a file stamped copy of his motion or any other
documents to show that a properly filed motion is pending before the trial court. Nor has relator
established that the trial court has been made aware of his motion or has expressly refused to rule
on it. See In re Isbell, No. 04-06-00558-CV, 2006 WL 3206075, at *2 (Tex. App.San Antonio
November 8, 2006, orig. proceeding) (mem. op.).
Based on the foregoing, we conclude that relator has not shown himself entitled to mandamus
relief. Accordingly, the petition for writ of mandamus is denied. Tex. R. App. P. 52.8(a).
PER CURIAM
DO NOT PUBLISH | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2468220/ | 677 S.W.2d 418 (1984)
STATE of Missouri, Plaintiff-Respondent,
v.
Ernest Lee PHELPS, Defendant-Appellant.
No. 47395.
Missouri Court of Appeals, Eastern District, Division Three.
September 18, 1984.
*419 Robert Jackson Maurer, Asst. Public Defender, Clayton, for defendant-appellant.
John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
KAROHL, Judge.
Defendant-appellant, Ernest Lee Phelps, was jury tried and convicted of robbery first degree. § 569.020 RSMo 1978. Defendant, a prior offender, was sentenced to twenty-five years imprisonment.
Defendant's sole point on appeal is that the trial court erred in allowing the state to cross-examine defendant about the details of a prior conviction for robbery second degree. We reverse and remand for a new trial.
On direct examination defendant acknowledged that he had a prior conviction for second degree robbery and armed criminal action. The following testimony was given on direct examination:
Q: You have been convicted of a crime before, haven't you?
A: Yes, sir.
Q: What was that crime?
A: I was convicted of second degree robbery and armed criminal action.
Q: When was that?
A: .. February 13, 1981, I think.
Q: If I tell you it was June 25, 1981, would that sound right?
A: Huh?
Q: If I say you were convicted ..
A: .. oh, when was I convicted? Yeah, that would sound right when I was convicted.
Q: Did you go to trial on that case, or plead [sic] guilty?
A: I plead guilty of that charge.
Q: You were guilty of that charge, weren't you?
A: Yes sir.
On cross-examination the following occurred:
Q: You plead guilty because it was a negotiated plea?
A: I knew nothing about a negotiated plea.
Q: You weren't asked by the court, as a result of an arrangement between you and the prosecutor's office ..
[DEFENSE COUNSEL]: I think we are going a little far.
THE COURT: Overruled. Proceed.
Q: You plead guilty in exchange for a plea negotiation, didn't you?
. . . . .
A: I plead guilty because the lawyer that I had said, you know, there is no sense in trying to lie or anything like that, so I plead guilty to the charge.
. . . . .
Q: Was that robbery not in Delwood? [sicDellwood]
A: That robbery was in Delwood.
Q: You didn't live in Delwood, did you? You lived down in north St. Louis city at the time of the first robbery?
A: Sir?
Q: You lived down in north St. Louis, not Delwood?
A: When the robbery took place in Delwood, I was residing at 5424 Queens.
Q: That is right, in St. Louis?
A: That is right.
*420 Q: You came out to Delwood to do the robbery?
A: I did not come out to Delwood to do the robbery. I had not planned on doing the robbery in Delwood. I had got off work, I was with a friend and we were drinking. I had drank about a fifth of whiskey and I was drunk and that is how the robbery occurred.
Q: Did you get the gun before or after you got drunk?
A: Sir, could you explain yourself as to what you are talking about? I don't understand what you're talking about.
Q: You are saying now, the first one was only because you were drinking. Was it before or after you drank that fifth of whiskey you procured that gun?
[DEFENSE COUNSEL]: We are going a little far.
THE COURT: Overruled, this is cross-examination.
Q: You told them the first robbery was out in Delwood, you plead guilty to, you didn't have anything to do with it?
A: I don't understand how you are putting the question, sir.
Q: How much education have you had?
A: I have had a twelfth grade education, a year in junior college.
Q: You had one year of college. You just told these people you didn't plan the first robbery in Delwood, right?
A: Yes, sir, I told them I did not plan it.
Q: And, you did that after you drank a fifth of whiskey?
A: That is right sir.
Q: My question is this. Did you have the gun before or after you drank the fifth of whiskey?
. . . . .
A: I had the gun after I drank the whiskey.
Q: Where did you get the gun?
A: Where did I get the gun from? I took the gun .. it had belonged to my stepfather and I took it from the house.
Q: After you drank the whiskey?
A: That was after I drank the whiskey.
Q: Came out to Delwood and did the robbery?
A: I didn't exactly know where I was going. I was with another person. I didn't know my way around the county and I was not driving, and he did the driving and that is where he ended up.
Q: Now, I want you to tell these people how long it was after you were given probation for the first robbery in Delwood, between that date and July 20, the second robbery in Delwood [case on trial]. How many days between June 25, of 1981 and July 20, of 1981, sir, with your college education?
A: How many days between June 25 ..
Q: And July 20, of 1981. How long were you on probation for the second robbery?
A: How long was I on probation? I was on probation for about, I would say something like twenty-four days.
Pursuant to § 491.050 RSMo Supp.1982, ".... any prior criminal convictions may be proved to affect his credibility in a civil or criminal case and, further, any prior pleas of guilty may be proved to affect his credibility in a criminal case ...." This statute confers an express right on the state to show prior convictions and the nature and kind thereof for the purposes of impeachment, or to affect credibility. State v. Sullivan, 553 S.W.2d 510, 515 (Mo.App.1977).
The scope of cross-examination is limited to prevent the cross-examiner from delving into the details of the crime leading to the prior conviction. It is permissible however to elicit the nature, dates and places of each prior crime and the resulting sentence. State v. Sanders, 634 S.W.2d 525, 527 (Mo.App.1982). The state was entitled to rebut the inference raised by the defendant that his prior plea of guilty was made solely because he was guilty and his present plea of not guilty was thereby dignified. See State v. Turner, 655 S.W.2d 710 (Mo.App.1983).
Our review of this preserved issue is limited to a determination of clear abuse of *421 trial discretion. State v. Lane, 613 S.W.2d 669, 679 (Mo.App.1981). The defendant admitted the prior conviction and the resultant probation. The purpose of impeaching his credibility by reference to the prior conviction was fully accomplished by this testimony. No further justification existed for inquiry into the details of the prior crime. State v. Porter, 538 S.W.2d 888, 891 (Mo.App.1976). We fail to perceive any impeachment value in the prosecutor's attempt to elicit the details of defendant's prior crime. The court permitted the state to inquire as to the planning, acquisition of weapon, and the relationship between the defendant as a resident of the city of St. Louis and the location of the crime, St. Louis County.
In the second half of the state's closing argument the state made further reference to the prior conviction by stating, "[h]ad he not had his freedom restored to him, he wouldn't be here today. [A reference to probation on the first charge]. He talked about not being here. He was given that extra chance and, where did it go? .. but, they come out here and strike like a cobra and then slither back to north St. Louis to the sanctity of the city and a special alibi because of their loved ones." The state's cross-examination went well beyond impeachment and the excess was employed in argument. The cross-examination, linking the details of the first robbery and the sentence of probation with the charged crime was erroneously permitted, was an abuse of discretion and exceeds the scope of cross-examination set forth in § 491.050 RSMo Supp.1982.
This case is controlled by State v. Sanders, 634 S.W.2d 525 (Mo.App.1982) because of the factual similarity. We there held prejudicial error occurred when the state sought additional details about prior convictions which served no legitimate purpose nor were they justified for the purpose of impeachment. In State v. Porter, 538 S.W.2d 888, 891 (Mo.App.1976) we found no prejudicial error because the court sustained proper objection on this ground and instructed the jury to disregard the improper questions. Here the court permitted the questions and the prosecutor increased the prejudicial effect of that error by referring to the answers in closing argument.
Reversed and remanded for new trial.
CRANDALL, J., concurs.
REINHARD, C.J., concurs in separate opinion.
REINHARD, Chief Judge, concurring.
I concur in the result reached by Judge Karohl because the cross-examination went too far. However, I believe a few additional words are necessary because of the increasing number of appeals in which the defendant alleges error over cross-examination of his prior convictions. In my opinion, when a defendant elects to testify, he largely controls the extent of cross-examination concerning his prior convictions. If the defendant unequivocally, clearly and concisely testifies to all of his prior convictions, including the nature of the offense, dates, place and resulting sentence, further examination by the state is generally foreclosed.[1] However, in many of the cases reaching us on appeal, the defendant equivocates, tries to explain or does not fully and accurately disclose his prior convictions. In those cases the prosecutor may inquire further.
In the case at bar, on direct examination defendant did not fully disclose his prior convictions, because he omitted mentioning the resulting sentence he received, as well as the place of the crime. Moreover, on direct examination, defendant intended to create the clear implication that he had pleaded guilty in the previous case because he was guilty and he was standing trial in this case because he was not guilty. The assistant prosecuting attorney in his cross-examination asked defendant whether or not he had pleaded guilty because of a negotiated plea. At this point the defense counsel objected. The court's overruling of *422 this objection was proper. See State v. Turner, 655 S.W.2d 710 (Mo.App.1983). The next several questions regarding the underlying facts of the prior conviction went too far, though, the state was entitled to elicit that the crime occurred in Dellwood. However, defendant made no objection to these questions and, therefore, cannot be the basis for a reversal. Finally, after the assistant prosecuting attorney mentioned the use of a weapon in the prior offense, defense counsel objected. The trial court should have sustained that objection and its failure to do so at that juncture was clearly prejudicial error.
NOTES
[1] I am speaking of the situation where the prior convictions are used for impeachment purposes only and not where the prior crimes may be admissible as a common plan or scheme. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561987/ | 16 So. 3d 317 (2009)
Robert PARSONS, Appellant,
v.
STATE of Florida, Appellee.
No. 2D09-583.
District Court of Appeal of Florida, Second District.
September 4, 2009.
Robert Parsons, pro se.
SILBERMAN, Judge.
Robert Parsons filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a) alleging that he had not been awarded sufficient jail credit after he was arrested without a warrant in Highlands County for a violation of his Polk County probation (VOP). Because the postconviction court's order and attachment do not conclusively refute Parsons' allegations, we reverse and remand.
Parsons attached documents to his motion demonstrating that he was stopped by Highlands County sheriff's deputies and arrested for driving under the influence at approximately 2:30 a.m. on September 14, 2008. At that time, the investigating deputy also arrested him for violating the curfew condition of his probation.[1] The booking report demonstrates that Parsons was held in the Highlands County jail on the VOP with no bond. When Parsons was ultimately sentenced in Polk County for the probation violation on December 5, 2008, he was awarded an unspecified amount of credit for the time spent in the Highlands County jail. According to his 3.800(a) motion, however, he did not actually receive all of the credit he was due from the date of his warrantless arrest in Highlands County.
In denying Parsons' motion for additional jail credit, the postconviction court attached a copy of an arrest warrant that appears to relate to a 2007 probation violation rather than the 2008 warrantless arrest and subsequent incarceration for which Parsons claims credit. This attachment does not conclusively refute Parsons' allegation; therefore, we reverse and remand for reconsideration of the motion. If the postconviction court again enters an order summarily denying the motion, it must attach documents conclusively refuting Parsons' claim.
Reversed and remanded.
WALLACE and CRENSHAW, JJ., Concur.
NOTES
[1] Section 948.06(1)(a), Florida Statutes (2008), authorizes any law enforcement officer who is aware of an offender's probationary status to arrest that person without a warrant for a violation of probation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858137/ | Hernandez
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-109-CV
MARIO E. HERNANDEZ,
APPELLANT
vs.
THE STATE OF TEXAS, THE CITY OF HOUSTON, TEXAS,
AND THE TRANSIT AUTHORITY OF HOUSTON, TEXAS,
APPELLEES
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. 92-00063, HONORABLE PETE LOWRY, JUDGE PRESIDING
The State of Texas, the City of Houston, and the Transit Authority of Houston,
Texas (collectively "the State"), sued Mario E. Hernandez to recover sales taxes assessed by the
Comptroller against Mario's Motors, Inc. ("the Corporation"). The State alleged that Hernandez
controlled the Corporation's management and finances and that Hernandez, or others under his
supervision and control, received or collected the sales and use taxes on behalf of the State, but
did not remit the money to the State. The State sought recovery from Hernandez based upon two
theories: common law conversion and statutory liability pursuant to section 111.016 of the Texas
Tax Code (hereinafter "the trust fund provision"). Tex. Tax Code Ann. § 111.016 (West 1992).
The district court rendered summary judgment in favor of the State. We will reverse the summary
judgment and remand the cause for further proceedings in accordance with this opinion.
BACKGROUND
On January 3, 1992, the State filed suit against Hernandez to collect state,
municipal, and special purpose taxing authority sales taxes assessed by the Comptroller against
the Corporation. Hernandez was an officer and director of the Corporation during the time
periods for which the State sought to collect taxes. The State offered two theories for recovery,
common law conversion and the trust fund provision. The State alleged that Hernandez was liable
as a joint tortfeasor with the Corporation for conversion of the tax funds. The State also alleged
that Hernandez received and collected sales tax and, thus, was individually liable for the taxes
under the trust fund provision.
On February 19, 1992, Hernandez filed a petition for relief under Chapter 7 of the
United States Bankruptcy Code. 11 U.S.C. § 701 et seq. (1988 & Supp. III 1991). Pursuant to
section 362 of the Bankruptcy Code, 11 U.S.C. § 362 (1988 & Supp. IV 1992), the district court
proceedings against Hernandez were stayed. On March 18, 1992, while the automatic stay was
in effect, the state served Hernandez with requests for admissions, interrogatories, and requests
for production. On June 3, 1992, the bankruptcy court granted Hernandez a general discharge
and terminated the automatic stay. Hernandez answered the requests for admissions on October
12, 1992.
The State moved for summary judgment and in support thereof, offered
comptroller's certificates of tax delinquency and all the discovery evidence produced in the case.
The most recent comptroller's certificate, dated September 21, 1992, reflected tax liability
calculated through October 15, 1992. The certificate stated that for the period of January 1985
through October 1991, the Corporation was assessed $102,006.03 in state sales tax; $36,207.44
in city sales tax; and $36,207.44 in transit authority sales tax. In response to the motion for
summary judgment, Hernandez offered evidence, including his own affidavit, controverting the
amount of taxes collected and owed. On October 29, 1992, the district court granted the State's
summary judgment motion and rendered judgment against Hernandez for the full amount of the
corporate tax liability set forth in the September 21, 1992, comptroller's certificate. Hernandez
appeals the summary judgment in favor of the State. We will reverse the summary judgment.
DISCUSSION
The standard for reviewing a motion for summary judgment is well established:
(1) The movants for summary judgment have the burden of showing that no genuine issue of
material fact exists and that they are entitled to judgment as a matter of law; (2) in deciding
whether there is a disputed material fact issue precluding summary judgment, evidence favorable
to the non-movant will be taken as true; and (3) every reasonable inference must be indulged in
favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management
Co., 690 S.W.2d 546, 548-49 (Tex. 1985). This is a heavy burden and, if there is any genuine
issue of material fact, summary judgment cannot be affirmed. However, because the State offered
two alternative theories of liability and the district court did not specify on which theory it granted
the summary judgment, we must affirm the judgment if either theory will support it. See Malooly
Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).
Our decision in N.S. Sportswear, Inc. v. State, 819 S.W.2d 230 (Tex. App.--Austin
1991, no writ) controls this case. In N.S. Sportswear, the State sued both a corporation and an
individual who was an officer and director of the corporation for unpaid corporate sales tax. To
support individual liability, the State relied on common law conversion and statutory liability
under the trust fund provision. Id. at 231. The State moved for summary judgment and, in
support thereof, offered comptroller's certificates and the answers to the State's requests for
admissions. The individual defendant offered his own affidavit controverting the amount of taxes
collected and owed. The district court granted summary judgment holding both defendants jointly
and severally liable for the full amount of the corporate tax liability as reflected in the
comptroller's certificates. Id.
On appeal, this Court held that under the State's theory of conversion, the
comptroller's certificates alone were insufficient to establish the amount converted by the
individual defendant. N.S. Sportswear, 819 S.W.2d at 232. Similarly, the State in the present
case offers no summary judgment evidence other than comptroller's certificates to establish the amount allegedly converted. (1) Accordingly, applying the holding in N.S. Sportswear, a fact issue
remains as to the amount of tax monies allegedly converted by Hernandez.
With regard to liability under the trust fund provision, in N.S. Sportswear we
specifically declined to reach the issue of whether a corporate officer could be held individually
liable for the corporation's unpaid taxes. N.S. Sportswear, 819 S.W.2d at 233. However, we
did conclude that if an individual officer could be held liable, comptroller's certificates alone
would be insufficient to establish the amount of liability. Id. Accordingly, in the instant case,
since the State's summary judgment proof on the amount of tax liability consists only of the
comptroller's certificates, summary judgment is inappropriate under the trust fund provision. If
Hernandez could be held individually liable under the trust fund provision, which we again decline
to decide, the State would at least be required to prove the actual amount he received or collected.
In view of this Court's decision in N.S. Sportswear, we sustain Hernandez's point
of error. We find that there is a genuine issue of material fact under either theory of liability set
forth by the State. Accordingly, we reverse the district court's judgment and remand the cause
for further proceedings in accordance with this opinion.
Mack Kidd, Justice
Before Justices Powers, Jones and Kidd
Reversed and Remanded
Filed: November 17, 1993
Do Not Publish
1. The State contends that since Hernandez's responses to its requests for admissions were
untimely, they were deemed admitted. Hernandez responds that since the requests were
propounded in violation of the bankruptcy court's automatic stay, they were inoperative.
See Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499 (Tex. 1988) (per curiam); Cissne v.
Robertson, 782 S.W.2d 912, 920 (Tex. App.--Dallas 1989, writ denied) (holding that requests for
admissions propounded to debtor during automatic stay are inoperative). We need not reach this
question since the requests for admissions sought no admissions regarding the specific amounts
allegedly received, collected, or converted by Hernandez. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1562399/ | 4 F.2d 781 (1925)
NIGRO
v.
UNITED STATES.
No. 6632.
Circuit Court of Appeals, Eighth Circuit.
March 9, 1925.
L. C. Boyle and A. N. Gossett, both of Kansas City, Mo. (E. C. Ellis, of Kansas City, Mo., on the brief), for plaintiff in error.
Charles C. Madison, U. S. Atty., of Kansas City, Mo. (Samuel M. Carmean, Sp. Asst. U. S. Atty., of Kansas City, Mo., on the brief), for the United States.
Before SANBORN, Circuit Judge, and TRIEBER and PHILLIPS, District Judges.
PHILLIPS, District Judge.
Mike Nigro, hereinafter called defendant, was charged by one indictment with having purchased 79 one-eighth ounce bottles of morphine and 73 one-eighth ounce bottles of cocaine, not in or from the original stamped package, contrary to the provisions of section 1, as amended, of the Anti-Narcotic Act (42 Stat. 298; Comp. St. Ann. Supp. 1923, § 6287g), and by another indictment with knowingly having in his possession certain false, forged, and counterfeit internal revenue stamps, in resemblance and similitude of the stamps provided under section 1, as amended, of the Anti-Narcotic Act (42 Stat. 298; Comp. St. Ann. Supp. 1923, § 6287g), contrary to the provisions of section 151 of the Criminal *782 Code (35 Stat. 1116; Comp. St. § 10321). The indictments were consolidated for the purposes of trial, and the defendant was found guilty and sentenced under both indictments.
The defendant was a registered pharmacist and operated a drug store in Kansas City, Mo. On or about January 24, 1923, C. O. Bradshaw, a narcotic agent, and W. O. McDonald, an officer employed by the Law Enforcement Association of Kansas City, made an inspection of defendant's narcotic drugs at his place of business, then located at 600 East Fifth street, Kansas City, Mo. At the time of this inspection McDonald believed the stamps on part of the drugs looked queer and so advised Bradshaw. Thereafter the defendant sold his store at 600 East Fifth street, and on February 15, 1923, opened a store at 123 East Fifth street. He reserved from the sale his stock of liquors and narcotics, and moved the same to his new location on February 15, 1923. On the morning of February 20, 1923, Bradshaw made another inspection of defendant's narcotic drugs at the new location. After examining the drugs, he went to the office of W. H. Davenport, an officer in the United States Secret Service specially charged with the enforcement of the laws relating to counterfeiting. During the afternoon of February 20, 1923, Davenport and Bradshaw returned to defendant's drug store, examined the narcotic drugs, and determined that part of the drugs were stamped with counterfeit stamps. They seized the entire stock, consisting of 188 one-eighth ounce bottles of cocaine and a small package of cocaine, and 179 one-eighth ounce bottles of morphine and a portion of a bottle of morphine, and took the same to the office of Mr. Davenport. They there examined and checked the drugs in the presence of the defendant, and found counterfeit stamps on 79 bottles of morphine and 73 bottles of cocaine.
The defendant testified that at the time the stocks of narcotics and liquors were moved from the old to the new location he had in his employ a clerk by the name of Pennimore, who had worked for him approximately one month prior to February 15, 1923; that Pennimore moved the stock of narcotics in an automobile from the old to the new location; that on the night of February 15, 1923, Pennimore disappeared, having four days' pay coming to him; that defendant had endeavored to locate Pennimore, but had been unable to do so; that at the 600 East Fifth street store the narcotics were kept in a closet, the key to which was left in an unlocked drawer back of the prescription case; that shortly after the narcotics had been moved to the new location defendant noticed them on the floor in a small room which had been prepared for their safe-keeping, in about the same order as they had been kept in the old store; that his attention was not again called to the narcotics until February 20, 1923, when the inspection was made by the officers; that he had purchased the narcotics in good faith from Betz & Co. of Hammond, Ind., and prior to February 20, 1923, believed they carried genuine stamps; that he did not know how or when the drugs bearing the counterfeit stamps came into his stock; that in his opinion drugs with spurious stamps had been placed in his stock without his knowledge, and legitimate drugs taken therefrom; and that his records of purchases and sales indicated that he should have had in his stock on February 20, 1923, legitimate drugs equal to the total amount of legitimate drugs and spuriously stamped drugs found and seized on that date. Defendant also produced 10 witnesses, most of whom had known him from childhood, who testified to his good character.
In his charge to the jury, with reference to the first indictment above referred to the learned trial judge, among other things, said:
"Now, gentlemen, the law is that, if any person happens to have possession of such container without the revenue stamp of the government affixed, even though that person is a registrant, such person violates this law; and if he has possession of such drug as a dealer, then the law presumes that such person made an unlawful purchase of the drugs. It is not necessary under the law for the government to show that such person made the actual purchase, but the mere possession of such drug in packages upon which the revenue stamp has not been affixed carries with it the presumption of an unlawful purchase.
"In this case the defendant says in his testimony that such drugs came into his hands by accident. If you believe from the testimony that such drugs did come into his possession by accident, or by substitution by some person unknown, and that he knew nothing about such drugs being in his possession, then, under such circumstances, of course, it will be your duty to acquit him.
"On the other hand, the government has shown to you that the drugs in question that is to say, the quantities mentioned in *783 the indictments that were read to you contained spurious or counterfeit or forged or false revenue stamps. It is hardly in controversy here that such stamps were spurious or forged.
"Now, gentlemen, if you find and believe from the testimony that a purchase of such drugs was made by the defendant, and that they had affixed to them these counterfeit stamps, if you believe they are counterfeit and you would not be justified in reaching any other conclusion with respect to the stamps then you will find the defendant guilty in this case, notwithstanding you may further find and believe he did not know that they were counterfeit or false or forged, because the government imposes on every dealer in this drug the obligation to take the chance, and to purchase such drug at his peril. He may be innocent of knowledge of this fact; he may believe they are genuine; but that does not satisfy the government. * * *
"The absence of an appropriate stamp means absence of the genuine revenue stamp. Not even a postage stamp that might be of greater value, not even a stamp that might be of equal value, will satisfy the government. There must be an appropriate narcotic stamp that must be placed on the package, regardless of the good intentions of the purchaser, under any circumstances. In other words, innocence on the part of the purchaser will not excuse him. So in this case, if you find from the evidence that the defendant purchased such drugs, and he was ignorant of the fact that these stamps were false or counterfeit or forged, you will find him guilty just the same on this indictment."
After the jury had deliberated for some time, they returned into open court, and the following, as disclosed by the record, from which we quote, occurred:
"The court inquired of the foreman of the jury if they had agreed upon a verdict. The foreman replied that the jury had not agreed. The court inquired if the foreman thought they would likely agree. The foreman replied that it did not appear that they would likely be able to agree. The court then inquired if the difficulty of the jury was upon a question of fact or in respect to the law of the case, and stated that if it was upon a matter of law he would give further instructions, if they would indicate the difficulty, but if it was upon a question of fact he would not be able to help them. The foreman replied that it was upon a question or issue as to facts. The court then requested the foreman that, without indicating how the jury stood in numbers, he, the foreman, should state to the court whether or not there was a predominance of the individual jurors in favor of a verdict one way or the other; the foreman replied there was a predominance. The court then instructed the jury that they should be subject, in their conferences and consultation among themselves, to the effect of reasonable argument, and should not obstinately and unreasonably hold out against a verdict, and should consider in their own minds, and with reason, the arguments and grounds advanced by their fellow jurors for arriving at a verdict under the evidence and instructions of the court.
"The Court: To illustrate my meaning, I will read to you an extract from a case decided by the Supreme Court of the United States (Allen v. U. S., 164 U. S. 492, 17 S. Ct. 154, 41 L. Ed. 528):
"`That although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other's arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority out to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority. * * *
"`While, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment, or that he should close his ears to the arguments of *784 men who are equally honest and intelligent as himself.'"
To the principal charge and supplemental charge above set out the defendant, through his counsel, duly excepted.
One assignment of error urged by counsel for defendant is that the court erred in charging the jury in substance that if the defendant purchased the narcotics, and the stamps affixed thereto were counterfeit stamps, he would be guilty under the first indictment above referred to, even though he acted in good faith, believed the stamps were genuine, and had no knowledge that they were counterfeit.
This assignment presents a serious question and requires a construction of section 1 of the act. To support the correctness of the charge, counsel for the government rely upon the decision of the Supreme Court in U. S. v. Balint et al., 258 U. S. 250, 42 S. Ct. 301, 66 L. Ed. 604. In that case the defendants were charged with an unlawful sale of narcotics contrary to the provisions of section 2 of the act (Comp. St. § 6287h). A demurrer was interposed to the indictment on the ground that it failed to charge defendants sold the inhibited drugs knowing them to be such. The court said:
"While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes, even where the statutory definition did not in terms include it (Reg. v. Sleep, 8 Cox, C. C. 472), there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court. It has been objected that punishment of a person for an act in violation of law, when ignorant of the facts making it so, is an absence of due process of law. But that objection is considered and overruled in Shevlin-Carpenter Co. v. Minnesota, 218 U. S. 57, 69, 70, in which it was held that, in the prohibition or punishment of particular acts, the state may in the maintenance of a public policy provide `that he who shall do them shall do them at his peril, and will not be heard to plead in defense good faith or ignorance.' Many instances of this are to be found in regulatory measures in the exercise of what is called the police power, where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in so.
"* * * The question before us, therefore, is one of the construction of the statute and of inference of the intent of Congress."
Proceeding to determine whether or not scienter was a necessary element of the crimes defined in section 2 of the act, the court further said:
"It is very evident from a reading of it [section 2] that the emphasis of the section is in securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the government, and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic. Its manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and, if he sells the inhibited drug in ignorance of its character, to penalize him. Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided. Doubtless considerations as to the opportunity of the seller to find out the fact and the difficulty of proof of knowledge contributed to this conclusion."
It will be noted that section 2 of the act under consideration in the Balint Case makes it unlawful for any person to sell, barter, exchange, or give away any of the inhibited drugs, except in pursuance of a written order of the person to whom such drugs are sold, bartered, exchanged, or given. The reasons assigned in the Balint Case for holding scienter not an element of the offense do not apply with equal force to section 1 of the act. In the case of imported narcotics the importer must pay the tax by attachment of proper stamps before the goods are withdrawn from customs custody. In the case of domestic narcotics the domestic manufacturer, compounder, or producer must pay the tax by the attachment of proper stamps before the goods are withdrawn from the place of domestic manufacture. No duty to pay a tax thereon by attachment of stamps devolves upon the purchaser, except in cases of repacking or remanufacture. If scienter is not a necessary element of the offense defined in section 1, prohibiting sales except from or in the original stamped package, the act, instead of protecting the innocent purchaser, would make him a criminal. The purchaser has not the same ability and opportunity to find out the fact under section *785 1 of the act as the seller has under section 2 of the act. The purchaser might easily be deceived by counterfeit stamps. In many instances, such a purchaser would have no opportunity in advance of the sale to examine the stamps on the drugs. Many retail dealers, physicians, and dentists are unable to purchase the drugs in the immediate vicinity of their place of business, and have to order them from distant points for shipment to them by express.
Suppose, for example, a duly registered retail dealer, physician, or dentist placed an order for narcotic drugs with a reputable and registered wholesaler at some distant point to be shipped by express, that the wholesaler had in his employ an unfaithful employee, who had taken legitimate drugs from the stock of the wholesaler and substituted spuriously stamped drugs therefor, and that the latter were delivered to the express company for shipment to the purchaser; upon delivery of such drugs to the express company, the agent of the buyer, title would pass, and the sale would be completed before the purchaser had any opportunity to determine whether he was buying properly stamped drugs or not. Suppose, again, for example, that spuriously stamped drugs were shipped from a reputable and duly registered wholesaler to a reputable and duly registered purchaser, and the counterfeit stamps were so near in resemblance to true stamps that the purchaser could not detect that they were counterfeit; was it the intent of Congress to make a purchase under such circumstances unlawful under section 1 of the act?
Many reasons may be assigned why the seller of narcotic drugs engaged in the wholesale or retail drug business and skilled in the knowledge of drugs should be required to determine at his peril whether an article which he sells is a narcotic drug, in order to afford protection to the purchaser, who would not have the same skill and ability to determine the character of the article. On the other hand, it would be wholly unreasonable to require an innocent purchaser, not specially skilled in detecting counterfeit stamps, and in many instances with no opportunity to examine the articles before the purchase was consummated, to buy such narcotic drugs at his peril. To so hold would compel retail dealers, physicians, and dentists to skill themselves in the detection of counterfeit stamps and to carefully examine the stamps on every order of drugs before purchasing the same. This, in many instances, would be impracticable and would prohibit their dealing in the drugs at all. The purpose of the law was not to prohibit all dealing in narcotic drugs, which, though dangerous, have many uses both proper and necessary, but was to confine them to sale and purchase for legitimate and proper uses.
We are of the opinion that scienter is a necessary element of the offense making it unlawful to purchase narcotic drugs except from or in the original stamped package.
The giving of the supplemental charge above set out is also assigned as error. This assignment applies to both indictments. The supplemental charge is substantially the same as that given in Stewart v. U. S. (C. C. A. 8) 300 F. 769, recently decided by this court. In the Stewart Case this court condemned the inquiry made of the jury as to how they stood, and the reading of the excerpt from the opinion of the Supreme Court in Allen v. U. S., 164 U. S. 492, 17 S. Ct. 154, 41 L. Ed. 528. In the instant case the question asked the jury was whether or not there was a predominance of the individual jurors in favor of a verdict one way or the other, and the foreman replied there was a predominance. In the Stewart Case the inquiry made was whether there was a large preponderance of the jurors one way or the other, and the foreman answered that there seemed to be a large preponderance one way. In the instant case the court read the two paragraphs above set out from the opinion of the Supreme Court in the Allen Case. In the Stewart Case the court read the second of those paragraphs. On the authority of the Stewart Case and for the reasons therein assigned, we hold that the inquiry made of the jury and the reading of the abstract statements from the Allen Case was error.
As pointed out by this court in the Stewart Case, a correct form for such a supplemental charge may be found in Commonwealth v. Tuey, 8 Cush. (Mass.) 1, and in U. S. v. Allis (C. C.) 73 F. 165. The charge in the Tuey Case was approved in Allen v. U. S., supra, and the charge in the Allis Case was approved in Allis v. U. S., 155 U. S. 117, 15 S. Ct. 36, 39 L. Ed. 91, and in St. Louis & S. F. R. Co. v. Bishard (C. C. A. 8) 147 F. 496.
We deem it unnecessary to notice the other assignments of error.
For the reasons above stated, the cause is reversed, with instructions to grant the defendant a new trial on both indictments; and it is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1644972/ | 40 So. 3d 788 (2010)
Vera GILFORD, Appellant,
v.
Alessandro BARTOLINI, Appellee.
No. 3D10-410.
District Court of Appeal of Florida, Third District.
June 23, 2010.
Rehearing and Rehearing En Banc Denied August 11, 2010.
*789 Vera Gilford, in proper person.
Lidsky, Vaccaro, Montes & Martinez and Daniel Martinez, Hialeah, for appellee.
Before GERSTEN, WELLS, and SALTER, JJ.
PER CURIAM.
Affirmed. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.2000). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/745393/ | 123 F.3d 787
97-2 USTC P 50,623
UNITED STATES of America, Plaintiff-Appellee,v.Curtis James LEAK; TKC, Inc., Claimants-Appellants,and5709 Hillingdon Road, Charlotte, North Carolina, (Deed Book5062, Page 119, Mecklenburg County Register ofDeeds); A 1989 Ford Taurus, VIN1FABP52DOKG172210, Defendants,Karen Tinsley Leak; Charlotte-Mecklenburg County TaxCollector, Claimants.UNITED STATES of America, Plaintiff-Appellee,v.Karen Tinsley LEAK; Curtis James Leak, Claimants-Appellants,and5709 Hillingdon Road, Charlotte, North Carolina, (Deed Book5062, Page 119, Mecklenburg County Register ofDeeds); A 1989 Ford Taurus, VIN1FABP52DOKG172210, Defendants,TKC, Inc.; Charlotte-Mecklenburg County Tax Collector, Claimants.
Nos. 93-2302, 96-1873.
United States Court of Appeals,Fourth Circuit.
Argued March 3, 1997.Decided Aug. 26, 1997.
ARGUED: Michael Smith Scofield, Charlotte, NC; James Frank Wyatt, III, Charlotte, NC, for Appellants. Frank DeArmon Whitney, Assistant United States Attorney, Charlotte, NC, for Appellee. ON BRIEF: Mark T. Calloway, United States Attorney, Charlotte, NC, for Appellee.
Before WILLIAMS and MICHAEL, Circuit Judges, and GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.
Reversed and remanded by published opinion. Judge MICHAEL wrote the opinion in which Judge WILLIAMS and Judge GOODWIN joined.
OPINION
MICHAEL, Circuit Judge:
1
Claimants-appellants Curtis Leak and Karen Leak lost their home and car on summary judgment in this forfeiture action. The government contends that the Leaks intentionally structured a series of bank deposits to avoid the reporting requirements of 31 U.S.C. § 5313(a). Because the Leaks used the money deposited to pay off their home mortgage and used their car to make some of the deposits, the government brought a civil forfeiture action against the home and car under 18 U.S.C. § 981(a)(1)(A). This statute allows the government to forfeit property that has been "involved in a transaction ... in violation of section 5313(a) or 5324(a) of title 31 ... or any property traceable to such property." After the magistrate judge made a finding of probable cause for forfeiture, the government moved for summary judgment. The Leaks, in affidavits filed in opposition, offered explanations and claimed they did not know of the reporting requirements and therefore did not intentionally try to evade them. The district court, finding the Leaks' claims to be "incredible," granted summary judgment for the government. Because we believe there is a genuine issue of material fact about whether the Leaks knew of the reporting requirements, we reverse and remand for trial.
I.
2
Curtis and Karen Leak are a married couple with five children who live in Charlotte, North Carolina. Mr. Leak (through TKC, Inc.) owns and operates a nightclub known as "Side Effects." Mrs. Leak is an accountant at Duke Power Corporation, and she is listed as the corporate secretary for TKC. Defendant property 5709 Hillingdon Road is the Leaks' family home, and defendant 1989 Ford Taurus is the Leaks' car.
3
On January 17 and 18, 1991, the Leaks made a series of deposits into checking accounts at three banks, Wachovia Bank & Trust Company, Southern National Bank, and First Citizens Bank. Eleven cash deposits ranging from $2,900 to $5,200 were made into Mr. Leak's personal account at Wachovia; these deposits were made at ten different Wachovia branches and totaled $51,100. Eleven cash deposits ranging from $2,500 to $5,000 were made into Mr. Leak's personal account at Southern National; these deposits were made at five different branches and totaled $50,700. Finally, eleven cash deposits ranging from $2,500 to $5,000 were made into Mrs. Leak's personal account at First Citizens; these deposits were made at seven different branches and totaled $50,500. The day before these deposits were made, the Leaks had drafted a check for $50,684.54 from each account. The Leaks used the three checks to pay off the mortgage on their home. The Ford Taurus was used to make at least two of the deposits.
4
A couple of months later, on March 20, 21, 29, and 30 and April 1 and 16, 1991, the Leaks made fourteen cash deposits ranging from $1,100 to $5,000 to Mr. Leak's Wachovia account. These deposits, totaling $54,110, were timed to cover six checks ranging from $4,275 to $12,325 made to a contractor who was building an addition onto the Leaks' home. The checks to the contractor totaled $52,647.
5
On June 21, 1991, the United States filed a complaint seeking in rem forfeiture of the Leaks' home and car pursuant to 18 U.S.C. § 981. That same day the government obtained a warrant enabling the United States Marshal to take the properties into his possession. The magistrate judge who issued the warrant found probable cause based on the affidavit of IRS Special Agent Michael J. Toomey, Jr., who discussed the deposits made by the Leaks, the apparent use of the deposited funds to pay off the mortgage and to pay for the addition to the house, and the use of the car to make the deposits.
6
The Leaks and TKC filed claims to the properties. On February 26, 1993, the United States moved for summary judgment on the claims of Curtis Leak and TKC. The government relied on the earlier Toomey affidavit and submitted the deposition testimony and affidavit of a Wachovia Bank service representative who had cashed a $15,000 check for Curtis Leak in 1989. The representative said that pursuant to her routine practice she would have told Mr. Leak, "Due to the large amount of this check, we [the bank] would need to file a currency transaction report [CTR] with the IRS." J.A. 58. She said Mr. Leak seemed to be in a rush and became agitated when told about the CTR requirement.
7
Curtis Leak and TKC opposed the motion for summary judgment. In an affidavit Mr. Leak insisted that he had "absolutely no knowledge whatsoever of any requirement of the bank to file a special form with the IRS if I made a deposit of more than $10,000 in cash." J.A. 93. He claimed that he had broken down his deposits into increments of $5,000 or less because "I did not want people inside the bank or people entering the bank to see me with large sums of cash, nothing in excess of $5,000." J.A. 93. Noting that he was "the owner of a popular night club located in a section of the black community which is a high-crime area," Mr. Leak said that he has "always been concerned about my personal security" and in the past had "overheard bank tellers discussing other people's accounts." J.A. 93. His method of making the deposits was therefore chosen "for security reasons, [and he] felt this was the safest thing to do." J.A. 93. Mr. Leak claimed that he had no desire to conceal his deposits; in fact, he had notified the trustee in the Leaks' bankruptcy case of his intention to pay off his mortgage with the deposited funds.1 In response to the testimony of the bank representative, Mr. Leak said he did not remember any mention of reporting requirements. At the time he felt he was being hassled "because I had a $15,000 check and I was black." J.A. 93.
8
Despite Mr. Leak's statement denying knowledge of the reporting requirements and offering an explanation about the deposits, the district court granted summary judgment against him and TKC. The court said that to survive summary judgment, Mr. Leak had to "show [that] the [magistrate judge's] probable cause finding was factually or legally baseless." J.A. 127. The court found (based on its reading of the summary judgment papers) that Mr. Leak's lack of knowledge claim was "an incredible assertion" and that the "perplexing series of deposits renders a claim of outright ignorance of such reporting requirements at least improbable." J.A. 129 (emphasis in original). The court concluded that Mr. Leak had failed to rebut the showing of probable cause and therefore had forfeited his claim to the properties.
9
On February 27, 1996, the United States filed a motion for summary judgment against the claim of Karen Leak. Mrs. Leak opposed the motion and filed her own affidavit. She began by saying that she made "only a couple" of the deposits. J.A. 209. She claimed that she too "had no knowledge of any cash transaction reporting requirements under the law during the time of the deposits." J.A. 210. She said that the deposits represented "legitimate income derived from my husband's night club, a cash intensive business, and were not the result of any illegal activity to my knowledge." J.A. 210. The government submitted a supplemental affidavit from Agent Toomey that alleged additional circumstantial evidence concerning the Leaks' knowledge of the reporting requirements. Mrs. Leak filed a motion to strike portions of this affidavit as inadmissible for purposes of summary judgment. The district court did not rule on this motion but did not rely on any of the additional information. The court determined that Mrs. Leak had to meet the requirements of an "innocent owner" and concluded that she failed to do so. The court restated its earlier finding that "there is no doubt that [Mrs. Leak's] husband knew about the reporting requirement" and concluded that her "claim that she was unaware of her husband's structuring scheme is untenable." J.A. 350, 351. The district court found that she was aware of the deposits and that her explanation for the manner of the deposits was "incredible as a matter of law." J.A. 351. The court therefore granted summary judgment against Mrs. Leak's claim and issued a final judgment of forfeiture against the defendant properties. The Leaks and TKC appeal. We review the district court's grant of summary judgment de novo. See United States v. Jefferson-Pilot Life Ins. Co., 49 F.3d 1020, 1021 (4th Cir.1995).
II.
10
The United States brought this forfeiture action under 18 U.S.C. § 981. That statute provides that "[a]ny property, real or personal, involved in a transaction ... in violation of section 5313(a) or 5324(a) of title 31 ... or any property traceable to such property" is subject to forfeiture to the United States. 18 U.S.C. § 981(a)(1)(A). Pursuant to 31 U.S.C. § 5313(a) and 31 C.F.R. § 103.22(a)(1), financial institutions are required to file a Currency Transaction Report for every transaction involving over $10,000 in currency. The government contends that the Leaks violated 31 U.S.C. § 5324(a)(3), which states that "[n]o person shall for the purpose of evading the reporting requirements of section 5313(a) ... structure or assist in structuring ... any transaction with one or more domestic financial institutions."2 According to the government, the Leaks structured their deposits to fall under the $10,000 limit so as to avoid the filing of a CTR.
11
In order to hold the property forfeited under 18 U.S.C. § 981, the government must show that the Leaks' home and car were "involved in" an illegal structuring or are "traceable" to property that was involved in such structuring. The government need not prove that both Curtis and Karen Leak were involved in the structuring; a transgression by one of the owners is sufficient to forfeit the property. However, the statute does provide some protection for "innocent owners." Section 981(a)(2) provides that "[n]o property shall be forfeited under this section to the extent of the interest of an owner or lienholder by reason of any act or omission established by that owner or lienholder to have been committed without the knowledge of that owner or lienholder." Thus, if one owner did commit an act that warrants forfeiture of the property, the other owner can retain his or her interest if he or she had no knowledge of the underlying act.
12
The procedure used in civil forfeiture is different from that used in a standard civil action. When the government brings a forfeiture action against a property, it must first show probable cause that the property is liable for forfeiture. In order to meet this burden, it must "show probable cause that a substantial connection exists between the property forfeited and the criminal activity defined by the statute." United States v. $95,945.18, United States Currency, 913 F.2d 1106, 1110 (4th Cir.1990). The applicable definition of probable cause "is the same as that which applies elsewhere: 'reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion.' " Id. (quoting United States v. $364,960 In U.S. Currency, 661 F.2d 319, 323 (5th Cir. Unit B Nov.1981)). Once the government makes the showing of probable cause, "the burden of proof shifts to the claimant to establish, by a preponderance of the evidence, that the property was not used in violation of the law or was not intended to be used unlawfully." Boas v. Smith, 786 F.2d 605, 609 (4th Cir.1986); see 19 U.S.C. § 1615, as incorporated by 18 U.S.C. § 981(d).
13
Agent Toomey's affidavit about the Leaks' deposits was sufficient to meet the government's burden of probable cause. Cf. United States v. Dollar Bank Money Market Account No. 1591768456, 980 F.2d 233, 237 (3d Cir.1992) (concluding that evidence of twenty-six deposits, most just under $10,000, at seven different banks within a nineteen-day period justified the district court's finding of probable cause). It is clear, however, that the district court here used the wrong standard in determining whether Curtis Leak's and TKC's claims could survive summary judgment. According to the district court, Mr. Leak had to "show the probable cause finding was factually or legally baseless." J.A. 127. The court described the standard as follows:
14
In considering whether a probable cause finding has been rebutted, this Court must give "[g]reat deference ... to ... a magistrate's assessment of the facts...." United States v. Williams, 974 F.2d [480,] 481 [4th Cir.1992].3 This Court need only ask "whether the magistrate had a substantial basis for his conclusion that probable cause existed." Id. In other words, Claimant must show the magistrate wrongly assessed the facts before him because there was no substantial basis for concluding that the law had been violated and that the property at stake was linked to the violation.
15
J.A. 128. Thus, in order to survive summary judgment under the district court's standard, the Leaks would have had to "rebut" the probable cause finding by showing that the magistrate "wrongly assessed the facts" in concluding that probable cause existed. Under this standard, property could be forfeited on just a showing of probable cause, that is, on facts amounting to less than prima facie proof but more than mere suspicion. Cf. United States v. One Parcel of Real Property, 904 F.2d 487, 492 (9th Cir.1990) (Kozinski, J.) (noting that to adjudge "property ... forfeitable on probable cause alone [is] something the statute does not provide for and might well be constitutionally suspect").
16
The district court seems to have mistaken the meaning of "rebut the showing of probable cause" as used in cases such as $95,945.18. See $95,945.18, 913 F.2d at 1111 ("[Claimant] has not set forth any facts to rebut the showing of probable cause."). This phrase only means that once probable cause is established, the burden of proof shifts to the claimant, who bears the ultimate burden of persuasion. Here, however, after the magistrate judge found probable cause, the government did not simply wait for trial; it instead moved for summary judgment. The question, then, is what did the Leaks have to do to avoid summary judgment. They did not have to show that the magistrate judge was wrong in deciding probable cause. Rather, they only needed to show, as normal opponents of summary judgment, that a genuine issue of material fact existed as to whether their property was subject to forfeiture. See United States v. 717 S. Woodward St., 2 F.3d 529, 532 (3d Cir.1993) ("[W]e know of no basis for concluding that the precepts governing resolution of summary judgment motions generally are not equally applicable to summary judgment motions in forfeiture proceedings."). What the Leaks knew of the reporting requirements is a "material" fact in this § 981 forfeiture case. Of course, the question of whether that material fact creates a genuine issue must be evaluated in light of the substantive standard of proof that would apply at a trial on the merits. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986) (holding that a summary judgment motion must be considered in light of the evidentiary burden the substantive law places on the non-moving party).
17
As we noted above, once the government establishes probable cause that the Leaks' property is subject to forfeiture, the burden shifts to the Leaks to show by a preponderance of the evidence that forfeiture is not warranted. Despite this shift in the burden of proof, the government, if it chooses to move for summary judgment, has the responsibility to show that there is no genuine issue of material fact. See United States v. Four Parcels of Real Property, 941 F.2d 1428, 1439 (11th Cir.1991) (noting that when seeking summary judgment in a forfeiture action, the government has the "initial responsibility of demonstrating the absence of a genuine issue of material fact" (quotations omitted)); cf. 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2727, at 121 (2d ed. 1983) ("It is well-settled that the party moving for summary judgment has the burden of demonstrating that the Rule 56(c) test--'no genuine issue as to any material fact'--is satisfied and that he is entitled to judgment as a matter of law."). As a result, "the government cannot prevail on summary judgment if the [Leaks] offer[ ] a reasonable and legitimate explanation for the organizing of transactions in amounts under $10,000, and the explanation is verified by facts and circumstances which, if believed, would enable a rational jury to conclude by a preponderance of the evidence that [the Leaks did not have knowledge of the] reporting requirements." Dollar Bank, 980 F.2d at 241.
18
The district court's decision to grant summary judgment was clearly influenced by its use of the wrong standard--namely, whether the original probable cause determination was correct. After dismissing as "improbable" Curtis Leak's statement that he did not know about the CTR reporting requirements, the district court added: "In any case, this 'evidence' does not make it more likely than not that the magistrates' [sic] finding of probable cause lacked a substantial basis." J.A. 129-30. In response to Mr. Leak's claim that his state of mind was an issue of credibility, the court found that "Claimant's conduct alone ... speaks for itself and supports a finding of probable cause." J.A. 132. See also J.A. 132 (noting that "the magistrate had a substantial factual basis for concluding there was probable cause to believe Claimant violated the law"). Finally, in summing up its analysis, the court said:
19
The material facts are not in dispute. Claimant's depositing practices on January 17 and 18, 1991, permit the inference that he knew the transaction reporting requirements existed. Those facts also demonstrate enough evidence for a finding of probable cause to believe Claimant structured those transactions to avoid the filing of CTR's. That is all the law requires. The Court finds that Claimant has not successfully rebutted, to a preponderance of the evidence, the magistrate's finding of probable cause in this case.
20
J.A. 132.
21
The district court evaluated the evidence forecast under the wrong standard. We will now analyze the evidence under the correct standard and determine whether there is a genuine issue of material fact.
III.
22
Summary judgment is only appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In evaluating the evidence, we must construe "the facts and inferences in the light most favorable to the non-moving party." Donmar Enters., Inc. v. Southern Nat'l Bank of N.C., 64 F.3d 944, 946 (4th Cir.1995). The Supreme Court cautioned in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986), that "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."
23
The Leaks do not contest that they made the thirty-three deposits in question on January 17 and 18, 1991, and the fourteen deposits from March to April 1991. However, both Leaks have sworn in affidavits that they had no knowledge of the reporting requirements. A violation of 31 U.S.C. § 5324(a)(3) only occurs when "the violating party had knowledge of the reporting requirements and acted to avoid them." United States v. Wollman, 945 F.2d 79, 81 (4th Cir.1991) (quotations omitted). As the moving party the government must demonstrate that there is no genuine issue of material fact as to knowledge, even though the Leaks have said in affidavits that they did not know of the reporting requirements. Of course, whether the Leaks' affidavits create a genuine issue of material fact as to knowledge must be evaluated in light of their evidentiary burden under the forfeiture statute. See Anderson, 477 U.S. at 252, 106 S.Ct. at 2511.
24
We note at the outset "the general rule that summary judgment is seldom appropriate in cases wherein particular states of mind are decisive elements of a claim or defense." Miller v. Federal Deposit Ins. Corp., 906 F.2d 972, 974 (4th Cir.1990). This is so because "a party's mental state is inherently a question of fact which turns on credibility." Dollar Bank, 980 F.2d at 240. See also United States v. 717 S. Woodward St., 2 F.3d 529, 534 (3d Cir.1993) ("When the state of mind of a person is at issue and the record contains direct evidence of that state of mind in the form of that person's sworn statement, conflicting circumstantial evidence normally creates only an issue of credibility for trial and summary judgment is inappropriate."). As we recognized in American Mfg. Assoc., Inc. v. N.L.R.B., 594 F.2d 30 (4th Cir.1979), "it can be well-nigh impossible to prove that one did not know something in the past by any other means than sworn denials." Id. at 35 (quoting N.L.R.B. v. Whitfield Pickle Co., 374 F.2d 576, 581 (5th Cir.1967)). These expressions all serve to remind us of the context in which we consider the Leaks' affidavits denying knowledge of the reporting requirements.
25
The government claims that the evidence as to the Leaks' knowledge and intent to evade is "so substantial that no reasonable fact finder could conclude that [they] did not know." Brief for Appellee at 33. The government first points to the deposit structuring itself as proof of the Leaks' knowledge. The large number of deposits, most around $5,000, at multiple bank branches certainly could permit the inference that the Leaks knew of the requirements and were trying to evade them. This series of transactions, however, cannot by itself foreclose all issues of material fact in the face of the Leaks' sworn denials. As the court said in Dollar Bank, a civil forfeiture case in which the government's summary judgment motion was denied:
26
Proof that the accused structured transactions in amounts under $10,000 is not enough. It must also be proven that he structured for the specific purpose of evading the federal reporting requirements. If a person were ignorant of the requirements and deposited a large amount of cash in $9,000 installments, he would not violate section 5324. A jury might infer from such conduct that he knew of the law's requirements and tried to evade them, but proof of the conduct does not automatically prove, as a matter of law, the intent to avoid reporting.
27
Dollar Bank, 980 F.2d at 237.
28
The government argues that the testimony of Susan Renckens, a service representative for Wachovia Bank, provides direct evidence of Mr. Leak's knowledge. On September 13, 1989, Ms. Renckens assisted Mr. Leak in cashing a check for $15,000. The government claims that during the transaction Ms. Renckens told Mr. Leak that the reporting requirements applied not only to check cashing but also to cash depositing. In particular, the government points to the following answers its lawyer drew from Ms. Renckens in her deposition:
29
Q. By the end of your interaction with Mr. Leak, do you feel that he understood that CTR's were a requirement when you were either depositing or withdrawing--
30
A. I believe he did.
31
Q. --in excess of $10,000?
A. (Witness nods head affirmatively.)
32
J.A. 67. Ms. Renckens also says in her affidavit, which was prepared by Agent Toomey, see J.A. 72, that she "informed Mr. LEAK that since the amount of cash exceeded $10,000, I was required by law to prepare a CTR." J.A. 36.
33
However, upon closer examination Ms. Renckens' testimony does not provide the solid proof of knowledge that the government claims. Earlier in Ms. Renckens' testimony, Mr. Leak's lawyer questioned her about what she remembered telling Mr. Leak. The exchange went as follows:
34
Q. Now, do you recall what you said to him about the CTR?
35
A. I couldn't tell you exactly. What I--I can tell you what I would probably have said. It's been so--
36
Q. All right. Is there a routine that you--
37
A. Just routinely, we say, "Due to the large amount of this check, we would need to file a currency transaction report with the IRS and the North Carolina Department of Revenue," who we also report to.
38
Q. Do you recall if he asked you any questions at that point?
39
A. I don't believe he did, if I can remember.
40
Q. And would you go into any more detail than just the statement you just gave? That would be your routine thing to say to customers?
41
A. Right....
42
J.A. 58-59 (emphasis added).
43
The above testimony makes clear that Ms. Renckens only claims to have told Mr. Leak about the reporting requirements in the context of cashing a check. Ms. Renckens never claims that she told Mr. Leak that CTRs were also required for cash deposits. Since it is certainly riskier for a bank to cash a check than to accept a cash deposit, it is reasonable for Mr. Leak to have assumed that CTRs were required only for check cashing. Ms. Renckens did respond affirmatively when asked whether she felt that Mr. Leak "understood" that CTRs were required for both withdrawals and deposits. But again, her testimony about what she "probably" told Mr. Leak does not mention anything about deposits. Because Ms. Renckens did not offer any specific factual support for her belief that Mr. Leak understood the reporting requirement for deposits, we cannot credit Ms. Renckens' belief as proof of Mr. Leak's knowledge. See Fed.R.Evid. 701 (lay witness's "testimony in the form of opinions or inferences is limited to those opinions or inferences which are ... rationally based on the perception of the witness"). It would be especially inappropriate at this point to accept Ms. Renckens' inference that Mr. Leak had full knowledge because on summary judgment "all justifiable inferences are to be drawn in [the nonmovant's] favor." Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.
44
Moreover, Curtis Leak says in his affidavit that his exchange with Ms. Renckens did not enlighten him about the reporting requirements. Mr. Leak "do[es]n't remember [Ms. Renckens] saying anything about CTRs or any form required by the IRS." J.A. 93. At the time he cashed the check, Mr. Leak "felt I was being hassled because I had a $15,000 check and I was black." J.A. 93. As a consequence, Mr. Leak claims that he "wasn't paying attention and I don't remember what was said because I was so irritated that I was being treated like I was." J.A. 93. In any event, Mr. Leak alleges that when he made the deposits to pay off his mortgage he "neither thought of nor saw any relationship between cashing the $15,000 check and the manner in which I made my deposits." J.A. 93.
45
The rest of the government's evidence is substantially less compelling. The government does not have any direct evidence that Mrs. Leak knew of the reporting requirements, but it does go to great lengths in discussing her accounting and financial background. Her experience in these areas may have some relevance for the ultimate fact-finder, but there is no evidence that the reporting requirements at issue here were part of her experience. The government also attempts to introduce a wide-ranging collection of evidence through a second affidavit from Agent Toomey. In this second affidavit, however, Agent Toomey makes broad assertions, relying on his personal opinions and information from others unknown. We have serious doubts as to whether these assertions could survive Fed.R.Civ.P. 56(e)'s requirement that summary judgment affidavits "be made on personal knowledge" and be "admissible in evidence."4 Even if this material could meet the standards of admissibility, it is not sufficient to support summary judgment. For example, Agent Toomey claims that the Leaks bought a Porsche in 1989 using $13,000 in cash. He also claims that an incomplete Form 8300, which is similar to a CTR, was discovered in the dealership's files under Karen Leak's name. Toomey fails to discuss how he learned of this information; more importantly, he presents no evidence that the Leaks actually knew about the Form 8300 or the requirement to fill one out. Similarly, Toomey says that the Leaks prepared a fraudulent college financial aid form, that the Leaks failed to file tax returns, and that Karen Leak intentionally tried to deceive him about the timing of the filing of certain returns. If submitted in admissible form, this additional evidence might be useful to the ultimate fact-finder as support for the government's theory about the Leaks' motive. However, the evidence is too indirect and underdeveloped, even when combined with the government's other evidence, to show that no genuine issue of material fact remains.
