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https://www.courtlistener.com/api/rest/v3/opinions/1566757/ | 440 S.W.2d 351 (1969)
Miles F. WORTHAM et ux., Appellants,
v.
LACHMAN-ROSE CO., Inc., et al., Appellees.
No. 15465.
Court of Civil Appeals of Texas, Houston (1st Dist.).
April 10, 1969.
Rehearing Denied May 8, 1969.
Carl, Lee & Fisher, Robert H. Fisher, Houston, for appellants.
Ross, Banks, May & Cron, Carroll J. Boudreaux, Houston, for appellees.
PEDEN, Justice.
Suit brought under the trust fund doctrine by two companies holding judgments against an insolvent corporation, Fuller Toys, Inc. Plaintiffs sought personal judgments against two of Fuller Toys' directors alleging breach of their duties as trustees of its corporate assets when it ceased doing business.
This appeal has been perfected by the directors, Mr. and Mrs. Miles Wortham, from an adverse judgment after a nonjury trial.
Mr. Wortham was the only witness who testified. The other evidence consisted of defendants' answers to interrogatories, plaintiffs' admissions, copies of the abstracts of judgment, copies of federal tax *352 liens filed against Fuller Toys, Inc., and copies of three notices of seizure by the United States Internal Revenue Service of toys, etc., from Fuller Toys for nonpayment of delinquent internal revenue taxes in the amount of $1,593.47. Neither findings of fact nor conclusions of law were made by the trial court. Appellants requested that they be made, but the record shows that appellants' rights were not prejudiced by their absence, and the matter has not been raised by point of error on appeal.
Plaintiffs' (appellees') petition in this cause alleged that on or about May 1, 1965, while the Worthams were officers and directors of Fuller Toys, Inc., it was insolvent and its normal business operations were discontinued; that the Worthams then took over all assets of Fuller Toys and began liquidating the business, thus becoming trustees of the assets. Further, that the Worthams had paid from Fuller Toys' assets certain of the company's creditors to whom the Worthams were also personally liable. Appellees sought judgment against appellants personally in the amount of their judgments against Fuller Toys plus interest and costs, and alternatively sought an accounting of the assets of the appellants at the beginning of liquidation, report of the proceeds of the liquidation and judgment for their share.
Appellants' answer consisted of a general denial and a denial that they had promised to pay the debts owed by Fuller Toys to appellees.
The evidence shows that Fuller Toys was insolvent at the time it ceased to be a going concern on September 12, 1964. Appellants were in control of it at that time and have been since then. Three days after they closed the business, appellants paid to their own sole proprietorship $1,903.76 from the funds of Fuller Toys. Mr. Wortham explained that this payment was reimbursement for his having paid certain bills that were owed by Fuller Toys, the payment of which he had personally guaranteed.
Appellee Lachman-Rose Co., Inc., had obtained judgment against Fuller Toys, Inc., on September 4, 1964 in the amount of $2,391.78 plus interest and costs. Plaintiff Totsy Manufacturing Co., Inc., had obtained a judgment against Fuller Toys, Inc., on August 5, 1964 in the amount of $597.58 plus interest and costs.
The judgment rendered by the trial court in this case contained these recitals:
"The Court, after examining the pleadings and hearing the evidence and argument of counsel thereon, finds that Defendants became Trustees of the Trust Fund created out of the assets of Fuller Toys, Inc. at the time it ceased doing business and finds that the Defendants are indebted to each of the Plaintiffs as creditors and beneficiaries of such fund in a sum which is the product of $11,080.94 (the value of the inventory of Fuller Toys, Inc. at time it ceased doing business) divided by $37,875.83 (the total liabilities of Fuller Toys, Inc. at the time it ceased its business operations, less the amounts claimed as rents by its landlords; which claims were satisfied), multiplied by the total amounts due to date on each of the Judgments heretofore taken against Fuller Toys, Inc. by each of the Plaintiffs herein, together with interest and all costs of Court.
"It is therefore, ORDERED, ADJUDGED and DECREED that Plaintiff, Lachman-Rose Co., Inc., do have and recover of and from Defendants, Miles F. Wortham and Ann M. Wortham, both jointly and severally, Judgment in the sum of Eight Hundred Seventy Nine and 21/100 ($879.21) Dollars, together with 6% interest thereon from date and costs of Court; and Plaintiff, Totsy Manufacturing Co., Inc., do have and recover of and from Defendants Miles F. Wortham and Ann M. Wortham, both jointly and severally, Judgment in the sum of Two Hundred Twenty Three and 47/100 ($223.47) Dollars, together *353 with 6% interest thereon from date and costs of Court, for all of which let execution issue."
Appellants' points of error are:
1. The trial court erred in holding appellants liable to the judgment creditors of Fuller Toys, Inc. under the trust fund doctrine because the Federal Insolvency Priority Statute gave the United States priority in payment of its claim, and its seizure of the corporation's inventory as a credit on its claim was lawful.
2. The trial court's finding of value of the corporation's inventory is contrary to the evidence.
3. The trial court erred in granting relief to appellees under the trust fund doctrine because the right of each appellee, if any, in the trust fund was not capable of determination until after the prior claim of the United States was fully satisfied out of the trust fund.
It is noted that appellants do not suggest that the trust fund doctrine is inapplicable, only that the federal government's claim was prior to that of appellees, that the government's claim exceeded the value of the inventory and that appellees' rights could not be determined.
Appellants' second point complains of the trial court's evaluation of Fuller Toys' inventory at $11,080.94. The evidence shows that by interrogatory the Worthams were asked to state the approximate value and description of the inventory at the time Fuller Toys ceased to do business. Their reply was: "The approximate value of the inventory of Fuller Toys, Inc. at the time it closed operation was $11,080.94. Defendants were not able to confirm the description of the inventory by inspection, but reconstructed the value from the cost of merchandise as reflected by the records of the corporation."
At one point Mr. Wortham testified that when he answered the interrogatory the figure given was his best judgment of the value of the inventory when the business was closed. He later testified that he believed this figure was too high, that he didn't think the value represented by cost was market value and that the amount of the federal government's claim, $1,593.47, more nearly represented the value of the inventory at the time it was seized by the government (on or about December 8, 1965).
We overrule appellants' second point. The only evidence in the record as to value of the inventory on or about September 12, 1964 is their own. They had been in control of the company and owned 75% of its capital stock. At most the inconsistent answers of the defendant as to the value of merchandise once under his control raised a fact issue; the trial court's acceptance of the evaluation made by parties to the suit cannot be held to be contrary to the evidence simply because they explain that they reconstructed the value from their cost records and one of them later testifies that he had placed too high a value on the goods.
We also overrule appellants' first and third points. When an insolvent corporation ceases to do business its assets are a trust fund held for the benefit of its creditors. Lyons-Thomas Hardware Co. v. Perry Stove Manufacturing Co., 86 Tex. 143, 24 S.W. 16, 22 L.R.A. 802 (1893). And directors of such a corporation who fail to discharge their duty of seeing that its creditors were either paid in full or that they were paid pro rata from its assets are liable to those creditors. Waggoner v. Herring-Showers Lumber Co., 120 Tex. 605, 40 S.W.2d 1 (1931).
The Federal Insolvency Priority Statute, on which appellants rely in their first point of error, is found at 31 U.S.C. § 191. Its pertinent provisions are: "Whenever any person indebted to the United States is insolvent * * * the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient *354 property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed."
The succeeding section, § 192, states: "Every executor, administrator, or assignee, or other person, who pays, in whole or in part, any debt due by the person or estate for whom or for which he acts before he satisfies and pays the debts due to the United States from such person or estate, shall become answerable in his own person and estate to the extent of such payments for the debts so due to the United States, or for so much thereof as may remain due and unpaid."
There is evidence in the record indicating that as of September 30, 1964, Fuller Toys owed the federal government $1,180.41 in payroll taxes for the first three quarters of 1964. Most of this amount was undoubtedly due before September 12, 1964, when the assets of the corporation became a trust fund in the hands of its directors; Sec. 191, supra, gives the federal government priority in collection of its claim but does not provide for creation of a lien on the assets of the debtor. The evidence shows that when Fuller Toys' assets became a trust fund, more than enough cash funds were on hand to pay the amount of such federal claim and even enough to pay the full amount of the federal liens which were filed in May, 1965, in the total amount of $1,533.28. Instead, as noted, the Worthams paid themselves $1,903.76 from corporation funds, making themselves personally liable under the trust fund doctrine. In December, 1965, the federal liens were discharged when the merchandise inventory was seized and sold under federal order and the Worthams paid off the balance remaining due. Title to such merchandise had long since passed to the trust fund, and appellants' personal liability to the other creditors was not diminished by the seizure.
Had the Worthams paid the federal government's claim instead of their own, the inventory and some other assets which we need not discuss would have been available for distribution to the appellees and other creditors. The other creditors were not joined as parties to this suit, but the trial court's calculation of appellees' pro rata share of the assets takes their absence into consideration as suggested by the Supreme Court of Texas in Orr & Lindsley Shoe Co. v. Thompson, 89 Tex. 501, 35 S.W. 473 (1896).
The judgment of the Trial Court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565605/ | 34 So. 3d 272 (2010)
STATE of Louisiana
v.
Barron S. AVIST.
No. 2009-K-1924.
Supreme Court of Louisiana.
April 23, 2010.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562250/ | 960 A.2d 839 (2008)
COM.
v.
SCOTT.
No. 309 EAL (2008).
Supreme Court of Pennsylvania.
November 17, 2008.
Disposition of petition for allowance of appeal. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562284/ | 960 A.2d 1257 (2008)
183 Md. App. 261
HYUNDAI MOTOR AMERICA
v.
Angela R. ALLEY.
No. 1495 September Term, 2007.
Court of Special Appeals of Maryland.
December 2, 2008.
*1258 Steven R. Freeman (Brett R. Myerson, Freeman, Wolfe & Greenbaum, PA, on the brief), Towson, MD, for Appellant.
Hy David Rubenstein (Ronald Rowland, Kimmel & Sullivan, PC, on the brief), Owings Mills, MD, for Appellee.
Panel: HOLLANDER, ZARNOCH and WRIGHT, JJ.
ZARNOCH, Judge.
Appellant, Hyundai Motor America, is appealing a decision by the Circuit Court for Cecil County awarding attorney's fees to appellee, Angela Alley, under the fee shifting provisions of the Maryland Automotive Warranty Enforcement Act, the Maryland Consumer Protection Act, and the federal Magnuson-Moss Warranty Act. The fees were awarded after the parties negotiated a settlement of the case, and prior to any adjudication of the merits of appellee's claims. Appellant presents the following questions:
1. Did the circuit court err in granting appellee's petition for attorney's fees and costs based on a finding that appellee was a prevailing party under the fee shifting statutes at issue?
2. Did appellee satisfy her burden of presenting legally sufficient evidence as to the reasonableness of the fees claimed in order to support any fee award by the circuit court?
3. Did the circuit court properly apply the lodestar analysis in determining the amount of attorney's fees to award?
For the following reasons, we affirm in part and vacate and remand in part.
FACTS AND LEGAL PROCEEDINGS
On June 19, 2006, Angela R. Alley ("Alley"), appellee, filed suit against Hyundai *1259 Motor America ("Hyundai"), appellant, in the Circuit Court for Cecil County, relating to the purchase of a new vehicle that was defective. Appellee alleged various claims arising under the Maryland Automotive Warranty Enforcement Act ("AWEA"), Md.Code Ann. (1975, 2005 Repl.Vol., 2007 Supp.), §§ 14-1501 et seq. of the Commercial Law (CL) Article; the Consumer Protection Act ("CPA"), Md. Code Ann., CL §§ 13-301 et seq.; and the Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C.A. §§ 2301. Appellee sought monetary damages, in an amount equal to the full contract price ($20,317) of the new 2005 Hyundai Sonata, plus "all collateral charges, attorney's fees, and court costs." A jury trial was scheduled for May 29, 2007.
On the day of the trial, after the court convened, but before the jury was selected, Hyundai and Alley reached a settlement under which Hyundai agreed to "swap-out" the one-year-old 2005 Sonata with a new 2007 Sonata equipped with the same options as the vehicle replaced. The settlement agreement was read into the record in open court.[1] Reciting the details of the settlement, Hyundai's counsel admitted that the new vehicle was worth "so much more" than the old vehicle. Left unsettled was whether appellee was entitled to attorney's fees. The parties asked the court to retain jurisdiction over a petition for attorney's fees, which it did. The court did not expressly approve the settlement.[2] The recital of the settlement ended with Hyundai's counsel stating that "this case will be dismissed with prejudice, as of today, with the agreement of the swap being put on the record." However, no docket entry reflects a dismissal, either by court order or stipulation of the parties. See Maryland Rule 2-506.
On June 28, 2007, appellee filed a timely motion for attorney's fees and costs totaling $12,311.40. As part of the motion, appellee presented a four-page invoice, dated June 27, 2007, from her attorney's law firm, Kimmel & Silverman, P.C., with *1260 the dates various services were rendered, the initials of the person performing the task, a brief description of the service provided, the hours expended, the rate charge, and amount charged, which totaled $12,311.40.
Appellant filed a response in opposition to the motion, arguing that the appellee was not a prevailing party for fee-shifting purposes, and was therefore not eligible for an award of attorney's fees and costs. It also claimed that, if the appellee were a prevailing party, she failed to satisfy her burden of presenting sufficient evidence as to the reasonableness of the fees requested.
On September 6, 2007, the court heard both parties regarding the motion for attorney's fees and granted appellee attorney's fees in the amount requested. At the hearing, appellee's counsel noted that Maryland courts apply the lodestar approach (see discussion, pp. 275-78, 960 A.2d at pp. 1265-67, infra) in determining the amount of reasonable attorney's fees. He noted that his standard billing rate as an attorney with fifteen years experience was $275.00/hour. He claimed that all the rates listed in the law office's invoice were reasonable, and that under the lodestar methodology the firm could charge $90.00/ hour for a paralegal, with differing rates for the attorneys depending upon the level of experience. He admitted that his firm had accepted the case on a contingency fee basis. The court found that appellee was a prevailing party and that the attorney's fees claimed were reasonable. Without any further analysis under the lodestar approach, the court granted appellee's motion and awarded attorney's fees in the requested amount.[3] On September 26, 2007, appellant filed a timely notice of appeal.
DISCUSSION
1. The circuit court did not err in finding that appellee was a prevailing party under state fee shifting statutes.
Appellant argues that the court erred as a matter of law in granting appellee's petition for attorney's fees because she was not a prevailing party under the fee-shifting provisions of AWEA, MMWA, and CPA. Because they arose from "a common core of facts" and "related legal theories," appellee's state and federal claims are indivisible for purposes of determining prevailing party status. Friolo v. Frankel, 373 Md. 501, 524-25, 819 A.2d 354 (2003)("Friolo I"). Thus, we need only decide whether appellee is a prevailing party for state law purposes, rather than determine her success under the federal *1261 MMWA. See Moedt v. Gen. Motors Corp., 204 Ariz. 100, 60 P.3d 240, 243 (Ct.App. 2002) (awarding attorney's fees under state lemon law without addressing eligibility under MMWA). For the reasons set forth below, we conclude that appellee was a prevailing party under AWEA and CPA.
According to AWEA, "a court may award reasonable attorney's fees to a prevailing plaintiff under this section." CL § 14-1502(l)(1) (emphasis added). The CPA also provides that "[a]ny person who brings an action to recover for injury or loss under this section and who is awarded damages may also seek, and the court may award, reasonable attorney's fees." CL § 13-408(b) (emphasis added). Under the MMWA:
If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys' fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys' fees would be inappropriate.
15 U.S.C.A. § 2310(d)(2) (emphasis added).
Although appellant concedes that, under these statutes, a settlement can confer prevailing party status on a litigant, it argues that such a settlement must take the form of a consent decree or other court-approved change in the legal relationship of the parties. Relying primarily on federal cases, such as the Supreme Court's 5-4 decision in Buckhannon Bd. & Care Home, Inc. v. W.Va. Dept. of Health & Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001), appellant argues that "[a] defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change." Id. at 605, 121 S. Ct. 1835. These "[p]rivate settlements," the Supreme Court said, will often be unenforceable by a federal court "unless the terms of the agreement are incorporated into the order of dismissal." Id. at 604, n. 7, 121 S. Ct. 1835.
Appellant may very well be correct that under federal statutes, such as MMWA, actual judicial approval of a settlement, such as that obtained in a consent decree, is required before an attorney's fee award can be made. See Rodriguez-Freytas v. N.Y. City Transit Authority, 95 F.App'x 392, 394 (2d Cir.2004); Union of Needletrades, Indus. & Textile Employees, AFL-CIO, CLC v. U.S. Immigration & Naturalization Service, 336 F.3d 200, 206 (2d Cir. 2003); Pitchford v. Oakwood Mobile Homes, Inc., 212 F. Supp. 2d 613, 617 (W.D.Va.2002); Bruemmer v. Compaq Computer Corp., 329 Ill.App.3d 755, 263 Ill. Dec. 516, 768 N.E.2d 276, 288 (2002). But see American Disability Ass'n v. Chmielarz, 289 F.3d 1315, 1320 (11th Cir. 2002) (court may still award attorney's fees to prevailing party as long as: (1) it has incorporated terms of settlement into final order of dismissal or (2) it has explicitly retained jurisdiction to enforce terms of settlement); Dufresne v. DaimlerChrysler Corp., 975 So. 2d 555, 556 (Fla. 2d DCA 2008) (quoting Smalbein ex rel. Estate of Smalbein v. City of Daytona Beach, 353 F.3d 901, 905 (11th Cir.2003)) (explicit retention of jurisdiction over terms of settlement is functional equivalent of entry of consent decree); Melton v. Frigidaire, 346 Ill.App.3d 331, 281 Ill. Dec. 954, 805 N.E.2d 322, 327 (2004) (consent degree not required if judicial sanction is obtained by incorporation of settlement agreement into *1262 court order or on retention of jurisdiction to enforce its terms). However, here we are concerned only with state law. Thus, Buckhannon is not controlling.
Alternatively, appellant contends that this Court's decision in Blaylock v. Johns Hopkins Fed. Credit Union, 152 Md.App. 338, 831 A.2d 1120 (2003) requires actual judicial approval of a settlement agreement before a party is considered to have prevailed for State fee-shifting purposes. In Blaylock, this Court held that a consumer who settled a claim under the CPA was a prevailing party for fee-shifting purposes and noted:
[A] consumer who achieves victory by means of an agreement approved by the court is entitled to attorney's fees, even though no consent decree or judgment is entered in favor of the prevailing party.
Id. at 355, 831 A.2d 1120 (emphasis added).
Appellant places undue reliance on the emphasized language. Under the facts of Blaylock, the settlement in question "was approved by the court." Id. at 341, 831 A.2d 1120. The Court's later equation of such a settlement with prevailing party status was more likely the description of a past fact than the establishment of a future minimum. In short, we hold that Blaylock does not mandate an inflexible rule that judicial approval of a settlement is always required to make a litigant a prevailing party for state fee-shifting purposes.[4]
Having decided that neither Buckhannon nor Blaylock forecloses appellant's theory that she is a prevailing party, we must nevertheless determine whether in fact she holds that status with respect to her AWEA and CPA claims. Before examining what was achieved, in terms of whether the appellee succeeded, we consider how the settlement was accomplished, in terms of whether the procedure employed was inconsistent with the AWEA and the CPA.
It is a common, longstanding practice for settling parties to read into the court record the terms of an agreement before a lawsuit is voluntarily dismissed. See, e.g., Parkinson v. Parkinson, 42 Md. App. 650, 651-52, 402 A.2d 129 (1979), Jackson v. Jackson, 14 Md.App. 263, 268-69, 286 A.2d 778 (1972). Maryland cases recognize that such a "settlement order" is neither a judgment nor a court order. See Consol. Constr. v. Simpson, 372 Md. 434, 464-65, 813 A.2d 260 (2002) (collecting cases). In Mitchell Props., Inc. v. Real Estate Title Co., 62 Md.App. 473, 490 A.2d 271 (1985), this Court said:
A settlement agreement is a contract which the parties enter into for the settlement of a previously existing claim by a substituted performance. When this agreement is entered with the court, it is termed a settlement order; however, it is not a court order. Rather, it is a compromise between the parties, which they submit to the court to stay the proceedings in the case.[[5]]
Id. at 482, 490 A.2d 271 (citations omitted).
*1263 Nevertheless, such a settlement is binding on the parties and enforceable against them. Smelkinson Sysco v. Harrell, 162 Md.App. 437, 453, 875 A.2d 188 (2005) ("Sysco"). According to 15A Am. Jur.2d Compromise and Settlement at § 49, "[a] party to a settlement seeking to redress a claimed breach, if the court case already has been dismissed, may bring an independent action for breach of contract; if the case has not been dismissed, the party may move for enforcement." There are no jurisdictional concerns about subsequent enforcement in an independent state court action, such as those raised in Buckhannon with respect to federal courts. 532 U.S. at 604, n. 7, 121 S. Ct. 1835. See also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 382, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994)(Absent district court retention of jurisdiction over the settlement or incorporation of the settlement in the dismissal order, "enforcement of the settlement agreement is for state courts....").
Neither the AWEA nor the CPA evidences an intent to impose any extraordinary procedural requirements on settling plaintiffs in order to be deemed as prevailing. Noteworthy is the contrasting language of the federal MMWA, which authorizes a fee award "as part of the judgment." 15 U.S.C.A. § 2310(d)(2). In addition, when these state fee-shifting statutes were enacted1986 in the case of CPA and 1984 in the case of the AWEAeven under federal fee-shifting statutes, court-approved settlements were not required. See Buckhannon, supra, 532 U.S. at 622, 121 S. Ct. 1835 (dissenting opinion of Justices Ginsburg, Stevens, Souter, and Breyer). The most likely intent of the General Assembly in adopting the fee shifting provisions in AWEA and the CPA would have been to incorporate the common, longstanding and uncomplicated Maryland practice for settling cases, viz. the reading into the court record of a valid enforceable settlement. This is particularly true in light of the State's policy, as reflected in the common law, of encouraging and promoting the settlement of litigation. See Sysco, supra, 162 Md.App. at 453, 875 A.2d 188.
Finally, we note that the conclusion we reach is consistent with the decision of the Arizona Court of Appeals in Moedt, supra. There, the court rejected the contention that direct judicial involvement was necessary for a plaintiff to be a prevailing party under the fee-shifting provisions of the Arizona lemon law.[6]Moedt, 60 P.3d. at 243. The Arizona court noted that its interpretation comported with the primary justification for fee-shifting provisions, "the promotion of settling disagreements without extensive litigation," as well as the goal of "strengthen[ing] a purchaser's ability to enforce the consumer-protection laws." Id.
For these reasons, we hold that even though the settlement did not receive express judicial approval, the procedure used was sufficiently indicative of prevailing party status and was not inconsistent with AWEA or the CPA.[7]
Turning from "how" to "what," we now consider whether appellee has in fact *1264 shown the requisite degree of success to be deemed a prevailing party. In Blaylock, supra, 152 Md.App. at 354-55, 831 A.2d 1120, this Court distilled these prevailing party formulas from cases in other jurisdictions:
(1) A party prevails when its ends are accomplished as a result of the litigation;
(2) If a party reaches a sought-after destination, then the party prevails regardless of the route taken; and
(3) The standard is whether the party has prevailed in a practical sense.
Under these principles, appellee has prevailed.
The essential claim in this suit was that the 2005 Sonata appellee purchased was not in conformance with the manufacturer's warranties and that, therefore, appellee was entitled to damages to compensate her for the reduced value of the vehicle. In the settlement agreement, Hyundai agreed to swap the defective car with a brand-new 2007 model, worth significantly more than the 2005 model, then one year old and originally purchased new by appellee. Appellee actually secured more than she sought, a brand new car. Although she may not have taken the direct route to this substantial relief, without a doubt, she prevailed "in a practical sense." Blaylock, supra, 152 Md.App. at 355, 831 A.2d 1120.
2. Reasonableness of the Fee Award
Appellant contends 1) that appellee failed to present legally sufficient evidence of the reasonableness of the attorney's fees claimed, and 2) that the court erred by failing to properly apply the lodestar analysis in determining the amount of the fee award. These questions are two sides of the same coin, in that they relate to reasonableness of the fee and its computation.[8]
Appellee provided a four-page invoice, which included the dates various services were rendered, the initials of the person performing the task, a brief description of the service provided, the hours spent, the rate charged, and the amount charged. On its face, the invoice did not clearly specify which services were being performed by lawyers and non-lawyers. Appellee also submitted to the court the current and proposed federal court guidelines for determining attorney's fees, which lists the recommended hourly rates based upon the number of years the attorney has been admitted to the bar, in order to show that the rates charged by his law firm were in keeping with those guidelines. Additionally, at the hearing regarding appellee's motion for attorney's fees, her counsel said that appellee had filed her complaint alleging one federal and two state claims. He also asserted that, in preparation for trial, extensive discovery was undertaken, interrogatories *1265 and document production requests were filed, the appellee's and appellant's experts were deposed, pre-trial statements were prepared, and a settlement conference was held. Additionally, appellant had filed a motion for summary judgment and a hearing was held. After a year of litigation, during which no settlement seemed likely, appellee's counsel prepared for trial. It was not until the day of trial, after some preliminary arguments were heard, that a settlement was finally reached.
Appellee's counsel also stated that because he had more than fifteen years experience, his services were billed at the rate of $275 per hour, which was in keeping with the proposed federal guidelines on attorney's fees submitted into evidence as plaintiff's exhibit C. He stated that his company charged $90 per hour for paralegal services. He pointed out that he had litigated the case for a year and had attempted to settle the case six months prior to trial. He asserted that the amount sought was reasonable based upon the amount of time invested. Appellee's counsel offered to submit the fee agreement between his firm and appellee, but it was not admitted into evidence. After hearing arguments from both parties and reviewing the appellee's billing invoice, the circuit court judge stated that the fees "appear to be reasonable" and awarded appellee $12,311.40 in attorney's fees.
Although nearly indecipherable without counsel's explanation, appellee's invoice provided at least some evidence of a reasonable fee. However, there were some major flaws in the submission. Both the AWEA and the CPA authorize the award of reasonable "attorney's" fees. According to Friolo I, 373 Md. at 530, 819 A.2d 354, a state fee shifting statute allowing "counsel" fees "must exclude any fees of nonlawyers," including charges for paralegals.[9] Here, appellee sought and received payment for paralegals at the rate of $90 per hour. In addition, appellee tied the attorney's rate to federal court guidelines never adopted by a Maryland court. In Friolo I, the Court of Appeals noted that state courts are "not bound to any `matrix' adopted by out-of-state courts or agencies, but must be guided by the nature of the case and the relevant issue it presents and by the rate or other fee arrangements common in the community for similar kinds of fees." 373 Md. at 530, 819 A.2d 354.
In determining an award under Maryland fee-shifting statutes, courts employ the lodestar methodology.[10] This begins by multiplying the reasonable number of hours expended by an attorney by a reasonable hourly rate. Id. at 504-05, 819 A.2d 354. In Friolo I, however, the Court of Appeals cautioned that the lodestar methodology was broader than simply a multiplication of reasonable hours spent by a reasonable hourly rate, but required a careful consideration by the trial court of appropriate adjustments that should be made on a case-by-case basis. Friolo I, 373 Md. at 504-05, 819 A.2d 354. "Hours that [a]re excessive, redundant, or otherwise unnecessary should be excluded, as hours not properly billed to one's client are also not properly billed to the adversary." Id. at 524, 819 A.2d 354. If charges for non-lawyers, such as paralegals, are claimed under a statute that does not authorize such fees, those amounts should be *1266 excluded. See p. 1265, 960 A.2d at p. 275, supra; Friolo I, 373 Md. at 530, 819 A.2d 354.
Maryland courts consider a variety of factors including, but not limited to, those delineated in Md. Rules of Professional Conduct, Rule 1.5. Those factors are:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
We find that the trial court did not make sufficient findings of fact with regard to these factors.
In order to determine whether any of the charges billed by appellee's counsel were reasonable, in addition to reviewing the information provided by appellee, the court would also need to apply the factors from Md. Rules of Professional Conduct Rule 1.5 and assess the level of skill of each staff person who performed services; whether time limitations were placed upon the firm by the client; the nature and length of the professional relationship between the appellee and her counsel; whether the case was considered undesirable and/or required the attorney to work on this case to the exclusion of other cases; the amount of attorney's fee awarded in similar cases, what the fee arrangement was, and the novelty and difficulty of the case. Only after analyzing these additional issues can the trial court properly begin its reasonableness analysis. The analysis does not end there, however.
Once the trial court makes a determination as to the reasonableness of the fees, it must then weigh the fees requested by the result achieved and decide whether an upward or downward adjustment in the award is warranted. Friolo I, 373 Md. at 504, 819 A.2d 354. If the court determines that the appellee has obtained excellent results, his attorney should recover the full fee, which would normally encompass all hours reasonably expended on the case. Id. at 524-25, 819 A.2d 354. If the court finds that the appellee obtained exceptional success, even an enhanced award may be justified. Id. at 525, 819 A.2d 354. On the other hand, if the court determines that the appellee achieved only partial success, a downward adjustment may be necessary. Garcia v. Foulger Pratt Dev., Inc., 155 Md.App. 634, 673-74, 845 A.2d 16 (2003)(noting, however, that if the lawsuit consisted of related claims, a plaintiff who has achieved substantial results should not have his attorney's fees reduced simply because the court did not adopt each contention raised).
According to Friolo v. Frankel, 403 Md. 443, 450, 942 A.2d 1242 (2008), the trial court is required to explain how the lodestar factors affected its decision to award attorney's fees. Because the record in this case is incomplete with regard to the analysis undertaken by the court, we cannot determine whether the court abused its discretion regarding the amount of attorney's fees awarded. We, therefore, remand the case for further proceedings, at which the trial court should follow the lodestar methodology as outlined above, *1267 and explain how those factors justify the award of attorney's fees.
JUDGMENT OF THE CIRCUIT COURT FOR CECIL COUNTY WITH RESPECT TO ATTORNEY'S FEES VACATED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS IN CONFORMANCE WITH THIS OPINION. JUDGMENT AFFIRMED IN ALL OTHER RESPECTS. COSTS DIVIDED EQUALLY BETWEEN THE PARTIES.
NOTES
[1] Hyundai's counsel put the following settlement on the record:
Your Honor, in this case, as the Court knows we were given a repair order this morning of which we did not have knowledge of prior, and there was an issue that it created with respect to whether this vehicle, that is the subject of the suit, has continuing problems that it's exhibited approximately 1 year ago. Under those circumstances HMA is offering to the Plaintiffs and I understand that they are accepting it. That we will perform what's called a swap out. It is not an admission of liability. It is not released under the Maryland lemon law, Magness and Moss [sic], or the Consumer Protection Law. It is simply this. That in consideration of the settlement without any admission of liability, Defendant will give to the Plaintiff's [sic] or the Plaintiff, Mrs. Alley, she's the only owner of the vehicle, a new current model year Sonata, which is the model that she owns, so it's a 2007, to replace the 2005. They will give the 2005 to Hyundai Motor of America, it will be similarly equipped with options and it will be in the color of their choice. And the way it works essentially, is they tell us the color and we will find a vehicle and then they will come up and look at it to see if it's acceptable. I understand that there is a loan on the vehicle, and typically because the new vehicle is worth so much more than the old one is worth, you can simply just substitute collateral in order to keep the loan the exact same amount, the exact same price. None of us can foresee whether the finance company will actually do that, this is not financed through Hyundai Motor Finance, it's financed through a bank, but all of us here who have done this before believe it's highly likely. If they use the collateral, the new collateral is worth so much more that they'll be able to finance it and keep it at that level.
[2] The court did note: "Mrs. Alley, congratulations, I hope you enjoy your new car."
[3] In making the award, the court said:
In my opinion, ... the Plaintiff was the prevailing party. The settlement was to her satisfaction and the case was terminated with the exception of the reservation for attorney fees. And, therefore, under the Automotive Warranty Enforcement Act and the Magnuson-Moss Act, the Court may award reasonable attorney's fees to a prevailing plaintiff or party within the respective sections. And, undeniably, as mentioned this litigation dragged on for over a year before it was finally resolved and during the course of that time Counsel for the Plaintiff's [sic] expended time and effort, incurring legal obligations which are set forth in the billing included. And, all of the efforts exerted by Plaintiff's Counsel were directed to proceeding onto trial or settling the matter. It was eventually settled. The fees demanded appear to be reasonable and it is the opinion and decision of the Court that the Plaintiff's Motion for Attorney's Fees and Courts [sic] in the amount of $12,311.40 is hereby approved and granted by the Court.
The court's oral opinion did not mention an award of fees under the CPA. However, the fee award order recited that it granted appellee's motion, and the memorandum supporting that motion claimed fees under three statutes, including the CPA.
[4] This is apparent from the federal cases cited favorably by Blaylock in support of its State law "prevailing party" standard, some of which are inconsistent with Buckhannon and some of which did not involve judicially-approved settlements. Blaylock, 152 Md.App. at 354-55, 831 A.2d 1120.
[5] While the settlement agreement is not a court order, if a voluntary dismissal occurs pursuant to Md. Rule 2-506(b), the plaintiff's claim may be dismissed "only by order of court and upon such terms and conditions as the court deems proper."
[6] A helpful analysis of cases on state Lemon Law fee-shifting is found in Annot.: Award of Attorney's Fees under State Motor Vehicle Warranty Legislation (Lemon Laws), 82 A.L.R. 5th 501 (2000, 2008 supp.).
[7] Although there was no express judicial approval of the settlement, the court clearly acquiesced in the arrangement and the judge appeared to voice his personal approval in his congratulatory remarks to the plaintiff. In addition, the settlement could not have been entered into the record without the court's permission.
[8] Appellant argues that appellee failed to supply the requisite evidence needed to meet her burden of proof for claims of attorney's fees, and, therefore, according to Diamond Point Plaza v. Wells Fargo Bank, N.A., 400 Md. 718, 759-60, 929 A.2d 932 (2007), relief must be denied. Appellant also cites B & P Enterprises. v. Overland Equip. Co., 133 Md.App. 583, 624, 758 A.2d 1026 (2000), which holds that the losing party is "entitled to have the amount of fees and expenses proven with the certainty and under the standards ordinarily applicable for proof of contractual damages." These cases can be readily distinguished from the present case, however, in that both Diamond Point and B & P Enterprises entitled the prevailing party to reasonable attorney's fees under the terms of the disputed contracts. In the case at bar, like the Friolo cases and Blaylock, the award of attorney's fees was not a bargained for condition of a contract between the parties; the right to seek an award was authorized by statute. In seeking the award of attorney's fees under fee-shifting statutes, however, the party seeking recovery must provide evidence supporting the hours worked and rates claimed.