46
The government contends that our decision in United States v. Wollman, 945 F.2d 79 (4th Cir.1991), requires summary judgment against the Leaks. In Wollman, however, there was no issue as to the claimants' knowledge of the reporting requirements. The claimants there offered "no evidence suggesting that they did not know of the reporting requirement" and failed to offer any affidavits claiming a lack of knowledge. Wollman, 945 F.2d at 81. In fact, the claimants conceded that a bank teller had informed them of the requirements and that "a motivating factor in their deposit transaction was to avoid entanglement with the IRS." Id. at 81-82. Since the claimants never alleged ignorance of the requirements, there was "no question that the [claimants] knew of the reporting requirements and that they were imposed by the government." Id. at 82. In this case, however, whether the Leaks had knowledge of the requirements is very much in dispute.
47
Although we conclude that the government's evidence in this case is insufficient to support summary judgment in light of the Leaks' affidavits, we do not mean to imply that the Leaks could have defeated summary judgment with only the bare, unexplained claim that they were not aware of the reporting requirements. The evidence put forward by a claimant must be "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. at 2511. In this case, we believe that the Leaks have proffered evidence that, if believed, would enable a rational jury to find by a preponderance of the evidence that they did not have knowledge of the reporting requirements. Mr. Leak claims that he made small deposits in order to protect his personal security. Although the district court may be correct that this method of depositing does not afford the best means of protection, we do not find Mr. Leak's explanation so "incredible" that it can be dismissed out of hand. As the owner of a business (a night club) that generated large sums of cash in a high crime area, Mr. Leak had an important reason to be concerned for his personal security. Mr. Leak believed that his method of making smaller deposits "was the safest thing to do," noting that "in the past, [he had] overheard bank tellers discussing other people's accounts." J.A. 93. Courts have recognized that an individual's attempt to protect his personal security may offer a legitimate explanation for a series of smaller deposits. See Ratzlaf v. United States, 510 U.S. 135, 145, 114 S. Ct. 655, 661, 126 L. Ed. 2d 615 (1994) (noting that individuals may "mak[e] cash deposits in small doses, fearful that the bank's reports would increase the likelihood of burglary"); Dollar Bank, 980 F.2d at 241 (finding that a jury could rationally believe a claimant structured deposits in order to avoid publicity about his wealth that would increase the likelihood of theft). Given the lack of direct proof that the Leaks knew or were informed of the reporting requirements for cash deposits, we cannot say that their explanation lacks so completely in credibility that summary judgment for the government is warranted.5
48
We recognize that the Leaks' complicated series of deposits, along with the testimony of Ms. Renckens, might be sufficient to convince a jury that the Leaks violated 31 U.S.C. § 5324(a)(3). However, we would invade the province of the jury if we were to find that the Leaks' claims of ignorance were too "incredible" to be believed. The district court made such a finding in the course of applying the wrong standard, and it drew the ultimate inference in favor of the government (and against the nonmovants). See J.A. 132 ("Claimant's depositing practices ... permit the inference that he knew the transaction reporting requirements existed."). In inferring from the underlying circumstances that the Leaks had knowledge of the reporting requirements, the district court completely rejected as unbelievable the Leaks' sworn denials and explanations. The evidence proffered in this case does not permit such a credibility determination at the summary judgment stage. There is a genuine issue of material fact. Accordingly, the award of summary judgment is reversed, and the case is remanded for trial.6
49
REVERSED AND REMANDED.
1
The Leaks filed for Chapter 13 bankruptcy in 1986
2
At the time the government filed its complaint, this section was designated 31 U.S.C. § 5324(3). It was redesignated as § 5324(a)(3) in 1992. See Pub.L. No. 102-550, § 1525(a)(1), 106 Stat. 3672, 4064 (1992). Section 5324 was originally enacted into law in 1986. See Pub.L. No. 99-570, § 1354(a), 100 Stat. 3207, 3207-22 (1986)
3
United States v. Williams, 974 F.2d 480 (4th Cir.1992), concerns whether a magistrate had correctly found probable cause to issue a search warrant; it has nothing to do with civil forfeiture
4
The government claims that "[b]ecause [it] is entitled to use hearsay in a probable cause finding, every affidavit and document which the government has filed is properly in the record." Brief for Appellee at 28. Although hearsay evidence can be used to support a finding of probable cause, the government cannot continue to rely on that evidence in the summary judgment context. See Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir.1996) ("[S]ummary judgment affidavits cannot be conclusory or based on hearsay." (citations omitted)); United States v. 1012 Germantown Road, 963 F.2d 1496, 1501 (11th Cir.1992) (noting that in a civil forfeiture action "the judge as factfinder [must] sort out the hearsay evidence from the admissible evidence before making a factual determination")
5
The Leaks also note that they did not hide what the staggered cash deposits would be used for. Mr. Leak told the bankruptcy trustee he would be paying off the Leaks' mortgage, an act that would obviously require a large amount of cash
6
Because we reverse the final judgment of forfeiture as to both of the Leaks, we do not need to reach Mrs. Leak's innocent owner defense or the Leaks' proportionality argument | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1562116/ | 69 F.2d 665 (1934)
BANKER
v.
FORD MOTOR CO.
No. 5249.
Circuit Court of Appeals, Third Circuit.
March 13, 1934.
Rehearing Denied April 19, 1934.
Wm. B. Jaspert and Carl W. Brueck, both of Pittsburgh, Pa., and Samuel A. Williams, for appellant.
John Weld Peck, of Cincinnati, Ohio, John J. Heard, of Detroit, Mich., Reed, Smith, Shaw & McClay, of Pittsburgh, Pa., and I. Joseph Farley, of Detroit, Mich., for appellee.
Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.
THOMPSON, Circuit Judge.
This is an appeal from a decree of the District Court for the Western District of Pennsylvania enjoining a suit at law for infringement of a patent for an improvement in clear vision windshields, and dismissing the suit. The patent was issued on October 10, 1911. On October 7, 1931, the patentee brought a common-law action in trespass on the case to recover damages for an alleged infringement, in accordance with the provisions of Rev. St. 4919 (35 USCA § 67). The patentee died in March, 1932, and the appellant, executrix of his estate, was substituted as a party plaintiff. The claim for damages was limited to the period between October 10, 1925, and October 10, 1928, the date of the expiration of the patent. The affidavit of defense and supplemental affidavits of defense contain the usual legal defenses of invalidity and noninfringement and, in addition, the equitable defenses of laches and estoppel. A preliminary hearing by the District Court on the equitable defenses resulted in findings of fact and conclusions of law sustaining those defenses. The court thereupon dismissed the suit, and in its decree directed that the plaintiff be enjoined from maintaining the action at law. This is an appeal from that decree.
The practice of first disposing of equitable defenses was approved by the Supreme Court in Liberty Oil Company v. Condon National Bank, 260 U. S. 235, 43 S. Ct. 118, 121, 67 L. Ed. 232, wherein Chief Justice Taft said:
"Where an equitable defense is interposed to a suit at law, the equitable issue raised should first be disposed of as in a court of equity, and then, if an issue at law remains, it is triable to a jury. Massie v. Stradford, 17 Ohio St. 596; Dodsworth v. Hopple, 33 Ohio St. 16, 18; Taylor v. Standard Brick Co., 66 Ohio St. 360, 366, 64 N. E. 428; Sutherland Code Pl. and Pr. § 1157. The equitable defense makes the issue equitable, and it is to be tried to the judge as a chancellor. The right of trial by jury is preserved exactly as it was at common law. The same order is preserved as under the system of separate courts. If a defendant at law had an equitable defense, he resorted to a bill in equity to enjoin the suit at law, until he could make his equitable defense effective by a hearing before the chancellor. The hearing on that bill was before the chancellor, and not before a jury, and, if the prayer of the bill was granted, the injunction against the suit at law was made perpetual, and no jury trial ensued. If the injunction was denied, the suit at law proceeded to verdict and judgment. This was the practice in the courts of law and chancery in England when our Constitution and the Seventh Amendment were adopted, and it is in the light of such practice that the Seventh Amendment is to be construed."
The appellee presented testimony sufficiently showing that, prior to April 10, 1915, *666 the patentee knew of the appellee's use of the alleged infringing device; that, in spite of such knowledge, the patentee took no action while the appellee made heavy investments in machinery and equipment for the manufacture of the alleged infringing device; that the patentee knew of the general use of the same device by other automobile manufacturers throughout the same period, and took no steps to prevent such use; that, during this lapse of time from 1915 until 1931, witnesses died, and the memories of others were impaired; and that records essential to the defense were lost or destroyed. The District Court found the facts from this testimony, and was justified in its conclusion that those facts sufficiently showed such lack of diligence on the part of the patentee as to establish laches and estoppel.
Had the appellant's suit been in equity, the evidence would have been ample for holding that recovery was barred because of laches. Dwight & Lloyd Sintering Co., Inc., v. Greenawalt (C. C. A.) 27 F.(2d) 823. Window Glass Mach. Co. v. Pittsburgh Plate Glass Co. (C. C. A.) 284 F. 645, 649. Richardson v. D. M. Osborne & Co. (C. C. A.) 93 F. 828. In Window Glass Mach. Co. v. Pittsburgh Plate Glass Co., supra, the plaintiff delayed eleven years before bringing suit. This court allowed the defense of laches, and in an opinion by Judge Woolley said:
"After the notice, in July, 1914, of their proposed suit for infringement nothing further was heard from the plaintiffs until December 31, 1918, when they filed the present bill. This was eleven years after one of the plaintiffs had brought the first suit and voluntarily dismissed it; nine years after the defendant had invested a large sum of money in the Mount Vernon plant and had begun commercial operations; four and one-half years after the plaintiffs had given notice of the proposed second suit; and three and one-half years after the defendant had invested an even larger sum in the Clarksburg plant and had there begun commercial operations. These dates are facts which figure against the plaintiffs' bill in the present action. The circumstances were such, without repeating them at length, that the plaintiffs knew or were chargeable with knowledge of the practices and the apparatus employed by the defendant at its several works during these periods. Foster v. Railroad Co., 146 U. S. 99, 13 S. Ct. 28, 36 L. Ed. 899; Johnston v. Standard Mining Co., 148 U. S. 360, 13 S. Ct. 585, 37 L. Ed. 480. On these facts and circumstances the defendant makes the defense of laches.
"This defense is based on a well-settled principle of law. In its application courts recognize the general rule that, in a case of this kind, mere delay, unaccompanied by anything else, will not ordinarily bar a suit for injunction against a naked infringer. McLean v. Fleming, 96 U. S. 245, 24 L. Ed. 828; Menendez v. Holt, 128 U. S. 514, 9 S. Ct. 143, 32 L. Ed. 526; Prince's Metallic Paint Co. v. Prince Mfg. Co., 57 F. 938, 6 C. C. A. 647, infra. But they also recognize a distinction between mere delay and unreasonable delay, where in the latter is involved the element of lack of diligence and the consequent inequity, under the circumstances, of permitting the claim to be enforced."
The appellant admits the authority of the cited cases if applied in equity, but contends that they are inapplicable to actions at law. But that contention is met by section 274b of the Judicial Code (28 USCA § 398), which provides: "In all actions at law equitable defenses may be interposed by answer, plea, or replication without the necessity of filing a bill on the equity side of the court. The defendant shall have the same rights in such case as if he had filed a bill embodying the defense of seeking the relief prayed for in such answer or plea. Equitable relief respecting the subject matter of the suit may thus be obtained by answer or plea. In case affirmative relief is prayed in such answer or plea, the plaintiff shall file a replication. Review of the judgment or decree entered in such case shall be regulated by rule of court. Whether such review be sought by writ of error or by appeal the appellate court shall have full power to render such judgment upon the records as law and justice shall require."
The above-quoted section in terms authorizes equitable defenses in actions at law theretofore applicable only in equity. Ford v. Huff (C. C. A.) 296 F. 652, certiorari denied 266 U. S. 602, 45 S. Ct. 90, 69 L. Ed. 462.
Inasmuch as we have disposed of the appeal on its merits, it is unnecessary to discuss the motion by the appellee to dismiss the appeal.
Decree affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562331/ | 16 So.3d 865 (2009)
Seth Andrew CONFESSORE, Appellant,
v.
STATE of Florida, Appellee.
No. 5D08-1572.
District Court of Appeal of Florida, Fifth District.
June 12, 2009.
Rehearing Denied August 4, 2009.
*866 Robert Augustus Harper, and Robert Augustus Harper, III, of Harper & Harper Law Firm, P.A., Tallahassee, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
COBB, W., Senior Judge.
Seth Andrew Confessore appeals the denial of his rule 3.850 motion following an evidentiary hearing. We reverse and remand for resentencing before a different judge on Defendant's claim of vindictive sentencing. We affirm the denial of his other claims.[1] Defendant was convicted following trial and sentenced for trafficking in ecstasy to twenty-years in prison, with a fifteen-year minimum mandatory sentence, concurrent to five-years in prison for possession of diazepam, followed by ten-years reporting probation consecutive for possession of cocaine with intent to distribute. His direct appeal was per curiam affirmed. Confessore v. State, 932 So.2d 1115 (Fla. 5th DCA 2006).
Defendant alleges that the trial court injected itself into the unsuccessful plea negotiations and sentenced him *867 harshly for proceeding to trial, in violation of Wilson v. State, 845 So.2d 142, 150 (Fla.2003). After a first trial, the jury hung and the court declared a mistrial. Prior to the second trial, the State offered a plea of three-years prison. The trial judge prevented Defendant from accepting that plea because the judge wanted five-years of probation to follow prison.[2] Defendant considered the court's offer before proceeding to trial a second time before that same judge. This time the jury convicted Defendant. At sentencing, the trial judge stated that he imposed a harsh sentence because of the high street value of the drugs. However, the testimony from the 3.850 hearing was that no new facts came out at the second trial.
"If a court inserts itself into plea negotiations, and if a harsher than offered sentence is meted out after the rejection of the bargain, a determination must be made regarding whether there is a reasonable likelihood that the harsher sentence was vindictive." Evans v. State, 979 So.2d 383, 385 (Fla. 5th DCA 2008). If the totality of circumstances gives rise to a presumption of vindictiveness, then the burden to dispel shifts to the State. Wilson, 845 So.2d at 156. The analysis from Wilson asks: (1) whether the trial judge initiated the plea discussions in violation of State v. Warner, 762 So.2d 507 (Fla.2000); (2) whether the trial judge, through comments on the record, appears to have departed from the role of impartial arbiter by urging acceptance of a plea, or by implying that the sentence hinged on future procedural choices; (3) the disparity between the plea offer and the sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence. Wilson, 845 So.2d at 156 (citing Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)).
There is an unrebutted presumption of vindictiveness in the present case. The trial judge inserted himself into plea negotiations, and those negotiations were held off the record, in violation of Warner. The judge imposed a disparate sentence from his plea offer; even considering the minimum mandatory, Defendant was sentenced to far more prison and probation than offered. The record does not reveal any new facts the judge learned at the second trial which were unknown to him at the time of the first trial.
Accordingly, we preserve the conviction but remand for resentencing before a different judge.
AFFIRMED in Part, REVERSED in Part, and REMANDED.
PALMER, C.J. and ORFINGER, J., concur.
NOTES
[1] Defendant asserts that his trial counsel was ineffective for failing to inform him of the maximum sentence, and for failing to depose and call a witness.
[2] Under Florida Rule of Criminal Procedure 3.171, it is proper for a judge to have final approval on pleas, but it appears that this trial judge went further. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562338/ | 16 So.3d 196 (2009)
Jason Ian KELLEY, Appellant,
v.
STATE of Florida, Appellee.
No. 1D08-3377.
District Court of Appeal of Florida, First District.
August 6, 2009.
Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
BROWNING, J.
After a jury trial presided over by Judge Glenn Hess, Kelley was convicted of felony battery. Kelley filed a motion for new trial on several grounds, including that a new trial was required by Florida Rule of Criminal Procedure 3.600(a)(2) because the verdict was contrary to the weight of the evidence. Before the motion for new trial was heard, Judge Hess resigned from the bench to run for state attorney and the case was reassigned to Judge Don T. Sirmons. The state called Judge Hess to testify at the hearing on the motion for new trial. Judge Hess testified that, in his opinion, the jury's verdict was not against the manifest weight of the evidence. Judge Sirmons, citing his own review of the trial transcript and former Judge Hess' testimony, denied the motion for new trial. We are constrained to reverse and order a new trial.
A trial court "shall grant a new trial" if "[t]he verdict is contrary to ... the weight of the evidence." Fla. R.Crim. P. 3.600(a)(2). "When considering a motion *197 for new trial under rule 3.600(a)(2) based on a claim that the verdict is against the weight of the evidence, the trial court must exercise its discretion to determine whether a greater amount of credible evidence supports an acquittal." Ferebee v. State, 967 So.2d 1071, 1073 (Fla. 2d DCA 2007) (citation and internal quotation marks omitted). "Rule 3.600(a)(2) thus enables the trial judge to weigh the evidence and determine the credibility of witnesses so as to act, in effect, as an additional juror." Id. at 1072 (quoting Tibbs v. State, 397 So.2d 1120, 1123 n. 9 (Fla.1981)).
In the specific context of a presiding judge who, for whatever reason, was unable to hear a rule 3.600(a)(2) motion, this court has held that "a defendant is entitled to have this review made by a judge who is qualified and able to evaluate the evidence and credibility of the witnesses." Kelley v. State, 637 So.2d 972, 976 (Fla. 1st DCA 1994). The Second District read Kelley to mean that a successor judge "generally does not have the authority to entertain a new trial motion based on the greater weight of the evidence" because a successor judge "would be forced to rely on a `cold' record...." State v. May, 703 So.2d 1097, 1099 (Fla. 2d DCA 1997). That court agreed in principle, noting that "[i]f the [rule 3.600(a)(2) ] motion rests on the determination of credibility or resolution of conflicts, the court should grant the new trial motion, unless the original presiding judge is available to hear the motion." Id. at 1100. The court ultimately reversed the order granting a new trial because credibility was not at issue in that case and the successor judge was therefore competent to rule. Id.
The parties agree that credibility was at issue in this case and that Judge Sirmons could not have ruled on the motion for new trial based on the cold record alone. Moreover, the state conceded during oral argument that if error occurred in the trial judge's allowing and considering Judge Hess' testimony, such error could not be harmless. The question for us, then, is whether Judge Sirmons was competent to rule on the motion because he also had the benefit of Judge Hess' testimony.
We hold he was not. Defendants have the right "to have the trial judge evaluate and weigh the evidence independently of the jury's findings to determine whether the jury verdict was contrary to the weight of the evidence." Kelley, 637 So.2d at 974. Only a trial judge can perform this function. Id. Once Judge Hess resigned, the "trial judge" was Judge Sirmons. Judge Sirmons, and only Judge Sirmons, therefore had the duty to independently evaluate and weigh the evidence. He could not fulfill this duty on his own because he did not preside at trial and witness credibility was at issue. He certainly could not outsource this duty to former Judge Hess, a private citizen at the time he testified.
We REVERSE and REMAND with instructions to grant Kelley's rule 3.600(a)(2) motion for new trial.
DAVIS, J., concurs; and THOMAS, J., dissents with opinion.
THOMAS, J., Dissenting.
I respectfully dissent. Rule 3.590(a) of the Florida Rules of Criminal Procedure provides that a motion for a new trial must be filed within ten days of rendition of a verdict. Appellant filed his motion for new trial on the tenth day after the verdict was rendered, after sentencing, and on the day that Judge Hess stepped down from the bench. By postponing the filing of this motion until the tenth day, a date that counsel for Appellant knew would be the trial judge's last day on the bench, Appellant guaranteed that the original trial judge would not be able to hear the motion. *198 As noted by the majority, a successor judge does not have the authority to hear a motion for new trial when the motion is based on an argument that the verdict is against the greater weight of the evidence. As such, by Appellant's decision to file his motion as late as possible, he virtually ensured himself a new trial. Appellant specifically noted in the motion that, in his case, "the only recourse is a new trial."
"A search for truth and justice can be accomplished only when all relevant facts are before the judicial tribunal. Those relevant facts should be the determining factor rather than gamesmanship, surprise, or superior trial tactics." Dodson v. Persell, 390 So.2d 704, 707 (Fla.1980). Appellant's act in filing the motion at the end of the trial judge's term on the bench was one of gamesmanship and is against policy objectives that "seek to eliminate legal trickery and procedural gamesmanship by crafty litigants who intentionally cause error or allow error to creep into the trial proceedings so they can complain about it on appeal." Caldwell v. State, 920 So.2d 727, 730 (Fla. 5th DCA 2006) (discussing the contemporaneous objection rule). Appellant cannot take advantage of the alleged error in allowing a successor judge to hear his motion for a new trial where he essentially invited the error by postponing the filing of the motion. See Czubak v. State, 570 So.2d 925, 928 (Fla.1990). Appellant's "gotcha" technique should not be rewarded with a new trial. See Long v. AvMed, 14 So.3d 1264 (Fla. 1st DCA 2009) (granting Appellee's motion for attorneys' fees pursuant to section 57.105, Florida Statutes, and noting that Appellant "jumped the gun" and filed a "gotcha" suit). Accordingly, I would affirm Appellant's conviction and sentence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1540099/ | 974 A.2d 616 (2009)
2009 VT 46
Brian COYLE
v.
Robert HOFMANN, Commissioner of Department of Corrections.
No. 08-101.
Supreme Court of Vermont.
April 29, 2009.
*617 Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.
ENTRY ORDER
¶ 1. Petitioner Brian Coyle appeals the superior court's orderon his habeas corpus petitionreducing his maximum sentence for attempting to elude a police officer from fifteen to twelve months. He contends that the superior court lacked jurisdiction to correct its sentence and that the only options were to return him to the sentencing court for a contested resentencing hearing or new trial, or to vacate the sentence and order his immediate release. The State argues that the court had the power to correct petitioner's sentence rather than remand to the district court or vacate the sentence. We affirm.
¶ 2. Petitioner received two sentences of eight to fifteen months, consecutive, all suspended but twenty-six days, pursuant to a voluntary plea agreement entered on June 6, 2006. The two sentences were for attempting to elude a police officer, 23 V.S.A. § 1133, and second-offense driving under the influence (DUI2), 23 V.S.A. § 1201. Defendant's DUI2 charge carries a maximum sentence of two years. 23 V.S.A. § 1210(c). The maximum permissible sentence for attempting to elude is, however, twelve months. 23 V.S.A. § 1133(b)(1).
¶ 3. After petitioner violated his probation twice, he began to serve the underlying sentences on August 23, 2007approximately fourteen months after his plea. On February 5, 2008, petitioner filed a habeas corpus petition claiming that the district court lacked jurisdiction to sentence him beyond the legally prescribed *618 maximum. The State conceded at the hearing on the petition that the eight-to-fifteen-month sentence on the attempting-to-elude charge was greater than prescribed by the statute. The State contended, and the superior court agreed, that the attempting-to-elude sentence should simply be amended to eight to twelve months. Petitioner filed a motion to reconsider, claiming that the court had no authority to correct his sentence. The motion was denied. This appeal followed.
¶ 4. In reviewing the trial court's factual findings, "we will view them in the light most favorable to the prevailing party below, disregarding the effect of modifying evidence, and we will not set them aside unless they are clearly erroneous." In re M.B., 2004 VT 58, ¶ 6, 177 Vt. 481, 857 A.2d 772 (mem.). We will uphold the court's findings if reasonably supported by credible evidence. Id. Our review of questions of law is "nondeferential and plenary." Id.
¶ 5. We treat petitions for habeas corpus challenging sentences as petitions for post-conviction relief (PCR) under 13 V.S.A. § 7136. See Sherwin v. Hogan, 136 Vt. 606, 607-08, 401 A.2d 895, 896-97 (1979). PCR statutes "were enacted to simplify the often cumbersome procedures associated with habeas corpus," and the scope of habeas corpus relief has expanded under these statutes. In re Stewart, 140 Vt. 351, 356, 438 A.2d 1106, 1107 (1981). Habeas corpus now includes "a wide range [of relief], ... including remedies short of full release, [and] the scope of review is likewise broad." Id. (quotations omitted). The Vermont PCR statute, 13 V.S.A. § 7131, was patterned after the federal PCR statute, 28 U.S.C. § 2255, which was enacted "to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum." Hill v. United States, 368 U.S. 424, 427-28, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (quotation omitted).
¶ 6. Procedurally, this habeas corpus petition "could be dismissed out of hand under 13 V.S.A. § 7136, which requires initial resort to a petition for post-conviction review before the county (now Superior) court with a different presiding judge if that was the sentencing court, as a condition precedent to habeas corpus...." Berard v. Moeykens, 132 Vt. 597, 598, 326 A.2d 166, 167 (1974). Here, however, the substantive requirements of the PCR statute have been met, so "we will treat [the petition] as properly brought, in the interests of justice and consistent with the remedial intent of the statutes." Sherwin, 136 Vt. at 607-08, 401 A.2d at 896-97. As we held in Shequin v. Smith, this statutory procedure for post-conviction relief is constitutionally permissible, 129 Vt. 578, 582, 285 A.2d 708, 711 (1971).
¶ 7. Vermont's PCR statute "permits a collateral attack upon Vermont convictions or sentences which are defective under the Constitution, statutory law, or `otherwise subject to collateral attack.'" In re Stewart, 140 Vt. at 355, 438 A.2d at 1107 (quoting 13 V.S.A. § 7131). Before granting post-conviction relief, the court must find that "the judgment was made without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to make the judgment vulnerable to collateral attack." 13 V.S.A. § 7133. If the court makes such a determination, "it shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. (emphasis added).
¶ 8. Here, the original sentence on petitioner's attempting-to-elude plea exceeded *619 the maximum allowed by law. 23 V.S.A. § 1133. The State concedes this point. At the hearing on the petition, petitioner's attorney requested a correction of the sentence to conform to the legal maximum. Petitioner was present and did not express his dissatisfaction with the outcome sought by his attorney.[*] He did, however, request an opportunity to have his case reheard asserting that he would produce additional evidence in his favor. As this Court stated in State v. Tester:
To warrant a new trial on the basis of newly discovered evidence ... defendant needed to establish all of the following: (1) the new evidence would probably change the result upon retrial: (2) the new evidence was discovered after trial; (3) the evidence could not have been discovered sooner through due diligence; (4) the evidence was material; and (5) the evidence was not merely cumulative or impeaching.
2007 VT 40, ¶ 14, 181 Vt. 506, 923 A.2d 622. But petitioner did not specify what the new evidence was, state how it would affect his sentence, or state any reason that an erroneous sentence imposed pursuant to a voluntary plea must result in a new trial or new contested sentencing hearing. Thus, a new trial is not warranted.
¶ 9. Under 13 V.S.A. § 7133, the superior court has the power to correct a sentence, where appropriate. Although we elect to treat petitioner's habeas corpus petition as a PCR petition, we note also that "[m]any jurisdictions employ the writ of habeas corpus to reduce the term of an excessive sentence to that authorized by statute although the petitioner has not yet completed the valid portion of his sentences." Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515, 517 (1999); see also, e.g., United States v. Wilson, 997 F.2d 429, 431 (8th Cir.1993); Landreth v. Gladden, 213 Or. 205, 324 P.2d 475, 483 (1958); In re Halderman, 276 Pa. 1, 119 A. 735, 737 (1923) (per curiam).
¶ 10. Petitioner cites Merriweather v. Grandison, arguing that it mandates remand to the district court for resentencing. 904 S.W.2d 485, 486-87 (Mo.Ct.App.1995). Merriweather, however, is factually distinct from the present case. In Merriweather, the defendant's sentence had not been reduced by the lower court after the initial hearing. Id. at 489. Thus, the Missouri court remanded the matter for resentencing. Id. Here, however, petitioner's sentence was corrected to the legal maximum by the superior court, a course of action entirely consonant with our law. Remanding to the district court would therefore be an inefficient use of the court system's resources. The superior court correctly adjusted petitioner's sentence, and he is not entitled to remand or release.
Affirmed.
NOTES
[*] Petitioner subsequently filed a pro se letter stating that he never requested a correction of his sentence and that his attorney at the time of the habeas hearing was not authorized to speak for him, but he made neither assertion at the hearing when given the opportunity to do so. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562204/ | 960 A.2d 473 (2008)
COMMONWEALTH of Pennsylvania, Appellee
v.
James Isin LAWRENCE, Appellant.
No. 1257 WDA 2007.
Superior Court of Pennsylvania.
Submitted May 27, 2008.
Filed October 31, 2008.
*474 Kenneth A. Snarey, Pittsburgh, for appellant.
Michael W. Streily, Deputy Dist. Atty., for Com., appellee.
BEFORE: PANELLA, KELLY and COLVILLE[*], JJ.
OPINION BY PANELLA, J.:
¶ 1 Appellant, James Lawrence, appeals from the order entered on July 2, 2007, by the Honorable David R. Cashman, Court of Common Pleas of Allegheny County, which dismissed his petition filed pursuant to the Post Conviction Relief Act ("PCRA").[1] After careful review, we affirm.
¶ 2 A panel of this Court summarized the disturbing facts of this case on direct appeal as follows:
On July 2, 1999, at approximately 5:00 p.m., the victim, Beverly Spencer, was approached by [Lawrence] in a bar in Braddock, Pennsylvania. After she left the bar, [Lawrence] grabbed her and forced her to return to his apartment. For the following seven hours the victim was physically assaulted and brutalized by [Lawrence], who used his fists, a brick, a wine bottle, and his steel-toed boots to savagely attack her.
One of [Lawrence's] neighbors, who heard the violence, called 911. At approximately 12:10 a.m. on July 3, 1999, the responding police officers arrived at [Lawrence's] apartment building and noticed fresh blood in the hallway and on the door of [Lawrence's] apartment. The police entered [Lawrence's] apartment and saw [Lawrence] sitting on his bed in his underwear, covered in blood from head to toe. The police then observed the victim, who they thought was dead, lying face down in a large pool of blood. When the police heard her gurgle, *475 they called for paramedics, who had to cut the victim's clothing from her body (including her bra, which was being used to secure her arms behind her neck).
The victim was comatose for two months following these attacks; when she emerged from her coma, she was unable to talk coherently, see, or walk. After over six months in the hospital and following extensive rehabilitation, which is still required, the victim regained some of her ability to see, walk, and talk, though her sight has been diminished. The victim also currently suffers from post-traumatic stress disorder and significant memory deficit, among other lasting effects.
Commonwealth v. Lawrence, No. 1069 WDA 2004, 1-2, 880 A.2d 9 (Pa.Super., filed May 13, 2005) (unpublished memorandum) (citations omitted).
¶ 3 Following a jury trial, Lawrence was convicted of attempted homicide, aggravated assault, and reckless endangerment of another person. Lawrence was sentenced on the convictions and then he appealed.[2]
¶ 4 A panel of this Court vacated Lawrence's judgment of sentence as it found that the trial court erred in finding Lawrence guilty of attempted third-degree murder as there is no such crime. The panel remanded for re-sentencing, finding that the vacation of the attempted homicide conviction disrupted the overall sentencing scheme. See Commonwealth v. Lawrence, 821 A.2d 134 (Pa.Super.2003) (table). On May 19, 2004, the trial court re-sentenced Lawrence to a period of imprisonment of ten to twenty years on the aggravated assault conviction and one to two years for recklessly endangering another person. Lawrence then appealed the judgment of sentence.
¶ 5 This Court affirmed Lawrence's judgment of sentence on May 13, 2005. See Commonwealth v. Lawrence, 880 A.2d 9 (Pa.Super.2005) (table). The Pennsylvania Supreme Court denied Lawrence's petition for allowance of appeal on December 28, 2005. See Commonwealth v. Lawrence, 586 Pa. 736, 891 A.2d 730 (2005) (table). The United States Supreme Court denied Lawrence's petition for a writ of certiorari on June 5, 2006. See Lawrence v. Pennsylvania, 547 U.S. 1180, 126 S.Ct. 2373, 165 L.Ed.2d 282 (2006).
¶ 6 On June 13, 2006, Lawrence, through Attorney Pass, filed a PCRA petition, and in the petition Lawrence raised claims that his direct appeal counsel, Attorney Pass, had been ineffective. See PCRA Petition, 6/13/06, at ¶ 53(1)-(5). Thereafter, the Commonwealth filed a motion for appointment of new counsel in which it maintained that it was inappropriate for Attorney Pass to represent Lawrence as he was raising claims of his own ineffectiveness and asked that new counsel be appointed. Attorney Pass then moved to withdraw as counsel and the PCRA court subsequently appointed new counsel, Kenneth Snarey, Esq. Lawrence, again through counsel, filed an amended PCRA petition on November 1, 2006. The amended petition alleged the same allegations of ineffective assistance of counsel raised in the initial petition. See Amended PCRA Petition, 11/1/06, at ¶ 24(1)-(5).
¶ 7 The PCRA court held a hearing on the PCRA petition on March 29, 2007. The PCRA court then entered an order denying the petition on July 2, 2007. Lawrence filed a timely notice of appeal and, *476 that same day, also filed a statement pursuant to Pa.R.A.P.1925(b).
¶ 8 On appeal, Lawrence raises the following issues for our review:
1. Whether Attorney Pass was ineffective for failing to preserve the claim that Defendant's conviction for aggravated assault was not supported by sufficient evidence?
. . .
2. Whether Attorney Pass was ineffective in failing to preserve the claim that the sentence imposed, which was equal to the statutory maximum and exceeded the aggravated range of the sentencing guidelines, was excessive insofar as the sentencing court focused solely on the serious nature of the crime?
. . .
3. Whether Attorney Pass was ineffective in failing to preserve the claim that the Court of Common Pleas in imposing the sentence, relied upon factors already taken into account in determining Defendant's prior record score and offense gravity score?
. . .
4. Whether Attorney Pass was ineffective in failing to preserve the claim that Defendant's sentence, which exceeded the aggravated range of the sentencing guidelines, was unreasonable?
. . .
Appellant's Brief, at 2.
¶ 9 Our standard of review of a PCRA court's denial of a petition for post-conviction relief is well-settled: We must examine whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. See Commonwealth v. Hall, 867 A.2d 619, 628 (Pa.Super.2005), appeal denied, 586 Pa. 756, 895 A.2d 549 (2006). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super.2001). Our scope of review is limited by the parameters of the PCRA. See Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa.Super.2005), appeal denied, 583 Pa. 669, 876 A.2d 393 (2005).
¶ 10 Each of Lawrence's four issues presented on appeal alleges ineffective assistance of counsel. Counsel is presumed effective, and to overcome this presumption Lawrence must establish three factors.
¶ 11 First, that the underlying claim has arguable merit.
Second, that counsel had no reasonable basis for his action or inaction. In determining whether counsel's action was reasonable, we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel's decisions had any reasonable basis.
Finally, Appellant must establish that he has been prejudiced by counsel's ineffectiveness; in order to meet this burden, he must show that but for the act or omission in question, the outcome of the proceedings would have been different.
A claim of ineffectiveness may be denied by a showing that the petitioner's evidence fails to meet any of these prongs.
Commonwealth v. Washington, 592 Pa. 698, 712, 927 A.2d 586, 594 (2007) (internal citations and quotation marks omitted).
¶ 12 In his first issue presented on appeal, Lawrence argues that Attorney Pass was ineffective in failing to raise the claim that the Commonwealth presented *477 insufficient evidence to sustain his conviction for aggravated assault. Lawrence's specific argument is that the evidence was insufficient because while "his body was covered quite extensively with the victim's blood" there was no blood on the "proffered instrumentalities" used in the assault, i.e., the brick, wine bottle, and a boot. Appellant's Brief, at 19, 26.
¶ 13 Lawrence was convicted of aggravated assault under Section 2702 of the Pennsylvania Crimes Code:
(a) Offense defined.A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life. . . .
18 PA. CONS.STAT. ANN. § 2702(a)(1). Pennsylvania has defined "serious bodily injury" as "[b]odily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." 18 PA. CONS.STAT. ANN. § 2301.
¶ 14 At trial, the Commonwealth presented overwhelming evidence that Lawrence was guilty of aggravated assault. The victim testified that she remembered some details of the horrific assault before she passed outshe recalled being hit with a brick and a bottle, and being kicked. See N.T., Trial, at 113. Lawrence began beating the victim sometime in the early evening, around 5 or 7 PM. See id., at 42-43. After Lawrence finished brutalizing the victim, he left her lying at his feet with her face submerged in a pool of blood. See id., at 42-43, 166. By the time the police arrived, which was at around mid-night, the victim had lost so much blood that multiple transfusions were necessary. See id.
¶ 15 The victim's injures were so profound that they startled even the hospital personnel. Her injuries were the worst that the paramedic had ever seen. See id., at 97. When the paramedics turned the victim over, they heard "cracking," which they assumed to be bones breaking. Id., at 95-96. The emergency room doctor testified, "I can tell you that I have not seen this degree of trauma very often in patients who are involved in high speed motor vehicle accidents and hit up against the windshield or hit head-on by another car. So the amount of force was substantial." Id., at 167. Expert testimony at trial addressed the devastating injuries sustained by the victim, which we find unnecessary to further detail here. See id., at 165-169, 171-172, 178.
¶ 16 With this evidence in mind, we must now consider whether direct appeal counsel was ineffective for failing to raise a sufficiency claim. The standard for reviewing the sufficiency of evidence on appeal is well-settled:
When reviewing a sufficiency of the evidence claim, an appellate court must view all the evidence and reasonable inferences therefrom in a light most favorable to the Commonwealth as verdict winner and must determine whether the evidence was such as to enable a fact finder to find that all of the elements of the offense[ ] were established beyond a reasonable doubt.
Commonwealth v. Holley, 945 A.2d 241, 246-247 (Pa.Super.2008). The Commonwealth's burden may be sustained by means of wholly circumstantial evidence. See Commonwealth v. Cunningham, 805 A.2d 566, 571 (Pa.Super.2002), appeal denied, 573 Pa. 663, 820 A.2d 703 (2003).
¶ 17 Attorney Pass testified at the PCRA hearing that he did not raise a sufficiency claim because, in his opinion, it *478 had no merit. See N.T., PCRA Hearing, at 11-13. Counsel pointed out that the uncontradicted evidence at trial conclusively proved that the victim's injuries could not have occurred as a result of an accidental fall, which was Lawrence's contention at trial. Counsel also correctly opined that the statute does not require the Commonwealth to prove that a weapon was used in the attack. See id.
¶ 18 We find no error in the trial court's conclusion that Lawrence did not show that the underlying claim had any merit, let alone arguable merit. It is well established that appellate counsel can not be deemed ineffective for failing to raise a meritless claim. See Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super.2008). Here, the evidence presented at trial easily satisfied the elements of Section 2702(a)(1). Although counsel's explanation of his decision to forego this issue was reasonable under the circumstances, we do not reach that factor in light of our agreement with the PCRA court that the record in this case did not warrant a sufficiency claim.
¶ 19 In his second, third, and fourth issues on appeal, Lawrence maintains that Attorney Pass was ineffective for failing to preserve challenges to the discretionary aspects of his sentence and failing to present them on direct appeal.[3] Lawrence contends in his statement of the questions presented that Attorney Pass should have preserved[4] the following three claims: (1) that the sentencing court focused solely on the serious nature of the crime; (2) that the sentencing court relied upon factors already taken into consideration in the prior record score and offense gravity score; and (3) that the sentence was unreasonable as it was outside the guidelines.
¶ 20 Lawrence's claims raise substantial questions that fall within the scope of appellate review. See Commonwealth v. Boyer, 856 A.2d 149, 152 (Pa.Super.2004), aff'd, 586 Pa. 142, 891 A.2d 1265 (2006) (substantial claim raised where "the trial court imposed a manifestly excessive sentence and focused solely on the serious nature of the crimes he committed"); Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa.Super.2000) (en banc), appeal denied 563 Pa. 672, 759 A.2d 920 (2000) (substantial question raised by claim that prior record was double-factored); and Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.Super.2004) (noting that a claim that the sentencing court imposed an unreasonable sentence by sentencing outside the guidelines presents a substantial question). Accordingly, Lawrence's claims have arguable merit. See Commonwealth v. Whitmore, 860 A.2d 1032, 1036 (Pa.Super.2004), rev'd on other grounds, 590 Pa. 376, 912 A.2d 827 (2006). "Moreover, we need not remand for hearing as appellate counsel's failure to perfect on appeal a discretionary sentencing claim which has arguable merit is without any reasonable basis designed to effectuate his client's interest." Id. We need only determine whether counsel's failure rises to the level of prejudice to afford him relief. See id.
*479 ¶ 21 As Lawrence notes, he was sentenced above the guidelines on his convictions. A sentencing court is permitted to impose a sentence outside the guidelines, but "must provide a written statement setting forth the reasons for the deviation...." Commonwealth v. Walls, 592 Pa. 557, 567, 926 A.2d 957, 963 (2007). In Walls, the Court "granted allocatur to clarify the proper standard of review an appellate court should employ when considering a challenge to a sentence that falls outside of the sentencing guidelines...." Id., 592 Pa. at 564, 926 A.2d at 961. "[U]nder the Sentencing Code an appellate court is to exercise its judgment in reviewing a sentence outside the sentencing guidelines to assess whether the sentencing court imposed a sentence that is `unreasonable.'" Id., 592 Pa. at 568, 926 A.2d at 963 (citation omitted). The Court "decline[d] to fashion any concrete rules as to the unreasonableness inquiry for a sentence that falls outside of applicable guidelines...." Id., 592 Pa. at 568, 926 A.2d at 964. The Court, however, noted that "the Legislature intended that considerations found in Section 9721 inform appellate review for unreasonableness."[5]Id. An inquiry into the reasonableness of a sentence also includes a review of the factors set forth in § 9781(d) of the Sentencing Code.[6]See id.
¶ 22 A review of the sentence in this case reveals that the sentencing court properly considered, both explicitly and implicitly, the need to protect society, the impact on the victim's family and society, the nature and circumstances of the offense, as well as Lawrence's criminal history and characteristics. See N.T., Sentencing, 6/19/04, at 9-11. We note that the sentencing court had the benefit of a presentence investigation report and, as such, it is presumed that the sentencing court "was aware of the relevant information regarding defendant's character and weighed those considerations along with *480 mitigating statutory factors." Boyer, 856 A.2d at 154.
¶ 23 The sentencing court was obviously deeply troubled that Lawrence brutally beat the victim, and it was this finding over any other that led the sentencing court to depart from the guidelines.
¶ 24 Our review of the sentence demonstrates that the sentencing court carefully considered the general standards articulated in Section 9721(b) of the Sentencing Code, and our examination of the sentence pursuant to Section 9781(d) of the Sentencing Code leads us to conclude that the sentencing court imposed an eminently reasonable sentence.
¶ 25 Lawrence viciously beat the victim; as a direct result of the beating the victim sustained horrifying injuries. Given the foregoing, we cannot say that the sentencing court imposed an unreasonable sentence. As appropriately stated by the trial court:
This case was not a typical aggravated assault and as noted at the time of Lawrence's original sentencing, this Court reviewed [the victim's] medical records and thought that it was going to be a homicide trial rather than an aggravated assault. [The victim] was in a coma for months, lost her vision and her ability to talk, and had to be retrained as to how to walk and how to talk. Even five years after the incident, she still suffered from cognitive deficits that made it difficult for her to remember things and articulate them. This was balanced against Lawrence's total lack of remorse as witnessed by his ludicrous and perjured testimony that [the victim] injured herself by falling out of bed and in the hallway when, in letters sent to her form the jail prior to his trial, Lawrence acknowledged that he was responsible for her catastrophic injures because he had snapped. These letters were a mere ploy in the hopes of having [the victim] come to his aid following his conviction. This Court reviewed all of those factors and made a determination that Lawrence's aggressive and assaultive behavior, his use and abuse of alcohol and cocaine, his lack of remorse and his prior criminal history, mandated a sentence of total confinement and one that required the imposition of statutory maximum sentences.
Opinion, 3/7/08, at 12. We can find no error in the justification for this sentence. Therefore, Lawrence was not prejudiced by Attorney Pass's decision in this regard.
¶ 26 Order affirmed. Jurisdiction relinquished.
¶ 27 Judge COLVILLE files a concurring opinion.
CONCURRING OPINION BY COLVILLE, J.:
¶ 1 I too would affirm the PCRA court's order. I write separately because I disagree with the manner in which the Majority disposes of Appellant's last three issues.
¶ 2 In the "statement of questions involved" portion of his brief, Appellant frames his last three issues in terms of Attorney Pass rendering ineffective assistance by failing to preserve challenges to the discretionary aspects of Appellant's sentence. However, in my view, under these issues, Appellant ultimately contends that Attorney Pass rendered ineffective assistance by failing to challenge discretionary aspects of Appellant's sentence.[7]*481 More specifically, Appellant argues Attorney Pass should have presented claims that: the trial court rendered its sentence merely by focusing on the serious nature of the crimes Appellant committed; the trial court rendered its sentence based upon the extent of the victim's injuries, which is a factor already accounted for in the sentencing guidelines; and the trial court failed to consider Appellant's rehabilitative needs in fashioning his sentence. The PCRA court adequately rejected these claims in its opinion. PCRA Court Opinion, 3/7/08, at 7-13. For the reasons stated by the PCRA court, I conclude Appellant's underlying claims have no merit. Consequently, Appellant's claims that Attorney Pass rendered ineffective assistance by failing to challenge the discretionary aspects of Appellant's sentence fail for lack of arguable merit.
NOTES
[*] Retired Senior Judge assigned to the Superior Court.
[1] 42 PA. CONS.STAT. ANN. §§ 9541-9546.
[2] At trial, Lawrence was represented by Kevin Clancy, Esq. Attorney Clancy withdrew as counsel and on November 8, 2000, Charles R. Pass, III, Esq., was appointed as his replacement.
[3] This is a cognizable PCRA claim. See Commonwealth v. Hernandez, 755 A.2d 1 (Pa.Super.2000), aff'd, 572 Pa. 477, 817 A.2d 479 (2003).
[4] "Issues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived." Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.Super.2005). Attorney Pass filed a post-sentence motion, but did not raise the three claims and he did not present any of these arguments at sentencing.
[5] Section 9721 of the Sentencing Code provides, in pertinent part, the following:
(b) General standards.In selecting from the alternatives set forth in subsection (a) the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing and taking effect pursuant to section 2155 (relating to publication of guidelines for sentencing). In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing pursuant to section 2154 (relating to adoption of guidelines for sentencing) and made effective pursuant to section 2155, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.
42 PA. CONS.STAT. ANN. § 9721(b) (emphasis added).
[6] Section 9781(d) states the following:
(d) Review of record.In reviewing the record the appellate court shall have regard for:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 PA. CONS.STAT. ANN. § 9781(d).
[7] See, e.g., Appellant's Brief at 31-32 ("Accordingly, [Appellant] presents an arguably meritorious claim (and substantial question regarding the propriety of sentence) that his sentence must be vacated and he must be resentenced. Attorney Pass had no reasonable basis for failing to raise such a claim. It is reasonably probable that [Appellant's] sentence would have been vacated (and, to the extent further prejudice is required, a minimum and/or maximum of reduced length imposed)."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561929/ | 18 So.3d 1042 (2009)
TURNER
v.
STATE.
No. 1D09-2967.
District Court of Appeal of Florida, First District.
September 22, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562019/ | 16 So.3d 117 (2009)
Rachel McCoy HAYES
v.
Justin Steve HAYES.
2071101 and 2071206.
Court of Civil Appeals of Alabama.
February 13, 2009.
John D. McCord of McCord & Martin, Gadsden, for appellant.
Thomas A. King, Gadsden, for appellee.
MOORE, Judge.
In these consolidated appeals, Rachel McCoy Hayes ("the mother") appeals from two separate judgments entered by the Etowah Circuit Court ("the trial court") in a divorce action filed by the mother against Justin Steve Hayes ("the father"). We dismiss the appeals.
Facts and Procedural History
On October 2, 2007, the mother filed a complaint seeking a divorce from the father. In that complaint, the mother sought, among other things, custody of the parties' minor child and child support. On that same date, the trial court entered a "status quo pendente lite order" that, among other things, awarded the parties "joint and shared custody" with "[p]hysical custody ... to remain with the parent who has customarily cared for the child," *118 awarded the father certain visitation with the child, and set the matter for a pendente lite hearing and/or a trial on November 14, 2007. On October 3, 2007, the trial court entered an amended order awarding the mother the "care, custody and control" of the child. On October 18, 2007, the father answered the mother's complaint and counterclaimed, seeking, among other things, custody of the parties' minor child and child support. On November 16, 2007, the trial court entered an order amending the custody provision in the October 3, 2007, amended order by awarding physical custody of the child to the father during the days that the mother worked and awarding physical custody of the child to the mother on the days that she did not work.
After a final ore tenus hearing, the trial court entered a judgment on May 27, 2008. In that judgment, the trial court awarded the parties joint legal custody of the child, but it designated the mother as the primary physical custodian, subject to certain visitation rights of the father. The father's visitation rights did not include having custody of the child during the days that the mother worked. The trial court also ordered the father to pay the mother $75 per week in child support.
The father filed a timely motion for a new trial or, in the alternative, to alter, amend, or vacate the May 27, 2008, judgment. In his motion, the father requested, among other things, that the trial court amend the judgment to award him custody of the child during the days that the mother worked, as had been set out in the November 16, 2007, pendente lite order. The father also requested that the trial court amend the judgment so that he did not have to pay any child support based on his requested custodial arrangement. The mother filed a competing postjudgment motion on May 29, 2008, which she amended on June 4, 2008.
After holding a hearing on the parties' postjudgment motions on June 18, 2008, the trial court, on June 19, 2008, ordered the parties to make themselves and the child accessible by telephone weekly and while in the custody of each other. The trial court further ordered the parties to provide one another with proof of life insurance. The trial court specifically denied all other relief requested by the parties.
On July 8, 2008, the father filed a "motion to clarify the order of June 19, 2008." In that motion, the father simply asked the trial court to clarify its ruling on his motion to alter, amend, or vacate the May 27, 2008, judgment. The father did not indicate what portion of the June 19, 2008, order he did not understand. The trial court conducted a hearing on the father's clarification motion. Subsequently, on August 4, 2008, the trial court entered a judgment stating, in pertinent part:
"As long as the minor child is not enrolled in school, the [father] will have visitation with the child as set forth in the pendente lite order. Essentially [the father] will have the physical possession of the child on the days that [the mother] is working her extended work schedule. The visitation arrangement as expressed in the final decree becomes effective once the child becomes enrolled in kindergarten (full time).
"[The mother] will remain the primary custodial parent under the joint custody provision.
"All other relief requested by either party is denied."
On August 26, 2008, the mother appealed from the August 4, 2008, judgment modifying the custody and visitation provisions of the divorce judgment. This court docketed that appeal as case no. 2071101.
*119 On August 27, 2008, the father filed a Rule 60(b), Ala. R. Civ. P., motion "to correct a clerical mistake." In that motion, the father averred that, at the June 18, 2008, hearing, the trial court had indicated orally that it had intended that its final custody, visitation, and child-support awards would be consistent with the November 16, 2007, pendente lite order. The father further alleged that the trial court had not previously ordered child support when the parties had shared custody of the child based on the mother's work schedule. The father therefore requested that the trial court rescind its child-support award so long as the parties shared custody in accordance with the August 4, 2008, judgment. By notation on the father's motion, the trial court purportedly granted the father's Rule 60(b) motion on August 28, 2008.
On September 12, 2008, the mother filed a motion entitled "motion to alter, amend or vacate the order of August 28, 2008." In that motion, the mother argued that the trial court had entered the August 28, 2008, judgment without notice to her and without an opportunity for her to be heard. The mother further contended that the trial court had entered the judgment in violation of the Alabama Rules of Civil Procedure. The trial court denied the mother's motion on September 13, 2008. The mother filed a notice of appeal relating to the trial court's August 28, 2008, judgment on September 23, 2008. This court docketed that appeal as case no. 2071206.
On October 21, 2008, this court consolidated the appeals. This court subsequently granted motions to stay execution of both the August 4, 2008, judgment and the August 28, 2008, judgment.
Analysis
In case no. 2071101, the mother argues that the August 4, 2008, judgment entered by the trial court is void because, she says, the trial court had lost jurisdiction to modify its May 27, 2008, judgment. We agree. The May 27, 2008, judgment finally disposed of all litigated matters between the parties and therefore constitutes a final judgment. See Verren v. Verren, 5 So.3d 611, 614 (Ala.Civ.App.2008) (quoting Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So.2d 316, 320 (Ala.2001)) ("`A final judgment that will support an appeal is one that puts an end to the proceedings between the parties to a case and leaves nothing for further adjudication.'"). Both parties filed postjudgment motions seeking amendment of the final judgment within 30 days of the entry of that judgment, as authorized by Rule 59, Ala. R. Civ. P. On June 19, 2008, the trial court ruled on those motions, specifically denying the father's request to modify the custody and visitation provisions of the May 27, 2008, judgment. Upon making that ruling, the trial court lost jurisdiction to "reconsider" its decision and to grant the father's requested relief. See Rorex v. Rorex, 978 So.2d 60, 62-63 (Ala.Civ.App.2007); and Reaves v. Reaves, 883 So.2d 693, 695 (Ala. Civ.App.2003).
The father correctly points out that although a trial court loses jurisdiction to make substantive changes to a final judgment after conclusively ruling on a Rule 59 motion, the trial court always retains jurisdiction to correct a clerical mistake in its judgment pursuant to Rule 60(a), Ala. R. Civ. P. However, Rule 60(a)
"deals solely with the correction of clerical errors. Errors of a more substantial nature are to be corrected by a motion under Rules 59(e) or 60(b). Thus the Rule 60(a) motion can only be used to make the judgment or record speak the truth and cannot be used to make it say *120 something other than what was originally pronounced."
Committee Comments on 1973 Adoption of Rule 60.
"The trial court's authority to enter a Rule 60(a) order or a judgment nunc pro tunc is not unbridled. Merchant v. Merchant, 599 So.2d 1198 (Ala.Civ.App. 1992). It cannot be used to enlarge or modify a judgment or to make a judgment say something other than what was originally said. ... If the mistake involves an exercise of judicial discretion, any correction is beyond the scope of Rule 60(a) and should properly be effected under Rule 59(e) or Rule 60(b)...."
McGiboney v. McGiboney, 679 So.2d 1066, 1068 (Ala.Civ.App.1995).
The father maintains that on June 18, 2008, the trial court pronounced from the bench during the hearing on the parties' Rule 59 motions that it intended to reinstate the custody and visitation provisions contained in its November 16, 2007, pendente lite order. The father therefore argues that the trial court committed a clerical error in its June 19, 2008, order when it denied the father's request to reinstate the terms of the pendente lite order. However, Rule 58, Ala. R. Civ. P., sets out the exclusive methods by which a trial court may render and enter a judgment. Pursuant to that rule, a trial judge's oral statements regarding the manner in which he or she intends to rule does not constitute a judgment. See Armstrong v. Armstrong, 550 So.2d 1017, 1018 (Ala.Civ.App. 1989) (citing Hobbs v. Hobbs, 423 So.2d 878 (Ala.Civ.App.1982), and noting that "a trial court's oral divorce decree is unauthorized and ineffective"). The June 19, 2008, order constitutes the only effective ruling on the father's Rule 59 motion, and that order unambiguously denied the father's request to modify the custody and visitation provisions of the May 27, 2008, judgment. Accordingly, the trial court had no authority to reverse its decision and grant the father additional rights it had previously denied under the guise of correcting a clerical error, as the father contends.
Because the trial court had lost jurisdiction to modify its May 27, 2008, judgment after its June 19, 2008, ruling, we conclude that its August 4, 2008, judgment is void. A void judgment will not support an appeal. Hannah v. Hannah, 984 So.2d 457 (Ala.Civ.App.2007). We therefore dismiss the mother's appeal in case no. 2071101 and instruct the trial court to vacate its August 4, 2008, void judgment.
For similar reasons, we dismiss the appeal in case no. 2071206. After entering its void judgment of August 4, 2008, the trial court, on August 28, 2008, purported to further modify its May 27, 2008, judgment by absolving the father of the child-support obligation established in that judgment. Again, the trial court acted on the father's motion filed pursuant to Rule 60(a).[1] However, the father was not seeking to correct a clerical error in the May 27, 2008, judgment, or the June 19, 2008, postjudgment order, but was requesting a substantive change affecting his duty to pay child support to the mother. The trial court was wholly without the authority to make such a substantive change three months after its final judgment had been entered. We therefore conclude that the August 28, 2008, judgment purporting to relieve the father of his duty to pay child support is void for lack of jurisdiction. We *121 therefore dismiss the appeal in case no. 2071206 and instruct the trial court to vacate its August 28, 2008, void judgment. We further instruct the trial court to award the mother back child support in accordance with the May 27, 2008, judgment to the extent the father has not paid such child support in reliance on the trial court's void August 28, 2008, judgment.
2071101 APPEAL DISMISSED WITH INSTRUCTIONS.
2071206 APPEAL DISMISSED WITH INSTRUCTIONS.
THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.
NOTES
[1] Although the father cited Rule 60(b) in his motion, he requested the trial court to correct a "clerical mistake," as authorized by Rule 60(a). It is the relief requested, not the nomenclature used, that determines the substance of a motion. See Allied Prods. Corp. v. Thomas, 954 So.2d 588, 589 n. 3 (Ala.Civ. App.2006). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562020/ | 138 A.2d 485 (1958)
Nannie K. ABBOTT, Appellant,
v.
UNITED STATES, Appellee.
No. 2078.
Municipal Court of Appeals for the District of Columbia.
Argued November 4, 1957.
Decided January 29, 1958.
John T. Bonner, Washington, D. C., for appellant.
John W. Warner, Jr., Asst. U. S. Atty., Washington, D. C., with whom Oliver Gasch, U. S. Atty., and Lewis Carroll, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee.
Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.
QUINN, Associate Judge.
Appellant was convicted by the court, sitting without a jury, of keeping a disorderly house.[1] This appeal challenges the legality of the entry of the police officers into the house and claims error in the refusal of the trial judge to suppress certain evidence allegedly obtained as a result of such entry.
The evidence in behalf of the government indicated that the police had observed the premises in question for approximately two months. In that time they saw many men and women, including appellant and a known prostitute, enter and leave the house at all hours of the day and evening. A warrant of arrest was issued for appellant but no search warrant for the premises.
On the evening of June 23, 1957, one of the officers stationed himself in an alley close to the house. He saw appellant on a nearby street corner but did not arrest her then, intending to wait until she entered the house in order to make a "raid." Believing that appellant had gone into the house, the officers went up to the door, knocked on it, announced their purpose, *486 and demanded entry. Receiving no response, they removed a screen and entered through a window. While inside they seized several letters lying on a desk. They observed a couple in incriminating circumstances and arrested them. Another man came to the door and he was also placed under arrest.
Several hours later appellant voluntarily surrendered herself at police headquarters. In her presence the two men arrested at the house made damaging admissions about their activities in the house which implicated appellant. At trial the police officers testified to these admissions. A prostitute, who had been using the house at the direction of appellant, also testified on behalf of the prosecution with respect to her own activities prior to appellant's arrest.
Relying on McKnight v. United States, 1950, 87 U.S.App.D.C. 151, 183 F. 2d 977, the trial judge ruled that the entry into the house without a search warrant was illegal. Although the government now questions this holding, we believe it was correct. Appellant had been seen outside and the arrest warrant could have been executed there; nevertheless the officers waited until they thought she was in the house, in order to make a "raid." Thus there was no showing at all of any necessity to break into the house, and the entry was illegal.
There remains the question of what evidence should have been suppressed. The judge excluded the letters found in the house. Whether he also refused to admit the testimony of the officers concerning their observations while in the house is not clear from the record. We believe such testimony should have been suppressed.[2] We also think that the testimony of the admissions made at the police station by the two men, which was not excluded, should have been. These men were brought to the attention of the police as a direct result of the illegal search of the house and not by independent information.[3] The government argues that the incidents at the police station were only remotely connected with the entry into the house, and thus the taint was removed,[4] but we believe the connection was direct.
From a review of the entire record we cannot say with certainty that the erroneous admission of this evidence did not have a prejudicial effect on the trial judge.
Reversed.
NOTES
[1] Code 1951, § 22-2722.
[2] McGinnis v. United States, 1 Cir., 1955, 227 F.2d 598.
[3] United States v. Krulewitch, 2 Cir., 1948, 167 F.2d 943, 945-946, reversed on other grounds, 1949, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790; cf. Nueslein v. District of Columbia, 1940, 73 App.D.C. 85, 115 F.2d 690.
[4] See Gregory v. United States, 97 U.S. App.D.C. 305, 231 F.2d 258, certiorari denied, 1956, 352 U.S. 850, 77 S.Ct. 69, 1 L.Ed.2d 61. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562021/ | 69 F.2d 639 (1934)
COMMISSIONER OF INTERNAL REVENUE
v.
KING.
No. 7038.
Circuit Court of Appeals, Fifth Circuit.
March 17, 1934.
*640 Frank J. Wideman, Asst. Atty. Gen., Sewall Key and Helen R. Carloss, Sp. Assts. to Atty. Gen., and E. Barrett Prettyman, Gen. Counsel, Bureau of Internal Revenue, and John H. Pigg, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for petitioner.
John B. King, of Wichita Falls, Tex., for respondent.
Before BRYAN, SIBLEY, and WALKER, Circuit Judges.
WALKER, Circuit Judge.
In October, 1920, the receiver of a railway company, after being authorized by an order, made in the receivership proceeding in the United States District Court for the Southern District of Texas, to bring suit against the Pierce Oil Corporation for damages for alleged breach of two contracts entered into by that corporation for the sale and delivery of fuel oil, entered into an oral agreement with the respondent, a lawyer, who resided in Houston, Tex., for the institution and prosecution of such suit, for which, as stated in a finding of fact, "but wholly contingent upon the successful outcome of the suit, he (the respondent) should be entitled to compensation in an amount to be determined if and when the suit was successfully terminated"; two other lawyers being employed by the receiver and associated with the respondent in the institution and prosecution of that suit. Pursuant to that agreement such suit was instituted and prosecuted, with the result that on February 28, 1923, judgment was rendered by the court in which the receivership proceeding was pending in favor of the receiver and against the Pierce Oil Corporation in the amount of $2,088,483.40, less an offset of $33,105.00. In April, 1923, the Pierce Oil Corporation sued out an appeal to this court from that judgment, and the case was duly briefed on appeal by counsel for the Pierce Oil Corporation and by the respondent and the two other lawyers associated with him as counsel for the receiver. On August 29, 1923, said District Court, by decree entered in the receivership suit, reserved jurisdiction to determine what compensation should be paid to petitioner and the two other lawyers associated with him as counsel for the receiver for services rendered, contingent upon recovery. At the time the above-mentioned agreement was entered into and thereafter the marriage relation existed between the respondent and Mary McAdoo King until August 31, 1923, on which date the wife died intestate, leaving as her heir at law her son, Leon McAdoo King. On July 22, 1924, a decree was entered in the receivership suit authorizing the receiver to settle the case against the Pierce Oil Corporation for $1,555,425.00, and the case was immediately settled on that basis. On September 8, 1924, hearing was had in said District Court, on a petition filed for that purpose by the purchaser of the properties of said Railway Company, to determine the amount of the fee to be allowed petitioner and his co-counsel, and on the same date the court, by order entered, allowed petitioner and his co-counsel a fee of $200,000, of which amount petitioner's share was $52,000, which sum petitioner received in cash on May 11, 1925. By his individual income tax return for the calendar year 1925 respondent reported therein as income the amount of the above-mentioned fee received by him, $52,000, together with other income. After the petitioner, following a determination that the sum of $52,000 received by the respondent in 1925, as above stated, is the separate income of the respondent, had determined a deficiency in tax against respondent for that year, the respondent filed with the Board of Tax Appeals a petition for a redetermination of the deficiency so determined. The Board of Tax Appeals, holding that the above-mentioned fee when received was impressed with the character of community property and belonged one-half to respondent and one-half to the estate of his deceased wife, redetermined the deficiency for the year 1925 by excluding from respondent's net income the amount of $26,000. About the year 1927 respondent made a settlement with his son, Leon McAdoo King, who, under the Texas law (Revised Civil Statutes of Texas 1925, art. 2578), as the only child of his deceased mother, was entitled to one-half of the community estate, in which settlement respondent recognized the above-mentioned fee of $52,000 as community property of respondent and his deceased wife, and the settlement made included the equivalent of one-half of that fee. No income tax return was filed for or on behalf of the estate of Mary McAdoo King for the year 1925.
The petitioner challenges the holding of the Board of Tax Appeals that the above-mentioned fee when it was received was community property and belonged one-half to the respondent and one-half to the estate of his deceased wife, and contends that the amount *641 of that fee was separate property of the respondent. The question so presented is governed by the law of Texas, the state in which the respondent and his deceased wife resided. Poe v. Seaborn, 282 U. S. 101, 51 S. Ct. 58, 75 L. Ed. 239; Hopkins v. Bacon, 282 U. S. 122, 51 S. Ct. 62, 75 L. Ed. 249. "All property acquired by either the husband or wife during marriage, except that which is the separate property of either, shall be deemed the common property of the husband and wife, and during coverture may be disposed of by the husband only. All the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains, unless the contrary be satisfactorily proved." Revised Civil Statutes of Texas 1925, art. 4619. Texas decisions are to the effect that, where property is acquired as a result of compliance with the terms of a contract, the question whether, within the meaning of the above set out statute, it is or is not acquired during marriage, depends upon the status existing at the time the contract was entered into; the property being the separate property of the spouse who was a party to such contract if that contract was entered into prior to the marriage, though the performance under the contract was not completed, and a right to the property was not fixed or consummated, until after the marriage, and the property being community property if the acquisition of the right to it was a result of performance of a contract entered into during the marriage, though performance under such contract was not completed, and ownership of the property did not come into existence, until after the marriage was dissolved by the death of one of the spouses. Welder v. Lambert, 91 Tex. 510, 44 S. W. 281, 286; Bishop v. Williams (Tex. Civ. App.) 223 S. W. 512; Evans v. Ingram (Tex. Civ. App.) 288 S. W. 494; Stiles v. Hawkins (Tex. Com. App.) 207 S. W. 89. In the case of Welder v. Lambert, supra, the question presented was as to the status of land granted to a husband during marriage upon completion, during the marriage, of performance of a contract entered into by the husband prior to the marriage, under which, upon compliance with conditions of the contract, he was to be entitled, not to any specific tract or tracts of land, but to a stated number of leagues of land, which were to be selected after conditions in the contract had been complied with. The court decided that the property in question was the separate property of the husband, saying in the opinion: "In this cause the title originated in the contract of Power and Hewitson with the state of Coahuila and Texas. That contract, in the language of the Louisiana court, was the `cause' of the title. Power was single when it was entered into, and the right to earn the lands acquired by it was his separate property. The title relates to its origin, and must take the impress of its character from it." The facts of that case negative the conclusion that the land was held to be the separate property of the husband because of his having had an inchoate title to that land prior to the marriage, as at the time of the marriage he had no claim to any specific or then identifiable land. The statements in the opinion in that case of the grounds upon which the conclusion reached was based indicate that the test therein stated for determining whether property is separate or common is applicable whether the property is real estate or personalty, land or a sum of money. No Texas decision which has come to our notice indicates that the stated test is not applicable where a right to personal property accrues upon performance of a contract. The foundation of respondent's right to the sum which was awarded to him after the dissolution of the marriage by the death of his wife was the contingent fee agreement which was entered into while the marriage relation existed. Nutt v. Knut, 200 U. S. 13, 21, 26 S. Ct. 216, 50 L. Ed. 348. This being so, the position of the respondent with reference to the fee awarded to him was not, as suggested in argument for the petitioner, analogous to that of one whose claim to land rested partly on adverse possession before marriage and partly on adverse possession during marriage, with the result that by Texas decisions that land is classified as community property and not as separate property. Sauvage v. Wauhop (Tex. Civ. App.) 143 S. W. 259; Id. (Tex. Civ. App.) 159 S. W. 185; Cook v. Houston Oil Co. (Tex. Civ. App.) 154 S. W. 279; Creamer v. Briscoe, 101 Tex. 490, 494, 109 S. W. 911, 17 L. R. A. (N. S.) 154, 130 Am. St. Rep. 869. It appears from the opinions in the just cited cases that the reason for such classification is that prior to the expiration of the period of adverse possession required to confer title the possessor has no right whatever to the land adversely possessed. The last-cited cases are readily distinguishable from the instant one, in that, while the marriage relation existed, respondent, in pursuance of the contingent fee agreement, was performing services in the suit for which he was entitled to be paid in the event of his being successful in the suit.
From what occurred it is fairly inferable *642 that the respondent made no claim that the part of the community estate which upon the death of his wife descended to his son was chargeable on account of services rendered or funds expended after the death of his wife in completing performance of the condition upon which the contingent fee was payable and in bringing about the payment of that fee. This being so, the question whether such a claim would have been allowable if it had been made is not presented for decision.
We are of opinion that the amount of the fee received by the respondent was community property, because the basis of respondent's right to that fee was the contingent fee agreement which was entered into while the marriage relation existed between him and his now deceased wife; the respondent's right or title to that fee being referable to its origin in that contract. It follows that the order under review was not erroneous.
No error appearing, the petition for review is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393366/ | 423 F. Supp. 833 (1976)
Jean RUSSELL, Plaintiff,
v.
Jack HATHAWAY et al., Defendants.
Civ. A. No. CA 7-76-29.
United States District Court, N. D. Texas, Wichita Falls Division.
December 10, 1976.
*834 John D. Copeland, Short & Copeland, Wichita Falls, Tex., for plaintiff.
Clyde Fillmore, Fillmore, Lambert, Farabee, Purtle & Lee, Wichita Falls, Tex., for defendant trustees.
Elizabeth Levatino and David M. Kendall on behalf of John Hill, Atty. Gen. of Texas and Mark White, Secretary of State, State of Texas, Austin, Tex., for defendants.
Before GOLDBERG, Circuit Judge, and HIGGINBOTHAM and HILL, District Judges.
OPINION
HIGGINBOTHAM, District Judge.
This is an attack upon Texas' durational residence requirement for seeking political office. The attack must fail. Plaintiff Jean Russell moved to Wichita Falls in June of 1975 and on January 19, 1976, registered to vote. In February, she filed as a candidate for the position of Trustee of the City View Independent School District. On April 3, 1976, an election for three vacancies was held with the following result:
Rosemary Barrett 376
Jean Russell 369
O. A. Griest 366
Archie Johnston 335
Jack Francisco 315
Clarence Shook 312
Although initially declared to be one of three winners, on April 5, 1976, Jean Russell was declared ineligible for election for failure to meet the one year residency requirement of the Texas Election Code.[1] No new election was held; instead the next candidate in number of votes received was declared the winner. This suit against the members of the school board followed. Because Jean Russell, by seeking appropriate declaratory and injunctive relief against state officers raised substantial questions as to the constitutionality of the one year residence requirement, a statute of state-wide application, this three-judge court was convened. The case was argued upon stipulated facts.
Jean Russell urges that Texas' requirement that a candidate for public office be a state resident for one year classifies candidates contrary to the Equal Protection clause of the constitution. She argues that the residency statute uses a "suspect" criterion for classification, namely those candidates that have traveled within one year, and finally that the statute entrenches upon fundamental rights of travel, voting and candidacy.
The school board denies that any "suspect" criterion or "fundamental" interest is impinged; that regardless, the statute meets even the strict scrutiny of a compelling necessity test.
These facts not only pose equal protection questions as to the present constitutional tolerance of state denials to recently traveled residents of the opportunity to run for public office but also raise questions as to the measuring standards for equal protection review.
While this case was sub judice the Fifth Circuit in Woodward v. City of Deerfield Beach, 538 F.2d 1081 (5th Cir. 1976), declined to strike down a municipal requirement that a candidate for the office of City Commissioner be a city resident for the six months preceding the election. While the requirement apparently gave the Court *835 some pause, the Court believing the issue to have been foreclosed both by the existence of residence requirements in the constitution itself and by the Supreme Court's summary affirmance of Chimento v. Stark, 353 F. Supp. 1211 (D.N.H.1973), aff'd mem. 414 U.S. 802, 94 S. Ct. 125, 38 L. Ed. 2d 39 (1973), and Sununu v. Stark, 383 F. Supp. 1287 (D.N.H.1974) aff'd mem. 420 U.S. 958, 95 S. Ct. 1346, 43 L. Ed. 2d 435 (1975), did not engage in an extended analysis of the constitutional issues presented. See also Hadnott v. Amos, 320 F. Supp. 107 (M.D.Ala. 1970) aff'd mem. 401 U.S. 968, 91 S. Ct. 1189, 28 L. Ed. 2d 318 (1971) sustaining Alabama's one year residency in a circuit as a requirement of appointment or election as a Circuit Judge.
A three-judge court is bound by apposite decisions of the Court of Appeals for its circuit. The addition by Congress in the three-judge court acts of a second district judge and a Circuit Judge together with direct appeal to the Supreme Court was not a grant of authority with elevated precedential stature but a withdrawal of power from a single judge. Kennedy v. Mendosa-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963). As stated by one district judge "... however constituted, the [three-judge] court ... was only the District Court for the Federal Judicial District of Nebraska." Remick Music Corp. v. Hotel Corp. of Nebraska, 58 F. Supp. 523 (D.Neb.1944), aff'd 157 F.2d 744 (8th Cir. 1946). See also, Farley v. Farley, 481 F.2d 1009 (3rd Cir. 1973). Contra Jehovah's Witnesses in the State of Washington v. King County Hospital, 278 F. Supp. 488 (W.D.Wash.1967) aff'd mem., other grounds 390 U.S. 598, 88 S. Ct. 1260, 20 L. Ed. 2d 158 (1968).
Regardless of the binding grasp of Circuit decisions upon three-judge courts, this court accedes to their precedential force. To do otherwise would create potential intra-circuit conflict with no meaningful mechanism for its resolution within the Circuit. Thus we are bound by decisions of the United States Court of Appeals for the Fifth Circuit.
Residency requirements sustained to date have applied equally to all candidates in the sense that all candidates who reside in the geographical limits of the office's constituency were eligible. Moreover Sununu v. Stark, 383 F. Supp. 1287 (D.N.H.1974), held that a state may properly require that a candidate for local office be a resident of the state with no requirement of residence within the office's constituency. In Sununu New Hampshire's seven-year residence requirement for the office of State Senator was upheld. There was no requirement that the candidate reside in his senatorial district for a prescribed period.
Thus under Chimento and Sununu, a state may seek the goals of informed voters and informed candidates by imposing requirements that the candidate reside for prescribed periods in the state or within the geographical confines of his office's constituency. Because we do not see a meaningful distinction between an attempt to achieve these ends or objectives by both means, residency within the constituent area with an additional period of residency within the state, and an attempt to do so separately, this case is controlled by City of Deerfield, Sununu and Chimento.
This acquiescence in result should not be taken as acquiescence in method which we fear may be fraught with hazards. The Supreme Court's view of summary affirmance in turn led the court in City of Deerfield to deal in summary fashion with the current troubled standards of equal protection review.
Summary Affirmance
City of Deerfield did not attempt to analyze the equal protection question (although the opinion conceded that "... durational residency requirements cannot be easily dismissed", 538 F.2d, at 1083) because:
"... of the inclusion of residency requirements in the Constitution and the recent Supreme Court decision upholding the constitutionality of a seven-year durational residence requirement for the office *836 of state senator ..." Id. at 1084.[2]
Deerfield unqualifiedly characterized the Supreme Court's summary action as a decision of the Supreme Court and conceded its binding force. At least the latter is apparently mandated by Hicks v. Miranda, 422 U.S. 332, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975). ["(T)he lower courts are bound by summary dispositions by this Court ...." Id. at 344-5, 95 S.Ct. at 2289.][3]
The Hicks decision leads lower courts to give higher status to summary affirmance by the Supreme Court than does the Supreme Court, that court being of the view that "... they are not of the same precedential value as would be an opinion of this Court treating the question on the merits." Edelman v. Jordan, 415 U.S. 651, 671, 94 S. Ct. 1347, 1359, 39 L. Ed. 2d 662 (1974).
We need not decide here the force of summary dispositions, because we are bound by the Court of Appeals' City of Deerfield decision with its acceptance of Chimento and Sununu's applicability. Therefore, we must allow the Texas statute to stand. We are bound regardless of the legal sufficiency of the compulsion underlying City of Deerfield, a question with few clear answers.
One value of discretionary review is its grant of power to the Supreme Court to allow the lower courts to distill workable principles in difficult areas. Indeed conflict among the circuits is often not only not a cause for alarm but is a manifestation of this distilling process at work. Summary affirmance only stunts that process. Although ultimate responsibility for compelled review by the Supreme Court must be laid in a causal sense, with the Congress, the scope and reach of such review is determined in great measure by the Supreme Court itself. The reduction in the number of three-judge courts now required will mitigate but not solve the problem.[4] This case is illustrative of the stunting effect of the Supreme Court's present view of summary affirmances.[5] Such summary disposition is peculiarly inappropriate in this specie of constitutional adjudication tending, as it does, to deprive the Supreme Court of the distilling efforts of the lower courts. Nor is this loss offset by any identifiable benefit. The quest for "certainty" in the law here is at best illusory, nor is it a meaningful means of resolving any conflicts in the circuits. Apart from the fact that the Supreme Court cannot time its review, the ratio decidendi of the case is lost in the opinion of the court below and the appellate papers of the litigants.
Equal Protection Standards
Through Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972), the analysis of equal protection issues was caught in a seeming lock-step decisional process produced by the "strict scrutiny" and "traditionalist tests". Whether individuals *837 disadvantaged by a state classification were injured by a permissible state act, or a state act suffering from infirmities of constitutional proportion turned first (and usually last) upon the measuring standard selected. There were two. The first, often termed the "traditional test" is whether:
"... the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if a state of facts reasonably may be conceived to justify it. McGowan v. Maryland, 366 U.S. 420, 425, 426, 81 S. Ct. 1101, 1105, 6 L. Ed. 2d 393 (1961).
The second test of state classification is frequently termed the "compelling state interest" standard or the "close scrutiny review." In essence it is opposite from the inquiry of whether the "... Court can conceive of a `rational basis' for the distinctions made." Kramer v. Union Free School District, 395 U.S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583. See Developments in the Law-Equal Protection, 82 Harv.L.Rev. 1065 (1969).
A litigant on the downhill side of these "standards" was faced with a difficult task. Understandably, when equal protection was at issue, the issue was in fact joined over these ostensibly preliminary procedural points. However, they are akin to determinants, not guide posts.
In general, the strict test is applicable: "... when a fundamental interest is impaired or a suspect distinction drawn...." Carrington v. Rash, 380 U.S. 89, 85 S. Ct. 775, 13 L. Ed. 2d 675 (1965); Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966) [Emphasis added].
How a right achieves fundamental status is yet to be fully articulated. See dissent of J. Rehnquist in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 177, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972) and J. Marshall in Dandridge v. Williams, 397 U.S. 471, 520-521, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970). But see opinion of J. Powell in San Antonio School District v. Rodriquez, 411 U.S. 1, at 29, 40, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973).
Thus, when a fundamental interest was "impaired", such as voting, Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972), or a suspect distinction was drawn, such as race, Korematsu v. United States, 323 U.S. 214, 216, 65 S. Ct. 193, 89 L. Ed. 194 (1944) the strict test was applicable. Otherwise, the "traditional test" was used.
Because the "preliminary" determination of suspect criterion and fundamental interest so effectively compels the outcome, the use of these litmuses in the exercise of the power of judicial review creates a high risk of presenting ipse dixit results without the undergirding of judicial reasoning and persuasion. This weakness in methodology has not gone unnoticed and the strict scrutiny language of compelling necessity may be shifting. See e. g., Bullock v. Carter, 405 U.S. 134, 144, 92 S. Ct. 849, 31 L. Ed. 2d 92 (1972), Dunn v. Blumstein, 405 U.S. 330, 336-337, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972), where the standard used was "reasonably" necessary to the accomplishment of legislative state objections.
Not surprisingly, this shift in language has provoked considerable academic discussion. See Gunther, In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972). This is no mere academic exercise in semantics. Articulation of at least ostensibly objective standards for judicial review of legislation may now be of equal, if not more, importance than the discrete result of a durational residency case. That is not to place process and method over result. It is to give to method greater attention than it has recently received, at least where choices of "method" are themselves decisions as to the constitutionally proper orbits of the coordinate branches of government. See Judge Johnson's dissent in Hadnott v. Amos, 320 F. Supp. 107 (M.D.Ala.1976).
It is doubtful that the Texas statute could pass a test of strict scrutiny; it is *838 equally doubtful that it would fail a rational purpose test, at least where that test tolerated any judicially hypothesized purpose.
Arguably, candidacy is so intertwined with voting that an entrenchment of candidacy equally impacts voting; that state intrusions into candidacy should have no more range than similar intrusions into voting; that a residency requirement can amount to a penalty for the exercise of a constitutionally protected right of travel. But it is not (at least ought not to be) necessary to choose between the Scylla of adding to the list of fundamental interests[6] and the Charybdis of the traditionalist standard of review. Indisputably, the State of Texas has intruded into a constitutionally sensitive area, laced with the penumbrae of protected associational conduct as voting, travel and the mechanistic heart of government, candidacy. The judiciary ought to give notice that the area, is in fact, sensitive. Though a fundamental interest is not directly hit and a wholly suspect criterion is not used, state intrusions into this milieu ought to be measured by objective and exacting standards. Whether that standard be an inquiry into the means chosen to achieve the ends, with implicit review of less intrusive legislative alternatives, or relationship between presumption and fact, these cases ought not be dispatched in successive waves of summary affirmances, with little examination of underlying principles.[7] This standard will not be achieved by epigrammatic formulation but by the accretion-like by-product of case by case analysis.
In sum, while we are bound by the result in City of Deerfield, Sununu and Chimento, we believe with all deference that the opinion in City of Deerfield, virtually compelled by the Supreme Court's view of summary affirmance, demonstrates the force of Justice Brennan's dissent from the denial of certiorari in Colorado Springs Amusements, Ltd. v. Rizzo, ___ U.S. ___, 96 S. Ct. 3228, 49 L. Ed. 2d 1222 (1976). The result is a by-passing of more steely inquiries by lower courts engaged in the supportive role of distillation, a process better calculated to evolve a meaningful standard which reaches results with reason, not by categorization.
The parties will submit a proposed form of judgment consistent with this opinion.
NOTES
[1] "No person shall be eligible to be a candidate for, or to be elected or appointed to, any public elective office in this state unless ... he will have resided in this state for a period of 12 months next preceding the applicable date specified below, and for any public office which is less than statewide, shall have resided for six months next preceding such date in the district, county, precinct, municipality or other political subdivision for which the office is to be filled ...." V.A.T.S., Election Code, Art. 1.05.
[2] The seven-year residence requirement referred to was in Sununu v. Stark, 383 F. Supp. 1287 (D.N.H.1974), aff'd mem. 420 U.S. 958, 95 S. Ct. 1346, 43 L. Ed. 2d 435 (1975).
[3] This view, however, travels in a different direction from Judge Wisdom's observation in Brown v. Liberty Loan Corp. of Duval, 539 F.2d 1355 (5th Cir. 1975).
"The appellant also urges that the Supreme Court's summary affirmance in Moya v. DeBaca, 1969, 395 U.S. 825, 89 S. Ct. 2136, 23 L. Ed. 2d 740, aff'g, D.N.M.1968, 286 F. Supp. 606, requires reversal of the district court's holding in this case. Although the Moya issue is virtually identical to the one we face here, summary affirmances by the Supreme Court may not create binding precedents. ..." Id. 1363 n.5.
[4] The same issues would still be presented by a dismissal of an appeal by the Supreme Court for "want of a substantial federal question." See Howell v. Jones, 516 F.2d 53 (5th Cir. 1975).
[5] See Hicks v. Miranda, 422 U.S. 332, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975). See also, Eaton v. Price, 360 U.S. 246, 247, 79 S. Ct. 978, 3 L. Ed. 2d 1200; Colorado Springs Amusements, Ltd. v. Rizzo, 524 F.2d 571, cert. den. ___ U.S. ___, 96 S. Ct. 3228, 49 L. Ed. 2d 1222 (1976). But see J. Brennan, dissenting: "There is reason for concern that Hicks will impair this court's ability indeed responsibility to adjudicate important constitutional issues". Id. at 3229.
[6] Inherent in this lock-step methodology is that categorizing interests as fundamental or criterion as suspect inevitably requires either illogical and gossamer thin distinctions or results originally unforeseen and when seen in the stress of later cases, unintended; a classic example of "The Tyranny of Tags and Tickets", Cardozo, Mr. Justice Holmes, 44 Harv.L.Rev. 682, 688 (1931). One could argue from the cases that whatever led to the royalty status of fundamental interest and suspect criterion, the palace gate is now closed and no more will be recognized. Such a circumstance is almost predictable given the rigidity of this analytical approach.
[7] Nor should the courts overlook examination of the controlling force of a summary affirmance. As the Supreme Court itself noted: "... ascertaining the reach and content of summary actions may itself present issues of real substance, ..." Hicks v. Miranda, 422 U.S. at 345 n. 14, 95 S. Ct. at 2290. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393367/ | 109 N.H. 317 (1969)
PAUL SMITH
v.
THOMAS F. O'BRIEN, Sheriff.
No. 5775.
Supreme Court of New Hampshire.
Submitted March 5, 1969.
Decided March 20, 1969.
Richard W. Leonard, for the plaintiff.
George S. Pappagianis, Attorney General and David H. Souter, Assistant Attorney General, for the defendant.
DUNCAN, J.
The plaintiff's petition for habeas corpus alleges that he has been "deprived . . . from the benefit of a probable cause hearing, a record of the same and the right to show his innocence of the crime charged." His brief asserts that he has a constitutional and statutory right to a probable cause hearing which was violated when a "secret indictment" was obtained before such a hearing was held.
The petition arises out of the following circumstances. The plaintiff was arrested on December 31, 1967, and charged with breaking, entering, and larceny, under RSA 583:3. He appeared before the Nashua district court on January 2, 1968 and the preliminary hearing was continued to January 8, 1968, in part because he was without counsel. See RSA 596-A:1, 3 (supp). On January 3, 1968 he was indicted for the same offense. The *318 proceedings in the district court were thereafter discontinued, and no preliminary hearing has been held. However on January 8, 1968 the plaintiff herein filed this petition, seeking his release, and dismissal of the indictment.
Upon hearing, the Superior Court (Dunfey, J.) denied the request to dismiss the indictment, subject to the plaintiff's exception. The questions of law thereby presented were reserved and transferred by the Presiding Justice.
As this court has recently had occasion to observe, the purpose of a preliminary hearing in this jurisdiction is "to determine that an offense has been committed and that there is probable cause to believe the defendant has committed it." State ex rel McLetchie v. Laconia District Court, 106 N. H. 48, 50. The hearing is not a judicial trial of the issue of guilt or innocence, a question which the district court has no jurisdiction to determine. Id; RSA 502-A:11, 13; 596-A:7 (supp). Hence that court is not called upon to reconcile any conflicting testimony, or judge the credibility of witnesses. See People v. McKee, 73 Cal. Rptr. 112, 116.
The plaintiff calls attention to the provisions of RSA 594:20-a (supp), 23 and RSA 596-A:2 (supp) and argues that the probable cause hearing "is the best weapon that the defendant will ever have to prepare a defense to a felony." He urges that postponement of such a hearing in order to obtain an indictment is deceitful, unjust, and a denial of due process.
Contrary to the implications of the plaintiff's argument, the preliminary hearing is not provided for the purpose of affording the accused an opportunity for discovery. Sciortino v. Zampano, 385 F.2d 132 (2d Cir. 1967), cert den. 390 U.S. 906; United States v. Amabile, 395 F.2d 47, 53-54 (7th Cir. 1968); Foster v. Commonwealth, (Va.) 163 S.E.2d 565. See State v. Myal, 104 N. H. 188; Arlen v. Keene District Court, 109 N. H. 331. Its purpose is to determine whether probable cause exists for his detention pending grand jury action. State v. Chase, 109 N. H. 296. If the grand jury indicts before the hearing is held, the occasion for a hearing no longer exists. State v. Jackson, 43 N. J. 148, 165; State v. Singleton, (La.) 215 So. 2d 838, 840. The accused is thereafter detained to answer to the indictment.
No authority has been cited to support the view that an indictment is invalid unless preceded by prior arrest and a probable cause hearing. To the contrary, ample authority sustains the *319 proposition that an accused has no constitutional right that a preliminary hearing shall precede indictment. Hale v. Henkel, 201 U.S. 43; United States ex rel Kassin v. Mulligan, 295 U.S. 396. See also, Jaben v. United States, 381 U.S. 214, 220; State v. Jackson, supra; State v. Stallings, 25 Conn. Supp. 386, aff'd., 154 Conn. 272.
Dismissal of the indictment was properly denied. Foster v. Commonwealth (Va.) 163 S.E.2d 565, supra; State v. Stallings, supra; State v. War, 38 N. J. Super. 201. There was no denial of due process in the circumstance that the indictment superceded the proceedings in the district court before the preliminary hearing could be held. State v. Jackson, supra.
Exception overruled; petition denied.
LAMPRON, J., did not sit; the others concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562022/ | 16 So.3d 182 (2009)
LAKE CHARLESTON MAINTENANCE ASSOCIATION, INC., Appellant,
v.
Colleen E. FARRELL, Appellee.
No. 4D08-306.
District Court of Appeal of Florida, Fourth District.
August 5, 2009.
Keith F. Backer of Backer Law Firm, P.A., Boca Raton, for appellant.
Steven H. Meyer of Steven H. Meyer, P.A., Boca Raton, for appellee.
DAMOORGIAN, J.
Lake Charleston Maintenance Association, Inc. (the Association) appeals the trial court's order granting Colleen Farrell's motion for an involuntary dismissal in a non-jury trial. We reverse, holding that the Association submitted sufficient evidence to make a prima facie case thus precluding the trial court from granting an involuntary dismissal under Florida Rule of Civil Procedure 1.420(b).
A recitation of the evidence adduced during the Association's case is necessary. Farrell is a homeowner in the homeowner's association known as Lake Charleston. Lake Charleston consists of approximately 2,366 single-family homes. The Association operates and represents Lake Charleston, as well as twenty-seven other sub-associations in the Lake Charleston community.
*183 The community is subject to and governed by its governing documents, which section 720.301(8), Florida Statutes (2006), defines as: (a) the recorded Declaration of Covenants (the Declaration), and (b) the Articles of Incorporation and Bylaws of the Association. The Declaration provides for the creation of the Development Review Board (DRB), charged with approving architectural improvements or changes in the subdivision. Section 2, Article X of the Declaration provides, in pertinent part:
no building, fence, wall, or other structure or improvement ... shall be commenced, altered, removed, painted, erected or maintained in the The Properties, nor shall any addition, removal, change or alteration (including paint or exterior finishing) visible from the exterior of any Unit be made ... until the plans and specifications showing the nature, kind, shape, height, materials and location of the same shall have been submitted to, and approved in writing by, the DRB.... The DRB shall approve proposals or plans and specifications submitted for its approval only if it deems that the construction, alteration, removal or addition contemplated thereby in the location(s) indicated will not be detrimental to the appearance of Lake Charleston as a whole, and that the appearance of any structure affected thereby will be in harmony with the surrounding structures and is otherwise desirable.... Until receipt by the DRB of any required plans and specifications, the DRB may postpone review of any plans submitted for approval. Upon such receipt, the DRB shall have thirty (30) days in which to accept or reject any proposed plans and if the DRB does not reject same within such period, said plans shall be deemed approved. The DRB herein shall be the ultimate deciding body and its decisions shall take precedence over all others.
(emphasis added). Section 1, Article VII, provides that "[e]ach owner shall repaint, restain, or refinish, as appropriate, the exterior portions of his Unit or Building (with the same colors and materials as initially used or approved by Developer and/or the DRB)." (emphasis added). Article XIII, Section 8 provides that when the Board's approval is required, the Board may, in its sole and absolute discretion, withhold such approval.
The Declaration also mandates the composition of the DRB. It states in pertinent part:
The DRB shall initially consist of three (3) members. The initial members of the DRB shall consist of persons designated by the Developer.... Thereafter, each new member of the DRB shall be appointed by the Board of Directors of the Association and shall hold office until such time as he has resigned or has been removed or his successor has been appointed....
Prior to January, 2005, the Board of Directors (the Board) had to serve as the DRB. When new members joined the Board the following month, it decided to form a separate DRB. During a meeting, the Board appointed three individuals Wayne Grattan, Don Miller, and Paul Siegelto serve on the DRB. The appointment of these individuals was discussed at the meeting, and a motion was made and seconded. Through a unanimous vote, the Board appointed them to the DRB. These actions are reflected in the minutes from the meeting. The regulations also provide that the vote of any two members of the DRB shall constitute an act of the DRB.
On May 26, 2005, Farrell submitted an application to the DRB requesting permission to repaint her house in "Sage Green/Halcyon Green." DRB members, Aida Ricetti and Jeanne Kelley, reviewed *184 and denied the application on June 1, 2005.[1] Nothing was sent to Farrell informing her that her application was denied. Instead, she received a letter dated June 3, 2005, stating that her application was "pending." The letter also requested that she provide a "[p]icture of the house" and "color swatches for the body and trim (no greens)."
A short while later, Farrell observed signs noticing that the DRB was going to hold a meeting on June 8, 2005. Farrell decided to attend the meeting. At that meeting, Farrell was shown the application that she submitted earlier marked denied. The DRB informed her that they were not going to take any additional action on the application. She then took back her original application and "left very angry." A couple of weeks later, she painted her house in the color she originally submitted in her application.
Approximately six months after she painted her house, she received a letter from the Association's attorney instructing her to resubmit her application in a DRB approved color. When she failed to do so, the attorney sent her a demand to compel mediation pursuant to section 720.311, Florida Statutes. Farrell failed to participate in the mediation, and the Association filed this suit. The Association alleged that Farrell painted her house without first obtaining the DRB's written approval. Farrell argued the affirmative defenses of waiver and estoppel. The case proceeded to a non-jury trial. At the conclusion of the Association's case, Farrell moved for an involuntary dismissal, arguing, in part, that there was no evidence that a properly comprised DRB took action on the application within the thirty-day period. The Association responded that the proper composure of the DRB was an affirmative defense and alternatively, there was evidence establishing the DRB was properly composed. Following argument on the motion, the trial court granted the motion, stating that the Association failed to present a prima facie case.
On appeal, the Association contends that the trial court erred in granting the motion for involuntary dismissal because Farrell never obtained written approval to repaint her house in the proposed color. The Association further contends that it was not required to prove, as part of its prima facie case, that the DRB was properly constituted or that Farrell's paint colors were inconsistent with the community's scheme. But even if it was, the Association contends that there was evidence that the DRB was properly composed and that the colors were inconsistent with the community's scheme. Alternatively, the Association argues that the evidence established that Farrell withdrew her application, thus preventing the Association from taking action on it within the thirty-day period. Finding that Farrell was required to prove that the DRB was properly constituted, we write to address whether the Association set forth a prima facie case that Farrell painted her house in violation of the restrictive covenants.
"After a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief...." Fla. R. Civ. P. 1.420(b) (emphasis added); see Tillman v. Baskin, 242 So.2d 748, 748 n. 1 (Fla. 4th DCA 1971), rev'd in part on other grounds, 260 So.2d 509-10 (Fla.1972) (noting that a court may, *185 in a non-jury trial, enter judgment for the defendant if it finds that the "plaintiff's case is insufficient to merit judgment"). "The court as trier of the facts may then determine them and render judgment against the party seeking affirmative relief or may decline to render judgment until the close of all the evidence." Fla. R. Civ. P. 1.420(b). "[I]f the trial judge sitting without a jury concludes that upon the facts and the applicable law the plaintiff has shown no right to relief, then his order dismissing the plaintiff's cause should be affirmed unless clearly erroneous." Lorber v. Aetna Life Ins. Co., 207 So.2d 305, 308 (Fla. 3d DCA 1968). But where the plaintiff "presented a prima facie case based on unimpeached evidence ... the trial judge should not grant the motion even though he is the trier of the facts and may not himself feel at that point in the trial that the plaintiff has sustained his burden of proof." Tillman, 260 So.2d at 511 (citing Rogge v. Weaver, 368 P.2d 810, 813 (Alaska 1962)).[2]
At the close of the Association's case, the unimpeached evidence established that Farrell painted her house in violation of the restrictive covenants. The evidence established that Farrell applied for approval to paint her house certain shades of green, and within the thirty-day period, two DRB committee members denied her application. She was informed of this decision when she attended the June 8 DRB meeting. After the DRB informed Farrell that it was not going to change its decision, she took her application and "left very angry." Farrell then painted her house in the colors submitted in her application. Because the unimpeached evidence established a prima facie case that Farrell painted her house without DRB approval, the trial court improperly granted an involuntary dismissal at the close of the Association's case.
We find no merit to Farrell's contention that because there was nothing in the minutes to indicate that Ricetti and Kelley were appointed by the Board to the DRB, the Association failed to set forth a prima facie case that the DRB was properly constituted. The mere fact that the official meeting minutes do not contain the approval of Ricetti and Kelley does not prove that the Board did not appoint them to the DRB. See Wimbledon Townhouse Condo. I, Ass'n v. Wolfson, 510 So.2d 1106, 1108-09 (Fla. 4th DCA 1987) (quoting Redstone v. Redstone Lumber & Supply Co., 101 Fla. 226, 133 So. 882, 883 (1931)) ("Failure of the board of directors of a corporation to record their actions will not affect the validity of the acts done by them."). Actions taken at the meeting may be proved by parol evidence if minutes are not kept or are incomplete. Redstone, 133 So. at 884. Here, the June 1 DRB meeting minutes list Ricetti and Kelley as new DRB members, and Grattan testified that the Board indemnified them to be on the DRB. Therefore, there was evidence from which the fact finder could find that the DRB was regularly constituted. Because we find that there was evidence showing that the DRB was properly constituted, we need not address whether Farrell withdrew her application at the June 8 DRB meeting.
Accordingly, we reverse and remand this case for further proceedings consistent with our decision. In the interests of judicial economy, we suggest that because this is a non-jury trial, the trial may commence from the point at which the dismissal *186 was granted, if the same trial judge is available to hear it.
Reversed.
WARNER and STEVENSON, JJ., concur.
NOTES
[1] Although it is unclear from the June 1 meeting minutes whether Ricetti and Kelley were properly appointed to the DRB, they are listed as new DRB members in the minutes.
[2] While it would seem far more efficient for the trial judge to go ahead and rule on the plaintiff's case, as is allowed in the federal courts, we do not have the option of rejecting the supreme court's direct holding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561990/ | 16 So. 3d 135 (2009)
CLARKE
v.
STATE.
No. 2D08-3471.
District Court of Appeal of Florida, Second District.
July 8, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1561997/ | 69 F.2d 254 (1934)
GLASER et al.
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 9776.
Circuit Court of Appeals, Eighth Circuit.
February 19, 1934.
Rehearing Denied March 16, 1934.
*255 Abraham B. Frey and Abraham Lowenhaupt, both of St. Louis, Mo. (Karol A. Korngold, of St. Louis, Mo., on the brief), for petitioners.
John MacC. Hudson, Sp. Asst. Atty. Gen. (Sewall Key, Sp. Asst. to Atty. Gen., on the brief), for respondent.
Before GARDNER, WOODROUGH, and BOOTH, Circuit Judges.
WOODROUGH, Circuit Judge.
This appeal is brought by the executors of the estate of David Sommers, deceased, from a decision of the Board of Tax Appeals refusing to allow a deduction from the gross estate for inheritance tax (27 B. T. A. 313). The facts found by the Board of Tax Appeals material to the issue on appeal are as follows: David Sommers in his lifetime was an annual contributor to the Jewish Federation, which numbered among its charities the Dorothy Drey Sommers Shelter Home, a corporation organized solely for charitable purposes. In 1916 Mr. Sommers made his will wherein he bequeathed $35,000 to the Shelter Home. In 1923, at a mass meeting of the Jewish Federation, Mr. Sommers promised that he would assume all of the expenses of the Home in lieu of his usual subscription to the Federation of $5,000 per annum. His proposal was accepted, the subscription to the Federation canceled, and the Shelter Home was "thereafter omitted from the Federation's budget." Afterwards Mr. Sommers, in statements to his friends and relatives and to directors of the Federation, promised that he would support the Shelter Home and would provide for its support after his death. In 1923 he was president of the Shelter Home and secured a new matron for it, a Mrs. Waldman. To induce her to give up the position she then held and become matron of the Shelter Home, Mr. Sommers promised her that he would take care of the Home financially while he lived and after his death as well. In 1925 Mr. Sommers told his attorney that he wished to change his will and to leave $250,000 or more to the Shelter Home. That was never done, however, and Mr. Sommers died suddenly in December of 1925. After his death there was found in an envelope containing his will a memorandum in his handwriting, but not dated or signed, which contained the following: "Article 2. Change to $250,000 $50,000 for a building balance. The income on this 50 m to be reinvested and not spent. $200,000 a trust fund to furnish permanent income." The probate court acting upon a petition filed by the executors of Mr. Sommers' will and upon written request of the "sisters and brothers of the deceased who are the only ones interested in the estate," found that it was the intention of the deceased to leave $250,000 to the Dorothy Drey Sommers Shelter Home, and authorized the executors to pay that amount to the proper officers of the Home, which was done. The Commissioner allowed a deduction from the amount of the gross estate for purposes of the estate tax in the amount of the $35,000 bequest but refused to allow as a deduction the balance of the $250,000 which had been paid over to the Home. Notice of deficiency having been given an appeal was taken to the Board of Tax Appeals, and it affirmed the finding of the Commissioner.
The contention for the executors is that the Shelter Home had a claim against the estate of the decedent "incurred or contracted bona fide and for a fair consideration in money or money's worth," within the meaning of section 303 (a) (1) of the Revenue Act of 1924, 26 USCA § 1095 note, which provides:
"For the purpose of the tax the value of the net estate shall be determined
"(a) In the case of a resident, by deducting from the value of the gross estate
"(1) Such amounts for funeral expenses, administration expenses, claims against the estate, unpaid mortgages upon, or any indebtedness in respect to, property, * * * to the extent that such claims, mortgages, or indebtedness were incurred or contracted bona fide and for an adequate and full consideration in money or money's worth * * *."
It is argued that on the facts found, Mr. Sommers made a binding contract for fair consideration in money or money's worth with the Federation of Jewish Charities to take care of the Shelter Home by his will and that the promise made by Mr. Sommers to Mrs. Ida Waldman that he would take care of said Home financially during his life and after his death by his will, upon which promise said Ida Waldman relied, was a contract for the benefit of the Home, enforceable by it.
There is no disputing the strength of the moral appeal in the claim for deduction. The executors of the estate have turned over the whole sum of $250,000 to the charity, the heirs consenting, and the burden of the tax in addition seems onerous; but the production of governmental revenue by the force of lawful *256 taxation is not controlled by such considerations. The amount paid out of the estate of the deceased to the Shelter Home is taxable under the statute as a part of the gross estate and cannot be deducted unless it comes within the provision of the statute prescribing the deductions which can be made.
The Board of Tax Appeals decided that neither the promise which was given by Mr. Sommers to the Federation of Jewish Charities nor the promise made to Mrs. Ida Waldman on which she relied when she became matron of the Home, nor any other statement or declaration of Mr. Sommers, was sufficient in law to create a cause of action in favor of the Shelter Home against the estate of Mr. Sommers, and that the Shelter Home did not have any valid claim against the estate for the amount. In view of the conclusion we have reached upon the proper construction of the sections of the statute in question, we do not deem it necessary to decide that point.
In our opinion whether there was an enforceable claim in favor of the Home and against the estate resulting from the promise of Mr. Sommers or not, there was not, in any event, such a claim "contracted bona fide for fair consideration in money or money's worth" within the meaning of the quoted deduction clause of the statute. The interpretation of the statute made by the court of appeals of the Sixth Circuit in the case of Latty v. Commissioner, 62 F.(2d) 952, 954, appears to us to be sound and controlling against the appellant. The court, said: "We think that ordinarily these words (contracted bona fide and for fair consideration in money or money's worth) must be construed to evidence an intent upon the part of Congress to permit the deduction of claims only to the extent that such claims were contracted for a consideration which at the time either augmented the estate of the decedent, granted to him some right or privilege he did not possess before, or operated to discharge a then existing claim, as for breach of contract or personal injury." The interpretation was arrived at upon full consideration of the previous decisions in the Sixth Circuit, Briscoe v. Craig, 32 F.(2d) 40, the Second Circuit, Schuette v. Bowers, 40 F.(2d) 208, and this circuit, Jacobs v. Commissioner, 34 F.(2d) 233, and applied to the facts in this case, precludes allowance of deduction on account of the $250,000 bounty which, doubtless, Mr. Sommers had an intention to bestow upon the Home but neither transferred nor bequeathed to it.
It is argued for the executors that in the case of Latty, supra, the court did not have before it exactly the same state of facts upon which to make application of the statute as is here presented in that no charitable institution was there concerned. In that case the bounty of the decedent was directed towards his daughter and not to a charity. But the claim for deduction was there made upon the same subdivision of the same statute as is relied on by the executors in this case, and the court was required, in order to decide the dispute, to declare the true meaning of the statute. There are no words in the subdivision to justify contention that the meaning of a claim "contracted bona fide for fair consideration in money or money's worth" is any different when the claim accrues to a charitable institution from what it is when the same kind of a claim accrues to a daughter. The words of the statute have the same meaning in either case.
It is argued that the decision of the court in the Second Circuit in Porter v. Commissioner, 60 F.(2d) 673, 675, would justify a different interpretation of the statute. In that case the executors of a decedent's estate paid to Princeton University the sum of $5,000 as a balance due upon a subscription of $25,000 made by the decedent during his lifetime for the purpose of erecting a memorial window in memory of decedent's son who lost his life in the World War. The University, in reliance upon the subscription, performed the condition. It appears from the court's opinion that the decision of the Board of Tax Appeals disallowing the deduction claimed by the executors for the $5,000 was not sustained by the Court of Appeals. The court seems to have been of the opinion that the deduction was allowable under section 303 (a) (3) of the Revenue Act of 1926, 26 US CA § 1095 (a) (3). That section provides that there shall be deducted from the gross estate of a decedent in determining the net estate subject to the, estate tax, the following: "The amount of all bequests, legacies, devises, or transfers * * * to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes * * * no part of the net earnings of which inures to the benefit of any private stockholder or individual." The court took judicial notice of the fact that Princeton University was "organized and operated exclusively for educational purposes." There was apparently no consideration given to the question whether the subscription made by the decedent to the University amounted to a "transfer" *257 within the meaning of the statute. The promises made by Mr. Sommers in this case cannot by any reasonable persuasion be brought within the meaning of "bequests, legacies, devises or transfers" covered by this section of the statute, and this part of the decision of the Court of Appeals of the Second Circuit does not aid the petitioners herein.
Another payment made by executors was also considered by the court in the same case of Porter v. Commissioner. The decedent in that case had subscribed the sum of $12,000 to a hospital in Glen Cove, Long Island, for the building of an X-ray room as a memorial for his son, and the hospital had incurred obligations on the faith of the subscription. The executors paid a balance of six thousand on that item and relied on section 303 (a) (1) to justify deduction, being the same section now before us for interpretation. The court said: "The executors invoke section 303 (a) (1), 26 USCA § 1095 (a) (1), which allows a deduction of `claims against the estate * * * to the extent that such claims * * * were incurred or contracted bona fide and for an adequate and full consideration in money or money's worth.' That the testator's promise created a valid contract nobody denies; `promissory estoppel' is now a recognized species of consideration (Restatement of Contracts, § 90); indeed, the doctrine first gained currency in cases like those before us. But the section was certainly not intended to include all contracts supported by a consideration; so much is clear. We need not limit it to cases where the consideration passes to the testator; for example, a promise to pay for goods delivered to another might fall within it, if the testator has recourse over. But if he has not, the transaction is in substance a gift and must stand or fall within section 303 (a) (3). So here, though the testator was bound by his promise, what in fact be did was to give to the hospital a memorial to his son; it was not a financial bargain at all, and subdivision 1 is concerned with such. Had he delivered to it a bond under seal in a state where the common law still persists, the claim would hardly have been incurred for `full consideration in money or money's worth'; though the purpose were to use the proceeds to add to its equipment. The statute cannot have meant to make critical the accident that the hospital, by acting upon the promise, fastened a debt upon the estate. So to construe the language is to confuse the purposes of the two subdivisions." The action of the Board of Tax Appeals denying the claim for deduction as to this item was sustained.
We think this language of the Court of Appeals in the Second Circuit, written apparently without attention being called to the opinion in Latty v. Commissioner, is of substantially the same intendment as that used by the Court of Appeals in the Sixth Circuit. It is the clear understanding in both circuits that section 303 (a) (1) does not justify making deduction from the gross estate in a case like the one presented here, where there was not a business transaction on the part of the decedent or a contract intended to augment his estate or to grant him some right or privilege he did not possess before or to discharge him from any existing obligation, but only a contemplated bounty was involved.
It is argued that the case for deduction is strengthened by the fact that Mr. Sommers was president of the Shelter Home Corporation at the time he made the promises above recited, but we do not find merit in the contention.
The decision of the Board of Tax Appeals is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2202600/ | 446 B.R. 531 (2011)
In re Felicia A. SANCHEZ, Debtor.
In re Mary Pat Norfolk, Debtor.
In re Hannelore Harlan, Debtor.
In re Theodore Alex Chacon and Lorene Marie Chacon, Debtors.
In re Kathleen A. Booky, Debtor.
In re Jolene C. Dickey, Debtor.
In re Leon Mares, Debtor.
United States Trustee, Plaintiff,
v.
Timothy McIntire d/b/a The Bankruptcy Store, LLC, Defendant.
Bankruptcy Nos. 10-10168-s7, 09-14833-s7, 09-15785-j7, 10-10015-s7, 10-10173-j7, 10-12446-j7, 10-11100-j7. Adversary Nos. 10-1059 J, 10-1064 J, 10-1063 J, 10-1065J, 10-1060J, 10-1111J, 10-1112J.
United States Bankruptcy Court, D. New Mexico.
February 28, 2011.
*533 Leonard K. Martinez-Metzgar, Albuquerque, NM, for Plaintiff.
Timothy McIntire, Albuquerque, NM, pro se.
MEMORANDUM OPINION
ROBERT H. JACOBVITZ, Bankruptcy Judge.
THIS MATTER is before the Court following a trial on the merits of these consolidated *534 adversary proceedings. Plaintiff asserts that Defendant Timothy McIntire d/b/a The Bankruptcy Store, LLC ("Defendant" or Mr. McIntire)[1] is a bankruptcy petition preparer within the meaning of 11 U.S.C. § 110(a)(1) and that Defendant violated the provisions of 11 U.S.C. § 110 by impermissibly giving legal advice to his clients in connection with preparing their bankruptcy petitions, statements and schedules in exchange for a fee of $395.00.[2] Plaintiff requests the Court to impose fines against Defendant for each violation, assess damages against Defendant for fraudulent, unfair, or deceptive practices, order Defendant to return to the debtors all fees paid in exchange for Defendant's services, and permanently enjoin Defendant, or any person or entity acting in concert with Defendant, from acting as a bankruptcy petition preparer in accordance with 11 U.S.C. § 110(j)(2)(B) and from soliciting, assisting, advising or providing legal guidance, advice, assistance or consultation of any kind to any person in connection with filing a bankruptcy case whether for a fee or without charge. Alternatively, Plaintiff requests that a preliminary and permanent injunction be issued against Defendant Timothy McIntire enjoining him or any person acting in concert with Defendant Timothy McIntire from engaging in any conduct that violates 11 U.S.C. § 110. At the trial held January 25, 2011, Plaintiff appeared through Leonard Martinez-Metzgar. Defendant failed to appear.
After careful consideration of the evidence presented at trial, and being otherwise sufficiently informed, the Court finds that Defendant is a bankruptcy petition preparer as defined under the Bankruptcy Code and that he consistently and impermissibly engaged in the practice of law in preparing bankruptcy petitions, statements, and schedules for his clients in exchange for a fee. Consequently, the Court will impose fines and order the disgorgement of fees consistent with 11 U.S.C. § 110. The Court will also issue an injunction enjoining Timothy McIntire, or any person or entity acting in concert with him, from offering a potential bankruptcy debtor any legal advice in violation of 11 U.S.C. § 110(e)(2). However, because there is insufficient evidence before the Court from which the Court can conclude at this stage in the proceedings that an injunction prohibiting further conduct will be insufficient to deter Defendant's continued violations of 11 U.S.C. § 110, the Court declines at this time to issue an injunction that prohibits Defendant from acting as a bankruptcy petition preparer.
BACKGROUND AND FINDINGS OF FACT
Six former clients who obtained services from the Defendant testified at trial. Plaintiff offered affidavit testimony from a seventh client who was unavailable to testify in person. The testimony of all seven clients was generally the same. The clients got the name of The Bankruptcy Store from the phone book, from an advertisement in a newspaper, or from an advertisement on the internet, and made an appointment. Each client typically had three or four meetings at The Bankruptcy Store. At the first meeting, a cash payment for services was required, and the *535 clients would obtain a questionnaire to take home and complete.[3] At the second meeting, the clients would return the completed questionnaire and bring with them documentation of other bills and income. At the third meeting, Defendant would provide the clients with the completed bankruptcy petition, statements and schedules, and tell the clients to file the paperwork with the Bankruptcy Court. A fourth meeting was sometimes required if corrections were needed based upon paperwork provided by the client at the third meeting.
None of the clients who testified knew the meaning of state or federal exemptions, and none made a conscious decision to elect or claim exemptions under state law rather than under 11 U.S.C. § 522(d). Yet, each of the clients had a completed Schedule C filed in their bankruptcy case which elected and claimed state law exemptions. Further, none of the clients understood the meaning of the presumption of abuse under 11 U.S.C. § 707(b)(2), yet each Form B22A reflected a check in the box indicating that the presumption of abuse did not arise. The clients each paid $395.00 for the services they obtained. Each petition reflects that the name of the bankruptcy petition preparer is "The Bankruptcy Store LLC Tim McIntire" and bears the signature of Timothy McIntire. See Exhibits 3, 8, 16, 24, 3, 35, and 40. There is no evidence that Timothy McIntire is a licensed attorney authorized to practice law in the State of New Mexico.
Because the specific circumstances concerning each client who testified were slightly different, the Court will also make separate findings specific to each debtor.
Mary Norfolk
Mary Norfolk testified that she went to The Bankruptcy Store and met with Pamela Brown. At the time Ms. Norfolk filed for bankruptcy, she owned a home that was the subject of a short sale. Ms. Norfolk testified that Ms. Brown advised her to omit her home from Schedule A. The original Schedule A filed in Ms. Norfolk's bankruptcy case did not reflect any property. At the meeting of creditors, the Chapter 7 trustee determined that Ms. Norfolk did, in fact, still own her home as of the petition date and directed her to file an Amended Schedule A. When Ms. Norfolk failed to timely file an Amended Schedule A, the Chapter 7 Trustee filed a motion to dismiss. Ms. Norfolk eventually obtained an amended Schedule A from Timothy McIntire at The Bankruptcy Store who charged her an additional $50.00 to complete the Amended Schedule A.