[9] The Friolo I Court said that "[c]harges for paralegals and legal interns are subsumed within the attorney's fees." 373 Md. at 530, 819 A.2d 354.
[10] The term "lodestar" means guiding ideal or a model for imitation. Webster's Unabridged Dictionary 1062 (2d ed. 1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562287/ | 4 F.2d 629 (1925)
MANDEL et al.
v.
UNITED STATES, to Use of WHARTON & N. R. CO. et al.[*]
No. 3218.
Circuit Court of Appeals, Third Circuit.
March 19, 1925.
McDermott, Enright & Carpenter and James D. Carpenter, all of Jersey City, N. J., for plaintiffs in error.
King & Vogt and Harold A. Price, all of Morristown, N. J., for defendant in error Wharton & N. R. Co.
Charles E. Hendrickson, of Jersey City, N. J. (John McKim Minton, Jr., and Joseph F. Curren, both of New York City, of counsel), for defendant in error Kellogg Structural Steel Co.
William H. Wurts, of New York City, for defendant in error Witherow Steel Co.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
BUFFINGTON, Circuit Judge.
On September 26, 1917, the Columbus Circle Construction Corporation gave a bond to the United States, with Henry Mandel and Edward J. Zahner as sureties, conditioned for the performance of its contract, 2427-B for the construction of a naval ammunition depot at Lake Denmark, Dover, N. J. On the failure of that company to fulfill contract 2427-B, the surety, Mandel, entered into a supplemental contract, 2427-B-X, to complete the same. On Mandel's failure to complete his supplemental contract, 2427-B-X, the Speedwell Contracting Company, by contract, undertook to, and did, complete the work and fulfilled contract 2427-B of the Columbus Circle Construction Corporation.
Quoting from the opinion of the court *630 below, we here note that "it is to be borne in mind that this contract, No. 2427-B-X, was the supplemental agreement between the original contractor, the surety, and the government for the performance of the contract 2427-B in accordance with the requirements set by the original instrument, and amounted to no more than an agreement between the original contractor, the surety, and the government that payments were to be made to the surety rather than to the contractor." Such being the case, and the several claims here involved being based on the present suit on the contractor's bond, the general underlying question is whether such suit was begun within the time limit fixed by the statute.
On the part of Mandel, the surety and plaintiff in error, it is contended the date of settlement was January 24, 1920, and that the suit on the bond, brought October 18, 1921, was after the year limit provided by statute. On the other hand, it is contended the date of settlement was April 15, 1921, and therefore the suit was begun in due time. The provision of the statute is that suit on the bond shall be commenced "within one year after the performance and final settlement of said contract, and not later," and as touching a question later discussed we here note that "only one action shall be brought, and any creditor may file his claim in such action and be made party thereto within one year from the completion of the work under said contract, and not later."
The contention that January 24, 1920, was the date of the statutory "performance and full settlement" of the contract is based on the letter of that date addressed to the commandant of the Third naval district, and signed by two lieutenants and an expert aide. The court held this letter was not the settlement meant by the statute. We agree with that view. While this letter shows the data for making a settlement, and indeed one that was adopted and affirmed in the settlement when made, yet it is quite apparent that the letter neither was a settlement nor purported so to be. It was, as we have said, addressed to the commandant of the Third naval district. It states that the paper is a board report on amounts still due contractors, etc., and, instead of stating it was a settlement, as that term is regarded under the law,[1] the letter states: "It is recommended that the addition and deductions as submitted in this report be included in the modification of the contract price of contract No. 2427-B and 2427-B-X, and that authority be granted for settlement of this contract upon the above basis, without deduction for liquidation."
It will thus be seen that the letter is a recommendation of a settlement, and not the making of one. And this estimate of the nonfinality of the letter is proved by the uncontradicted evidence of May, a government employee familiar with the workings of the department, who says that the final making of settlement rested with C. W. Sparks, of the Civil Engineer Corps of the Navy, and that he made such final settlement by his letter of April 15, 1921, which states: "The findings and recommendations of the board (reference A) are approved; * * * accordingly final payment under Contract No. 2427-B-X in the sum of $1,465.75 is authorized, subject to the execution by the contractors of an unqualified release of claim."
In view of these facts, we agree with the court below in holding April 15, 1921, the date of final settlement.
Claim of the Wharton & Northern Railroad.
The railroad has two claims one for freight and the other for demurrage arising on cars consigned to the contractors. These claims arose under the following circumstances: The land where the contracting company was building this ammunition depot was situate in a large government reservation. Through this reserve the government operated its own engines on its own tracks. The tracks of the Wharton & Northern Railroad extended only to the reserve border, and consequently it delivered at that point the cars consigned to the contractors, and the government railroad undertook delivery from that point. There was, therefore, no opportunity for the claimant railroad to collect its freight when the contractor came to remove it; and after the car was delivered to the government railroad, control of the contractor's car passed away from the Wharton & Northern Railroad, and such car was returned to use, not when the contractor unloaded it, but only when the *631 government railroad returned it to the Wharton & Northern.
The question therefore is: Was the claim of the railroad for freight and demurrage recoverable under the statutory bond, conditioned that the contractors "shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract"? The court below allowed these items, but we cannot accede to this view. The words "labor and material," used by Congress in this statute, are plain words of well-understood meaning, and in the common use and acceptance car demurrage and car freight are not described or embraced by the words "labor and material." Moreover, there is no call for the exercise of judicial construction to give to demurrage and freight the protection of this statutory bond. There was a real hardship to labor and material men who worked upon, or furnished material for, a structure or improvement on government property. They could have no lien and no way of protecting themselves. Accordingly the statute required from the contractor a statutory bond and approved surety responsibility for the protection of unprotected labor and material. But the railroad required no such protection. It could refuse to deliver to the contractor until both freight and demurrage were paid. Hence neither the words of the bond allow, nor the spirit and purpose of the law require, that judicial construction to enlarge or construe the words "labor and material" so as to include freight and demurrage. We agree with what was said by the Circuit Court of Appeals of the Fifth Circuit in United States v. Hyatt, 92 F. 445, 34 Cow. C. A. 447: "Congress could not have intended to include in the term `labor,' as used in this act, the freight charges of a railroad on materials carried by it. The railroad is abundantly protected by its lien on freight."
That the circumstances of the particular situation here involved, to wit, that this work was done on a government reservation, that the cars were delivered by the railroad to the government railroad at the border of the reservation, and that the railroad had no opportunity of requiring payment of its freight and demurrage charges before the contractor got the shipments, are facts which make the situation exceptional, and indeed hard on the railroad. But, conceding this exceptional situation, where the railroad could not enforce its lien a situation it knew existed that is no reason why the statute should be given a construction different from what we have seen was its real and proper one.
Claim for Elevators.
This claim arises under the following facts: Two elevators were ordered from the Albro-Clem Elevator Company by the contractor. They were shipped under a bill of lading accompanied by a sight draft, which required payment before delivery. They passed from the control of the railroad and into the reservation under the situation heretofore described, and the draft was not paid. Whereupon the elevator company brought suit against the railroad for recovery of their value, and obtained judgment therefor. The railroad then paid the judgment, took an assignment therefor, and made this claim. It was allowed by the court, and such allowance is here assigned for error. We find no error in the court's action. It rightly regarded this as a claim made by the elevator company for materials furnished and used in the building. Just who placed them there, or how they got there, the testimony does not disclose; but that they were ordered by the contractor for use in the work, that they were shipped to the contractor and were subsequently found in place and use in the building for which they were ordered certainly, in the absence of any convincing countervailing proof, would have justified the allowance of the claim of the elevator company. By assignment the railroad now stands in its place.
On the same grounds, we think the claim for cement furnished, which was also assigned to the railroad, was allowable; but, as we gather from the proceedings, this claim was conceded.
Claim of the Kellogg Structural Steel Company.
This company brought a suit at law in the court below on the contractor's bond on October 18, 1921. The only objection made to its allowance was that it was not brought within the statutory limit of one year from date of full settlement. As we have held that the date of full settlement was April 15, 1921, no error was committed by the court below in allowing this claim.
Claim of the Witherow Steel Company.
As we have heretofore seen, the date of full settlement was April 15, 1921, and the suit at law on the contractor's bond was begun by the Kellogg Structural Steel Company *632 in the court below on October 18, 1921. And the statute provided, as quoted above: "Only one action shall be brought and any creditor may file his claim in such action and be made a party thereto within one year from the completion of the work under said contract and not later." Within such allowed time the Witherow Steel Company took no step to be made a party to such suit, and the statutory time limit to present its claim ended, as the statute was mandatory that the filing of claims could not be done later.
To maintain its claim the Witherow Steel Company shows that on April 14, 1922, it also began an action at law on the bond in the court below, in assertion of its claim. Now it will be noted that the jurisdiction of the District Court of New Jersey here exercised arises, not by diversity of citizenship, or on any other of the usual grounds of federal jurisdiction, but is wholly statutory, and depends on subject-matter and location, viz.: "He or they shall have a right of action, and shall be, and are hereby authorized to bring suit in the name of the United States in the Circuit [now District] court of the United States in which said contract was to be performed and executed, irrespective of the amount in controversy in such suit and not elsewhere." Such being the situation, no statutory authority for the Witherow Steel Company to use the name of the United States in this attempted second suit on the bond existed, and the court below had no statutory jurisdiction vested in it to entertain such suit. Certain it is the Witherow Steel Company, the use party in such suit, had to invoke the authorization of the statute to sustain the suit; but the statute it invoked, and by virtue of which it asserts the jurisdiction of the court, not only did not warrant a second suit, but expressly forbade it. Both by duplicating the first suit and by failing to file its claim in that first suit, the Witherow Steel Company left its claim in a situation where the power of the court below to enforce it was gone. It follows, therefore, that when that court, on November 9, 1922, more than 16 months after the final settlement of April 15, 1921, made a nunc pro tunc order, in which it was sought to restore to the Witherow Steel Company the status and rights which the statute had extinguished, it exceeded its powers. The claim of the Witherow Steel Company is therefore denied.
The record will be remanded to the court below for due procedure in accordance with this opinion.
NOTES
[*] Certiorari denied 45 S. Ct. 515, 69 L. Ed. ___.
[1] See Illinois Surety Co. v. Peeler, 240 U.S. 221, 36 S. Ct. 324, 60 L. Ed. 609. "We think that the words `final settlement' in the act of 1905 had reference to the time of this determination, when, so far as the government was concerned, the amount which it was finally bound to pay or entitled to receive was fixed administratively by the proper authority. * * * The time of the final administrative determination of the amount due is a definite time, fixed by public record and readily ascertained." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/562654/ | 935 F.2d 739
33 Fed. R. Serv. 488
UNITED STATES of America, Plaintiff-Appellee,v.Juan Leonardo PAULINO (90-5090); Ada Fernandez, a/k/a AdaPaulino (90-5094); Edward Chazulle (90-5091); Alex Vieyra(90-5092); Juan Carlos Paulino, a/k/a John Wilson, a/k/aEdward Sanchez (90-5093), Defendants-Appellants,Gary Helton, Steve Pierre, Samuel Torres, Defendants.
Nos. 90-5090 to 90-5094.
United States Court of Appeals,Sixth Circuit.
Argued Feb. 14, 1991.Decided June 3, 1991.
Louis DeFalaise, U.S. Atty., Jane E. Graham, Asst. U.S. Atty. (argued), Lexington, Ky., for plaintiff-appellee.
Juan Paulino, pro se.
C. William Swinford, Jr. (argued), Todd, Walter & Cox, Lexington, Ky., for Juan Leonardo Paulino.
Billie J. Davenport (argued), Lexington, Ky., for Edward Chazulle.
Donald D. Waggener (argued), Lexington, Ky., for Alex Vieyra.
David R. Marshall (argued), Lexington, Ky., for Juan Carlos Paulino.
Andrew M. Stephens (argued), Lexington, Ky., for Ada Fernandez.
Before NELSON and SUHRHEINRICH, Circuit Judges, and WELLFORD, Senior Circuit Judge.
SUHRHEINRICH, Circuit Judge.
1
Defendants appeal their convictions on charges of conspiring to possess and distribute cocaine in violation of 21 U.S.C. Sec. 846, and possessing with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Defendant Juan Leonardo Paulino also challenges his conviction for conducting a continuing criminal enterprise with respect to violations of 21 U.S.C. Secs. 841(a)(1) and 846, in violation of 21 U.S.C. Sec. 848; and his conviction on two counts of evading taxes, in violation of 26 U.S.C. Sec. 7201.
FACTUAL BACKGROUND
2
This case involves a scheme to transport cocaine from Miami, Florida for distribution in Lexington, Kentucky. After moving from Miami to Lexington sometime in 1986, the defendants began transporting or "muling" cocaine. Two or three members would travel by rental car to Miami where defendant Juan Leonardo Paulino ("Leonardo Paulino") would purchase cocaine from a garage in northwest Miami. He would then buy an Igloo cooler, remove its lining, carve out the foam at the bottom of the cooler, place the cocaine in this space, and then fill the cooler with sandwiches and drinks to disguise its contents. Another member of the conspiracy would return with the cooler to Lexington by bus, where the cocaine would then be delivered to Leonardo Paulino at either a motel or an apartment to be prepared for distribution. The cocaine would be cut with inositol and acetone and bagged in ounce quantities for the street selling, and/or sold in bulk to other dealers.
3
Defendant Edward Chazulle transported cocaine for Leonardo Paulino from 1987 until his arrest in Georgia in April of 1988 for possessing 1 1/2 kilograms of cocaine. The vehicle Chazulle was driving at the time was registered in the name of Leonardo Paulino. Chazulle's driver's license reflected an address associated with Leonardo Paulino. In November of 1987, defendant Alex Vieyra also started transporting cocaine from Miami to Lexington for Leonardo Paulino. Vieyra was arrested some four months following his indictment.
4
After Chazulle's arrest, Leonardo Paulino enlisted the help of former co-defendant and government witness Samuel Torres. Torres testified that he made approximately six trips between May or June of 1988 and March of 1989 from Miami to Lexington. Torres' testimony reflected that each trip substantially followed the pattern described above. Torres also testified that the proceeds from the drug sales were typically wired to Miami using Western Union money orders and that defendant Ada Fernandez was the customary recipient, using her own name and others. Torres described Fernandez as the person responsible for handling the money and doing the banking.
5
In September of 1988, defendant Juan Carlos Paulino ("Carlos Paulino"), who had just been released from jail, joined the drug trafficking venture. On March 9, 1989, Torres and Carlos Paulino made a drug run, returning from Miami via bus and carrying the cocaine hidden in a cooler. As will be described below, they were arrested shortly after arriving in Lexington. The testimony at trial established that Torres alone was responsible for transporting at least 3 3/4 kilograms of cocaine from Miami to Lexington on behalf of Leonardo Paulino, and that Carlos Paulino was responsible for transporting between 3/4 of a kilogram of cocaine and 1 3/4 kilograms of cocaine.
6
Other government witnesses included Harry Hughes and former co-defendant Gary Helton. Hughes stated that his knowledge of Leonardo Paulino, Carlos Paulino, Vieyra, and Fernandez was through drugs. Hughes testified that he made four trips to Miami for Leonardo Paulino. His testimony corroborated Torres' description of the drug trafficking scheme. In all, Hughes testified to transporting approximately 13 kilograms of cocaine.
7
Helton was the last to enter the conspiracy. Helton met Carlos Paulino in January of 1989, when Helton started purchasing cocaine from Carlos Paulino. Helton drove Carlos Paulino to Miami in a car rented in Helton's name at the request of Carlos Paulino. Helton testified that Carlos Paulino returned to Lexington by bus carrying a cooler hiding cocaine and Helton returned in the rental car. Helton made a second trip to Miami for Leonardo Paulino. In all, Helton received a total of 29 1/2 ounces cocaine from Carlos Paulino and Leonardo Paulino as payment for those trips.
8
The remainder of the government's proof consisted primarily of material corroborating the manner in which the Paulino drug enterprise was conducted. The government introduced records showing car rentals during the periods of time testified by Torres, Hughes, and Helton. Other government witnesses testified to the use of motel rooms and apartments by the Paulino group for drug trafficking. Their testimony was consistent with the testimony of the three drug trafficking witnesses. Also, wire transfers were introduced showing the flow of proceeds from Lexington to Miami.FACTS RELATING TO MOTION TO SUPPRESS
9
On or about February 7, 1987, the Lexington Police Drug Enforcement Unit began investigating the activities of Leonardo Paulino and Fernandez after receiving confidential information that the two were involved in a large scale drug trafficking operation between Miami, Florida and Lexington, Kentucky. In late 1988, a confidential informant reported that Leonardo Paulino used rental cars from Thrifty-Rent-A-Car on Versailles Road in Lexington. The Lexington police began surveilling both the bus station in Lexington and Paulino's apartment in February of 1989. On February 14, 1989, they observed a Thrifty rental car parked at the apartment. The officers also retrieved from the apartment a number of one-way ticket receipts which reflected a pattern of trips from Miami, Florida to Lexington, Kentucky on the second Wednesday of the month, and rental car receipts from Thrifty-Rent-A-Car.
10
The Lexington police set up surveillance at the Lexington bus station on March 8, 1989, focusing on buses that originated in the south Florida area. Based on information provided by the confidential informant, the officers were looking for one to three individuals, primarily hispanic or black, carrying an Igloo cooler. On March 9, 1989, a black male and a hispanic male were observed disembarking from a Florida to Lexington bus. One individual, later identified as Carlos Paulino, was carrying a Playmate cooler; the other, who later turned out to be Torres, was carrying a suitcase. The two entered a car that had arrived at the bus station approximately forty minutes earlier. Carlos Paulino placed the cooler on the back seat of the car next to Torres. The driver of the vehicle moved over, and Carlos got behind the wheel and drove off.
11
The officers did not stop the vehicle at that point because they did not have sufficient units to make the stop and had been informed by the confidential informant that Carlos Paulino had been in possession of an Uzi machine gun. The officers established surveillance of the vehicle and ran a check on the license plate. Due to a transmittal error in the number of the plate, the officers were unable to get a report on the plate.
12
Approximately five minutes after they left the bus station, the Drug Enforcement Unit decided to stop the vehicle in order to identify the occupants and determine whether they were associated with Leonardo Paulino. Although four units were involved in the stop, only six of the officers made the initial approach. The officers asked the individuals to step out and identify themselves and at least one of the officers had his weapon drawn. Carlos Paulino failed to produce a driver's license and falsely identified himself as "Juan Leonardo Paulino." One of the officers testified that he knew the name given by Carlos Paulino was false. Torres identified himself as Torres. At that point, the officers removed the cooler from the back seat of the vehicle and conducted a protective search of the car and its contents. Upon examination of the cooler, the officer noticed a crack in the corner of the lining and removed the lining from the cooler revealing two plastic bags, which subsequently were verified to contain cocaine. The officers arrested Carlos Paulino and Torres.
PROCEDURAL HISTORY
13
On May 17, 1989, an indictment was returned charging Juan Leonardo Paulino, Ada Fernandez, Gary Helton, Edward Chazulle, Alex Vieyra, Steve Pierre, Carlos Paulino, and Samuel Torres with one count of conspiring to distribute cocaine between 1987 and March 9, 1989; Carlos Paulino and Torres with one count of possession with the intent to distribute 752 grams of cocaine on March 9, 1989; and Leonardo Paulino with conducting a continuing criminal enterprise with respect to violations of 21 U.S.C. Secs. 841(a)(1) and 846, in violation of 21 U.S.C. Sec. 848. On August 2, 1989, a superseding indictment was returned. The superseding indictment was identical to the May 17, 1989, indictment as to the first three counts; and added two counts charging Leonardo Paulino with evading taxes in the amounts of $41,471 and $29,813 in the calendar years of 1987 and 1988, respectively, in violation of 26 U.S.C. Sec. 7201.
14
On May 16, 1989, a hearing was conducted on Torres' and Carlos Paulino's motions to suppress evidence seized when they were arrested in Lexington, Kentucky, on March 9, 1989. The motions were later denied.
15
On October 4, 1989, defendant Torres plead guilty to conspiracy to distribute cocaine (Count I). On October 10, 1989, defendant Helton similarly plead guilty to Count I. After denying the parties' various pretrial motions, the remaining defendants went to trial on October 11, 1989. On October 24, 1989, the jury convicted the defendants as to all counts. The defendants were sentenced on December 21, 1989.
16
On appeal, defendants raise the following issues:
17
I. Whether the district court erred in denying Torres and Carlos Paulino's motion to suppress the evidence obtained in the March 9, 1985 search of the cooler.
18
II. Whether the defendants were entitled to a multiple conspiracy instruction.
19
III. Whether the indictment adequately charged a continuing criminal enterprise violation with respect to Leonardo Paulino.
20
IV. Whether the district court improperly instructed the jury on the continuing criminal enterprise count.
21
V. Whether the district court erred in overruling the defendants' motions for severance.
22
VI. Whether the district court erred in permitting a summary witness to testify.
23
VII. Whether the district court erroneously admitted the introduction of evidence of "other crimes" relating to an Uzi handgun found at the time Vieyra and Leonardo Paulino's arrest, to Leonardo's prior drug dealing, and to Chazulle's arrest in Georgia.
24
VIII. Whether the district court's finding as to the amount of cocaine involved in the conspiracy was clearly erroneous.
25
IX. Whether Carlos Paulino's role in the offense enhancement was justified.
26
X. Whether Carlos Paulino's prior conviction was improperly considered in calculating his guidelines.
DISCUSSION
I.
27
Defendants Vieyra and Carlos Paulino challenge the district court's denial of their motions to suppress the cocaine seized as a result of the stop and subsequent search of the cooler on March 9, 1989. Because Vieyra never raised the issue below, he has waived his right to appeal. Fed.R.Crim.P. 12(b)(3) & (f).1 We will therefore consider only Carlos Paulino's arguments. Carlos Paulino does not dispute the existence of the facts justifying a Terry stop. Rather, he contends that the stop was in fact an arrest, and that the government was therefore required to demonstrate probable cause, which ran only to the cooler and not to the automobile in question. The government counters that the search was justified as both a protective search and/or as a probable cause search.
A.
28
It is well established that an officer may legally search for weapons if a reasonably prudent officer in the circumstances would be warranted in the belief that his safety or that of others was in danger. Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889 (1968); United States v. Kelly, 913 F.2d 261, 264 (6th Cir.1990). In Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), the Supreme Court held that these safety concerns, in the context of roadside encounters, justify the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, if the police officer possesses a reasonable belief based on specific and articuable facts that the suspect is dangerous and may gain immediate control of the weapons. Long, 463 U.S. at 1049, 103 S.Ct. at 3480.
29
In this case, we find that the officers acted reasonably in searching the cooler for weapons. First, the officers had prior information that Carlos Paulino carried an Uzi gun, and had reasonable suspicion to believe that the driver of the vehicle was in fact Carlos Paulino. See United States v. Hardnett, 804 F.2d 353, 356 (6th Cir.1986) (informant's tip is sufficient to establish reasonable suspicion), cert. denied, 479 U.S. 1097, 107 S. Ct. 1318, 94 L. Ed. 2d 171 (1987). Second, the cooler was in the passenger area of the vehicle where the defendants had ready access to it and could have easily concealed a weapon. The number of officers on the scene, even when coupled with the fact that the cooler and the defendants were outside the vehicle, did not obviate the need for a protective search of the vehicle and its contents. Thus, we find that the search of the cooler was justified as a protective search under Long.
B.
30
In the alternative, the government argues that the search at issue was justified as a probable cause search. A search of a vehicle for contraband as opposed to a weapon cannot be justified under Terry. See Long, 463 U.S. at 1049 n. 14, 103 S. Ct. at 3481 n. 14; United States v. Barrett, 890 F.2d 855, 862 (6th Cir.1989). It is well settled, however, that a warrantless search of a vehicle lawfully stopped by the police does not violate the fourth amendment if the officers have probable cause to believe the vehicle contains contraband. Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); United States v. Ross, 456 U.S. 798, 799, 102 S. Ct. 2157, 2159, 72 L. Ed. 2d 572 (1982); United States v. Crotinger, 928 F.2d 203, (6th Cir., 1991). Furthermore, if probable cause justifies the search of a lawfully stopped vehicle, then that probable cause extends to every part of the vehicle and any containers that may conceal the object of the search. Ross, 456 U.S. at 824, 102 S.Ct. at 2172. Probable cause is determined not by the nature of the container in which the contraband is secreted, but by the object of the search and the places in which there is probable cause to believe it may be found.
31
Defendant relies on United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977), and Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979), in support of his argument that probable cause ran only to the cooler and not to the entire automobile. In those cases, the Supreme Court held that the moving vehicle exception to the warrant requirement did not apply to a footlocker and suitcase, respectively, which the police had probable cause to believe contained contraband prior to their being placed in the trunks of the automobiles. Concededly, the police in the instant case had prior knowledge that the cooler contained cocaine secreted in its lining. Unlike Chadwick and Sanders however, where the luggage was out of control of the defendants once they were inside the vehicle, here the cooler was in the defendants' control and out of sight of the agents from the time it was placed in the car until the vehicle was eventually pulled over. As found by the district court, the cocaine could have easily been removed from the cooler and concealed elsewhere in the car. For this reason, we believe that probable cause extended to the vehicle.
32
We find the instant case more akin to United States v. Johns, 469 U.S. 478, 105 S. Ct. 881, 83 L. Ed. 2d 890 (1985). In Johns, the Supreme Court upheld the validity of the warrantless search of packages discovered in the back of a pickup truck on the basis of the automobile exception. In that case, United States customs agents observed two airplanes, which they had reason to believe were transporting marijuana, meet two pickup trucks in an isolated desert airstrip. Thereafter, they observed individuals covering packages in the back of the truck with a blanket. The packaging was similar to that which the officers knew to be used to enclose marijuana, and they smelled marijuana emanating from the package. The Johns Court distinguished Chadwick, commenting that in Chadwick there had been an immediate seizure of a closed footlocker from the trunk of an automobile and the police therefore had no probable cause to believe that the automobile, as contrasted with the footlocker, contained contraband. Johns, 469 U.S. at 482, 105 S.Ct. at 884.
33
In Johns, unlike the instant case, the agents were unaware of the fact that the packages contained marijuana until they approached the vehicle. However, the Supreme Court also found that they had reason to believe that marijuana might be contained elsewhere in the vehicle since the customs officers on the ground were unable to observe the airplanes after they were landed, and consequently did not see the packages loaded into the pickup truck. Id. 469 U.S. at 482, 105 S. Ct. at 884. Similarly, in the instant case, the cooler was out of the officers' view for several minutes, an adequate amount of time to remove the contraband from the cooler and hide it elsewhere in the vehicle. Thus, under the authority of Ross and Johns, we conclude that probable cause ran to the vehicle as well as the cooler.
II.
34
All five defendants argue that the trial court committed reversible error in refusing to give a multiple conspiracy instruction. If only one conspiracy is alleged in the indictment and the evidence adduced at trial can reasonably be construed to support a finding of multiple conspiracies, the resulting variance between the indictment and the proof constitutes reversible error if the appellants can demonstrate prejudice. Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946); United States v. Warner, 690 F.2d 545, 548 (6th Cir.1982).
35
This court has stated that in determining whether the evidence showed single or multiple conspiracies it must be remembered that the essence of the crime of conspiracy is agreement; and that in order to prove a single conspiracy the government must show that each alleged member agreed to participate in what he knew to be a collective venture directed toward a common goal. Warner, 690 F.2d at 548-49 (citations and quotations omitted). On the other hand, the government is not required to prove an actual agreement among the various conspirators in order to establish a single conspiracy. Id. at 549. Further, in a "chain conspiracy" such as the one at issue here, it is enough that each member of the conspiracy realizes that he is participating in a joint enterprise, even if he does not know the identities of many of the participants. Id. See also United States v. Davenport, 808 F.2d 1212, 1215-16 (6th Cir.1987).
36
Viewing the evidence in the light most favorable to the government, we find overwhelming evidence in the record of a single "chain" conspiracy, headed by Leonardo Paulino. Testimony at trial revealed that virtually all of the members of the conspiracy were related by blood or childhood friendship, and the membership remained relatively stable. Throughout the period of the conspiracy, the common objective was the transportation of cocaine from Miami to Lexington for distribution; and the manner of dealing and distributing, through the use of rental cars and buses, remained remarkably consistent throughout the conspiracy. Virtually all of the trips were made directly at the behest and instruction of Leonardo Paulino.
37
Fernandez, Leonardo Paulino, and Carlos Paulino point to the various activities of Gary Helton, Harry Hughes, Javier de la Rosa, Steve Pierre, and Steve Gossett as evidence of multiple conspiracies. However, we find that these contentions are not supported by the facts. Because we find no error in the district court's refusal to give a multiple conspiracy instruction, we need not address the defendants' allegations of prejudice.
III.
38
Defendant Leonardo Paulino argues that the district court erred in denying his motion to dismiss Count III of the indictment, which charges him with engaging in a continuing criminal enterprise ("CCE").2 Leonardo Paulino contends that because Count III does not set forth the predicate offenses which allegedly constitute the "continuing series of violations" element of the CCE count, but merely tracks the language of the statute, and fails to incorporate by reference any other counts in the superseding indictment as predicate offenses, the indictment violates his fifth amendment right to be tried only upon charges specifically returned by a grand jury and his sixth amendment right to adequate notice.
39
The issue presented is one of first impression in this circuit. Several other circuits have held that for constitutional purposes, an indictment charging a CCE offense is sufficient if it articulates in statutory language the elements of the violation, and need not list the specific predicate offenses of the "continuing series of violations" element.3 United States v. Martell, 906 F.2d 555, 558 (11th Cir.1990); United States v. Amend, 791 F.2d 1120, 1125 (4th Cir.) (indictment sufficient although not alleging five individuals with whom the defendant acted in concert), cert. denied, 479 U.S. 930, 107 S. Ct. 399, 93 L. Ed. 2d 353 (1986); United States v. Sterling, 742 F.2d 521, 526 (9th Cir.1984), cert. denied, 471 U.S. 1099, 105 S. Ct. 2322, 85 L. Ed. 2d 840 (1985); Sperling v. United States, 692 F.2d 223, 226 (2d Cir.1982), cert. denied, 462 U.S. 1131, 103 S. Ct. 3111, 77 L. Ed. 2d 1366 (1983); United States v. Johnson, 575 F.2d 1347, 1356 (5th Cir.1978), cert. denied, 440 U.S. 907, 99 S. Ct. 1213, 1214, 59 L. Ed. 2d 454 (1979). Three other circuits have held that an indictment was sufficient where the predicate offenses were alleged in other counts of the indictment. United States v. Staggs, 881 F.2d 1527, 1531 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S. Ct. 719, 107 L. Ed. 2d 739 (1990); United States v. Moya-Gomez, 860 F.2d 706, 752 (7th Cir.1988), cert. denied, 492 U.S. 908, 109 S. Ct. 3221, 106 L. Ed. 2d 571 (1989); United States v. Becton, 751 F.2d 250, 256-57 (8th Cir.1984), cert. denied, 472 U.S. 1018, 105 S. Ct. 3480, 87 L. Ed. 2d 615 (1985).
40
We agree with those circuits which have held that all that is required to satisfy defendant's fifth amendment right to be tried only upon offenses presented to a grand jury is evidence that the defendant committed three predicate offenses for a section 848 violation, regardless of whether such offenses were charged in counts in the indictment. The Supreme Court has held that an indictment is sufficient "if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117, 94 S. Ct. 2887, 2907, 41 L. Ed. 2d 590 (1974). See also Russell v. United States, 369 U.S. 749, 763-64, 82 S. Ct. 1038, 1046-47, 8 L. Ed. 2d 240 (1962); United States v. Gray, 790 F.2d 1290, 1296 (6th Cir.1986); United States v. Piccolo, 723 F.2d 1234, 1238 (6th Cir.1983), cert. denied, 466 U.S. 970, 104 S. Ct. 2342, 80 L. Ed. 2d 817 (1984).4 An indictment is generally sufficient if it sets forth the words of the statute itself, as long as the statute itself adequately states all of the elements of the offense. Hamling, 418 U.S. at 117, 94 S.Ct. at 2907; Gray, 790 F.2d at 1298. Furthermore, a defendant is not entitled to a bill of particulars with respect to information which is available through other sources. Martell, 906 F.2d at 558.
41
Count III of the indictment alleges in pertinent part that during 1987 through March 19, 1989, in Lexington, Kentucky and elsewhere Leonardo Paulino--
42
unlawfully, willfully, knowingly and intentionally did engage in a Continuing Criminal Enterprise in that he did violate Title 21, United States Code, Sections 841(a)(1) and 846 which violations were part of a continuing series of violations of said statutes undertaken by Juan Leonardo Paulino in concert with at least five (5) other persons with respect to whom Juan Leonardo Paulino occupied a position of organizer, supervisor and manager....
43
It is clear that the indictment sets forth each and every element of the CCE offense. Moreover, although Count III does not list specific predicate acts, it states the specific time frame in which the acts occurred, which would satisfy any double jeopardy concerns.
44
Furthermore, as defendant acknowledged in his brief, the availability of a bill of particulars provides adequate protection for a defendant's sixth amendment right by providing him with a means of discovering the specific violations the government intends to use at trial. See United States v. Debrow, 346 U.S. 374, 378, 74 S. Ct. 113, 115, 98 L. Ed. 92 (1953); Glasser v. United States, 315 U.S. 60, 66, 62 S. Ct. 457, 463, 86 L. Ed. 680 (1942). Here, although Leonardo Paulino sought a bill of particulars on the conspiracy charge, no similar request was made with respect to the CCE charge.
45
Thus, we hold that the indictment in this case satisfied constitutional safeguards in that it clearly set forth the statutory elements of the CCE offense and stated a specific time frame. We therefore affirm the district court's refusal to dismiss Count III of the indictment. Because we uphold the indictment on its face, we need not reach the issue of whether the Count III should have expressly incorporated by reference other predicate acts in the indictment.
IV.
46
Defendant Leonardo Paulino next argues that the district court erred in instructing the jury that it had to find Leonardo Paulino guilty of Count I, the conspiracy count, as one of the "continuing series of violations" elements under the CCE charge in Count III of the indictment. Leonardo Paulino asserts that a section 846 conspiracy (21 U.S.C. Sec. 846) cannot be the predicate act for a section 848 offense (21 U.S.C. Sec. 848), since conspiracies are inchoate crimes, and section 848 requires proof of a substantive violation.