Jolene Dickey
Ms. Dickey sought bankruptcy relief because she was concerned about outstanding state and federal income taxes. Ms. Dickey testified that she met with Timothy McIntire at The Bankruptcy Store, and that he assured her that her past due taxes would be discharged through the bankruptcy. Mr. McIntire chose to list Ms. Dickey's tax liabilities on Schedule F, Non-Priority Unsecured Claims.
Leon Mares
Leon Mares did not testify because he was recovering from surgery at the time of the trial. His non-filing spouse, Kimberly Mares, who attended all of the meetings at The Bankruptcy Store, testified at trial. Ms. Mares testified that she and Mr. Mares went to The Bankruptcy Store three times: the first meeting was with Pamela Brown, and the second and third meetings were with Timothy McIntire.
Ms. Mares testified that Mr. McIntire advised her to reaffirm a debt secured by a Harley-Davidson motorcycle because her *536 name was also on the loan, advised her and her husband to file Chapter 7 rather than Chapter 13, assured them that their 2005 tax debt would be discharged, told them that the services they would receive would be the equivalent to those they could expect to receive from an attorney but at a greatly reduced cost, selected the state exemption scheme, and advised Ms. Mares to omit her income from Schedule I because she was a nonfiling spouse. Ms. Mares testified further that when she insisted that her income be reported on Schedule I, Mr.McIntire told her that it really made no difference what amounts were reported on Schedule I for her income because it was unnecessary to include income of a nonfiling spouse. Ms. Mares testified that although her gross income reported on Schedule I was essentially correct, the handwritten figures Mr. McIntire used on the schedule for her payroll deductions were not accurate.
Hannelore Harlan
Ms. Harlan testified that when she went to The Bankruptcy Store for assistance in completing her petition, statements and schedules, she met with Pamela Brown the first two times, and met with Mr. McIntire one time. Ms. Harlan testified that she does not know what an exemption is nor is she aware of the difference between state and federal exemptions.
Kathleen Booky
Ms. Booky testified that she had four meetings with The Bankruptcy Store. She testified that Mr. McIntire told her that her tax debts would be "dismissed" through the bankruptcy, and that she should file a petition under Chapter 7 of the Bankruptcy Code. Mr. McIntire determined where to list the tax claims in Ms. Booky's bankruptcy schedules.
Theodore Chacon
Mr. Chacon testified that he met with both Pamela Brown and Timothy McIntire, and that Mr. McIntire advised him to file for relief under Chapter 7 rather than under Chapter 13. Mr. Chacon also testified that after Mr. McIntire prepared the petition, statements and schedules based on the material Mr. Chacon provided in the completed questionnaire and documents that Mr. McIntire provided to him the first meeting, Mr. Chacon asked for certain corrections to the bankruptcy documents. The Bankruptcy Store made those corrections before Mr. Chacon filed the petition, statement of financial affairs, and schedules with the Bankruptcy Court. Mr. Chacon testified that Mr. McIntire told him that The Bankruptcy Store was providing "paralegal" services.
Felicia Sanchez
The deposition testimony of Felicia Sanchez reflects that she met with Timothy McIntire, that she asked Mr. McIntire to explain the difference between Chapter 7 and Chapter 13, that based on his explanation she decided Chapter 7 would be better, and that Mr. McIntire told her to check the box to reaffirm the debt on her Harley-Davidson motorcycle so that she could keep it. At the meeting of creditors, when asked about Schedule C and the state exemption statute, Ms. Sanchez did not have any idea what those numbers meant.
DISCUSSION
Defendant engaged in conduct that violates 11 U.S.C. § 110
The Bankruptcy Code defines bankruptcy petition preparers as follows:
a person, other than an attorney for the debtor or an employee of such attorney under the direct supervision of such attorney, who prepares for compensation a document for filing[.]
*537 11 U.S.C. § 110(a)(1).
"Document for filing" is further defined as
a petition or any other document prepared for filing by a debtor in a United States bankruptcy court or a United States district court in connection with a case under this title.
11 U.S.C. § 110(a)(2).
Based on the evidence before the Court it is clear that Timothy McIntire doing business as The Bankruptcy Store, LLC (regardless of whether The Bankruptcy Store is, in fact, a limited liability company or some other separate business entity)[4] is a bankruptcy petition preparer as that term is defined under the Bankruptcy Code. Mr. McIntire designated himself as the individual responsible for the bankruptcy petition preparer's preparation of the petitions, schedules, and statements of financial affairs filed by the debtors in each of the chapter 7 cases. He designated himself as well as The Bankruptcy Store LLC as the bankruptcy petition preparer on each of the petitions for relief filed to commence the chapter 7 cases, and included his social security number on each petition. Further, Mr. McIntire was not acting under the direct supervision of a licensed attorney. The evidence before the Court further establishes that Pamela Brown also worked in the offices of The Bankruptcy Store for some period of time and met with some of the debtor clients at some of the scheduled meetings. To the extent Ms. Brown made representations to the clients which were adopted as part of the bankruptcy petition, statements and schedules prepared by The Bankruptcy Store, such representations are likewise attributable to Mr. McIntire. His name is reflected as the bankruptcy petition preparer on the petitions filed for the clients that testified in this adversary proceeding, and he signed each petition on behalf of "The Bankruptcy Store LLC Tim McIntire" as Timothy McIntire.
Among the conduct proscribed by 11 U.S.C. § 110 is offering legal advice by a bankruptcy petition preparer to potential bankruptcy debtors. 11 U.S.C. § 110(e)(2)(A). "Legal advice" within the meaning of 11 U.S.C. § 110(e)(2) includes advising the debtor:
(i) whether
(I) to file a petition under this title; or
(II) commencing a case under chapter 7, 11, 12, or 13 is appropriate;
*538 (ii) whether the debtor's debts will be discharged in a case under this title;
(iii) whether the debtor will be able to retain the debtor's home, car, or other property after commencing a case under this title;
(iv) concerning
(I) the tax consequences of a case brought under this title; or
(II) the dischargeability of tax claims;
(v) whether the debtor may or should promise to repay debts to a creditor or enter into a reaffirmation agreement with a creditor to reaffirm a debt;
(vi) concerning how to characterize the nature of the debtor's interests in property or the debtor's debts; or
(vii) concerning bankruptcy procedures and rights.
11 U.S.C. § 110(e)(2).
This list of examples is not exhaustive, but merely illustrative of the types of conduct that, if offered by a bankruptcy petition preparer, constitutes impermissible legal advice.[5] Further, "[t]he prohibition on giving advice, `concerning bankruptcy procedures and rights' is extraordinarily broad[ ]" and covers "[v]irtually any exercise of discretion about what to include or not include in the bankruptcy documents." Hennerman, 351 B.R. at 151-152 (quoting 11 U.S.C. § 110(e)(2)(B)(vii)). Advising clients which exemption scheme to elect, or making the decision on behalf of the debtor to elect federal or state exemption statutes, constitutes impermissible legal advice under 11 U.S.C. § 110(e)(2).[6]
The evidence presented demonstrates that Mr. McIntire violated 11 U.S.C. § 110(e)(2) numerous times. It appears that the Defendant used a pre-packaged bankruptcy program that completed Schedule C by selecting state law exemptions as the default, and automatically applied those exemptions to the debtor's assets based on raw data input into the program that each debtor had supplied by completing a questionnaire. Even if Defendant used a pre-packaged bankruptcy program in that manner, such use constitutes the exercise of legal judgment and the rendition of legal advice.[7] A legal *539 judgment is inherent in electing to use the software's state law default exemption choice because it necessarily means that a decision was made not to change the default setting or the manner in which the computer program applied the state law exemption scheme to a particular debtor's assets.
Here, each debtor signed the Schedules, which included Schedule C, without any understanding of what exemptions were claimed and without any conscious decision on their part to claim those exemptions. They relied on Defendant's choices of what exemptions should be claimed.
Mr. McIntire also advised three of the debtors who testified at trial that their taxes would be discharged through the bankruptcy, advised at least two of the debtors who testified at trial that they should choose to commence a case under Chapter 7 rather than under Chapter 13, and advised Ms. Mares, a nonfiling spouse, to enter into a reaffirmation agreement because she was a cosigner with her husband on the loan secured by a motorcycle. Each of these incidents constitutes the offering of legal advice in violation of 11 U.S.C. § 110(e)(2).
The Trustee asserted that Mr. McIntire engaged in the unauthorized practice of law in other respects, including his checking the box on each bankruptcy petition stating that the Debtor's debts are primarily consumer debts and checking the box on page 1 of each filed Official Form 22A that "The presumption does not arise." The evidence before the Court is insufficient to determine whether these incidents constituted the dispensing of legal advice in violation of 11 U.S.C. § 110(e)(2). Plaintiff did not proffer in evidence any of the questionnaires supplied by Defendant and completed by any of the debtors, nor a sample uncompleted form. The Court cannot, therefore, determine whether Defendant was merely acting as a scrivener by following the direction of the debtors on the completed questionnaires, or whether he decided for the debtors which of the boxes to check or otherwise gave them any advice in that regard.
Imposition of fines and disgorgement of fees is appropriate
Persons who fail to comply with the requirements of 11 U.S.C. § 110 are subject to the imposition of fines and penalties.[8] Pursuant to 11 U.S.C. § 110(l)(1), the Court may impose a fine of up to *540 $500.00 for each violation.[9] The Court has discretion under this section to determine the amount of the fine per violation. Rojero, 399 B.R. at 921. As discussed above, Defendant violated 11 U.S.C. § 110(e)(2) a minimum of thirteen times[10] by giving legal advice to the debtors. Taking into account that this is the first case brought before this Court involving a violation by Mr. McIntire of 11 U.S.C. § 110, and the nature of the violations, the Court finds that a fine of $150.00 for each violation is appropriate, and that a total fine of $1,950.00 based on these violations should be assessed against Defendant.[11]
Fines assessed pursuant to 11 U.S.C. § 110(l)(1) must be tripled if the Court finds that the bankruptcy petition preparer "advised the debtor to exclude assets or income that should have been included on applicable schedules." 11 U.S.C. § 110(l)(2) (providing that "[t]he court shall triple . . .") (emphasis added). Defendant violated this section by advising Ms. Mares that her income did not need to be reported on Schedule I. She did not heed his advice, but he nevertheless gave it. In addition, Pamela Brown, on behalf of Defendant, advised Ms. Norfolk that she did not need to list her residence on Schedule A. The Court will triple the fines attributable to these two violations. The total fine assessed against the Defendant under 11 U.S.C. § 110(l)(1) and (2) is $2,550.00.[12]
In addition, when a bankruptcy petition preparer violates 11 U.S.C. § 110 "or commits any act that the court finds to be fraudulent, unfair, or deceptive" the Court shall award damages to the debtor upon motion by the United States trustee. 11 U.S.C. § 110(i)(l) (emphasis added). Such damages are:
(A) the debtor's actual damages;
(B) the greater of
(i) $2,000; or
(ii) twice the amount paid by the debtor to the bankruptcy petition preparer's for the preparer's services; and
(C) reasonable attorneys' fees and costs in moving for damages under this subsection.
11 U.S.C. § 110(i)(1). The sanction imposed under this section is mandatory.[13] Dispensing legal advice contrary to the constraints of 11 U.S.C. *541 § 110(e)(2) is tantamount to the unauthorized practice of law and can constitute fraudulent, unfair, or deceptive practices within the meaning of 11 U.S.C. § 110(i)(1).[14] The Court finds that by giving legal advice that Defendant is neither qualified nor licensed under the State of New Mexico to provide, Defendant has engaged in conduct that is "fraudulent, unfair, or deceptive" within the meaning of 11 U.S.C. § 110(i)(1). Thus, under 11 U.S.C. § 110(i)(1), it is appropriate to order Defendant to pay each debtor $2,000.00.[15]
Defendant should be enjoined from engaging in further conduct that violates 11 U.S.C. § 110
Pursuant to 11 U.S.C. § 110(j)(2)(A), the Court may enjoin a bankruptcy petition preparer from engaging in conduct that violates 11 U.S.C. § 110 upon a finding that the bankruptcy petition preparer has 1) "engaged in conduct in violation of this section," 2) misrepresented his experience or education as a bankruptcy petition preparer; or 3) "engaged in any other fraudulent, unfair, or deceptive conduct;" and, that an injunction is appropriate in order to prevent the bankruptcy petition preparer from further violating 11 U.S.C. § 110(e)(2). 11 U.S.C. § 110(j)(2)(A)(i). Given the numerous, consistent violations of 11 U.S.C. § 110(e)(2), including Mr. McIntire's advice to debtors to commence a case under chapter 7 instead of chapter 13, his selection and application of the exemption scheme, his advice to reaffirm a debt and that certain tax debts are dischargeable, and his statement to his clients that his services would be the equivalent to those of an attorney but at a greatly reduced cost, the Court finds that it is appropriate to issue an injunction enjoining Timothy McIntire, or any person or entity acting in concert with him, from offering a potential bankruptcy debtor any legal advice in violation of 11 U.S.C. § 110(e)(2).
Whether to enjoin Defendant from acting as a bankruptcy petition preparer
Pursuant to 11 U.S.C. § 110(j)(2)(B), the Court can also enjoin a bankruptcy petition preparer from acting as a bankruptcy petition preparer. That section provides:
*542 If the court finds that a bankruptcy petition preparer has continually engaged in conduct described in subclause (I), (II), or (III)[16] of clause (i) and that an injunction prohibiting such conduct would not be sufficient to prevent such person's interference with the proper administration of this title, has not paid a penalty imposed under this section, or failed to disgorge all fees ordered by the court the court may enjoin the person from acting as a bankruptcy petition preparer.
11 U.S.C. § 110(j)(2)(B) (emphasis added).
Plaintiff asserts that the evidence presented in connection with these seven cases is sufficient for the Court to enjoin Defendant from acting as a bankruptcy petition preparer. Plaintiff maintains that the evidence establishes that the Defendant acted in concert with Pamela Brown in violation of an injunction entered pursuant to 11 U.S.C. § 110 in a consolidated adversary proceeding in which she was the Defendant. Based on the evidence now before the Court in connection with this adversary proceeding, this Court disagrees.
Last year, a Bankruptcy Court injunction was issued against Pamela Brown pursuant to 11 U.S.C. § 110. See Exhibit 45 ("Injunction"). The evidence offered at trial in this adversary proceeding demonstrated that Pamela Brown also worked with Defendant, and met with several of the clients. However, the evidence now before the Court is insufficient to demonstrate that Pamela Brown continued to meet with clients at The Bankruptcy Store after the issuance of the Injunction. The petition dates for Ms. Norfolk, Ms. Harlan, Ms. Booky Ms. Chacon, and Ms. Sanchez all pre-date the date of the Injunction. Ms. Dickey's petition was filed after the date of issuance of the Injunction, but her testimony reflected that she met only with Timothy McIntire and not Pamela Brown. Mr. Mares' petition was filed one month after the Injunction was issued, but Ms. Mares testified that only the first meeting was with Pamela Brown, so it is possible that this meeting occurred before the date of the Injunction. Although the testimony reveals that Mr. McIntire and Ms. Brown worked together, there is no evidence that Mr. McIntire knew of the Injunction, but nevertheless continued to assist clients in preparing bankruptcy petitions in flagrant disregard for the existing Injunction against Pamela Brown.
Under these circumstances, the Court declines to issue an injunction that enjoins Defendant from acting as a bankruptcy petition preparer at this juncture. Should Defendant fail to comply with the Court's ruling by continuing to offer legal advice to potential bankruptcy debtors contrary to 11 U.S.C. § 110(e)(2), or by failing to pay the fines and penalties imposed by this Court, the Court may consider whether to impose a permanent injunction against Defendant that prohibits Defendant from acting as a bankruptcy petition preparer in accordance with 11 U.S.C. § 110(j)(2)(B).
This opinion constitutes the Court's findings of fact and conclusions of law issued in accordance with Rule 7052, Fed. R.Bankr.P. An order consistent with this Memorandum Opinion will be entered.
NOTES
[1] No evidence was presented to the Court regarding whether The Bankruptcy Store, LLC is, in fact, a business entity such as a limited liability company, or whether Timothy McIntire operated The Bankruptcy Store, LLC as a sole proprietorship.
[2] The United States Trustee did not present evidence nor assert a claim that the $395.00 fee was excessive in light of the value of the services provided, and the Court makes no decision regarding the reasonableness of the fee charged. See 11 U.S.C. § 110(h)(3).
[3] No copy of the questionnaire was offered or admitted into evidence at trial.
[4] Cf. In re Hennerman, 351 B.R. 143, 148-149 (Bankr.D.Colo.2006) (finding that the principal of an internet-based business using the name American Bankruptcy was a bankruptcy petition preparer as defined under the bankruptcy code regardless of whether American Bankruptcy was a validly existing artificial entity). Here, each petition for relief lists "The Bankruptcy Store LLC Tim McIntire" as the petition preparer, and is signed by Timothy McIntire. Similarly, the Disclosure of Compensation filed in the Debtors' cases identifies Timothy McIntire on line 6 (which states that "no other person has prepared for compensation a document for filing in connection with this bankruptcy except as listed below"), is signed by Timothy McIntire, and lists The Bankruptcy Store LLC as the printed name and title, if any, of Bankruptcy Petition
Preparer, with an address of Tim McIntire 8400 Menaul #1-118, Albuquerque, New Mexico 87112. When a bankruptcy petition preparer is not an individual, an officer, principal, responsible person, or partner of a bankruptcy petition preparer must sign the petition and provide the name and address of the signing officer, principal, responsible person, or partner. 11 U.S.C. § 110(b)(1). Nevertheless, a principal of a business entity that is a bankruptcy petition preparer can be held jointly and severally liable for fines imposed under 11 U.S.C. § 110. See, e.g., Felicia S. Turner v. Burnworth (In re Carrier), 363 B.R. 247, 259 (Bankr.M.D.Fla.2006) (imposing fines jointly and severally against Stacey Burnworth, individually, and against her business entity, Paraeagle Paperworks, Inc. for violating 11 U.S.C. § 110).
[5] See 11 U.S.C. § 102(3), which provides that the term "includes," when used in the Bankruptcy Code, is not limiting. See also, In re Bernales, 345 B.R. 206, 215 (Bankr.C.D.Cal.2006)(noting that the list in § 110(e)(2)(B) "is neither exclusive nor exhaustive. Rather it is a set of examples explaining what constitutes legal advice.").
[6] See United States Trustee v. Pamela Brown (In re Martin), 424 B.R. 496, 508 (Bankr.D.N.M.2010)(finding that the bankruptcy petition preparer violated 11 U.S.C. § 110(e)(2) by "1) instructing debtors about the need for credit counseling, 2) deciding under which chapter to file, 3) deciding whether debtors should include certain properties or debts on the schedules, 4) choosing exemption schemes on behalf of the debtors and then applying them to the debtors' properties, 5) determining how to characterize secured, unsecured and priority debts, 6) determining whether the presumption of abuse arises, and 7) in general providing advice regarding bankruptcy procedures and rights."). See also, In re Kaitangian, 218 B.R. 102, 110 (Bankr.S.D.Cal.1998) (stating that "advising of available exemptions from which to choose, or actually choosing an exemption for the debtor with no explanation, requires the exercise of legal judgment beyond the capacity and knowledge of lay persons.") (citations omitted).
[7] See Patton v. Scholl, 1999 WL 431095, *9 (E.D.Pa. June 28, 1999) (unreported) ("The choice of appropriate exemptions based on raw data provided by debtors is an exercise in legal judgment. . . . [r]egardless of what means [the bankruptcy petition preparer] employed to select exemptions for each debtor, whether consultation with a computer program, a textbook, or other prepared materials. . . ."). See also Kaitangian, 218 B.R. at 110 ("choosing an exemption for the debtor. . . requires the exercise of legal judgment beyond the capacity and knowledge of lay persons" even if done using a pre-packaged bankruptcy program) (citations omitted). Accord McDow v. Skinner (In re Jay), 446 B.R. 227, 249 (Bankr.E.D.Va.2010); In re Farness, 244 B.R. 464, 472 (Bankr.D.Idaho 2000) (same); In re Reynoso, 315 B.R. 544, 552 (9th Cir. BAP 2004), aff'd, 477 F.3d 1117 (9th Cir.2007) (stating that "[s]olicitation of information which is then translated into completed bankruptcy forms is the unauthorized practice of law, whether by website or otherwise, as is advising a debtor of the availability of particular exemptions or choosing those exemptions.") (citations omitted). But see In re Boyce, 317 B.R. 165, 176 (Bankr.D.Utah. 2004) (concluding that under Utah law, the bankruptcy petition preparer did not engage in the practice of law by using computer software to create the debtor's bankruptcy schedules and statements, reasoning that there is "little distinction between a bankruptcy petition preparer utilizing specialized bankruptcy software for the preparation of the debtor's schedules and statements, and a retail software package that performs the same function for the debtor on the debtor's home computer.").
[8] See, e.g., 11 U.S.C. § 110(i) and (l). See also In re Rojero, 399 B.R. 913, 918 (Bankr. D.N.M.2008) (noting that "[u]nder 11 U.S.C. § 110, persons who negligently or fraudulently prepare bankruptcy petitions on behalf of debtors or fail to comply with the requirements under that section are subject to the imposition of penalties.").
[9] Section 110(l)(1) provides:
A bankruptcy petition preparer who fails to comply with any provision of subsection (b), (c), (d), (e), (f), (g), or (h) may be fined not more than $500 for each such failure.
11 U.S.C. § 110(l)(1).
In this case, as discussed above, Defendant violated subsection (e) by providing his clients with legal advice.
[10] Selecting state law exemptions and applying the state exemption statute to the debtor's property: 7 times Advising a debtor that his or her taxes would be discharged in the bankruptcy: 2 times Advising a debtor whether to file under Chapter 7 or Chapter 13:2 times Advising a debtor to enter into a reaffirmation agreement: 2 times.
[11] Cf. Bernales, 345 B.R. at 227 (imposing a total fine of $2000 as a sufficient amount in light of the bankruptcy petition preparer's "extensive failures" without fixing a fine and multiplying it by the number of violations).
[12] (thirteen violations x $150.00 = $1,950.00) + (two violations of $100.00 x 3 = $600.00) = $2,550.00.
[13] See Rojero, 399 B.R. at 921 (stating that "[u]pon a finding of a fraudulent, unfair, or deceptive act, the sanction imposed under 11 U.S.C. § 110(i)(1) is mandatory."); In re Jarvis, 351 B.R. 894, 898 (Bankr.E.D.Tenn.2006) (stating that "[t]his section requires the imposition of sanctions by the court for a violation of § 110 if the violation is brought to the court's attention by the United States Trustee" and noting further that "[t]he language of this section is mandatory.").
[14] See Rojero, 399 B.R. at 920 (concluding that, by giving legal advice to the debtor in violation of § 110(e)(2)(B), the bankruptcy petition preparer committed a fraudulent, deceptive, or unfair act that subjected the bankruptcy petition preparer to a sanction of $2,000 under 11 U.S.C. § 110(i)(1)(B)(i)); Bernales, 345 B.R. at 215 (noting that "[b]y prohibiting the offering of `legal advice,' 11 U.S.C. § 110(e)(2) must be understood as a general prohibition against the practice of law by bankruptcy petition preparers, except where otherwise permitted by applicable law."). See also, Reynoso, 315 B.R. at 553 (engaging in the unauthorized practice of law constitutes "fraudulent, unfair, and deceptive conduct."); In re Moffett, 263 B.R. 805, 815 (Bankr.W.D.Ky.2001) (concluding that "[b]ecause [the bankruptcy petition preparer] . . . engaged in the unauthorized practice of law. . . she has also committed fraudulent, unfair, or deceptive acts in violation of 11 U.S.C. § 110(i)(1)."); Moore v. Jencks (In re Moore), 232 B.R. 1, 8 (Bankr.D.Me.1999) (holding "that a bankruptcy petition preparer's unlawful dispensation of legal advice constitutes a `fraudulent, unfair, or deceptive act' within the meaning of § 110(i)(1)."); In re Gomez, 259 B.R. 379, 386 (Bankr.D.Colo.2001) (stating that "[f]or a petition preparer to offer legal expertise or to provide legal information, analysis or advice is patently unfair and deceptive to debtors."); In re Guttierez, 248 B.R. 287, 294 (Bankr.W.D.Tex.2000) (finding that the bankruptcy petition preparer "engaged in fraudulent and deceptive conduct when she both offered and provided legal services without a law license.").
[15] See 11 U.S.C. § 110(i)(1), (providing that on the motion of the United States trustee, and after notice and a hearing, "the court shall order the bankruptcy petition preparer to pay to the debtor . . .") (emphasis added).
[16] Subsection (I) covers conduct violative of 11 U.S.C. § 110; Subsection (II) concerns a bankruptcy petition preparer's misrepresentation of his experience or education as a bankruptcy petition preparer; and Subsection (III) addresses fraudulent, unfair or deceptive conduct on the part of a bankruptcy petition preparer. 11 U.S.C. § 110(j)(2)(A)(i)(I), (II) and (III). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562072/ | 16 So. 3d 827 (2009)
SIRMONS
v.
STATE.
No. 2D08-3630.
District Court of Appeal of Florida, Second District.
August 19, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858175/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-626-CV
GEORGE W. GRAYUM,
APPELLANT
VS.
CITY OF AUSTIN,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 92-12155, HONORABLE F. SCOTT McCOWN, JUDGE PRESIDING
George W. Grayum appeals from an order of the district court of Travis County
denying his request for temporary injunctive relief against the City of Austin. See Tex. Civ. Prac.
& Rem. Code Ann. § 51.014(4) (West Supp. 1993). In five points of error, Grayum complains
of various errors allegedly committed by the trial court. We will affirm.
The following factual background is gleaned from the briefs of the parties and
various documents contained in the transcript. Grayum purchased property outside the city limits
of Austin, but arguably within the City's extra-territorial jurisdiction. (1) In compliance with City
ordinances, Grayum filed a subdivision plat for the property. After the City approved the
proposed subdivision plat, Grayum used the property for commercial purposes. On several
occasions Grayum asked the City to extend electrical services to the location. In response, City
environmental inspectors advised Grayum that he was required by the Lake Austin Watershed
ordinance to obtain an approved site-development plan before receiving electrical services.
Grayum refused to file a site-development plan. Accordingly, the City refused to extend electrical
service to the property. Additionally, the City initiated criminal proceedings against Grayum for
developing the property without first obtaining an approved site-development plan. Grayum
alleged that, as a result of the City's actions, he was forced to close his business for several
months, thereby losing customers, goodwill, and business.
Grayum filed suit in the Travis County district court to enjoin the City from
enforcing the Lake Austin Watershed ordinance against him, either by withholding utilities from
the property or by filing criminal charges. Grayum also asked the trial court to render judgment
declaring that Grayum's property was not within the City's extra-territorial jurisdiction, that the
City lacked authority to impose civil penalties or criminal sanctions for failure to comply with the
ordinances's filing requirements, and that the requirement of the ordinance that a site-development
plan be filed did not apply to Grayum's property since he had already received an approved
subdivision plat. The district court denied Grayum's request for a temporary injunction, from
which order Grayum appeals.
To authorize the issuance of a temporary injunction, Grayum had the burden of
pleading a cause of action and offering evidence tending to prove a probable right of recover upon
final hearing and a probable injury in the interim. Sun Oil v. Whitaker, 424 S.W.2d 216, 218
(Tex. 1968); Camp v. Shannon, 348 S.W.2d 517, 519 (Tex. 1961). In the present case, no
evidentiary hearing was held by the district court. The appellate record contains no statement of
facts. The only "evidence" in the record to support Grayum's request for injunctive relief is his
own sworn affidavit attached to his petition. This is not sufficient. The Texas Supreme Court
addressed a similar situation in Millwrights Local Union No. 2484 v. Rust Engineering, 433
S.W.2d 683 (Tex. 1968). In that case, Rust Engineering filed a sworn petition in support of its
request for temporary injunctive relief. After a hearing at which no evidence was offered to prove
probable right and probable injury, the trial court granted the injunction. On appeal, the supreme
court concluded that the record contained no evidence to support the trial court's issuance of
injunctive relief, "unless Rust Engineering's sworn petition may be treated as an affidavit, and the
required proof may be made by affidavits." Id. at 686. The court then held that "in the absence
of agreement by the parties, the proof required to support a judgment issuing a writ of temporary
injunction may not be made by affidavits . . . ." Id.; see also Rogers v. Howell, 592 S.W.2d
402, 403 (Tex. Civ. App.Dallas 1979, writ ref'd n.r.e.).
Since the only evidence in the record of the present case is Grayum's affidavit, and
because there is no evidence of an agreement by the parties that an affidavit could be used to
support the requested injunction, the district court correctly denied Grayum's request.
It appears from the record that the district court may have denied the requested
injunctive relief on substantive grounds, apparently choosing to assume facts pleaded but not
proved by Grayum. However, in the absence of findings of fact and conclusions of law, we are
required to uphold the district court's judgment on any legal theory that finds support in the
record. In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984); Davis v. Huey, 571 S.W.2d 859, 862
(Tex. 1978). There are no findings of fact or conclusions of law present in this record. Hence,
we apply the legal principle enunciated by Rust Engineering, that an affidavit alone may not serve
as the basis for granting a temporary injunction, to uphold the decision of the district court.
Because we conclude that the district court did not abuse its discretion in denying
the requested temporary injunction, we overrule Grayum's point of error and affirm the court's
order.
J. Woodfin Jones, Justice
Before Justices Powers, Jones and Kidd
Affirmed
Filed: October 20, 1993
Do Not Publish
1. The City's extra-territorial jurisdiction extends five miles beyond the corporate
boundaries of the city. See Tex. Loc. Gov't Code Ann. § 42.021 (West 1988). | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1566734/ | 440 S.W.2d 640 (1969)
Willodean Carolyn WOOD, Appellant,
v.
The STATE of Texas, Appellee.
No. 41945.
Court of Criminal Appeals of Texas.
April 23, 1969.
Rehearing Denied June 4, 1969.
*641 Don Metcalfe, Dallas, court appointed on appeal only, for appellant.
Henry Wade, Dist. Atty., Charles H. Erwin, James Alton Mills, Jr., Kerry Fitz-Gerald and Malcolm Dade, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
The conviction is for passing as true a forged instrument; the punishment, five years.
The record reflects that appellant presented and passed to John W. Copeland, store manager of a Tom Thumb Store in Garland, a check as follows:
32-87
1110
No. 3
PAY DATE May 27 19 67
TO THE
ORDER OF Tom Thumb $ 30.00
Thirty_______________________________ 00/100
___________________________________________________ DOLLARS
STATE BANK
EMPIRE OF DALLAS
Dallas, Texas
Mrs. Joyce Felts
8448 Freeport Rd.
DA 1 9762
1110-008 XXXXXXXXXX "
A picture of appellant and the check was made at the store when she cashed the check. There was no account under the name of Mrs. Joyce Felts at the bank upon which the check was drawn.
In the first ground of error, it is contended that the trial court erred in refusing a requested charge that the State must prove beyond a reasonable doubt that appellant knew the check was forged, or if the jury had a reasonable doubt to aquit her. The trial court instructed the jury:
"* * * if you find and believe from the evidence beyond a reasonable doubt that the defendant, Willodean Carolyn Wood * * * did wilfully, knowingly and fraudulently pass as true, * * * and there well knowing the said instrument in writing to be false and forged * * * to find her guilty.
"If you do not so find and believe from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, *642 then you will find the defendant not guilty."
The instruction given by the trial court was in substance the same as the instruction requested by appellant.[1] No error is shown.
Complaint is made in the second ground of error that the trial court erred in permitting the State to introduce records of a conviction for "false pretenses" from Alabama at the penalty stage of the trial, because there was no legible seal on the records, and she was not furnished counsel on appeal. The trial court found that the seal was dim but legible. Even if there had been no seal, no error would be shown, because appellant testified that she had been convicted for the offense.
As to her contention that she was not provided counsel on appeal in the Alabama case, the record shows that she had appointed counsel and entered a plea of guilty and after the trial asked to withdraw her appeal. She testified that she had entered a plea of not guilty and did not appeal, because the judge would not appoint her a lawyer. The trial court was not required to believe her testimony that she was denied counsel. No error is shown.
Improper argument is alleged as the basis of the third ground of error. It is contended that the following argument was made: "It is a reasonable deduction from the evidence that the Defendant wrote the check or that it was written under her direction." The record does not contain the argument at the guilt stage of the trial. There is no formal or informal bill of exception in the record showing this argument was made, and nothing is presented for review. There was no compliance with Art. 40.09, Secs. 4, 6(a) or 6(b), Vernon's Ann. C.C.P.
The fourth ground of error relates to argument of the prosecutor Charles H. Erwin during the penalty part of the trial when he stated that the jury should take into consideration that the law did not contemplate the amount of money taken in a forgery should have anything to do with whether or not it is a forgery. Appellant's counsel objected that she was not accused of forgery. Mr. Erwin stated: "I will withdraw that statement, Your Honor." The court sustained the objection and instructed the jury to disregard the statement. A motion for mistrial was overruled. The prosecutor then apologized to the jury and said it was a slip of the tongue. He then argued that nowhere in the law does it contemplate a minimum value or a maximum value in accepting money by passing a forged instrument. The withdrawal of the remark, and the instruction to disregard it by the court rendered the error, if any harmless.
The sufficiency of the evidence to show that the name Joyce Felts, appearing as maker of the check, was that of a fictitious person is challenged. L. T. Tomkins testified that he was an investigator for the district attorney's office; that in attempting to find a Mrs. Joyce Felts, he checked the telephone directory, the criss-cross directory for Dallas and Garland, the water department and dialed the telephone number listed on the check, which was shown to be that of Casa View School. He checked with the telephone company. He could not find the name of Mrs. Joyce Felts. He could not find an 8448 Freeport Road, the address written on the check under the name of the purported maker. There was sufficient evidence for the trial court to submit and for the jury to find that the name signed to the check was that of a fictitious person. Hancock v. State, 123 Tex.Cr.R. 16, 57 S.W.2d 111; Thompson v. State, 137 Tex. Cr.R. 168, 128 S.W.2d 821; Jones v. State, 144 Tex.Cr.R. 5, 161 S.W.2d 104; and Rivas v. State, 169 Tex.Cr.R. 625, 336 S.W.2d 938. See Barnwell v. State, 1 Tex.App. 745, and 49 A.L.R.2d 852, 880, Sec. 5b, Forgery-use of fictitious name.
There being no reversible error, the judgment is affirmed.
NOTES
[1] Both are substantially the same as the one appearing in 3 Branch's Ann.P.C.2d, Sec. 1612.1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562150/ | 16 So.3d 827 (2009)
SMITH
v.
STATE.
No. 2D08-2405.
District Court of Appeal of Florida, Second District.
August 21, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562157/ | 49 N.J. Super. 6 (1958)
138 A.2d 757
AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, A CORPORATION OF THE COMMONWEALTH OF PENNSYLVANIA, PLAINTIFF-RESPONDENT,
v.
PATRICK CIOFFI MAYOR AND COUNCIL OF THE CITY OF HOBOKEN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS, AND JAMES BREITHAUPT AND WILLIAM MILLER, DEFENDANTS-APPELLANTS.
Superior Court of New Jersey, Appellate Division.
Argued February 3, 1958.
Decided February 11, 1958.
*7 Before Judges CLAPP, JAYNE and SCHETTINO.
Mr. Milton A. Dauber argued the cause for plaintiff-respondent (Messrs. Carpenter, Bennett, Beggans & Morrissey, attorneys; Mr. James P. Beggans, of counsel).
Mr. Stephen Mongiello argued the cause for defendants-appellants.
PER CURIAM.
The plaintiff insurance company obtained a declaratory judgment, apparently in the New Jersey Superior Court, Law Division, relative to an auto liability insurance policy issued by it to defendant Patrick Cioffi. The judgment declared the insurance company was not liable to him in two actions that had been previously instituted against him. One of these actions had been brought by James Breithaupt and William Miller in the Hudson County Court, and the second had been brought by the Mayor and Council of the City of Hoboken in the Hudson County District Court. The insurance company joined Breithaupt, Miller and the mayor and council as defendants *8 in the declaratory judgment action, and Breithaupt and Miller appeal from the judgment entered therein.
In 1953, pursuant to the Motor Vehicle Security-Responsibility Law, N.J.S.A. 39:6-23 to 104, Cioffi had been required to furnish a motor vehicle liability policy as proof of his financial responsibility. As permitted by N.J.S.A. 39:6-46(b), he furnished a policy containing this clause in an endorsement on the policy:
"2. The insurance does not apply:
(a) to any automobile owned by the named insured * * *."
The policy provided further:
"Such insurance as is afforded by this policy for bodily injury liability or property damage liability shall comply with the provisions of the motor vehicle financial responsibility law of any state or province which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of the automobile during the policy period, to the extent of the coverage and limits of liability required by such law, but in no event in excess of the limits of liability stated in this policy * * *."
The policy was renewed in 1954 and 1955, and the last renewal was in effect on December 17, 1955, at the time of the accident involved in the above-mentioned actions in the Hudson County Court and the Hudson County District Court. However, Cioffi, after (so we are told) securing the last renewal, acquired an automobile, and the accident referred to occurred while he was operating this auto of his.
Breithaupt and Miller argue that the above-quoted clause, which made the policy inapplicable to Cioffi's car, defeats the very purpose of the Motor Vehicle Security-Responsibility Law, for the purpose of the law is, so they say, to protect the public against any automobile operated by Cioffi. However, as above indicated, the statute itself expressly authorizes the issuance of what has been called in this case a "non-owner's policy." N.J.S.A. 39:6-46(b). In view of this express statutory authorization, we cannot accede to appellants' contention that while the "non-owner's *9 clause" in the policy may be binding inter partes, still the statute renders it invalid so far as the public is concerned.
There is nothing in Century Indemnity Co. v. Simon, 77 F. Supp. 221 (D.C.N.J. 1948), Woloshin v. "The Century Indemnity Co.", 116 N.J.L. 577 (Sup. Ct. 1936), Saffore v. Atlantic Casualty Ins. Co., 21 N.J. 300 (1956), or United States Casualty Co. v. Timmerman, 118 N.J. Eq. 563 (Ch. 1935), to the contrary.
Appellants argue, in passing, that the insurer's participation in the action brought by them against Cioffi works an estoppel which prevents insurer from denying liability under the policy at this time. So far as we have observed, the point was not raised below. Indeed it was not raised by appellants on the oral argument. Moreover the insurer in its brief before us asserts that while, relying on a non-waiver agreement with Cioffi, it did take certain defensive measures in the action of the City of Hoboken, it took no such measures in the suit brought by Breithaupt and Miller. This assertion is in no way denied. We do not think the point warrants further consideration. As to the effect of the non-waiver agreement, see Suydam v. Public Indemnity Co., 10 N.J. Misc. 868, 872 (Sup. Ct. 1932), cited in Cook v. Preferred Accident Ins. Co. of New York, 114 N.J.L. 141, 145 (E. & A. 1935); McCann v. Iowa Mut. Liability Ins. Co. of Cedar Rapids, 231 Iowa 509, 1 N.W.2d 682, 689 (Sup. Ct. 1942); Goldstein v. Bernstein, 315 Mass. 329, 52 N.E.2d 559, 562 (Sup. Jud. Ct. 1943); Laroche v. Farm Bureau Mut. Automobile Ins. Co., 335 Pa. 478, 7 A.2d 361, 363 (Sup. Ct. 1939).
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562159/ | 69 F.2d 283 (1934)
PATENTS PROCESS, Inc., et al.
v.
DURST et al.
No. 7053.
Circuit Court of Appeals, Ninth Circuit.
February 23, 1934.
*284 Hiram E. Casey, of Los Angeles, Cal., for appellants.
Henry E. Bianchi, of Los Angeles, Cal., for appellees.
Before WILBUR and GARRECHT, Circuit Judges, and NORCROSS, District Judge.
WILBUR, Circuit Judge.
Patents Process, Inc., a corporation, is the alter ego of Frank D. Williams. Bankruptcy proceedings were filed against both and the proceedings were consolidated. The adjudication of bankruptcy was made on November 14, 1929. Prior thereto an action had been brought by Mildred E. Williams against Frank D. Williams and Patents Process, Inc. Harry Schenck was appointed receiver for the Patents Process, Inc. After the election and qualification of appellee Walter C. Durst as trustee in bankruptcy for the appellants, a turnover order was procured by the said trustee, in pursuance of which all the assets of the Patents Process, Inc., were turned over by Harry Schenck, the receiver, to the trustee. Thereafter Harry Schenck filed his report and account of his receivership which came on regularly for hearing before the referee. The report requested an allowance for the receiver and the referee for services performed in the receivership matter before the bankruptcy proceedings were instituted. The appellant objected to the report and account and to the allowance of fees claimed by the receiver.
The hearing was had, evidence introduced, and on February 18, 1931, the referee made an order approving the report of the receiver and allowing certain claims for fees as follows:
To Harry Schenck, the sum of ............. $2,500.
To Harry Schenck, as compensation
for the services of his attorneys Joseph
Fainer and Phil Dodson, ................ 3,500.
To Harry Schenck for the use of his
automobile ............................. 225.
No petition for review or appeal was taken from this order.
The rule of the District Court wherein the matter was pending provided that a petition for review under General Order 27 (11 USCA § 53) of the general orders in bankruptcy must be filed with the referee within ten days from the date of notice of such order. Such a rule limiting the right of appeal to ten days is held valid in Re David (C. C. A.) 33 F.(2d) 748; Roberts Auto & Radio Supply Co. v. Dattle (C. C. A.) 44 F. (2d) 159. And in the absence of such a rule petition for review must be made within a reasonable time. In re Octave Mining Co. (D. C.) 212 F. 457; In re Faerstein (C. C. A.) 58 F.(2d) 942. Thereafter, in January, 1932, the appellee, as trustee in bankruptcy, filed his report and account. The appellant filed objections to the allowances therein reported made by the order of February 18, 1931. On this hearing Harry Schenck, the receiver in the equity suit above mentioned, Phil Dodson and Joseph Fainer, his attorneys, and Lillian M. Schenck were made parties to the proceeding. A hearing was had on such objections and on March 28, 1932, the referee approved the account and report of the receiver. From this order Frank D. Williams petitioned the District Court for a review. This petition came on for hearing before the district judge and on December 17, 1932, the order of the referee was approved. On January 16th the district judge allowed an appeal from the order of December 17, 1932, approving the report of the referee as above stated. The appellee's affidavit in support of this motion states that the bankrupt estate totaled approximately $68,000; that from that amount he has paid the claims for receiver's fees and attorneys' fees allowed by the orders of February 18, 1931, and March 28, 1932, and that all the creditors of the bankrupt have been paid in full. It should be repeated that the claims here involved are not those of the receiver and attorneys in the bankruptcy proceeding, as in the case of Goodman v. Street (C. C. A.) 65 F.(2d) 686, but are amounts allowed as proper claims against the bankrupt estate for services rendered before the bankruptcy, the power to make such allowances having been transferred by the bankruptcy proceedings from the Superior Court in which the receivership was pending, to the bankruptcy court. Moore v. Scott (C. C. A.) 55 F.(2d) 863. The order of February 18, 1931, allowing these claims has become final. The referee himself could not set it aside. In re Faerstein (C. C. A.) 58 F.(2d) 942. See, also, In re Marks (D.C.) 171 F. 281; In re Greek Mfg. Co. (D. C.) 164 F. 211. In order to attack this allowance it *285 was necessary that a petition for review be filed in the District Court within ten days. This was not done and no appeal to this court lies from the order of the referee except by way of petition to review and an appeal from the order of the District Court on the petition. In re Home Discount Co. (D. C.) 147 F. 538; Knapp & Spencer Co. v. Drew (C. C. A.) 160 F. 413. We think this conclusion also logically results from the decision of the Circuit Court of Appeals in the Seventh Circuit in Re Gelino's, Inc., 51 F.(2d) 875, where it was held that there was no appeal from an order denying a petition to set aside an order disallowing a part of the creditors' claim. The court held that the appeal should have been taken from the original order disallowing the claim and could not be taken from the order refusing to reconsider the former order.
In view of this situation the order of the referee of March 28, 1932, approving the account of the trustee and the order of the District Court approving the referee's order do not constitute the allowance of the claim within the meaning of the Bankruptcy Act which provides for an appeal from an order of the District Court allowing a claim (11 USCA § 48). The order of the District Court of December 17, 1932, appealed from, in so far as it directed the payment of the claims already allowed, was a proceeding in bankruptcy as to which it was necessary to have the appeal allowed by this court (11 USCA § 47, Bankruptcy Act, § 24).
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562168/ | 16 So. 3d 135 (2009)
CABRAL
v.
ROSEWATER.
No. 2D09-2133.
District Court of Appeal of Florida, Second District.
September 16, 2009.
Decision without published opinion Appeal dismissed; Appeal pending. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562172/ | 215 Md. 538 (1958)
138 A.2d 381
LISSAU ET UX.
v.
SMITH ET AL.
[No. 121, September Term, 1957.]
Court of Appeals of Maryland.
Decided January 21, 1958.
Motion for rehearing and stay of mandate filed February 19, 1958.
Denied February 28, 1958.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
*541 William Bruce Oswald, with whom was J. Purdon Wright on the brief, for appellants.
Gerald E. Topper for John Warfield Smith et ux., appellees.
Richard W. Kiefer for Jesse J. Hurd et ux., appellees.
Motion for rehearing and stay of mandate filed on behalf of the Hurds February 19, 1958.
HAMMOND, J., delivered the opinion of the Court.
Two rival contract purchasers of the same real property at the same price are contending in this appeal for the right to consummate their purchase.
The chancellor denied specific performance to the Lissaus, the buyers whom the sellers repudiated, and sanctioned the sale to the Hurds, the buyers to whom the sellers desired to sell.
John Smith and his wife, Irma, owned in fee as tenants by the entireties the residence property known as 1210 Frederick Avenue, Catonsville. The Smiths had separated and were living apart, and the house was rented to Jesse Hurd and Glada, his wife. In April, 1956, Richard Lissau and Georgia, his wife, became interested in buying the property. Their representative visited Smith at his place of business. Smith called the Internal Revenue Department of the Federal Government to see at what figure the Government would release the house from a tax lien against him of some $44,000. As a result of the conversation, Smith named a sales price of $38,000, which was agreeable to the Lissaus. Smith arranged with the Hurds for an inspection of the house. Mrs. Hurd's mother showed them through, and afterwards Smith told the Lissaus that the Hurds were monthly tenants, at a rental of $200.00 a month, who could be dispossessed at any time, although they had paid six months' rent in advance and he would like to delay settlement as long as possible so that he could reduce the refund. On April 25, 1956, a meeting of the Smiths and the Lissaus was arranged. While waiting for Mrs. Smith to arrive, Mr. Smith filled in a standard form of contract of sale which he had brought with him, and when Mrs. Smith arrived, the contract *542 was signed by each couple. Mr. and Mrs. Smith were each given a check for $1,900 as the deposit.
The contract provided for settlement within ninety days and for time to be of the essence. It further provided that upon payment of the unpaid purchase money, the sellers would execute to the buyers a deed to the Frederick Avenue property "which shall convey the property by a good and merchantable title to the Buyer free of liens and encumbrances * * *." Mrs. Smith left, and Mr. Smith told the Lissaus that he would appreciate it if they would not rush the settlement. It was pointed out that the contract called for settlement within ninety days, to which Smith replied that the ninety days meant nothing and that the longer the buyers delayed, the better he would be pleased. He was told that the Lissaus would not need a mortgage as they had the cash available for settlement at any time. A few days after the signing of the contract, Mr. Lissau referred the matter to his lawyer for title examination. In the early part of June, Smith came to Lissau's place of business and told him that the tenants would vacate the property in July after the close of the school year Mrs. Hurd was a school teacher and sought assurance that there would be no earlier settlement. Lissau agreed and stated, as he had already told Smith, that he would not need the house until fall. Sometime between the 10th and 15th of July, Lissau noticed that the Hurds were still in possession and were working on the lawn and shrubbery. Since this seemed unusual for tenants who were preparing to vacate, Lissau went to Smith's place of business to see about a date for settlement. Upon being advised of the purpose of his visit, Mr. Smith refused to discuss the matter on the ground that he was too busy. A few days after this, the Lissaus sold their home, and Lissau and his brother went to Smith's office, told him of the sale of the home and asked for a settlement date. Smith refused to name one and again stated that there should be no worry about the ninety-day provision, as this would make no difference. Again, before the expiration of the ninety days, Lissau telephoned Smith at his office and was advised by the son that his father was away for an indefinite time. Four *543 or five days before the expiration of the ninety days, Lissau's lawyer reported that title was unmerchantable because the property was subject to Federal tax liens in excess of the purchase price, that it had been sold for non-payment of real estate taxes (the sale becoming final in November of 1956), and that the 1956 real estate taxes were unpaid. Later, he communicated the fact that he had been advised on July 24 by telephone from the Internal Revenue Service that a compromise settlement of the income tax lien against the property would take at least thirty days to consummate.
On July 31, Lissau's lawyer was told by the Hurds' lawyer that the Hurds occupied the property under a written five-year lease dated January 20, 1954, allegedly signed by both Mr. and Mrs. Smith, which contained the following language: "* * * should the landlords decide to sell the premises herein leased during the term of this agreement the tenants shall have the right to purchase the premises at a price not to exceed Fifty Thousand Dollars in fee", and that the Hurds intended to exercise their option. Thereupon, Lissau's lawyer wrote his clients a letter, restating the title defects in the property and withdrawing from the case. Lissau and his brother again went to Smith's office and showed him the letter. Smith told them not to worry, that he would have all the title defects straightened out in a few days.
A few days later, Mrs. Smith telephoned Lissau to inquire about a settlement date, and was read the letter. She was startled to learn of the written lease and immediately repudiated it, denying that she had signed it or that she had authorized anyone to do so for her. She admitted on the stand what the Lissaus testified, that she had told them in this conversation that she still wanted to go through with the contract and that she was anxious to settle, although she knew that the ninety-day period stated in the contract had expired.
On August 17, a bill of complaint for specific performance was filed by the Lissaus against the Smiths. On August 20, the Smiths entered into a written contract of sale with the Hurds, wherein they sold them the property for the same price as the Lissaus had agreed to pay. On April 4, 1957, after the answer of the Smiths to the specific performance *544 suit revealed the signing of this contract, the Lissaus made the Hurds defendants and filed a third party complaint against them so that the rights of all interested parties could be determined in one action.
Most facts were stipulated, including the fact that Mrs. Smith had not signed the lease with the Hurds but that her signature had been forged by her husband and witnessed by her son. There was no real dispute as to any material fact. Mrs. Smith testified that the first knowledge she had of the lease was in the conversation with Mr. Lissau on August 10, and that she had never authorized her husband or anybody to sign her name; that she knew her husband had rented the property, apparently on a monthly tenancy, that from time to time she had received her share of the rent, less taxes, and that she had never ratified her husband's action as to the lease. Smith did not testify. The chancellor did not purport to decide the case as a result of any determination of fact or because he believed or disbelieved one or more of the witnesses. He said: "I feel, between the two parties and the two groups, that the lessees have the more equitable claim to the property * * *."
We think the Lissaus were entitled to a decree for specific performance. It is true that where time is expressly declared to be of the essence in a sale of land, equity will not ordinarily grant specific performance if the purchaser has failed to make payment within the time specified in the contract. Triton Realty Co. v. Frieman, 210 Md. 252, 257, and cases cited therein. However, as pointed out in the Triton case, if, before time for performance, the vendor has signified his intention not to insist on timely or exact performance and the purchaser shaped his actions in reliance thereon, waiver or estoppel may preclude insistence by the vendor on the provision as to time. Judge Collins said for the Court in the Triton case: "To constitute a waiver by a party of a contract, such party must be estopped by his own conduct or the inequity of his position." We find that Smith is in that position here. There was evidence from which the chancellor could have found that Mrs. Smith, at the time of the signing of the contract with the Lissaus, authorized her *545 husband to act for her, as far as the settlement and consummation of the sale were concerned, although she denied that she had done so. She admitted, nevertheless, that she had done nothing to make the title merchantable within the ninety-day period, although she knew of the tax lien and of her contractual obligation to clear it within the stated period, saying that she assumed that the lien would be paid off at the time of settlement. She must bear with her husband the burden of having failed to do, within the stated period, what she had contracted to do. Admittedly, the Smiths did not deliver a good and merchantable title by the agreed time. We said in Chapman v. Thomas, 211 Md. 102, 109: "Generally, if time is of the essence, failure to perform within the stipulated time will prevent specific performance at the suit of the defaulter. * * * However, failure to perform may be legally justified and if this is the case, the mere passage of the day for settlement will not of itself prevent specific performance." This was the holding in Budacz v. Fradkin, 146 Md. 400, 404, 407.
The appellees argue that the Lissaus did not tender the purchase price, as they were required to do if they were to have the right to specific performance. The record leaves no doubt that the Lissaus were ready, willing, able and eager to make settlement at any time that the Smiths could offer a merchantable title and that they made repeated efforts to settle within the ninety-day period. In equity, a tender is sufficient if the purchaser is ready to, offers to, and has the ability to pay. It is true that no manifestation of readiness and ability was made directly to Mrs. Smith, but it is also true that if there had been, it would have been meaningless, because she had done nothing to see that title was good and, apparently, at no time during the ninety-day period could it have been made so. A tender would have been nugatory. Judge Parke said for the Court in Liggett Co. v. Rose, 152 Md. 146, 158-159, where time was of the essence in a contract to execute a lease: "The proof is clear that, if the lessees had made the tender, it would have been a useless form * * *. The decided weight of evidence is that the appellees were ready, before bringing the suit, to comply with the conditions *546 as was originally contemplated by the parties, and the failure of the contract to be performed within the time fixed was wholly the default of the proposed lessor, who without any just or sufficient reason notified the appellees that he would not perform the contract. Under such circumstances, the owner loses his right to treat the agreement to lease as at an end because the other parties fail to go through a nugatory ceremony. * * * On the facts of the record, as the Court finds them, the failure of the appellees to perform their contract by the time designated was caused by the indicated default of the person against whom specific performance is sought, and he cannot now set up a delay caused by his own default to defeat a proceeding rendered necessary by that default." Specific performance of the lease was decreed. Cf. Diamond v. Shriver, 114 Md. 643, 649.
We pass to the effect of the option to buy. The Hurds acquired no right to buy the house under the five-year lease signed by the husband alone, on which the wife's name was forged. The property was held by the entireties, and one spouse alone could not pass to a third person any interest in it or encumber it. Columbian Carbon Co. v. Kight, 207 Md. 203, 208 et seq.; Marburg v. Cole, 49 Md. 402; McCubbin v. Stanford, 85 Md. 378; Tizer v. Tizer, 162 Md. 489, 496.
The appellees urge that Mrs. Smith ratified the lease and therefore it became her valid act and created a right in the Hurds. They find ratification in the receipt of the rent from time to time and in Mrs. Smith's execution of the contract of sale with the Hurds on August 20. The record shows no more than that Mrs. Smith knew the property was rented for $200 a month and that from time to time she received her share of the rent, less deductions for taxes. It seems apparent that she was under the belief that the property was rented on a month-to-month tenancy. The law does not infer ratification from receipts of benefits unless there is a full knowledge of the facts of the transaction. Restatement, Agency, Sec. 99. In Clark v. People's Bank, 136 Md. 263, 275, it was held that the owner of land whose agent had made a lease, giving an option of purchase to the lessee, unauthorized *547 by and unknown to the owner, was not estopped by the acceptance of the rent, from denying the authority of the agent to give the option, since the rent had been accepted in ignorance of the option provision. It was noted that if the owner had accepted the rent with knowledge of the option, there would have been a different question. In the case here before us, Mrs. Smith not only did not authorize the option, but she did not know of it and her acceptance of the rent was entirely consistent with her belief that the tenancy was a monthly one.
It is likewise clear that there could be no ratification by Mrs. Smith after she had executed the contract to the Lissaus. Restatement, Agency, Sec. 101, states the law to be that: "Ratification is not effective: * * * (c) in diminution of the rights or other interests of persons not parties to the transaction which were acquired in the subject matter before affirmance." A pertinent comment to the quoted section says: "The rule by which ratification has the effect of authorization does not operate to destroy rights which have been created between the time of the original act and the affirmance * * *." See also 1 Mechem, Agency (2nd ed.), Sec. 486 at 356-357, where the author says in part: "If prior to the ratification the principal has put it out of his power to perform the contract ratified, by conveying the subject-matter thereof to a third person who took the same in good faith * * * these rights cannot be cut off at the mere volition of the principal."
There is no dispute that the Hurds knew of the existing contract to the Lissaus when they signed the contract of August 20. Since the written lease was ineffective to confer upon them any rights to purchase the property, their rights under the contract of August 20 are no greater than would be those of any other person who bought the property at that time, knowing that there was an outstanding contract. Such a person would not be a bona fide purchaser, and the Hurds are not. 4 Pomeroy, Equity Jurisprudence (5th ed.), Sec. 1405b at 1047, says that if a vendor "after making a contract, should enter into a second agreement to sell the land to B, *548 or should convey it to B, under such circumstances that B is not a bona fide purchaser, etc., then the prior vendee can compel a specific performance against the vendor and B." This is essentially the holding of Engler v. Garrett, 100 Md. 387. See also Allers v. Klein, 161 Md. 194; Blondell v. Turover, 195 Md. 251; and cf. Thistle Mills Co. v. Bone, 92 Md. 47, where a second buyer was a bona fide purchaser.