47
We have expressly held that a conspiracy under section 846 can be a predicate offense under section 848. United States v. Davis, 809 F.2d 1194, 1203 (6th Cir.) cert. denied, 483 U.S. 1007, 107 S. Ct. 3234, 97 L. Ed. 2d 740 (1987); United States v. Schuster, 769 F.2d 337, 345 (6th Cir.1985), cert. denied, 475 U.S. 1021, 106 S. Ct. 1210, 89 L. Ed. 2d 322 (1986). Notwithstanding, we have also held that a defendant cannot be subjected to cumulative punishment for both a conspiracy violation under section 846 and a CCE violation under section 848, even if the conspiracy and CCE sentences run concurrently. United States v. English, 925 F.2d 154, 160 (6th Cir.1991).5 Thus, defendant's conspiracy conviction under Count I of the indictment must be vacated in light of his CCE conviction under Count III. We REMAND this issue to the district court with instructions to vacate Leonardo Paulino's conspiracy conviction.
V.
48
Defendants Leonardo Paulino, Carlos Paulino, and Vieyra appeal the trial court's denial of their respective motions for severance. Each alleges "spillover" effects from being required to stand trial with his co-defendants. In addition, Vieyra claims that introduction of "bad act" evidence of co-conspirators Leonardo Paulino and Chazulle were impermissibly suggestive. Carlos Paulino claims that his association with Leonardo Paulino at trial led to jury confusion, that the closing argument on behalf of Leonardo was prejudicial to him, and that the closing argument on behalf of Vieyra referred to Carlos Paulino's failure to testify. Finally, Leonardo Paulino claims that his joinder with co-defendant Chazulle prevented Chazulle from testifying on his [Leonardo Paulino's] behalf.
A.
49
In conspiracy cases, the general rule is that persons jointly indicted should be tried together. This is especially true where the offenses charged may be established against all of the defendants by the same evidence resulting from the same series of acts. United States v. Hessling, 845 F.2d 617, 619 (6th Cir.1988). Once the defendants have been properly joined under Rule 8(b) of the Federal Rules of Criminal Procedure, a "strong showing of prejudice" is required to justify severance; and a district court's denial of a motion for severance under Fed.R.Crim.P. 14 is reversible only for an abuse of discretion. 845 F.2d at 619. To establish prejudice, a defendant must show that the jury is unable to separate and to treat distinctively evidence that is relevant to each particular defendant at trial. United States v. Moore, 917 F.2d 215, 220 (6th Cir.1990) (citing United States v. Gallo, 763 F.2d 1504, 1525 (6th Cir.1985), cert. denied, 475 U.S. 1017, 106 S. Ct. 1200, 89 L. Ed. 2d 314 (1986)), cert. denied, --- U.S. ----, 111 S. Ct. 1590, 113 L. Ed. 2d 654 (1991). Even if the defendant establishes some potential jury confusion, this must be balanced against society's need for speedy and efficient trials. Moore, 917 F.2d at 220.
50
In Gallo, we stated that a prejudicial "spillover effect" warranting severance "turns in part on whether the numbers of conspiracies and conspirators involved were too great for the jury to give each defendant the separate and individual consideration of the evidence against him to which he was entitled." 763 F.2d at 1526 (quoting United States v. Toliver, 541 F.2d 958, 962 (2d Cir.1976)); see also Moore, 917 F.2d at 220. Gallo held that a district court's refusal to grant a severance was not an abuse of discretion where there were seven indicted defendants, five of whom eventually went to trial, and there was no other showing of compelling prejudice. Similarly, in this case, five of the eight indicted defendants stood trial. Furthermore, the evidence in this case related to one conspiracy, not multiple conspiracies, and much of it was overlapping as to each defendant. As we noted in Moore, "[t]he presentation of evidence applicable to more than one defendant is simply a fact of life in multiple-defendant cases;" and "a defendant is not entitled to a severance simply because the evidence against a co-defendant is far more damaging than the evidence against him." Moore, 917 F.2d at 220 (citations omitted). We find no showing that quantity and complexity of the evidence was so overwhelming that the jury was unable to give each defendant the separate and individual consideration of the evidence to which he was entitled. Id. at 221.
B.
51
Vieyra contends that the introduction of prior "bad act" evidence of co-defendant Leonardo Paulino, which allegedly occurred two years before the conspiracy at issue, and Chazulle's arrest, necessitates a severance is without merit. Although we discuss the issue more fully in section VIII, we note here that the description of Paulino's drug dealing in Miami prior to the move to Lexington merely demonstrated how the conspirators became associated and how the conspiracy came about. Further, the evidence regarding Chazulle's arrest in 1988 demonstrated when his role in the conspiracy ended, and the underlying conduct was part of one overall conspiracy. We find neither piece of evidence so injurious to Vieyra as to warrant a severance.
C.
52
Carlos Paulino claims that his association with his brother and co-defendant Leonardo Paulino led to jury confusion. However, Carlos Paulino has offered no compelling showing that prejudice resulted, and a jury must be presumed capable of sorting out the evidence and considering the case of each defendant separately. United States v. Thomas, 728 F.2d 313, 319 (6th Cir.1984) (citation omitted). Carlos Paulino's complaint regarding closing argument on behalf of Leonardo Paulino is likewise without merit. Counsel for Leonardo Paulino did not state that "Juan Carlos was a part of [the conspiracy]." Rather, in attempting to demonstrate that fewer than five people were involved in an alleged organization, counsel for Leonardo merely stated, "You got Juan Carlos Paulino; according to Samuel he's in the organization." It is clear that counsel for Leonardo was arguing in the hypothetical. In any event, no objection was raised on behalf of Carlos at the time, and the issue is therefore waived on appeal. Fed.R.Crim.P. 12(b)(5) & (f).
D.
53
Finally, we must examine Leonardo Paulino's contention that his joinder with co-defendant Chazulle prevented Chazulle from testifying on his behalf. Vague allegations, such as the one presented here, do not rise to the level of mandating separate trials. To justify a separate trial, a defendant is required to show that his co-defendant would be willing to testify on his behalf. This requires a showing that the co-defendant would not invoke his fifth amendment privilege, and that the testimony would be exculpatory. United States v. Whitley, 734 F.2d 1129, 1139 (6th Cir.1984) (citing United States v. Goldfarb, 643 F.2d 422, 435 (6th Cir.), cert. denied, 454 U.S. 827, 102 S. Ct. 117, 118, 70 L. Ed. 2d 101 (1981)); see also United States v. Rocha, 916 F.2d 219, 232 (5th Cir.1990), petition for cert. filed February 20, 1991; United States v. Studley, 892 F.2d 518, 525 (7th Cir.1989). In his pleadings defendant Leonardo Paulino failed to make any such showing with respect to Chazulle, and has therefore failed to sustain his heavy burden. We therefore find that the trial court did not abuse discretion in this regard. See Whitley, 734 F.2d at 1139.
54
In sum, we hold that these defendants have failed to demonstrate any "spillover effect" so as to justify a severance. Accordingly, the trial court did not abuse its discretion in failing to sever these defendants for trial.
VI.
55
Defendants Fernandez and Vieyra object to the use of summary witness testimony explaining Government Exhibit 68, an organizational chart reflecting the various players and their roles in the conspiracy; and Government Exhibit 79, which reflected the cash generated from cocaine sales for the period June 1988 to March 1989, claiming that the summary witness's testimony was inflammatory, unduly prejudicial, and constituted impermissible argument. The defendants argue that a non-expert summary witness is improper under Fed.R.Evid. 602, which requires that a non-expert witness testify only as to matters of which he has personal knowledge. The government counters that the summary witness's testimony is permissible under Fed.R.Evid. 1006.6
56
Both Fed.R.Evid. 1006 and "the established tradition" in this circuit and others allow the introduction of summary evidence to aid the jury in the examination of testimony or documents in evidence. See United States v. Scales, 594 F.2d 558 (6th Cir.), cert. denied, 441 U.S. 946, 99 S. Ct. 2168, 60 L. Ed. 2d 1049 (1979); and United States v. Campbell, 845 F.2d 1374 (6th Cir.), cert. denied, 488 U.S. 908, 109 S. Ct. 259, 102 L. Ed. 2d 248 (1988). The summaries presented here are pedagogical devices "more akin to argument than evidence" since they organize the jury's examination of testimony and documents already admitted in evidence. Thus, strictly speaking, they do not fall within the purview of Rule 1006. See Gomez v. Great Lakes Steel Div., Nat'l Steel Corp., 803 F.2d 250, 257 (6th Cir.1986). This court has indicated, however, that authority for such summaries exists under Fed.R.Evid. 611(a)7. Scales, 594 F.2d at 563. Such a summary should be accompanied by a limiting instruction which informs the jury of the summary's purpose and that it does not constitute evidence. See United States v. Campbell, 845 F.2d 1374, 1381 (6th Cir.), cert. denied, 488 U.S. 908, 109 S. Ct. 259, 102 L. Ed. 2d 248 (1988); Gomez, 803 F.2d at 257-58; United States v. Seelig, 622 F.2d 207, 214 (6th Cir.), cert. denied, 449 U.S. 869, 101 S. Ct. 206, 66 L. Ed. 2d 89 (1980); Scales, 594 F.2d at 564. Even with such an instruction, a summary may still be considered too conclusory or inaccurate. Scales, 594 F.2d at 564. The admission of summaries is committed to the sound discretion of the trial court. Campbell, 845 F.2d at 1381; Gomez, 803 F.2d at 257; United States v. Collins, 596 F.2d 166, 169 (6th Cir.1979).
57
While all five defendants did object at trial to the introduction of the witness's testimony, the defendants did not request a limiting instruction at the time of testimony or as part of the jury instructions at the close of proofs. See Seelig, 622 F.2d at 214. Furthermore, although the trial judge did not give a cautionary instruction before the summary witness testified, the following jury instruction concerning the nature of the charts and summaries was read to the jury at the close of proofs:
58
The charts or summaries prepared by the United States and admitted in evidence received for the purpose of explaining facts disclosed by books, records and other documents which are in evidence in the case. Such charts or summaries are not in and of themselves evidence or proof of any facts. If such charts or summaries do not correctly reflect facts or figures shown by the evidence in the case, the jury should disregard them. In other words, such facts or summaries are used only as a matter of convenience. So, if and to the extent that, you find they are not, in truth, summaries of facts or figures shown by the evidence in the case, you are to disregard them entirely.
59
Moreover, the defendants had an full opportunity to cross-examine the witness and thereby "alleviat[e] any danger of inaccuracy or unfair characterization." United States v. Mann, 884 F.2d 532, 539 (10th Cir.1989); United States v. Possick, 849 F.2d 332, 340 (8th Cir.1988); United States v. Lemire, 720 F.2d 1327, 1248 (D.C.Cir.1983), cert. denied, 467 U.S. 1226, 104 S. Ct. 2678, 81 L. Ed. 2d 874 (1984). Finally, upon review of the record as a whole, we do not find the charts to be substantially inconsistent with the evidence adduced at trial. In sum, we conclude that the district court did not abuse its discretion in admitting the summary witness testimony.
VII.
60
Defendant Vieyra contends that the district court erred in denying his motion in limine to exclude evidence of a weapon. Defendant Leonardo Paulino objects to the trial court's admission of evidence relating to his dealing drugs prior to his move to Lexington. Defendant Chazulle appeals the introduction of evidence pertaining to his possession of cocaine in Georgia. Defendants' evidentiary objections are all based on Fed.R.Evid. 404(b) and 403.
61
Under Rule 404(b), evidence of "other crimes" is not admissible to prove the character of a person. See United States v. Ismail, 756 F.2d 1253, 1258 (6th Cir.1985) ("The law is clear, of course, that evidence of past criminal activity is inadmissible to show criminal propensity"). It is admissible however to show "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b). The Supreme Court has held that in determining whether evidence is admissible under Fed.R.Evid. 404(b), "[t]he threshold inquiry a Federal District Court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of the material issue other than character." Huddleston v. United States, 485 U.S. 681, 686, 108 S. Ct. 1496, 1499, 99 L. Ed. 2d 771, (1988); United States v. Zelinka, 862 F.2d 92, 98 (6th Cir.1988). Secondly, the court must determine "whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403." Id. See also United States v. Acosta-Cazares, 878 F.2d 945, 948-49 (6th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 255, 107 L. Ed. 2d 204 (1989).
62
Rule 404(b) "is actually a rule of inclusion rather than exclusion, since only one use is forbidden and several permissible uses of such evidence are identified." Acosta-Cazares, 878 F.2d at 948 (quoting United States v. Blankenship, 775 F.2d 735, 739 (6th Cir.1985)). A district court's ruling under Rule 404(b) will be reversed only upon finding of an abuse of discretion. Acosta-Cazares, 878 F.2d at 948.
A.
63
Before trial defendants Vieyra and Juan Leonardo Paulino filed motions in limine to exclude as irrelevant and/or unduly prejudicial evidence of an Uzi handgun, marked as Government Exhibit # 24, taken from premises occupied by Leonardo Paulino and Vieyra at the time of their arrest, approximately four months following their indictment. The trial court held that the evidence was admissible since testimony of government witness Hughes referred to a weapon involved in the drug transactions, and because of the government's statement that Torres would later testify that the weapon was used by Carlos Paulino during the conspiracy. On appeal, Vieyra contends that the probative value of the weapon was outweighed by its prejudicial impact under Federal Rules of Evidence 403 and 404, and consequently the evidence should have been excluded.
64
We find no abuse of discretion on the part of the district court. In addition to the testimony of Hughes, Torres identified Government's Exhibit # 24 as the weapon possessed during the course of the conspiracy by Carlos Paulino. Torres further testified that he had seen Leonardo Paulino carry a weapon on several occasions in connection with the drug enterprise. This court has on several occasions recognized that firearms and ammunition are tools of the drug trafficking trade and have been admitted in drug distribution cases as tools of the drug conspiracy. See United States v. Marino, 658 F.2d 1120, 1122-24 (6th Cir.1981) (even though defendant was not charged with any firearms offense, evidence of firearms held relevant and admissible because it tended to prove intent to promote and protect the narcotics conspiracy); United States v. Williams, 704 F.2d 315, 322 (6th Cir.), cert. denied, 464 U.S. 991, 104 S. Ct. 481, 78 L. Ed. 2d 679 (1983); United States v. Arnott, 704 F.2d 322, 325-26 (6th Cir.), cert. denied, 464 U.S. 948, 104 S. Ct. 364, 78 L. Ed. 2d 325 (1983); United States v. Gahagan, 865 F.2d 1490, 1499 (6th Cir.), cert. denied, 492 U.S. 918, 109 S. Ct. 3242, 106 L. Ed. 2d 590 (1989).
65
The cases cited by defendant are distinguishable. In United States v. Zelinka, 862 F.2d 92, 99 (6th Cir.1988), this court held that cocaine seized from a suspected drug dealer at the time of his arrest was inadmissible where the seizure occurred seventeen months after the conspiracy had ended and the government failed to explain how the evidence related to the conspiracy. In United States v. Daniels, 572 F.2d 535 (5th Cir.1978), involving a prosecution for distribution and possession of heroin, the court held it was improper to admit evidence concerning defendant's possession of a sawed-off shotgun, since the shot-gun incident occurred subsequent to the alleged narcotics incident. In both of these cases, the evidence of "other crimes" related to a period subsequent to the conduct in question and was therefore not relevant to the charges in the indictment. Here, by contrast, the evidence adduced at trial indicated that the gun was used during the course and in furtherance of the narcotics conspiracy.
B.
66
Next we consider Leonardo Paulino's objection to introduction of his prior drug dealing. Government witness Torres testified that Leonardo Paulino was street dealing drugs in early 1986 in Miami, and that later in 1986 Leonardo Paulino and Carlos Paulino were involved in a shootout over a cocaine transaction and moved to Kentucky to escape retribution. Those who moved with Leonardo Paulino to Kentucky included members of the conspiracy charged in the indictment--Chazulle and Carlos Paulino; as well as persons whose names appeared as recipients of wire transfers of drug proceeds over the course of the conspiracy--Corpa Perdoma and Mairena Suarez. We find that the district court did not abuse its discretion in admitting this evidence since it was clearly admissible for the "legitimate purpose of showing the background and development of a conspiracy." United States v. Hitow, 889 F.2d 1573, 1578-79 (6th Cir.1989) (quoting United States v. Passarella, 788 F.2d 377, 383 (6th Cir.1986)).
C.
67
Chazulle contends that his previous arrest and conviction in Georgia was wrongfully introduced in the course of the trial over objection of defendant's counsel. We are unable to find such an objection; in any event, we find that this allegation of error is without merit. Nowhere in the testimony of either Ernest Quinoneos, the Deputy Sheriff of Houston County, Georgia, or Charles Holt, the investigator sergeant with the Houston County Sheriff's Office, is there any reference at all to Chazulle's conviction. Rather, they described the seizure of cocaine from a car driven by Chazulle who was then bearing a driver's license with an address known to be used by the co-defendant Leonardo and Chazulle's driving a car registered to Leonardo. This evidence was introduced to demonstrate the nature and length of Chazulle's participation in the conspiracy. We find no abuse of discretion in the allowance of such testimony.
VIII.
68
Defendants Leonardo Paulino, Carlos Paulino and Vieyra each contend for a different reason that the trial court erred in its determination concerning the amount of cocaine involved. Leonardo Paulino claims that the trial court erred when it failed to make a specific finding as to the amount of cocaine involved in the conspiracy. Vieyra argues that the court failed to make a specific finding as to the amount of cocaine involved in his individual case. Carlos Paulino asserts that the court should have considered only the amount of cocaine involved in the conspiracy beginning August 1988, since he was incarcerated prior to that time.
A.
69
Contrary to Leonardo Paulino's assertions, the record reflects that the trial court did in fact make a specific finding that at least 5.25 kilograms and less than 15 kilograms of cocaine were involved in the conspiracy. Each defendant had sought such a finding below. During the sentencing of Fernandez, the court stated:
70
The testimony of Samuel Torres establishes that at least 5.25 kilograms were distributed. Additionally, Edward Chazulle was arrested in Georgia with approximately two kilograms of cocaine which would--are attributable to the Juan Leonardo Paulino group. There was undoubtedly additional cocaine distributed in this conspiracy. However, in order to establish the presentence report's 18 kilogram amount, it is necessary to rely heavily on the testimony of Harry Hughes.
71
The court then found the testimony of Hughes to be not credible. It held that without Hughes' testimony, the government could not establish by a preponderance of the evidence the 18 kilogram amount. It therefore sustained the defendants' objections, and held according to the drug quantity table in the guidelines8 that the proper offense level was 32 rather than 34. The court incorporated these findings in the sentences of the remaining defendants, thereby sustaining the objection of each defendant to his or her presentence report.
72
A district court's finding as to the amount of drugs a defendant is to be held accountable for is a factual finding which must be accepted by this court unless clearly erroneous. United States v. Walton, 908 F.2d 1289, 1300-01 (6th Cir.), cert. denied, --- U.S. ----, 111 S. Ct. 273, 112 L. Ed. 2d 229 (1990). In this case, there was ample evidence that the amount of cocaine exceeded five kilograms. The United States conservatively estimated that Torres' testimony alone established that he transported 3 3/4 kilograms and that Carlos transported 1 1/2 kilograms. At least 1/4 kilogram was qualified as attributable to Vieyra. Chazulle was caught with 1 1/2 kilograms. These quantities alone add up to more than five kilograms. Moreover, this figure does not include the cocaine muled by Hughes or Helton, or reflect trips taken by Vieyra, Carlos Paulino, and others for which no specific figure was given.
73
Leonardo Paulino also argues that if the appeals of his co-defendants Chazulle and Carlos Paulino were favorable, it would be necessary to remand this case for resentencing since the two kilos which were the subject of the March 9, 1989, arrest of Torres and Carlos Paulino and the two kilos that Chazulle was arrested with in Georgia are included in this figure. Because we have found those contentions to be without merit, this claim must also fail.
B.
74
Defendant Vieyra contends that the district court erred in failing to make a determination as to the amount of cocaine involved in the conspiracy as it related to him. The relevant guideline section to the offense of conspiracy is U.S.S.G. Sec. 2D1.4. Application Note 1 to that section cross-references Application Note 1 to Sec. 1B1.3 (Relevant Conduct), which provides in pertinent part:
75
In the case of criminal activity undertaken in concert with others, whether or not charged as a conspiracy, the conduct for which the defendant "would be otherwise accountable" also includes conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant.... Where it is established that the conduct was neither within the scope of the defendant's agreement, nor was reasonably foreseeable in connection with the criminal activity the defendant agreed to jointly undertake, such conduct is not included in establishing the defendant's offense level under this guideline.
76
Former Application Note 1 to U.S.S.G. Sec. 1B1.3, reprinted in United States Sentencing Commission Guidelines Manual (November 1, 1989) (Application Note in effect at time of sentencing).
77
The evidence adduced at trial indicated that Vieyra was involved in the conspiracy from its inception. Testimony at trial, substantiated by a Greyhound bus ticket admitted as evidence, confirmed that Vieyra transported nine ounces of cocaine on February 8, 1989; and a surveillance photo taken on February 16, 1989, verifies that Vieyra was at an apartment rented by the Paulino group located in the Brittany Square complex in Lexington. Evidence at trial further demonstrated that Vieyra sent sums of money totalling approximately $22,599 to Fernandez and Leonardo Paulino, monies which the government proved were proceeds of cocaine transactions. There was also testimony that Vieyra distributed cocaine in Lexington and transported cocaine from Miami to Lexington. Vieyra played a significant and extended role in the Paulino conspiracy. We therefore find that district court was not clearly erroneous in concluding that Vieyra either knew or could have reasonably foreseen that the conspiracy would involve at least five kilograms of cocaine.
C.
78
Carlos Paulino's contention is on a different footing. Relying on the commentary to U.S.S.G. Sec. 1B1.3 cited above, Carlos claims that because he was incarcerated until September 6, 1988, he should not be held responsible for any conduct which occurred before he joined the conspiracy. Carlos Paulino therefore contends that the amount of cocaine attributed to him must be determined beginning in August 1988. Under this formula, that amount would be from 3 to 4.5 kilograms, with an appropriate base level of 28 or 30.
79
We reject defendant's position as totally inconsistent with the posture he took at sentencing in claiming that his arrest in Georgia was "all part of the same behavior pattern" and that he was "engaging in the same conduct that was described in this case." This argument was an attempt to convince the court that the Georgia conviction should be considered as a part of the conspiracy rather than a prior act, the latter of which would lead to further enhancement of his guidelines. Given defense counsel's position at sentencing, and the statements in his brief to the effect that the evidence revealed that defendant Carlos Paulino did not enter the conspiracy until after he was released from prison, defendant has waived any right to challenge the trial court's finding as to the amount of cocaine involved in this case.
IX.
80
The district court adjusted defendant Carlos Paulino's offense level upward by two points for his role as a manager or supervisor in the conspiracy under U.S.S.G. Sec. 3B1.1(b). At sentencing, however, the court found that his role was a minor supervisory one, and reduced Carlos' role in the offense from 3 points to 2 points. Carlos Paulino now contests the two-level increase on the grounds that the court failed to name any person he allegedly organized.
81
All that is required for enhancement under section 3B1.1 is the participation of at least two culpable individuals so that leadership of some criminal enterprise or organization, however minimal, can be claimed. United States v. Carroll, 893 F.2d 1502, 1505 (6th Cir.1990). In determining whether a defendant qualifies for enhancement under section 3B1.1(c), facts that the court should consider include:
82
the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others....
83
Commentary, Application Note Three, Sec. 3B1.1. Here the trial court, focusing on the "defendant's role in the offense," see United States v. Tetzlaff, 896 F.2d 1071 (9th Cir.1990), relied on testimony indicating that Carlos assumed the role of manager in his brother's absence. "A finding that a defendant is functioning as an organizer or leader, however, does not necessarily mean that he is directly controlling other individuals." United States v. Johnson, 906 F.2d 1285, 1291-92 (8th Cir.1990) (upholding district court's four-level upward adjustment to his base offense level for acting as an organizer).
84
There was evidence that Carlos Paulino directed the distribution of cocaine in Lexington during his brother's absence. It was also testified that he wired proceeds, rented an apartment, automobiles, and a mobile telephone in the names of other individuals on behalf of the conspiracy. While his status was not as elevated as that of his brother Leonardo, we nonetheless conclude that there was sufficient evidence from which the court could conclude that Carlos Paulino merited a two-point upward adjustment in his guidelines for his role in the offense. Thus, the district court's conclusion was not clearly erroneous. United States v. Medved, 905 F.2d 935, 943 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S. Ct. 997, 112 L. Ed. 2d 1080 (1991).
X.
85
Finally, Carlos Paulino argues that his prior conviction was improperly considered in calculating his guidelines. As previously discussed in IX. (c), supra, his position at sentencing was inconsistent was the position assumed at trial. Carlos Paulino was arrested for that offense on September 6, 1986. Thus, the conviction predated the time frame alleged in the conspiracy. No proof was introduced tending to show that the prior conviction was in the course of and in furtherance of the present conspiracy. We therefore find that the district court's ruling in this regard was not clearly erroneous. U.S.S.G. 4A1.1.
86
Accordingly, for all the foregoing reasons, we AFFIRM with the exception of Leonardo Paulino's conspiracy conviction which we REMAND to the district court with instructions to VACATE.
1
In addition, Vieyra was not in possession of the cooler or the cocaine at the time it was seized, nor did he assert any ownership interest in the cooler or the automobile. Thus, Vieyra had no expectation of privacy sufficient to confer standing upon him to challenge the search in question. Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980)
2
To obtain a CCE conviction under 21 U.S.C. Sec. 848, the government must prove: (1) a felony violation of the federal narcotics laws; (2) as part of a continuing series of violations; (3) in concert with five or more persons; (4) for whom the defendant is an organizer or supervisor; and (5) from which he derives substantial income. 21 U.S.C. Sec. 848; United States v. English, 925 F.2d 154, 156 (6th Cir.1991); United States v. Davis, 809 F.2d 1194, 1203 (6th Cir.), cert. denied, 483 U.S. 1007, 107 S. Ct. 3234, 97 L. Ed. 2d 740 (1987). In construing the "continuing series of violations" element, the only one at issue here, we have held that proof of three or more drug violations is required. United States v. Sinito, 723 F.2d 1250, 1261 (6th Cir.1983), cert. denied, 469 U.S. 817, 105 S. Ct. 86, 83 L. Ed. 2d 33 (1984)
3
Defendant's reliance on United States v. Rivera, 837 F.2d 906 (10th Cir.1988) (Rivera I ); reh'g granted 847 F.2d 660 (10th Cir.1988) (Rivera II ); aff'd by an equally divided court, 874 F.2d 754 (10th Cir.1989) (en banc) (Rivera III ), is misplaced. In that case, an equally divided court affirmed the defendant's conviction, which rested upon the use of uncharged offenses as substantive evidence of the continuing series element of the CCE charge. Thus the original panel holding in Rivera I, that in the case of uncharged offenses, the words of the CCE statute alone are not sufficient to meet a defendant's fifth and sixth amendment concerns, is without precedent and is not binding on the trial court in that case. Rivera III, 874 F.2d at 755
4
Defendant's reliance on Russell v. United States, 369 U.S. 749, 82 S. Ct. 1038, 8 L. Ed. 2d 240 (1962), for the proposition that the failure to allege predicate offenses in the indictment was a violation of his fifth amendment right is inapposite. In that case the Supreme Court held that a prosecution involving 2 U.S.C. Sec. 192, which prohibits the refusal to answer questions pertinent to a subject under inquiry by a congressional committee, pertinency to the subject under inquiry is "the very core of criminality." Russell, 369 U.S. at 764, 82 S.Ct. at 1047. Thus, in that case the allegation of the subject was necessary to the sufficiency of the indictment in order to define the chief issue. Id. at 766, 82 S.Ct. at 1048. Courts have distinguished Russell on this basis. See United States v. Staggs, 881 F.2d 1527, 1533 n. 8 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S. Ct. 719, 107 L. Ed. 2d 739 (1990); See United States v. Mobile Materials Inc., 871 F.2d 902, 910 (10th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 837, 107 L. Ed. 2d 833 (1989); United States v. Perkins, 748 F.2d 1519, 1526 n. 11 (11th Cir.1984); United States v. McClean, 528 F.2d 1250, 1257 (2d Cir.1976)
5
Although not expressly raised by defendant Leonardo Paulino on appeal, the government conceded the issue at oral argument
6
Fed.R.Evid. 1006 provides in pertinent part:
[C]ontents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.
7
Fed.R.Evid. 611(a) provides:
(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
8
The Drug Quantity Table provides that the base offense level for 15-49.9 kilograms of cocaine or equivalent schedule I or II stimulants, is 34. If the quantity involved is 5-14.9 kilograms of cocaine, the Base Offense Level is 32. United States Sentencing Guidelines, page 2.38 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/710879/ | 73 F.3d 519
Anthony Leon VANN, Petitioner-Appellant,v.Ronald ANGELONE, Director, Virginia Department ofCorrections, Respondent-Appellee.
No. 95-6471.
United States Court of Appeals,Fourth Circuit.
Argued Nov. 1, 1995.Decided Jan. 9, 1996.
ARGUED: Gerald Thomas Zerkin, Gerald T. Zerkin & Associates, Richmond, Virginia, for Appellant. Mary Elizabeth Shea, Assistant Attorney General, Office of the Attorney General, Criminal Law Division, Richmond, Virginia, for Appellee. ON BRIEF: Melanie A. Hopper, Gerald T. Zerkin & Associates, Richmond, Virginia, for Appellant. James S. Gilmore, III, Attorney General of Virginia, Office of the Attorney General, Criminal Law Division, Richmond, Virginia, for Appellee.
Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge LUTTIG and Judge WILLIAMS joined.
OPINION
WILKINSON, Circuit Judge:
1
Anthony Leon Vann petitions for habeas corpus relief on the ground that the Virginia Department of Corrections ("DOC") denied him due process by arbitrarily finding him ineligible for parole under Virginia Code, Sec. 53.1-151(B1). This section of the Virginia Code prohibits parole eligibility for individuals convicted of three separate offenses of murder, rape, or armed robbery, when such offenses are not "part of a common act, transaction or scheme." While Vann contends that two of his robberies were "part of a common act, transaction or scheme," the DOC found otherwise. We hold that the DOC decision fully satisfied the requirements of the due process clause. In so holding, we affirm the judgment of the district court.
I.
2
On February 28, 1974, Anthony Leon Vann and an accomplice robbed Victor Vogel at gunpoint of $100, two holsters, and clothing while Vogel was at work in his Portsmouth, Virginia store. Approximately thirty minutes later, Vann and two companions entered a railyard, where they robbed railroad detective Horace Wishart of his revolver at gunpoint. In July of 1974, Vann pled guilty to two counts of robbery and was sentenced to ten years on the first count and five years on the second.
3
Vann was paroled on October 28, 1977, only to be reincarcerated for a parole violation on September 14, 1979. He was again paroled on November 9, 1981. In 1983, he was charged with robbery, abduction, and the use of a firearm in the commission of a felony. On July 1, 1983, Vann pled guilty to these charges. He received consecutive sentences of fifty years for the robbery, ten years for the abduction, and two years for the weapons charge.
4
Less than ten years into his sixty-two-year sentence, on February 22, 1993, Vann was tentatively approved for parole, provided that he was legally eligible. Pursuant to a sentence audit performed on all DOC prisoners before their release, it was discovered that Vann was ineligible for parole because he had committed three armed robberies--the two in 1974 and the one in 1983. The Virginia Code prohibits inmates from receiving parole if they have committed three such offenses, provided that the offenses are not "part of a common act, transaction or scheme." Va.Code Sec. 53.1-151(B1).
5
The DOC found that the two robberies Vann committed on the same evening in 1974 were not part of "a common act, transaction or scheme." The Virginia Parole Board then informed Vann of his ineligibility for parole by letter of August 25, 1993, citing Vann's "additional sentence(s)" as the reason for his ineligibility. Vann objected to the DOC's finding under Sec. 53.1-151(B1), contending that the DOC's decision was "standardless, arbitrary and contrary to law." Accordingly, Vann advanced habeas corpus claims, first to the Portsmouth Circuit Court, which found his claims to be meritless, then to the Virginia Supreme Court, which denied his appeal, and finally to the federal district court, which also denied relief. Vann now appeals the decision of the district court.
II.
6
Vann appears before us with a heavy burden. It is difficult to imagine a context more deserving of federal deference than state parole decisions. "There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S. Ct. 2100, 2104, 60 L. Ed. 2d 668 (1979). This is because "given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty." Id. at 7, 99 S.Ct. at 2104, quoting Meachum v. Fano, 427 U.S. 215, 224, 96 S. Ct. 2532, 2538, 49 L. Ed. 2d 451 (1976). The absence of a constitutional right to parole means that a state has no duty to establish a system of parole, id., and if it chooses to do so, federal courts should allow a state's parole authorities "a wide range for experimentation and the exercise of discretion." Franklin v. Shields, 569 F.2d 784, 800 (4th Cir.1977) (en banc), cert. denied, 435 U.S. 1003, 98 S. Ct. 1659, 56 L. Ed. 2d 92 (1978). "Moreover, to insure that the state-created parole system serves the public-interest purposes of rehabilitation and deterrence, the state may be specific or general in defining the conditions for release and the factors that should be considered by the parole authority." Greenholtz, 442 U.S. at 7-8, 99 S.Ct. at 2104.
7
Most parole decisions involve a considerable degree of discretion. Hence, parole authorities must investigate and weigh "numerous factors including [the inmate's] history, mental and physical condition, attitude, and compatibility with the 'interests of society.' " Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir.1991) (en banc). The cumulative impact of this experience endows state authorities with the expertise to predict whether a given inmate will continue to prey on society if released. Parole decisions involve more than the exercise of state expertise, however. They are an integral part of the larger interest of states in administering their own system of corrections. Given such compelling reasons, it is no surprise that federal courts have generally refrained from meddling in state parole proceedings.
8
The above principles apply both to state decisions with respect to the actual release of an inmate on parole and to state decisions with respect to an inmate's initial eligibility for parole consideration. With no constitutional right to parole per se, federal courts recognize due process rights in an inmate only where the state has created "a legitimate claim of entitlement" to some aspect of parole. Id. at 344, quoting Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 1908, 104 L. Ed. 2d 506 (1989). Such a liberty interest, however, is not created through the unilateral need, desire, hope, or expectation of a petitioner that the state will confer the benefit sought. Id. Because parole consideration and parole itself typically hinge on the discretionary decisions of parole authorities, inmates generally possess no entitlement, but only a desire, that a parole board will decide in their favor.
9
Even where this court has found that a parole statute establishes a liberty interest, we have held that inmates are entitled to no more than minimal procedure. At most, we have held that parole authorities must "furnish to the prisoner a statement of its reasons for denial of parole." Franklin, 569 F.2d at 784; see also Bloodgood v. Garraghty, 783 F.2d 470, 473 (4th Cir.1986). In sum, whether or not a liberty interest exists, federal courts must defer to state agencies applying state laws and thus their oversight of state parole proceedings has been extremely limited.
III.
10
At issue here is the judgment of the Virginia DOC that, by virtue of his three armed robberies, Vann was ineligible for parole under Sec. 53.1-151(B1) of the Virginia Code:
11
Any person convicted of three separate felony offenses of (i) murder, (ii) rape or (iii) robbery by the presenting of firearms or other deadly weapon, or any combination of [these] offenses ... when such offenses were not part of a common act, transaction or scheme shall not be eligible for parole.
12
Va.Code Sec. 53.1-151(B1). Appellant Vann objects to this decision on several grounds. He claims that he possesses a liberty interest in parole eligibility and that his due process rights were violated because: (1) parole eligibility determinations are arbitrary absent further constraint on the DOC's discretion to determine what is a "common act, transaction or scheme"; and (2) his two February 28, 1974 robberies were part of a "common act, transaction or scheme." In short, appellant invites us to construe the meaning of Sec. 53.1-151(B1) of the Virginia Code as well as to judge the adequacy of the DOC's decision.
13
We reject petitioner's attempt to draw this court into the merits of either the state's parole statute or its individual parole decisions. To accept the invitation to review Vann's parole eligibility determination would require us to second guess both the Virginia DOC and the Virginia General Assembly. We would, for example, have to assess the facts and circumstances surrounding Vann's robberies, evaluate the DOC's reasons for denying Vann parole, compare the decision in Vann's case with others under Sec. 53.1-151(B1), and develop federal decisional law on the definition of "common act, transaction or scheme," a provision in a Virginia statute. Such an exercise in state statutory refinement would compromise important principles of federalism, undermine state parole authorities, and install the federal judiciary as the final arbiter in yet one more area of state law. Whether to leave the decision of what constitutes a "common act, transaction or scheme" to the DOC's discretion, or to further refine Sec. 53.1-151(B1) in a manner akin to what the federal government has done in its Sentencing Guidelines, see, e.g. United States Sentencing Commission, Guidelines Manual, Sec. 4A1.2, comment. (n. 3), is entirely Virginia's prerogative. The Constitution simply does not speak to the generality or specificity of the standards for parole eligibility adopted by a state. See Greenholtz, 442 U.S. at 7-8, 99 S.Ct. at 2103-04.
14
The DOC is therefore not obliged to articulate detailed standards for parole eligibility under the statute, a process the DOC contends would deprive the statutory scheme of its essential flexibility. The application of this statute inescapably involves the exercise of official discretion. In fact, the statute itself permits the Parole Board "in its discretion" to review a "determination" by the DOC of parole ineligibility. Va.Code Sec. 53.1-151(B1). These discretionary features make it doubtful that the statute confers upon petitioner any Fourteenth Amendment liberty interest. See Gaston, 946 F.2d at 344 ("a fear or hope about a future discretionary decision is too speculative to give him a liberty interest"). Assuming, arguendo, that a liberty interest does exist, the procedures mandated by the due process clause were satisfied. Here, Vann received the following letter from the Virginia Parole Board on August 25, 1993: "As a result of an additional sentence(s) and recomputation of your total sentence, however, you are not eligible for parole consideration at this time...." This statement sufficed to communicate to Vann that it was his prior criminal activity that precluded his present eligibility for parole. See Bloodgood, 783 F.2d at 473; Franklin, 569 F.2d at 801.
15
The reasons for the parole determination in Vann's case are, of course, self-evident. Virginia denies parole eligibility to someone who has committed three or more armed robberies, rapes, and/or murders. The DOC concluded that Vann's two armed robberies on February 28, 1974--which victimized both a store owner and a railroad detective, were separated in time by approximately thirty minutes, occurred at a store and a railyard, and were perpetrated for distinct motives--constituted separate felony offenses for the purposes of Sec. 53.1-151(B1). Whether a federal court would have reached the same conclusion in the first instance is beside the point. The point is that Virginia reached that conclusion, and its decision must be sustained.
IV.
16
The judgment of the district court is affirmed.
17
AFFIRMED. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1562307/ | 4 F.2d 670 (1925)
TATSUUMA KISEN KABUSHIKI KAISHA
v.
PRESCOTT.
No. 4385.
Circuit Court of Appeals, Ninth Circuit.
March 16, 1925.
Cosgrove & Terhune, of Seattle, Wash., for appellant.
Bausman, Oldham & Eggerman, Frederick Bausman, and Arthur E. Simon, all of Seattle, Wash., for appellee.
Before ROSS, HUNT, and RUDKIN, Circuit Judges.
RUDKIN, Circuit Judge.
This was a libel in personam to recover damages for breach of a charter party. The court below sustained exceptions and dismissed the libel, because it failed to show a compliance with the arbitration provision of the charter party. The stipulation for arbitration reads as follows:
"Any dispute of law or fact arising under this Charter Party shall be referred to arbitration in Seattle of three (3) persons, one appointed by the National Commercial Corporation on behalf of the owners, one by the charterer, and the third by the two chosen. They shall meet in the city of Seattle, and shall proceed in a manner determined by themselves, and their decision or that of any two of them shall be final, and for the purpose of enforcing any award hereunder the agreement may be made a rule of the court. Such arbitration shall be made a condition precedent to any action. Arbitrators shall be commercial men."
It is conceded by the appellee that this stipulation for arbitration is all comprehensive; that it embraces both questions of law and questions of fact questions of liability and questions of damage. The validity of such stipulations has been the subject of much controversy in the courts. The rule is thus stated in 9 Cyc. 511:
"Agreements to refer disputes to arbitration present an example of what the common law regarded as attempts to oust the jurisdiction of the courts, and as against public policy. The reason of the rule adopted by the courts is by some traced to the jealousy of the courts and a desire to repress all attempts to encroach on the exclusiveness *671 of their jurisdiction, and by others to an aversion of the courts, from reasons of public policy, to sanction contracts by which the protection which the law affords the individual citizens is renounced. But, whatever may be the reason, it is a well-settled rule of the common law that a clause in an agreement, or a separate agreement, that any or all disputes which may arise thereunder shall be referred to an arbitrator or arbitrators, is unenforceable as an attempt to oust the courts of jurisdiction, and either party may have recourse to them without carrying out his agreement to refer."
That this is the rule in the federal courts does not seem to admit of question. Thus in Mitchell v. Dougherty, 90 F. 639, 645, 33 C. C. A. 205, 211, the court said:
"We have not felt called upon to discuss in detail the several Pennsylvania cases which have been urged upon our attention by the learned counsel for the defendant in error. The question before us is not as to the enforcement of the contract in accordance with the law of the place where it was made, but is as to whether a court of the United States should, because of the parties' agreement in advance to abstain from invoking its jurisdiction, refuse to enforce the contract at all. Upon this question the decisions of the supreme court of the United States are controlling, and they admit of but one conclusion."
In United States Asphalt R. Co. v. Trinidad Lake P. Co. (D. C.) 222 F. 1006, a motion to stay prosecution was interposed because of a similar stipulation in a charter party. In considering the motion Judge Hough traced the history of the rule refusing to give effect to such stipulations down through the English and American cases, and while the rule itself was unsparingly criticized, the learned judge was forced to this conclusion:
"I think the decisions cited show beyond question that the Supreme Court has laid down the rule that such a complete ouster of jurisdiction as is shown by the clause quoted from the charter parties is void in a federal forum. It was within the power of that tribunal to make this rule. Inferior courts may fail to find convincing reasons for it; but the rule must be obeyed, and these motions be severally denied."
The conclusion announced in these cases was fully justified by the authorities. Thus in Insurance Co. v. Morse, 20 Wall. 445, 22 L. Ed. 365, the court had under consideration an agreement on the part of an insurance company not to remove suits against it into the federal courts, and in discussing the validity of that agreement the court said:
"That the agreement of the insurance company is invalid, upon the principles mentioned, numerous cases may be cited to prove. They show that agreements in advance to oust the courts of the jurisdiction conferred by law are illegal and void. In Scott v. Avery (one of the cases) the Lord Chancellor says: `There is no doubt of the general principle that parties cannot by contract oust the ordinary courts of their jurisdiction. That has been decided in many cases. Perhaps the first case I need refer to was a case decided about a century ago. That case was an action on a policy of insurance in which there was a clause that in case of any loss or dispute it should be referred to arbitration. It was decided there that an action would lie, although there had been no reference to arbitration. Then, after the lapse of half a century, occurred a case before Lord Kenyon, and from the language that fell from that learned judge, many other cases had probably been decided which are not reported. But in the time of Lord Kenyon occurred the case which is considered the leading case on the subject, of Thompson v. Charnock. That was an action upon a charter party, in which it was stipulated that if any difference should arise it should be referred to arbitration. That clause was pleaded in bar to the action brought upon breach of the contract, with an averment that the defendant was, and always had been, ready to refer the same to arbitration. This was held to be a bad plea, upon the ground that a right of action had accrued, and that the fact that the parties had agreed that the matter should be settled by arbitration did not oust the jurisdiction of the courts.' Upon this doctrine all the judges who delivered opinions in the House of Lords were agreed.
"And the principle, Mr. Justice Story, in his Commentaries on Equity Jurisprudence, says is applicable in courts of equity as well as in courts of law. `And where the stipulation, though not against the policy of the law, yet is an effort to divest the ordinary jurisdiction of the common tribunals of justice, such as an agreement in case of dispute to refer the same to arbitration, a court of equity will not any more than a court of law interfere to enforce the agreement, but it will leave the parties to their own good pleasure in regard to such agreements. The regular administration of justice might be greatly impeded or interfered with by *672 such stipulations if they were specifically enforced.' In Stephenson v. P. F. & M. C. Ins. Co., the court say: `While parties may impose as condition precedent to applications to the courts that they shall first have settled the amount to be recovered by an agreed mode, they cannot entirely close the access to the courts of law. The law and not the contract prescribes the remedy, and parties have no more right to enter into stipulations against a resort to the courts for their remedy in a given case, than they have to provide a remedy prohibited by law; such stipulations are repugnant to the rest of the contract, and assume to divest courts of their established jurisdictions; as conditions precedent to an appeal to the courts, they are void.' Many cases are cited in support of the rule thus laid down. Upon its own merits, this agreement cannot be sustained."
In Hamilton v. Liverpool, etc., Ins. Co., 136 U. S. 242, 10 S. Ct. 945, 34 L. Ed. 419, a condition in a policy of fire insurance that any difference arising between the parties as to the amount of loss or damage of the property insured should be submitted, at the written request of either party, to the appraisal of competent and impartial persons, whose award should be conclusive as to the amount of loss or damage only, and should not determine the question of the liability of the insurance company, was upheld; the court saying:
"Such a stipulation, not ousting the jurisdiction of the courts, but leaving the general question of liability to be judicially determined, and simply providing a reasonable method of estimating and ascertaining the amount of the loss, is unquestionably valid, according to the uniform current of authority in England and in this country."
In Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 44 S. Ct. 274, 68 L. Ed. 582, the court again said:
"The federal courts like those of the states and of England have, both in equity and at law, denied, in large measure, the aid of their processes to those seeking to enforce executory agreements to arbitrate disputes. They have declined to compel specific performance * * * or to stay proceedings on the original cause of action. * * * They have not given effect to the executory agreement as a plea in bar, except in those cases where the agreement, leaving the general question of liability to judicial decisions, confines the arbitration to determining the amount payable or to furnishing essential evidence of specific facts, and makes it a condition precedent to the cause of action."
So far as we are advised, there has been no further modification of the general rule by the Supreme Court. In Aktieselskabet Korn-og Foderstof Kompagniet v. Roderiaktiebolaget Atlanten, 250 F. 935, 163 C. C. A. 185, Ann. Cas. 1918E, 491, clause 21 of the charter party was similar to clause 5 here involved. Clause 21 was there interposed as a defense, and in disposing of that defense, the court said:
"Under the law of the state of New York, clause 21 is clearly unenforceable because under the decisions of the Court of Appeals it would be held to affect the remedy only and to be contrary to public policy as ousting the courts of their jurisdiction. Meachem v. Railroad Co., 211 N. Y. 346, 105 N. E. 653, Ann. Cas. 1915C, 851; U. S. Refining Co. v. Trinidad Lake Co. (D. C.) 222 F. 1006. The question being one of general law, the decisions of the Court of Appeals of the state of New York are not binding upon the federal courts. It is, however, fair to assume from Hamilton v. Home Insurance Co., 137 U. S. 370, 11 S. Ct. 133, 34 L. Ed. 708, that an agreement like this, which leaves the disposition of the whole matter to arbitration is not a bar to an action in court, even if it may support an action for breach of the agreement."
And in a concurring opinion Judge Hough added:
"As to clause 21, it is undeniable that American authority is at present as stated in the court's opinion; whether the rule as given can long survive historical and logical criticism, I venture to doubt."
In The Atlanten, 252 U. S. 313, 40 S. Ct. 332, 64 L. Ed. 586, the court said:
"With regard to the arbitration clause we shall not consider the general question whether a greater effect should not be given to such clauses than formerly was done, since it is not necessary to do so in order to decide the case before us."
Again, in Red Cross Line v. Atlantic Fruit Co., supra, the court said:
"As the constitutionality of the remedy provided by New York for use in its own courts is not dependent upon the practice or procedure which may prevail in admiralty, we have no occasion to consider whether the unwillingness of the federal courts to give full effect to executory agreements for arbitration can be justified."
It will thus be seen that, while the rule under consideration has been criticised and *673 its wisdom questioned, it is nevertheless the established law in the courts of the United States, from which the inferior federal courts are not at liberty to depart. Having reached this conclusion, it becomes unnecessary for us to consider whether the provision for arbitration has any application where a charter party has been repudiated by one of the parties after part performance, or whether the appellant has complied with the agreement for arbitration on its part.
The decree of the court below is reversed, with instructions to overrule the exceptions to the libel, and for further proceedings in accordance with the views here expressed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562315/ | 16 So.3d 137 (2009)
HEYM
v.
STATE.
No. 2D08-3739.
District Court of Appeal of Florida, Second District.
March 27, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562316/ | 4 F.2d 915 (1924)
LAMBERT
v.
YELLOWLEY et al.
No. 7.
Circuit Court of Appeals, Second Circuit.
December 19, 1924.
*916 William Hayward, U. S. Atty., of New York City (John Holley Clark, Jr., of New York City, of counsel), for appellants.
Davies, Auerbach & Cornell, of New York City (Joseph S. Auerbach, Martin A. Schenck, and Emily C. Holt, all of New York City, of counsel), for appellee.
Before ROGERS and HOUGH, Circuit Judges, and LEARNED HAND, District Judge.
ROGERS, Circuit Judge.
The complainant is a physician engaged in the practice of medicine in the city of New York. It is conceded that he is a man of great distinction in his profession and of wide and unusual experience in the practice of medicine. He filed a bill of complaint in the court below, in which he asked that provisions in the National Prohibition Act, commonly known as the Volstead Act, being the Act of October 28, 1919 (41 Stat. 305, c. 85 [Comp. St. Ann. Supp. 1923, § 10138¼ et seq.]), as well as of the act supplemental to the National Prohibition Act, being the Act of November 23, 1921, c. 134 (42 Stat. 222), also known as the Willis-Campbell Act, should be declared unconstitutional, and that an injunction be issued restraining the defendants from interfering with the complainant in his acts as a physician in prescribing vinous or spirituous liquors to his patients for medicinal purposes, upon the ground that the quantities prescribed for the use of any one person in any period of ten days exceeded the limits fixed by the said acts, or either of them. The bill contained the following allegations:
"Sixth It is an essential part of complainant's right as a physician and of his duty toward his patients to treat their diseases and promote their physical well-being according to the untrammeled exercise of his best skill and scientifically trained judgment, and, to that end, to advise the use of such medicines and medical treatment as in his opinion are best calculated to effect their cure and establish their health. By practicing medicine, the complainant is authorized to and does hold himself out to the world as willing to place at the service of patients such skill and judgment as are above described, to the full extent of his ability.
"Seventh According to the usage and practice of the medical profession, long established and generally accepted, physicians, in advising the use of drugs and medicines, do so by written statements containing explicit directions as to the time and manner of administration and as to the quantities to be used. Such written statements and directions are called prescriptions. In issuing a prescription the physician assumes no responsibility and exercises no control in respect to procuring the drugs or medicines prescribed, but merely expresses his judgment as to what the needs of the patient require for the restoration of health.
"Eighth It is the belief and judgment of the complainant based upon his experience and observation and the study of medical science, that the use as medicine of spirituous liquors to be taken internally is, in certain cases, necessary for the proper treatment of patients in order to afford relief from known ailments. By spirituous liquors, complainant means liquors containing more than one-half of 1 per cent. of alcohol by volume, including brandy, whisky, and wine.
"Ninth In prescribing drugs and medicine, the determination of the quantity to be used involves a consideration of the physical condition of the patient, and of the probable effect thereon of such drugs and medicines in each specific case. It is the belief of complainant, based upon his experience and observation and the study of medical science, that in the use of spirituous liquors as medicine it is in certain cases, including cases now under complainant's observation and subject to his professional advice, necessary, in order to afford relief from some known ailment, that the patient should use internally more than one pint of such liquor in ten days and that it is in certain cases necessary for the proper medical treatment that the patient should use internally some spirituous liquor without delay, notwithstanding that within a preceding period of less than ten days the patient may have received and used more than one pint of such liquor. Complainant conceives it to be his duty and intends, unless restrained by lawful authority, to issue prescriptions in such cases according to his best skill and judgment.
"Tenth Complainant has never prescribed and does not intend to prescribe the use of liquor for beverage purposes. Complainant does not intend to advise or prescribe the use of liquor as medicine unless, after careful physical examination of the patient, he in good faith believes that the use of such liquor as medicine by the patient is necessary *917 and will afford relief to him from some known ailment.
* * * * *
"Thirteenth Complainant is advised and respectfully represents to the court as matter of law, that so much of the National Prohibition Act as purports to prohibit physicians from advising or prescribing the use, internally, for medicinal purposes by any person of more than one pint of spirituous liquor within any period of ten days, and so much of the said act entitled `An act supplemental to the National Prohibition Act' as purports to limit the quantity of vinous or spirituous liquor that may be advised or prescribed by a physician for use, internally, for medicinal purposes by any person within the same period, are and each of them is beyond the authority conferred upon Congress by the Eighteenth Amendment to the Constitution of the United States, or otherwise, and are void and of no effect."
The court below refused to dismiss the bill and granted an injunction, the material portion of which can be found in the margin.[1] That portion of the National Prohibition Act complained of is found in title 2, section 7 (Comp. St. Ann. Supp. 1923, § 10138½cc). It reads as follows:
"No one but a physician holding a permit to prescribe liquor shall issue any prescription for liquor. And no physician shall prescribe liquor unless after careful physical examination of the person for whose use such prescription is sought, or if such examination is found impracticable, then upon the best information obtainable, he in good faith believes that the use of such liquor as a medicine by such person is necessary and will afford relief to him from some known ailment. Not more than a pint of spirituous liquor to be taken internally shall be prescribed for use by the same person within any period of ten days and no prescription shall be filled more than once. Any pharmacist filling a prescription shall at the time indorse upon it over his own signature the word `Canceled,' together with the date when the liquor was delivered, and then make the same a part of the record that he is required to keep as herein provided.
"Every physician who issues a prescription for liquor shall keep a record, alphabetically arranged in a book prescribed by the commissioner, which shall show the date of issue, amount prescribed, to whom issued, the purpose or ailment for which it is to be used and directions for use, stating the amount and frequency of the dose."
And that portion of the act supplemental to the National Prohibition Act, which is complained of, is found in section 2 (Comp. St. Ann. Supp. 1923, § 10138½cc), the material portion of which reads as follows:
"That only spirituous and vinous liquor may be prescribed for medicinal purposes, and all permits to prescribe and prescriptions for any other liquor shall be void. No physician shall prescribe, nor shall any person sell or furnish on any prescription, any vinous liquor that contains more than 24 per centum of alcohol by volume, nor shall any one prescribe or sell or furnish on any prescription more than one-fourth of one gallon of vinous liquor, or any such vinous or spirituous liquor that contains separately or in the aggregate more than one-half pint of alcohol, for use by any person within any period of ten days. No physician shall be furnished with more than one hundred prescription blanks for use in any period of ninety days, nor shall any physician issue more than that number of prescriptions within any such period unless on application therefor he shall make it clearly apparent to the commissioner that for some extraordinary reason a larger amount is necessary, whereupon the necessary additional blanks may be furnished him. But this provision shall not be construed to limit the sale of any article the manufacture of which is authorized under section 4, title II, of the National Prohibition Act."
Before proceeding to a consideration of the legislation herein attacked, it is necessary to consider a preliminary question which has been raised.
The objection has been made that the court below was without jurisdiction, as the complaint did not show that the amount in controversy exceeded the sum of $3,000 exclusive of interest and costs. The complaint alleged that the suit was one of a civil nature and the amount in controversy was in excess of $3,000; and, as the defendants below moved to dismiss the complaint, they *918 thereby admitted the facts alleged in the complaint, so that they are in no position to raise the question of jurisdiction. Street v. Lincoln Safe Deposit Co., 254 U. S. 88, 41 S. Ct. 31, 65 L. Ed. 151, 10 A. L. R. 1548. We may nevertheless point out that, where an injunction is sought to prevent interference with the plaintiff's business, the amount in controversy is the value of the business to be protected and of the rights of property which it is sought to have recognized and enforced. It is not merely the damages which have accrued prior to the commencement of the action which the court regards, but it looks to the effect upon the plaintiff's business through the entire period within which the damage is threatened. Bitterman v. Louisville & Nashville Railroad, 207 U. S. 205, 225, 28 S. Ct. 91, 52 L. Ed. 171, 12 Ann. Cas. 693.
We come now to the consideration of the real question in this case, which is the validity of the Prohibition Acts as they affect the right of a medical practitioner to prescribe spirituous or vinous liquors in the treatment of disease; and in the decision of this question we are governed by the fundamental rule which controls the courts whenever they are called upon to determine any constitutional question relating to the validity of an act of legislation. The courts of the United States from the beginning, in an unbroken line of decisions, have acted on the principle that every possible presumption is in favor of the constitutionality of an act of Congress until it is overcome beyond all rational doubt. That principle was again stated in the recent case of Adkins v. Children's Hospital, 261 U. S. 525, 544, 43 S. Ct. 394, 67 L. Ed. 785, 24 A. L. R. 1238.
The judicial duty of passing upon the constitutionality of the Acts of Congress herein involved being one of "great gravity and delicacy," this court must decide this case in favor of the validity of the statutes, unless it appears by clear and indubitable demonstration that Congress has exceeded its constitutional power in their enactment. The powers of Congress embrace those expressly granted by the Constitution and such as may be implied from those so granted.
Whatever power Congress has to prohibit the use of intoxicating liquors as a beverage it derives from the Eighteenth Amendment to the Constitution. The material part of that amendment reads as follows: "After one year from the ratification of this article the manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited." And the amendment gives to Congress and the several states concurrent power to enforce it by appropriate legislation.
That amendment, as Mr. Justice Holmes, speaking for the court in Grogan v. Walker & Sons, 259 U. S. 80, 89, 42 S. Ct. 423, 424 (66 L. Ed. 836, 22 A. L. R. 1116), said, "meant a great revolution in the policy of this country, and presumably and obviously meant to upset a good many things on as well as off the statute book. It did not confine itself in any meticulous way to the use of intoxicants in this country. It forbade export for beverage purposes elsewhere. * * * It is obvious that those whose wishes and opinions were embodied in the amendment meant to stop the whole business." There can be no doubt as to what Congress intended. It intended to put an end in this country to the use of malt and spirituous liquors for beverage purposes, and to that end it prohibited the manufacture, possession, sale, importation into, and exportation from the United States, as well as transportation within the United States, of liquor for beverage purposes.
The amendment was incorporated into the Constitution because it was believed that the use for beverage purposes of intoxicating liquors was pernicious in its effects and the cause of disease, pauperism, and crime, and that the nation should protect itself against the injurious consequences arising from the use of such liquors. It was thought that by this amendment the public health, the public morals, and the public safety would be promoted by suppressing the evils connected with the excessive use of intoxicants.
The constitutionality of the state prohibition laws, when they came before the Supreme Court, had been uniformly upheld. As early as 1847 in the License Cases, 5 How. 504, 577 (12 L. Ed. 256), Chief Justice Taney, referring to the suggestion that, if a state deemed the traffic in ardent spirits to be injurious to its citizens and calculated to introduce immorality, vice, and pauperism into the state, it could prohibit it, said:
"And if any state deems the retail and internal traffic in ardent spirits injurious to its citizens, and calculated to produce idleness, vice, or debauchery, I see nothing in the Constitution of the United States to prevent it from regulating and restraining the traffic, or from prohibiting it altogether, if it thinks proper. Of the wisdom of this policy, it is not my province or my purpose *919 to speak. Upon that subject, each state must decide for itself."
And see Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 929; Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989; Foster v. Kansas, 112 U. S. 205, 206, 5 S. Ct. 8, 97, 28 L. Ed. 696; Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205; Crowley v. Christensen, 137 U. S. 86, 91, 11 S. Ct. 13, 34 L. Ed. 620; Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192, 201, 33 S. Ct. 44, 57 L. Ed. 184; Clark Distilling Co. v. Western Maryland Railway Company, 242 U. S. 311, 320, 37 S. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845; Seaboard Air Line R. Co. v. North Carolina, 245 U. S. 298, 299, 38 S. Ct. 96, 62 L. Ed. 299; Crane v. Campbell, 245 U. S. 304, 38 S. Ct. 98, 62 L. Ed. 304. In the case last cited the court said:
"It must now be regarded as settled that, on account of their well-known noxious qualities and the extraordinary evils shown by experience commonly to be consequent upon their use, a state has power absolutely to prohibit manufacture, gift, purchase, sale, or transportation of intoxicating liquors within its borders without violating the guaranties of the Fourteenth Amendment. * * * As the state has the power above indicated to prohibit, it may adopt such measures as are reasonably appropriate or needful to render exercise of that power effective."
The acts passed by Congress under the authority conferred by the Eighteenth Amendment, as well as the validity of the Amendment itself, have been vigorously challenged by their opponents. The complaints about the law have been many. Its opponents have challenged the constitutionality of the amendment and of the acts of Congress enacted under it, and intended to make it effective, but thus far to little or no purpose. In the case now before the court a new question is raised.
The constitutionality of the Eighteenth Amendment came before the Supreme Court in National Prohibition Cases, 253 U. S. 350, 40 S. Ct. 486, 588, 64 L. Ed. 946. The court held the amendment was lawfully submitted by Congress to the states, was lawfully ratified by the states, and has become a part of the Constitution, and must be respected and given effect the same as the other provisions of that instrument.
In Jacob Ruppert v. Caffey, 251 U. S. 264, 40 S. Ct. 141, 64 L. Ed. 260, the Supreme Court held that the provision in the National Prohibition Act, which declares that the words "beer, wine, or other intoxicating malt or vinous liquors" shall be construed to mean any such beverages which contain one-half of 1 per centum or more of alcohol by volume, is constitutional. The decision went upon the theory that a measure reasonably necessary to make the prohibition of intoxicating liquors effectual was within the power of Congress to enact, even though it prohibited the use of liquor containing one-half of 1 per centum or more of alcohol, and such liquor was not in fact intoxicating.
In Everard's Breweries v. Day, 265 U. S. 545, 44 S. Ct. 628, 68 L. Ed. 1174, the Supreme Court had before it section 2 of the Act of November 23, 1921, in so far as it prohibits physicians from prescribing intoxicating malt liquors for medicinal purposes. That act provides that "only spirituous and vinous liquors may be prescribed for medicinal purposes," and that all prescriptions for any other liquor and permits therefor shall be void. The contention was that the act was unconstitutional, as the prohibition of prescriptions for the use of intoxicating liquors was neither an appropriate nor reasonable exercise of the power conferred upon Congress by the Eighteenth Amendment, and also that it infringed upon the legislative power of the states in matters affecting the public health. The court overruled the objections and sustained the constitutionality of the act. Mr. Justice Sanford, writing for the court, said:
"The Constitution confers upon Congress the power to make all laws necessary and proper for carrying into execution all powers that are vested in it. Article 1, § 8, cl. 18. In the exercise of such nonenumerated or `implied' powers it has long been settled that Congress is not limited to such measures as are indispensably necessary to give effect to its express powers, but in the exercise of its discretion as to the means of carrying them into execution may adopt any means, appearing to it most eligible and appropriate, which are adapted to the end to be accomplished and consistent with the letter and spirit of the Constitution [citing cases]. Furthermore, aside from this fundamental rule, the Eighteenth Amendment specifically confers upon Congress the power to enforce `by appropriate legislation' the constitutional prohibition of the traffic in intoxicating liquors for beverage purposes. This enables Congress to enforce the prohibition `by appropriate means.' National Prohibition Cases, 253 U. S. 387.
"It is likewise well settled that, where the means adopted by Congress are not prohibited *920 and are calculated to effect the object intrusted to it, this court may not inquire into the degree of their necessity, as this would be to pass the line which circumscribes the judicial department and to tread upon legislative ground. * * * Nor may it inquire as to the wisdom of the legislation. * * * What it may consider is whether that which has been done by Congress has gone beyond the constitutional limits upon its legislative discretion. It is clear that Congress, under its express power to enforce by appropriate legislation the prohibition of traffic in intoxicating liquors for beverage purposes, may adopt any eligible and appropriate means to make that prohibition effective. The possible abuse of a power is not an argument against its existence, and it has been held that the power to prohibit traffic in intoxicating liquors includes, as an appropriate means of making that prohibition effective, power to prohibit traffic in similar liquors, although non-intoxicating.
"The ultimate and controlling question then is whether, in prohibiting physicians from prescribing intoxicating malt liquors for medicinal purposes as a means of enforcing the prohibition of traffic in such liquors for beverage purposes, Congress has exceeded the constitutional limits upon its legislative discretion. In enacting this legislation Congress has affirmed its validity. That determination must be given great weight; this court by an unbroken line of decisions having `steadily adhered to the rule that every possible presumption is in favor of the validity of an act of Congress until overcome beyond rational doubt.' We cannot say that prohibiting traffic in intoxicating malt liquors for medicinal purposes has no real or substantial relation to the enforcement of the Eighteenth Amendment, and is not adapted to accomplish that end and make the constitutional prohibition effective. The difficulties always attendant upon the suppression of traffic in intoxicating liquors are notorious. The federal government in enforcing prohibition is confronted with difficulties similar to those encountered by the states. The opportunity to manufacture, sell and prescribe intoxicating malt liquors for `medicinal purposes,' opens many doors to clandestine traffic in them as beverages under the guise of medicine, facilitates many frauds, subterfuges and artifices, aids evasion and, thereby and to that extent, hampers and obstructs the enforcement of the Eighteenth Amendment. A provision in a revenue act which tends to diminish the opportunity for clandestine traffic in avoidance of the tax, has a reasonable relation to its enforcement."
We have quoted thus fully because the reasoning upon which that decision went is exactly the reasoning upon which we decide the case now before us. The only difference between that case and this is that the former case related to the prohibition of malt liquors, while this relates to spirituous or vinous liquors, and the further distinction seems to us, so far as the legal right is concerned, that in the former case Congress prohibited any prescription of malt liquors, while in this case we are concerned with the fact that it limited to a specified quantity the amount of spirituous or vinous liquor that can be prescribed within a fixed period. In the former case the court declared that, in prohibiting prescriptions of intoxicating malt liquors for medicinal purposes, Congress had not violated any personal rights of the appellants protected by the Constitution.
During the pendency of the bill in Congress, hearings were had before the Judiciary Committee, and an extract from its report is found in the margin.[2] If Congress did not exceed the constitutional limits upon its legislative discretion in prohibiting physicians from prescribing intoxicating malt liquors for medicinal purposes as a means of enforcing the prohibition of traffic in such liquors for beverage purposes, we are unable to see how it can be said that it exceeded the *921 constitutional limits of its discretion in prohibiting physicians from prescribing for medicinal purposes "more than one-half pint of alcohol for use by any person within any period of ten days." It was urged upon the court in the first case that it was not within the power of Congress to prohibit physicians from prescribing malt intoxicating liquors for medicinal purposes, if in their judgment such prescriptions seemed best, and according to their science and practice of medicine. There was evidence in that case not only that beer is a necessary therapeutic agent, but a leading physician's affidavit that he "had far greater occasion to prescribe beer than to prescribe spirituous or fermented liquors." It was said at the argument, and not wholly without justification, that the only fundamental distinction between the two cases was that the medical adherents of beer complained that they were entirely prohibited from prescribing this so-called necessary therapeutic agent, while the medical adherents of whisky and brandy were complaining of the restriction placed upon the amount of spirituous or vinous liquors they were permitted to prescribe.
The Judiciary Committee, in its report on the Willis-Campbell Act, referring to section 2, had this to say:
"While the majority of the states prohibit wine for medicinal purposes, it was not deemed best by the committee that such provision should be inserted in the Prohibition Act at this time. In order, however, that this privilege should not be abused, it was deemed best to specifically limit its use, the same as has been done with spirituous liquor. Unless some limit is placed upon the amount of such liquors that may be prescribed, a number of physicians who do not have the high ethical standards of the large majority will abuse the privilege. Evidence was presented to the committee of physicians who issued hundreds of prescriptions within a few days, when the total number of other prescriptions was a negligible number. In view of the fact that most of the states have more stringent provisions than the one contained in section 2, this legislation will work no hardship upon the profession." House Report No. 224, 67th Congress, 1st Session.
The fact may also be noted that whether or not whisky, wine, or beer has a therapeutic value in the treatment of disease is a very much disputed question in the medical profession. In the year 1917 the American Medical Association, which has a membership of 150,000 physicians, passed a resolution discouraging the use of alcohol as a therapeutic agent, which resolution is in the margin.[3] It is impossible for us to say as a matter of law that the limitation placed upon physicians in prescribing liquor as a remedy for disease is not fairly adapted to the end of protecting the people of the United States against the evils which result from the use of intoxicating liquors.
We are not ignorant of the manifold difficulties attendant upon an attempt to enforce the laws prohibiting the use of intoxicating liquors, and we have no right to say that such restriction as Congress has imposed upon the right of physicians to use such liquors in the treatment of disease, is so arbitrary, or unreasonable, or without such proper relation to the legitimate legislative purpose, as renders the legislation in question void and without effect. It appears that, when the statute was passed, the Congress was aware of the opposing theories held by physicians as to the therapeutic value of spirituous and vinous liquors in the treatment of disease, and was compelled to determine whether physicians, in the practice of their profession, should be permitted to prescribe them at all and if so to what extent.