The appellees argue that since the house cannot be conveyed unless the Federal Government consents by the release of its lien, specific performance cannot be granted or enforced. This contention is made even though the Smiths admit that they intended to and can now effect a valid conveyance of title to the Hurds for the same price at which the Lissaus are entitled to buy, that is, they admit that they can clear the tax lien if the sale is to the Hurds, but say that it cannot be cleared if the court requires the sale to be to the Lissaus. We think the powers of a court of equity are not as inflexible as the Smiths hope. The record makes it plain that all of the parties have acted in the belief and that they still so believe that if a definite and binding contract is established at a purchase price of $38,000, the Federal Government will release its lien and that all that is required is passage of sufficient time to allow the functioning of its slow bureaucratic processes. This being so, we think the court can frame a decree which will give sufficient time for the completion of the formal mechanics necessary to effectively discharge the Federal lien and can condition the obligation of the Lissaus to pay the purchase money upon the release of the lien. If it is necessary to do so, the Smiths can be enjoined from selling the land to anyone else in the meantime. Where specific performance is proper, equity may accomplish the same result permanently or temporarily by the use of injunction. Smith v. Myers, 130 Md. 64.
We think that when the facts have arranged themselves in proper perspective, the case before us is one where the contract is fair, reasonable and certain and, therefore "* * * it is as much a matter of course for a court of equity to decree specific performance of it as it is for a court of law to *549 award damages for its breach." The Glendale Corp. v. Crawford, 207 Md. 148, 154.
Decree reversed, case remanded for further proceedings not inconsistent with this opinion; costs to be paid by John Warfield Smith and Irma Marie Smith. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562163/ | 215 Md. 457 (1958)
138 A.2d 902
LANE
v.
CALVERT ET AL.
[No. 93, September Term, 1957.]
Court of Appeals of Maryland.
Decided February 24, 1958.
Motion for rehearing filed March 26, 1958.
Denied March 28, 1958.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
Patricia Warren, with whom was Albert Brick on the brief, for appellant.
Joseph B. Simpson, Jr., with whom were Vivian V. Simpson and Simpson & Simpson on the brief, for Read N. Calvert, appellee.
John M. McInerney for Washington Sanitarium & Hospital, Inc., appellee.
*459 BRUNE, C.J., delivered the opinion of the Court.
The plaintiff, Henry F. Lane, brought this suit, both as ancillary administrator of his deceased wife, and individually, in the Circuit Court for Montgomery County against Dr. Read N. Calvert and Washington Sanitarium & Hospital, Inc., for alleged negligence in the performance of an operation on the plaintiff's wife and for alleged negligence in post-operative care of the patient. The case was tried before the court and a jury and resulted in verdicts being directed for each of the defendants and judgments being entered accordingly, from which the plaintiff appealed. The appeal from the judgment in favor of the hospital was abandoned during the argument in this Court.
There were two different claims of negligence in the trial court. The first related to the original operation. It has not been pressed in this Court, and we agree with the trial judge that there was no evidence to sustain a charge of negligence based upon the original operation. The second charge of negligence is based upon an alleged lack of proper post-operative care.
The plaintiff's wife was suffering from carcinoma, or cancer, when she first consulted Dr. Calvert in late April or early May of 1953. It now appears that it had then progressed to such a stage as to have been incurable, and she died of it in March, 1954. Though the declaration contained a claim for wrongful death, this claim seems quite unsupported and is not urged at all in this Court. The claims with which this suit is now concerned are for pain and suffering of the decedent, for the prolongation of her hospitalization and for increased expense incident thereto.
It is necessary to a consideration of the charge of negligence in post-operative treatment to state briefly the nature of the original operation, the difficulties which followed it and what was done to meet them. When Mrs. Lane was referred by her own physician to Dr. Calvert, as a surgeon, she was suffering from carcinoma of the descending colon, which had reached an advanced stage. He correctly diagnosed her illness and his diagnosis was fully confirmed. When he performed his initial operation on May 5th, 1953, *460 he found a large cancer in the upper part of the left colon, which had gone through all three coats of the bowel and had become attached to the back. He found no signs of cancer in the liver or glands and thought that the complete removal of the tumorous mass and of portions of the colon on either side of it gave the best chance of preventing the spread of cancer and for the survival of the patient. The cancer had progressed to the stage of being almost inoperable. Dr. Calvert proceeded to perform the operation, in spite of the difficulty. He removed a large portion of the colon, together with the large tumor, all in one piece, and then joined together the two remaining sections of the bowel.
The voluminous hospital records and the testimony in the case show that Mrs. Lane ran a fever intermittently for some six weeks after the initial operation, for which a variety of treatments were used, including antibiotic drugs, blood transfusions and surgical drainage operations. She was also x-rayed some four or five times. Dr. Calvert consulted several other doctors, among them the patient's regular physician, the Chief of Surgery of the hospital's visiting staff, and Dr. V.M. Iovine, an experienced surgeon in Washington who was associated with a number of hospitals in that city and was a member of the medical faculty of George Washington University. He was called in as a consultant at the request of Mr. Lane and with the consent of Dr. Calvert.
Dr. Calvert performed three operations for drainage purposes after the initial major operation. The first was on May 25th. At that time he located and drained an abscess and removed a considerable amount of pus. He testified that there was a fecal fistula, that presumably the pus pockets came from it and that presumably matter in the pus pockets was coming through the suture line made at the time of the original operation. The second drainage operation was performed on June 11th. On that occasion he failed to locate and drain any pus. It was after this operation that Dr. Iovine was called in at Mr. Lane's request, and he first saw the patient on June 24th, went over her hospital record and consulted with Dr. Calvert.
*461 Dr. Iovine suspected what Dr. Calvert had previously suspected and had attempted to correct. It was Dr. Iovine's opinion "that there was still a collection of pus somewhere in the abdominal cavity that required drainage." He suggested two types of x-rays one, chest x-rays to determine the level of the diaphragm; the other, "the installation of a dye in this opening to determine whether there was a tract that led to a pocket." The two surgeons discussed the advisability of performing a colostomy, but Dr. Iovine thought that the first thing requiring attention was the drainage of pus. This was apparently also Dr. Calvert's opinion. Dr. Iovine explained that if the collection of pus were taken care of and the area drained, the patient would be more comfortable and the immediate threat to her existence would be removed. He pointed out that there was evidence of another "difficulty and that was a fistula, a connection between the bowel and this abscessed cavity." He went on to say: "Occasionally, when a collection of pus is drained adequately, these fistulas, if there is no obstruction to the bowel content, will close of their own accord. If they do not, you can assist the healing process by short-circuiting the area performing a colostomy." Matters seem to have worked out in this way, and no colostomy was found necessary for Mrs. Lane.
Dr. Iovine's suggestion of injecting a lipiodol dye in the fistulous area was adopted. This caused the tract where pus had accumulated to show up clearly on x-ray pictures. Dr. Calvert then performed the third drainage operation. It proved effective in locating and removing pus then accumulated, the pocket continued to drain through drains which Dr. Calvert then inserted and eventually the fistula closed itself. At a later stage, some time after Mrs. Lane had left the hospital (before the time when Dr. Calvert would have approved her doing so) and had returned to her home, Dr. Iovine reinserted the drains which Dr. Calvert had inserted and which had come loose. Such a loosening appears to be a not uncommon occurrence and no charge of negligence is based thereon.
The gravamen of the plaintiff's charge of negligence in the defendant's post-operative treatment of the patient is that *462 the defendant delayed unduly the use of the dye technique to locate and drain the pus accumulations. Dr. Calvert had used x-rays and he had made incisions for drainage purposes before Dr. Iovine was called in and before the lipiodol dye was used. Dr. Calvert's testimony is that he located the focal point of the pus accumulations each time that he performed a drainage operation, but the second such operation failed to result in the immediate removal of any pus. The dye technique, as shown by Dr. Iovine's testimony, had been in medical use for over twenty years, though the particular dye here used, lipiodol, seems to have been of more recent origin. When Dr. Calvert employed the dye technique, it showed the location of the pus pocket and apparently enabled him to clear up the situation. The chief question is whether or not his failure to use this technique sooner was evidence of negligence on his part in the post-operative treatment of the patient.
The rules of law applicable in this State to cases of alleged medical malpractice, such as the present, are well established. There is a presumption that the doctor has performed his medical duties with the requisite care and skill. State, Use of Janney v. Housekeeper, 70 Md. 162, 16 A. 382; Fink v. Steele, 166 Md. 354, 171 A. 49; McClees v. Cohen, 158 Md. 60, 148 A. 124. The burden of proof is on the plaintiff to show both a lack of the requisite skill or care on the part of the doctor and that such want of skill or care was a direct cause of the injury; and if proof of either of these elements is wanting the case is not a proper one for submission to the jury. State, Use of Kalives v. Baltimore Eye, Ear and Throat Hospital, 177 Md. 517, 10 A.2d 612; Angulo v. Hallar, 137 Md. 227, 233, 112 A. 179. The rule as to the degree of skill required is stated in Dashiell v. Griffith, 84 Md. 363, 380, 35 A. 1094: "* * * the amount of care, skill and diligence required is not the highest or greatest, but only such as is ordinarily exercised by others in the profession generally." This rule has since been followed consistently in Miller v. Leib, 109 Md. 414, 426, 72 A. 466, and Angulo v. Hallar, supra.
It is well established by the case law in this State that the mere fact that an unsuccessful result follows medical treatment *463 is not of itself evidence of negligence. Bettigole v. Diener, 210 Md. 537, 124 A.2d 265; State, Use of Kalives v. Baltimore Eye, Ear and Throat Hospital, supra. Nor does the doctrine of res ipsa loquitur apply. Bettigole v. Diener, supra.
A number of the cases above cited involve dentists. The same rules apply to them as to physicians and surgeons. McClees v. Cohen, supra.
The next problem is to apply these rules to the facts of this case as developed by the record. The appellant cites a number of cases from other jurisdictions in which it has been held to amount to negligence for a doctor not to use x-ray or other tests in diagnosing the cause of illness at an early stage of treatment. Some of these cases deal with failure to use x-rays to determine the existence of fractures or the presence of a foreign substance, loose fragment or other object. See Wilson v. Corbin, 241 Ia. 593, 41 N.W.2d 702 (fractured back); McBride v. Saylin, 6 Cal. 2d 134, 56 P.2d 941 (piece of steel in patient's eye); Butts v. Watts (Ky.), 290 S.W.2d 777 (fragment of tooth); Kosak v. Boyce, 185 Wis. 513, 201 N.W. 757 (another case of a piece of steel in the patient's eye); Agnew v. City of Los Angeles, 82 Cal. App. 2d 616, 186 P.2d 450 (fracture).
Cases closer to the instant case are Peterson v. Hunt, 197 Wash. 255, 84 P.2d 999; Corn v. French, 71 Nev. 280, 289 P.2d 173. In the former case the defendant erroneously diagnosed an ovarian cyst as pregnancy and failed to use a rabbit test by which the error of the diagnosis would have been disclosed much earlier. Evidence as to the number of such tests performed by a chemist in the city of Tacoma was excluded, and this was held to be erroneous. In the latter case, Corn v. French, failure to make a biopsy or to obtain a pathological test before performing an operation for the removal of a breast because of a supposed cancer was held sufficient evidence of negligence. Likewise in Edwards v. West Texas Hospital (Tex. Civ. App.), 89 S.W.2d 801, failure to take x-rays was held sufficient to present the issue of negligence where there was testimony that the use of x-rays *464 would probably have shown that what the doctor supposed to be a tumor was in fact a dead fetus.
The appellant's main difficulty in this case is the lack of affirmative proof of negligence on the part of the defendant. The appellant frankly and properly concedes in his brief that his expert witness, Dr. Iovine, "did not state, in so many words, that Dr. Calvert was negligent, or that his actions did not measure up to the standard." He then asserts: "But, our witness testified as to what a surgeon must do in such a situation and the evidence revealed that Dr. Calvert did not do it." We have carefully examined Dr. Iovine's testimony and we do not find this assertion to be sustained by the record.
The nearest that the plaintiff came to asking when a surgeon of reasonable diligence, skill and learning should use a dye x-ray procedure was when Dr. Iovine was asked: "At what stage would you go in and take dye x-rays to determine whether there was a leakage, etc., when a patient was running a fever?" This was, of course, a question as to when the witness himself would have adopted a particular course of action and did not go to the standard of the profession. An objection to the question was sustained. There was no effort to rephrase the question so as to develop a foundation upon which negligence might be predicated, nor was there any proffer as to what the plaintiff proposed to show. See Reid v. Humphreys, 210 Md. 178, 187-188, 122 A.2d 756. There is thus nothing in the record to show that the witness would have testified to the existence of a standard of professional action which the defendant should have attained under the rule of Dashiell v. Griffith, supra, and similar cases, but which he failed to meet. There is, we note, a marked difference between this question propounded to Dr. Iovine and others propounded by the plaintiff, which called for an expression of opinion as to what would be proper professional practice. We cannot infer that the witness would have testified to something about which he was not even questioned.
The question is also materially different from the question involved in Hunner v. Stevenson, 122 Md. 40, 89 A. 418, where it was held proper for an expert medical witness to testify as to how long it usually would take for a wound of *465 the kind described in the testimony in that case to heal. Sustaining the objection to the question as to when Dr. Iovine himself would have used the dye x-ray technique was not, in our opinion, erroneous.
The trial judge sustained an objection to a question put to Dr. Iovine as to what complications or possible causes a surgeon of ordinary diligence and care would have suspected when confronted by a case in which the patient had the symptoms which Mrs. Lane's hospital records showed following her initial operation. The ground for sustaining the objection appears to have been that the witness had already stated what he thought was the trouble. Though the sustaining of the objection on this ground may well have been erroneous, it does not appear to have been harmful to the plaintiff for two reasons. First, in substance, the ruling was reversed and the witness proceeded to testify as to what might be suspected, which seems to have been the same as what the defendant did suspect and attempted to remedy. This was, in brief, the presence of pus in the abdominal cavity (whether due to a suture line leak or to a leak of different origin) and the desirability of draining it. It did not go to the question of the means by which the surgeon should attempt to locate the pus nor, specifically, how soon he should employ any particular means of seeking to locate it. The latter were the critical questions.
Near the conclusion of his testimony as to what Mrs. Lane's symptoms would have caused him to suspect, Dr. Iovine was asked what he would have done "to track down where the fever was coming from" when it had continued for ten or fifteen days after the resection operation. He stated that if the more common probabilities were properly ruled out, "one must consider a leak at the connection line, with pus in the abdominal cavity, as being the cause for the temperature." He continued: "Examination of the patient again to find out if there is localized tenderness, or the presence of a mass; the use of x-rays to determine again, as I mentioned before, the motion of the diaphragm or its elevation to determine the presence of a collection is also important. Finally, if these signs are sufficient to indicate that there is something *466 wrong in that area, and that you suspect a leak, then the only thing to do is to drain the area." The appellant's trial counsel then asked, "How soon after the operation would you start that procedure ?" An objection to this question was interposed but it was not directly ruled on. The trial judge inquired if the patient did not have a drain in her side when the witness saw her, and the answer was that she had already had two incisions and did have a drain at that time; and the witness then went on to testify that in his opinion the drains in place at that time were not adequate, and he had therefore suggested further drainage.
Dr. Iovine's testimony at this point does not reach the critical issue as to when a physician of reasonable skill, diligence and learning would use the dye x-ray technique. Indeed, the question propounded to him relates to the time when he would start to drain the area, not to when he would seek to locate a pus-filled cavity by any particular method. After the colloquy referred to, the witness was permitted to testify, over objection, that the situation did clear up after more adequate drainage was provided.
We think that the plaintiff has failed to meet the burden of presenting evidence which would support a finding of negligence. Though it might be inferred that if Dr. Calvert had used lipiodol dye sooner, the patient would have fared better, we do not think that the plaintiff has produced proof that the defendant was guilty of negligence in failing to use it sooner and in seeking to locate and drain the pus pockets by other means. He was clearly successful in locating a pus pocket on his first drainage incision, and that fact alone seems to prevent an inference that a dye injection was a necessary means of discovering the location of pus. Nor do we think that there is any such common knowledge of the use and efficacy of the dye method as to warrant us in holding that the jury might find, without supporting expert testimony, that the surgeon was wanting in reasonable diligence, skill and learning because he failed to use this dye test in addition to others at an earlier stage of post-operative care of the patient.
Accordingly, we think that the judgment must be affirmed.
Judgment affirmed, with costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562176/ | 69 F.2d 934 (1934)
KLABER et al.
v.
MARYLAND CASUALTY CO.
No. 9734.
Circuit Court of Appeals, Eighth Circuit.
March 5, 1934.
*935 Emmet S. Brumbaugh, of Omaha, Neb. (Joseph P. Gray and Leo Fried, both of Omaha, Neb., on the brief), for appellants.
John L. Barton, of Omaha, Neb. (Raymond M. Crossman, Alfred C. Munger, Herbert E. Story, John C. Thomas, and Varro H. Rhodes, all of Omaha, Neb., on the brief), for appellee.
Before STONE, SANBORN, and VAN VALKENBURGH, Circuit Judges.
SANBORN, Circuit Judge.
The appellee, Maryland Casualty Company, on July 18, 1931, issued its policy of automobile liability insurance to Fay Watson, Ray Watson, and Thomas Watson, copartners doing a trucking business in Nebraska, Kansas, and elsewhere, under the name of Watson Bros. Transfer Company. The insurance was "against loss from liability imposed by law upon the assured for damages on account of bodily injuries including death resulting therefrom, accidentally suffered or alleged to have been suffered by any person or persons caused by or through the ownership, maintenance or operation of any automobile * * *," etc. The limit of liability for one person so killed or injured was $5,000, and for all persons so injured or killed in a single accident, $10,000. Under the policy the casualty company was obligated to investigate all accidents and claims covered, and to defend in the name and on behalf of the assured all suits thereon, and to pay, regardless of the limit of liability, the expense (including court costs and interest on judgments after entry) incurred by it in such investigation and defense; the company reserving the right to settle any claims or suits. It was also provided that the insolvency or bankruptcy of the assured should not release the company from the payment of damages for injuries or death sustained or loss occasioned within the coverage of the policy, and that the prepayment of any judgment recovered against the assured upon a claim covered by the policy should not be a condition precedent to any right of action against the company, "but the Company is bound to the extent of its liability under this policy to pay and satisfy such judgment; and an action may be maintained upon such judgment by the injured person, or his or her heirs or personal representatives, as the case may be, to enforce the liability of the Company as in this policy set forth and limited."
The liability of the company was made subject to the condition that no action should lie against it to recover upon any claim or for any loss "unless brought after the amount of such claim or loss shall have been fixed and rendered certain either by final judgment against the assured after trial of the issue or by agreement between the parties with the written consent of the Company. * * *"
Under an indorsement required by the state of Kansas, the company agreed "to pay any final judgment for personal injury, including death resulting therefrom * * * caused by any and all motor vehicles operated by the assured * * * within the limits set forth * * *," and further agreed "that upon its failure to pay any such final judgment, such judgment creditor may maintain an action in any court of competent jurisdiction to compel such payment. Nothing contained in the policy or any indorsement thereon nor the violation of any of the provisions thereof by the assured, shall relieve the company from liability hereunder or from the payment of any such judgment."
It therefore appears that what the company, by the terms of its policy, agreed to do was: (1) To investigate all claims made against the assured falling within the coverage of the policy, and to defend all suits brought upon such claims. (2) To pay, within the limits and subject to the conditions of the policy, any claim against the assured covered by the policy, when the amount of the claim had been fixed (a) by a final judgment against the assured, or (b) by agreement between the claimant and the *936 assured, with the written consent of the company.
On December 22, 1931, a truck belonging to the assured, being driven by one of its employees upon a public highway, collided with a bus owned and operated by the Interstate Transit Lines. The accident occurred near Hiawatha, Kan. The driver of the truck, the driver of the bus, and one bus passenger were killed and a number of bus passengers were injured. Another truck not belonging to the assured in some way became involved in the accident, and the driver of that truck and a passenger were or claim to have been injured. As a result of the accident and the deaths and injuries caused thereby, numerous claims were made and numerous suits brought against the assured, the investigation and defense of which were assumed by the company. The total demands for damages were very large and far in excess of $10,000. Finally, in a suit instituted by the appellant Klaber, who was the guardian of one of the bus passengers, against the assured, a final judgment of $4,000 was procured in the District Court of Douglas county, Neb. Execution upon this judgment was returned unsatisfied and a summons in garnishment was served upon the casualty company. Before the date fixed for disclosure, the company filed in the United States District Court for the District of Nebraska, its bill of interpleader under the Interpleader Act of 1926, title 28, § 41 (26), U. S. C. Appendix, page 2025, chapter 273, §§ 1-3, 44 Stat. 416 (28 USCA § 41 (26), naming as defendants the assured, the Interstate Transit Lines, the persons who had made or were making or might make claims against the assured for injuries or death, the plaintiffs in the various suits against the assured in which no final judgments had as yet been obtained, the appellant Klaber, who was the only judgment creditor of the assured at the time the bill was filed, and the other appellants, who were Klaber's counsel. The bill set up the policy, the happening of the accident, the resulting claims and suits against the assured in various jurisdictions brought by persons residing in various states, the recovery of the judgment against the assured by the appellant Klaber, the garnishment proceedings, the danger of the company's being harassed and held for a greater liability than that provided for in its contract, because of the various claims and suits in the several jurisdictions against its assured, and the payment into court by the company of the limit of its liability. The company asked that the defendants be required to interplead with respect to the fund deposited, and be enjoined from prosecuting their actions elsewhere.
The court entered the usual restraining order, the effect of which was to prevent all of the defendants from proceeding against the company or its assured in other courts or in other proceedings. The appellant Klaber and other defendants moved to dismiss the bill for want of equity. The company asked for a temporary injunction. The court denied the motions to dismiss the bill and enjoined the appellant Klaber and his counsel from continuing with his garnishment proceedings, and all other defendants from proceeding against the company, but permitted them to prosecute their claims and suits against the assured. From the order and decree denying the motions of appellants to dismiss the bill and granting the injunction, this appeal is taken.
Interpleader is an ancient equitable remedy which recognizes the right of a disinterested stakeholder, from whom several persons claim the same thing, debt, or duty, to have the conflicting claimants litigate the matter among themselves without embroiling him in their controversies. 15 Rawle C. L. 221; Pomeroy's Equity Jurisprudence (4th Ed.) vol. 4, § 1320; Story's Equity Jurisprudence (14th Ed.) vol. 2, § 1116; Standley v. Roberts, 59 F. 836, 841 (C. C. A. 8). The stakeholder applies to the court to protect him not only from having to pay or deliver the thing claimed to the several claimants, but also from the vexation of suits which are or may be instituted against him by them. The true origin of the jurisdiction is that there is no remedy at law or that the legal remedy is inadequate. The ground upon which the plaintiff comes into equity is that, claiming no right in the subject-matter himself, he is or may be vexed by having two or more suits brought by different persons going on against him at the same time, and therefore that justice requires that those persons, claiming that to which he makes no claim and with reference to which he has no interest except to rid himself of it, should settle their controversy among themselves and not with him or at his expense and hazard. Story's Equity Jurisprudence (14th Ed.) vol. 2, § 1118.
The essential elements of the equitable remedy of interpleader are: (1) The same thing, debt, or duty must be claimed by both or all the parties against whom the relief is demanded. (2) All their adverse titles or claims must be dependent, or be derived *937 from a common source. (3) The plaintiff must not have nor claim any interest in the subject-matter. (4) He must have incurred no independent liability to either of the claimants and must stand perfectly indifferent between them, in the position merely of a stakeholder. Pomeroy's Equity Jurisprudence (4th Ed.) vol. 4, § 1322; Wells, Fargo & Co. v. Miner (C. C.) 25 F. 533. See, also, Calloway v. Miles (C. C. A. 6) 30 F.(2d) 14; Connecticut General Life Ins. Co. v. Yaw (D. C.) 53 F.(2d) 684.
A bill of interpleader cannot be maintained by any person who does not show two or more claimants in existence capable of interpleading. Story's Equity Jurisprudence (14th Ed.) vol. 2, § 1136; Alton & Peters v. Merritt, 145 Minn. 426, 177 N.W. 770; Maxwell v. Frazier, 52 Or. 183, 96 P. 548, 18 L. R. A. (N. S.) 102, 104. And the bill must show that each of the defendants claims a right, and such a right as they may interplead for. Story's Equity Jurisprudence (14th Ed.) vol. 2, § 1136; Pusey & Jones Co. v. Miller (C. C.) 61 F. 401, 403; Kahn v. Garvan (D. C.) 263 F. 909, 915. If the plaintiff denies his liability to any of the defendants, he is not entitled to the remedy; he destroys the very foundation upon which it rests. Pomeroy's Equity Jurisprudence (4th Ed.) vol. 4, § 1325, and note.
The bill must show that all of the requisites entitling the plaintiff to the remedy exist in the case. Pomeroy's Equity Jurisprudence (4th Ed.) vol. 4, § 1328.
An averment that the plaintiff is disinterested is necessary.
In Killian v. Ebbinghaus, 110 U.S. 568, 571, 4 S. Ct. 232, 233, 28 L. Ed. 246, the court said:
"The bill is either a bill of interpleader or a bill in the nature of a bill of interpleader. It is clear that it cannot be sustained as a bill of interpleader. In such a bill it is necessary to aver that the complainant has no interest in the subject-matter of the suit; he must admit title in the claimants and aver that he is indifferent between them, and he cannot seek relief in the premises against either of them."
And in Groves v. Sentell, 153 U.S. 465, 485, 14 S. Ct. 898, 905, 38 L. Ed. 785, the court said:
"The general rule is that a party who has an interest in the subject-matter of the suit cannot file a `bill of interpleader,' strictly so called. In fact, the assertion of perfect disinterestedness is an essential ingredient of such a bill."
The federal courts always have had jurisdiction to entertain bills of interpleader where the amount in controversy was sufficient and the other essentials of jurisdiction were present. "Interpleader in the United States Courts," Chafee, Yale Law Journal, vol. 41, p. 1134, cont'd in vol. 42, page 41. There were, however, two reasons why their jurisdiction frequently proved ineffective. First, under the general provisions of law a United States District Court cannot issue process beyond the limits of the District, and a defendant in a civil suit can be subjected to its jurisdiction in personam only by service within the District. Toland v. Sprague, 12 Pet. 300, 330, 9 L. Ed. 1093; Herndon v. Ridgway, 17 How. 424, 15 L. Ed. 100; New York Life Insurance Co. v. Bangs, 103 U.S. 435, 26 L. Ed. 580; Munter v. Weil Corset Co., 261 U.S. 276, 279, 43 S. Ct. 347, 67 L. Ed. 652; Robertson v. Railroad Labor Board, 268 U.S. 619, 623, 45 S. Ct. 621, 69 L. Ed. 1119. Second, the District Courts are without authority to stay proceedings in a state court unless expressly authorized by Congress. There are exceptions to this rule which are not here involved. The statute forbidding such injunctions is now title 28, § 379, U. S. C. (28 USCA § 379). See Lowther v. New York Life Ins. Co. (C. C. A. 3) 278 F. 405; Essanay Film Mfg. Co. v. Kane, 258 U.S. 358, 42 S. Ct. 318, 66 L. Ed. 658.
Most insurance companies did an interstate business, and it frequently happened that conflicting claims arose with respect to the proceeds of their policies. Where the claimants lived in a single jurisdiction, the remedy by interpleader was effective because the company could file its bill, pay its money into court, and be discharged from further liability, and the contest could be carried on between the conflicting claimants. But where the claimants resided in different jurisdictions, they could not be compelled to interplead, no fair trial of the issues between them could be had, and the company was often sued upon the same policy in two or more states or districts, and thus subjected to vexatious and expensive litigation and sometimes to double liability. In attempting to remedy this objectionable situation, the first Federal Interpleader Act was passed in 1917, chapter 113, 39 Stat. 929. It did not change the remedy, but enlarged the jurisdiction. It provided that the United States District Courts should have jurisdiction *938 of equity suits of interpleader where an insurance company was the complainant and where it was made to appear by the bill that two or more bona fide claimants to the insurance or benefits of the policy reside within the jurisdiction of the court, that the policy provides for the payment of at least $500, that two or more adverse claimants, citizens of different states, are claiming or may claim the insurance or benefits, and that the company has deposited the amount due with the clerk of the court. In such cases the court was authorized to issue its process to bring in nonresident claimants, but no authority was expressly granted to enjoin pending suits. This act improved the situation, but did not completely cure it because it was held that the act did not by implication repeal the statutory prohibition against the stay of proceedings in a state court. Lowther v. New York Life Ins. Co. (C. C. A. 3) supra, 278 F. 405. Furthermore, the provisions of the act relating to the district in which the suit was to be commenced were in some respects obscure. ("The Federal Interpleader Act," Conwell, "Association of Life Insurance Counsel Proceedings," 1913-1921, XLIII.) The second Interpleader Act was passed in 1925, chapter 317, §§ 1-3, 43 Stat. 976. It was virtually the same as the present act, but omitted any express authorization for the granting of injunctions to stay suits in the state courts. Because of that omission, the Act of May 8, 1926, c. 273, §§ 1-3, 44 Stat. 416, title 28, § 41 (26), U. S. C. Appendix, page 2025 (28 USCA § 41 (26), was passed, repealing the two former acts.
The 1917 Act and the 1925 Act were limited to bills filed by insurance companies or associations or fraternal or beneficial societies. The 1926 Act was expressly made applicable to bills filed by casualty companies and surety companies, as well. The jurisdiction granted extended to bills in which it was averred: (a) "That one or more persons who are bona fide claimants against such company * * * reside within the territorial jurisdiction of said court"; (b) that the insurer "has in its custody or possession money or property of the value of $500 or more, or has issued a bond or a policy of insurance or certificate of membership providing for the payment of $500 or more to the obligee or obligees in such bond or as insurance, indemnity, or benefits to a beneficiary, beneficiaries, or the heirs, next of kin, legal representatives, or assignee of the person insured or member"; (c) "that two or more adverse claimants, citizens of different States, are claiming to be entitled to such money or property or the penalty of such bond, or to such insurance, indemnity, or benefits"; (d) that the insurer "has deposited such money or property or has paid the amount of such bond or policy into the registry of the court, there to abide the judgment of the court."
Express authority was granted to the court by the 1926 Act for the issuance of process to bring in all claimants and for the issuance of an injunction against each of them, "enjoining them from instituting or prosecuting any suit or proceeding in any State court or in any other Federal court on account of such money or property or on such bond or on such policy or certificate of membership until the further order of the court," notwithstanding statutory provisions to the contrary.
The substantial differences between the 1917 Act and the 1926 Act are these: (1) The former did not specifically refer to casualty and surety companies; the latter does. (2) The former required that it be "made to appear by such bill * * * that two or more adverse claimants, citizens of different States, are claiming or may claim to be entitled to such insurance or benefits." The latter requires that such bill aver "that two or more adverse claimants, citizens of different States, are claiming to be entitled to such money or property or the penalty of such bond, or to such insurance, indemnity, or benefits." (3) The former contained no authority for enjoining proceedings in other courts; the latter has such a provision. (4) Under the former it was in some instances difficult to determine where the bill should be filed; the latter clarifies that situation.
An interesting comparison of the two acts is to be found in a paper read before the Association of Life Insurance Counsel on December 8, 1926, by Mr. Joseph S. Conwell, counsel for the Penn Mutual Life Insurance Company. See, "Association of Life Insurance Counsel Proceedings," vol. III, p. 469. In speaking of the difference between the 1917 Act and the 1926 Act with respect to the averment as to claimants, he says:
"Considerable difficulty was experienced by the Committee with what is termed the `may claim' clause. Some of the members of the Senate sub-committee were not willing to permit the companies to obtain the jurisdiction of the District Court where there was only a possibility that two or more persons `may claim' the proceeds of the policy, and *939 hence it was necessary, in order to secure the passage of the Act of 1926, that the words `may claim' be stricken from the Act. Under the later Act, therefore two or more adverse claimants, citizens of different states, must actually claim to be entitled to the proceeds of the policy."
Professor Chafee, in his article, "Interpleader in the United States Courts," vol. 41, Yale Law Journal, p. 1134, in a footnote on p. 1163, says:
"This change was made in order to secure the passage of the Act of 1926. Some of the members of the Senate sub-committee were not willing to permit the companies to obtain the jurisdiction of the District Court when there was only a possibility of claims by two or more persons."
It is clear that, in order to invoke the enlarged powers granted to the United States District Courts by Congress with respect to certain bills of interpleader, the insurer must present a bill which not only contains the averments required by the statute, but which is sufficient under the principles of equity. The act does not deprive the federal courts of any jurisdiction which they previously had over bills of interpleader, nor does it change the equitable principles governing such bills. Mutual Life Ins. Co. of N. Y. v. Bondurant (C. C. A. 6) 27 F.(2d) 464; National Fire Ins. Co. v. Sanders (C. C. A. 5) 38 F.(2d) 212, 214; Calloway v. Miles (C. C. A. 6) supra, 30 F.(2d) 14. It merely provides that in certain cases and for the benefit of a class of disinterested stakeholders the courts may exercise powers that could not otherwise be exercised.
No insurer should be denied the benefits which were intended to be conferred by the act, but, on the other hand, since the courts have no legislative powers, they have no right to extend the unusual authority granted by the act to cases which do not fairly fall within its provisions, liberally construed. There is no doubt that the courts, in the interests of justice, have shown a tendency to relax the technical rules relating to the essential elements of a bill of interpleader so far as possible; but that those rules still exist cannot be controverted.
If the bill before us showed that the defendants other than Klaber were bona fide adverse claimants against the company within the meaning of the Interpleader Act, and that the company was a disinterested stakeholder, we would be inclined to hold that it might maintain this suit under the act. The hazard which the company seeks to avoid was not caused by it. The rights of the defendants arise from a common source, namely, the accident. There is a real danger of the company's being subjected to more than one suit by those who seek judgments against its assured, if they are successful. It started this suit immediately after Klaber commenced his proceeding to recover from it by garnishment the amount of his judgment against the assured, and cannot justly be charged with laches. Whatever legal remedies it has are, perhaps, as likely to prove inadequate as those of any insurance stakeholder against whom claims are made in excess of its liability. See National Fire Ins. Co. v. Sanders (C. C. A. 5) supra, 38 F.(2d) 212.
We are convinced, however, that, under the allegations of the bill, Klaber was the only defendant who was an actual claimant, and that the other defendants are persons who may become claimants depending upon whether they succeed in procuring judgments against the assured or whether they do not.
We are also convinced that the company is not a disinterested stakeholder. It does not aver that it is. The facts pleaded show that it is not. It admits no rights in the defendants other than Klaber to the fund, and no liability of either itself or its assured to them. It occupies a position of active hostility to all defendants except Klaber, and must, if it can, prevent their ever obtaining any claims against the fund. See Stusser v. Mutual Union Ins. Co., 127 Wash. 449, 221 P. 331, 333; Pope v. Missouri Pac. Ry. Co. (Mo. Sup.) 175 S.W. 955, 957. Moreover, if it succeeds in defeating their claims against its assured, there will be about $6,000 left in the registry of the court after payment of the Klaber judgment, to which the company alone will have a claim.
Our conclusion is that the bill is not one which comes within the Interpleader Act, and that the court therefore was clearly without authority to enjoin Klaber from proceeding with his garnishment, and could not compel those defendants who were citizens of states other than Nebraska to interplead.
It does not necessarily follow, however, that because the bill was not within the statute and that the decree was therefore erroneous in the particulars mentioned, the appellants were entitled to a dismissal of the suit. The jurisdictional amount is involved and there is diversity of citizenship. Therefore, if the bill, although not one of statutory *940 interpleader, may be sustained as a bill in the nature of a bill of interpleader, it should not be dismissed. A stakeholder who is not indifferent may maintain such a bill. McNamara v. Provident Sav. Life Assur. Soc. of N. Y. (C. C. A. 5) 114 F. 910; Knickerbocker Trust Co. v. City of Kalamazoo (C. C.) 182 F. 865; Hayward & Clark v. McDonald (C. C. A. 5) 192 F. 890; Sherman Nat. Bank of N. Y. v. Shubert Theatrical Co. (C. C. A. 2) 247 F. 256; Groves v. Sentell, 153 U.S. 465, 485, 486, 14 S. Ct. 898, 38 L. Ed. 785; Fleming v. Phoenix Assur. Co. (C. C. A. 5) 40 F.(2d) 38; 15 Rawle C. L. 233.
The general rule, however, is that the only material difference between a true bill of interpleader and a bill in the nature of a bill of interpleader is that in the latter the plaintiff may show that he has an interest in the subject of the controversy between the defendants. 15 Rawle C. L. 233, 234; Stephenson v. Burdett, 56 W. Va. 109, 48 S.E. 846, 10 L. R. A. (N. S.) 748; Story's Equity Jurisprudence (14th Ed.) vol. 2, § 1140; 33 C. J. 424.
We think that, at the time the company filed its bill, it was not in a position to require the other defendants to interplead with Klaber. They were not demanding anything of it, and whether they would ever be in a position to demand anything of it was purely conjectural. The indemnity provided by the policy was then adequate to meet any existing liability of or claim against the company, and no showing was or could then be made that there were or would be claims aggregating more than $10,000 against it. The company's denial of liability for its assured and its defense of all suits and claims leaves it in a poor position to treat those seeking judgments against its assured as claimants against it for the purpose of interpleader. The effect of the decree appealed from is to prevent the only real claimant under the policy from collecting what is due him until it can be ascertained whether other claimants will come into existence. The other defendants could not interplead because they had no claims to interplead with. They could neither claim nor disclaim. The most they could do would be to inform the court whether, if they succeeded in obtaining judgments against the assured, they intended to assert any claims against the company under the terms of its policy, or whether they did not.
We reach the conclusion that the bill was not sufficient either as a bill of interpleader or one in the nature of a bill of interpleader.
The company has asked permission to show that, since this appeal was docketed a judgment for $10,000 has been obtained by the defendant Erwin against its assured. It is obvious that what has transpired since the appeal cannot be considered in aid of the bill or the decree. If the facts stated in the bill were not sufficient to give the court jurisdiction, the appellants were entitled to a dismissal.
The decree is reversed and the case remanded with directions to dismiss the bill. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562253/ | 4 F.2d 215 (1925)
SOUTHWEST METALS CO.
v.
GOMEZ.
No. 4445.
Circuit Court of Appeals, Ninth Circuit.
March 2, 1925.
*216 Anderson, Gale & Miller, of Prescott, Ariz., for plaintiff in error.
Struckmeyer, Jennings & Strouse and D. A. Fraser, all of Phnix, Ariz., for defendant in error.
Before ROSS, HUNT, and RUDKIN, Circuit Judges.
RUDKIN, Circuit Judge (after stating the facts as above).
The objection to the complaint seems to be that it contains no direct averment that the accident caused the infection to the eye, or the subsequent blindness. No doubt, it is the better practice to plead ultimate facts and not evidence, but the plaintiff in error was not injured if the complaint gave it more information than it was justly entitled to. The general rule as to proximate cause applies here as in other cases, and we think it sufficiently appears from the complaint that the accident was the *217 proximate cause of the infection and loss of sight. But, in any event, the complaint contains the direct averment that the accident caused the injury to the eye, and this of itself was sufficient as against a general demurrer.
If the question were an open one, much might be said against the justice and wisdom of a rule that permits a party to a suit to offer testimony tending to show that a physician removed dirt from his eye, or fragments of bone from his leg, and forbids the physician to give testimony controverting that fact; but that such is the effect of the statute of Arizona, as construed by the Supreme Court of the state does not admit of question. Thus, in Arizona Copper Co. v. Garcia, 25 Ariz. 158, 214 P. 317, a brother of the plaintiff testified in his behalf that a physician removed fragments of bone from his leg, and the physician was not permitted to controvert the testimony. See, also, Arizona & New Mexico Ry. Co. v. Clark, 235 U.S. 669, 35 S. Ct. 210, 59 L. Ed. 415, L. R. A. 1915C, 834. That statute of the state, as construed by its highest court, is controlling on this court.
The claim of privilege on behalf of the nurse presents a more difficult question. All the authorities agree that the privilege or exemption does not extend to a third person who is present and overhears the communication between the physician and the patient. Under such circumstances, some of the cases hold that both the physician and the third party may testify, while others hold that as to the physician the privilege is not waived. The defendant in error does not controvert this general rule, but contends that it has no application where the third person acts as agent of or assistant to the physician. We have examined the cases cited in support of this contention and many others, but find that in every case the agent or assistant was himself a physician or surgeon. Thus, in Raymond v. Burlington, C. R. & N. Ry. Co., 65 Iowa 152, 21 N.W. 495, and Ætna Ins. Co. v. Deming, 123 Ind. 384, 25 N.E. 86, 375, it was held that the privilege extends to information acquired by a partner of the physician attending the patient; the partner himself being a physician. In Smart v. Kansas City, 208 Mo. 162, 105 S.W. 709, 14 L. R. A. (N. S.) 565, 123 Am. St. Rep. 415, 13 Ann. Cas. 932, it was held that assistant physicians and surgeons in a hospital come within the exemption. In Renihan v. Dennin, 103 N.Y. 573, 9 N.E. 320, 57 Am. Rep. 770, it was held that information obtained by a physician who was called in consultation was privileged. A similar ruling was made in Morris v. New York, O. & W. Ry. Co., 73 Hun, 560, 26 N. Y. S. 342. See, also, Green v. Town of Nebagamain, 113 Wis. 508, 89 N.W. 520; Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S.W. 720; Prader v. National Masonic Accident Ass'n, 95 Iowa, 149, 63 N.W. 601.
The rule excluding hospital records kept under the direction of the physician has no application here, and the same is true of cases where the intervention of a third party is strictly necessary to enable the physician to communicate with the patient. Springer v. Byram, 137 Ind. 15, 36 N.E. 361, 23 L. R. A. 244, 45 Am. St. Rep. 159; and North American Union v. Oleske, 64 Ind. App. 435, 116 N.E. 68.
The statute is limited by its terms to physicians and surgeons, and in this connection it is a significant fact that an earlier paragraph of the same section extends the privilege of the attorney to his secretary, stenographer, and clerk, concerning any fact, the knowledge of which has been acquired in such capacity. We are aware that it has been said that the extension of the exemption to the secretary, stenographer, and clerk of the attorney adds nothing to the statute; but we are far from convinced that such is the case. Many privileges and exemptions allowed to professional men are not enjoyed by their clerks and agents, such as exemption from jury duty, and the like. Furthermore, the privilege between attorney and client, as recognized by the common law, extended to secretaries and clerks, and it might well be held that a general statute recognizing the privilege as between attorney and client only was simply declaratory of the common law. But the exemption in favor of the physician and surgeon is statutory only, and for that reason there is little or no analogy between the clerk of the attorney and the agent of or assistant to the physician or surgeon. Thus, in Howe v. Regensburg, 75 Misc. Rep. 132, 132 N. Y. S. 837, it was claimed that a dentist was within the privilege; but in answer to that contention the court said: "At common law communications between physician and patient were not legally privileged. * * * The legal privilege seems first to have been recognized in New York in 1828. * * * To the extent, therefore, to which the privilege can now be said to exist, it must find its support in some statutory enactment. Whatever may be urged for or against the existence of the privilege, we can see no good reason *218 for extending it by implication or construction."
While such statutes should be liberally construed, as between physician and patient, their necessary tendency is to prevent a full disclosure of the truth, and for that reason they are strictly construed and limited to cases falling within the principles on which they are based. 40 Cyc. 2362.
If public policy demands that the privilege of the physician and surgeon should be extended to nurses and other attendants who are neither physicians nor surgeons, the change should be made by the Legislature, not by judicial construction.
For these reasons, we are of opinion that the ruling of the court excluding the testimony of the nurse was prejudicial error.
The objection to the question, "Do you make it a habit of appearing for plaintiffs in these personal injury cases?" was properly sustained on the ground that the question was too indefinite and called for the conclusion of the witness, if for no other reason. The objection to the testimony as to what was meant by occupational or industrial blindness was based upon the ground that there was no such issue in the case. But the complaint did allege that the vision was permanently and totally destroyed, and under that allegation it was competent to prove by an expert witness both the extent of the impairment of the vision and its effect upon the ability of the defendant in error to do ordinary work or earn a livelihood.
"A desire to economize time has led a number of courts to sanction the practice, in cases where the facts are undisputed, of dispensing with a recital of facts in a hypothetical question and asking the witness to state his judgment `upon the evidence,' or even upon such a part of it as is material to the inquiry, although it is conceded to be the better practice to proceed in the regular manner and frame a hypothetical question, one objection to the question upon the evidence being that the witness may not be able to remember all the testimony, and to allow him to proceed upon what he chances to recollect deprives the parties of any knowledge as to the real basis of his inference." 22 C. J. 717.
But there are many authorities to the contrary. As said by the present Chief Justice, in Manufacturers' Accident Indemnity Co. v. Dorgan, 58 F. 945, 7 Cow. C. A. 581, 22 L. R. A. 620, in answer to a similar objection: "This question was clearly incompetent, because it asked the witness, who was a physician, to make his own inference as to what the evidence of the other witness tended to show, and then, upon such inference, to give his opinion. To properly elicit his opinion as to the character of the autopsy, and its usefulness in showing the cause of the death, counsel should have stated the scope and character of the autopsy as he understood it, so that the jury, in weighing the answer of the witness, could know exactly upon what facts it was based. The difference between this question and the one put to the physician performing the autopsy is that here the witness was asked to weigh other men's evidence, a function peculiarly belonging to the jury, while there the witness was asked an expert opinion of bodily conditions which he saw with his own eyes."
The right of the plaintiff in error to have the question answered as propounded was discretionary with the trial court at best, and the court having exercised its discretion against the right, it was the duty of counsel to propound his question in the proper form before seeking a review here.
The testimony was ample to carry the case to the jury, and the assignment of error based upon its insufficiency calls for no discussion. Prior to the hearing in this court, the defendant in error interposed a motion to strike the bill of exceptions upon the ground that it was not settled, signed, and filed within the time required by law. It appears from an inspection of the record that the bill of exceptions was presented to the trial judge within the time allowed by an order entered during the term at which the judgment was entered. Such being the case, the bill of exceptions was timely presented, and the fact that it was not settled until a later day is immaterial. Michigan Insurance Bank v. Eldred, 143 U.S. 293, 298, 12 S. Ct. 450, 36 L. Ed. 162; O'Connell v. United States, 253 U.S. 142, 146, 40 S. Ct. 444, 64 L. Ed. 827.
We find no error in the record, save in the exclusion of testimony; but for that error the judgment is reversed and the cause is remanded for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566677/ | 161 F.2d 515 (1947)
ARMSTRONG CO.
v.
WALLING.
No. 4232.
Circuit Court of Appeals, First Circuit.
May 7, 1947.
George A. McLaughlin, of Boston, Mass., for appellant.
Frederick U. Reel, Dept. of Labor, William S. Tyson, Sol., Bessie Margolin, Asst. Sol., and Morton Liftin, U. S. Department of Labor, all of Washington, D. C., and George H. Foley, Regional Atty., of Boston, Mass., for appellees.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
*516 MAHONEY, Circuit Judge.
The Administrator of the Wage and Hour Division, United States Department of Labor, brought this action under § 17 of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. § 201 et seq., to enjoin the appellant from violating the provisions of § 15(a) (1) and (2) of the Act. The parties hereto have agreed upon the facts in the case and the lower court has adopted them as its findings.
The appellant, a Massachusetts corporation with its principal office and place of business in the Boston and Maine Railroad Station, in the City of Boston (known as the North Station), maintains retail stands or selling counters located in places easily accessible to the public, in the North Station as well as in other railroad stations in Massachusetts, Maine, New Hampshire and Vermont, where sales of sandwiches, coffee, milk and like products, as well as books, periodicals, candy and smoking supplies, are sold by clerks to the public. There are several of these stands in the concourse in the North Station. It also maintains a commissary in the North Station which has direct communication with the stands on the concourse by means of an arcade. The arcade is owned by the Boston and Maine Railroad and is used as a sidewalk by the general public. It consists of an area over which part of the railroad building is built. The door of the commissary is located 15 feet and 4 inches from the door to the North Station proper. There is no sidewalk on the westerly side of Causeway Street except the sidewalk located on Boston and Maine Railroad property and in the arcade. This commissary serves as both kitchen and storeroom for the company's stands in the North Station as well as those outside of Massachusetts. Appellant also maintains a train service department whose employees are furnished with sandwiches, tonics, and other related items, which they sell on commission on the trains leaving the North Station for points inside and outside Massachusetts. No sales are made at the commissary but it regularly transfers at cost as often as required sandwiches, milk, tonic, etc. to the retail stands in the North Station, those outside the state and its train service department. About 4 per cent of the total volume of commissary business is transferred to the train service department. No books are kept other than daily records which are forwarded to the central bookkeeping office also located in the North Station. This commissary, the train service department, and the stands both in and outside of Massachusetts are all under one unified management. The commissary employs from nine to eleven employees in addition to a day manager and night manager, all of whom work at the various types of duties performed there, but the greater part of their employment is the making and wrapping of sandwiches.
The appellant also maintains a large warehouse some distance from the North Station which is in full compliance with the Act and with which we are not here concerned.
The lower court held that the employees of the appellant working in its commissary were within the coverage of the Act as employees engaged in the production of goods for commerce under the provisions of § 3(i) and (j) and that they are not exempt within the meaning of § 13(a) (1) or (2) of the Act. It issued its injunction accordingly and the appellant has appealed.
It is argued that the commissary employees are exempt from the requirements of the Act by the provisions of § 13(a) (1) or § 13(a) (2) because they are performing work of a local retailing capacity or because the commissary is a part of one retail establishment. With this we do not agree.
The commissary is integrated with, but physically distinct from, the stands in the station where the retail functions are carried on. It is a distinct place of business and is an establishment under the Act. It bears no closer relationship to the stands in the concourse than it does to the other stands in the various railroad stations inside and outside Massachusetts, and to the train service department. See Phillips Co. v. Walling, 1945, 324 U.S. 490, 65 S. Ct. 807, 89 L. Ed. 1095, 157 A.L.R. 876. There are no sales there and no retail transactions of any kind. Its only business is supplying the stands throughout the system and the railroad train service. *517 The business carried on there more closely resembles that of a warehouse or wholesale establishment than a retail store. Cf. Walling v. Goldblatt Bros., Inc., 7 Cir., 1945, 152 F.2d 475, certiorari denied 1946, 328 U.S. 854, 66 S. Ct. 1344. While the business in the commissary may not be of a wholesale nature it certainly is not of a retail nature and to bring it within the exemption of § 13(a) (2) the burden is upon the appellant to prove that its employees are within the letter and spirit of the exception. See Bowie v. Gonzalez, 1 Cir., 1941, 117 F.2d 11, 16. Although the appellant argues that the concourse stands and the commissary are one establishment, and that the latter serves as a kitchen or back room for the stands in the North Station, it disregards the fact that the commissary also serves the train service department and the stands outside the North Station. The combined nature of its business would prevent its classification as a local retail establishment. See Phillips Co. v. Walling, supra, 324 U.S. at page 496, 65 S. Ct. 807, 89 L. Ed. 1095, 15 A. L.R. 876. In Roland Electrical Co. v. Walling, 1946, 326 U.S. 657, 673, 66 S. Ct. 413, it was stated that the word "retail" is restricted to sales made in small quantities to ultimate consumers to meet personal rather than commercial or industrial uses of those articles. The public did not have access to the commissary and no sales were made by it. Any sandwiches or other supplies delivered by it were in large lots and not single orders. We believe that the commissary had none of the characteristics required under the language of § 13(a) (2) to make it a retail establishment.
The exemption under § 13(a) (1) applies to "any employee employed in a * * * local retailing capacity * * * (as such terms are defined and delimited by regulations of the Administrator)". Upon the authority of the Act the Administrator has promulgated regulations, Title 29, Chapter V, Code of Fed.Regs. (Supp.1938), Part 541, § 541.4, which define and delimit the exemption to include:
"* * * any employee
"(A) who customarily and regularly is engaged in
"(1) making retail sales the greater part of which are in intrastate commerce; or
"(2) performing work immediately incidental thereto, such as the wrapping or delivery of packages, and
"(B) whose hours of work of the same nature as that performed by nonexempt employees do not exceed 20 per cent of the number of hours worked in the workweek by such nonexempt employees."
The contention is made that the commissary employees are exempt from the provisions of the Act because they are performing work immediately incidental to making retail sales, the greater part of which are in intrastate commerce, such as the wrapping or delivery of packages. The wrapping and delivery of sandwiches is immediately incidental to the transfer of the goods from the commissary to the retail stands, but is not within the Regulation promulgated by the Administrator as embracing work immediately incidental to the making of retail sales. We do not believe that this work is immediately incidental to retail selling any more than the furnishing of ice cream, milk or other supplies would be immediately incidental to retail selling. The Administrator has construed the Regulation as not including work incidental to the delivering of articles from a central storehouse to a retail outlet. See 5 Wage Hour Rept. 770 (1942). This interpretation is not plainly erroneous or inconsistent with the Regulation and is of controlling weight in arriving at the correct meaning of the latter. Bowles v. Seminole Rock & Sand Co., 1945, 325 U.S. 410, 414, 65 S. Ct. 1215, 89 L. Ed. 1700. We cannot say that the making, wrapping and delivery of sandwiches in the commissary comes within the interpretation of this Regulation by the Administrator nor can we say that a strict construction of the exception would allow us to include the employees of the commissary within it.
Although it has frequently been held and is well established that this statute is remedial in its nature and the obligation upon the courts is to construe it liberally this does not apply to the exemptions which deny the benefits of the Act to certain employees. These exemptions must be strictly *518 construed. See Calaf v. Gonzalez, 1 Cir., 1942, 127 F.2d 934. To avail itself of the benefits of the exception, the burden is upon the appellant to bring itself plainly and unmistakably within the terms and the spirit of the exemptions. See Phillips Co. v. Walling, supra, 324 U.S. at page 498, 65 S. Ct. 807, 89 L. Ed. 1095, 157 A.L.R. 876. This it has not done.
The judgment of the District Court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1735767/ | 14 F. Supp. 417 (1936)
In re SECURITIES AND EXCHANGE COMMISSION.[*]
District Court, S. D. New York.
March 18, 1936.
*418 William W. Prager, Asst. Gen. Counsel, of New York City (William W. Prager and Irving J. Galpeer, both of New York City, of counsel), for Securities and Exchange Commission.
Abraham M. Lowenthal, of New York City, for respondents.
PATTERSON, District Judge.
The Securities and Exchange Commission undertook an investigation of the activities of Pirnie, Simons & Co., in transactions involving the securities of a company. It caused subpnas to be served on the respondents Bracken, McAvoy, Aarons, and Reid, commanding them to appear before an officer of the Commission and to give testimony. The respondents appeared, but each of them declined to testify unless the Commission would agree to give him a copy of his testimony or would permit him to bring with him a stenographer to take down his testimony. The Commission rejected these conditions. It now seeks a court order requiring the respondents to testify unconditionally.
The Securities Exchange Act of 1934, in section 21 (b), 15 U.S.C.A. § 78u(b) gives the Commission the power to subpna witnesses and take their testimony for purposes of investigating whether any person has violated, or is about to violate, any provision of the act. By section 21 (c), 15 U. S.C.A. § 78u(c), the act gives the Commission the right to invoke the aid of this court in cases of refusal to obey its subpnas, and empowers the court to issue orders to compel attendance of witnesses before the Commission or any designated officer of the Commission and to require the giving of testimony touching the matter under investigation. This provision is taken from a similar enactment in the Interstate Commerce Act, § 12 (49 U.S.C.A. § 12), and the power of the Interstate Commerce Commission to subpna witnesses, as well as the power of the court to enforce obedience on the part of witnesses, has been a closed matter for many years. Interstate Commerce Commission v. Brimson, 154 U.S. 447, 14 S. Ct. 1125, 38 L. Ed. 1047. The power of the Securities Exchange Commission to obtain information touching the matters confided to it by Congress and the power of the courts in relation to giving appropriate relief to the Commission when persons under subpna refuse to testify without just cause are fully as broad. The question then is whether the respondents had justification for refusing to testify before an officer of the Commission in an investigation; their attempted justification being that the officer declined to agree that they might have copies of their testimony and also declined to permit them to bring along their own stenographer.
It is said that the Commission's own rules provide for the furnishing of transcripts of testimony to parties interested. The reference is to rule IV. But that rule by its terms has to do with "hearings" before the Commission, and there is a plain and broad distinction between a "hearing" and an "investigation" by the Commission, a distinction recognized in the act itself. The hearing referred to in the Securities Exchange Act and in the rules of the Commission is a proceeding of relative formality, generally public, with definite issues of fact or of law to be tried, in which the parties proceeded against have a right to be heard. It is much the same as a trial. It may terminate in a final order. An investigation, on the other hand, is informal, preliminary, and usually private. It is conducted to determine whether grounds exist for taking more formal proceedings. There are no parties in any substantial sense, no definite issues. There is no right to be heard. The argument that the Commission's own rules sustain the respondents' conditions is untenable.
The other argument is that there is something inherently unfair, if not unconstitutional, in requiring a witness to testify in a secret investigation by an administrative agency of the government, without giving *419 him a copy of his testimony or affording him the opportunity to bring his own stenographer. It is no more unfair than the proceedings of a grand jury, whose functions are also investigatory. Secrecy in preliminary inquiry is generally essential for the protection of the innocent as well as the prosecution of the guilty. Ottinger v. Civil Service Commission, 240 N.Y. 435, 148 N.E. 627; People ex rel. Karlin v. Culkin, 248 N.Y. 465, 478, 162 N.E. 487. The power is capable of abuse, but the wrongs that would flow from a requirement of publicity at preliminary investigations would be worse. There is no reason to believe that the officers of the Commission will abuse the powers that are confided to them in the public interest.
The application will be granted without conditions. An order will issue directing the respondents to appear and give testimony regarding the matter under inquiry.
NOTES
[*] Order affirmed 84 F.(2d) 316. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562178/ | 16 So. 3d 841 (2009)
Robert ZIVITZ, Appellant,
v.