In Jacobson v. Massachusetts, 197 U. S. 11, 30, 25 S. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765, the question was whether a compulsory vaccination law of a state was void, as violating the liberty secured by the Constitution of the United States to every person within its jurisdiction. In that case attention was called to the conflicting views entertained in the medical profession as to the value of vaccination as a preventative measure for smallpox. The court, in upholding the validity of the law, said:
"We must assume that, when the statute in question was passed, the Legislature of Massachusetts was not unaware of these opposing theories, and was compelled, of necessity, to choose between them. It was not compelled to commit a matter involving the public health and safety to the final decision of a court or jury. It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative *922 department to determine, in the light of all the information it had or could obtain. It could not properly abdicate its function to guard the public health and safety. The state Legislature proceeded upon the theory which recognized vaccination as at least an effective, if not the best known, way in which to meet and suppress the evils of a smallpox epidemic that imperiled an entire population. Upon what sound principles as to the relations existing between the different departments of government can the court review this action of the Legislature? If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the Legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution."
And in like manner this court cannot say that either the Volstead or the Willis-Campbell Act unduly invades the complainant's liberty to practice his profession according to his judgment. It was for Congress, and not the courts, to determine whether it was necessary or advisable to permit these liquors to be prescribed at all by physicians, and, if to be prescribed, to fix the quantity that may be prescribed at any one time or within a fixed period, and if, in the opinion of Congress, the public safety or the public morals required the prohibition of the use of intoxicants, that prohibition might be absolute or qualified as Congress might determine. And we fail to discover anything in the acts of Congress herein involved which is in violation of the constitutional guaranties of life, liberty, and property. "No one may rightfully do that which the law-making power, upon reasonable grounds, declares to be prejudicial to the general welfare." Mugler v. Kansas, supra.
In Purity Extract Co. v. Lynch, 226 U. S. 192, 33 S. Ct. 44, 57 L. Ed. 184, the court had before it the constitutionality of a Mississippi statute prohibiting the sale of malt liquors. Poinsetta was sold as a beverage. It contained no alcohol, and was not intoxicating, and the question was whether, being a malt liquor, and not alcoholic or intoxicating, it was competent to prohibit its sale. The court upheld the law. In an opinion written by Justice Hughes, for a unanimous court, he said:
"The existence of this power, as the authorities we have cited abundantly demonstrate, is not to be denied simply because some innocent articles or transactions may be found within the prescribed class. The inquiry must be whether, considering the end in view, the statute passes the bounds of reason and assumes the character of a merely arbitrary fiat. That the opinion is extensively held that a general prohibition of the sale of malt liquors, whether intoxicating or not, is a necessary means to the suppression of trade in intoxicants, sufficiently appears from the legislation of other states and the decision of the courts in its construction. State v. O'Connell, 99 Maine, 61, 58 Atl. Rep. 59; State v. Jenkins, 64 N. H. 375; State v. York, 74 N. H. 125, 127; State ex rel. Guilbert v. Kauffman, 68 Oh. St. 635, 67 N. E. Rep. 1062; Luther v. State (Nebraska), 20 L. R. A. (N. S.) 1146; Pennell v. State, 141 Wisconsin, 35, 123 N. W. Rep. 115. We cannot say that there is no basis for this widespread conviction. The state, within the limits we have stated, must decide upon the measures that are needful for the protection of its people, and, having regard to the artifices which are used to promote the sale of intoxicants under the guise of innocent beverages, it would constitute an unwarrantable departure from accepted principle to hold that the prohibition of the sale of all malt liquors, including the beverage in question, was beyond its reserved power."
A person has an inherent right to life, and in order to maintain it a right to eat and drink. But the right to drink liquors which are intoxicating the state or the United States may take away, and in order to do so effectively the government may take away the right to drink certain liquors containing alcohol insufficient in amount to produce intoxication. That much is settled by the decisions of the courts; and for the same reason which leads the law-making power of a state or of the United States to prohibit the use of liquor containing a less amount of alcohol than is required to make it intoxicating, the law-making power may restrict the physician as to the amount of such liquor he can prescribe to his patient in a given period. We cannot say that a physician's right to prescribe alcohol in the treatment of disease is inherent, and cannot be regulated or controlled by the law-making power of the state. The proposition is unsupported by authority and is unsound in principle.
*923 It remains true that the inquiry in such a case as this is whether, considering the end in view, the legislation complained of, which restricts the right of physicians to prescribe spirituous and vinous liquors in the treatment of disease, "passes the bounds of reason and assumes the character of a merely arbitrary fiat."
Because we cannot say that it does, the decree is hereby reversed, and the District Court is directed to dismiss the bill.
NOTES
[1] "Further ordered, adjudged, and decreed that the defendants and each of them be and they hereby are restrained and enjoined during the pendency of this action from enforcing or attempting to enforce against the complainant the provisions of section 7 of title 2 of the National Prohibition Act, in so far as the said section prescribes that not more than a pint of spirituous liquor to be taken internally shall be prescribed for use by the same person within any period of ten days; and it is further ordered that the operation of the injunction hereinabove set forth be and the same hereby is stayed pending the determination of an appeal to be taken from this decree by the defendants within the time prescribed by law."
[2] "The evidence presented to the committee to the effect that beer has never been recognized as a medicine was overwhelming. The United States Pharmacopia has never listed it as a medicine. One hundred and four of the leading physicians and scientists in the nation signed the following statement: `The undersigned physicians of the United States desire to place on record their conviction that the manufacture and sale of beer and other malt liquors for medicinal purposes should not be permitted. Malt liquors never have been listed in the United States Pharmacopia as official medicinal remedies. They serve no medical purpose which cannot be satisfactorily met in other ways, and that without the danger of cultivating the beverage use of an alcoholic liquor.' Several thousand other physicians signed the above, or a similar statement, and presented it to the committee. The attorney for the Anheuser-Busch Company, Inc., appeared before the committee and called attention to the fact that, if beer was permitted as a medicine, it would be impossible to enforce the prohibition law. There was only one doctor who appeared before the committee in favor of beer as a medicine, and the New York County Medical Association, the official medical association of New York, denied that he spoke for them in favoring beer for medicinal purposes."
[3] "Whereas, we believe that the use of alcohol as a beverage is detrimental to human economy; and
"Whereas, its use in therapeutics, as a tonic or a stimulant or as a food has no scientific basis, therefore be it resolved that the American Medical Association opposes the use of alcohol as a beverage, and be it further
"Resolved, that the use of alcohol as a therapeutic agent should be discouraged." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562325/ | 16 So.3d 734 (2009)
David Maxwell PACE, Appellant,
v.
Sally PACE, Appellee.
No. 2007-CP-01052-COA.
Court of Appeals of Mississippi.
March 24, 2009.
Rehearing Denied September 1, 2009.
*735 David Maxwell Pace, pro se.
Sally Pace, pro se.
EN BANC.
KING, C.J., for the court.
FACTS AND PROCEDURAL HISTORY
¶ 1. David Maxwell Pace and Sally Pace were married on April 30, 2002, and separated in June of that same year. Sally filed for divorce on February 26, 2003, in the Jackson County Chancery Court. On March 31, 2007, she was granted a divorce on the ground of habitual cruel and inhuman treatment. David and Sally were married for approximately five years, but the couple never lived together and had no joint property or bank accounts. Sally lived in Gautier, Mississippi, and David lived in Orange Beach, Alabama. Sally stayed with David on two or three weekends *736 during the two months before they separated. The couple had one child together, David Cruise Pace (Cruise), who was born prior to the marriage on November 13, 1998. During the time that the couple was separated, Sally gave birth to another child, Stormy Langley, on July 7, 2005. Russell Langley is listed as Stormy's father on her birth certificate.
¶ 2. The Jackson County Chancery Court tried this matter on March 14, 2007. Both Sally and David were represented by counsel. Sally as well as Kathy Garrison, a friend of Sally's, testified regarding David and Sally's relationship. David was not present at the trial. David claimed that an emergency had occurred, which required him to take an adult son from a previous marriage to the hospital. The trial court denied a continuance requested by David's attorney because there was no proof that David was actually at the hospital. Sally informed the chancellor that during lunch, she had called and spoken with David at work. Based on the testimony of Sally and Garrison, the chancellor granted the divorce on the ground of habitual cruel and inhuman treatment and awarded physical custody of the couple's child to Sally. The chancellor established a visitation schedule and ordered David to pay $300 a month in child support.
¶ 3. David now appeals the order of the chancellor, asserting the following issues: (1) the chancellor did not have in personam jurisdiction over him; (2) the chancellor erred in granting a divorce based on habitual cruel and inhuman treatment; (3) the chancellor erred in failing to grant a continuance; and (4) the chancellor erred in not ordering a DNA test to prove the paternity of Stormy. Finding no prejudicial error, we affirm.
STANDARD OF REVIEW
¶ 4. Our standard of review on appeals from chancery court is limited. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). "The chancellor's findings of fact should not be interfered with unless they were `manifestly wrong, clearly erroneous or an erroneous legal standard was applied.'" Isom v. Jernigan, 840 So.2d 104, 106(¶ 6) (Miss.2003) (quoting Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990)). Questions of law, however, are reviewed de novo. Id.
DISCUSSION
I. WHETHER THE CHANCELLOR HAD IN PERSONAM JURISDICTION OVER THE PARTIES.
¶ 5. David argues that because he was never served with a summons, the chancery court lacked in personam jurisdiction over him and, therefore, could not lawfully grant a divorce. In his order granting the divorce, the chancellor held that jurisdiction was proper and denied all outstanding motions, including David's motion to dismiss for lack of jurisdiction.
¶ 6. In her complaint for divorce and motion for ex parte relief regarding child custody filed on February 26, 2003, Sally declared that David's current post office box, street address, and place of residence were unknown to her after diligent search and inquiry.[1] On that same day, the chancellor ruled on Sally's motion for ex parte relief, which requested that David return the couple's son to her. Sally had permitted their son to visit with David on February 18, with the agreement that the child *737 would be returned on February 25. Sally filed her complaint for divorce and motion for ex parte relief after David failed to return the child as agreed. On February 26, 2003, the chancellor granted Sally temporary custody upon the grounds that the child normally resided with her and needed medication which David could not provide him. David was served with an attested copy of the order granting ex parte relief, which also set the temporary custody issue for a hearing on March 14, 2003, at 9:00 a.m.
¶ 7. In response to the February 26 order, David appeared before the chancellor on March 14, 2003. At that time, the parties and their attorneys signed an agreed order dissolving the temporary ex parte order, establishing custody and a visitation schedule, and setting the case for trial on March 26, 2003. The case was not tried on March 26, 2003. However, on March 26, 2003, David filed a motion to contest jurisdiction. In that motion David stated that: (1) he had not been served with a summons or complaint, and (2) he had appeared in this case on March 14, 2003, in response to the February 26, 2003, temporary order.
¶ 8. On May 9, 2003, David filed a document entitled "Answer and Motion for Temporary Relief," in which he responded to the divorce complaint and requested that the trial court grant him custody of the minor child, or reasonable visitation, and "such other relief to which he may be entitled." In response, on June 4, 2003, the chancellor signed another temporary order. This order (1) gave the parties joint legal custody with primary physical custody given to Sally, (2) established a formal visitation schedule, (3) established temporary child support, and (4) set an October 14, 2003, trial date.
¶ 9. On July 10, 2003, David filed a "Motion to Reconsider and to Modify Custody Order" asking for a reduction in child support or paramount custody of the child. On August 14, 2003, the chancellor ordered this motion and a contempt motion by Sally to be heard by the Family Master. On September 30, 2003, Sally served her answers to David's interrogatories. On October 6, 2003, David, acting pro se, filed a motion for additional time to respond to the contempt motion and to reschedule the hearing.
¶ 10. The final ruling in this action did not occur until four years later. During that time, no ruling had been on David's motion contesting jurisdiction. On March 14, 2007, just before the chancellor made his ruling granting the divorce based on habitual cruel and inhuman treatment, David's attorney reminded the chancellor that there was an outstanding motion objecting to jurisdiction. The chancellor stated that all outstanding motions were denied and entered a final judgment of divorce.
¶ 11. In order for a judgment of a court to be valid, the court must have personal jurisdiction over the parties to the action. James v. McMullen, 733 So.2d 358, 359(¶ 3) (Miss.Ct.App.1999) (quoting Rice v. McMullen, 207 Miss. 706, 727, 43 So.2d 195, 201 (1949)). "The existence of personal jurisdiction, in turn, depends upon the presence of reasonable notice to the defendant that an action has been brought." Noble v. Noble, 502 So.2d 317, 320 (Miss.1987) (quoting Kulko v. Superior Court of California, 436 U.S. 84, 91, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978)). However, "absent some proof of [the] defendant's receipt of summons, the reasonableness of notice is questionable." Id.
¶ 12. No mention is made of service of process in the record other than Sally's contention that she was unable to determine an address at which to serve process *738 on David. Mississippi Rule of Civil Procedure 4(h) states: "If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint ... the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion." "If a defendant does not voluntarily appear to a cause against him, he cannot be gotten into court except in the manner laid down by law." Kolikas v. Kolikas, 821 So.2d 874, 878(¶ 17) (Miss.Ct.App.2002). Therefore, absent some proof that process was served upon David, the chancellor lacked jurisdiction to hear this matter unless David is deemed to have consented to jurisdiction by making a general appearance. Id.
¶ 13. Mississippi Rule of Civil Procedure 12(h)(1) states:
A defense of ... insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by a motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.
While David objected to jurisdiction by motion on March 26, 2003, and continued at various points to object to jurisdiction, we find that David's actions throughout the proceedings are inconsistent with his assertion of lack of jurisdiction.
¶ 14. While he later objected to jurisdiction, David appeared at the ex parte hearing on March 14, 2003. At that time, he both "approved and agreed" to that order which temporarily (1) provided for the parties to have joint legal custody, (2) placed physical custody with Sally, (3) established formal visitation, and (4) set the matter for trial on March 26, 2003. Even after he objected to the court's jurisdiction, David continued to make requests for relief from the chancery court and to file various motions, including: to hold Sally in contempt, to reconsider the order, to modify custody, and for leave to establish paternity.
¶ 15. "Mississippi does not recognize `special appearances' except where a party appears solely to object to the court's jurisdiction over her person on grounds that she is not amenable to process. One waives process and service, however, upon making a general appearance." Isom, 840 So.2d at 107(¶ 9) (internal citation omitted). This Court finds that by voluntarily appearing and fully participating in the March 14, 2003, hearing, David waived service of process and entered a general appearance for all purposes. This entry of appearance and waiver of process was reaffirmed on each of the many occasions that David invoked the jurisdiction of the trial court to grant to him some specific relief. See Dennis v. Dennis, 824 So.2d 604, 610(15) (Miss.2002) (quoting McGuire v. Sigma Coatings, Inc., 48 F.3d 902, 907 (5th Cir.1995)). Therefore, this Court finds that the chancellor was correct in denying David's motion for lack of jurisdiction.
II. WHETHER THE CHANCELLOR ERRED BY GRANTING SALLY A DIVORCE BASED ON HABITUAL CRUEL AND INHUMAN TREATMENT.
¶ 16. David argues that insufficient proof was shown for the chancellor to grant a divorce based on habitual cruel and inhuman treatment.
¶ 17. In order for a divorce to be properly granted on the ground of habitual cruel and inhuman treatment, the following must be proven by a preponderance of the evidence:
*739 [c]onduct that either (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.
Jackson v. Jackson, 922 So.2d 53, 56(¶ 4) (Miss.Ct.App.2006) (quoting Peters v. Peters, 906 So.2d 64, 68(¶ 13) (Miss.Ct.App. 2004)). "As a general rule, the habitual cruel and inhuman treatment must be shown to be routine and continuous; however, a single occurrence may be grounds for a divorce on this ground." Boutwell v. Boutwell, 829 So.2d 1216, 1220(¶ 14) (Miss. 2002). In reviewing a divorce decree, this Court must view the facts in the light most favorable to the appellee and will not disturb the chancellor's finding unless we find the chancellor's decision to be manifestly wrong or not supported by substantial evidence. Id. at 1220(¶ 13). It is the duty of the chancellor as the trier of fact to evaluate the sufficiency of the proof based on the credibility of the witnesses and the weight of their testimonies. Id. at (¶ 14) (citing Richard v. Richard, 711 So.2d 884, 888(¶ 13) (Miss.1998)).
¶ 18. Sally testified that from the date of their marriage, she and David never lived together or attempted to establish a marital home. She returned to her home in Gautier, Mississippi, and he returned to his home in Orange Beach, Alabama. According to Sally, she was expecting to make a home with David. She testified that David had likewise indicated a desire to establish a marital home with her. However, on each of the occasions when Sally anticipated moving to Orange Beach to live with David and establish a marital home, there was always something on David's end which prevented her moving.
¶ 19. Sally also testified that on the one or two weekends that she visited David, he received calls from females inviting him out. Notwithstanding her presence there, David declined to inform his female admirers that he was in fact married and needed to act accordingly. Instead, David chose to merely imply that he was unavailable because his son was there with him.
¶ 20. David's conduct in apparently refusing to establish a marital home with Sally started on their wedding day, continued unabated, and had a negative impact on Sally's health. This course of conduct was intentional, and apparently, it was designed to preclude the true establishment of a marital relationship. David's conduct was so unnatural as to render Sally's discharge of her marital duties impossible and, thus, destroyed any basis for the establishment of a marriage. The health impact of David's conduct upon Sally was testified to by Garrison.
¶ 21. The chancellor heard and weighed the evidence, all of which supported the allegations of Sally. Thus, his factual findings are supported by the evidence and are binding upon this Court. See Stribling v. Stribling, 906 So.2d 863, 868(17) (Miss.Ct. App.2005) (citing Hensarling v. Hensarling, 824 So.2d 583, 586(7) (Miss.2002)). While this Court reviews questions of law de novo, the course of intentional conduct attributed to David was tantamount to cruel and inhuman treatment, and it provided a basis upon which the chancellor could grant Sally a divorce.
¶ 22. This issue is without merit.
III. WHETHER THE CHANCELLOR ERRED BY FAILING TO GRANT DAVID A CONTINUANCE.
¶ 23. The grant or denial of a motion for continuance is left to the sound discretion of the trial court and will not be *740 reversed on appeal absent an abuse of that discretion. New v. Comola, 881 So.2d 369, 373(13) (Miss.Ct.App.2004).
¶ 24. On the morning of trial, David's attorney asked the court for a continuance, stating that her client had indicated an inability to be present in court because it was necessary to take a family member to the hospital. The attorney stated that David had been informed that he needed to provide the trial court with some verification of this claim, which he was to fax to her office. The trial court provided David's attorney with the court's fax number to expedite receipt of the verification. No verification was ever received, and the trial court denied the motion for a continuance. Under these facts, we cannot say that the trial court abused its discretion.
IV. WHETHER THE CHANCELLOR SHOULD HAVE ORDERED A DNA TEST TO PROVE THE PATERNITY OF STORMY LANGLEY.
¶ 25. On June 21, 2005, David filed a motion for leave of court to file a counter-complaint for divorce, paternity, and child custody. In this motion, David requested that the chancellor establish paternity of Sally's unborn child, which was due to be born in July, and if he was determined to be the biological father of the child, he requested custody and child support. In the judgment of divorce, the chancellor found that Stormy was not David's child.
¶ 26. Mississippi Code Annotated section 93-9-21(2) (Rev.2004) states: "The court, on its own motion or on motion of the plaintiff or the defendant, shall order the mother, the alleged father and the child or children to submit to genetic tests and any other tests which reasonably prove or disprove the probability of paternity." Thus, had it been alleged that David was the biological father of the child, he would have had the right to a paternity determination. However, because the parties agreed in their respective pleadings that David was not Stormy's father, he had no entitlement to a paternity test. This issue is without merit.
CONCLUSION
¶ 27. Having found no merit in any of David's issues, the chancellor's judgment is affirmed.
¶ 28. THE JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
MYERS, P.J., BARNES AND CARLTON, JJ., CONCUR. LEE, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, GRIFFIS AND ROBERTS, JJ. ISHEE AND MAXWELL, JJ., NOT PARTICIPATING.
LEE, P.J., Concurring in Part, Dissenting in Part.
¶ 29. With respect for the majority, I must dissent as to Issue IIwhether the chancellor erred in granting a divorce based on habitual cruel and inhuman treatment. I concur as to the remaining issues. The majority finds that sufficient proof was presented by the testimony of Sally and Garrison to support a divorce on this ground. As I find that the testimony was insufficient to prove habitual cruel and inhuman treatment, I would reverse and render the chancellor's decision to grant the divorce based on this ground.
¶ 30. For a divorce to be granted on the ground of habitual cruel and inhuman treatment, "[t]here must be proof of systematic and continuous behavior on the part of the offending spouse which goes beyond mere incompatibility." Morris v. *741 Morris, 804 So.2d 1025, 1027(¶ 8) (Miss. 2002) (quoting Parker v. Parker, 519 So.2d 1232, 1234 (Miss.1988)). In certain cases, "a single occurrence may be grounds for a divorce on this ground," Boutwell v. Boutwell, 829 So.2d 1216, 1220(¶ 14) (Miss. 2002), but this is not such a case as there was no allegation of a single act that was particularly offensive. It seems nearly impossible in this case to find "systematic and continuous behavior" when the marriage, not including the separation, lasted for less than two months, and the couple did not even live together during those two months. At the most, the couple only spent a few weekends together. Sally's allegations against David were that he would come home late, pass out, or urinate on the bed or floor because he was intoxicated. She also testified that girls would call on the phone wanting him to meet them at bars. Sally's testimony regarding these complaints was as follows:
Q. So in your complaint for divorce, you alleged that you were entitled to a divorce on the grounds of habitual cruel and inhumane [sic] treatment and/or habitual drunkenness. Can you tell [t]he Court what behavior that your husbandwhat conduct that occurred during the marriage that you are basing that allegation on?
A. The coming home late at night or coming home the next day intoxicated. Coming home, passing out, urinating on the bed or in the floor. Several girls calling him all of the time in my presence asking him to meet them at a bar. It was constant.
Q. How long did you and he live together?
A. We have not lived together any since the date we were married, never.
Q: Did you live together before you were married?
A. A year. About a year prior to our marriage, we had lived together.
THE COURT: Y'all didn't separate after the date of the marriage?
MS. PACE: Well, when we got married, I still lived in Gautier and he was living in Orange Beach and we got married [at] the courthouse in Mobile. And that night, I came back home to Gautier and he still resided in Orange Beach. And we never lived together from that day of marriage.
(Emphasis added). Finally, she complained that David would not move her to Alabama after they got married. While these actions were unacceptable and certainly harmful to the marriage, I cannot find that these few allegations amount to habitual cruel and inhuman treatment.
¶ 31. I would further find that Sally failed to provide sufficient corroboration even if her testimony was sufficient to prove habitual cruel and inhuman treatment. The law is that once the spouse requesting a divorce on the basis of habitual cruel and inhuman treatment testifies as to the offending spouse's behavior, then his or her testimony must be corroborated to provide a sufficient basis for relief. Heatherly v. Heatherly, 914 So.2d 754, 757(¶ 12) (Miss.Ct.App.2005).
¶ 32. Garrison, Sally's witness, testified that she had known Sally since 2000 and thought of her as an adopted daughter. Garrison knew David but only though Sally. She did not have much contact with David. She testified that her observation of Sally and David's marriage was "a lot of turmoil" and "a bad drinking problem" on behalf of David. However, she testified that she did not personally see David drinking during the couple's marriage. According to Garrison's personal observations of David between April and June 2002, David flirted with other women and acted like he was single. It was her belief that most people did not know he was married to Sally. She testified that Sally was very excited when she married David *742 and wanted to move to Alabama to be with him. However, David would make excuses and his plans to move her never materialized. She observed that Sally became very upset over David's actions and saw her physician complaining of anxiety and depression. Garrison admitted that Sally had these feelings before she married David. Sally's attorney attempted to call another witness, Gunter Bosarge, but the chancellor interrupted, saying, "I don't need to hear from him. I think you've proved your case." Regardless, even if all of Sally's allegations are corroborated by the witness who was not allowed to testify, a divorce based on habitual cruel and inhuman treatment is still not warranted.
¶ 33. I agree with the chancellor that this couple should be granted a divorce. However, the supreme court has repeatedly held:
Divorce is a creature of statute; it is not a gift to be bestowed by the chancellor based upon a perception that declining to grant the divorce will not restore the couple to a harmonious relationship. It is a statutory act and the statutes must be strictly followed as they are in derogation of the common law.
Massingill v. Massingill, 594 So.2d 1173, 1178 (Miss.1992) (quoting Kergosien v. Kergosien, 471 So.2d 1206, 1210 (Miss. 1985)). It is apparent that the chancellor made a hasty decision in granting this divorce, even to the point of cutting off one witness's testimony before it started. While a divorce may have been warranted on a different ground, such as desertion, had it been properly pleaded, it was not warranted on the ground of habitual cruel and inhuman treatment.
IRVING, GRIFFIS AND ROBERTS, JJ., JOIN THIS SEPARATE OPINION.
NOTES
[1] Despite Sally's contention that David's address was unknown, a street address was listed in the complaint that Sally purported to be David's last known address. Also, Sally maintained contact with Cruise, who was with David at the time, and David was able to be located when he was ordered to return Cruise to Sally. Further, Sally called David at his place of work during the delay in the divorce hearing, and David answered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562326/ | 4 F.2d 457 (1925)
PACIFIC STATES PAPER TRADE ASS'N et al.
v.
FEDERAL TRADE COMMISSION.[*]
No. 4217.
Circuit Court of Appeals, Ninth Circuit.
February 9, 1925.
Rehearing Denied March 9, 1925.
*458 *459 *460 Edward J. McCutcheon, Warren Olney, Jr., and McCutcheon, Olney, Mannon & Greene, all of San Francisco, Cal., Hamblen & Gilbert, of Spokane, Wash., and Chriss A. Bell, of Portland, Or., for petitioners.
W. H. Fuller, Chief Counsel of Federal Trade Commission, of Washington, D. C., and D. N. Dougherty, of San Francisco, Cal., for respondent.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
RUDKIN, Circuit Judge (after stating the facts as above).
As already stated, the case was submitted to the commission on an agreed statement of facts. Outside of and in addition to the agreed statement, however, the commission made certain findings or deductions of its own. These additional findings will be accepted by the court in so far as they are based upon proper and legal inferences from the facts stipulated, but otherwise they must be disregarded. Thus, in addition to the stipulated facts as to the use made of the price lists adopted by the several local associations, in making sales in other states, the commission found that such use has a natural tendency to limit competition and fix prices in such other states. We may say at the outstart that so much of the desist order as forbids the use of these price lists in combination would be proper, if justified by the facts, but use in combination is neither stipulated nor found. There is no division of territory between the different local associations, but the members of each habitually serve a loosely defined territory, in which the bulk of their business is done, and which is regarded by them as peculiarly within the sphere of their merchandising activities. Such territory is that which is naturally tributary to the jobbing center, where the members of such associations are located and within which jobbing or wholesale dealers so located have an advantage over similar dealers elsewhere in competition with them, by reason of such factors as lower freight rates, nearness of distance, and accustomed trade channels.
The use of a price list of some kind for the information and guidance of salesmen in taking orders and making sales is almost a necessity, and it is going very far to say that the mere use, without combination or agreement, of a particular price list, which the salesmen are not bound to follow, and which differs or may differ from the price lists used by other salesmen in the same locality, has such a tendency to fix prices or limit competition as to bring it within the condemnation of the Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830). The principle involved is perhaps more important than the right to use any particular price list, but we do not think that the prohibition is justified *461 by the stipulated facts or by any proper or legal inferences therefrom.
Again the commission supplemented the stipulated facts as to mill shipments by a finding that such shipments are injected into the channels of interstate commerce and continue in such commerce until delivery to the purchaser, and the inclusion of fixed and uniform prices in the published price lists of the various local associations eliminates price competition in the purchase and sale of these products in interstate commerce. The line of demarcation between interstate commerce and intrastate commerce is not easily defined, nor is it easy to say where the former ends or the latter begins. The question has been many times before the Supreme Court, and it seems there well settled, in tax cases at least, that a sale by a wholesaler or jobber in one state to a purchaser in the same state under circumstances such as are disclosed by this record is not a subject of interstate commerce. Thus, in Ware & Leland v. Mobile County, 209 U. S. 405, 413, 28 S. Ct. 526, 529 (52 L. Ed. 855, 14 Ann. Cas. 1031), the court said:
"When the delivery was upon a contract of sale made by the broker, the seller was at liberty to acquire the cotton in the market where the delivery was required or elsewhere. He did not contract to ship it from one state to the place of delivery in another state. And though it is stipulated that shipments were made from Alabama to the foreign state in some instances, that was not because of any contractual obligation so to do. In neither class of contracts, for sale or purchase, was there necessarily any movement of commodities in interstate traffic, because of the contracts made by the brokers. These contracts are not, therefore, the subjects of interstate commerce, any more than in the insurance cases, where the policies are ordered and delivered in another state than that of the residence and office of the company. The delivery, when one was made, was not because of any contract obliging an interstate shipment, and the fact that the purchaser might thereafter transmit the subject-matter of purchase by means of interstate carriage did not make the contracts as made and executed the subjects of interstate commerce."
So here there were no contractual relations of any kind between the manufacturer and the purchaser from the wholesaler or jobber, and no agreement of any kind between the wholesaler or jobber and the purchaser that the merchandise should be shipped in interstate commerce, or at all. The seller was at liberty to fulfill the contract from merchandise on hand within the state, and adopted the method complained of as a mere matter of convenience, because time and opportunity made delivery in that way feasible and satisfactory. See also, Banker Bros. v. Pennsylvania, 222 U. S. 210, 32 S. Ct. 38, 56 L. Ed. 168, Public Utilities Commission v. Landon, 249 U. S. 236, 39 S. Ct. 268, 63 L. Ed. 577, and Ward Baking Co. v. Federal Trade Commission (C. C. A.) 264 F. 330.
It is claimed by the respondent that these cases are qualified and explained in Western Union Telegraph Co. v. Foster, 247 U. S. 105, 38 S. Ct. 438, 62 L. Ed. 1006, 1 A. L. R. 1278, Dahnke-Walker Co. v. Bondurant, 257 U. S. 282, 42 S. Ct. 106, 66 L. Ed. 239, and Lemke v. Farmers' Grain Co., 258 U. S. 50, 42 S. Ct. 244, 66 L. Ed. 458. We do not so construe them. In the Western Union Case, the New York Stock Exchange contracted with certain telegraph companies to furnish them continuous stock quotations, to be furnished by them in turn to their subscribers by ticker service, and it was held that the transmission of the quotations remained interstate commerce until they reached their final destination; but there transmission and delivery to the subscriber was a part of the service contracted for. In Dahnke-Walker Co. v. Bondurant and Lemke v. Farmers' Grain Co. it was held that, where goods are purchased in one state for transportation to another, commerce includes the purchase quite as much as the transportation. No doubt a restriction on the purchase or sale of goods which are to become or have been the subject of interstate commerce may be illegal, but before such a result can be declared it must appear that the restriction in some way tends to restrain or monopolize commerce among the states, as in Swift & Co. v. United States, 196 U. S. 375, 25 S. Ct. 276, 49 L. Ed. 518.
No such case is presented here. The contracts in question relate solely to sales within the state by parties within the state, and so far as we can see they do not and cannot affect directly, or even remotely, commerce among the states. Practically all the paper and paper products sold in the Pacific Coast States has been the subject of interstate commerce. The commission apparently concedes that it is without power to forbid or condemn agreements fixing prices within the state where delivery is to be made from stocks within the state, but it asserts the power in this particular instance merely because of the time, place, and mode of delivery. *462 The distinction thus sought to be made is subtle to say the least.
As already stated, paragraph (e) of the order forbids the discussion of uniform terms, discounts, and prices by the Northwest Paper Dealers and the Pacific States Paper Trade Association, their officers and members, their agreeing upon prices by resolution or otherwise, or the employing of any similar device, which fixes or tends to fix the price at which paper or paper products shall be sold in interstate commerce. On first reading, it might seem that the qualifying phrase, "which fixes or tends to fix the prices at which paper or paper products shall be sold in interstate commerce," applies to the discussion of terms, discounts, and prices, as well as to any similar device, but correctly speaking it does not. Furthermore, the petitioners contend that the order, by its terms, prohibits any discussion whatever of these subjects. The commission accepts that view and seeks to uphold the order in all its breadth.
In this respect we think the order goes too far. As said by the Supreme Court in Federal Trade Commission v. Sinclair Refining Co., 261 U. S. 463, 43 S. Ct. 450, 67 L. Ed. 746: "The powers of the Commission are limited by the statutes. It has no general authority to compel competitors to a common level, to interfere with ordinary business methods or to prescribe arbitrary standards for those engaged in the conflict for advantage called competition. The great purpose of both statutes was to advance the public interest by securing fair opportunity for the play of the contending forces ordinarily engendered by an honest desire for gain. And to this end it is essential that those who adventure their time, skill and capital should have large freedom of action in the conduct of their own affairs."
Nor was it the purpose of the statutes to reduce trade organizations to the status of mere social clubs, or to restrict the conversation of members to mere idle gossip. United States v. Southern Wholesale Grocers' Ass'n (D. C.) 207 F. 434. The stipulated facts state the subjects discussed at these meetings, without more. What was said we are not informed and so far as the record discloses, the discussion may have resulted in a disagreement instead of an agreement. What is here said, of course, has no reference to the resolution fixing the price for cutting, but beyond an agreement on this single item the record is entirely silent. Our attention has been directed to numerous cases in which injunctions as broad as this have been sustained, but in all such cases agreements in restraint of trade were found to exist, and in order to prevent a repetition or recurrence of the evil the courts were warranted in forbidding acts which in and of themselves would not justify injunctive or other relief. No doubt, discussions at such meetings which tend to monopolize trade or fix prices in interstate commerce come within the prohibition of the statute, but neither court nor commission is justified in presuming the unlawful purpose without proof. The discussions in question may have had the tendency claimed, and such may have been their express object, but no such tendency or purpose appears from the stipulated facts.
Paragraph (g) of the order is directed against conspiracies and combinations to hinder or prevent any wholesaler, jobber, dealer, or consumer from purchasing paper or paper products in interstate commerce directly from the manufacturer or wholesaler thereof, or from any one else selling or desiring to sell such products, and paragraph (h) against like conspiracies and combinations to hinder or prevent by intimidation, coercion, withdrawal or threatened withdrawal of patronage or custom, either express or implied, or by promises or agreements to increase such patronage or custom, any firm, partnership, or corporation, or representative thereof from buying or selling paper and paper products in interstate commerce from or to whomsoever, or at whatsoever, prices or terms may be agreed upon between the seller and the buyer, or by combination or agreement, express or implied, to communicate, directly or indirectly, with any manufacturer, wholesaler, or dealer, or representative thereof, for the purpose of inducing, coercing, or compelling such manufacturer, wholesaler, or retail dealer not to sell paper or paper products in interstate commerce to any firm, partnership, or corporation, whether or not recognized or classified by the respondents as a legitimate dealer or otherwise entitled to such purchases.
The petitioners concede that they have no right, in combination, to resort to intimidation, or coercive measures, to enforce their demands, such as blacklisting or boycotting, but they do insist that they have a right to resort to peaceable persuasion. We are not convinced, however, that there is not an element of coercion in a demand made upon wholesalers by the representatives of dealers in 75 per cent. of the paper and paper products in a number of the states. Furthermore, as said by the Supreme Court in Duplex *463 Printing Co. v. Deering, 254 U. S. 443, 41 S. Ct. 172, 65 L. Ed. 349, 16 A. L. R. 196:
"It is settled by these decisions that such a restraint produced by peaceable persuasion is as much within the prohibition as one accomplished by force or threats of force; and it is not to be justified by the fact that the participants in the combination or conspiracy may have some object beneficial to themselves or their associates which possibly they might have been at liberty to pursue in the absence of the statute."
For the foregoing reasons, paragraphs (b) and (c) of the order are reversed, paragraph (e) is reversed in so far as it forbids the mere discussion of uniform terms, discounts, and prices, and as to the remaining paragraphs the petitions are denied.
NOTES
[*] Certiorari granted 45 S. Ct. 636, 69 L. Ed. ___. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562328/ | 16 So.3d 829 (2009)
LYNDON ROOFING & CONST., LLC
v.
PEREZ.
No. 4D08-2514.
District Court of Appeal of Florida, Fourth District.
September 16, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4558391/ | Fourth Court of Appeals
San Antonio, Texas
August 19, 2020
No. 04-20-00327-CV
IN RE CHRISTUS SANTA ROSA HEALTH CARE CORP. D/B/A CHRISTUS SANTA
ROSA HOSPITAL- WESTOVER
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2019-CI-01248
Honorable Aaron Haas, Judge Presiding
ORDER
Original Mandamus Proceeding1
Sitting: Patricia O. Alvarez, Justice
Irene Rios, Justice
Liza A. Rodriguez, Justice
On June 25, 2020, this court issued a stay of the trial court’s ruling contained in
paragraph 1 of the court’s June 19, 2020 order compelling production of a February 2, 2017
12:19 a.m. email from Patrick Nguyen, MD pending final resolution of the petition for writ of
mandamus.
On August 18, 2020, relator filed an opposed second motion for temporary relief, asking
this court to stay compliance with two deposition notices and subpoenas duces tecum seeking
production of an email that is the subject of this original proceeding.
Relator’s request for a stay is GRANTED. Pending final resolution of the petition for
writ of mandamus, Patrick Nguyen, MD is not required to comply with the “Plaintiff’s Notice of
Intention to Take the Oral or Zoom Deposition of Patrick Nguyen, MD With Subpoena Duces
Tecum.” Pending final resolution of the petition for writ of mandamus, Richard Peterson, MD is
not required to comply with the “Plaintiff’s Notice of Intention to Take the Oral or Zoom
Deposition of Richard Peterson, MD With Subpoena Duces Tecum.”
1
This proceeding arises out of Cause No.2019-CI-01248, styled Debra Hoedebecke v. Christus Santa Rosa Health
Care Corp., et al.., pending in the 225th Judicial District Court, Bexar County, Texas. The Honorable Aaron S.
Haas signed the order at issue in this proceeding.
It is so ORDERED on August 19, 2020.
ATTESTED TO: _______________________
MICHAEL A. CRUZ,
CLERK OF COURT | 01-03-2023 | 08-25-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1562274/ | 960 A.2d 617 (2008)
ADOLPH COORS COMPANY and Coors Brewing Company, Appellants,
v.
TRUCK INSURANCE EXCHANGE, Appellee.
No. 07-CV-551.
District of Columbia Court of Appeals.
Argued October 28, 2008.
Decided November 26, 2008.
*619 Stephen G. Weil, with whom Mark H. Kolman and Scott N. Godes were on the brief, for appellants.
H. Thomas Watson, with whom Barry R. Levy and Christopher T. Lutz were on the brief, for appellee.
Before KRAMER and THOMPSON, Associate Judges, and FARRELL, Associate Judge, Retired.
THOMPSON, Associate Judge:
Truck Insurance Exchange ("TIE" or the "insurer") contracted to indemnify Adolph Coors Company and Coors Brewing Company (collectively, "Coors" or the "insured") for damages the insured had to pay "because of bodily injury caused by an occurrence to which this insurance applies" during the policy coverage periods. TIE further contracted to defend Coors in any suit "seeking damages on account of such bodily injury, even if any of the allegations of the suit are groundless, false, or fraudulent." Subsequently, Coors and several other alcohol manufacturers became defendants in five putative class action lawsuits[1] that included allegations of unfair business practices, unjust enrichment, negligence, civil conspiracy, and corrupt activity, all in connection with the marketing of alcoholic beverages to underage consumers.[2] TIE refused to defend Coors in these suits, *620 prompting Coors to commence the instant litigation against TIE for breach of its insurance contract (specifically, breach of the "duty to defend"). The Superior Court granted summary judgment to TIE, concluding that TIE had no duty to defend because "this Court cannot find that the lawsuits allege damages that occurred as a result of bodily harm."[3] We affirm the grant of summary judgment in favor of TIE.
I.
We review the grant of a motion for summary judgment de novo. Joeckel v. Disabled Am. Veterans, 793 A.2d 1279, 1281 (D.C.2002). Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Woodland v. District Council 20, 777 A.2d 795, 798 (D.C.2001). Thus, in examining the instant appeal, we examine whether "there is no genuine issue of material fact on which a jury could find for the non-moving party." Holland v. Hannan, 456 A.2d 807, 815 (D.C.1983).
II.
Preliminarily, we must determine whether to apply the substantive duty-to-defend law of Colorado or, instead, that of the District of Columbia in deciding the dispute before us. During the Superior Court proceedings, the parties disagreed on this issue, with Coors relying on the District's law in its motion for summary judgment, and TIE advocating application of Colorado law in its opposition. In her Order granting summary judgment to TIE, the trial judge applied Colorado law, but noted that she would have arrived at the same result under the District's law.[4]
Choice of law questions are subject to de novo review. Vaughan v. Nationwide Mut. Ins. Co., 702 A.2d 198, 200 (D.C.1997). Where a contract is silent on the matter, we conduct a "governmental interest" analysis to determine which jurisdiction's law controls the interpretation and enforcement of the contract. See Holmes v. Brethren Mut. Ins. Co., 868 A.2d 155, 157 n. 2 (D.C.2005); Vaughan, supra, 702 A.2d at 202. This analysis requires us to consider several factors, including: (1) the place of contracting; (2) the place of negotiation of the contract; (3) the place of performance; (4) the location of the subject matter of the contract; (5) the residence and place of business of the parties; and (6) the principal location of the insured risk. RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 188, 193 (1971); *621 see also Vaughan, supra, 702 A.2d. at 200-03 (citing favorably RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 187, 193).
Applying the governmental interest test, we agree with the trial court that Colorado law should govern. Coors Brewing Company both is incorporated and has its principal place of business in Colorado, and Adolph Coors Company likewise has its principal place of business there. TIE, incorporated and headquartered in California, also lacks any relevant relationship with the District of Columbia. Correspondence between the parties indicates that Colorado is where they negotiated and finalized the insurance contract and performed their contractual obligations. Moreover, the parties agreed upon a "Colorado Amendatory Endorsement" to the insurance policy, presumably for the purpose of complying with Colorado law. The District's only apparent connection to the contractual dispute is the Hakki lawsuit, the one underlying suit filed in this jurisdiction (the other suits are in the courts of Colorado, North Carolina, and Ohio). Under these circumstances, it seems clear that Colorado has a more "significant relationship" to the Coors-TIE insurance transaction than the District or any other jurisdiction. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 188(1).
III.
Under Colorado law, an insurer must defend its insured where the underlying complaint includes allegations that, "if sustained, would impose a liability on the insured that is arguably covered by the policy." Carl's Italian Rest. v. Truck Ins. Exch., 183 P.3d 636, 638 (Colo.Ct.App. 2007) (noting that an insurer's duty to defend its insured against adverse litigation is broader than its duty to indemnify the insured for any judgments resulting from such litigation); see also id. at 639 (duty to defend arises if there is "even one claim that is arguably covered by the policy"); Cotter Corp. v. Am. Empire Surplus Lines, 90 P.3d 814, 827 (Colo.2004). Colorado courts determine whether a duty to defend exists in a particular case by comparing the face of the complaint with the relevant insurance policy, which should be construed according to contract law principles. See, e.g., Hecla Mining Co. v. New Hampshire Ins. Co., 811 P.2d 1083, 1089 (Colo.1991); Bainbridge, Inc. v. Travelers Cas. Co. of Connecticut, 159 P.3d 748, 750 (Colo.Ct.App.2006) ("An insurer looks to the four corners of the complaint, together with the policy, to determine its right and duty to defend."); see also Chacon v. Am. Family Mut. Ins., 788 P.2d 748, 750 (Colo. 1990) ("An insurance policy is a contract which should be interpreted consistently with the well settled principles of contractual interpretation."). For purposes of duty-to-defend analysis, factual allegations described in the complaint are more significant than are the particular causes of action asserted. See Gerrity Co. v. CIGNA Prop. & Cas. Co., 860 P.2d 606, 607 (Colo.Ct.App.1993) ("It is, however, the factual allegations in the complaint, and not the legal claims, that determine an insurer's duty.").
Pursuant to the insurance policies at issue, TIE must defend Coors against suits "seeking damages" on account of such bodily injury or property damage [caused by an "occurrence" to which this insurance applies], even if any of the allegations of the suit are "groundless, false, or fraudulent." Bodily injury is defined in the policies as "bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom." Occurrence is defined as "an event, or series of events . . ., proximately caused by an act or omission of the insured ... which results, *622 during the policy period, in bodily injury ... neither expected nor intended from the standpoint of the insured." Thus, TIE has a duty to defend Coors only if the underlying complaints (1) can be read to allege that, through its acts or omissions, Coors caused bodily injury that was both unintentional and unexpected, and (2) seek damages on account of such bodily injury.[5]
IV.
The parties focus their disagreement on whether the underlying complaints "seek damages on account of [ ] bodily injury." Pointing to the class plaintiffs' repeated references to illnesses and accidents associated with underage drinking, Coors maintains that the complaints do seek damages on account of bodily injury and therefore trigger TIE's duty to defend. TIE counters that the complaints' allusions to alcohol-related "human suffering" are only "tangentially-related" to the stated causes of action, through which plaintiffs seek to recover for purely economic injury (i.e., the "enormous economic injuries to Plaintiffs and the classes" occasioned by "billions of dollars in family assets [being] transferred to Defendants as part of the far-reaching illegal trade in alcoholic beverages").
Clearly, the Hakki, Kreft, Eisenberg, and Tully complaints do seek relief for (two types of) non-bodily injury suffered by the class plaintiffs themselves.[6] First, the complaints allege economic injury, stating that members of the putative Guardian Class (consisting of parents and guardians whose children purchased and consumed alcohol illegally) suffered "substantial financial losses" and "injury to their business or property" when Coors procured "billions of dollars in family assets" through illicit alcohol sales to their children.[7] Second, the complaints allege that members of the putative Guardian Class and the putative Injunctive Class (consisting of parents and guardians of all children currently under age twenty-one) incur injury when "underage consumers *623 are induced to illegally consume defendants' alcoholic beverages." This second type of injury perhaps is best characterized as psychological, on the theory that it relates to the distress a parent feels when his child may be exposed to danger. Psychological harm, however, is not bodily injury "when there is no physical impact, fear of physical harm, or physical manifestation of emotional distress." Nat'l Cas. Co., supra note 7, 833 P.2d at 746 (construing an insurance policy containing the same definition of "bodily injury" that appears in the TIE-Coors contract). It appears that, in connection with the foregoing allegations, the Hakki, Kreft, Eisenberg, and Tully complaints describe alcohol-related injury and illness only in order to provide narrative detail rather than to establish a basis for recovery. Cf. Royal Ins. Co. of Am. v. Boston Beer Co., No. 1:04cv2295, 2007 WL 1072166, at *6 n. 5 (N.D.Ohio April 5, 2007) (reading allegations, similar to those in the complaints before us, of "hundreds of thousands of [alcohol-related] deaths, injuries, and illnesses" as "mere[ ] extraneous background references").
There is, however, another possible reading of the complaints one that we must consider since we are obligated to construe the underlying complaints in favor of the insured Coors[8] that could trigger TIE's duty to defend. At least arguably, the underlying complaints can be read to seek redress for "thousands of [alcohol-related] deaths, injuries, and illnesses" to underage drinkers and the public at large i.e., redress for bodily injury "sustained by any person." (emphasis added). We may assume that claims by class plaintiffs seeking to vindicate the rights of the general population are vulnerable to dismissal on grounds of standing. See, e.g., Adams v. Land Servs., Inc., 194 P.3d 429, 433 (Colo.Ct.App.2008). But the likelihood of success of the underlying complaints does not determine TIE's duty to defend, because TIE promised to defend Coors even against suits that are "groundless, fraudulent, or false."
To our knowledge, Colorado courts have not opined on whether a complaint against an insured that asserts a claim for which the plaintiff lacks standing e.g., a complaint in which the plaintiff seeks a legal remedy for bodily injuries suffered by the general population triggers an insurer's duty to defend under a policy like the one at issue. But a court elsewhere, albeit in an unpublished opinion, has suggested that the answer to that question could be "yes." See Scottsdale Ins. Co. v. Nat'l Shooting Sports Found., Inc., No. 99-31046, 2000 WL 1029091 (5th Cir. July 11, 2000) (explaining, in a case involving an insurer's duty to defend its insured in handgun liability actions filed by municipalities, that "[w]e reject [the insurer's] contention that [the] `because of bodily injury' provision requires that the plaintiff seeking damages be the one who suffered the bodily injury"). Because we cannot confidently conclude that Colorado courts would hold that TIE has no duty to defend suits seeking redress for bodily injury sustained by any person, we proceed to consider what TIE has argued is the second reason why the underlying suits did not trigger the duty to defend.[9]
*624 V.
If the underlying complaints allege that Coors' acts or omissions resulted in harm that was "not expected or intended," TIE must provide a defense, but if they allege "expected" or "intended" harm, TIE has no duty to defend. Coors argues that there is a duty to defend because the inclusion of a negligence count in each of the complaints establishes that the underlying plaintiffs sought relief from the unintended effects of Coors' allegedly unreasonable acts. But, viewing the complaints in their entirety, we do not believe it is even "arguable" that the class plaintiffs sought relief on account of injuries that, from Coors' perspective, were unexpected or unintended. See Compass, supra note 6, 984 P.2d at 613-14.
To begin with, the complaints unambiguously characterize Coors' conduct as purposefully harmful. Each complaint begins with an accusation that Coors and other alcohol manufacturers injured the class plaintiffs through the operation of "a long-running, sophisticated, and deceptive scheme ... to market alcoholic beverages to children and other underage consumers" in order to "generate billions of dollars per year in unlawful revenue."[10] Underscoring the point, several of the class complaints specifically disclaim concern with "the incidental exposure of children to alcoholic beverage advertising that is properly and reasonably directed to adults."[11] The lawsuits instead "seek[ ] redress only for the deliberate and reckless targeting of underage consumers." (emphasis added). Accordingly, notwithstanding the pleading of a negligence claim,[12] it is clear that the *625 underlying litigation exclusively targeted Coors' intentional conduct.
Second, even if, as Coors contends, the complaints do not suggest that Coors "wanted to hurt minors" through its intentional acts, that argument does not advance Coors' position. This is because Colorado's duty-to-defend jurisprudence does not distinguish between the desire to engage in activity that is harmful, and the desire to actually cause harm. See, e.g., Hecla, supra, 811 P.2d at 1088. In Hecla, the Colorado Supreme Court interpreted an insurance agreement which, like the policies at issue, defined covered "occurrences" as including only those acts or omissions for which injury was "neither expected nor intended" from the standpoint of the insured. The court held that this language should be read to exclude coverage only for results "that the insured knew would flow directly and immediately from its intentional act." Id. Here, the complaints state, for example, that alcoholic beverages are "unusually dangerous products which are a well established cause of numerous injuries, illnesses, and deaths ..." and allege that Coors employed a long-running and sophisticated scheme "to market alcoholic beverages to children" despite the common knowledge that underage drinking is dangerous. They assert that Coors attempted to "conceal" and "disguise" its activities, implying that Coors and other alcohol manufacturers understood, and therefore sought to hide, the potential for harm.
Thus, under any reasonable reading, the complaints allege that Coors knew that underage drinking and its accompanying dangers "would flow directly and immediately" from its actions. Whether Coors maliciously wished harm upon underage consumers or, more precisely, whether the underlying complaints accuse it of such malice is irrelevant. See Fire Ins. Exch. v. Bentley, 953 P.2d 1297, 1301 (Colo.Ct. App.1998) (concluding that insured's purposeful tape-recording and broadcasting of a sexual encounter fell within insurance policy's intentional acts exclusion because injury was "reasonably foreseeable as a matter of law" even if insured did not "intend[ ] to injure"); see also Cotter, supra, 90 P.3d at 823 ("an insured's expectation of damage [to the environment] is irrelevant, and the only necessary inquiry is whether the discharge [of contaminants] was unexpected and unintended").
Because the underlying complaints allege and seek relief on account of injury that resulted from Coors' intentional commission of harmful acts, we hold that they did not trigger TIE's duty to defend. Accordingly, the order of the trial court entering summary judgment in favor of TIE is
Affirmed.
NOTES
[1] The five lawsuits are Hakki v. Zima Co. ("Hakki"), Wilson v. Zima Co. [("Wilson")], Kreft v. Zima Beverage Co. ("Kreft"), Eisenberg v. Anheuser-Busch, Inc. ("Eisenberg"), and Tully v. Anheuser-Busch, Inc. ("Tully"). Because the plaintiffs in these suits assert virtually identical allegations against Coors, we refer to them collectively, using the terms "underlying suits," "underlying plaintiffs," "class plaintiffs," and "underlying complaints."
[2] Five additional lawsuits that are similar to the underlying suitsBertovich v. Advanced Brands & Importing Co., Tomberlin v. Adolph Coors Company, Sciocchetti v. Advanced Brands & Importing, Konhauzer v. Adolph Coors Company, and Alston v. Coors named Coors as a defendant after Coors initiated its action against TIE. During the trial court proceedings, Coors noted this development in its statement of material facts not in dispute and in its brief in support of its motion for summary judgment against TIE. However, Coors did not amend its complaint or specifically assert that it sought a judgment with respect to TIE's duty (vel non) to defend against these later suits, and the trial court's summary judgment order referred only to five underlying suits. Because the trial court did not decide the duty-to-defend issue with respect to these later suits, that issue is not before us. But, obviously, to the extent the complaints in those matters mirror the complaints in the five underlying suits, our decision may be instructive.
[3] The trial judge, the Honorable Natalia Combs Greene, reasoned that:
[T]he complaints in question, while suggesting (or stating) that the representative plaintiffs (or their purported class members) have suffered bodily injuries as a result of the conduct of Coors, exclude any such injuries in the prayer for relief. Because plaintiffs, in their underlying complaints, specifically limited their alleged damages to monetary damages caused to the plaintiffs (and thereby their representative class), this Court cannot find that the lawsuits allege damages that occurred as a result of bodily harm.
[4] The parties' briefs on appeal cite authority from both jurisdictions, but at oral argument their counsel appeared to agree that the trial judge did not err in applying Colorado law.
[5] TIE also has a duty to indemnify, and a corresponding duty to defend, with respect to suits arising out of property damage. However, Coors does not assert that the property damage provisions of the insurance policies give rise to a duty to defend the underlying suits.
[6] The complaints refer, for example, to "[t]he injuries suffered by the plaintiff classes," and to it being "reasonably foreseeable that underage consumers would be induced to illegally [consume alcohol] ... and that the Classes would be injured thereby."
The trial judge focused her analysis on the complaints' specific prayers for relief, and reasoned that "[b]ecause plaintiffs ... specifically limited their alleged damages to monetary damages ... this Court cannot find that the lawsuits allege damages that occurred as a result of bodily harm." We decline to rest our decision on the type of remedies sought through the underlying suits, because that may not be dispositive under Colorado's duty-to-defend case law. See Compass Ins. Co. v. City of Littleton, 984 P.2d 606, 622-23 (Colo. 1999) (en banc) (declining to draw a bright-line distinction between legal and equitable remedies). And, in any event, each of the underlying complaints seeks multiple types of relief, including "actual damages [arising from negligence] ... in an amount to be established at trial," restitution, and disgorgement of profits.
[7] Such economic harm quite obviously is not "bodily injury." Cf. Miller v. Triad Adoption & Counseling Serv., Inc., 133 N.M. 544, 65 P.3d 1099, 1104 (Ct.App.2003) ("the financial injury alleged in the complaint ... is not a `bodily injury' [for purposes of the insurer's duty to defend the insured]"); Rolette County v. W. Cas. & Sur. Co., 452 F. Supp. 125, 130 (D.N.D.1978) ("The use of the term `bodily injury' in the [insurance] policy ... does not include nonphysical harm to the person"), cited in Nat'l Cas. Co. v. Great Southwest Fire Ins. Co., 833 P.2d 741, 746 (Colo. 1992).
[8] See Compass Ins. Co., supra note 6, 984 P.2d at 613-14 ("Where . . . there is some doubt as to whether a theory of recovery within the policy coverage has been pleaded, the insurer must accept the defense of the claim.").
[9] Moreover, Coors has a viable argument that the Wilson complaint (see note 1, supra) does seek damages "because of bodily injury" to one of the plaintiffs in that suit. Plaintiff Joseph Wilson alleges that he personally consumed alcohol while under the age of twenty-one, and the complaint implies that he is among the underage drinkers who may have suffered "bodily injury" insofar as "alcohol consumption causes brain damage."
[10] Filling out the remainder of the complaints are charges that Coors and its co-defendants "engage in active, deliberate, and concerted efforts to maximize their profits," "use [] code words to conceal and disguise research and marketing efforts directed at children," "believe that it is crucial to establish [an alcohol] brand preference at a very early age," "knowingly and deliberately place their print advertisements in publications which are disproportionately read by underage consumers," "knowingly and deliberately design and operate their web sites to appeal to underage consumers," and "knowingly and purposely sell and distribute apparel, toys, and other logo merchandise designed to appeal to underage consumers." More succinctly, Coors is said to "wilfully, intentionally, recklessly, and negligently engage[] in extensive unfair and deceptive marketing efforts," "routinely and intentionally advertise[] its alcoholic beverage products in [youth-oriented] publications," and make "false, unfair, and deceptive representations that its advertising and marketing efforts are in compliance with [the alcohol industry's ethical guidelines]."
The complaints' "negligence" counts continue the theme, asserting not that the alcohol manufacturers "failed" to exercise due care, but that they "refuse[d] to take reasonable steps" to avoid "inducing" consumption of their products by underage individuals. See, e.g., People v. Anyakora, 162 Misc. 2d 47, 616 N.Y.S.2d 149, 152 (N.Y.Sup.Ct.1993) ("Fail" means "involuntarily to fall short of success [but] `[r]efusal' . . . implies the positive denial of an application or command, or at least a mental determination not to comply") (internal citations and quotations omitted).
[11] Kreft: ¶ 4, JA 449; Eisenberg: ¶ 4, JA 479; Tully: ¶ 4, JA 548.
[12] See Lopez ex. rel. Lopez v. Am. Family Mut. Ins. Co., 148 P.3d 438 (Colo.Ct.App.2006) (insurer had no duty to defend under intentional acts exclusion where underlying plaintiff's complaint pled negligence but stated only that insured's minor son had shot plaintiff three times); Horace Mann Ins. Co. v. Peters, 948 P.2d 80, 85 (Colo.Ct.App.1997) (complaint alleging sexual assault by the insured fell within the "intentional acts" exception to insurer's duty to defend, despite its inclusion of negligence claims); Colorado Farm Bureau Mut. Ins. Co. v. Snowbarger, 934 P.2d 909, 911 (Colo.Ct.App.1997) (same) (relying on Allstate Ins. Co. v. Troelstrup, 789 P.2d 415 (Colo. 1990)); Gerrity, supra, 860 P.2d at 608 (holding that, in light of the facts it stated and despite its multiple references to "negligent" acts, plaintiff's complaint gave rise only to a breach of contract action against the insured). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2747352/ | Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 31, 2014
The Court of Appeals hereby passes the following order:
A15A0500. WILLIE LEE MANN v. THE STATE.
Willie Lee Mann was convicted of felony murder. Following the denial of his
motion for new trial, Mann appealed to this Court. Under our Constitution, however,
the Supreme Court has appellate jurisdiction over “[a]ll cases in which a sentence of
death was imposed or could be imposed.” See Ga. Const. of 1983, Art. VI, Sec. VI,
Par. III (8). Because a penalty of death can be imposed for the crime of murder,
jurisdiction is proper in the Supreme Court. See OCGA § 17-10-30 (b); Neal v. State,
290 Ga. 563, 572 (722 SE2d 765) (2012) (Hunstein, J., concurring); see also State v.
Thornton, 253 Ga. 524 (322 SE2d 711) (1984) (directing this Court to transfer “all
cases in which either a sentence of death or of life imprisonment has been imposed
upon conviction of murder”). Accordingly, Mann’s appeal is hereby
TRANSFERRED to the Supreme Court for disposition.
Court of Appeals of the State of Georgia
10/31/2014
Clerk’s Office, Atlanta,____________________
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk. | 01-03-2023 | 10-31-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1562300/ | 4 F.2d 627 (1925)
In re SNYDER.[*]
McCOLGAN
v.
CLARK.
No. 4379.
Circuit Court of Appeals, Ninth Circuit.
March 30, 1925.
Keyes & Erskine, of San Francisco, Cal., for petitioner.
H. W. Glensor, Ernest Clewe, Melville E. Van Dine, and E. J. Talbott, all of San Francisco, Cal., for respondent.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
*628 RUDKIN, Circuit Judge.
November 16, 1917, one Snyder was adjudicated a voluntary bankrupt. December 1, 1917, a trustee of the estate was elected and appointed. January 15, 1918, the trustee filed his report, showing no assets, other than $100 of exempt property, and on the same day the report of the trustee was approved, the trustee discharged, and the estate closed. February 2, 1918, an order of discharge was entered. October 3, 1923, the estate was reopened on ex parte application of one claiming to be a creditor of the bankrupt. The petition to reopen alleged:
"That the estate of said bankrupt has not been fully administered, and in this behalf your petitioner alleges: That since the closing of said estate and the discharge of said trustee your petitioner has learned that said bankrupt had at the time he filed herein his said petition in bankruptcy, and ever since has had and owned, an interest in certain real property situated in the city of Los Angeles, county of Los Angeles, state of California, of the value of over fifty thousand ($50,000.00) dollars, which property has never been scheduled or administered on in said estate, and which said property should have been scheduled as an asset of said bankrupt; that your petitioner has just discovered the existence of said assets, and is unable to state why said assets of said bankrupt were never scheduled; that your petitioner's claim remains and is wholly unpaid, unsatisfied, and undischarged, and can be fully paid if said estate of said bankrupt is reopened and said assets administered on."
October 15, 1923, the petitioner, McColgan, moved the court to vacate and set aside the order reopening the estate. The petition to vacate was supported by an affidavit setting forth that the petitioner is the owner and seized in fee simple absolute of a vested remainder in fee in the property referred to in the petition to reopen; that the bankrupt has no right, title, or interest therein; that the petition to reopen was not filed within the time limited by law, and other matters not deemed material here. The petition to vacate was heard on affidavits and denied, and the case has been brought here by petition to review. The petitioner has adopted the proper practice, because the ex parte order was not subject to review in this court by petition for review or otherwise. "Although it is sometimes otherwise under a statute, the general rule is that no appeal lies from an ex parte judgment or order, the proper remedy being to apply to the court to have such judgment or order set aside, and then, if the application is denied, to take an appeal from the denial." 3 C. J. 608.
The respondent has interposed a motion to dismiss, on the ground that the petitioner has no interest in the proceeding to reopen the estate. The question thus presented is by no means free from doubt. "The appellant's interest, to suffice, must be a direct and immediate pecuniary interest in the particular cause, and it is not sufficient that he is interested in the question litigated, or that, by the determination of the question litigated, he may be a party in interest to some other suit, growing out of the decision of that question." Id. 625.
If the order reopening the estate is permitted to stand, a new trustee may be elected or appointed, and, if a new trustee is appointed, the referee may authorize him to prosecute an action against the petitioner. In no other way can the petitioner be affected by the order complained of; but, if his fears are realized in that regard, it can only result in the bringing of an action against him by the trustee, and in that action he can interpose every objection here made, and every other defense available under the law. Kinder v. Scharff, 231 U.S. 517, 34 S. Ct. 164, 58 L. Ed. 343. If the petitioner has a legal right to review an order of this kind, we see no reason why every person, against whom a suit is authorized by a referee in bankruptcy, may not review the order authorizing the suit, even up to the Circuit Court of Appeals.
But we need not base our decision upon that ground alone. The only question we are asked to review is the sufficiency of the petition to reopen. If this was a case where the complaint or petition must be sufficient in law to support the judgment or order complained of, there is merit in the contention made. But such is not this case. "We do not wish to be understood as holding that the petition to reopen an estate once closed must be of any formal or technical character. Such is not necessary, and in the practical administration of the bankruptcy act is not advisable, but such petition must be either in itself, or in connection with supporting affidavits, of such persuasive character as to reasonably satisfy the court of the requisite jurisdictional fact, namely, that there are some assets belonging to the bankrupt which have not been administered." In re Newton, 107 F. 429, 46 Cow. C. A. 399.
*629 Defects or omissions in the petition to reopen may be supplied by supporting affidavits, and there is no reason why the supporting affidavits may not follow as well as precede the order. In other words, if it appeared to the satisfaction of the court below, on the hearing of the motion to vaacte, that there are assets belonging to the bankrupt which have not been administered, that court would be amply justified in permitting the order to reopen to stand, as it would be an idle formality to vacate the old order and enter a new one. Neither the findings of the court below on the hearing of the motion to vacate, if any, nor the affidavits used on that hearing, have been brought here, and, in the absence of either the one or the other, we must presume that the order under review was justified by the facts.
The petition to revise is therefore dismissed.
NOTES
[*] Rehearing denied May 4, 1925. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1540162/ | 974 A.2d 68 (2009)
115 Conn.App. 675
Karen A. MURPHY
v.
CITY OF STAMFORD et al.
No. 30168.
Appellate Court of Connecticut.
Argued April 20, 2009.
Decided July 14, 2009.
*69 Karen A. Murphy, pro se, the appellant (plaintiff).
Kenneth B. Povodator, assistant corporation counsel, with whom, on the brief, was Thomas M. Cassone, corporation counsel, for the appellee (named defendant).
Robert G. Rafferty filed a brief for the appellee (defendant DeRosa Tennis Contractors, Inc.).
BISHOP, LAVINE and BORDEN, Js.
PER CURIAM.
The pro se plaintiff, Karen A. Murphy, appeals from the judgment of the trial court dismissing her action against the defendants, the city of Stamford (city) and DeRosa Tennis Contractors, Inc. On appeal, the plaintiff claims that the court improperly concluded that she lacked standing to challenge the city on the ground that it had exceeded its spending and bonding authority under the city charter when it made payments under a $5.7 million contract for the construction of four synthetic soccer fields. After reviewing the record and the briefs of the parties and listening to their oral arguments, we conclude that the court properly granted the city's motions to dismiss. We therefore affirm the judgment of the trial court.
In this action, the plaintiff sought declaratory and injunctive relief relating to the installation of artificial turf on playing fields in three locations in the city by virtue of her status as a taxpayer, claiming that she will suffer an increase in taxes she must pay. The city filed motions to dismiss, claiming that the plaintiff lacked standing to bring the claims. Whether the plaintiff has standing, is a threshold issue.
*70 "Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. . . ." Practice Book § 10-30. "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter. . . ." (Internal quotation marks omitted.) Sadloski v. Manchester, 235 Conn. 637, 646 n. 13, 668 A.2d 1314 (1995). "[S]tanding . . . implicates a court's subject matter jurisdiction, which may be raised at any point in judicial proceedings." Stamford Hospital v. Vega, 236 Conn. 646, 656, 674 A.2d 821 (1996).
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action. . . ." (Internal quotation marks omitted.) In re Shawn S., 262 Conn. 155, 164, 810 A.2d 799 (2002). "Standing is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy. . . ." (Internal quotation marks omitted.) Water Pollution Control Authority v. OTP Realty, LLC, 76 Conn.App. 711, 714, 822 A.2d 257 (2003). The "plaintiff has the burden of proving standing." Sadloski v. Manchester, supra, 235 Conn. at 649, 668 A.2d 1314. West Farms Mall LLC v. West Hartford, 279 Conn. 1, 901 A.2d 649 (2006), controls the issue of taxpayer standing in this case.
"The plaintiff's status as a taxpayer does not automatically give [it] standing to challenge alleged improprieties in the conduct of the defendant town. . . . The plaintiff must also allege and demonstrate that the allegedly improper municipal conduct cause[d it] to suffer some pecuniary or other great injury. . . . It is not enough for the plaintiff to show that [its] tax dollars have contributed to the challenged project. . . . [T]he plaintiff must prove that the project has directly or indirectly increased [its] taxes . . . or, in some other fashion, caused [it] irreparable injury in [its] capacity as a taxpayer." (Internal quotation marks omitted.) Id., at 13, 901 A.2d 649.