Janice ZIVITZ and Gary Zivitz and Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, P.A., Appellees.
No. 2D08-2705.
District Court of Appeal of Florida, Second District.
May 22, 2009.
*843 James E. Aker of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellant.
Darren R. Inverso, Curtis W. Mollohan, and Ryan W. Owen of Norton, Hammersley, Lopez & Skokos, P.A., for Appellees Janice Zivitz and Gary Zivitz.
No appearance for Appellee Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, P.A.
VILLANTI, Judge.
Robert Zivitz, the garnishment defendant below, appeals the trial court's final judgment of garnishment directing the garnishee to disburse $190,388.53 to Janice and Gary Zivitz, the garnishment plaintiffs below. The monies held by the garnishee were proceeds from the sale of a Longboat Key condominium owned by Robert and his second wife, Nancy. Robert claimed the monies were exempt from garnishment pursuant to the homestead exemption, but the trial court held that Robert failed to timely assert that exemption and that he failed to establish excusable neglect. For the reasons set forth below, we affirm.
In 2006, Janice and Gary[1] obtained a judgment against Robert in a promissory note action unrelated to this appeal. On January 15, 2008, Janice and Gary filed a motion for issuance of a writ of garnishment on the law firm of Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec and Westheimer, P.A. (Syprett Meshad). The motion alleged that garnishee Syprett Meshad was holding assets belonging to Robert. A writ of garnishment was served on Syprett Meshad that same day. On January 17, 2008, pursuant to section 77.041, Florida Statutes (2007), Janice and Gary served Robert with a statutory "NOTICE TO DEFENDANT OF RIGHT AGAINST GARNISHMENT OF WAGES, MONEY, AND OTHER PROPERTY." The Notice was sent to Robert's last known address in Alabama. The Notice, which tracked the language set forth in section 77.041, stated:
The Writ of Garnishment delivered to you with this Notice means that wages, money, and other property belonging to you have been garnished to pay a court judgment against you. HOWEVER, YOU MAY BE ABLE TO KEEP OR RECOVER YOUR WAGES, MONEY, OR PROPERTY. READ THIS NOTICE CAREFULLY.
State and federal laws provide that certain wages, money, and property, even if deposited in a bank, savings and loan, or credit union, may not be taken to pay certain types of court judgments. Such wages, money, and property are exempt from garnishment. The major exemptions are listed below on the form for Claim of Exemption and Request for Hearing. This list does not include all possible exemptions. You should consult a lawyer for specific advice.
TO KEEP YOUR WAGES, MONEY, AND OTHER PROPERTY FROM BEING GARNISHED, OR TO GET BACK ANYTHING ALREADY TAKEN, YOU MUST COMPLETE A FORM FOR CLAIM OF EXEMPTION AND REQUEST FOR HEARING AS SET FORTH BELOW AND HAVE THE FORM NOTARIZED. YOU MUST FILE THE FORM WITH THE CLERK'S OFFICE WITHIN 20 DAYS AFTER THE DATE YOU RECEIVE THIS NOTICE OR YOU MAY LOSE IMPORTANT RIGHTS. YOU MUST ALSO MAIL OR DELIVER A COPY OF THIS FORM TO THE PLAINTIFFS AND THE GARNISHEE AT *844 THE ADDRESSES LISTED ON THE WRIT OF GARNISHMENT.
(Emphasis added.) The Notice also warned:
YOU SHOULD FILE THE FORM FOR CLAIM OF EXEMPTION IMMEDIATELY TO KEEP YOUR WAGES, MONEY, OR PROPERTY FROM BEING APPLIED TO THE COURT JUDGMENT. THE CLERK CANNOT GIVE YOU LEGAL ADVICE. IF YOU NEED LEGAL ASSISTANCE YOU SHOULD SEE A LAWYER. IF YOU CANNOT AFFORD A PRIVATE LAWYER, LEGAL SERVICES MAY BE AVAILABLE. CONTACT YOUR LOCAL BAR ASSOCIATION OR ASK THE CLERK'S OFFICE ABOUT ANY LEGAL SERVICES PROGRAM IN YOUR AREA.
(Emphasis added.) The Notice included an exemption claim form that read:
CLAIM OF EXEMPTION AND REQUEST FOR HEARING
I claim exemptions from garnishment under the following categories as checked:
____ 1. Head of family wages. (You must check a. or b. below.)
____ a. I provide more than one-half of the support for a child or other dependent and have net earnings of $500 or less per week.
____ b. I provide more than one-half of the support for a child or other dependent, have net earnings of more than $500 per week, but have not agreed in writing to have my wages garnished.
____ 2. Social Security benefits.
____ 3. Supplemental Security Income benefits.
____ 4. Public assistance (welfare).
____ 5. Workers' Compensation.
____ 6. Unemployment Compensation.
____ 7. Veterans' benefits.
____ 8. Retirement or profit-sharing benefits or pension money.
____ 9. Life insurance benefits or cash surrender value of a life insurance police or proceeds of annuity contract.
____ 10. Disability income benefits.
____ 11. Prepaid College Trust Fund or Medical Savings Account.
____ 12. Other exemptions as provided by law.
________________________ (explain)
(Emphasis added.) Robert did not file a claim of exemption within the time frame set forth by the Notice.
On February 5, 2008, Syprett Meshad filed an answer to the writ of garnishment asserting that it was holding $641,929.18 belonging to Robert and Nancy[2] but that the monies were proceeds from the sale of their homestead marital domicile.[3] The answer also indicated that attorney James E. Aker and his law firm had an interest in a portion of the monies as payment for attorney's fees and costs for his representation *845 of Robert and Nancy in an action unrelated to this appeal.
On February 15, 2008, Janice and Gary served on Robert, by mail, a Garnishment Notice together with a copy of the writ of garnishment and a copy of Syprett Meshad's answer to the writ. The Garnishment Notice stated that Robert had twenty days to move to dissolve the writ of garnishment. The Garnishment Notice also warned that a default would be entered under the writ of garnishment if Robert failed to timely move to dissolve the writ. Robert did not timely move to dissolve the writ.
On March 7, 2008, Janice and Gary filed and served a Motion for Entry of Final Garnishment Judgment, seeking to obtain by garnishment the monies held by Syprett Meshad. Because he had an interest in the monies, attorney Aker received a copy of Janice and Gary's motion. Attorney Aker, although he did not then represent Robert in the garnishment action, also noticed that Robert had not filed any response in the garnishment proceedings and contacted Robert to suggest that he should have counsel regarding the homestead issue.
On March 12, 2008, now represented by attorney Aker, Robert belatedly filed a response to Janice and Gary's Motion for Entry of Final Garnishment Judgment, which also sought to dissolve the writ of garnishment, and that claimed the monies were shielded by virtue of the homestead exemption and that he intended to use his share of the monies to acquire a new homestead. In connection with his motion, Robert filed an affidavit from himself stating that the monies at issue were protected by the homestead exemption and explaining that he did not file a timely exemption claim because his prior conversation with the tax collector's office led him to believe that the monies were protected from any type of execution on a judgment. He also blamed depression for his failure to timely claim an exemption. Robert also filed an affidavit from his Internal Medicine doctor[4] attesting that Robert was suffering from depression. The doctor's affidavit speculated that a person suffering from depression such as Robert's could "pay insufficient attention to legal documents that were served upon him and that required a response . . . by a deadline date" and could make unsound, imprudent, and untimely legal decisions when confronted with legal documents containing deadlines.
On March 24, 2008, Robert also belatedly filed a claim of exemption using the form contained in section 77.041, alleging that the monies at issue were protected by the homestead exemption. Based on the time frame set forth in section 77.041, both the motion to dissolve the writ of garnishment and the exemption claim form were late. Because of these deficiencies, Janice and Gary moved to strike Robert's filings.
At a hearing on May 16, 2008, where no testimony was presented, Robert argued that his failure to comply with the time requirements set forth in section 77.041 did not require or mandate the trial court to enter a garnishment judgment against him. Under Robert's combined interpretation of sections 77.041 and 77.07(2) of the garnishment statute, failing to comply with the statute's time requirements simply placed the matter in a default posture, where he could still move to set aside the default and could get a hearing on the issue of whether the proceeds held by Syprett Meshad were protected by the homestead exemption. Therefore, he asked the trial court to deny Janice and *846 Gary's motion to strike his belated filings and to simply set the matter for a hearing on the issue of whether the monies were protected by the exemption.[5] After hearing the parties' respective arguments, the court noted that section 77.041 repeatedly used the word "must" when identifying the actions a garnishment defendant must proactively take to protect wages, money, or property from garnishment. Therefore, the court concluded that the time constraints set forth in section 77.041 were mandatory and must be strictly enforced. Consequently, because Robert had failed to file a timely exemption claim, he had lost the ability to claim any purported homestead protection over the monies. The court struck Robert's belated filings and ordered Syprett Meshad to disburse to Janice and Gary $190,388.53 of the monies it was holding for Robert.
Robert moved for rehearing or, in the alternative, for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b). In support of his motion, Robert again relied on his previously filed affidavit as well as his doctor's affidavit. He first argued that the court's ruling misinterpreted sections 77.041 and 77.07(2). He also argued that he had met the requirements for relief from the garnishment judgment because he had established excusable neglect. The trial court denied Robert's motion. In its order, the court clarified that it had heard arguments and reviewed all filings prior to making its original ruling that Robert "had not shown any good cause as to why [he] did not comply [with the garnishment statute] despite receiving proper notice." The trial court then denied Robert's motion for rehearing or for relief from judgment, finding that there was still no evidence that Robert did anything other than "take a position of deliberate indifference" to protect his monies, despite the amount of money at issue and despite ample opportunity to assert his rights within the time frame set forth by the garnishment statute. It is from this order that Robert appeals.
As he argued below, Robert first argues on appeal that the trial court erred when it concluded that the language of the garnishment statute required it to strike Robert's untimely homestead exemption claim. In Robert's view, because section 77.041(1) provides that one "may lose important rights" if one fails to timely assert a permitted exemption, the court should have ignored the many instances where the statute provides that a person "must" timely file a claim of exemption within twenty days of receiving notice of the garnishment. See § 77.041(1) (emphasis added). We reject this argument based on clear principles of statutory interpretation.
There are no reported cases in Florida addressing the precise issue presented in this appeal: what effect does a belated homestead exemption claim have in garnishment proceedings? In reaching its decision, the trial court considered the statutory *847 language in light of the undisputed facts, and we review the court's interpretation of the statutory language de novo. See Allen v. State, 873 So. 2d 576, 578 (Fla. 2d DCA 2004) (holding that questions of statutory interpretation are reviewed de novo); Winn-Dixie Stores, Inc. v. Reddick, 954 So. 2d 723, 726 (Fla. 1st DCA 2007) (holding that application of undisputed facts to statute is subject to de novo review); Cadle Co. v. Pegasus Ranch, Inc., 920 So. 2d 1276, 1277 (Fla. 4th DCA 2006) (holding that orders construing garnishment statute are reviewed de novo).
Garnishment proceedings are statutory in nature and require strict adherence to the provisions of the statute. Robinson v. Robinson, 154 Fla. 464, 18 So. 2d 29 (1944); Pleasant Valley Farms & Morey Condensory Co. v. Carl, 90 Fla. 420, 106 So. 427 (1925); Gigliotti Contracting N., Inc. v. Traffic Control Prods. of N. Fla., Inc., 788 So. 2d 1013, 1016 (Fla. 2d DCA 2001). Further, when the legislature has not defined a word used in a statute, such word should be given its plain and ordinary meaning. Fla. Birth-Related Neurological Injury Comp. Ass'n v. Fla. Div. of Admin. Hearings, 686 So. 2d 1349, 1354 (Fla.1997). Here, section 77.041(1) clearly provides that a garnishment defendant must complete and file a claim of exemption and request for hearing within twenty days after receiving a notice of garnishment or else he may lose important rights to his property. The word "must" typically implies a command or requirement. See Merriam-Webster's Online Dictionary, http://www.merriam-webster. com/dictionary/must (last visited March 31, 2009). Therefore, the garnishment statute commanded or required Robert to timely assert any applicable exemptionsincluding the homestead exemptionto protect the monies at issue. To interpret the statute otherwise would render meaningless the time requirements established in the statute for filing claims of exemptions and would result in garnishment defendants filing untimely exemption claims. Such a result would prolong garnishment proceedings and would go against the long-established principle that courts should avoid construing a statute in a manner that renders a portion of the statute meaningless. Winn-Dixie Stores, Inc., 954 So.2d at 728. We also note that section 77.041 does not provide a procedure for a garnishment defendant to file an untimely exemption claim. Rather, it warns that the person can lose important rights by failing to file a timely exemption. Therefore, the trial court's interpretation of the statute was correct.
In our view, contrary to Robert's argument, the isolated use of the phrase "may lose important rights" in section 77.041(1) does not negate the necessity for timely compliance with the statutory time frame set forth in the garnishment statute. The inclusion in the statute of a warning that a person "may lose important rights" by not filing a timely exemption can be easily explained: the warning is included because the mere filing of a claim of exemption does not mean that the person is definitely entitled to the claimed exemption. A person may or may not ultimately qualify for the particular exemption that he has claimed. Regardless, that person must timely claim that exemption in order to proceed, which Robert failed to do. Based on the principle of strict construction, the facts of this case, and the clear language of the garnishment statute, we conclude that Robert failed to establish that the trial court erred in denying his request for relief.
We reject Robert's suggestion that the garnishment statute's requirements should be disregarded simply because *848 this case deals with a potential[6] homestead issue. Robert's argument implies that the homestead defense can be untimely raised because the statutory form for asserting a garnishment defense contained in section 77.041(1) does not include a box specifically labeled "homestead exemption." While we acknowledge the importance of the homestead exemption, we reject this argument. First, the argument defies the plain language of the garnishment statute, which contains a noninclusive list of possible defenses and contains easy-to-understand time frames for the parties' actions. Second, Florida courts have held that the homestead exemption can be abandoned or alienated in a manner provided by law. See, e.g., Nelson v. Hainlin, 89 Fla. 356, 104 So. 589, 591 (1925); Hartwell v. Blasingame, 564 So. 2d 543, 545 (Fla. 2d DCA 1990) (holding that pursuant to section 732.702(1), Florida Statutes, a surviving spouse can waive homestead in a written prenuptial agreement); Haddock v. Carmody, 1 So. 3d 1133 (Fla. 1st DCA 2009) (concluding that pursuant to section 196.061, Florida Statutes, one can abandon property's homestead status by renting it out); Cutler v. Cutler, 994 So. 2d 341, 345 (Fla. 3d DCA 2008) (using proceeds from homestead to pay owner's debt resulted in loss of homestead protection); Novoa v. Amerisource Corp., 860 So. 2d 506, 507 (Fla. 3d DCA 2003) (noting that homestead is abandoned by taking up permanent abode elsewhere at a distant place). Third, if the legislature had intended to allow a garnishment defendant to assert a belated homestead exemption claim, it would have so provided in section 77.041. Cf., e.g., Limbaugh v. State, 887 So. 2d 387, 394 (Fla. 4th DCA 2004) ("[W]e take the omission of any reference to search warrants [in the statute] as a plain legislative decision that search warrants for medical records are not affected by these [statutory] provisions.") (citing Dobbs v. Sea Isle Hotel, 56 So. 2d 341, 342 (Fla.1952)). Here, Robert raised the homestead exemption for the first time on March 12, 2008, when he filed a belated response to the motion for entry of final garnishment judgment and to dissolve the garnishment.[7] Under the facts of this case, nothing precluded the trial court from concluding that he had abandoned his homestead exemption claim over the monies held by Syprett Meshad by failing to timely file an exemption claim.
Robert next argues that pursuant to section 77.07(2), Florida Statutes, the only effect of the garnishment statute was to place him in garnishment default, which the court could set aside if he established due diligence, a meritorious defense, and excusable neglect. Therefore, in Robert's view, the trial court erred in not considering whether he met the usual standard applicable to set aside defaults.
We review the trial court's order denying Robert's motion for relief from judgment under an abuse of discretion standard. See Antuna v. Dawson, 459 So.2d *849 1114, 1118 (Fla. 4th DCA 1984) (holding that trial court abused discretion in denying motion for relief from garnishment judgment); Fla. Power & Light Co. v. Crabtree Constr. Co., 283 So. 2d 570, 572 (Fla. 4th DCA 1973) (applying abuse of discretion standard to decision allowing garnishee to amend answer to writ of garnishment). We find no error in the trial court's ruling.
Initially, we note that the trial court's order on rehearing reflects that the trial court did implicitly consider and reject Robert's excusable neglect claim at the original hearing. Subsequently, it also denied Robert's motion for rehearing or for relief from judgment, albeit without a hearing, and noted that there was "still no evidence to suggest [that Robert] did anything other than take a position of deliberate indifference[.]"
Further, a motion for relief from judgment can be dismissed without an evidentiary hearing if the allegations contained in the motion, together with any accompanying affidavits, fail to allege "`colorable entitlement' to relief." Schindler v. Schiavo (In re Guardianship of Schiavo), 800 So. 2d 640, 644 (Fla. 2d DCA 2001). The party seeking to set aside a default bears the burden of showing that the failure to file a responsive pleading was the result of excusable neglect, that he has a meritorious defense, and that he acted with due diligence in seeking relief from default. Geer v. Jacobsen, 880 So. 2d 717, 720 (Fla. 2d DCA 2004). Here, the trial court did not abuse its discretion in denying Robert's motion, even if it did so without an evidentiary hearing.
In its order, the court stated that Robert's motion for rehearing or for relief from judgmentwhich relied on the same records and affidavits previously fileddid not provide a sufficient explanation for why he had failed to take timely action to respond to the garnishment action. We agree. See, e.g., St. Surin v. St. Surin, 684 So. 2d 243, 244 (Fla. 2d DCA 1996) (holding that husband's affidavit alleging that he did not understand notice of hearing did not establish excusable neglect warranting relief from judgment because "failure to understand the legal consequences of the proceedings does not constitute excusable neglect"); West v. West, 534 So. 2d 893, 894 (Fla. 5th DCA 1988) (finding no excusable neglect where husband claimed that he did not respond to divorce petition because he thought he and the wife were reconciling, as the wife had told him not to worry about the divorce since she was going to drop the matter); Inter-Atl. Ins. Servs., Inc. v. Hernandez, 632 So. 2d 1069, 1070 (Fla. 3d DCA 1994) (affidavit containing conclusory statements was insufficient to establish excusable neglect). As in these cases, neither Robert's motion nor his affidavits demonstrated excusable neglect for failing to timely comply with the statute. The undisputed facts reflect that Robert's conduct amounted to inaction where the statute required affirmative action. Accordingly, the trial court did not err in denying Robert's motion for rehearing or relief from judgment.
Affirmed.
DAVIS and SILBERMAN, JJ., Concur.
NOTES
[1] Janice is Robert's first wife, and Gary is his son.
[2] The portion of funds belonging to Nancy Zivitz is not at issue in this case.
[3] No one argued in this appeal, nor do we imply, that the garnishee's answer should be regarded as anything other than its statutory compliance with section 77.06(2) (requiring garnishee's answer to report any property in its possession or control and the names and addresses "of the defendant and any other persons having or appearing to have an ownership interest in the involved property").
[4] According to his curriculum vitae, Robert's doctor specializes in cardiovascular issues.
[5] Robert is not asserting the homestead exemption to prevent the forced sale of his home for the benefit of creditors in the traditional sense. See Art. 10, § 4, Fla. Const. Robert had already sold his condominium when the garnishment proceedings were instituted. Rather, Robert is asserting the exemption as it applies to the proceeds of the voluntary sale of his condominium. If timely asserted and properly proved, the homestead exemption can be a defense to the seizure of funds in a garnishment action. See Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So. 2d 201 (Fla.1962) (extending homestead exemption to proceeds of the voluntary sale of a homestead if the homeowner meets certain proof requirements to establish the applicability of the exemption); Myers v. Lehrer, 671 So. 2d 864 (Fla. 4th DCA 1996) (applying homestead analysis to garnishment action where garnishment defendant timely asserted homestead exemption).
[6] Because we agree with the trial court's analysis of the issues on appeal, we need not address whether remand is necessary for the trial court to address Janice and Gary's suggestion, raised but not addressed below, that the monies at issue are not protected by the homestead exemption based on Robert's actions, such as his relocation to Alabama and the use of some of the proceeds to pay attorney's fees owed to attorney Aker.
[7] We note that while Robert filed a claim of exemption on March 24, 2008, using the form provided in section 77.041(1), he originally raised the homestead exemption in his March 12 response to Janice and Gary's Motion for Entry of Final Garnishment Judgment and to Dissolve the Garnishment. While section 77.041(1) provides a standard form that can be used to claim an exemption, nothing prevents a garnishment defendant from drafting his own original document to claim an exemption. See Cadle, 920 So.2d at 1278. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562191/ | 16 So. 3d 140 (2009)
TARPLEY
v.
STATE.
No. 2D08-2675.
District Court of Appeal of Florida, Second District.
July 8, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393449/ | 6 Md. App. 404 (1969)
251 A.2d 255
ELWOOD WESLEY BLACKSTONE
v.
STATE OF MARYLAND.
No. 288, September Term, 1968.
Court of Special Appeals of Maryland.
Decided March 19, 1969.
The cause was argued before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
Bernard F. Goldberg for appellant.
Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Richard J. Kinlein, State's Attorney for Howard County, and Cornelius D. Helfrich, Assistant State's Attorney for Howard County, on the brief, for appellee.
ORTH, J., delivered the opinion of the Court.
On 25 January 1968 the appellant was convicted at a court trial in the Circuit Court for Howard County of storehouse breaking with intent to steal goods of the value of $100 or more and grand larceny. Sentence was deferred for pre-sentence investigation. On 7 March concurrent sentences of 4 years were imposed on each conviction. On 11 March the appellant filed an order of appeal and was released on bail. On 29 May a document was filed entitled "Dismissal of Appeal" and read, "Mr. Clerk: Please dismiss appeal to the Court of Special Appeals of *406 Maryland in the above-captioned case." It was signed by the appellant and his attorney. On 5 June the appellant by his attorney filed a "Motion for New Trial Based on Newly Discovered Evidence." See Md. Rule 764b2. On 20 June upon hearing had and testimony taken on the motion, it was denied. Commitment was delivered to the Sheriff of Howard County. On 8 July the appellant in proper person filed a "Motion for Appeal." On 25 July he was released on bail. See Md. Rule 777.
It is not clear from the document filed on 8 July whether the appellant is seeking an appeal from the denial of the motion for a new trial or from the original judgments. If the former, "[i]n this State a motion for a new trial is addressed to the discretion of the court in criminal as well as civil cases, and from an order overruling such a motion no appeal will lie", Williams v. State, 204 Md. 55, 66, at least where, as here, it is not claimed that there was an abuse of discretion. Colter v. State, 219 Md. 190, 191-192. See Hitchhock v. State, 213 Md. 273; Adams v. State, 4 Md. App. 135. The adoption of Rule 764b2 does not affect this general rule; the Committee note thereon states that the subsection "is intended to relate solely to the time within which motions for new trials or other relief on the ground of newly discovered evidence may be filed. It is not intended to make any change in the standards to be applied by the trial court in exercising discretion as to whether or not to grant a new trial."
If the appellant seeks an appeal from the judgment of his convictions and sentences, Md. Rule 1012 requires that the order of appeal be filed within thirty days from the date of the judgment appealed from. Although the appellant filed a timely appeal he dismissed it and the subsequent "Motion for Appeal" of 8 July was filed too late. There is no provision in the Maryland Rules or elsewhere authorizing the lower court to extend the time within which an order of appeal to this Court shall be filed. Cornwell v. State, 1 Md. App. 576. Nor did the filing of a motion for a new trial after conviction and sentence extend the time for filing an appeal. McCoy v. Warden, 1 Md. App. 108, quoting Colter v. State, supra, at 191-192 citing Hayes v. State, 141 Md. 280, 282. See Brown v. State, 237 Md. *407 492. As the appeal here was not filed within the time required, it is dismissed.[1] Md. Rule 1035 §§ a2 and b(2).
Order of appeal dismissed; appellant to pay costs.
NOTES
[1] The motion for a new trial filed 5 June 1968 cannot be treated as an application for post conviction relief. It is clear from the record before us that it was not so considered below by the court, the State or the appellant and it was heard by the same judge who conducted the original trial. Ware v. State, 3 Md. App. 62. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393452/ | 253 Md. 141 (1969)
251 A.2d 882
REEDY
v.
BARBER ET UX.
[No. 165, September Term, 1968.]
Court of Appeals of Maryland.
Decided April 8, 1969.
The cause was argued before HAMMOND, C.J., and BARNES, McWILLIAMS, FINAN and SMITH, JJ.
Philip Fiorello for appellant.
Frank C. Sherrard for appellees.
FINAN, J., delivered the opinion of the Court.
We are presented here with a petition for declaratory judgment in which an interpretation of the will of Hurley H. Reedy is requested. The central question is whether a bungalow known as 567 Otsego Street, Havre de Grace, Maryland and surrounding ground shall pass to Daisy O. Reedy (appellant), wife of the testator, for her life with the remainder to the daughter of Hurley H. Reedy under the fifth clause of the will or shall it pass in fee simple to the wife under the residuary clause of the will. The lower court found that there was a life estate in Daisy O. Reedy with remainder in fee simple to the daughter of the testator.
Hurley H. Reedy, the testator, acquired a parcel of improved real property from J. Earl Heck and wife by a deed dated September 15, 1942. The land fronted on Otsego Street and was *143 known as 571 Otsego.[1] The deed states unequivocally that the four and a fraction combined contiguous lots were known by a single street number. The property was improved by an apartment house which was located on the westerly part of the land, on lots 91 and 92, and the easterly part of the land consisted of a yard or lawn; however, the deed made no reference to the improvements or their location on the property.
On July 12, 1951, the testator married the appellant, she becoming his third wife. At the time of the marriage the testator owned an apartment house in Port Deposit, Maryland and two apartment houses in Havre de Grace, one of those being the building at 571 Otsego Street.
On January 28, 1955, testator executed a will, the interpretation of which is requested here. The will, in pertinent parts, read as follows:
LAST WILL AND TESTAMENT OF H.H. REEDY
"I, H.H. Reedy, of Cecil County, Maryland, do hereby make, publish and declare this as and for my last Will and Testament, hereby revoking all other wills and codicils by me at any time heretofore made.
* * *
*144 "Unto my son, Almer Reedy, of Port Deposit, Maryland, I devise my house at 66 South Main Street, Port Deposit, Maryland, together with all the furniture therein, to be his, his heirs and assigns, forever.
* * *
"Unto my dearly beloved wife, Daisy Reedy, I devise my two apartment houses, located in Havre de Grace, Maryland, to be held by her for the balance of her natural life, and upon her demise, the property at 571 Otsego Street shall go to my daughter, Dorothy V. Barber, absolutely. The house located at 667 Otsego Street shall go to my son, Almer Reedy, absolutely. [This is the fifth paragraph of the will.]
"It is my intention, wish and desire that these two properties be adequately maintained in a good state of repair, kept insured and all taxes paid out of the income therefrom, and the balance to be used by my wife, Daisy, in her sole discretion as she sees fit.
"I hereby empower my wife, Daisy to mortgage or sell either property with the permission of the respective remaindermen, if, in their joint opinion, such seems the provident thing to do for all concerned.
* * *
"All the rest, residue and remainder of my estate, wherever situate and of whatever it may consist, I give, devise and bequeath unto my wife, Daisy, with the direction that she give a small item of my personal jewelry or other personal property to each of the male grandchildren and step-grandchildren as a token of my remembrance, love and esteem, and for each of the female grandchildren and step-grandchildren I direct my wife, Daisy, either to purchase a small piece of jewelry or to give each of them One Hundred Dollars ($100.00) cash, as each may so desire. * * *."
During 1961-62 testator had a dwelling bungalow built on the easterly part of 571 Otsego Street. This bungalow was occupied by the testator and appellant until the testator's death in 1964. The bungalow was referred to as 567 Otsego Street. *145 It is this bungalow which the appellant claims passed to her under the residuary clause of the will and which the lower court found to have passed under the fifth clause of the testator's will.
There was testimony from a tenant of the apartment house (No. 571 Otsego Street), from a carpenter who performed work around the premises for several years prior to the execution of the will, and from the petitioner herself, that the tenants of the apartment house had the use of the easterly portion of the property (the balance of the lot), where the bungalow was later built, and that the children of the tenants used the area as a playground; clotheslines were also strung in the "back yard." There was also testimony that the testator had planned the building of the bungalow for five years prior to its construction in 1961.
The appellant makes much to do about the work she contributed to the operation of the apartment houses of her husband and of her efforts assisting in the construction of the bungalow, including a contribution for colored plaster of $400.00. However, neither her allegations nor her proof support any equitable principle upon which relief could be granted. And, as the lower court aptly pointed out in its opinion, her wifely interest in her husband's projects was not unrewarded as she (his third wife, to whom he had been married just 4 years prior to writing his will) received a life estate in two apartment houses (containing 20 apartment units) and a bungalow.
We are of a mind that there is just one basic issue to be decided on this appeal and that is, whether the lower court was correct in its finding that the erection of the bungalow on the easterly portion of the property then known as 571 Otsego Street was the addition of a fixture or improvement to real estate and under the general principle of the law applicable, became a part of that real estate originally designated as 571 Otsego Street, and nothing more. We think the lower court was correct in this conclusion.
The appellant poses three alternate attacks on the lower court's opinion: (1) that the testator never intended the designation of the property as 571 Otsego Street to include more than the apartment house and the westerly half of the lots involved; (2) that the act of the testator in building the bungalow on the *146 easterly portion of the property designated as 571 Otsego Street, substantially altered the legacy provided for his daughter, amounting to an ademption, thus causing the bungalow to pass to the petitioner by the residuary clause; and (3) that the bungalow should pass through the residuary clause to the petitioner as after-acquired property. We cannot agree with any of these contentions.
I
In the instant case the Court should consider the testator's intentions and the surrounding circumstances and conditions as they existed at the date of the execution of the will and not subsequent to it. Marty v. First National Bank of Baltimore, 209 Md. 210, 120 A.2d 841 (1956), Hebden v. Keim, 196 Md. 45, 75 A.2d 126 (1950), Reese v. Reese, 190 Md. 311, 58 A.2d 643 (1948), Jones v. Holloway, 183 Md. 40, 36 A.2d 551 (1944).
There is no doubt in the Court's mind, that when the will was executed in January of 1955, the testator by his reference to street numbers, "* * * I devise my two apartment houses, * * * the property at 571 Otsego Street shall go to my daughter * * *. The house located at 667 Otsego Street shall go to my son * * *," was referring to all of the property he owned at those specific locations mentioned and 571 Otsego Street included Lots numbered XX-XX-XX-XX and part of Lot number 94, in Square number 229, as marked and laid out on Hooper's Map of the City of Havre de Grace, on the northerly side of Otsego Street. At that time the 10 unit apartment house occupied the westerly half of the whole property and it is our opinion that the testimony set forth in the record supports the logical conclusion that the remaining or easterly half of the property was the "curtilage" for the apartment house.
In Jones v. Holloway, 183 Md. 40, 36 A.2d 551 (1944), this Court stated:
"* * * In determining whether certain appurtenances pass with a home under a devise, the use to which they were put in the testator's lifetime are considered important circumstances. Usually the person to whom a home is devised can claim all appurtenances *147 which were customarily enjoyed by the occupant and which tend to make it a convenient and agreeable place of abode or business. If the devisee himself lived there and enjoyed certain appurtenances, then the inference is especially strong that the testator intended him to continue to enjoy those appurtenances. 2 Jarman on Wills, 7th Ed., 1261, 1262. * * *." Id. at 43-44.
The informality of the description of real estate which courts at times have sanctioned in testamentary instruments is the subject of discussion in 4 Page on Wills (Bowie-Parker Ed.), § 33.19, pp. 322, 323.
"§ 33.19 Description of real property by popular
name, use, etc.
"Since the courts endeavor to enforce the intention of testator whenever the same can be ascertained by the will, it is not necessary that the estate devised by will should be described with the accuracy necessary in the case of a deed. Devises are constantly upheld where the testator has devised real estate by its popular name without any attempt at formal description. * * *.
* * *
"A gift of a house, or of the home place, or of the home with its appurtenances, passes land which is ordinarily used in connection therewith. A gift of the homestead includes the land, buildings and the like which are used in connection with it. * * *."
The appellant argues that in the fifth paragraph of the will the use by the testator of the language "two apartment houses," was intended as a frame of reference and that by application of the principle of construction that a gift by words of general description is not enlarged by a subsequent attempt at a particular description (C.J.S. Wills, § 748, at 143), all that passed under the fifth paragraph of the will, insofar as 571 Otsego Street is concerned, is the westerly half of the whole property on which the apartment house was constructed and that the testator did not intend the remainder of the property at 571 Otsego *148 Street to be included as the curtilage. Appellant further contends that to include the remainder of the lot as the curtilage is to enlarge the general frame of reference.
We think the appellant is in error when he seeks to characterize the use of the wording "two apartment houses" as a general frame of reference employed by the testator. This is not a situation where a general description is followed by a conflicting description or a general description is followed by a specific description which seeks to lessen or enlarge the general description. In fact, in the instant case the property references can only be construed as being supplemental or complimentary to each other.
It is also a principle of construction that "* * * [T]he intention of the testator must be gathered from the four corners of the instrument and from the pertinent circumstances surrounding the testator at the time of its execution." Sykes, Probate Law and Practice, Vol. 1, § 51, at 47, see Maryland cases cited therein.
In the sixth paragraph of the will the testator refers to the devise made in the fifth paragraph as "these two properties" and in the seventh paragraph of the will, regarding the possible future sale or mortgage of the properties by and with the consent of the life tenant and remaindermen, he uses the language "to mortgage or sell either property," thus expressing a unit concept throughout.
To hold that at the time of the execution of the will in January, 1955, the testator in devising 571 Otsego Street intended to limit the gift to the apartment house and the westerly half of the lot it occupied, we must accept the proposition that he intended the then vacant easterly half of the lot to pass by the residuary clause of the will. This would be contrary to his obvious efforts to dispose of his real estate by specific devise. By the third paragraph of the will he left his son "my house at 66 South Main Street, Port Deposit, Maryland, * * *" and by the controversial fifth paragraph we think he intended to devise the remaining two properties he owned. To hold otherwise would also run contrary to the use and enjoyment which the testator himself had experienced with regard to the whole property *149 on which the apartment house was constructed at 571 Otsego Street.
The appellant cited many interesting cases approaching the factual setup of the instant case, wherein a devise of property was made in such a manner as to create a question as to which property or improvements were included in the gift. We do not think it would serve any useful purpose to review these cases, because in the final analysis they do not produce any principles of law which we have not already recited and merely emphasize that each case must be judged on its own merits.
II and III
Proceeding on the premise that at the time of the execution of his will the testator intended the whole lot at 571 Otsego Street to be included in the devise, in the fifth paragraph, we can find no basis for the application of the ademption or after-acquired property theories, which form the second and third alternate attacks of the appellant on the lower court's opinion.
In seeking to impress the theory of ademption on the devise made in the fifth paragraph of the will the appellant relies heavily on the case of In Re Henderson's Estate, 94 N.Y.S.2nd 693 (Sur. Ct. 1950), wherein the testator had left "my farm * * * and the house and lot across from said farm" in trust for his five children. The five children were also residuary legatees. This will was executed in 1931. In 1938 the testator constructed a modern gas station on a corner of the farm property and operated it from 1939 until his death in 1947. The court held that the portion of the farm occupied by the filling station had been so altered as to have lost its original character and identity and that an ademption as to that portion of the farm had occurred, insofar as the devise of the farm was concerned, and accordingly that portion of the farm occupied by the gas station passed by the residuary clause.
We note that Henderson, supra, is an opinion of a surrogate's court and without commenting as to whether or not we think it to be good law, it suffices to say that we do not find it apposite to the case at bar. We do not think the construction of the bungalow on the whole property at 571 Otsego Street substantially altered or changed the character of the property and *150 that it was nothing more than the addition of a fixture or improvement to the real estate. The testimony in the instant case reveals that the testator and his wife worked around the apartment house at 571 Otsego Street and that for many years they lived in the apartment house while keeping up its maintenance. When the testator and his wife moved into the bungalow on the same property they continued to work in and around the apartment house in their efforts to maintain it. In essence, the construction of the bungalow on the same property, into which the testator and his wife moved, was little different than if they had added another unit onto the apartment house for their own use, occupancy and convenience.
Nor do we find any substance to the appellant's contention that the doctrine of after-acquired property is applicable to this case, for the simple reason that it is obvious that we are not dealing with property acquired after the execution of the will. To be sure, the property was further improved after the execution of the will but it was not after-acquired.
The will was executed in January, 1955. As Judge Mackey noted in the lower court, the testator had ample time to change his will, had he so desired, prior to the construction of the bungalow in 1961 and his death in 1964; also, as the lower court further stated:
"The proposed construction [lower court's construction of the will] is rendered still more natural and credible when it is realized that were this apartment house lot to pass by the residue, the daughter would then be receiving only one apartment house while the son was receiving two apartment houses. The evidence is uncontradicted that there was a natural affection and a normal father-daughter relationship between the Testator and his daughter, Dorothy, so one might reasonably expect her to be provided for at least as well as the son. To give effect to the desire of the Petitioner would fail to so provide."
We are of the opinion that the decree of the lower court holding, that the entire property described in the deed from J. Earl *151 Heck et ux to Hurley H. Reedy dated September 15, 1942, and recorded among the Land Records of Harford County in Liber No. 275, folio 47 passes under the fifth paragraph of the will of Hurley H. Reedy dated January 28, 1955, and recorded in Will Records of Cecil County in Will Book B.C.H. No. 1, Vol. 34, page 274, to Dorothy V. Barber in fee simple, after the death of Daisy O. Reedy, life tenant under the will, should be affirmed.
Decree affirmed, appellant to pay costs.
NOTES
[1] The deed describes the property as follows:
"* * * [A]ll those lots or parcels of ground, situate in the City of Havre de Grace, in the Sixth Election District of Harford County in the State of Maryland, and described as follows, to wit:
"BEING designated as Lots numbered 91-92-93-59- and part of Lot number 94, in Square number 229, as marked and laid out on Hopper's Map of the said City of Havre de Grace, on the northerly side of Otsego Street, and now known as No. 561 Otsego Street.
"BEING all and the same lots of ground and improvements, described in a deed dated October 16, 1933, and recorded among the Land Records of Harford County, aforesaid, in Liber S.W.C. No. 227, folio 262, from Meyer H. Getz, Assignee, to the said J. Earl Heck and wife."
The reference to one of the lots as number 59 would appear to be a typographical error as would the reference to the entire parcel as 561 Otsego Street. The proper numbering should have been, as to the lot, number 95 and, as to the whole parcel, 571 Otsego Street. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393453/ | 500 S.W.2d 844 (1973)
Leonardo Ramos LOPEZ, Appellant,
v.
The STATE of Texas, Appellee.
Rene Adolfo GUZMAN, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 46635, 46636.
Court of Criminal Appeals of Texas.
October 24, 1973.
Rehearing Denied November 21, 1973.
*845 Florentino Ramirez, Jr. and Vincent W. Perini, Dallas, for Leonardo Lopez.
Frank A. Holbrook, Killeen, John J. Solon, Dallas, Pat McDowell (on appeal only) Dallas for Rene Adolfo Guzman.
Henry Wade, Dist. Atty., Robert T. Baskett, Asst. Dist. Atty., Dallas, and Jim Vollers, State's Atty., Austin, for the State.
OPINION
DAVIS, Commissioner.
These are appeals from convictions for the offense of murder after a change of venue from Dallas County. Appellants were tried jointly and punishment was assessed at death for each of them.
Trial took place in June, 1971. Judgments were entered on June 29, 1971.
The Supreme Court of the United States, on June 29, 1972, overruled the prior holdings of this and other courts in a per curiam opinion in Furman v. Georgia (death penalty assessed in murder conviction), 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 and in Branch v. Texas (death penalty assessed in rape conviction), 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346, when it held that the imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. On the same day, the Supreme Court cited Furman v. Georgia, supra, in holding that the death penalty constitutes cruel and unusual punishment in a memorandum decision in Stewart v. Massachusetts, 408 U.S. 845, 92 S. Ct. 2845, 33 L. Ed. 2d 744. Also on this same day, the Supreme Court, in memorandum opinions in 120 cases from 28 jurisdictions[1] (408 U.S. 932-941), ordered judgments vacated insofar as they left undisturbed the death penalties imposed, and remanded the cases to the jurisdictions from which they were appealed for further proceedings. Stewart v. Massachusetts, supra, was cited as authority for the court's action in each of these opinions. In light of Stewart v. *846 Massachusetts, supra, and the 120 other memorandum opinions handed down by the Supreme Court on June 29, 1972, we find untenable any argument which urges that the holding in Furman v. Georgia, supra, and Branch v. Texas, supra, is applicable only to the facts in those two cases.
While the per curiam opinion and the nine separate opinions filed by the Justices of the United States Supreme Court, in Furman and Branch, leave much to be desired from the standpoint of clarity, we find the inescapable conclusion to be that the holding in Furman and Branch rendered it impermissible under the Constitution of the United States to impose the death penalty under our then existing statutes.
We also note that reversible error was committed by the following argument by the prosecutor:
"I'm concerned about the open season that is coming on police officers. I believe the same week these officers were killed there were eleven killed in America."
Shortly after the foregoing argument, the State argued:
"Did you see when we arraigned the two defendantsarraigned Lopez, Guzman, asked them what their plea was? They said not guilty. You heard their lawyers say not guilty.
"Well lady and gentlemen of the jury, you know they were lying to you at that time."
The argument that eleven officers were killed the same week was not based on evidence in the trial. Patently, such evidence would not have been admissible had it been offered.
An argument that counsel and accused did not tell the truth when they entered pleas of not guilty constitutes an effort to deny an accused the presumption of innocence to which he is entitled. The entry of a plea to an indictment is not testimony before a jury under oath. Further, such argument strikes at the accused over the shoulders of his counsel. An argument attacking defense counsel in an effort to inflame the minds of the jury to the accused's prejudice can not be condoned. Crutcher v. State, Tex.Cr.App., 481 S.W.2d 113.
In holding that the court's instruction to disregard did not overcome the prejudice and harm caused by the prosecutor's arguments, we are not unmindful that the evidence reveals the senseless killing of three police officers, nor are we unaware of the fact that the sufficiency of the evidence to sustain the conviction is not challenged.
In view of our disposition of the foregoing grounds of error, appellants' other contentions will not be discussed.
For the reasons stated, the judgments are reversed and the causes are remanded.
Opinion approved by the Court.
NOTES
[1] The following Texas cases (in addition to Branch v. Texas, supra), in which the death penalty had been imposed, were among the cases remanded by the Supreme Court on June 29, 1972: Wright v. Beto, 408 U.S. 934, 92 S. Ct. 2850, 33 L. Ed. 2d 746; Smith v. Texas, 408 U.S. 934, 92 S. Ct. 2853, 33 L. Ed. 2d 748; Huffman v. Beto, 408 U.S. 936, 92 S. Ct. 2860, 33 L. Ed. 2d 753; David v. Texas, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 755; Thames v. Texas, 408 U.S. 937, 92 S. Ct. 2863, 33 L. Ed. 2d 755; Tea v. Texas, 408 U.S. 937, 92 S. Ct. 2864, 33 L. Ed. 2d 756; Morales v. Texas, 408 U.S. 938, 92 S. Ct. 2868, 33 L. Ed. 2d 758; McKenzie v. Texas, 408 U.S. 938, 92 S. Ct. 2868, 33 L. Ed. 2d 758; Curry v. Texas, 408 U.S. 939, 92 S. Ct. 2872, 33 L. Ed. 2d 761; Stanley v. Texas, 408 U.S. 939, 92 S. Ct. 2875, 33 L. Ed. 2d 762; Matthews v. Texas, 408 U.S. 940, 92 S. Ct. 2877, 33 L. Ed. 2d 763. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393454/ | 696 S.E.2d 617 (2010)
SPENCER
v.
The STATE.
No. S10A0453.
Supreme Court of Georgia.
June 28, 2010.
*619 Charles H. Frier, Atlanta, for appellant.
Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Elizabeth A. Baker, Asst. Dist. Attys., Thurbert E. Baker, Attorney General, for the appellee.
NAHMIAS, Justice.
A Fulton County jury convicted Gary Spencer of felony murder and other crimes arising out of the shooting death of rival drug dealer Kenneth Morrell. Spencer appeals, arguing that the trial court erred in failing to hold a pre-trial Chandler hearing, see Chandler v. State, 261 Ga. 402, 405 S.E.2d 669 (1991), and failing to ascertain on the record whether he wanted to testify in his own defense. Spencer also argues that he received ineffective assistance of counsel. For the reasons that follow, we affirm.[1]
1. Viewed in the light most favorable to the verdict, the evidence at trial showed the following. Spencer and the victim sold drugs on opposite corners of an intersection in downtown Atlanta. There had been previous altercations between Spencer and Morrell, and shortly before midnight on August 30, 2006, Morrell crossed the street and initiated a conversation with Spencer. The two men began to argue, and Spencer pulled out a gun and fired multiple shots at Morrell before fleeing on foot. Morrell died from multiple gunshot wounds. Several witnesses to the shooting testified at trial.
A police officer found a large wad of cash in small bills and a cell phone in Morrell's pocket. He did not find a gun by the body, but a witness testified that after he heard gunfire, he saw someone approach Morrell's body, empty his pockets of some cash and drugs, pick up a gun that was lying on the ground at his fingertips, and give the gun to an associate of Morrell's across the street.
Spencer was arrested nearby. When taken back to the crime scene, he told officers that he had swallowed a large amount of crack cocaine and wanted to die. Spencer later wrote letters to Monique Boyer asking her not to testify or tell the police anything about his involvement in the shooting.
Spencer does not contend that the evidence was insufficient to support his convictions. Nevertheless, in accordance with this Court's practice in direct appeals of murder cases, we have reviewed the record and we *620 hold that when viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find the defendant guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
2. (a) Changing the rule that had previously applied, this Court held in Chandler that evidence of a victim's specific violent acts against third parties may be admissible where a defendant claims justification (self-defense). See 261 Ga. at 407, 405 S.E.2d 669. The Chandler Court recognized that procedures were needed to govern the introduction of such evidence, requiring advance notice of the defendant's intention to offer such evidence to avoid "unfairness to the state." See id. at 407-408, 405 S.E.2d 669. The Court therefore set forth such procedures on an interim basis, anticipating that "curative procedures to avoid a battle by surprise eventually will be incorporated into the [Uniform Superior Court Rules (USCR)]." Id. at 408, 405 S.E.2d 669. After Chandler, USCR 31.1 was amended and USCR 31.6 was enacted to codify the procedures that now govern the admissibility of Chandler evidence.[2] Among other things, the defendant has the burden of showing the admissibility of Chandler evidence. See USCR 31.6(B).
To meet that burden, the defendant must, at a minimum, (1) follow the procedural requirements for introducing the evidence, (2) establish the existence of prior violent acts by competent evidence, and (3) make a prima facie showing of justification.
Laster v. State, 268 Ga. 172, 174, 486 S.E.2d 153 (1997) (footnotes omitted). The trial court's decision to admit or exclude Chandler evidence is subject to reversal only for abuse of discretion. See Jones v. State, 265 Ga. 138, 141, 454 S.E.2d 482 (1995).
(b) Spencer claimed self-defense, and pursuant to Chandler, he sought to introduce evidence at trial that the victim had robbed several people at gunpoint and had murdered another drug dealer. At a motions hearing about six weeks before trial, the trial court advised that it was unlikely to rule on a Chandler motion prior to trial, explaining that such a motion ensures that "everyone is alerted and the district attorney has good information on preparing for trial," but the evidence is not admissible until the three-part test is met. Spencer served his initial written Chandler motion in timely fashion a month before trial, and he supplemented it a week before trial. The trial court declined to hold a pre-trial hearing on the Chandler evidence, stating that Spencer had yet to make a "prima facie case," to which ruling defense counsel twice responded "Okay."
On the first day of trial, defense counsel asked what he could say about the Chandler evidence in his opening statement, and the trial court responded, "Nothing." Defense counsel then offered to have the defendant testify to establish the prima facie case, but the trial court declined, explaining that Spencer's testimony would not suffice because *621 he could not promise to testify later before the jury. Defense counsel responded, "I agree."
Shortly before the State rested, the trial court raised the Chandler issue outside the jury's presence. The trial court went over each item listed in Spencer's Chandler motion, ruling evidence of several prior acts of violence by the victim against third parties admissible and excluding others, while reserving a ruling on the issue of the victim's alleged involvement in a murder. The defense then began presenting its case. When it came time for evidence about the prior murder to be introduced, the trial court sent the jury out again and heard testimony from a police detective who had investigated the murder case. The trial court ruled that the evidence of the victim's involvement was unreliable hearsay, so the detective was not permitted to testify before the jury.
(c) On appeal, Spencer contends that the trial court committed reversible error by failing to hold a Chandler hearing before trial. However, Spencer did not clearly object to the trial court's decision not to hold the Chandler hearing before trial. Instead, defense counsel responded "Okay" and "I agree" to the court's rulings. Spencer therefore cannot complain about those rulings on appeal. See Earnest v. State, 262 Ga. 494, 496, 422 S.E.2d 188 (1992) ("`Acquiescence completely deprives (appellant) of the right to complain further.'" (citation omitted)).
In any event, Spencer's contention lacks merit. As did Chandler, see 261 Ga. at 408, 405 S.E.2d 669, USCR 31.1 and 31.6 require detailed pre-trial notice of the defendant's intention to present Chandler evidence (and of the State's intention to offer any rebuttal evidence), in order to prevent trial by ambush. Chandler did not require, however, that the trial court hold a hearing on the issue before trial begins. USCR 31.6(B) requires the trial court to conduct a hearing on Chandler evidence outside the jury's presence, during which the judge "may receive evidence on any issue of fact necessary to determine the request." But the rule expressly leaves the timing of that hearing to the discretion of the court, stating that "[t]he judge shall hold a hearing at such time as may be appropriate" (emphasis supplied).
Pre-trial Chandler hearings may be common, see, e.g., Peterson v. State, 274 Ga. 165, 167, 549 S.E.2d 387 (2001); Laster, 268 Ga. 172, 486 S.E.2d 153, but they are not universal, see Stobbart v. State, 272 Ga. 608, 610, 533 S.E.2d 379 (2000). A pre-trial ruling on proposed Chandler evidence may assist the parties and the court in framing the issues to be tried, if the supporting evidence is defined and its admissibility can be determined at that point. But Spencer has identified nothing in the rules or our cases that requires Chandler hearings to be held before trial in every case. Having reviewed the record in this case, we find no abuse of discretion in the trial court's decision as to when to hear and rule on the proposed Chandler evidence, most of which was then admitted, allowing Spencer to present his defense, and the remainder properly excluded as unreliable hearsay.
3. Near the end of the State's case-in-chief, the trial court advised Spencer, on the record, that the decision to testify was his alone and that he should consult with his counsel before making his decision. At defense counsel's request, Spencer was given overnight access to his attorneys to confer about the decision. Spencer then did not testify at trial. During the motion for new trial hearing, defense counsel confirmed that the right to testify had been explained to Spencer and he had decided not to testify.
Spencer now contends that the trial court erred because it did not secure an on-the-record decision from Spencer as to whether he wanted to testify, nor did the court explain to him the consequences of deciding not to testify. He contends that such on-the-record actions by the trial court are required to ensure that a defendant's waiver of the right to testify is knowing and voluntary and that, at a minimum, defense counsel should place on the record a statement of the fact that the defendant has been fully informed of the consequences of not testifying.
Under Georgia law, however, the trial court had no duty to ascertain on the record *622 whether Spencer wanted to testify or to advise him regarding the consequences of his decision. We have said that it is the "better practice" for trial courts routinely to inquire whether a non-testifying defendant desires to waive his right to testify, in order to avoid the type of post-conviction challenge that Spencer raises. Barron v. State, 264 Ga. 865, 865, n. 2, 452 S.E.2d 504 (1995). But we have declined to mandate that trial courts engage in an on-the-record colloquy with criminal defendants about their decision not to testify. See id. at 865 & n. 2, 452 S.E.2d 504.
Requiring trial courts to inject themselves into the discussions between non-testifying defendants and their counsel about whether or not to take the stand would be inappropriate. "In Georgia, whether or not to testify in one's own defense is considered a tactical decision to be made by the defendant himself after consultation with his trial counsel and there is no general requirement that a trial court interject itself into that decisionmaking process." Burton v. State, 263 Ga. 725, 728, 438 S.E.2d 83 (1994). Similarly, while a trial court may obtain a statement on the record that defense counsel has discussed the decision whether to testify with the defendant, such a statement is not required, particularly because any such statement must be elicited carefully so as not to disclose any privileged content of such discussions.
4. Spencer contends that his trial counsel were constitutionally ineffective in two respects. See generally Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (establishing the standards for reviewing claims of ineffective assistance of counsel in violation of the Sixth Amendment).
Spencer points first to the conflicting advice he received from his three lawyers about whether he should testify, asserting that a defendant is entitled to unified advice from counsel. All three of Spencer's lawyers had substantial experience in criminal defense practice. Whether Spencer should testify was an issue they discussed with him from the beginning of the representation, and, as noted previously, the trial court gave Spencer an overnight recess to consult further with counsel before making his final decision. Two of his attorneys thought it was good strategy for Spencer not to testify; his lead attorney disagreed. They presented their advice to Spencer, and he then made the decision not to testify, which was ultimately his decision and not theirs to make. See Davenport v. State, 283 Ga. 171, 174, 656 S.E.2d 844 (2008). Spencer was fortunate to have not one but three experienced lawyers to advise him, and their advice did not in any way violate his Sixth Amendment right. The record shows both that counsel's performance was not professionally deficient and that Spencer has shown no prejudice from their performance. See Strickland, 466 U.S. at 687-688, 104 S. Ct. 2052.
Spencer also points to his counsels' decision not to object and move for a mistrial based on the following portion of the prosecutor's closing argument:
This is your community and these are your streets, and you can say yes to this or you can say no to this. You are today something that you may never be again and something that most of you have never been before. You are the most powerful body in American law. You're it. This is your call. Say no to this on behalf of our community. Find the defendant guilty as charged based on the evidence.
However, Spencer's lead counsel explained at the motion for new trial hearing that his "general rule" is not to object during closing argument unless opposing counsel says "really something extremely over the top," to avoid getting objections during his own closing argument. Lead counsel felt that the prosecutor's argument in this case did not rise to that level. Lead counsel's decision on this point cannot be deemed unreasonable, given that statements akin to the ones the prosecutor made in this case have been held to be within the bounds of permissible argument. See, e.g., Gibson v. State, 283 Ga. 377, 381, 659 S.E.2d 372 (2008) (finding it appropriate for prosecutors to urge the jury to speak on behalf of the community and rid it of robbers and murderers); Laney v. State, 271 Ga. 194, 198, 515 S.E.2d 610 (1999) (finding statement "this is your community" acceptable); Philmore v. State, 263 Ga. 67, 69, *623 428 S.E.2d 329 (1993) (finding it appropriate for the prosecutor to urge the jury to convict for the safety of the community). See also McClain v. State, 267 Ga. 378, 385, 477 S.E.2d 814 (1996) ("A prosecutor may appeal to the jury to convict for the safety of the community or to send a message to others that criminal activities will be punished."). Thus, Spencer has failed to establish that his counsel's performance was professionally deficient in this respect.
Judgment affirmed.
All the Justices concur.
NOTES
[1] The crimes occurred on the night of August 30-31, 2006. Spencer was indicted on November 28, 2006, for malice murder, two counts of felony murder, the predicate felonies of aggravated assault with a deadly weapon and possession of a firearm by a convicted felon, and aggravated assault. On June 15, 2007, after a five-day trial, Spencer was acquitted of malice murder but convicted of the remaining charges. The trial court merged all the convictions into the first felony murder conviction, except for the firearm charge. The court then sentenced Spencer to life in prison for felony murder plus five years consecutive for the firearm conviction. Spencer filed a motion for new trial on July 16, 2007, which he amended on February 20, 2009. The trial court summarily denied the motion on August 12, 2009, and Spencer filed a timely notice of appeal on September 9, 2009. The case was docketed in this Court for the January 2010 Term and submitted for decision on the briefs.
[2] USCR 31.1 provides, in relevant part, that "[n]otices of . . . the intention of the defense to introduce evidence of specific acts of violence by the victim against third persons . . . shall be given and filed at least ten [10] days before trial unless the time is shortened or lengthened by the judge. Such filing shall be in accordance with the following procedures." USCR 31.6 then provides:
(A) The defense may, upon notice filed [in] accordance with Rule 31.1, claim justification and present during the trial of the pending case evidence of relevant specific acts of violence by the victim against third persons.
(B) The notice shall be in writing, served upon the state's counsel, and shall state the act of violence, date, county and the name, address and telephone number of the person for each specific act of violence sought to be introduced. The judge shall hold a hearing at such time as may be appropriate and may receive evidence on any issue of fact necessary to determine the request, out of the presence of the jury. The burden of proving that the evidence of specific acts of violence by the victim should be admitted shall be upon the defendant. The defendant may present during the trial evidence of only those specific acts of violence by the victim specifically approved by the judge.
(C) Notice of the state's intention to introduce evidence in rebuttal of the defendant's evidence of the victim's acts of violence and of the nature of such evidence, together with the name, address and telephone number of any witness to be called for such rebuttal, shall be given defendant's counsel and filed within five days before trial unless the time is shortened or lengthened by the judge. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858099/ | CV3-098-II
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-098-CV
MILESTONE PROPERTIES, INC.,
APPELLANT
vs.