In Seymour v. Region One Board of Education, 274 Conn. 92, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S.Ct. 659, 163 L.Ed.2d 526 (2005), in which the plaintiff challenged a tax abatement, our Supreme Court stated that "[b]ecause standing is a practical concept, common sense suggests that a taxpayer who challenges a part of a particular governmental program must demonstrate [its] injury in the entire fiscal context of that program, taking into account both the burdens and benefits of the program, and not just by demonstrating that the presumably burdensome part of the program itself, divorced from the larger program of which it is a part, causes injury." (Internal quotation marks omitted.) Id., at 103, 874 A.2d 742. To assert taxpayer standing, a more stringent standard is imposed than is required to invoke standing on the basis of classical aggrievement. West Farms Mall, LLC v. West Hartford, supra, 279 Conn. at 14, 901 A.2d 649. Beginning at least in 1943; see Cassidy v. Waterbury, 130 *71 Conn. 237, 245, 33 A.2d 142 (1943); our Supreme court articulated a two-pronged standard proof for taxpayer standing: "taxpayer status and conduct that has caused or will cause increased taxes or other irreparable injury. . . ." West Farms Mall, LLC v. West Hartford, supra, at 14, 901 A.2d 649.[1]
In this case, the plaintiff claimed that her taxes probably would increase due to the cost of installing the new artificial surfaces on the playing fields. Although the plaintiff established that she is a taxpayer of the city, the court found that she did not sustain her burden of proof that the installation of the artificial surface caused or will cause increased taxes or other irreparable injury to her. She ignored the evidence presented by the defendants that the ordinary cost of maintaining the fields in their present condition also would cost her money. The plaintiff did not prove that the cost of installing the new artificial surface would exceed the cost of maintaining the present surface.
The plaintiff also claimed that the city violated § C6-30-13 of the city charter in that the project to install the artificial surface was not referred to the city's planning board. The court again was guided by West Farms Mall LLC v. West Hartford, supra, 279 Conn. at 1, 901 A.2d 649, and Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 427 A.2d 822 (1980), in resolving this claim. Our Supreme Court has "long recognized the capacity of taxpayers of towns and cities to challenge the legality of the actions of their municipal officers by seeking injunctive relief against such action. . . . Such actions may also be brought where the alleged improper action is that of a quasi-municipal corporation. . . . Absent the existence of another special legal relationship. . . however, this court has not recognized the capacity of an individual or a private corporation that has not alleged taxpayers' status to maintain an action challenging the propriety of the conduct of a municipal corporation. We have said that a party's status as a taxpayer, without a demonstration by him of some tangible injury, does not by itself confer standing upon him where the defendant is a municipal corporation. . . .
"Thus, our cases in this area have required two conditions for the maintenance of actions seeking to challenge municipal conduct: (1) the plaintiff must be a taxpayer of the defendant municipal entity; and (2) the plaintiff must allege and demonstrate that the alleged improper municipal conduct causes him to suffer some pecuniary or other great injury. . . . The first condition ensures that there be some legal relationship or nexus between the plaintiff and the municipal entity that establishes the municipality's duty to expend or allocate tax monies in a manner consistent with law. . . . The second condition ensures that our courts will be called upon to decide matters in which the litigants have a specific, legal interest, as distinguished from a mere general interest, in the subject matter of the controversy." (Citations omitted; internal quotation marks omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra, 179 Conn. at 548-49, 427 A.2d 822.
The court concluded that the plaintiff in this case had failed to establish her standing as a taxpayer and had failed to demonstrate *72 that the allegedly improper municipal conduct caused her to suffer some pecuniary or other great injury. The court found that the city had presented evidence that the cost of maintaining the fields as they are presently configured was, in fact, more costly than the installation of the artificial surfaces given the need for repeated repair each year. The court found the testimony of the city's witnesses to be more credible than the plaintiff's arguments.
The judgment is affirmed.
NOTES
[1] In light of the facts of West Farms Mall, LLC, our Supreme Court declined "to determine expressly whether a taxpayer has standing to assert a claim predicated on misappropriation of public funds and, if so, what, if any, prerequisites the taxpayer must establish to prevail." West Farms Mall, LLC v. West Hartford, supra, 279 Conn. at 23, 901 A.2d 649. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562382/ | 960 A.2d 405 (2008)
404 N.J. Super. 16
Antonia VERNI, an infant, by her guardian ad litem, Albert BURSTEIN, and Fazila Baksh Verni, Individually, Plaintiffs-Respondents,
v.
Daniel R. LANZARO, Ronald A. Verni, The New Jersey Sports & Exposition Authority, New York Giants, Giants Stadium, Shakers, The Gallery, Michael Holder, Elrac, Inc. d/b/a Enterprise Rental Car, Toyota Motor North America, Inc., Paul Smith, National Football League, and Paul Tagliabue-Commissioner, Defendants, and
Harry M. Stevens, Inc. of New Jersey, Aramark Services Management of New Jersey, Inc., Aramark Corporation, and Aramark Sports and Entertainment Group, Inc., Defendants-Respondents, and
Public Citizen, Intervenor-Appellant.
No. A-1816-07T3
Superior Court of New Jersey, Appellate Division.
Argued October 8, 2008.
Decided December 3, 2008.
*407 Alan Y. Medvin, Newark, argued the cause for appellant (Medvin & Elberg and Public Citizen Litigation Group, attorneys; Mr. Medvin and Gregory A. Beck, on the brief).
David A. Mazie, Roseland, argued the cause for respondents Antonia Verni, by her guardian ad litem, Albert Burstein, and Fazila Verni (Mazie Slater Katz & Freeman, LLC, attorneys; Mr. Mazie and David M. Freeman, on the brief).
David W. Field, Roseland, argued the cause for respondents Harry M. Stevens, Inc. of N.J. and Aramark Services Management of N.J., Inc. (Lowenstein Sandler PC, attorneys; Mr. Field and Priya R. Masilamani, on the brief).
Before Judges CUFF, FISHER and BAXTER.
The opinion of the court was delivered by
CUFF, P.J.A.D.
Antonia Verni suffered catastrophic injuries in an automobile accident. She is now a ventilator-dependent quadriplegic who will require significant medical care her entire life. She was two years old at the time of the accident in 1999. Her mother, Fazila Verni, also suffered serious injuries in this accident. She has recovered from these injuries. The driver of the car that collided with the car driven by Antonia's father was intoxicated, having consumed copious amounts of alcohol in the parking lot of Giants Stadium prior to a football game and inside the stadium during the game.
Antonia and her mother commenced a civil action against the driver of the other vehicle, the dispenser of alcoholic beverages inside the stadium, the owner and operator of the stadium, the National Football League and its commissioner, two other bars at which the other driver stopped after the game, and the driver's companion. Several defendants settled the claims against them prior to trial. A jury trial accompanied by extensive publicity commenced on December 20, 2004. In mid-January 2005, the jury returned a verdict in favor of Antonia and her mother in the aggregate amount of $109,667,750 against defendants Harry M. Stevens, Inc. of New Jersey (Harry M. Stevens), the holder of the license to sell alcoholic beverages at Giants Stadium, and defendant Aramark Services Management of New Jersey, Inc., Aramark Corporation, and Aramark Sports and Entertainment Group, Inc. (Aramark). Harry M. Stevens was a wholly owned subsidiary of Aramark. This court reversed the verdict and remanded the matter for a new trial. Verni ex rel Burstein v. Harry M. Stevens, 387 N.J.Super. 160, 903 A.2d 475 (App.Div. 2006), certif. denied, 189 N.J. 429, 915 A.2d 1052 (2007).
Prior to commencement of the new trial, Antonia and her mother reached a settlement with Aramark. They applied for an order to seal the amount and terms of the settlement but not the fact of a settlement. The motion was unopposed but plaintiffs presented the testimony of Antonia's guardian ad litem who explained the reasons for the application. On June 7, 2007, the judge entered a consent order that provided "the balance of all proceedings *408 in this matter shall be filed under seal and the Clerk is hereby instructed to accept any and all filings under seal."
The order was accompanied by an opinion in which the judge explained his ruling. He related that Antonia's father, Ronald Verni, had misappropriated funds received from settlements earlier in the litigation from other defendants. He found that protection of the settlement funds was an important government interest. He also noted that a history of domestic violence required issuance of a restraining order. He reasoned that sealing the record of the settlement minimized the chances that Antonia's father, who is estranged from the family, would return to New Jersey. For these reasons, the judge concluded that "sealing the balance of the record ... is clearly justified." That opinion and the tape of the reading of the opinion were included within the sealing order.
On October 10, 2007, Public Citizen filed a motion to intervene and to unseal the record. By order dated November 16, 2007, the court granted the motion to intervene but denied the motion to remove the seal. The judge released his previously sealed June 7 opinion to enable the parties to "understand the rationale and reasons why the settlement and the hearings themselves must remain sealed." It is from this order that Public Citizen appeals.
Public Citizen argues that the common law, rules of court, and the First Amendment of the United States Constitution recognize the need for open court records and court proceedings. It also contends that a court record or court proceeding may be sealed only to protect a substantial interest, and the Verni family's articulated interest in privacy does not justify the June 7 order. Public Citizen also maintains that the order is overbroad and that the countervailing public interest in dissolving the seal is strong.
Antonia and her mother respond that the order was appropriate under the circumstances of this case. They emphasize that they have identified a specific harm that militates against indiscriminate dissemination of information about the ultimate disposition of the case. Aramark argues that the sealing order advances the individual and public interests in assuring the preservation of the settlement fund for Antonia's needs.
There has been some uncertainty about the scope of the June 7 order. Plaintiffs suggested that it was meant to seal only orders, documents and testimony relating to the settlement of the personal injury matter and was not intended to encompass a fee dispute between plaintiffs' initially retained attorney and substituted trial counsel. Public Citizen argued that all proceedings from June 1, 2007, when the "friendly" proceeding[1] was conducted and Antonia's guardian ad litem testified, through the ultimate resolution of the fee dispute remained sealed.
The terms of the June 7, 2007 order are not confined to the settlement of the personal injury claims of Antonia and her mother. Public Citizen filed a motion to supplement the record with certain documents, including a copy of the docket sheet for this matter. We have granted that motion and the docket sheet confirms our interpretation of the June 7 order. That is, all proceedings and all documents filed in conjunction with this matter since June 1, 2007, have been placed under seal.
The breadth of the June 7 order is inconsistent with the principles guiding the imposition of a seal on judicial proceedings. Furthermore, given the wide-ranging *409 publicity and comment generated by the accident and attendant litigation, plaintiffs have failed to demonstrate that their concerns for privacy outweigh the strong presumption of access to court records.
Rule 1:2-1 directs that all proceedings in the courts of this State shall be conducted in open court. Pertinent to the issues in this case, the rule provides that no record of any proceeding may be sealed except on a showing of good cause. This requirement has its roots in our common law aversion to and distrust of secret trials. Sheppard v. Maxwell, 384 U.S. 333, 349-50, 86 S.Ct. 1507, 1515, 16 L.Ed.2d 600, 613 (1966); Smith v. Smith, 379 N.J.Super. 447, 451, 879 A.2d 768 (Ch.Div. 2004). Moreover, our Supreme Court has acknowledged that the First Amendment, the history of this State, and our court rules require that civil proceedings shall be open to the public unless "an important state interest is at stake." N.J. Div. of Youth & Family Servs. v. J.B., 120 N.J. 112, 127, 576 A.2d 261 (1990).
In Hammock v. Hoffmann-LaRoche, Inc., 142 N.J. 356, 662 A.2d 546 (1995), Public Citizen, the intervenor in this case, sought access to material filed with the court in support of and in opposition to certain motions in a pharmaceutical products liability case. Some of the documents attached to the motion papers were subject to a protective order. Id. at 361, 662 A.2d 546. The Court noted that the good cause requirement of Rule 1:2-1 is not defined; therefore, it announced guidelines for deciding when the public should have access to documents filed with the court during the course of litigation. In doing so, the Court summarized its review of precedent and noted that "[t]here is a presumption of public access to documents and materials filed with a court in connection with civil litigation." Id. at 375, 662 A.2d 546. The right to access is not absolute and a court may craft an appropriate protective order. Ibid. The party or person seeking to overcome the presumption in favor of public access bears the burden to convince a court that the interest in secrecy outweighs this presumption. Id. at 375-76, 662 A.2d 546. Finally, a reasonableness standard applies when a person or party seeks to rebut the presumption of openness. Id. at 376, 662 A.2d 546.
The Court proceeded to recognize a "profound public interest when matters of health, safety and consumer fraud are involved" that is independent of the interest of the parties to the litigation. Id. at 379, 662 A.2d 546. Therefore, a judge must carefully scrutinize an application to seal records or documents "in a high public-interest case." Ibid.
Moreover, although the decision to seal or unseal documents is vested in the discretion of the judge, that discretion is not unfettered. Id. at 380, 662 A.2d 546. In fact, the Court stated that it should be "structured." Ibid. The Court held that dispositive motions, such as summary judgment motions, require public access, ibid., and further directed that a judge must utilize "a flexible balancing process adaptable to different circumstances ... to determine whether the need for secrecy substantially outweighs the presumption of access." Id. at 381, 662 A.2d 546 (emphasis supplied). In addition, "the person who seeks to overcome the strong presumption of access must establish by a preponderance of the evidence that the interest in secrecy outweighs the presumption. The need for secrecy must be demonstrated with specificity as to each document." Ibid.
The Court also emphasized that the use of a protective order at one stage of the proceeding does not create a presumption that the order is required in perpetuity. Therefore, the proponent of a sealing order *410 must demonstrate the current need for such protection. Id. at 382, 662 A.2d 546. Finally, the judge "must examine each document individually and make factual findings with regard to why the presumption of public access has been overcome." Ibid.
In Lederman v. Prudential Life Insurance Co., 385 N.J.Super. 307, 897 A.2d 362 (App.Div.2006), this court addressed a motion by intervenor media companies to unseal the record in civil litigation commenced by former employees against their employer and the law firm that had represented the employees in alternate dispute resolution. We recognized not only the common law right of access to judicial proceedings and to inspect judicial records but also the First Amendment right of the media intervenors to access civil and criminal proceedings. Id. at 315-16, 897 A.2d 362. Applying the guidelines announced in Hammock, we held that the employer's interest in vindicating a contractual confidentiality agreement with its employees did not override or outweigh the presumption in favor of public access. Id. at 317-18, 897 A.2d 362. We noted that the employer had failed to show "a specific, serious injury that would result from lifting the seal." Id. at 319, 897 A.2d 362. Indeed, the complaint filed by the former employees was widely disseminated to the public through the internet and news media when it was filed with the court. Id. at 321, 897 A.2d 362. Furthermore, the former employees' allegations that their employer engaged in business practices discouraging the sale of its products to minorities and had compromised their attorney-client relationship raised issues of significant public interest and importance. Id. at 312-13, 322, 897 A.2d 362.
A personal interest in privacy and freedom from annoyance and harassment, while important to the litigant, will not outweigh the presumption of open judicial proceedings even in relatively uncomplicated and non-notorious civil litigation. Zukerman v. Piper Pools, Inc., 256 N.J.Super. 622, 628-29, 607 A.2d 1027 (App.Div.), certif. denied, 130 N.J. 394, 614 A.2d 617 (1992). On the other hand, when an application is filed with a court that pertains to a purely private matter, an order sealing the submissions may be appropriate. See In re Trust Created by Johnson, 299 N.J.Super. 415, 423, 691 A.2d 391 (App. Div.1997) (financial information submitted to the trustees in support of a discretionary distribution from a trust created for the benefit of the beneficiary and her family may be sealed because of the absence of any meaningful public interest in a private trust dispute).
Measured by these principles and guidelines, the June 7 order must be vacated. The breadth of the order is entirely inconsistent with the guidelines articulated in Hammock and recently reiterated in Lederman. While the judge may have intended the order to apply only to the terms of the settlement agreement and the transcript of the guardian ad litem's June 1, 2007 testimony, its express terms are without limitation. As noted, the order has been applied to seal all proceedings subsequent to that date and prevents the public from obtaining information about the resolution of the fee dispute between the attorneys. Without an event-by-event and document-by-document review, such a sweeping order cannot stand.
The seal of the proceedings associated with the settlement of the litigation, including the testimony of the guardian ad litem and the settlement documents, fares no better. Plaintiffs have advanced no reasons for sealing the settlement proceedings and documents other than a simple desire for privacy. They have presented evidence of Ronald Verni's past behavior that includes acts of domestic violence and *411 misappropriation of settlement funds. Based on his past behavior, plaintiffs argue that revelation of the amount of the settlement may entice Ronald Verni to return to New Jersey and attempt to obtain a portion of the settlement proceeds.
We do not minimize the gravity of Ronald Verni's past behavior and the impact it has had on his family. We are mindful, however, that a final domestic violence restraining order limits Ronald Verni's contact with the family. Ronald Verni's prior access to and misuse of the settlement funds obtained from defendants other than Aramark caused him to be removed as guardian ad litem, and an independent person was appointed to protect Antonia's interests in the prosecution of the personal injury action. His actions and the cause of his removal as guardian ad litem are a matter of public record.
Moreover, since the settlement, a trustee controls distributions from the settlement fund. While there is no guarantee that Antonia's father may not try to obtain a distribution directly from the trustee or indirectly through his now eleven year old daughter, the trustee is aware of his fiduciary obligation to Antonia and can undoubtedly deflect any such entreaties. Furthermore, although the need to protect the safety of Antonia and her mother and to preserve the settlement fund for Antonia's benefit are important, other circumstances unique to this case counsel against allowing Antonia and her mother's personal interests to outweigh the public interest in open judicial proceedings.
Antonia's unfortunate injury attracted media attention and public interest from the time of the accident. Laura Barnhardt, Girl Injured Critically; Driver faces DUI charge pickup hit small car head-on, police say, The Record (Bergen County), Oct. 26, 1999, at News L1. The personal injury action filed by Antonia and her mother garnered wide media attention when filed, Jane Allande-Hession, N.F.L. Is Sued Over a Crash That Left a Child Paralyzed, N.Y. Times, Oct. 11, 2003, at B5; Linda Campbell, Op-Ed., Where Does the Buck Stop? A New Jersey drunken driving case raises good questions about corporate and personal liability, Fort Worth Star-Telegram (Texas), Oct. 23, 2003, at 11B; Randy Covitz, NFL's Taste for Beer to Spill Over into Courtroom, Kansas City Star (Missouri), Oct. 20, 2003; Wayne Parry, NFL Sued Over Crash that Left Girl Paralyzed, Star-Ledger (Newark), Oct. 11, 2003, at News 23; Peter Pochna, Family Sues NFL for Fan's DWI that Left Child Paralyzed, The Record (Bergen County), Oct. 10, 2003, at A01; during the trial, Ana M. Alaya, Jurors Touched by Paralyzed Girl, 7, Star-Ledger (Newark), Dec. 10, 2004, at New Jersey 29; Ana M. Alaya, Driver Testifies He Doesn't Recall Paralyzing Child, Star-Ledger (Newark), Dec. 19, 2004, at New Jersey 19; Ana M. Alaya, Giants Exec Denies `Culture of Intoxication' in Beer Sales, Star-Ledger (Newark), Jan. 12, 2005, at New Jersey 16; Kibret Marcos, Jury Deliberates Beer Vendor Case; Lawyer shows video of girl paralyzed by DWI crash, The Record (Bergen County), Jan. 14, 2005, at L01; and after the trial when the jury returned the stunning $109,667,750 verdict, £40M For Girl Hit by Drunk Trucker, Sunday Mail (Scotland), Feb. 6, 2005, at 43; Jury Awards Family $60 Million, Edmonton Journal (Alberta), Jan. 19, 2005, at D6; Ana M. Alaya, Jury Finds Giants Vendor Shares Blame in Crash, Star-Ledger (Newark), Jan. 19, 2005, at News 1; Ana M. Alaya, Jury Adds $75 Million Penalty for Beer Seller, Star-Ledger (Newark), Jan. 20, 2005, at New Jersey 13; MichaelAnn Knots, $100M Beer Binge, N.J. Lawyer, Jan. 24, 2005, at 1; Kibret Marcos, DWI Crash Award Rises to $135M; Stadium beer vendor hit *412 with $75M punitive judgment, The Record (Bergen County), Jan. 20, 2005, at L01; Mark Maske, Ruling May Affect Team Policies, Wash. Post, Jan. 22, 2005, at D03; Leo Standora, 60M Award to N.J. Girl Paralyzed by a Drunk, Daily News (New York), Jan. 19, 2005, at News 6; Vito Stellino, Crackdown on Drinking, Florida Times-Union (Jacksonville), Jan. 23, 2005, at C15.
The media and public interest did not wane after the appellate process. The opinion reversing the verdict and remanding for a new trial was published and widely reported in the media. $105M Verdict Tossed; High court appeal planned, N.J. Lawyer, Aug. 7, 2006, at 2; Ana M. Alaya, $135M Jury Verdict Against Stadium Beer Vendor Overturned, Star-Ledger (Newark), Aug. 4, 2006, at News 1; Laura Mansnerus, Court Overturns Jury Award Against Stadium Concessionaire, N.Y. Times, Aug. 4, 2006, at B3; E.E. Mazier, Negligence; Many errors in the first trial require new trial of action under the dram shop statute, N.J. Lawyer, Aug. 21, 2006, at 26. The issues raised by the case have also been the subject of comments in scholarly articles. Survey, 2006 Annual Survey: Recent Developments in Sports Law, 17 Marq. Sports L.Rev. 585 (2007); Gregory P. Diamantopoulos, Note and Comment, A Look at Social Host and Dram Shop Liability From Pre-Game Tailgating to Post-Game Barhopping, 4 DePaul J. Sports L. Contemp. Probs. 201 (2008).
The case presented issues of significant public concern, such as whether the owner and operator of the stadium and organized football engaged in practices that encouraged socially irresponsible behavior, such as excessive consumption of alcohol. The case squarely presented the issue whether the dispenser of alcoholic beverages at the stadium had a realistic plan to monitor the sale and consumption of alcohol, and did, or even could, effectively limit the sale of alcoholic beverages in a stadium setting to intoxicated patrons. These issues are as infused with public interest as unsafe products, Hammock, supra, and discriminatory insurance practices, Lederman, supra.
We are also compelled to observe the anomaly created by the June 7 order. The amount of the original verdict was announced in open court and widely disseminated. The parties were prepared to retry the case, and plaintiffs' attorney conceded that the entire second trial, including the return of the verdict, would occur in open court. Thus, if plaintiffs were successful in the second trial, the amount of the damage award would be known to all. They concede that any application to seal that aspect of the proceedings would probably have failed. Ronald Verni, of course, would have learned the full measure of the award. We fail to discern the compelling interest that allows plaintiffs to shroud the amount and terms of the settlement in secrecy by settling the case prior to trial.
Furthermore, intervenor has brought to our attention advertisements placed by plaintiffs' attorney in legal publications in which he extols his successes in various litigated matters.[2] The advertisements generally describe cases and list them in descending order of magnitude of settlement or verdict. This case is listed first with a notation that the amount is confidential. The clear implication, however, is that the settlement exceeds the next cited case in which plaintiffs' attorney states he *413 obtained $39,000,000 in settlement of a class action.
We reiterate our words in Lederman that "[t]he presumption of openness to court proceedings requires more than a passing nod. Open access is the lens through which the public views our government institutions." Lederman, supra, 385 N.J.Super. at 323, 897 A.2d 362. Here, plaintiffs have not demonstrated that their desire for privacy overcomes the strong presumption of access to court records.[3] We, therefore, reverse the June 7, 2007 order sealing all proceedings and records from June 1, 2007 forward.
Reversed.
NOTES
[1] See R. 4:44-3.
[2] This information was included in intervenor's motion to supplement the record, which we have granted. This information, however, is also subject to judicial notice. N.J.R.E. 201(b)(3).
[3] This result is entirely consistent with proposed Rule 1:38 governing access to court records. Indeed, proposed Rule 1:38-9 incorporates the guidelines adopted in Hammock and recently reiterated in Lederman. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562386/ | 4 F.2d 532 (1925)
EARL et al.
v.
UNITED STATES.
No. 4362.
Circuit Court of Appeals, Ninth Circuit.
March 23, 1925.
J. L. Finch, of Seattle, Wash., for plaintiffs in error.
Thos. P. Revelle, U. S. Atty., and J. W. Hoar, Asst. U. S. Atty., both of Seattle, Wash., for the United States.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
GILBERT, Circuit Judge.
The writ of error here presents the question whether evidence relating to a large quantity of intoxicating liquor seized by federal prohibition agents was admitted in violation of the constitutional rights of the plaintiffs in error. The seizure was made under a search warrant, but the sustaining affidavit for the warrant was insufficient to justify its issuance.
We are of the opinion that, under the circumstances disclosed in the evidence, a search warrant was unnecessary, and that the case discloses no unreasonable search or seizure. The seizure was made in a garage, which the plaintiffs in error occupied under a lease. The garage was the basement of a dwelling house, with which it was wholly unconnected, and which was leased to and occupied by other tenants. So far as it concerns this case, the garage was in the position of a detached building, occupied and used only for garage purposes. The prohibition agents had information that it was used by persons "engaged in bootlegging business exclusively." On the day of the seizure the officers, after watching the premises for about four hours, saw the plaintiffs in error approach the garage from the north in an automobile, which was covered with mud and heavily loaded, and saw them enter the garage with the automobile, and knew that immediately they locked the doors. The officers knocked, the doors were opened, and the officers went in, and, seeing the liquor in the car, they seized it.
With the knowledge which they possessed of the apparent violation of the law, the officers would have been justified in intercepting the automobile and searching it before it entered the garage. Milam v. United States (C. C. A.) 296 F. 629; United States v. Fenton (D. C.) 268 F. 221; United States v. Bateman (D. C.) 278 F. 231; United *533 States v. Rembert (D. C.) 284 F. 996; Ash v. United States (C. C. A.) 299 F. 277. We cannot see that their authority to make the seizure was diminished by the fact that the automobile was taken into the garage. A garage, such as that in question here, is not a "house," within the protection of the constitutional amendment. It is no more immune from search than would be a barn or other outbuilding. In United States v. McBride (D. C.) 287 F. 214, it was held that the prohibition against unreasonable search is not violated by the search of a stable. In the arrival of the automobile, mud-covered and heavily laden, coming from the north, the source of supply of liquors, and the prompt locking of the doors from the inside as soon as the automobile entered the garage, the officers had visual evidence of the commission of a crime in their presence.
We find no merit in the contention that the charge of possession is included in the charge of transportation, or that the plaintiffs in error could not be held to answer for both. The evidence to prove possession would not be sufficient to sustain the charge of transportation. Gavieres v. United States, 220 U. S. 338, 31 S. Ct. 421, 55 L. Ed. 489. Possession and transportation of intoxicating liquors are distinct offenses, and the law penalizes both. Bell v. United States (C. C. A.) 285 F. 145; Massey v. United States (C. C. A.) 281 F. 295; Singer v. United States (C. C. A.) 288 F. 695.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/801769/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1711
TASTEE TREATS, INCORPORATED,
Plaintiff - Appellant,
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY,
Defendant - Appellee.
No. 11-1771
TASTEE TREATS, INCORPORATED,
Plaintiff - Appellee,
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:07-cv-00338)
Argued: May 16, 2012 Decided: June 6, 2012
Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: David Sean Hart, HAYDEN & HART, Beckley, West Virginia,
for Appellant/Cross-Appellee. Avrum Levicoff, LEVICOFF, SILKO &
DEEMER, PC, Pittsburgh, Pennsylvania, for Appellee/Cross-
Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Tastee Treats, Incorporated, (Tastee Treats), a West
Virginia corporation, brought this insurance coverage action
against United States Fidelity and Guaranty Company (USF&G), a
Maryland corporation, in the Circuit Court of Raleigh County,
West Virginia, after USF&G denied Tastee Treats’ claim that it
was entitled to insurance coverage for damage to a Dairy Queen
restaurant it owned in Huntington, West Virginia under an
insurance policy (the Policy) issued to it by USF&G. The damage
to the restaurant was caused by the collapse of two ninety-six
inch culverts which were located near the restaurant and on
property owned by the City of Huntington.
In its complaint, Tastee Treats sought a host of
damages, including compensatory, consequential, and punitive
damages, as well as attorneys’ fees. Following removal of the
case to the United States District Court for the Southern
District of West Virginia, the parties engaged in pre-trial
discovery.
On July 21, 2008, on cross-motions for summary
judgment, the district court entered partial summary judgment
for Tastee Treats in a memorandum opinion and order, holding
that the damage to the Dairy Queen building caused by the
collapse of the culverts was a covered loss under the Policy.
In its opinion, the district court rejected USF&G’s contention
3
that coverage was precluded under the Policy’s earth movement
exclusion. As a result, Tastee Treats received from USF&G
approximately $50,000.00.
In an opinion dated November 29, 2010, the district
court resolved the vast majority of Tastee Treats’ claims. In
particular, the district court held that Tastee Treats had not
stopped operating within the appropriate period defined in the
Policy, and, as a result, it could not recover for lost business
income and that Tastee Treats could not recover for the value of
the Dairy Queen building because the $650,000.00 settlement in a
parallel state court action against the City of Huntington with
the resultant abandonment of Tastee Treats’ lease meant that
Tastee Treats no longer had an insurable interest in the
property. The district court further held that, viewing the
evidence in a light most favorable to Tastee Treats, Tastee
Treats still had potentially viable claims for extra expense
coverage related to the costs incurred in dealing with the
collapse of the culverts, as well as extra-contractual damages
for attorneys’ fees, annoyance, aggravation, and inconvenience.
At the specific request of Tastee Treats, the district
court also permitted additional discovery related to bad faith
and punitive damages. Following a telephonic status conference
on December 3, 2010, the district court entered a scheduling
order instructing the parties to complete all discovery requests
4
related to bad faith and punitive damages by December 21, 2010,
and all such depositions by February 4, 2011. On December 20,
2010, Tastee Treats sent a letter to the district court
requesting additional time to make expert disclosures related to
bad faith damages. The district court granted Tastee Treats’
request and directed that all such expert disclosures be made no
later than January 28, 2011. In lieu of meeting that deadline,
Tastee Treats filed a motion to extend the deadline, which the
district court granted, and the deadline was revised to February
4, 2011. No further extension of any deadline was sought by
either party or granted by the district court.
On February 8, 2011, USF&G filed a motion for summary
judgment, arguing that the record contained insufficient
evidence to show that Tastee Treats was owed extra expense
damages under the Policy or suffered any other damages at all.
Tastee Treats did not file a response to USF&G’s motion. One
month later, on March 8, 2011, USF&G filed a motion to dismiss
the action because Tastee Treats failed to prosecute its case or
comply with the district court’s scheduling order and revisions
thereto.
On March 16, 2011, the district court held a status
conference to confer with the parties. At that status
conference, Tastee Treats’ counsel informed the district court
that his prolonged disobedience was due to his involvement as a
5
scholastic wrestling coach. The district court vacated its
current scheduling order and instructed Tastee Treats’ counsel
to file with the district court his requested relief, whatever
that may be under the circumstances. Despite the district
court’s instruction, Tastee Treats filed nothing. On April 4,
2011, the district court entered an order instructing Tastee
Treats to show cause why the case should not be dismissed within
ten days. Tastee Treats finally responded on April 14, 2011,
restating that its counsel was busy coaching wrestling and
suggesting that a sanction less drastic than dismissal was
appropriate.
On June 7, 2011, the district court entered a
memorandum opinion and order resolving all remaining issues in
the case. First, the district court dismissed the case for
failure to prosecute, because Tastee Treats’ extreme dilatory
conduct for half a year was unacceptable and that no sanction
less than dismissal would induce Tastee Treats to proceed in a
timely and professional manner. In the alternative, the
district court held that USF&G was entitled to summary judgment
on the merits of all remaining issues.
On appeal, Tastee Treats takes issue with the district
court’s ruling that it was not entitled to damages for the
annoyance, the aggravation, and the inconvenience it suffered,
as well as attorneys’ fees. Remarkably, Tastee Treats does not
6
challenge the district court’s decision to dismiss the case for
failure to prosecute. In its cross-appeal, USF&G claims the
district court erred when it held that the Policy’s earth
movement exclusion did not preclude coverage for the damage to
the Dairy Queen.
Having had the benefit of oral argument and having
carefully reviewed the briefs, the record, and the controlling
legal authorities, we are persuaded that the district court
correctly decided each issue before it. Accordingly, we affirm
the district court’s judgment based substantially on the
reasoning set forth in the district court’s careful and thorough
opinions. See Tastee Treats, Inc. v. United States Fid. and
Guar. Co., No. 5:07-cv-00338, 2011 WL 2265541 (S.D.W.Va. June 7,
2011); Tastee Treats, Inc. v. United States Fid. and Guar. Co.,
No. 5:07-cv-00338, 2010 WL 4919606 (S.D.W.Va. November 29,
2010); Tastee Treats, Inc. v. United States Fid. and Guar. Co.,
No. 5:07-cv-00338, 2008 WL 2836701 (S.D.W.Va. July 21, 2008).
AFFIRMED
7 | 01-03-2023 | 06-06-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1566744/ | 440 S.W.2d 624 (1969)
Joe Lee MARTIN, Plaintiff in Error,
v.
STATE of Tennessee, Defendant in Error.
Court of Criminal Appeals of Tennessee.
August 19, 1968.
Certiorari Denied May 5, 1969.
Hugh W. Stanton, Jr., Asst. Public Defender, Memphis, for plaintiff in error.
George F. McCanless, Atty. Gen. of Tenn., Thomas E. Fox, Deputy Atty. Gen., Nashville, Sam J. Catanzaro, Asst. Dist. Atty. Gen., Memphis, for defendant in error.
Certiorari Denied by Supreme Court May 5, 1969.
OPINION
OLIVER, Judge.
Plaintiff in error, the defendant below, was convicted of second degree murder in the Criminal Court of Shelby County and was sentenced to not more than twenty years in the State Penitentiary. His motion for a new trial being overruled, he prayed and was granted and has perfected an appeal in the nature of a writ of error to this Court.
The Shelby County Public Defender represented the defendant in the trial below, and also in his appeal to this Court. The State concedes that from this circumstance the Court may take judicial notice of the fact that the defendant was and is indigent, although there has been no formal adjudication of indigency.
There are seven Assignments of Error, each of which was also assigned as error in the defendant's motion for a new trial. *625 In our view the questions raised by the fifth Assignment of Error are determinative. It reads as follows:
"The Court erred in admitting over defendant's timely objection testimony of police officers as to statements allegedly made to them by the defendant."
Melvin L. Matthews was stabbed to death on the night of October 7, 1966, terminating a beer-joint fight precipitated by remarks about the defendant's girl friend. The defendant and his girl friend were arrested in connection with the homicide later that night, about 1:10 a. m., October 8th, and were taken to Police Headquarters and jailed. The arresting officer, a Memphis policeman, who was accompanied by two other police officers, testified as follows, in the absence of the jury, regarding the advice he gave them concerning their constitutional rights:
"A I told him thattold them that they did not have to make a statement, that anything they did tell us could be used in a Court of law, and they couldcould get them a counsel, or talk to their lawyer."