FEDERATED METALS CORPORATION, ASARCO, INC., AND
LONE STAR LEAD CONSTRUCTION CORPORATION,
APPELLEES
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. 437,569A, HONORABLE F. SCOTT McCOWN, JR., JUDGE PRESIDING
Appellant Milestone Properties, Inc. ("Milestone") sought to resurrect certain tort
claims (1) against appellees Federated Metals Corporation, ASARCO, Inc., and Lone Star Lead
Construction Corporation (collectively "appellees"), that Milestone had originally pursued in
separate lawsuits, by including the tort claims in its second amended petition in a suit for judicial
review of a Texas Water Commission hazardous waste order (the "agency appeal"). Milestone
contended that its tort claims related back to claims it had made against the appellees for
contribution and/or indemnity in its first amended petition in the agency appeal. The trial court
rendered summary judgment for the appellees, holding that Milestone's tort claims were barred
by the applicable statutes of limitations. We will affirm in part and reverse and remand in part.
PROCEDURAL BACKGROUND
Milestone and Federated filed separate suits for judicial review of a Texas Water
Commission ("TWC") order. The order directed the two companies to clean up environmental
damage to land that Milestone had purchased from Federated. The suits for judicial review were
consolidated on December 22, 1988, to form the agency appeal. On March 14, 1990, Milestone
filed its first amended petition in the agency appeal that included a cross-claim for contribution
and/or indemnity from the appellees and the Missouri Pacific Railroad Company. On February
6, 1992, Milestone filed its second amended petition, adding the tort claims against the appellees.
The origin of the dispute underlying the tort claims was a 1980 purchase by Milestone from
Federated of approximately fifteen acres of land in the eastern part of Houston, Texas ("the Site").
Federated and Lone Star Lead Construction Corporation, Federated's subsidiary, had used the Site
as a chemical dump for approximately forty years.
On August 1, 1980, Milestone executed an option agreement to purchase the Site
from Federated. The option agreement stated that Federated had deposited "certain materials" on
the site. The agreement also provided that Federated "make available to [Milestone] upon request
all studies [Federated] has obtained with respect to said land and the nature of said materials."
Milestone made such a request, and in response, Federated produced a two-page letter dated June
16, 1980, from Ronald A. Robbins, Supervisor of Laboratory Services for ASARCO, Federated's
parent company, addressed to Federated's Houston plant manager. The letter stated, "I do not
feel the material from the property in question is suitable for top soil or garden soil; however,
providing current slag is not being dumped there, I do not believe the material violates any
existing standards or would be unsuitable for fill." Test results from soil samples taken from the
Site were attached to the letter. Milestone did not conduct its own tests of the Site, although the
option agreement permitted it to do so. Milestone exercised the option agreement and the sale of
the Site closed on December 16, 1980.
In a letter dated July 24, 1986, the TWC notified Milestone that the agency was
planning an investigation to assess the potential presence and effect of hazardous waste at the Site.
The letter notified Milestone of an upcoming public meeting concerning the investigation, to be
held in Houston on August 21, 1986. A Milestone representative attended this meeting. On
November 3, 1986, the TWC gave notice by letter that the Site would be listed on the State of
Texas Registry as containing hazardous waste. On February 5, 1987, Milestone representatives
attended another public meeting held by the TWC to discuss the status of the Site. Soon after this
meeting, on February 10, 1987, the TWC informed Milestone that, as an owner of a State
Registry Site, it must deed record the Site. (2) Finally, on February 1, 1988, the TWC issued an
order directing both Milestone and Federated to remedy the environmental problems caused by
the hazardous wastes dumped at the Site.
Milestone and Federated sought judicial review of the TWC order in separate suits,
which were consolidated to form the agency appeal on December 22, 1988. Meanwhile, believing
that Federated had not fully disclosed the extent of its hazardous waste dumping at the Site,
Milestone filed a separate lawsuit in Travis County against Federated on May 17, 1988 ("Cause
II"), alleging breach of warranty, breach of contract, and DTPA violations. Tex. Bus. & Com.
Code Ann. § 17.46 (West 1987). On March 14, 1990, Milestone filed its first amended petition
in the agency appeal, cross-claiming for contribution and/or indemnity against appellees, and
seeking apportionment of the environmental cleanup costs under the Texas Health and Safety
Code. Tex. Health & Safety Code Ann. §§ 361.276, 361.343, 361.344 (West 1992).
On August 29, 1990, Cause II was placed on the district court's dismissal docket
and was dismissed for want of prosecution on October 17, 1990. Milestone did not file a motion
to reinstate, as permitted under Texas Rule of Civil Procedure 165a(3). See Tex. R. Civ. P.
165a(3).
Instead, Milestone filed a third suit, this time in Harris County ("Cause III"), on
January 23, 1991, three months after the dismissal of Cause II. In this suit, Milestone alleged
common law fraud; real estate fraud, Tex. Bus. & Com. Code Ann. § 27.01 (West 1987); breach
of warranty; commercial frustration; and contribution and/or indemnity. Milestone voluntarily
nonsuited Cause III on June 5, 1992, seventeen months after filing.
Meanwhile, Milestone had returned its attention to the agency appeal. On February
6, 1992, Milestone filed its second amended petition in the agency appeal to include the tort
claims against appellees along with its suit for judicial review of the agency order. On October
6, 1992, appellees responded with a motion for summary judgment on the tort claims, asserting
that they were barred by the applicable statutes of limitations. Milestone raised three arguments
in defense of the summary judgment motion, which now constitute Milestone's points of error on
appeal. First, Milestone contended that the tort claims in its second amended petition filed in
1992 related back to its first amended petition filed in 1990, and thus at least were not barred by
the four-year statute of limitations. Second, Milestone argued that although Cause II was
dismissed for want of prosecution, its filing in 1988 tolled the running of the statutes of limitations
on the tort claims. Third, Milestone urged that disputed fact issues concerning the tolling of the
statutes of limitations made summary judgment inappropriate.
The trial court rejected Milestone's arguments and rendered partial summary
judgment in favor of the appellees on the tort claims on December 23, 1992. The trial court
concluded that "whatever civil claims and causes of action may have accrued to Milestone against
[the appellees] regarding the sale of [the Site] did so more than four (4) years prior to the filing
of Milestone's Second Amended Petition," and that the tort claims asserted in its second amended
petition in the agency appeal did not relate back to any claims made in its first amended petition.
The trial court severed the tort claims subject to the partial summary judgment order, making the
judgment final, and Milestone appealed. We will affirm the summary judgment on Milestone's
DTPA and negligent misrepresentation claims, but will reverse the summary judgment on
Milestone's common law fraud and statutory real estate fraud claims.
DISCUSSION
1. Relation Back of Milestone's Tort Claims to its First Amended Petition
In its first point of error, Milestone argues that the trial court erred in holding that
its tort claims did not relate back to its first amended petition and were therefore barred by
statutes of limitations. We agree.
The primary purpose of statutes of limitations is to insure that claims are asserted
within a reasonable time, giving the opposing party a fair opportunity to defend while evidence
is still available. Matthews Constr. Co. v. Rosen, 796 S.W.2d 692, 694 (Tex. 1990). Statutes
of limitations also insure that notice of claims be given to adverse parties in order to prevent
"fraudulent and stale claims from springing up at great distances of time and surprising the other
party." Hallaway v. Thompson, 226 S.W.2d 816, 820 (Tex. 1950). Thus, limitations establish
a point of repose and terminate stale claims. Murray v. San Jacinto Agency, Inc., 800 S.W.2d
826, 828 (Tex. 1990).
Section 16.068 of the Civil Practice and Remedies Code limits the application of
statutes of limitations to amended pleadings:
If a filed pleading relates to a cause of action, cross action, counterclaim, or
defense that is not subject to a plea of limitation when the pleading is filed, a
subsequent amendment or supplement to the pleading that changes the facts or
grounds of liability or defense is not subject to a plea of limitation unless the
amendment is based on a new, distinct, or different transaction or occurrence.
Tex. Civ. Prac. & Rem. Code Ann. § 16.068 (West 1986). The purpose of section 16.068 was
that "limitation statutes should be relaxed to avoid undue harshness where this can be done
consistently with the true reason of [the] statutes." Lynch v. American Motorists Ins. Co., 101
F. Supp. 946, 949 (N.D. Tex. 1951). See also Oliveros v. Dillon-Beck Mfg. Co., 260 S.W.2d
707, 710 (Tex. Civ. App.--Galveston 1953, no writ) ("The manifest purpose of [section 16.068]
was to liberalize the right of a plaintiff to amend a petition . . . .").
Under section 16.068, if the amended pleading does not allege a wholly new,
distinct, or different transaction, then it relates back to the original filing and is not subject to a
limitations defense. Ex parte Goad, 690 S.W.2d 894, 896 (Tex. 1985). Even if the amended
petition contains new causes of action, the new causes are not barred by limitations unless they
arise from a wholly different transaction. Leonard v. Texaco, Inc., 422 S.W.2d 160, 163 (Tex.
1967). Since section 16.068 is a remedial statute, designed to protect litigants from loss of their
claims by a plea of limitation in cases where that would otherwise occur, section 16.068 "should
be liberally construed and applied to effect that purpose." Republic Nat'l Bank of Dallas v.
Rogers, 575 S.W.2d 643, 647 (Tex. Civ. App.--Waco 1978, writ ref'd n.r.e.). See also Bradley
v. Etessam, 703 S.W.2d 237, 242 (Tex. App.--Dallas 1985, writ ref'd n.r.e.). Accordingly, to
determine whether Milestone's tort claims relate back to its first amended petition, we must
liberally read Milestone's first amended petition, asking whether the tort claims are based on
transactions or occurrences new, distinct, or different from those upon which the claims made in
the first amended petition are based.
Milestone primarily argues that its tort claims relate back to claims for
"contribution and/or indemnity" in its first amended petition. (3) This section of its first amended
petition reads as follows:
In addition, or in the alternative, pursuant to Section 11(b) of the Act, pursuant to
Section 361.344(a) of the Texas Health and Safety Code, and pursuant to the
common law of Texas, Milestone seeks contribution and/or indemnity from
Federated, Lone Star, ASARCO and/or Missouri Pacific, for any costs Milestone
has incurred in the past or will be required to incur in the future as a result of the
administrative order, or any future governmental action or other civil action by
private parties regarding contamination at the Site, such costs to include, but not
be limited to, costs incurred to investigate the contamination on the Site, costs
incurred to eliminate the release or threatened release, attorney's fees incurred to
defend against any claim, agency action or suit by governmental or private entities,
costs to prepare and provide witnesses, and costs of studies, analyses, engineering
reports, tests, consulting fees, or other projects needed to prepare Milestone's case,
and other costs as the Court, in its discretion, considers reasonable. See Tex.
Health & Safety Code § 361.344(a) (Vernon Pamphlet 1990).
(emphasis added). Milestone argues that the allegation in its first amended petition stating that
"[w]hen selling the Site to Milestone, Federated made assurances that any material was not
unsuitable for fill," demonstrates that the factual basis of its tort claims is the same as the factual
basis of its contribution and indemnity claims. This allegation appears under both the headings
"NATURE OF THE CASE" and "FACTUAL BACKGROUND."
We hold that, based on the references to Federated's alleged misrepresentations in
its first amended petition, Milestone's tort claims in its second amended petition relate to its claim
for indemnity and thus are not barred by limitations. Indemnity results in a total shifting of
liability to one tortfeasor, as opposed to contribution, which only results in a partial shifting of
liability. See B & B Auto Supply, Sand Pit, & Trucking Co. v. Central Freight Lines, Inc., 603
S.W.2d 814, 816 (Tex. 1980). More importantly, indemnity is not merely a derivative claim as
is contribution: "[T]he right to indemnity usually arises when one tortfeasor has breached a duty
owed to a co-tortfeasor." Id.; Shoemaker v. Fogel, Ltd., 826 S.W.2d 933, 935 (Tex. 1992)
(characterizing contribution as "derivative of the plaintiff's right to recover from the joint
defendant against whom contribution is sought."). Thus, construing Milestone's first amended
petition broadly, it may be read as seeking indemnity from the appellees based on the alleged
misrepresentations made by Federated to Milestone during the sale of the Site. Further, the
references to the misrepresentations made in the petition were sufficient to apprise the appellees
that the sale of the Site was the "transaction or occurrence" upon which Milestone's indemnity
claim was based.
The appellees contend that Milestone's tort claims cannot relate back to its
contribution or indemnity claims because the latter claims are defective. The appellees cite
authority for the proposition that contribution among joint tortfeasors did not exist at common law
in Texas, and exists only by statute. See Tierra Dev. Co. v. C.W. Settles, 672 S.W.2d 876, 878
(Tex. App.--Corpus Christi 1984, no writ); Lubbock Mfg. Co. v. Perez, 591 S.W.2d 907, 922
(Tex. Civ. App.--Waco 1979, writ dism'd by agr.). Further, the appellees assert that common law
indemnity was virtually abolished in Texas with the adoption of comparative negligence.
Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 819 (Tex. 1984) ("Only a vestige of common
law indemnity remains."). The appellees point out that except for express contractual indemnity,
common law indemnity remains only in cases involving purely vicarious liability and in products
liability cases involving an innocent retailer. See id.
While we recognize that Milestone's claim for indemnity may have been subject
to challenge, either by special exception or by a motion for summary judgment, the appellees
made no such challenge. Further, the defective nature of the indemnity claim does not alter the
fact that it "relates to" the same underlying transaction or occurrence as do the tort claims:
The object of a statute of limitations, requiring a complaining party to assert his
claim within a reasonable time, is to suppress fraudulent and stale claims. But the
filing of a petition tolls the statute of limitations as to every cause of action asserted
in the original petition, and this is true no matter how imperfectly the cause of
action is alleged--even if it is so defective as to be subject to a general or special
demurrer, provided it is filed before the expiration of the statutory period of
limitation and is based upon a proper cause of action described with sufficient
certainty to apprise the defendant of its nature.
Gray v. Laketon Wheat Growers, 240 S.W.2d 353, 355 (Tex. Civ. App.--Amarillo 1951, no writ)
(emphasis added). Given the references to Federated's alleged misrepresentations in Milestone's
first amended petition and that the appellees raised no challenge to Milestone's claim for
indemnity, we cannot say that the claim for indemnity is so defective that Milestone's tort claims
do not relate back to it. (4) Milestone's first point of error is sustained.
2. Statute of Limitations for Negligent Misrepresentation
Under our holding that Milestone's tort claims in its second amended petition relate
back to its first amended petition, only those tort claims that are subject to a four-year statute of
limitations survive. Both parties concede that Milestone's tort claims accrued in July 1986, when
the TWC notified Milestone that the agency planned to investigate the Site for the presence of
hazardous wastes. Thus, since the first amended petition was filed on March 14, 1990, those tort
claims subject to a two-year statute of limitations are barred while those tort claims subject to a
four-year statute of limitations survive.
Accordingly, the common law fraud and real estate transaction fraud claims survive
because they are subject to a four-year statute of limitations. Tex. Civ. Prac. & Rem. Code Ann.
§ 16.004 (West 1986); Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex. 1990) ("[A]ll fraud actions
. . . have a four-year limitation period, regardless of the remedy sought."). The DTPA cause of
action is barred because it is subject to a two-year statute of limitations, Tex. Bus. & Com. Code
Ann. § 17.565 (West 1987). (5) However, the appellees and Milestone dispute whether a claim for
negligent misrepresentation is subject to a two-year or a four-year statute of limitations.
Milestone contends that a negligent misrepresentation claim is subject to a four-year
statute of limitations because it is more like a claim for fraud than a claim for negligence. (6)
Milestone cites Rosenthal v. Blum, 529 S.W.2d 102, 104 (Tex. Civ. App.--Waco 1975, writ ref'd
n.r.e.), which states that negligent misrepresentation "constitutes a specie of remedial fraud in
Texas." However, neither Rosenthal nor the cases that cite it address the issue of whether a two-year or a four-year statute of limitations is appropriate for the tort. (7) Courts of appeals that have
addressed the limitations issue have uniformly held that a two-year statute of limitations is
appropriate for negligent misrepresentation. Texas Am. Corp. v. Woodbridge Joint Venture, 809
S.W.2d 299, 302-03 (Tex. App.--Fort Worth 1991, writ denied) ("Negligent misrepresentation is
properly identified as being a claim sounding in negligence rather than fraud."); Coleman v.
Rotana, Inc., 778 S.W.2d 867, 873 (Tex. App.--Dallas 1989, writ denied) (citing Cook
Consultants, Inc. v. Larson, 677 S.W.2d 718, 721 (Tex. App.--Dallas 1984), rev'd on other
grounds, 690 S.W.2d 567 (Tex. 1985)); Susser Petroleum Co. v. Latina Oil Corp., 574 S.W.2d
830, 832 (Tex. Civ. App.--Texarkana 1978, no writ).
The Texarkana Court of Appeals in Susser Petroleum observed that negligent
misrepresentation, as set forth in section 552 of the Second Restatement of Torts, (8) "imposes
liability upon a party that supplies false information in the course of business for the guidance of
others in their business transactions and it is immaterial whether or not such misrepresentation was
made innocently or deliberately or with a fraudulent or dishonest intent. To be actionable, the
representation need only be false either by accident or intent." Susser Petroleum Co., 574
S.W.2d at 832 (citations omitted) (emphasis added). In contrast, common law fraud requires more
than a mere negligent misrepresentation. To recover on a claim for common law fraud, the
plaintiff must show that: (1) a material representation was made; (2) the representation was false;
(3) when the representation was made the speaker knew it was false or made it recklessly without
any knowledge of its truth and as a positive assertion; (4) the speaker made the representation with
the intent that it should be acted upon by the party; (5) the party acted in reliance upon the
representation; and (6) the party thereby suffered injury. Eagle Properties Ltd. v. Scharbauer,
807 S.W.2d 714, 723 (Tex. 1990); Oilwell Div., United States Steel Corp. v. Fryer, 493 S.W.2d
487, 491 (Tex. 1973) (quoting Wilson v. Jones, 45 S.W.2d 572 (Tex. Comm'n App. 1932,
holding approved)).
Having considered the respective elements of common law fraud and negligent
misrepresentation, we agree that because negligent misrepresentation does not require knowledge,
it "is properly identified as being a claim sounding in negligence rather than fraud" and is thus
subject to a two-year statute of limitations like negligence. Texas Am. Corp., 809 S.W.2d at 303.
See also W. Page Keeton et al., Prosser and Keeton on Torts 740 (5th ed. 1984) (explaining that
misrepresentation "may be separated into the three familiar tort classifications of intent,
negligence, and strict responsibility"). Accordingly, we hold that Milestone's claim for negligent
misrepresentation is subject to a two-year statute of limitations and is therefore barred.
3. Other Points of Error
In its second point of error, Milestone argues that the trial court erred in ruling as
a matter of law that Cause II had been voluntarily dismissed, so that it did not toll the running of
the statutes of limitations on the tort claims. The filing of suit and diligent issuance and service
of citation toll the running of the statute of limitations. Gant v. DeLeon, 786 S.W.2d 259, 260
(Tex. 1990) (per curiam); Rigo Mfg. v. Thomas, 458 S.W.2d 180 (Tex. 1970). However, this
Court has held that "[a]lthough the filing of suit and service of citation interrupt the running of
the statute, its dismissal for want of prosecution will have the same effect as if the suit had never
been filed." Shaw v. Corcoran, 570 S.W.2d 96, 98 (Tex. App.--Austin 1978, no writ) (citing
Shield v. Boone, 22 Tex. 193 (1858); Chambers v. Shaw, 23 Tex. 165 (1859)). Because Cause
II was dismissed for want of prosecution, it did not toll the statute of limitations on Milestone's
tort claims. Milestone's second point of error is overruled.
In its third point of error, Milestone contends that the trial court erred in holding
that there were no genuine issues of material fact pertaining to the running of the statutes of
limitations that precluded summary judgment. Milestone asserts in its brief that the record
contains "fact issues regarding the accrual of Milestone's causes of action on any date before
1986." We have already determined that Milestone's claims subject to the four-year statute of
limitations are not time-barred. With regard to the claims governed by a two-year statute of
limitations, the existence of fact issues regarding their accrual before July 1986 is irrelevant.
Milestone's claims subject to the two-year statute would be barred by the time Milestone's first
amended petition was filed, on March 14, 1990, even if they had accrued as late as February 1,
1988, the date the TWC cleanup order was issued. Thus, since there are no material fact disputes
affecting the statutes of limitations, Milestone's third point of error is overruled.
CONCLUSION
Having found that Milestone's DTPA and negligent misrepresentation claims are
barred by the statute of limitations, we affirm that part of the summary judgment applicable to
those claims, but reverse that part of the judgment applicable to Milestone's common law fraud
and statutory real estate fraud claims, and remand that portion of the cause for trial on the merits.
Mack Kidd, Justice
Before Justices Powers, Jones and Kidd
Affirmed in Part; Reversed and Remanded in Part
Filed: December 8, 1993
Publish
1. Milestone brought claims of fraud, negligent misrepresentation, and violations of
the Texas Deceptive Trade Practices--Consumer Protection Act ("DTPA"), Tex. Bus. &
Com. Code Ann. § 17.46 (West 1987) (collectively "tort claims").
2. An owner of a property listed on the State of Texas Registry as a site containing
hazardous waste must file an affidavit or notice in county property records stating that the
property is listed on the registry. Tex. Health & Safety Code Ann. § 361.188(d) (West 1992).
3. Milestone also argues that its tort claims relate back to its claims for statutory
apportionment of cleanup costs. This argument fails. The tort claims do not relate back
to the statutory apportionment claims under section 16.068 because the former are based
on a "new, distinct, or different transaction or occurrence." Milestone's tort claims are
based on alleged misrepresentations made by Federated during its sale of the Site to
Milestone. In contrast, the apportionment claims arise from the TWC order. Further,
the apportionment claims do not seek affirmative relief from appellees; they instead seek
relief only from the TWC, namely, that the agency apportion more of the cleanup costs to
appellees.
4. The appellees have also argued that because Milestone originally asserted its tort
claims in separate lawsuits, Milestone is barred from relating the tort claims back to its
suit for judicial review. However, even though Milestone may have initially pursued the
tort claims through separate lawsuits which were later abandoned, this does not mean
that as a matter of law that Milestone is foreclosed from seeking to relate back those same
tort claims pursuant to section 16.068.
5. In oral argument, Milestone referred to its "claim for rescission." Having reviewed
the pleadings, we find that Milestone only prayed for rescission of the contract to
purchase the Site as a remedy for their DTPA cause of action. Further, while Milestone
brought a breach of contract claim in Cause II, and a breach of warranty claim in Cause III,
Milestone did not amend its petition in the agency appeal to include either of these claims.
6. To recover for negligent misrepresentation, the plaintiff must prove that: (1) the
defendant made the representation in the course of business or in a transaction in which it
has a pecuniary interest; (2) the defendant supplied false information for the guidance of
others in their business; (3) the defendant did not exercise reasonable care or competence
in obtaining or communicating the information; and (4) the plaintiff suffered pecuniary
loss by justifiably relying on the representation. First Interstate Bank v. S.B.F.I., Inc., 830
S.W.2d 239, 245 (Tex. App.--Dallas 1992, no writ); Cook Consultants, Inc. v. Larson, 700
S.W.2d 231, 234 (Tex. App.--Dallas 1985, writ ref'd n.r.e.) (quoting Restatement (Second) of
Torts § 552(1) (1977)).
7. See Southwestern Clinic of Bone & Joint Diseases v. Farmers Insurance Group, 850
S.W.2d 750 (Tex.App.--Corpus Christi 1993, no writ h.); Metromedia Long Distance, Inc. v.
Hughes, 810 S.W.2d 494 (Tex. App.--San Antonio 1991, writ denied); Great Am. Mortgage
Investors v. Louisville Title Ins., 597 S.W.2d 425 (Tex. Civ. App.--Fort Worth 1980, writ
ref'd n.r.e.); Caldwell v. Overton, 554 S.W.2d 832 (Tex. Civ. App.--Texarkana 1977, no
writ).
8. The Restatement defines negligent misrepresentation as follows:
One who, in the course of his business, profession or employment, . . .
supplies false information for the guidance of others in their business
transactions, is subject to liability for pecuniary loss caused to them by their
justifiable reliance upon the information, if he fails to exercise reasonable
care or competence in obtaining or communicating the information.
Restatement (Second) of Torts § 552 (1977). | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1562251/ | 4 F.2d 246 (1925)
BROWN
v.
UNITED STATES.
No. 4316.
Circuit Court of Appeals, Ninth Circuit.
March 23, 1925.
Lord & Moulton, of Portland, Or., and Walter E. Hettman, of San Francisco, Cal., for plaintiff in error.
John S. Coke, U. S. Atty., and Millar E. McGilchrist, Asst. U. S. Atty., both of Portland, Or.
Before ROSS, HUNT, and RUDKIN, Circuit Judges.
RUDKIN, Circuit Judge.
This is a writ of error to review a judgment of conviction under the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.). The legality of an arrest and seizure without warrant is the only question presented for our consideration.
The defendant in error contends that the question is not properly before us, because there was no objection to the testimony when offered, no motion to suppress, and no application for a return of the property seized, before trial. The case was tried in the court below without a jury, with little or no formality; but we think it sufficiently appears from the record that there was an understanding between counsel for both parties that the legality of the arrest and the competency of the testimony should be determined by the court on the trial, together with the merits of the case, and the court below acted upon that understanding. The question is therefore properly here. Was, then, an arrest without a warrant authorized at the time the arrest was made?
"If the seizure is merely based upon a suspicion, and the facts are not sufficient to justify an arrest, the subsequent discovery by an examination of the evidence, secured by the seizure, that the suspicion was in fact well founded, is not sufficient to make what was unlawful at its commencement a lawful search. * * * The proper test, supported by the great weight of authority, by which this case should be decided, is: Were the circumstances presented to the officers through the testimony of their senses sufficient to justify them in a good-faith belief that plaintiff in error was in their presence transporting liquor in violation of law or that he had in their presence liquor in his *247 possession in violation of law? In other words, was there probable cause for them to so believe, or were the facts sufficient to give rise merely to a suspicion thereof? If the former the arrest was legal and the evidence secured by it admissible. If the latter, the arrest was illegal, and the evidence obtained not admissible." Garske v. United States, (C. C. A.) 1 F.(2d) 620, 625.
The officer who made the arrest was the only witness at the trial. He testified that the plaintiff in error parked his car at the curb of one of the public streets of the city of Portland, removed a package from the back part of the car, and started up the street; that the package was not smooth, and from its appearance might contain bottles; that he then placed the plaintiff in error under arrest; that prior to that time he had been informed that the plaintiff in error was a bootlegger, and that the license number of the car driven by the plaintiff in error had been furnished him, but the source of his information was not disclosed in either case; that on another occasion the plaintiff in error had delivered a package at an office building in the city, and that the form of the package indicated that it might contain two bottles, but what the package contained he did not know, nor did he know what the package in this case contained. Beyond the foregoing, the officer had no knowledge of any kind, and no information from any source, that a crime was being committed in his presence. He testified repeatedly that he had no such knowledge, and that he acted on suspicion only. While an officer may arrest without warrant for reasonable cause, he can only act upon evidence; he cannot act upon mere suspicion.
If, instead of arresting the plaintiff in error, the officer had presented all the facts within his knowledge and all the information at hand to a magistrate, no magistrate would issue a warrant of arrest for the plaintiff in error; no magistrate would hold the plaintiff in error to answer for a crime before another tribunal; no grand jury would indict; no court would submit the case to a jury; and, if the officer were sued for false imprisonment, no court would instruct that the arrest was justified, assuming all the foregoing testimony to be true. If we are correct in these conclusions, and we see no escape from them, the arrest was without authority of law, and the property wrongfully seized was not admissible in evidence.
The judgment is therefore reversed, and the case is remanded for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/661525/ | 14 F.3d 1364
UNITED STATES of America, Plaintiff-Appellee,v.Joseph Christopher FONTENOT, Defendant-Appellant.
No. 91-10593.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted July 15, 1993.Decided Jan. 20, 1994.
Amitai Schwartz, San Francisco, California, for the defendant-appellant.
Stephen L. Meagher, Assistant United States Attorney, San Francisco, California, for the plaintiff-appellee.
Appeal from the United States District Court for the Northern District of California.
Before: HUG, and LEAVY, Circuit Judges, and REAL,* District Judge.
LEAVY, Circuit Judge:
1
Joseph Christopher Fontenot (Fontenot) appeals from his conviction and sentence for traveling in interstate commerce with intent to hire a person to murder his wife, in violation of 18 U.S.C. Sec. 1958.1 We affirm.
FACTS
2
While vacationing in San Francisco with his girlfriend, Suzanna Walton (Walton), during the week of June 7, 1990, Fontenot hired a limousine driver, Marcelo Feldberg (Feldberg). Fontenot told Feldberg that he wished there was some way he could "get rid of" his wife, Catherine, because he feared she would obtain custody of their children. Later, when Fontenot made it clear that he was looking for help in eliminating his wife, Feldberg told Fontenot that he might know of a hit man who would do the job for $3,000-5,000. The men exchanged telephone numbers and agreed to keep in touch.
3
Feldberg made several telephone calls to Fontenot. During one conversation, Fontenot inquired whether Feldberg had found a hit man. Feldberg stated he had yet to do so because he wanted to make sure Fontenot was serious. To show his intention, Fontenot wired Feldberg $1,000 as a down payment on June 18, 1990. Unknown to Fontenot, Feldberg was working as a confidential informant (CI) for the Immigration and Naturalization Service (INS). Feldberg telephoned INS Agent John Fox (Fox) to report Fontenot's proposition.
4
Agent Fox contacted the FBI. The FBI had Agent William Reagan (Reagan) pose as the hit man. Reagan telephoned Fontenot. The men agreed that, in exchange for killing Catherine, Fontenot would pay $2,500 to Reagan to cover initial expenses and, after receiving the proceeds of a $100,000 life insurance policy recently taken out on Catherine's life, Fontenot would pay an additional $10,000 to Reagan.
5
Fontenot traveled from Texas to San Francisco where the two men met. During this meeting, Fontenot provided Reagan with Catherine's physical description, as well as a description of her life-style, personal habits and health problems. At the end of the meeting, Fontenot was arrested.
DISCUSSION
I. Entrapment
6
Fontenot claimed he was entrapped in that Feldberg induced him into planning the crime and hiring Reagan. The jury was given the following instruction:
7
A person is entrapped when the person has no previous intention to violate the law and is persuaded to commit a crime by government agents.
8
On the other hand, where a person is already willing to commit a crime, it is not entrapment if government agents merely provide an opportunity to commit the crime.
9
Shortly after beginning deliberations, the jury sent the court a note, which read:
10
For the purposes of considering the issue of entrapment, was Marcelo Feldberg a government agent? If he was a government agent, when did he become a government agent?
11
In response, the court gave the following instruction:
12
Whether or not Mr. Feldberg was a government agent, and if so when he became a government agent are questions for you to decide. In deciding those questions you should consider that, for purposes of entrapment, someone is a government "agent" when the government directs and supervises his or her activities and is aware of those activities. To be an agent, it is not enough that someone has previously acted as an informant or been paid as an informant by other state or federal agencies or that one expect compensation for providing information.
13
You must look to all of the circumstances existing at the time, and including but not limited to the nature of the informant's relationship with the government, the purposes for which it was understood that he may act on behalf of the government, the instructions given to the informant about the nature and extent of permissible activities and what the government knew about those activities and permitted or used.
14
Those are matters for your consideration. That's not an exhaustive list, but those are the kinds of things that you may consider in deciding whether he was a government agent.
15
Fontenot argues the instruction given in response to the jury's question was error in several ways.
A. Federal Rule of Criminal Procedure 30
16
Fontenot argues the district court violated Federal Rule of Criminal Procedure 30 by failing to notify him that it would give the jury the supplemental instruction on agency, and thus unfairly prevented him from arguing this aspect of the evidence.
Rule 30 provides:
17
At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests.... The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury.
18
Fontenot relies on United States v. Gaskins, 849 F.2d 454 (9th Cir.1988) where we found a prejudicial violation of Rule 30 and reversed. However, Gaskins is distinguishable. There, the district court responded to a jury's question by giving an instruction on aiding and abetting that the government had requested and the court had rejected before argument, as Rule 30 requires. Defense counsel's request for leave to reopen closing argument was denied. Here, neither party requested an instruction on agency, or moved to reopen closing argument.
19
By its terms, Rule 30 applies to instructions requested by a party prior to the close of evidence. United States v. Buishas, 791 F.2d 1310, 1316 (7th Cir.1986); United States v. Newson, 531 F.2d 979, 983 (10th Cir.1976); United States v. Clarke, 468 F.2d 890, 891-92 (5th Cir.1972). Neither Fontenot nor the government requested the instruction. Thus the court had no duty or opportunity to inform counsel of its proposed action on the question from the jury. We hold that Rule 30 does not apply in the absence of a requested instruction which the court initially declined to give.
20
However, if a supplemental jury instruction given in response to a jury's question introduces a new theory to the case, the parties should be given an opportunity to argue the new theory. See United States v. Horton, 921 F.2d 540, 546-48 (4th Cir.1990), cert. denied, --- U.S. ----, 111 S. Ct. 2860, 115 L. Ed. 2d 1027 (1991); United States v. Civelli, 883 F.2d 191, 196 (2d Cir.), cert. denied, 493 U.S. 966, 110 S. Ct. 409, 107 L. Ed. 2d 374 (1989); United States v. Cheek, 882 F.2d 1263, 1279 (7th Cir.1989), vacated on other grounds, 498 U.S. 192, 111 S. Ct. 604, 112 L. Ed. 2d 617 (1991). This result is not dictated by Rule 30, but rather it is required to prevent unfair prejudice.
21
A supplemental instruction which merely clarifies an existing theory does not mandate additional arguments. See Horton, 921 F.2d at 547 (the purpose of Rule 30 would be frustrated if supplemental instructions which present a new theory were given without an opportunity for additional argument); Civelli, 883 F.2d at 196 ("there are special cases where the principles that underlay Rule 30 may very well require that the district court allow further argument after an instruction has been given."); United States v. Smith, 789 F.2d 196, 202 (3d Cir.), cert. denied, 479 U.S. 1017, 107 S. Ct. 668, 93 L. Ed. 2d 720 (1986) (supplemental instructions which materially modify the original instructions could violate Rule 30). Here, the instruction on agency merely clarified Fontenot's entrapment theory.
22
Fontenot contends that his counsel should have been permitted to make further argument to the jury after its question was answered. However, no request for leave to reopen argument was made. We have no ruling to review.B. Submission of Agency Issue to the Jury
23
A finding of entrapment depended upon a finding that Feldberg was a government agent, because one cannot be entrapped by a private citizen. United States v. Cruz, 783 F.2d 1470, 1473 (9th Cir.), cert. denied, 476 U.S. 1174, 106 S. Ct. 2902, 90 L. Ed. 2d 987 (1986). Fontenot argues the district court erred in submitting the agency issue to the jury because Feldberg was a government agent as a matter of law.
24
He argues that the government waived its claim that Feldberg was not a government agent by tacitly admitting Feldberg was an agent when he first encountered Fontenot and by failing to claim that he was not one. Fontenot relies upon the First Circuit's decision in United States v. Annese, 631 F.2d 1041 (1st Cir.1980). In Annese, the First Circuit found that "the evidence established [that the person who may have entrapped the defendant, was a government agent] beyond a reasonable doubt." Id. at 1048. The district court's instruction on agency thus "created a question of fact that did not exist." Id. at 1048. However, here the evidence supported a legitimate question of fact as to whether Feldberg was an agent of the FBI during his first contacts with Fontenot.
25
Fontenot also argues that under Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958), Feldberg was an agent as a matter of law. However, the issue of entrapment is fact-specific. See United States v. Mkhsian, 5 F.3d 1306, 1309 (9th Cir.1993); United States v. Stenberg, 803 F.2d 422, 431 (9th Cir.1986). To have found that Fontenot was entrapped, the jury would have had to find that Feldberg was a government agent during the first few interactions between Feldberg and Fontenot. Whether Feldberg was a government agent was not clear.
26
This was not a case in which the evidence proved beyond a reasonable doubt that the informant was or was not a government agent. See Sherman, 356 U.S. at 374 n. 2, n. 3, 78 S. Ct. at 821-22 no. 2, n. 3 (the informant testified that it was his job, pursuant to his promise to cooperate with the government, to try to find people to sell him narcotics); United States v. Busby, 780 F.2d 804, 806 (9th Cir.1986) (no question that informant was not a government agent as a matter of law where the government was "wholly unaware of [the informant's] activities" and had no agreement with the informant). The facts in this case do not lead to such a definite conclusion. "An informant is not necessarily a government agent." Cruz, 783 F.2d at 1473. Feldberg was not a government agent as a matter of law. This issue of fact was properly submitted to the jury.
27
C. The Supplemental Jury Instructions Correctly State the Law of Agency
28
Fontenot argues the district court's supplemental instruction misstates the substantive law of agency. Fontenot cites Sherman, claiming that case requires that we find the instructions that were based on Busby improper in this case. However, as noted above, the question of agency is fact-specific. Neither Sherman nor Busby dictate a certain result under other circumstances.
29
The district court correctly instructed the jury that "someone is a government 'agent' when the government directs and supervises his or her activities and is aware of those activities." In addition, the kinds of factors the court told the jury to evaluate to determine whether Feldberg was a government agent--"the nature of his relationship with the government, the purposes for which it was understood that he may act on behalf of the government, the instructions given him about the nature and extent of permissible activities, and what the government knew about those activities and permitted or used"--were proper for this factual determination. The district court's supplemental agency instruction correctly stated the substantive law of agency.
30
We find no error in the supplemental jury instruction and affirm.
II. Peremptory Challenge Conference
31
Fontenot argues his conviction must be reversed because he was absent from the peremptory challenge conference, though he was present for the jury voir dire. He contends his absence violated his right to be present during trial in violation of Federal Rule of Criminal Procedure 43(a) and the Fifth and Sixth Amendments to the United States Constitution. Rule 43(a) provides that a defendant must be present "at every stage of the trial including the impaneling of the jury."
32
Fontenot raised this issue for the first time nearly seven months after the verdict. The district court noted that the issue was known to the defendant and his attorney from the beginning and denied the motion as untimely. Fontenot concedes that it was within the district court's discretion to do so, but argues that his absence from the peremptory challenge conference requires reversal because it was plain error. " 'A plain error is a highly prejudicial error affecting substantial rights.' " United States v. Dischner, 960 F.2d 870, 883 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S. Ct. 1290, 122 L. Ed. 2d 682 (1993) (quoting United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S. Ct. 480, 62 L. Ed. 2d 405 (1979)).
33
The government argues Fontenot waived any claim regarding his absence from the peremptory challenge conference because he failed to object to that absence. See Fed.R.Crim.P. 43(b); United States v. Gagnon, 470 U.S. 522, 527-28, 105 S. Ct. 1482, 1484-85, 84 L. Ed. 2d 486 (1985) (per curiam) ("The district court need not get an express 'on the record' waiver from the defendant for every trial conference which a defendant may have a right to attend.... A defendant knowing of such a [conference] must assert whatever right he may have under Rule 43 to be present."). Rule 43(b) provides that a defendant waives his right to be present during a stage of the trial when he, "initially present, ... is voluntarily absent after the trial has commenced." In this case, the record does not show whether Fontenot was voluntarily or involuntarily absent from the peremptory challenge conference. We reject the government's waiver argument.
34
We need not determine whether the peremptory challenge conference is a "stage of the trial" or comes within the terms "impaneling the jury" under Rule 43(a).2 Assuming, without deciding, that the peremptory challenge conference falls within Rule 43(a)'s proscriptions, we nonetheless reject Fontenot's argument of plain error.
35
Fontenot argues that his absence led to the presence of a possibly biased juror, whose close friend was murdered by her former husband, and he was denied his opportunity to assist counsel in the final selection of jurors.
36
After all challenges for cause were made, the parties were given time during a recess to discuss how to use their peremptory challenges. See Excerpt of Record 287-91. Fontenot had the opportunity to discuss his misgivings with counsel during and immediately following voir dire, prior to exercising his peremptory challenges. Peremptory challenges were then apparently exercised in the jury room in the absence of Fontenot. No objection was made. Fontenot had an opportunity to participate at the impaneling of the jury to such an extent that we find no error that was "highly prejudicial ... affecting substantial rights." See Dischner, 960 F.2d at 883.
III. Exculpatory Evidence
37
Fontenot sought to introduce Walton's testimony that, on June 17, 1990, shortly after a telephone conversation between Feldberg and Fontenot, Fontenot told Walton, "They are going to kill Cathy." Additionally, Walton would have testified that, on June 21, 1990, Fontenot told her "something to the effect that he had to go to San Francisco, and that his life was in danger by going, but that his life was in even more danger if he didn't go." The district court excluded these statements as inadmissible hearsay under Federal Rule of Evidence 801. We conclude the district court did not err in doing so.
38
Rulings on the admissibility of evidence are reviewed for abuse of discretion. United States v. Catabran, 836 F.2d 453, 456 (9th Cir.1988). Evidentiary errors do not require reversal unless they more probably than not tainted the verdict. United States v. Lee, 846 F.2d 531, 536 (9th Cir.1988).
39
Fontenot first contends the statements were not inadmissible hearsay under Federal Rule of Evidence 801(c) because they were not offered to prove the truth of the matter asserted. The government concedes that, had Fontenot testified, the statements would be admissible (after cross-examination) as prior consistent statements. However, "[w]ithout Fontenot's testimony, they were out of court statements of his belief offered for their truth and designed to permit those beliefs to be established without subjecting Fontenot to cross-examination." We agree.
40
Fontenot contends that the statements should have been admitted under two exceptions to the hearsay rule: (1) as an excited utterance, Federal Rule of Evidence 803(2);3 or (2) as evidence of his then existing mental or emotional condition, Federal Rule of Evidence 803(3).4 We reject both arguments. While one of the statements occurred after a telephone call that Fontenot's counsel states was "apparently extraordinarily terrifying," the other occurred four days later. This second statement was not an excited utterance. Even if the first statement were an excited utterance, we cannot say that its exclusion "more likely than not affected the verdict." See United States v. Faust, 850 F.2d 575, 585 (9th Cir.1988).
41
The statements likewise do not fall within Federal Rule of Evidence 803(3) as they contain statements of belief, not condition. As we stated in United States v. Emmert, 829 F.2d 805 (9th Cir.1987):
42
"The state-of-mind exception does not permit the witness to relate any of the declarant's statements as to why he held the particular state of mind, or what he might have believed that would have induced the state of mind. If the reservation in the text of the rule is to have any effect, it must be understood to narrowly limit those admissible statements to declarations of condition--'I'm scared'--and not belief--'I'm scared because [someone] threatened me.' "
43
Id. at 810 (quoting United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir.1980) (emphasis omitted)). Fontenot stated in his opening brief that, "the statements would have demonstrated that [Fontenot ] believed his and Cathy Fontenot's lives were in danger" (emphasis added). These statements cannot be admitted under the state-of-mind exception to the hearsay rule. The district court did not err in excluding either statement.
IV. Sentencing Issues
44
Fontenot was sentenced to 108 months in prison under the terms of the sentencing guidelines in effect between November 1989 and November 1990. The base offense level for use of interstate facilities with intent to commit murder for hire was 23, with a guideline range of 57 to 77 months under criminal history category III. U.S.S.G. Sec. 2E1.4 (1989). The district court justified the sentence alternatively on adjustments of the base level and departures from the guideline range.
A. The Adjustments of the Base Level
45
Adjustments of the base level, unlike departures from the sentencing range, are not discretionary. Thus, where the district court gives alternative grounds for a base level adjustment, its sentence can be affirmed as long as one of the alternatives properly supports the adjustment, without regard to whether the other ground is proper. See, e.g., United States v. Hernandez-Valenzuela, 932 F.2d 803 (9th Cir.1991).
1. The First Adjustment
46
The district court increased Fontenot's base offense level by two levels for his refusal to submit to or cooperate in a court ordered psychiatric examination. U.S.S.G. Sec. 3C1.1 (1989) provides:
47
If the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense, increase the offense level by 2 levels.
48
Fontenot contends that an adjustment under U.S.S.G. Sec. 3C1.1 is appropriate only where the evidence sought to be concealed or destroyed was material. He argues the benefit to the prosecution of the psychiatric testing here was, at best, wholly speculative and most likely of no value at all. Because the information would not have assisted in his prosecution, Fontenot concludes, he did not impede his prosecution. See United States v. Reyes, 908 F.2d 281, 290 (8th Cir.1990) (where a defendant "refuses to comply with a court order ... thereby concealing or attempting to conceal material evidence," an enhancement is appropriate), cert. denied, 499 U.S. 908, 111 S. Ct. 1111, 113 L. Ed. 2d 220 (1991).
49
The psychiatric testing which Fontenot refused was necessary for the prosecution to respond properly to his defense of diminished capacity. Fontenot claimed his diminished capacity was due to five brain surgeries which led to mental impairments that negated the specific intent necessary for a conviction. The psychiatric evaluation was material. The district court did not err in imposing a two-level increase under U.S.S.G. Sec. 3C1.1. Fontenot's base offense level at this point is 25. His 108-month sentence exceeds the range set for that level. Thus, we evaluate the remaining justifications the district court cited for the sentence.
2. The Second Adjustment of the Base Level
50
The district court made a second adjustment of two levels based alternatively on Fontenot's abusing a position of trust (U.S.S.G. Sec. 3B1.3) or selecting a vulnerable victim (U.S.S.G. Sec. 3A1.1).
51
a. Abuse of a Position of Trust
52
First, the district court relied on U.S.S.G. Sec. 3B1.3 (1989) to justify the second two-level adjustment. That section provides:
53
If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels.
54
The presentence report concluded that an adjustment under section 3B1.3 was inappropriate because this section was generally applied in fiduciary matters and the United States Sentencing Commission's Position is that it would be "too widespread to apply to a husband and wife relationship." The district court disagreed. It found that a position of trust is inherent in the marital relationship. An adjustment was warranted, the district court concluded, because Fontenot used the information gained from his years of marriage with Catherine to advise Reagan, the FBI agent posing as a hit man, of personal aspects of Catherine's life that could be exploited to facilitate the offense. The district court also noted that Fontenot used his position of trust to persuade Catherine to sign papers related to the insurance policy from which he would benefit on her death.
55
Fontenot contends the district court's adjustment under section 3B1.3 was improper because that section does not apply to spousal relationships. We need not decide this issue. We find the district court erred in its two-level adjustment under section 3B1.3 because, assuming Fontenot occupied a "position of ... private trust", he did not abuse that position "in a manner that significantly facilitated the commission or concealment of the offense." U.S.S.G. Sec. 3B1.3. The statute under which Fontenot was convicted, 18 U.S.C. Sec. 1958, requires only that the defendant travel in interstate commerce with intent that a murder for hire be committed. Fontenot's position of trust via the marital relationship with Catherine did not "facilitate" his travel, or the formation of his intent, or the concealment of this offense. Thus, the district court erred in making a two-level adjustment under section 3B1.3.b. Vulnerable Victim
56
Fontenot contends that the district court's alternative reasoning to support the second adjustment under U.S.S.G. Sec. 3A1.1 was erroneous. U.S.S.G. Sec. 3A1.1 (1989) provides:
57
If the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct, increase by 2 levels.
58
Fontenot argues that his intended victim was no more vulnerable than any other intended victim of a murder for hire. We agree. Any person contracting for a murder for hire is likely to know the intended victim well. The information Fontenot shared with Reagan about his wife did not make her particularly susceptible to the criminal conduct. Nor did Fontenot's convincing his wife to let him take out an insurance policy on her indicate she was particularly vulnerable to a murder for hire. The district court erred in relying on U.S.S.G. Sec. 3A1.1 to support the second two-level adjustment.
59
Because we hold that the second adjustment was in error and the sentence imposed exceeds the range for an offense level of 25, criminal category III, we must determine whether the district court's grounds for an upward departure support the sentence.
B. The Departures from the Sentencing Range
60
The district court gave two alternative reasons for an upward departure: (1) a pecuniary interest, or (2) more than minimal planning. "[W]hile departure decisions are properly reviewed under [U.S.C.] Sec. 3742(f)(2), they are also properly reviewed under [U.S.C.] Sec. 3742(f)(1) when they are the result of an incorrect application of the guidelines ... that govern departure decisions." Williams v. United States, --- U.S. ----, ----, 112 S. Ct. 1112, 1120, 117 L. Ed. 2d 341 (1992) (emphasis in original).
61
In determining whether to remand a sentencing decision we must apply a two-part test: (1) "was the sentence imposed either in violation of law or as a result of an incorrect application of the Guidelines? If so, a remand is required under [U.S.C.] Sec. 3742(f)(1)." Id. If not, we must ask (2) "is the resulting sentence an unreasonably high or low departure from the relevant guideline range? If so, a remand is required under [U.S.C.] Sec. 3742(f)(2)." Id., see also United States v. Henderson, 993 F.2d 187, 188 (9th Cir.1993).
62
"The [Sentencing Reform Act of 1984 as amended] provides that a district court may depart from the sentencing range set by the Guidelines only when it finds that 'there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.' " Williams, --- U.S. at ----, 112 S. Ct. at 1118 (quoting 18 U.S.C. Sec. 3553(b)); see also, U.S.S.G. Sec. 5K2.0 (1989); United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir.1991) (en banc). One justification the district court gave for departing was that Fontenot had a profit motive.
63
Fontenot argues that the sentencing guidelines take a profit motive into consideration in a murder for hire. This is true as applied to the person hired to commit the murder. Fontenot was not hired to kill his wife. Rather, he hired Reagan to kill Catherine. In a typical murder for hire, Reagan, the hit man, would have the profit motive, which the sentencing guidelines adequately take into account. Here, Fontenot, the hirer, also had a profit motive because he would receive the proceeds of a life insurance policy he had taken out on Catherine. Fontenot's profit motive was not adequately taken into consideration by the sentencing guidelines. Thus, his profit motive is a proper ground for this upward departure.
64
The district court alternatively based the departure from the sentencing guideline range on more than minimal planning. Fontenot arranged for life insurance on Catherine. He used the facilities of interstate commerce with intent that a murder for hire be committed, in his first telephone conversation with Reagan. During that conversation, Fontenot and Reagan discussed the price of the service, how much Reagan would need up front, and that Catherine's murder should look like an accident. After that, Fontenot traveled to California, met with Reagan in person, provided Reagan with detailed information on the intended victim, and made specific requests on how the killing should occur and how the body should appear. All of this took more than minimal planning.
65
Because we hold that the departure was not imposed in violation of the law or as a result of a misapplication of the sentencing guidelines, we must next decide whether the departure was reasonable under U.S.C. Sec. 3742(f)(2). Williams, --- U.S. at ----, 112 S. Ct. at 1120. In making this decision, we "examine the factors to be considered in imposing a sentence under the Guidelines, as well as the district court's stated reasons for the imposition of the particular sentence." Id. --- U.S. at ----, 112 S. Ct. at 1121. See also Lira-Barraza, 941 F.2d at 747, 751. We hold that the amount and extent of this departure was reasonable based either on Fontenot's profit motive or on his more than minimal planning.
CONCLUSION
66
Fontenot's conviction and sentence are AFFIRMED.
*
The Honorable Manuel L. Real, Chief United States District Judge for the Central District of California, sitting by designation
1
18 U.S.C. Sec. 1958 provides in relevant part:
Whoever travels in or causes another (including the intended victim) to travel in interstate or foreign commerce, or uses or causes another (including the intended victim) to use the mail or any facility in interstate or foreign commerce, with the intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, shall be fined not more than $10,000 or imprisoned for not more than ten years, or both....
2
We have not yet decided this issue. The Eleventh Circuit has held that a defendant's right to be present and represented by counsel at every stage of the proceedings against him extends to that phase of the jury selection process involving the exercise of peremptory strikes. See United States v. Bascaro, 742 F.2d 1335, 1349 (11th Cir.1984), cert. denied, 472 U.S. 1017 & 1021, 105 S. Ct. 3477 & 3488, 87 L. Ed. 2d 613, 622 (1985)
3
Federal Rule of Evidence 803(2) excepts from the hearsay rule
[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
4
Federal Rule of Evidence 803(3) excepts from the hearsay rule
[a] statement of the declarant's then existing state of mind, emotion, ... (such as intent, plan, motive ...) ... but not including a statement of memory or belief to prove the fact remembered or believed.... | 01-03-2023 | 04-16-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1562323/ | 4 F.2d 118 (1925)
DETROIT MOTOR APPLIANCE CO.
v.
BURKE et al.
District Court, D. Minnesota, Fourth Division.
January 6, 1925.
Paul, Paul & Moore, of Minneapolis, Minn., and C. B. Belknap, of Detroit, Mich., for plaintiff.
*119 F. A. Whiteley, of Minneapolis, Minn., and Charles W. Hills and Charles W. Hills, Jr., both of Chicago, Ill., for defendants.
BOOTH, District Judge.
The above-entitled cause came regularly on, and was duly heard and submitted upon bill, answer, and proof. The suit is for an injunction and for an accounting, for damages and profits on account of alleged infringement of United States patent No. 1,114,246, to F. N. Furber, entitled "temperature controlling apparatus for internal combustion engines."
The patent was issued October 20, 1914; application filed March 31, 1914. Plaintiff became the owner of said patent by mesne assignments from the inventor. One of the purposes or aims of the alleged invention is stated in the specification as follows:
"When an automobile is operated in cold weather, it is found that the cooling system carries the heat away from the engine so rapidly that its temperature is reduced below the point at which it can operate at its highest efficiency. * * * The present invention has for its primary object to devise means for controlling, automatically, the rate of radiation of heat by the watercooling system in such a manner as to maintain the engine at substantially all times during its operation, at an efficiently operative temperature."
There are eight claims in the patent, all of which are relied upon, excepting the seventh, which was withdrawn during the trial. The second claim, which is fairly typical of the first four, reads as follows:
"In an automobile, the combination with an internal combustion engine and a watercooling system therefor, including a radiator, of means adjustable to obstruct more or less the flow of air through the radiator and mechanism for adjusting said means automatically in accordance with the temperature of the water in said system."
The sixth claim, which is typical of the remaining ones, reads as follows:
"In an automobile, the combination with an internal combustion engine and a watercooling system therefor, including a radiator, of a series of adjustable shutters arranged to obstruct more or less the flow of air through the radiator, depending upon their adjustment, and a thermostat in said cooling system, connected with said shutters, to adjust them in accordance with changes in the temperature of the water in said system."
The elements involved are: (1) An internal combustion engine. (2) A water cooling system therefor. (3) A radiator (being part of the cooling system). (4) Shutters, which are adjustable, to regulate the flow of air through the radiator. (5) The thermostat, which is controlled by the temperature of the cooling water, and which in turn controls the adjustment of the shutters. All of these elements are to be combined in an automobile.
It is apparent that each of the claims are combination claims. It is therefore presumed that all of the elements are old or not patentable. Richards v. Chase Elev. Co., 159 U. S. 477, 486, 16 S. Ct. 53, 40 L. Ed. 225; Hay v. Heath Cycle Co., 71 F. 411, 413, 18 C. C. A. 157; Campbell v. Conde Imp. Co. (C. C.) 74 F. 745.
But the fact that all of the elements are old is not conclusive against patentable novelty. Allen v. Grimes (C. C.) 89 F. 869. Nor does the fact that all of the elements are old preclude the possibility of invention. Expanded Metal Co. v. Bradford, 214 U. S. 366, 381, 29 S. Ct. 652, 53 L. Ed. 1034; Steiner, etc., Co. v. Tabor Co. (C. C.) 178 F. 831, 839; St. Louis Street Flushing Co. v. American Street Flushing Co., 156 F. 574, 84 C. C. A. 340. In the last cited case, the court said:
"To accomplish a new and useful result within the meaning of the patent law (section 4886, Rev. St. [U. S. Comp. St. 1901, p. 3382]), it is not necessary that a result before unknown should be brought about, but it is sufficient if an old result is accomplished in a new and more effective way. If the value and effectiveness of a machine are substantially increased, the new combination of old elements, which does it, is patentable."
The issuance of the patent raises the presumption that it is valid; that the device possesses utility and embodies invention. Lehnbeuter v. Holthaus, 105 U. S. 94, 26 L. Ed. 939; Wilkins Shoe-Button Fastener Co. v. Webb et al. (C. C.) 89 F. 982.
The foregoing principles are elementary and should be borne in mind in considering the defenses. The answer sets up three main defenses: (1) Anticipation. (2) Want of invention in view of the prior art. (3) Noninfringement.
Anticipation.
The anticipation relied upon is by three prior patents, viz.: Patent No. 46,898, Hammond, March 21, 1865; patent No. 1,079,765, Hoiland, November 25, 1913; French letters patent No. 317,521, Fouché and Bochet, published September 8, 1902. Inasmuch as both anticipation and lack of *120 invention are set up as defenses, it will be assumed that the term "anticipation" is used in its strict sense, and that by it is meant the disclosure in the prior art of a thing which is substantially identical with the device against which it is cited.
Hammond, No. 46,898, March 21, 1865.
This is a device for regulating a house ventilator. There is no internal combustion engine, no water cooling system, and no shutters to regulate the flow of air through a radiator. The main similarity between Hammond and Furber is that both make use of a thermostatic element for the operation of levers. Such an element, however, is concededly old in the prior art; but the particular art to which the Hammond patent relates is entirely different from the art to which the Furber patent relates, and the structures are entirely dissimilar.
Hoiland, No. 1,079,765, November 25, 1913.
This is a patent for a wind shield for an automobile radiator. It is in the same art as the Furber patent. It differs, however, from Furber in many respects:
(1) It has no independent thermostatic element, but makes use of the whole volume of water in the cooling system, in lieu of such independent thermostatic element. The expansion of this water, caused by being heated by the engine, operates a piston, which in turn operates a shutter in front of the automobile radiator.
(2) Hoiland is dependent on the volume of water, so far as it is operative as a thermo-motor device. When the volume of water decreases slightly, Hoiland can operate only as a steam pressure device.
(3) Hoiland will not operate with a leaky radiator. This is expressly stated in the specifications.
(4) Hoiland has no vent, but the cooling system is a closed one.
According to the testimony of experts in the case, this makes the Hoiland device impracticable to use in the modern automobile, owing to the danger of causing the radiator to explode or collapse. The evidence shows that the radiators of all modern automobiles have vents.
French Patent No. 317,521, Fouche and Bochet, 1902.
This is described as a new system of regulating the temperature of a fluid by means of a surface heat changer. The device consists of a hermetically sealed cooling receptacle, surrounded by a box, having a fan at one end and a shutter at the other end of the box, to regulate the flow of air. The shutter may be operated by hand or automatically by means of a lever attached at one of its ends to the movable core of a solenoid. The specification states:
"The electric current, which actuates the solenoid, may come from any suitable source of electricity carried by means of a system of suitable contacts placed on a thermometer. These contacts are established by the mercury of the thermometer when the mercury rises at a predetermined temperature."
It is apparent, from the whole description of the device given in the specifications, that it was intended to supply a means of cooling a stationary engine, without wasting the cooling water.
In this French patent, as in Hoiland, the hermetically sealed receptacle renders the device inapplicable to an automobile, and therefore prevents the French patent from responding to the claims of the Furber patent. In my judgment, no one of the foregoing patents can be regarded as an anticipation of Furber.
It must be borne in mind, in considering these prior patents as anticipations, that it is not permissible to modify the structures disclosed by such patents, and then claim the modified structure as an anticipation. Eames v. Andrews, 122 U. S. 40, 66, 7 S. Ct. 1073, 30 L. Ed. 1064; Topliff v. Topliff, 145 U. S. 156, 161, 12 S. Ct. 825, 36 L. Ed. 658; Hobbs v. Beach, 180 U. S. 383, 392, 21 S. Ct. 409, 45 L. Ed. 586; Canda v. Michigan Mallable Co., 124 F. 486, 61 C. C. A. 194; Ideal Stopper Co. v. Crown Cork & Seal Co., 131 F. 244, 65 C. C. A. 436; J. L. Owens Co. v. Twin City Separator Co., 168 F. 259, 265, 93 C. C. A. 561.
Nor is it permissible to put together the disclosures of several different patents, to produce an anticipating structure. Imhaeuser v. Buerk, 101 U. S. 647, 660, 25 L. Ed. 945; Parks v. Booth, 102 U. S. 96, 104, 26 L. Ed. 54; J. L. Owens Co. v. Twin City Separator Co., 168 F. 259, 93 C. C. A. 561; St. Louis Street Flushing Mach. Co. v. American Street Flushing Mach. Co., 156 F. 574, 579, 84 C. C. A. 340.
Was There Invention in View of the Prior Art?
The foregoing patents, as well as the following patents, were offered in evidence as part of the prior art: Brock, No. 774,556, November 8, 1904. Lanchester, No. 596,271, December 28, 1897. Pike, No. 367,660, August 2, 1887. Westinghouse, No. 710,385, September 30, 1902.
*121 Brock and Lanchester were before the Patent Office during the prosecution of the Furber application, and it is not necessary to discuss them in detail. I have examined them, however, together with the evidence relating to them, and concur in the result reached by the Patent Office, differentiating and approving the Furber patent. The seal of approval of the Patent Office should not be lightly set aside. Fairbanks Morse & Co. v. Stickney, 123 F. 79, 59 C. C. A. 209; Brill v. North Jersey St. Ry. Co. (C. C.) 124 F. 778; United Shirt & Collar Co. v. Beattie (C. C.) 138 F. 136; Kelsey Co. v. James Spear Co. (C. C.) 155 F. 976; American Caramel Co. v. Glen Rock Co. (D. C.) 201 F. 363.
The Pike patent relates to the art of heating and ventilating houses. It employs a thermostatic element in the form of an expansible rod to open the damper. The employment of this thermostatic element in the device is the nearest point of similarity to Furber.
Westinghouse is for a gas engine. It shows a device for regulating the temperature of the water, leaving the jacket of the engine, by regulating the supply of fresh cool water going into the jacket. The device consists of a thermostatic element, consisting of an expansible rod placed near the outlet of the discharge pipe. This rod, when expanded by the heat of the water, pushes against a lever, which in turn is connected with other levers, which operate to open wider the valves of the intake pipe. The employment of a thermostatic element is here also, the only point of similarity to Furber.
It must be remembered that the prior art relied upon in the case at bar consists entirely of patents, and the rule is, "when it is sought to ascertain the state of the art by means of prior patents, nothing can be used, except what is disclosed on the face of those patents. Such patents cannot be reconstructed in the light of the invention in suit, and then used as part of the prior art." Naylor v. Alsop Process Co., 168 F. 911, 94 C. C. A. 315.
Such being the state of the prior art, the question arises: Was the Furber combination patentable? As stated above, it is conclusively presumed that no one of the elements, taken by itself, was patentable; but it does not follow, because each of the elements is old and nonpatentable, that the patent covering the combination is invalid. The tests are: Has the efficiency of an old process been increased, or has a new and useful result been reached, or has an old result been produced in a better, cheaper, or more effective way? If so, the combination may be patentable. Loom Co. v. Higgins, 105 U. S. 580, 591, 26 L. Ed. 1177; Ottumwa Co. v. Christy, 215 F. 362, 369, 131 C. C. A. 504; Sodemann Co. v. Kauffman (C. C. A.) 275 F. 593, 596; Proudfit Co. v. Kalamazoo Co., 230 F. 120, 144 C. C. A. 418.
Applying these tests to Furber, we find that he has brought together for the first time (in combination with an internal combustion engine, a water-cooling system therefor, and a radiator constituting part of the cooling system, all in an automobile) a separate thermostatic element, so located as to be controlled by the temperature of the water in the cooling system, and so arranged as to control in turn, by means of adjustable shutters, the flow of air through the radiator, thereby accomplishing the result of maintaining the temperature of the engine within predetermined limits.
The Furber patent may not have been a pioneer, but it certainly was a distinct improvement on all that had gone before. The evidence shows that, for years prior to the Furber patent, there had been a need and a demand for a device to accomplish the result brought about by the Furber invention, and that the need was not filled and the demand was not met until the advent of the Furber device.
But it is contended by the defendants that the Furber patent is a mere paper patent, and that no product in accordance with the Furber patent has been produced by the plaintiff. It is true that no device has been produced in evidence that corresponds in all details with the drawings of Furber, but it is to be borne in mind that Furber did not limit himself to any particular form of thermostat, and also that the drawings are expressly referred to as merely an "illustrative embodiment" of the invention. With this in mind, it becomes clear that the several products offered in evidence by the plaintiff as embodying the Furber invention are strictly responsive to the claims of the patent. The different form of thermostat and the different positioning of it (sometimes outside the wall of the radiator, sometimes in the water flow, but always controlled by the temperature of the water in the cooling system), shown in these products in evidence, do not change the Furber combination, nor are they outside the claims of the patent.
It is true that some of the present devices used and claimed to be Furber products *122 have plates attached thereto, noting other patents besides Furber, especially Nielsen, No. 832,701, April 11, 1916. But the fact that the devices, whatever other elements they may contain, clearly respond to the claims of the Furber patent, and the further fact that the plaintiff, owner of the Furber patent, has been receiving for years substantial sums from licensees to manufacture these devices under the Furber patent, would seem to negative the claim that the Furber patent is merely a paper patent. The evidence offered along these lines was admissible.
It is not necessary to consider the Nielsen patent at this time, for, whatever limitations Furber may impose on Nielsen, it is apparent that Nielsen can impose none on Furber. In my opinion, the Furber combination meets the tests above mentioned. In the case of Krementz v. Cottle Co., 148 U. S. 556, 13 S. Ct. 719, 37 L. Ed. 558, the court said:
"It is not easy to draw the line that separates the ordinary skill of a mechanic, versed in his art, from the exercise of patentable invention, and the difficulty is specially great in the mechanic arts, where the successive steps in improvements are numerous, and where the changes and modifications are introduced by practical mechanics. * * * The argument drawn from the commercial success of a patented article is not always to be relied on. Other causes, such as the enterprise of the vendors, and the resort to lavish expenditures in advertising, may cooperate to promote a large marketable demand. Yet, as was well said by Mr. Justice Brown, in the case of Consolidated Brakeshoe Co. v. Detroit Co., 47 F. 894, `when the other facts in the case leave the question of invention in doubt, the fact that the device has gone into general use, and has displaced other devices which had previously been employed for analogous uses, is sufficient to turn the scale in favor of the existence of invention.'"
In Fairbanks, Morse & Co. v. Stickney, 123 F. 82, 59 C. C. A. 212, the court said:
"Even if it be conceded that the individual elements composing the combination are to be found in the prior art, yet, to make the selection of these parts from the prior art, and to combine them, as Hobart did, so as to produce a clutch which is at the same time simple, compact, effective, and useful, required, as we think, more than ordinary mechanical skill. The officials of the Patent Office, with the prior art before them, so found, and granted a patent. This action on their part creates a presumption of patentable novelty, which presumption can only be overcome by clear proof that they were mistaken, and that the combination lacks patentable novelty."
See, also, National Cash Register Co. v. American Cash Register Co., 53 F. 367, 3 C. C. A. 559; St. Louis Street Flushing Mach. Co. v. American Street Flushing Mach. Co., 156 F. 574, 579, 84 C. C. A. 340; Toledo Computing Scale Co. v. Money-weight Scale Co. (C. C.) 178 F. 557, 563; Krell Auto Grand Piano Co. v. Story and Clark, 207 F. 946, 125 C. C. A. 394.
It is contended that the Patent Office did not have before it the prior art disclosed by the above-mentioned patents, except Brock and Lanchester. It is true that these two patents are the only citations in the file wrapper; but this is far from proving that the other patents were not considered. The presumption is that the officials of the Patent Office did their duty, and considered the other patents now brought forward as new prior art. There is no evidence dehors these patents to repudiate this presumption, nor is there anything in the patents themselves which in my judgment should overthrow the presumption.
My conclusion, therefore, is that the Furber combination was patentable, and that the patent is not merely a paper one.
Infringement.
On the trial, two alleged infringing devices, or accused devices, as they are called by counsel, were offered in evidence. One was Exhibit E-1; the other consisted of exhibits numbered 1 and 2 together. At the close of the evidence Exhibit E-1 was eliminated by the court, on the ground that it had not been sufficiently connected with the defendants. Exhibits 1 and 2, constituting the other accused device, remain to be considered.
This accused device is intended to automatically control the temperature of an automobile radiator. Very briefly described, it consists of a set of adjustable shutters, operated through a system of levers by a thermostat, or, as called by counsel, a thermostatic motor. The form of this thermostat is an expansible rod. This thermostat is supplemented by an auxiliary thermostat of the disc form. The auxiliary thermostat is placed against the outside of the rear wall of the radiator, at the lower part. The auxiliary thermostat is controlled by the temperature of the water in the radiator. When the temperature becomes sufficiently hot, the *123 disc expands and pushes a small contact plate into a position between the ends of two wires to complete a circuit. One of these wires is connected with the ignition switch; the other runs to a resistance coil surrounding the expansible rod of the main thermostat. The action of the device is this: The heat of the water in the radiator causes the auxiliary thermostat to expand, thereby pushing the contact member between the ends of the two wires. The electric current passes through to the resistance coil, which heats the expansible rod of the main thermostat, causing it to expand, and thereby to operate the levers attached to the shutters.
It is apparent at once that every one of the elements of the Furber patent are present, and operating in the same way, and producing the same result. Defendants in their brief say:
"The defendants' accused device meets in terms the language of claims 1 to 3, inclusive, if these claims be construed without regard to the limitations imposed thereon by the drawings and the specifications of the Furber patent; but, when claims 1 to 3, inclusive, be interpreted and construed in the light of the disclosure of the drawings and specifications of the Furber patent, then the defendants' accused device does not embody the structure defined by any one of said claims."
By the "limitations" mentioned, counsel doubtless means (1) the form of the thermostat in Furber, and (2) the positioning of the same; but, as seen above, no limitations are placed by the specifications on the form of thermostat, and the drawings simply illustrate one form. The only limitation on the position of the thermostat is that it be so placed as to be controlled by the temperature of the water in the cooling system. It is true defendants' auxiliary thermostat is placed in a different position from any shown by Furber, but, as testified to by the witness Brush, the exact place in which the thermostat is located is not of vital importance, so long as it is controlled by the temperature of the cooling water; different locations simply make necessary different adjustments of the thermostat.
The fact is that the defendants' auxiliary thermostat is placed in a less favorable position than the thermostat in Furber, and for this reason is less efficient, and for this reason, also, has been supplemented by the additional force of electricity to help operate the so-called main thermostat. But decreased efficiency does not avoid infringement. Penfield v. Chambers, 92 F. 630, 34 C. C. A. 579; King Ax Co. v. Hubbard, 97 F. 795, 38 C. C. A. 423; Murray v. Detroit Co., 206 F. 465, 124 C. C. A. 371.
It is also elementary that the addition of an extra element to a combination does not avoid infringement. The primal controlling power over both the simple thermostatic element of Furber, as well as the more complex thermostatic element of defendants, is the temperature of the water in the cooling system. The influence of the temperature of the air surrounding the devices is merely incidental. In my judgment, claims 1, 2, and 3 of Furber are infringed by defendants' device.
From what has been said, it follows that claim 4 of Furber is also infringed. This claim makes the thermostat an independent element. It is also an independent element in defendants' device. The form is immaterial. The double thermostatic element of defendants, whether it is called a thermomotor or an electric motor, is the exact mechanical equivalent of the simple thermostatic element of Furber, even within the reasonably narrow range of equivalents allowable to the Furber patent.
Claims 5, 6, and 8 call for a thermostat in the cooling system. In the drawings of Furber the thermostat is shown immersed in the water. In defendants' device the auxiliary thermostat is pressed against the wall of the radiator; it is contended that therefore it is not in the cooling system. The same contention might be made if the thermostat was inclosed among the cells of the radiator, being in contact with them, but not with the water in the cells.
In view of the nature of the function to be performed by the thermostat in the combination of Furber, and in view of the sole vital requirement that it be controlled by the temperature of the water in the cooling system, it may be doubtful whether the words "in the cooling system," in claims 5, 6, and 8, necessarily mean immersed in the water of the cooling system. The words may simply mean so positioned with reference to the cooling system as to be under the controlling influence of the temperature of the water therein.
If it is not permissible to give this latter meaning to the words "in the cooling system," then, in my judgment, the defendants' method of bringing their thermostat within the controlling influence of the temperature of the water in the cooling system is the mechanical equivalent of the method of Furber. The presence of the additional sheet of metal, wafer-like in thinness, between the water in the cooling system and the thermostatic *124 element in defendants' device, does not alter either the purpose, the action, or the result.
Summing up: Patent No. 1,114,246 is valid, and is owned by plaintiff. Claims 1 to 4, inclusive, and claims 5, 6, and 8, of said patents, are each valid, and are each infringed by defendants' device.
A decree may be prepared in accordance with this decision, and submitted to counsel for defendants' as to form, before being submitted for signature. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562337/ | 4 F.2d 327 (1925)
QUAKER CITY CAB CO.
v.
FIXTER.
No. 3217.
Circuit Court of Appeals, Third Circuit.
March 10, 1925.
C. William Freed, of Philadelphia, Pa., for plaintiff in error.
Howard Kirk, of Philadelphia, Pa., for defendant in error.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
DAVIS, Circuit Judge.
Walter Fixter, plaintiff's intestate, was struck and killed by a taxicab belonging to the defendant company at Broad and Spring Garden streets in the city of Philadelphia on April 13, 1923. Broad street runs practically north and south, and Spring Garden east and west, a little southeast and northwest. On Friday, April 13, 1923, at about 20 minutes after 9 o'clock in the evening, the deceased was crossing Broad street, from the east to the west side, at its intersection with Spring Garden. Just before he reached the west side of Broad street, he was struck by the cab, which was traveling south on Broad *328 street. Suit was brought against the cab company to recover damages for his death. The jury rendered a verdict for the plaintiff, and the defendant has brought the case here on writ of error.
The defendant contends that the evidence shows, first, that it was not negligent; and, second, that the deceased was guilty of contributory negligence, and therefore the plaintiff should have been nonsuited. It is admitted that at the time of the accident it had been raining hard for some time. Both Broad street and Spring Garden street are unusually wide at their intersection. The driver testified that, when crossing Spring Garden street, he was driving about 18 miles an hour. There was testimony, however, that the "car was going not less than 35 to 40 when it hit that man." There was testimony that the deceased was crossing Broad street against the traffic sign. There was also testimony that, when he started to cross Broad street, the lights were set for him to go that is, against traffic on Broad street, and for the movement of traffic on Spring Garden street; that after he had committed himself to crossing Broad street, but before he was able to reach the west side, and at about the time the taxicab going south on Broad street reached Spring Garden street, the lights were turned against traffic on Spring Garden street, and for the movement of traffic on Broad street.
As to the relative rights of vehicles and pedestrians, vehicles have the right of way on the portion of the street set aside for them, but at crossings, all drivers, particularly of motor vehicles, must be highly vigilant, and maintain such control of their vehicles that they can stop their cars on the shortest possible notice. McClung v. Pennsylvania Taxi Cab Company, 252 Pa. 478, 97 A. 694; Yeager v. Gately & Fitzgerald, 262 Pa. 466, 106 A. 76; Anderson v. Wood, 264 Pa. 98, 107 A. 658. If the deceased did not start to cross Broad street against the traffic signals, and had without negligence committed himself to the crossing, he had the superior right of way against a vehicle thereafter approaching. Anderson v. Wood, supra; Twinn v. Noble, 270 Pa. 500, 113 A. 686. If, on the other hand, he started to cross against the traffic signs, he was guilty of negligence.
The testimony on the issues in the case is inconsistent and contradictory. Under such circumstances, it was the duty of the court to submit the case to the jury, whose province it was to reconcile conflicting statements and determine the facts upon which its verdict was based. Kennelly v. Waropoyak, 266 Pa. 94, 109 A. 608.
Was the amount of the verdict excessive? All the facts disclosed by the evidence relating to the question of damages was reviewed by the court, and properly submitted to the jury without exception by counsel, and we cannot say that the damages awarded were excessive.
The plaintiff was widow of the deceased and administratrix of his estate. She started her suit in common pleas court No. 1 of Philadelphia, as administratrix, within three, months after the accident, and not as widow, as the law in Pennsylvania required. In her statement of claim, however, she did declare that she was widow of the deceased and administratrix of his estate and was entitled to recover damages as "his widow." The cause was removed to the United States District Court for the Eastern District of Pennsylvania. It was not discovered by any one at least, attention was not called to it that she had wrongly entitled her cause of action until May, 1924, when a motion for a new trial was argued. It was then raised for the first time by counsel for defendant. More than one year had elapsed since the deceased died, and the statute of limitations prevented a new action from being instituted.
The trial judge permitted plaintiff to amend by striking out, in the first and last paragraphs in the statement of claim, as surplusage, the words "administratrix of the estate of Walter Fixter, deceased." Defendant contends that this in substance constituted a new action, and was error. It abundantly appeared in the statement of claim that the plaintiff was widow, as well as administratrix, and we think that the amendment was one of form, and not of substance, and in such case an amendment may be made under sections 948 and 954 of the Revised Statutes of the United States (Comp. St. §§ 1580, 1591). Federal courts are very liberal in allowing amendments to prevent a miscarriage of justice. McDonald v. State of Nebraska, 101 F. 171, 41 C. C. A. 278; Murphy v. Stewart, 43 U. S. (2 How.) 263, 281, 11 L. Ed. 114; Reardon v. Balaklala Consolidated Copper Co. (C. C.) 193 F. 189.
The facts in the case of Van Doren v. Pennsylvania Railroad Company, 93 F. 260, 35 C. C. A. 282, were practically identical with those in the case at bar. Suit was here brought as administratrix, and not as widow. Plaintiff sought to amend by substituting "widow" for "administratrix." This court, with reference to the allowance of the *329 amendment, said: "Substantial justice requires that such an amendment should be allowed, as a second suit for damages for the death of Henry Van Doren would be barred by the one year limitation in the Pennsylvania statute." The decision in that case is dispositive of the questions relating to the amendment raised here.
We do not find that the learned trial judge committed error, and the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562342/ | 4 F.2d 688 (1924)
ALLEN et al.
v.
UNITED STATES.
No. 3322.
Circuit Court of Appeals, Seventh Circuit.
October 17, 1924.
Rehearing Denied February 16, 1925.
*689 David D. Stansbury, of Chicago, Ill., for plaintiffs in error Blaz A. Lucas and others.
Stephen A. Clinehens, of Indianapolis, Ind., for plaintiffs in error Mary Allen and others.
James W. Noel, of Indianapolis, Ind., for plaintiffs in error Lewis E. Barnes and others.
C. B. Tinkham, of Hammond, Ind., for plaintiffs in error Bryan S. Narcovich and others.
Clair McTurnan, of Indianapolis, Ind., for plaintiff in error Clyde Hunter.
Moses B. Lairy, of Indianapolis, Ind., for plaintiff in error Roswell O. Johnson.
Alexander G. Cavins, of Indianapolis. Ind., for the United States.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
EVAN A. EVANS, Circuit Judge.
Defendants, 75 in number, were indicted for an alleged violation of section 37 of the Criminal Code (Comp. St. § 10201), conspiracy; the indictment being set forth in five counts. A demurrer to the fifth count was sustained, and the remaining four charged defendants *690 with a conspiracy (a) to transport intoxicating liquor; (b) to sell intoxicating liquor; (c) to maintain a large number of nuisances in violation of the National Prohibition Law; (d) to "unlawfully * * * manufacture, transport, sell, possess for sale and barter, intoxicating liquor."
Of the 75 defendants named in the indictment, 7 were never arrested, 5 pleaded guilty before trial, and 63 went to trial. Of these 63, the court dismissed the case as to 1, 7 were acquitted by the jury, and 55 were convicted. Later, a motion for a new trial was granted as to 1, and 2 others were discharged on motions in arrest of judgment.
Judgments imposed upon the remaining 52 range from a penitentiary sentence of 18 months and a fine of $2,000, to imprisonment for 10 days. Forty-two of the remaining 52 prosecuted separate writs of error, though 3 of these have since served their sentences. The other 10 accepted the judgment, and have served their sentences.
Defendants have been grouped and divided by counsel into classes, and for convenience we adopt the classification:
"(a) The first group as disclosed by the evidence was composed of certain persons who held the office of justice of the peace, together with certain constables and other persons known as `high-jackers,' the chief of whom appears to have been Daniel Malloy, who was called as the first witness for the government.
"(b) Another group consisted of the sheriff of Lake county and his predecessor in office, together with numerous deputy sheriffs.
"(c) Another group consisted of the judge of the city court of Gary, the prosecuting attorney and his predecessor in office, and certain lawyers of the city of Gary, whose practice was largely in the city court.
"(d) By far the most numerous group of the defendants was composed of persons engaged in the ostensible business of operating soft drink parlors in the city of Gary, and who had been detected in the sale of intoxicating liquor."
The assignments of error are directed to (a) the sufficiency of the indictment; (b) the failure to grant a continuance; (c) failure to grant a change of venue; (d) failure to grant a new trial because of the undue influence of newspaper articles; (e) admissibility of evidence; (f) instructions to the jury; (g) failure to discharge defendants for want of proof to support a conviction.
While an effort to shorten the printed record, to avoid duplication of argument, and lighten the burden of this court has been made, the case is one of innumerable difficulties. Various defendants and groups of defendants have submitted briefs, with the result that over 1,250 pages of printed briefs and arguments have been filed by them, and in each one it is earnestly contended that the evidence fails to disclose a conspiracy to violate the National Prohibition Act in any of the ways set forth in the indictment; and, secondly, that it fails to show guilty participation by any one of the defendants in the conspiracy, if one can be found.
It is admitted that the evidence may show guilty participation by certain of the defendants in a great number of criminal offenses, but it is denied that they participated in the particular conspiracy here charged.
Before discussing the evidence, it may be well to point out that the rule laid down in Applebaum v. United States (C. C. A.) 274 F. 43, and frequently followed by this court (Holy v. United States, 278 F. 521; Grossman v. United States, 282 F. 790, 793; Wolf v. U. S., 283 F. 885, 888; Talbot v. U. S., 286 F. 21; Inks. v. United States, 290 F. 203), must govern us in determining whether there is present a jury question. It is of no avail for counsel to cite cases which have attempted to draw a distinction between "evidence" and "substantial evidence," or to point to an occasional decision where the appellate court weighed the evidence and reviewed the decision of the jury, upon a disputed issue of fact, for such is not the rule in this jurisdiction. The right of an accused to a trial by jury upon all issues of fact is guaranteed by the Fifth Amendment to the Constitution. But the accused cannot have both a trial by a jury, and a retrial by an appellate court. If the evidence be conflicting, then the issue is one for the jury, and no asserted distinction between "evidence" and "substantial evidence" can afford a basis for a modification of this rule.
On a motion for a new trial, the District Judge may set aside the verdict and grant a trial, notwithstanding the evidence is conflicting. But his action in so doing or refusing to do so is not subject to review by this court.
Another rule which can not be ignored in cases of this kind where the appellate court is asked to review the testimony to ascertain whether any evidence may be found to support the verdict, relates to the testimony of accomplices. However bitterly such testimony may be assailed before the jury, the fact remains that it alone may support *691 a verdict. Caminetti v. United States, 242 U. S. 495, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; United States v. Heitler (D. C.) 274 F. 401. Upon appeal its weight or credibility is not involved. Whether they, or any of them, were moved by revenge or any other unworthy motive, whether they told the truth in part or in whole, was for the jury to determine.
Evidently their testimony was believed, and, if accepted, a condition was disclosed as shocking as may be found in the annals of municipal government. They described a situation where, from police to mayor, from bailiff to the court, corruption was rampant, vice was protected, bribery was common, and justice was a mockery. Moneys were collected from the dens of vice to secure the election of officials who were or became the partners of the grafter, the moonshiner, and the operators of bawdy-houses. The "city judge," the central figure around whom the evil and corrupt activities revolved, was sentenced to the penitentiary and to pay a heavy fine, and he accepted the sentence, and has not prosecuted a writ of error.
But it is urged, and correctly so, that all these offenses against local laws and good morals, and the evidence which established them, were irrelevant and immaterial, unless they tended to establish the offense charged, and for which alone defendants were on trial. But was such evidence irrelevant to the issues presented by the indictment?
Defendants were charged with a conspiracy to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.). It was necessary to first establish the unlawful combination the criminal partnership or association. But it is not necessary, in order to establish a conspiracy that the proof show a written agreement. It is seldom the parties entering into a criminal conspiracy reduce their agreement to writing or call in any one to witness it.
A conspiracy may be established by circumstantial evidence or by deduction from facts. The common design is the essence of the crime, and this may be made to appear when the parties steadily pursue the same object, whether acting separately or together, by common or different means, but ever leading to the same unlawful result. If the parties acted together to accomplish something unlawful, a conspiracy is shown, even though individual conspirators may have done acts in furtherance of the common unlawful design apart from and unknown to the others. All of the conspirators need not be acquainted with each other. They may not have previously associated together. One defendant may know but one other member of the conspiracy. But if, knowing that others have combined to violate the law, a party knowingly co-operates to further the object of the conspiracy, he becomes a party thereto.
It is true campaign contributions, in and of themselves, may be innocent acts. They may be prompted by the worthiest of motives. But large sums, collected chiefly from those who run so-called soft drink parlors, may become strongly suggestive of crime, when supplemented by testimony showing that after election the operators of these places engaged in the open and unrestricted sale of liquor. If the contribution was inspired by worthy motives, why was it necessary to falsify the names of the donors? Might not the jury have fairly concluded that the change in the name from a notorious dive keeper, or the proprietor of a house of ill fame, to one unknown, constituted an implied admission that this collection of funds to help win an election was not an innocent act?
Nor is the evidence that defendants exacted large tributes from those who were prosecuted, or that other defendants paid large sums as bribes, suggestive merely of an obstruction to or a burden upon an illegal traffic. Where an occasional raid, or an occasional prosecution, followed by a small fine and supplemented by liberal payments of protection money, divided among those who could and would determine the frequency and character of the raids and prosecution, was disclosed, the jury may well have concluded that it was all merely a part of the conspiracy as charged. Where a fine and a substantial jail sentence were clearly merited, is not a mere fine a leniency which the jury could say was in furtherance of a conspiracy to violate the law? In other words, do not such conditions tend to show that protection and no jail sentence for the offender constituted the agreement, under the protection of which the owners of soft drink parlors were to sell liquor and maintain common nuisances such as were condemned by the National Prohibition Act?
Defendants substituted for prohibition what was in effect a license system, the license fee being paid by some conspirators and divided by others, and it was in large measure based upon what the traffic would bear. Nor was the evidence showing the *692 maintenance of houses of ill fame, as distinguished from soft drink parlors, for which protection money was paid, immaterial. The evidence shows that, by whatever name these places might go, they were conducted in part for the profit incident to the sale of intoxicating liquor.
The fact that other crimes and offenses may also have been within the contemplation of the operators cannot relieve the defendants of the offense here charged. For the objects of a conspiracy may be numerous. Some may even be innocent, but, if one of such objects be to commit an offense against the United States, the case falls within the condemnation of the statute. Taylor v. United States (C. C. A.) 2 F.(2d) 444. Where individuals agree or have a common understanding to grant to those selling intoxicating liquor immunity from prison sentence, the case is brought within the statute, for such immunity has for its real object the maintaining of common nuisances as defined by the Volstead Law, as well as the manufacturing, transportation, and sale of intoxicating liquors.
But on behalf of that larger group designated (d) above, it is urged that the evidence merely showed they sold liquor, and that there is no proof of their guilty participation in the conspiracy charged. It is true, if there be no other evidence than the mere sale of liquor, the conspiracy is not shown. Heitler v. United States (D. C.) 274 F. 401. But did these defendants merely sell liquor? What of the evidence showing their campaign contributions, their payment of protection money, and payment of graft money when arrested? The open and flagrant manner in which they conducted their business refutes their professed innocence. They did not need to know all the details of the plot, nor all the means whereby the objects were to be accomplished. All of them were actors, though some played but a minor or insignificant part in the plot. The enterprise called for pawns as well as kings the human wrecks found in the houses of vice as well as the highest public officials in the city. All the jury was required to find was a guilty participation, knowingly undertaken. The degree of moral turpitude was immaterial.
It was frequently and plausibly argued in the various briefs that, at most, the evidence showed various conspiracies, which terminated before several of the defendants appeared upon the scene. But one may join a conspiracy after it has been formed, and, if he participates knowingly, he becomes a party thereto just as though he conceived the plot. One actor may drop out of the scene altogether, and another take his place, without the conspiracy terminating. Commenting upon this issue, the trial judge said to the jury:
"It is my opinion, upon the evidence here and which opinion you need not accept, unless you see fit to do so upon your examination of the evidence that, if the evidence of the government is to be believed, there certainly was at some time a conspiracy of the character described in the indictment. And the task that is committed to you, if you find that to be the fact, is that of determining the membership of that conspiracy. * * * I do not believe that there is any doubt here, if the testimony of the government is accepted, but that there is shown to have been an unlawful confederation, at some time, of some sort of membership, during the period disclosed by the indictment."
This statement is significant. Not only did the judge who sat through the long trial, and heard and saw all of the witnesses, conclude that there was a question for the jury, but he was firmly convinced of the existence of an unlawful conspiracy such as was charged in the indictment. If we were otherwise in doubt, which we are not, this statement of the trial judge would necessarily be most persuasive. We think the trial judge fairly stated the position of the various counsel when he said that they question the sufficiency of the evidence to connect their clients with the conspiracy rather than the existence of the conspiracy.
In view of the very earnest argument made on behalf of several individual defendants, notably Johnson and Kinder, we make a brief statement as to them. The testimony of accomplices, and particularly the testimony of Melloy and Ukman, makes it impossible for this court to set aside the verdict of the jury. It would hardly require testimony other than Ukman's, if believed, to convict several of the leading defendants. For responsible, innocent men do not participate in a midnight session with one who is a witness against them, strip him and brutally beat him, in an effort to get him to sign a statement which he says was false.
Reconciliation of defendant's innocence with this story is impossible. Defendants' innocence can only be upon the hypothesis that Ukman's story is false. And there are some circumstances surrounding the arrest and persecution of Ukman which the jury might well have viewed with suspicion. The unseemly haste and the vigor displayed by *693 officials who were notorious for their laxity, undertaken immediately upon the discovery that Ukman was working with the government to uncover the evidence which connected defendants with the offenses here charged, is most significant, and not satisfactorily explained. Nor could it be said that the accomplices' testimony was entirely uncorroborated. In many instances their testimony was strongly corroborated, while in other respects it fitted in with stories given by others.
Concerning defendants Lucas and Narcovich, as well as numerous others, we will pass without entering upon a detailed discussion of the evidence. Their guilt is established, if the testimony of certain accomplices be accepted. Whether the accomplices spoke the truth was for the jury alone to decide.
Respecting the rulings on evidence, several assignments call for special consideration. One witness, Bridget Dunlavy, testified in substance that she on one occasion was called on the telephone by the defendant Judge Dunn, and warned of an approaching raid, and asked to notify her sister thereof. She stated that she did not know Dunn's voice, but that the speaker said he was Judge Dunn. Granting for the moment that defendant Dunn, who alone objected, could insist that the voice be first identified, a sufficient answer to this assignment lies in the fact that Dunn is not complaining. He is not before this court, not having prosecuted a writ of error.
But there was other and connecting evidence. The witness' sister testified that she had been previously arrested for operating a still, had been fined by Judge Dunn, to whom she paid a bribe, and without objection stated that she had been raided later, but had been "tipped off by Judge Dunn through her sister before the police arrived."
Another witness was Mrs. Smith, who testified that one Dan Melloy was rooming at her "hotel," and dealt extensively in liquors. Melloy was one of the principal conspirators, who testified at length for the prosecution. Mrs. Smith said that she heard one end of a telephone conversation held by Melloy with another party. She heard Melloy call "Judge" and tell him that he had some fine liquor, which, if desired, would be brought over. No objection was made, save by Judge Dunn, who is not here complaining. Moreover, the testimony of Melloy shows him to have been the negotiator between Judge Dunn and the operators of soft drink parlors; that, when liquor was confiscated, Melloy obtained it and then sold it, dividing the proceeds among certain defendants, of whom Dunn was one. Under the circumstances, no error was committed.
Mrs. Hunter, wife of one of the defendants, was offered as a witness, but was not allowed to testify, and error is assigned. This ruling was correct. Slick v. United States (C. C. A.) 1 F.(2d) 897; Jin Fuey Moy v. U. S., 254 U. S. 189, 41 S. Ct. 98, 65 L. Ed. 214.
A witness, Harold Cross, testified that he, as a newspaper reporter, was seeking evidence one night to expose the crime so common in the city, and went to soft drink parlors and to the homes of vice, at which places intoxicating liquors were openly sold. His testimony covers his visits to numerous places, in practically all of which he saw intoxicating liquor drank and sold openly. Among other places visited was the Green Mountain Inn, where he talked with a woman behind the bar, whose name he could not give. The objection to this testimony was limited to that which occurred at this particular place. The witness said in substance that the woman behind the bar told him that she had a couple of girls, but that protection was too high; that she had to pay $100 a month to the collector. She was asked who was the collector, and declined to say. He said, "Who does it go to the police?" and she said, "It goes to the man higher up."
To this objection was made, but upon the suggestion from the court that she was possibly one of the conspirators named or referred to in the indictment, the objection was withdrawn. Continuing he said: "How many prostitutes are there in Gary?" She said: "Three or four hundred. They all pay for protection." Examining the record we find that, after the previous objections had been withdrawn; one of the attorneys objected, stating, "We object to that as guesswork, and an opinion." The court replied that the question called for the entire conversation with a conspirator.
Aside from the estimate of the number of prostitutes in Gary, the testimony was only a repetition of what had been given by other witnesses, and, save for the amount required to be paid for protection, may well be said to be an established and uncontroverted fact. It was after the testimony had been given that different counsel apparently agreed upon the form of objection, viz.: "It was based solely upon the ground that the declaration was made out of the presence of any of the alleged conspirators."
That the woman was one of the co-conspirators was, we think, a matter which the *694 jury could fairly have found. Certainly there was a prima facie case made out showing her to be a conspirator. That being the situation, her admission was receivable as against other conspirators, it being made while the conspiracy was in force, and otherwise pertinent. The fact that she was speaking of protection, when the offense charged referred to a violation of the National Prohibition Act, would have required its exclusion, were it not for the fact that the record is full of testimony showing that in all of these houses of ill fame the sale of liquor was well-nigh universal and a part of the business therein conducted.
The reception of the testimony of Jennie Poppa is charged as error. Aside from the reasons given by the trial judge, it appears that no objection was made when such testimony was offered, and it was too late to make an objection after the witness was excused.
The record of the "city court" was offered in evidence to show the number of liquor cases handled by different lawyers. Certain lawyers who were named as defendants apparently had a monopoly of the business. The number of times they appeared was relatively large. Various witnesses were then called, who testified that they had employed these lawyers, and fixed the amounts paid by them to the attorneys. The judgments pronounced in their cases were then shown from the court records, and it was at least inferable (the cases being disposed of on a plea of guilty) that these defendants had some connection with the alleged conspiracy.
This evidence was not only relevant, but rather persuasive. For, if the issues be narrowed to Lucas' participation in the conspiracy, is not his conduct in handling the cases, disposing of them in his office, and later in court, without his clients being present, a matter that called for explanation? If one, accused of crime punishable by imprisonment and fine, consults an attorney and is told, "Give me $250, and it will be all square," and that is followed by the case being disposed of without trial and without the accused's further appearance, and by the imposition of a fine of $100, and this practice is followed in a majority of some 100 cases in a short period of time, would not the jury have been justified in finding that Lucas was a party to the conspiracy?
Little need be said of the instructions. They were eminently fair, and fully covered the issues. Such criticisms as are now made arise from the failure of the court to give certain proposed instructions in the exact words submitted. Defendants, except in two minor respects, acquiesced in the charge at the time of its pronouncement.
Several counsel, however, asked the court to give proposed instructions by them submitted and which were not included in the court's charge. No single instruction which the court failed to give was thus pointed out, neither was the insufficiency of the charge on any subject suggested. It is now urged, however, that the language of the judge bearing upon good character witnesses was not as specific as certain requested instructions, and reversible error was thereby committed.
Errors in the instructions should be pointed out specifically before the jury retires, and the court should be given an opportunity of correcting its mistake or oversight. This rule is dictated by public policy, and prevents new trials and unnecessary expense. Neither the counsel by stipulation nor the court should forego this requirement. In fact, it has been held that it cannot be waived. Beaver v. Taylor, 93 U. S. 46, 23 L. Ed. 797; United States v. U. S. Fidelity Co., 236 U. S. 529, 35 S. Ct. 298, 59 L. Ed. 696; Jones v. East Tenn. R. R. Co., 157 U. S. 683, 15 S. Ct. 719, 39 L. Ed. 856; Conn. Mut. Life Ins. Co. v. Union Trust Co., 112 U. S. 260-261, 5 S. Ct. 119, 28 L. Ed. 708; Phnix Assur. Co. v. Lucker, 77 F. 248, 23 C. C. A. 139; Buckeye Powder Co. v. E. I. Du Pont De Nemours P. Co., 223 F. 887, 139 C. C. A. 319.
We have, however, examined the alleged insufficiency of the charge to determine its error. In this respect we find no request, save from the defendant Johnson. Other plaintiffs in error, therefore, have no cause for complaint. Johnson requested the court to charge the jury respecting this testimony: "The court has permitted you to hear evidence of the standing and reputation of the defendant Johnson for good character. That reputation alone may create a reasonable doubt of the defendant Johnson's guilt, in your minds, and is proper for you to consider." The court charged the jury as follows: "Certain testimony has been introduced in this case, on behalf of some of the defendants, in support of their previous reputation as being law-abiding citizens, and for honesty and integrity. The law requires that the jury should consider that evidence and give it such weight as they see fit. I wish to caution you, however, that the mere circumstance that a person has borne a good reputation prior to the time when he was *695 accused of complicity in a crime, should not be used by the jury as a means of excusing the commission of the crime, or of showing leniency to one whom the evidence, otherwise, in connection with his evidence of good reputation, thoroughly satisfies the jury of the matter of his guilt." Inasmuch as support for this assignment of error is found in Snitkin v. United States (D. C.) 265 F. 489, 491-492, it may be well to consider and review the effect of that holding by a divided court.
The proposed instruction is, generally speaking, a charge relating to the weight of certain evidence. While in federal courts the judge may express his opinion respecting the weight of evidence, and discuss and comment upon the evidence (and this right is generally recognized as a valuable aid to the administration of justice), no cases have been cited and none have been found where the court is required to express his opinion thereon. Certainly none can be found where the language is carefully considered which compels him to comment favorably upon certain testimony much less to weigh the testimony and determine whether it equals or exceeds some other testimony.
How could certain testimony in one case be fairly compared with testimony of like character by different witnesses in another case? Referring to the particular subject-matter character witnesses it is needless to say that the probative value of such testimony varies widely. Not only may character witnesses be themselves obviously devoid of character, but they may have possessed such scant opportunity for forming an intelligent opinion as to render their testimony valueless. They may be biased, prejudiced, or interested. One character witness alone in one case may be more persuasive than six in another case. No hard and fast rule exists which fixes the number of such character witnesses that may be heard in a given case. Would the proposed instruction be necessitated if but one character witness was offered? Moreover, such testimony grows to large importance in one case, while in another it is inconsequential.
The decision in Edgington v. United States, 164 U. S. 361, 17 S. Ct. 72, 41 L. Ed. 467, does not support such instruction. There the only question arose over a charge that limited the effect of character testimony to cases where great doubt existed.
The vice of the language in the proposed instruction lies in the fact that it gives undue prominence to evidence which in some cases is unwarranted, and erroneously conveys to the jury the impression that such character witnesses have favorably impressed the court, when such may not have been the case. We think the instruction given by the trial judge was entirely correct, and no error was committed in refusing to give the proposed instruction.
The most serious assignment of error one in which all defendants join arises out of the publication of certain newspaper articles. While the court was engaged in the trial of the case newspapers of Indianapolis, following an altogether too common practice, also tried the case, acting as investigator, prosecutor, and judge. Whether the verdict following the long trial shall now be set aside and a new trial ordered, and the large expense to the government and defendants duplicated, depends upon our conclusion respecting the effect of these newspaper articles.
The trial was featured because of the political prominence of some of the defendants, but it became "real news" when, the night before the trial began, one of the principal witnesses for the government, an accomplice, so it was stated, was shot and killed. In view of the articles appearing in the papers following this murder, certain defendants sought a continuance, a change of venue, dismissal of the jury panel, and otherwise saved their right to review the question. Almost simultaneously with the report of the murder of the government's witness, there appeared what purported to be the district attorney's views of the murder, and a statement of what he intended to do to prevent intimidation of government witnesses. Extracts from the articles are printed below.[1]
*696 The injury of which defendants complain is due to (a) the charge or insinuation that the defendants were responsible for the murder of the chief witness of the government; (b) the action of the district attorney in giving false and misleading information to the newspapers.
The course that should be pursued under *697 such circumstances must depend on the facts in each case. How the courts can or should meet the situation, constantly growing worse, where newspapers, hungry for sensational news, print prejudicial statements, often not remotely accurate, which may and generally do come under the observation of prospective jurors, is a serious question for those conducting the trial of criminal cases. Too frequently counsel for the government loan their evidence, or parts of it, to the press, and the case is first tried in the paper before action is begun in the courts. In so doing, the prosecutor makes a serious mistake, one that cannot be too severely condemned.
So far as the newspapers are concerned, after the trial has begun, the court can "lock up the jury" and keep papers from them. But such a course is a hardship on innocent parties. Surely the conscience of the press should arouse itself, and a truce be entered into between competing papers, whereby the race for sensational news may be suspended during the trial, so that the 12 men who must determine the guilt of the accused may do so upon competent evidence.
More reprehensible is the conduct of a prosecuting attorney seeking notoriety. Where it appears that a prosecuting attorney gave out to newspapers, in advance of trial, misleading or prejudicial statements, which he knew would ordinarily reach prospective jurors through their publication, the court is often called upon to grant a new trial. It should be said of the present case that it does not appear that the district attorney was guilty of such conduct. The furthest the affidavits go is to suggest that newspapers put statements in the mouth of the government attorney which he did not deny.
Fortunately the articles appeared before any jury was drawn. So far as they told of Monte's murder, nothing was related that was not proved upon the trial. As to the cause of the murder, and the identity of the murderers, it was not a matter involved in the trial of this case. The jurors were fully examined in respect to their qualifications, and with reference to these murder stories. Some *698 of them had read the articles in question, while others did not know of Monte's death until defendants' counsel asked them concerning its effect upon them. Others read the headlines, but were not interested. In exercising their peremptory challenges, or "strikes," defendants seemed not concerned about it, for they peremptorily "struck" some who had not read the articles, and accepted without examination one who had read it. They did not exhaust all their peremptory "strikes," and challenged no juror for cause because he had read such articles. In fact, many of the defendants did not join in the motions for a continuance, change of venue, or join in the demand for a new panel, and certainly as to them there exists no such assignment of error.
Moreover the court was not justified in ignoring their wishes when it denied a continuance. Had the case been continued, the effect of the murder of the government's principal witness would have doubtless been as impressive at a later date as it was at the time of the trial.
Jurors are not disqualified, though they have heard something of the facts through the newspapers. Reynolds v. United States, 98 U. S. 145, 155, 156 (25 L. Ed. 244): "The theory of the law is that a juror who has formed an opinion cannot be impartial. Every opinion which he may entertain need not necessarily have that effect. In these days of newspaper enterprise and universal education, every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among these best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits. It is clear, therefore, that upon the trial of the issue of fact raised by a challenge for such cause the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that character, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest. No less stringent rules should be applied by the reviewing court in such a case than those which govern in the consideration of motions for new trial because the verdict is against the evidence. It must be made clearly to appear that upon the evidence the court ought to have found the juror had formed such an opinion that he could not in law be deemed impartial. The case must be one in which it is manifest the law left nothing to the `conscience or discretion' of the court."
One cannot read the testimony of the 12 men given on the voir dire without being satisfied that they entered upon the trial of this case uninfluenced by the newspaper articles. They came from various and widely scattered parts of Indiana. They knew neither the defendants nor the government's witnesses. They came from various walks of life, and all unqualifiedly announced that they had no opinion respecting defendants' guilt and were not conscious of any bias by reason of anything that they had seen, heard, or read.
This presents a different situation from one which arises where a prejudiced or highly inflammable newspaper article reaches the jury after the case has begun, or when the jury is deliberating upon its verdict. In most of the cases cited by defendants, the sensational newspaper articles appeared after the jury was drawn. There was no opportunity for the court to ascertain whether any juror had been prejudiced. Even under such circumstances, the granting of a continuance is largely a discretionary matter with the trial judge. In the present case, we cannot say there was any abuse of discretion.
Other assignments of error we have considered, and have reached the conclusion that they do not merit separate discussion.
The judgment is affirmed.
On Petition for Rehearing.
After a careful examination of the numerous briefs, filed in support of the various petitions for rehearing, we are convinced that they should all be denied. In the trial of a case involving many defendants, lasting as long as this one, many questions arise. We confess to have experienced some difficulty in gathering and classifying the facts upon which the assignments of error are predicated. We trust we have not consumed too much time in going over the records and briefs and reaching our conclusion.
While it might have been more satisfactory to both the trial court and to ourselves, had there been a smaller number of defendants indicted, we are not prepared to say that error was committed in proceedings to trial with 75 defendants. Neither the court nor the prosecuting attorney can fix or limit the number of persons who engage in *699 a conspiracy to commit an offense against the United States. The action of the grand jury must be based upon the facts. A condition rather than a theory confronts it.
Whether all who are indicted should be tried at one time, or divided into groups, is a question that must address itself largely to the discretion of the trial judge. On the one side, there is the justifiable desire to avoid a repetition of trials, while, on the other hand, the number should not be so great as to necessarily confuse a jury, or make an intelligent or discriminating verdict impossible. The difficulty of the trial judge in attempting to make a classification of defendants, where many are on trial, is at once apparent. Likewise the unwillingness of certain defendants to be classified in one group or another must be considered.
In the present case it seems to us to have been a matter that added to the burdens and responsibilities of the trial judge rather than one of which any plaintiff in error can complain. In other words, had there been fewer defendants, it is not at all unlikely that the government would have concentrated its efforts more directly and effectively upon each one of the accused. Plaintiffs in error, on the other hand, had many lawyers, who devoted their energies and directed their attention to individual rather than to all defendants. There is at least some support for the conclusion that the defendants were benefited rather than handicapped by being tried together.
Were we otherwise in doubt respecting the rulings of the court on the admission of evidence and the exceptions taken thereto, illustrated by the testimony of Harold Cross, we would be constrained to hold, under section 269 of the Judicial Code (Comp. St. § 1246), that "the substantial rights of the parties" were not affected by such rulings, and the judgment should be affirmed.
Petitions for rehearing are denied.
ALSCHULER, Circuit Judge.
While concurring in the foregoing respecting the petitions for rehearing herein, I feel constrained to say that in my opinion the testimony of Harold Cross as to the conversation at the "Green Mountain Inn" ought not to have been admitted, or, having been admitted, should have been excluded, when (as I believe was the case) the evidence failed to connect with the alleged conspiracy to violate the National Prohibition Act the unidentified woman with whom Cross had the conversation to which he testified. This conversation was only a thread in the entire fabric of the evidence which revealed the conspiracy, and while in some cases the error of its admission or retention might have been serious, it was here of such comparative unimportance as in my judgment to require the conclusion that it did not work appreciable injury to the defendants, and cannot serve to vitiate a judgment which upon the entire record seems but the pronouncement of substantial justice.
NOTES
[1] From the Indianapolis Star, Wednesday morning, March 13, 1923:
"Star Witness in Gary Booze Case Slain; Blame Wets.
"U. S. Tried to Protect Monte, but He Scorned Aid, District Attorney Says
"Others to Be Guarded.
"Elliott `Not Surprised.'
"Army of Agents to Be Hired by Government Armed Men to Patrol Court Environs.
"Protection of the federal government will be thrown around all government witnesses and every precaution to safeguard and prevent tampering with government witnesses or agents will be taken in handling the trial of the seventy-five Lake county defendants which will be called tomorrow, United States District Attorney Homer Elliott said, following receipt of news later yesterday of the killing of Gasper Monte of Gary, one of the `star' witnesses for the government in the Lake county booze and fraud cases.
"Mr. Elliott expressed the belief that Monte had been slain on account of the testimony he was expected to give in the prosecution of the Lake county defendants.
"`I am not surprised to hear that Monte has been killed, for I have been expecting to hear of just such violence,' commented Mr. Elliott.
"Refused Protection.
"`We have tried to protect him and have made offers of protection, but Monte obstinately refused and boasted that he would be able to take care of himself.
"`I received a long distance call from George Winkler, Indianapolis prohibition agent, who was at Hammond, telling me that Monte had been murdered. Winkler said he would go to Gary and make an investigation of the killing. The action only bears out my belief that the Lake county defendants are a desperate bunch and that the government must not spare any pains to safeguard the witnesses and agents who are connected with the case, which comes up for trial Wednesday morning before Judge Geiger.'
"Mr. Elliott said that Monte was a bootlegger, who had aided the government in perfecting its case. He said that Monte had valuable evidence, documentary and otherwise, which the government expected to present during the trial.
"Guards in Court.
"`We are going to increase our force and throw around every government witness a net work of guards and agents who will see that no one interferes with them during the progress of the trial,' said Mr. Elliott.
"`We will take steps to patrol the corridors of the federal building during the trial, guards armed with guns and with orders to prevent any tampering with witnesses. These guards will also watch all witnesses in the streets and at the local hotels during the trial to see that no harm comes to them.
"`Foreign speaking guards from other states will be brought into the city and to Gary to prevent any one from approaching the witnesses in any way. One man was arrested recently at Gary for attempting to tamper with a government witness.'
"Mr. Elliott said that another government witness, Tom Keussis, and Mrs. Keussis, had been attacked Saturday night at Gary, presumably because of their connection with the case."
From the Indianapolis Times, Tuesday, March 13, 1923:
"Armed Guards will Patrol Federal Court During U. S. Probe of Gary Liquor Ring.
"Government Acts after Star Witness is Shot Down in Street.
"Federal building corridors will resemble an armed camp when the Gary liquor conspiracy case goes to trial in federal court Wednesday, officials said to-day.
"News of the murder of Gasprai Monti, one of the star witnesses for the government, at Gary late Monday, stirred federal officials.
"Monti according to dispatches, was shot to death on the street by two men armed with sawed-off shotguns.
"Guards will Patrol.
"A network of armed guards and government agents will be thrown around government witnesses and the corridors of the federal building will be patrolled throughout the trial, Homer Elliott, United States district attorney said.
"As part of the plan to prevent witnesses from being intimidated, Elliott said guards speaking the native tongues of foreign witnesses will be brought to Indianapolis.
"Elliott said two other government witnesses, Tom Keussis and his wife, were attacked Saturday at Gary.
"Shuns Offers of Protection.
"Several attempts to assassinate Monti were made during the past year it is said. He recovered recently from a bullet wound which he had said was accidental.
"Offers of protection were made to him by federal authorities, but Monti spurned them and insisted he was able to take care of himself.
"Seventy-five defendants are named in the indictment which charged conspiracy to violate federal prohibition laws.
"Roswell O. Johnson, mayor of Gary, William Dunn, city judge, and other Gary and Lake county officials are among those indicted.
"After scores of the followers of Monti, known as the `king of little Italy,' have been questioned by federal and local authorities at Gary, it was announced the officials did not believe the shooting had anything to do with Monti's testimony in the liquor cases.
"Attempts had been made to kill Monti several times before, it was said."
From the Indianapolis News, Tuesday evening, March 13, 1923:
"Witness Believed Black Hand Victim.
"Caspar Monti Shot to Death by an Unidentified Assailant in Street at Gary.
"Liquor Cases Involved.
"Dead Man Was to Have Given Important Testimony at Trials of Judge and Attorney.
"(Special to the Indianapolis News.)
"Gary, Ind., March 13. An hour after the funeral of Tony Cucinella yesterday, in which hundreds of Italians marched behind the supposed Black Hand victim, Caspar Monti, star witness for the federal government in the cases of Judge William M. Dunn and Blaz Lucas, an attorney, charged with conspiracy to obstruct the enforcement of the prohibition law, was shot to death by a person whose identity the police have not learned, although the Black Hand is believed responsible.
"It was the fourth time Monti had been shot. Monti, who is proprietor of a soft drink place, had just left the Italian Civic Club and crossed an alley to go to his home when a man drove up in an automobile and opened fire. Both barrels of a sawed-off shotgun were discharged and Monti fell, fatally wounded. The gun was charged with slugs as big as a man's thumb, some of which struck Monti in the head.
"Affidavits Against Officers.
"Monti signed federal affidavits last fall charging Dunn and Lucas with promising him and others who had been accused of violating the liquor law, with protection. The judge and Lucas were arrested and released under bonds of $5,000 each. When the recent blanket indictment was returned by the federal grand jury at Indianapolis, the names of Dunn and Lucas were included in the list of seventy-five Gary and Lake county persons charged with conspiring to violate the prohibition law.
"Shot Several Months Ago.
"Several months ago Monti was mysteriously shot and was in a hospital for a long time. At that time he said that he had been `fooling with a gun' that had been discharged accidently. Although police scouted this explanation of the shooting, they were unable to get any clews to show intent to kill Monti and the case was dropped.
"Twice before Monti was attacked by assailants, who left no clews. Again a bomb was placed under his house and the front of the building was blown out. Monti was not in the house at the time.
"Third Black Hand Death.
"Monti had been arrested several times on charges of violating the liquor law. Monti's death was the third in the Italian colony here which police attribute to the Black Hand Society. Tony Cucinella was murdered Thursday night, and a few months ago his cousin, Joe Cucinella was found on the road to Michigan City, his body riddled with bullets.
"Serious, Says Elliott.
"U. S. Attorney Discusses Situation in Gary Liquor Cases.
"The situation growing out of the indictment of seventy-five Lake county residents on a charge of of conspiracy to violate the liquor law is serious from the standpoint of witnesses, Homer Elliott, United States district attorney, said today. He said that the killing of Gasper Monti did not surprise him, as he had been expecting something of that sort ever since the indictment was returned. He said that recently he sent men to Gary to guard Monti, but the latter refused assistance, saying that he could take care of himself.
"Trial of the conspiracy case begins to-morrow before Judge Ferdinand A. Geiger, of Milwaukee. The district attorney expects the trial to continue at least two weeks. Monti's testimony constituted an important link in the government's chain of evidence. Some of Monti's evidence, however, can be presented in documentary form, Mr. Elliott said.
"Speaking of the care of other witnesses, Mr. Elliott said:
"`We are going to increase our force and throw around all government witnesses a network of guards and agents who will see that no one interferes with them in the progress of the trial. We will take steps to patrol the corridors of the federal building during the trial with guards armed with guns who have orders to prevent any tampering with witnesses. Foreign speaking guards from other states will be brought into the city and to Gary to prevent any one from approaching the witnesses in any way.'" | 01-03-2023 | 10-30-2013 |
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