Upon cross-examination, the same officer testified:
"Q And when you got there, you told him that he had a right to call a lawyer and get a lawyer if he wanted one?
A Yes sir, or make no statements, if he didn't desire.
Q And that anything he said could be used against him?
A Yes sir.
Q But you didn't tell him that he had a right to have somebody furnish a lawyer if he didn't have one of his own, did you?
A We said he could call his lawyer, or employ a lawyer. I believe that's the way we put it."
After the arresting officer detailed the defendant's oral inculpatory statement made to him at the time of the arrest which amounted to a confession, the court overruled defense objection and held that the defendant was advised of his constitutional rights and his statement was voluntary and admissible. In the presence of the jury, the same officer testified:
"Q State to the Court and jury just what you told him.
A We advised him that he could remain silent, he didn't have to make a statement. That any statement that he made could be used in a Court of law, we advised him that he could get an attorney, or talk to his attorney, or either get him an attorney."
He then related to the jury the oral incriminating statement made by the defendant in which he related some of the inculpatory details of the fatal encounter.
Unquestionably, the trial judge committed prejudicial error in holding that the defendant was adequately advised of his constitutional rights by the arresting officer prior to interrogating him, and in admitting the defendant's oral statements made to that officer during that in-custody interrogation. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the Supreme Court of the United States said, inter alia:
"To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning *626 that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him."
The officer who arrested the defendant and interrogated him did not advise him that he had a right to confer with counsel before making any statement or answering any questions, nor that he was entitled to have counsel present with him during any interrogation, nor that if he was financially unable to employ a lawyer one would be appointed to represent him and be present with him prior to and during the interrogation, if desired. Thus, the warnings given the defendant fell far short of the constitutional requirements prescribed by Miranda. In its Brief, the State expressly agrees:
"The information given the defendant does not literally comply with the requirements set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The trial judge found it substantially complied with the requirements of the Miranda case. In the present case, the defendant was not informed that in the event he was unable to employ counsel, one would be appointed for him before he was required to make any statements. This question was considered by the State Supreme Court in an unpublished opinion, Willie Lightfoot v. State, (Opinion dated May 5, 1967, eighteen days after the trial of this case. Since the opinion is unpublished, a copy is attached to this brief). The record shows the defendant was represented by a member of the Public Defender's Office. No formal order was entered showing the defendant to be indigent but it is conceded that the Court can judicially know that the defendant was indigent. Further, the State is unable to conceive of any argument to show that this case is different from the Lightfoot case."
In the Lightfoot case, above referred to, reversing and remanding for a new trial, the Supreme Court said this:
"The defendant's first assignment of error insists that the trial court erred in admitting into evidence the testimony of certain police officers regarding statements made by the defendant, implicating him in the robbery with which he is here charged. The basis of defense counsel's insistence is, at least in part, that defendant was not advised of his constitutional right to counsel and, more particularly, to have counsel provided for him by the State if he could not afford privately retained counsel. It might be noted at this point that each of the several police officers testified, generally, that the defendant was advised of his constitutional rights and told that he had a right to counsel. However, none of these officers testified, specifically, that the defendant was advised that counsel would be provided for him if he could not afford privately retained counsel. The defendant here has been adjudged an indigent person.
"This case was tried on July 8, 1966, shortly after the release of the United States Supreme Court's opinion in Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, on June 13, 1966. This Court is of the opinion that it cannot be seriously contended that the statements made by the defendant and concerning *627 which testimony was given by these several police officers over the objection of defense counsel, were not the result of custodial interrogation as defined in Miranda v. Arizona, supra. Further, this Court holds the view that the opinion in Miranda v. Arizona, supra, places upon the prosecution, when it attempts to introduce into evidence testimony concerning admissions of a defendant resulting from custodial interrogation, the burden of establishing the admissibility of these statements. In order for the State to establish such admissibility, it must, at the outset, show that the defendant was, prior to his making these statements, advised of his right to remain silent, that anything he says could be used against him, that he has a right to counsel, and that, if he cannot afford counsel, counsel will be provided for him by the State. There is not sufficient evidence in this record to show that this was done in the present case. In view of this, we find it unnecessary to consider the remainder of the assignments of error."
Later the same morning he was arrested, the defendant was again interrogated at Memphis Police Headquarters by an officer of the Homicide Bureau. In the absence of the jury, this police officer testified that "Around 10:15 a. m., the next morning, I went down to the detention area and checked him out and brought him back to the Homicide Bureau, where I seated him and I advised him of the charge that he'd been charged with, and of his right to an attorney of his own choosing or a Court appointed attorney. His right to remain silent, and refuse to make any statement, and that anything he said could, and may be used as evidence against him at the time of trial in Court"; and that after advising him that he would be charged with murder, the defendant then made a full oral confession in which he related all the events of the argument and fight which culminated in his fatal stabbing of the deceased. Over objection of defense counsel, the court held that this interrogating officer advised the defendant as to his constitutional rights and that the statement was voluntary and admissible. In the presence of the jury, this officer, after repeating almost exactly his above-quoted statement to the defendant concerning his rights, related the defendant's oral confession.
Here again, the court was in error. As in the first interrogation by the arresting officer, the officer who conducted this second interrogation did not advise the defendant that he had the right to have an attorney present during the interrogation. That the defendant did not understand that he had such a right is shown by the fact that when the officer proposed or suggested that the defendant make a written statement, or sign a statement, "he said that he didn't want to give a statement if he would have to sign it, until he could talk to an attorney." The court held that this testimony regarding a written statement was not admissible, and it was not presented before the jury. But it clearly indicates the defendant's idea that his right to consult an attorney related only to giving a written statement. But however this may be, the error in permitting the second interrogating officer to relate the defendant's oral confession to him inheres in and proceeds out of the erroneous admission of the arresting officer's testimony about the incriminating statements made by the defendant at that time. The first interrogation was shortly after 1:00 a. m. on October 8, 1966, and the defendant was then taken to jail; the altercation and the killing had occurred earlier that night; the second in-custody interrogation was about 10:15 a. m. the same morning. Under these circumstances, the second statement was clearly the fruit of the first one and was equally inadmissible.
In Evans v. United States, 375 F.2d 355 (8th Cir. 1967), a defendant arrested and interrogated at police headquarters by *628 a police officer concerning a post office robbery, without being fully advised of his constitutional rights, admitted participation. Three days later, interrogated at the city jail by a United States Postal Inspector, after being fully advised of his constitutional rights, he made another confession which was admitted in evidence. Reversing and remanding for a new trial, the Court held that the totality of the circumstances tainted and infected the subsequent confession with the poison of the prior unconstitutional confession and rendered its admission reversible error. The Court said:
"* * * Thus, at the time the warnings were given and the confession relied upon by the Government was obtained, Evans had already fully revealed his involvement in the robbery. As Justice Jackson aptly stated in United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947):
`Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first.' 331 U.S. at 540, 67 S.Ct. at 1398.
"* * * Of course, if Evans had been timely and fully apprised by the local officers of his constitutional right to remain silent in accordance with the rules promulgated by Miranda, the incriminating statements later given to Thorn [the Postal Inspector] would be invulnerable to constitutional attack."
There is nothing in the record before us to indicate that the defendant at any time or in any way rejected or waived his right to the assistance of counsel. The teaching of Miranda is plain:
"In Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 889, 8 L.Ed.2d 70 (1962), we stated: `[I]t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.' This proposition applies with equal force in the context of providing counsel to protect an accused's Fifth Amendment privilege in the face of interrogation. Although the role of counsel at trial differs from the role during interrogation, the differences are not relevant to the question whether a request is a prerequisite.
"Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.
* * * * * *
"An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962), is applicable here:
`Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation *629 and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.'"
The fifth Assignment of Error is sustained. It is neither necessary nor proper to discuss and consider the other assignments. McCroskey v. State, 42 Tenn. 178; Illinois Central R. Co. v. Moriarity, 135 Tenn. 446, 186 S.W. 1053; Middle Tennessee R. Co. v. McMillan, 134 Tenn. 490, 516, 184 S.W. 20.
The judgment of the trial court is reversed and the case is remanded for a new trial.
WALKER, P. J., and GILLIAM, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/994524/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LESLIE C. HOROWITZ, personal
representative of the estate of
Milton W. Horowitz,
Petitioner-Appellant,
No. 95-3020
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.
Appeal from the United States Tax Court.
(Tax Ct. No. 93-18332)
Argued: December 5, 1996
Decided: March 26, 1998
Before NIEMEYER, Circuit Judge, HALL, Senior Circuit Judge,
and DAVIS, United States District Judge for the
District of Maryland, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: David Charles Masselli, MASSELLI & LANE, P.C.,
Arlington, Virginia, for Appellant. Marion Elizabeth Erickson, Tax
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Appellee. ON BRIEF: Loretta C. Argrett, Assistant
Attorney General, Gary R. Allen, Bruce R. Ellisen, Tax Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
This is an appeal from an order of the United States Tax Court. The
Appellant, Leslie C. Horowitz, the personal representative of the
estate of Milton W. Horowitz, has been substituted for her decedent,
who died during the briefing of the appeal.1 The taxpayer, a retiree
(hereinafter "Mr. Horowitz"), failed to file federal income tax returns
for tax years 1988, 1989, 1990 and 1991. After the Commissioner of
Internal Revenue issued a statutory notice of deficiency for those
years, Mr. Horowitz filed in August 1993 a timely pro se petition for
redetermination of income tax deficiencies in the Tax Court, which
had jurisdiction under 26 U.S.C. §§ 6213, 6214 and 7442. Inexplica-
bly, Mr. Horowitz, notwithstanding his indisputable financial ability
to do so, and despite several health-related physical limitations, never
retained counsel in connection with the Tax Court proceedings. Mr.
Horowitz failed to persuade the Tax Court that the Commissioner's
determinations were incorrect, and Appellant now prosecutes this
appeal.2 We affirm.
I.
As mentioned above, Mr. Horowitz filed the case in August 1993.
In January 1994, the Tax Court docketed the case for trial on June 20,
1994, and issued its "Standing Pre-Trial Order." Therein, the parties
were admonished:
Continuances will be granted only in exceptional
circumstances. See Rule 134, Tax Court Rules of Practice
_________________________________________________________________
1 See Fed. R. App. P. 43(a).
2 Mr. Horowitz had the burden of proof before the Tax Court. Welch
v. Helvering, 290 U.S. 111, 115 (1933); Faulconer v. Commissioner, 748
F.2d 890, 893 (4th Cir. 1984).
2
and Procedure. Even joint motions for continuance will not
routinely be granted.3
On June 16, 1994, a mere four days before the scheduled trial date,
Mr. Horowitz filed a motion for a six month continuance because of
alleged health problems, i.e., degraded vision from diabetes and the
lingering effects of surgery on his knee (which had been completed
many months previously), and because his tax preparer was shortly
expecting a child, and might not be able to assist him prepare for trial.
The Tax Court denied the request for a continuance on the same day
it was filed by marginal order upon Mr. Horowitz's hand-drawn
request.
Thus, trial commenced on June 21, 1994, having been carried over
from June 20, 1994. At the outset, the parties entered into a stipula-
tion of facts, which included an agreement as to Mr. Horowitz's basis
in certain securities that he had sold in 1989, 1990 and 1991.4 The
_________________________________________________________________
3 Rule 134 provides as follows, in relevant part:
A case or matter scheduled on a calendar may be continued by
the Court upon motion or at its own initiative. A motion for con-
tinuance shall inform the Court of the position of the other par-
ties with respect thereto, either by endorsement thereon by the
other parties or by a representation of the moving party . . . .
Continuances will be granted only in exceptional circumstances.
Conflicting engagements of counsel or employment of new coun-
sel ordinarily will not be regarded as ground for continuance. A
motion for continuance, filed 30 days or less prior to the date to
which it is directed, may be set for hearing on that date, but
ordinarily will be deemed dilatory and will be denied unless the
ground therefor arose during that period or there was good rea-
son for not making the motion sooner . . . .
Rule 134, Rules of the United States Tax Court, 26 U.S.C.A. foll. § 7453
(West 1997) (emphasis added).
4 On April 4, 1994, the Commissioner had served Mr. Horowitz with
his request for admissions, to which Mr. Horowitz never responded.
Accordingly, he was deemed to have admitted receiving the amounts of
income indicated by the Commissioner for the years in question, and to
have paid no taxes on that income. Nevertheless, as a result of the evi-
dentiary proceedings before the Tax Court, his income was reduced
below that which would have been justified on the admissions alone.
3
parties also stipulated that Mr. Horowitz was entitled to certain item-
ized deductions for mortgage interest and real estate taxes, and that
he was entitled to certain prepayment credits for 1991.
After a recess, taken to afford Mr. Horowitz an opportunity to
review and marshal his documents, and as trial continued, the court
allowed Mr. Horowitz to testify as to other deductions to which he
believed himself entitled. He was unable to give specific information
for any of these claimed deductions, however, stating variously that
his supporting documentation was "readily available at home" or that
he had given "the figures to his tax preparer" or that he simply "did
not have the figures here." He did admit, however, that his medical
insurance plan had reimbursed him for "a very large part" of his medi-
cal expenses during the years in issue. He also admitted that he had
received pension, dividend and interest income in all the years under
review.
The Tax Court issued its opinion and order in May 1995. The court
found that Mr. Horowitz had failed to prove his entitlement to any
deductions in excess of those that had been conceded or stipulated at
trial. The court also sustained the Commissioner's imposition of addi-
tions to tax under I.R.C. § 6651 for failure to file returns. The court
held that Mr. Horowitz's health problems did not constitute "reason-
able cause" for failure to file under the statute. Upon the Tax Court's
denial of Mr. Horowitz's motion for reconsideration, he noted an
appeal to this Court.
II.
On appeal, Appellant mounts no challenge whatsoever to the sub-
stantive rulings or findings of the Tax Court. Rather, Appellant asks
us to find reversible error in the lower court's refusal to grant a con-
tinuance to Mr. Horowitz, or (in what amounts to the same thing) to
hold open the evidentiary record post-trial.5 We find no such error.
_________________________________________________________________
5 Appellant also argues that because Mr. Horowitz was "consistently
badgered, hectored and berated" during the Tax Court evidentiary hear-
ing, he was denied a fundamentally fair trial. We have carefully exam-
ined the trial transcript and we find that this claim of unfair treatment is
4
The standard of review of a trial judge's actions in denying contin-
uances is abuse of discretion. What we said in the context of continu-
ances in criminal cases is fully applicable in the present case:
The Supreme Court has defined "abuse of discretion" in
the context of a denial of a motion for continuance as "an
unreasoning and arbitrary insistence upon expeditiousness in
the face of a justifiable request for a delay."[Morris v.]
Slappy, 461 U.S. at 11-12, 103 S.Ct. at 1616-17. The
Supreme Court has also indicated that the test for whether
a trial judge has "abused his discretion" in denying a contin-
uance is not mechanical; it depends mainly on the reasons
presented to the district judge at the time the request is
denied. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841,
849, 11 L.Ed.2d 921 (1964).
The Supreme Court has opined that a broad and deferential stan-
dard is to be afforded to district courts in granting or denying continu-
ances: the burdensome task of assembling a trial counsels against
continuances, and, therefore, the trial courts must be granted broad
discretion. Slappy, 461 U.S. at 11. Furthermore, the district court
alone has the opportunity to assess the candidness of the movant's
request. Ungar, 376 U.S. at 591; see also United States v. Hutchison,
352 F.2d 404, 405 (4th Cir. 1965) (granting continuance within sound
discretion of trial judge; reasonable latitude must be allowed). United
States v. LaRouche, 896 F.2d 815, 823-24 (4th Cir.) (emphasis
added), cert. denied, 496 U.S. 927 (1990).
Applying this standard in the case at bar, it is clear to us that the
Tax Court was wholly justified in denying Mr. Horowitz's requests
_________________________________________________________________
wide of the mark by a substantial margin. To the contrary, the transcript
shows that the trial court extended every courtesy to Mr. Horowitz,
repeated her statements and questions numerous times (and finally had
the clerk sit next to Mr. Horowitz and repeat into his ear the court's state-
ments) in deference to his demonstrated inability to hear and/or under-
stand, and generally sought to bring to the proceedings a structure and
coherence which less care would not have achieved. In our view, com-
mendation, not censure, is the only appropriate response to the trial
judge's sensitive handling of the proceedings.
5
for a continuance. Mr. Horowitz had ten months from the time he
filed his petition in the Tax Court to the trial date to prepare his case,
yet, not until just a few weeks before trial did he hire a commercial
tax preparation firm (H & R Block) to assist him. For reasons not
shown in the record, the particular individual assigned to or selected
by Mr. Horowitz was in the late stages of her pregnancy, and thus her
availability to work closely with Mr. Horowitz in preparing for trial
was uncertain at best, even when the engagement was effected. Thus,
the record shows that there was a manifest lack of diligence in Mr.
Horowitz's leisurely trial preparation during the ten months the case
was pending on the docket.
Furthermore, the additional reason Mr. Horowitz provided as justi-
fying his belated request for a continuance -- his alleged health prob-
lems -- had little relevance to the tasks of trial preparation and
document-assembling necessary to go forward on the assigned trial
date. Tellingly, as the trial judge noted, Mr. Horowitz's health prob-
lems did not hinder his ability to manage his real estate holdings, or
to make careful investment decisions.6 Indeed, at trial, when he reiter-
ated his request for a continuance, Mr. Horowitz did not rely initially
upon any alleged health problem but, instead, asserted that he needed
more time to hire an attorney. This borders upon the frivolous, con-
sidering that the record discloses that Mr. Horowitz had no difficulty
hiring investment advisors and real estate agents when and as the
need arose for help in managing his holdings (including three or four
rental properties), and considering that, as the record shows, he had
total gross income during the four tax years in dispute in excess of
$175,000. See J.A. at 82-87, 100-02, 187.
III.
A busy adjudicatory tribunal is not required to permit litigants to
set the timing and pace of proceedings unilaterally to fit their individ-
ual preferences. Mr. Horowitz essentially sought an open-ended
schedule for the Tax Court proceedings which he had instituted, and
_________________________________________________________________
6 See J.A. at 90-91, 193. Mr. Horowitz also admitted at trial that a week
before the proceedings under review here, he was involved in state court
litigation against one of his tenants in which he was represented by coun-
sel. Id. at 68.
6
he sought it at the eleventh hour, at that. We discern no abuse of dis-
cretion in the Tax Court's rejection of that endeavor; we conclude that
the lower court's interpretation and application of its own Rule 134
relating to continuances fell well within a proper exercise of its broad
discretion. Accordingly, the order of the United States Tax Court is
AFFIRMED.
7 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/994533/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHEERIE J. BAKER,
Plaintiff-Appellant,
v.
NORTH CAROLINA DEPARTMENT OF
COMMERCE; DIVISION OF COMMUNITY
ASSISTANCE; DAVIS PHILLIPS,
Individually and in his Official
capacity of Secretary of the
Department of Commerce; ROBERT
CHANDLER, Individually and in his
No. 97-1986
Official Capacity as Director of
Community Assistance; DONNA
MOFFITT, Individually and in her
Official Capacity of Assistant Director
of the Division of Community
Assistance; STEVE CULNON,
Individually and in his Official
Capacity as Supervisor in the Division
of Community Assistance; HERB
CAMPBELL,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-95-913-5-H)
Argued: January 29, 1998
Decided: March 26, 1998
Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Conrad Alphonzo Airall, Raleigh, North Carolina, for
Appellant. Ronald Moore Marquette, Special Deputy Attorney Gen-
eral, Charles Jerome Murray, Special Deputy Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellees. ON BRIEF: Michael F. Easley, North Caro-
lina Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
On October 20, 1995, Cheerie Baker filed this action in which she
raised various federal and state law claims against her former employ-
ers, in their individual and official capacities, alleging, among other
things, that she was unlawfully discharged because of her race and in
retaliation for her exercise of free speech.1 The district court granted
summary judgment in favor of Appellees on the federal claims and
dismissed the state law claims without prejudice. 2 For the reasons that
follow, we affirm the district court.
_________________________________________________________________
1 Baker's various claims included federal claims under Title VII and 42
U.S.C.A. §§ 1981 (West 1994), 1983 (West Supp. 1997), and 1985
(West 1994); and state law claims involving the North Carolina Equal
Employment Opportunities Act and both reckless and intentional inflic-
tion of emotional distress.
2 The district court granted summary judgment in favor of all the
Defendants named in Baker's complaint. On appeal, however, Baker has
2
I.
In January 1989, Cheerie Baker, a black female, began working at
the North Carolina Department of Commerce (DOC) as an Emer-
gency Shelter Grants Coordinator in the Division of Community
Assistance (DCA). Nine months later she became a Community
Development Block Grant (CDBG) Financial Affairs Monitor, and in
November 1991, she became a CDBG Program Representative.
In January 1993, Donna Moffitt, the Assistant Director of the
DCA, decided to reorganize the DCA to accommodate the implemen-
tation of a new federal program known as "HOME" and a reduction
in personnel. Moffitt reassigned program development duties for both
HOME and the CDBG program into a new section under the supervi-
sion of Steve Culnon. Prior to the reorganization Culnon had been
running the HOME program with two employees who had no CDBG
experience. On January 8, 1993, Moffitt assigned Baker, who had
CDBG experience, to work under Culnon in the new section as a Pro-
gram Development Analyst. At that time, Moffitt planned to hire five
employees in the new division, three to work with HOME and two to
work with CDBG. Unfortunately, a hiring freeze went into effect. As
a result, Culnon assigned Baker, the only worker in the section with
CDBG experience, to supervise the entire CDBG process and to train
any new CDBG employees ultimately hired. As part of the DCA's
routine procedure, Baker was also required to develop a workplan
describing the duties and responsibilities of her new position.
By memorandum dated February 3, 1993, Baker refused to accept
her new duties without a pay increase. By memorandum dated Febru-
_________________________________________________________________
waived her claims against many of the original Defendants-Appellees.
See Shopco Distribution Co. v. Commanding General of Marine Corps
Base, 885 F.2d 167, 170 n.3 (4th Cir. 1989) (holding that any claim not
raised in a party's initial brief will be deemed waived). Moreover,
Defendants-Appellees Moffitt, Culnon, Chandler, and Campbell have
moved to amend the caption because they no longer hold the offices
within the North Carolina Department of Commerce as alleged in
Baker's complaint. Because we affirm the district court's grant of sum-
mary judgment in favor of all the named Defendants-Appellees, the
motion to amend the caption is moot. For ease of reading, we will refer
to all the remaining Defendants-Appellees as "Appellees."
3
ary 12, Culnon notified Baker that there was no higher pay grade
position available in the new section. He attempted to accommodate
her concerns by relieving her of hiring responsibilities. Culnon also
reminded Baker that she was required to prepare a workplan for her
new position and provided an updated list of activities to be included.
On February 15, the deadline for submission of workplans, Baker met
with Dottie Fuller, the Assistant Secretary of DOC, to discuss her
unhappiness and to explore other employment opportunities within
the DOC. During that meeting, Baker stated her unwillingness to sub-
mit a workplan. Fuller responded that such refusal would be consid-
ered insubordination. Later that day, Baker turned in a photocopied
workplan of a fellow employee to Culnon. The submitted plan was
written for a lower grade level position that did not reflect Baker's
new responsibilities. Moreover, the plan submitted by Baker related
exclusively to the HOME program and included many inapplicable
items.
The next day, February 16, Culnon informed Baker that the submit-
ted workplan was unacceptable and requested a meeting with Baker
and Moffitt to "amicably work this problem out." (J.A. at 619.) When
Baker arrived at the meeting, she refused to discuss anything unless
a witness was present or the meeting was taped. As a result, the meet-
ing did not occur and Moffitt directed Culnon to begin preparing the
paperwork for Baker's discharge for insubordination. Later that day,
Culnon gave Baker the predismissal paperwork and told her to return
the next morning. The next morning, Culnon offered to allow Baker
to resign rather than be discharged. Baker chose to submit her letter
of resignation, effective February 18, 1993.
In her complaint, Baker raised various federal and state law claims,
alleging that she was unlawfully discharged due to her race and her
exercise of free speech. Specifically, Baker asserts that in December
1992 she attended a meeting with Culnon regarding a proposal to con-
vert a school building in Asheboro, North Carolina, into low income
housing. Culnon criticized the financial viability of the project, noting
that the school building was located in a poor section of town inhab-
ited primarily by elderly black people. According to Baker, she
believed that Culnon unfairly intended to deny funding of the project
due to race and immediately questioned Culnon about the relevancy
of race in his decision. Baker contends that shortly after this meeting
4
Culnon told Pam Wilson, another DCA employee, that he did not
want Baker working for him.
As a result, Baker contends that Appellees conspired to create such
difficult working conditions for her that she was forced to quit. In
support of that claim, she states that despite her additional responsi-
bilities, she was refused a pay increase. Moreover, she claims that she
was assigned duties significantly beyond her experience and skill
level and received no guidance from her superiors. Then, when she
was unable to prepare a required workplan, she was terminated under
the auspices of insubordination. The district court rejected Baker's
claims, granting summary judgment in favor of Appellees on her fed-
eral claims and dismissing her state claims.
II.
On appeal, Baker argues that the district court erroneously denied
her request to admit into evidence the EEOC investigator's summary
of Pam Wilson's statements regarding Culnon's feelings towards
Baker. She also asserts that the district court erroneously concluded
that she raised no genuine issue of material fact regarding her racial
discrimination and free speech claims. We will address each argument
in turn.
A.
Baker asserts that the district court erroneously refused to admit a
portion of the EEOC report summarizing the testimony of Wilson,
Baker's co-worker, to the investigator.3 We agree with Baker that,
absent a showing of untrustworthiness, factual findings resulting from
an agency's lawful investigation are generally admissible in civil
actions. See Fed. R. Evid. 803(8)(C). We conclude, however, that the
statement in the report was immaterial to Baker's claims, and, there-
_________________________________________________________________
3 The report at issue was actually prepared by a Department of Housing
and Urban Development (HUD) investigator, not an EEOC investigator.
However, the HUD report involved EEOC issues and has been referred
to by the district court and both parties as the"EEOC report." Because
the report's author is irrelevant to our analysis, we will also refer to it as
the "EEOC report."
5
fore, any error did not affect Baker's substantial rights. See Fed. R.
Evid. 103(a).
Baker contends that the report confirms that Culnon"specifically
targeted [Baker] as a worker he did not want in his unit in January
1993, after [Baker] questioned his race-related comment in late
December 1992" regarding the Asheboro project. (Appellant's Br. at
16.) Our review of the report, however, reveals no such animus. The
report reads:
On January 5, 1994, the Investigator interviewed on-site
Pam Wilson, grade 75 at DCA. She said that in early Janu-
ary 1993 Mr. Culnon had expressed his concerns to her
about a possible negative attitude of the Complainant and
possible detriment to his staff from it.
(J.A. at 954.) Nothing in this statement even remotely suggests that
Culnon harbored any racially-motivated ill-will towards Baker.
Rather, it demonstrates only a general concern about Baker's dissatis-
faction with her job and the possible repercussions of her unhappiness
on the remainder of Culnon's staff. Because Baker has failed to pro-
vide any reason to suspect that Culnon's statements had anything to
do with Baker's race, we conclude that the statement was immaterial
to Baker's claims. In fact, the EEOC investigator concluded that
"[t]he DCA did not discriminate against Cheerie J. Baker because of
her race" in its actions surrounding her resignation. (J.A. at 957.)
Accordingly, we hold that the exclusion of the report was not revers-
ible error.
B.
Next, Baker argues that the district court's grant of summary judg-
ment to Appellees was erroneous because she presented sufficient
evidence to create genuine issues of material fact on both her racial
discrimination and First Amendment retaliation claims. "We review
the grant of summary judgment de novo, using the same standards as
applied by the district court." Hartsell v. Duplex Prods., Inc., 123
F.3d 766, 771 (4th Cir. 1997). "Summary judgment is appropriate
only if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there
6
is no genuine issue as to any material fact." Fed. R. Civ. P. 56; see
also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determin-
ing whether there is a genuine issue of material fact in dispute, "the
evidence of the nonmoving party is to be believed and all justifiable
inferences must be drawn in his favor." Halperin v. Abacus Tech.
Corp., 128 F.3d 191, 196 (4th Cir. 1997) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)).
1.
Baker claims that she was discriminated against on account of her
race in violation of Title VII of the Civil Rights Act of 1964. See 42
U.S.C.A. § 2000e-2 (West 1994). Absent direct evidence of race-
based discrimination, Baker must satisfy the three-part proof scheme
established in McDonnell Douglas Corp. v. Green , 411 U.S. 792
(1973), to prevail on her Title VII claim.4 First, Baker must establish,
by a preponderance of the evidence, a prima facie case of race-based
discrimination. Once established, the burden shifts to Appellees to
"rebut the presumption of discrimination by producing evidence that
[Baker] was [discharged] . . . for a legitimate, nondiscriminatory rea-
_________________________________________________________________
4 There is no direct evidence of racial discrimination in the record
before us. Although Baker alleges the following instances of differential
treatment in pay and work requirements, she presents no supporting
proof for her accusations. Baker contends that when she received a pro-
motion in October 1989, she was improperly denied a corresponding pay
increase and was placed in trainee status due to the racial animosity of
DCA Director, Robert Chandler. In November 1990, Baker filed a griev-
ance regarding her salary. In January 1991, DOC Personnel Director Nel-
son Dollar and Chandler met with Baker and concluded that her
grievance had no merit. Later, in December 1992, prior to her reassign-
ment, Baker complained to Assistant Secretary of the DOC Dottie Fuller
that she had not received salary increases due her. Fuller looked into the
matter and again determined that Baker's contentions had no merit.
Baker also contends that other employees failed to submit their work-
plans and were not terminated. Without any supporting proof, Baker's
bald assertions that these instances demonstrate racial animosity by her
employers do not provide direct evidence of discrimination. See
Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir. 1988)
(acknowledging that a plaintiff's own naked opinion, without more, is
not enough to establish direct evidence of discrimination).
7
son." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
254 (1981). If Appellees meet their burden of production, the pre-
sumption raised by the prima facie case is rebutted and "drops from
the case," id. at 255 n.10, and Baker bears the ultimate burden of
proving that she has been the victim of intentional discrimination, see
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-11 (1993). With
this framework in mind, we address Baker's claim.
Title VII makes it "an unlawful employment practice for an
employer . . . to fail or refuse to hire or to discharge any individual
or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race." 42 U.S.C.A.§ 2000e-2(a)(1).
Therefore, to establish a prima facie case of race-based discrimination
under Title VII, Baker must demonstrate by a preponderance of the
evidence (1) that she is a member of a protected class; (2) that she
was qualified for her job and her job performance was satisfactory;
(3) that, in spite of her qualifications and performance, she was dis-
charged; and (4) that the position remained open to similarly qualified
applicants after her dismissal. See Karpel v. Inova Health Sys. Servs.,
No. 97-1279, 1998 WL 25699, at *4 (4th Cir. Jan. 27, 1998) (citing
McDonnell Douglas, 411 U.S. at 802). Although the evidence as to
both the second and third element of the prima facie case is weak, we
will assume for the purposes of appeal that Baker established a prima
facie case of a race-based discrimination by the preponderance of the
evidence.
Appellees, however, assert that Baker was discharged solely for the
non-discriminatory reason of insubordination. Specifically, they point
to Baker's (1) unjustified refusal to perform her duties absent a pay
raise, (2) her refusal to submit a workplan, as required of all DCA
employees, despite warnings that such refusal constituted insubordi-
nation, and (3) her submission of a photocopied workplan of another
employee which was clearly inadequate as it detailed the activities of
a position at a different pay grade and with different responsibilities
than those of Baker. We agree with the district court that DCA's evi-
dence of Baker's refusal to comply with regular work requests
imposed upon all employees met its burden of demonstrating a legiti-
mate, non-discriminatory reason for termination. As a result, Baker
must show that Appellees' stated reason was pretextual.
8
In her attempt to make that showing, Baker points out that other
employees often submitted co-workers' workplans and that she knew
of two other employees who failed to turn in their workplans in a
timely manner without repercussions. These conclusory assertions are
insufficient to show pretext. See Karpel, 1998 WL 25699 at *5 (hold-
ing that delinquency of co-workers "d[id] not nullify the fact that
[plaintiff]'s job performance was inadequate"). Baker also cites the
EEOC report's confirmation of Culnon's race-related animosity
towards her as evidence of pretext. For the reasons discussed in Part
II.A, the report reveals nothing that even hints at racial animosity by
Culnon towards Baker. Although Baker bears the burden of demon-
strating that Appellees' proffered legitimate, non-discriminatory basis
for her discharge was pretextual, she has simply failed to forecast evi-
dence that she was the victim of intentional race discrimination.
Accordingly, we affirm the grant of summary judgment in favor of
Appellees on Baker's Title VII claim. See Celotex, 477 U.S. at 322
("[T]he plain language of Rule 56(c) mandates the entry of summary
judgment . . . against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party's case,
and on which the party will bear the burden of proof at trial.")
2.
Finally, Baker contends that the district court erroneously granted
Appellees summary judgment on her claim of retaliatory discharge.
See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
(1977); 42 U.S.C.A. § 1983 (West Supp. 1997). Baker claims that she
was unlawfully discharged for exercising her right to free speech
under the First Amendment of the United States Constitution. We dis-
agree and affirm the district court.
The First Amendment protects a government employee from hav-
ing her "employment conditioned upon refraining from constitution-
ally protected speech." Hughes v. Bedsole, 48 F.3d 1376, 1385 (4th
Cir. 1995); see also Rankin v. McPherson, 483 U.S. 378, 383 (1987).
To make out a § 1983 retaliation claim, however, the employee must
prove that her free speech was a "substantial" or "motivating" factor
in the adverse employment decision. See Mt. Healthy, 429 U.S. at
287. "If the employee meets this initial burden, the burden shifts to
the public employer to show by a preponderance of the evidence that
9
the employee would still have been discharged in the absence of the
protected speech." Hughes, 48 F.3d at 1385-86.
The only evidence that Baker presents in support of her claim that
she was terminated for expressing her views on a matter of public
concern relates to her response to the alleged comments made by Cul-
non at the December 1992 meeting regarding the Asheboro project.
We agree with the district court that this claim fails for the simple rea-
son that Baker has presented no evidence to suggest that the exchange
with Culnon "motivated" DCA's decision to terminate her. To the
contrary, Culnon tried to help Baker by providing to her the list of
activities she needed to include in the workplan. Moreover, in the face
of Baker's blatant noncompliance, Culnon attempted to amicably
resolve the conflict by setting up a meeting with his supervisor, Mof-
fitt. The evidence shows that Moffitt and her supervisor Fuller, not
Culnon, decided that Baker should be terminated for insubordination,
not for her disagreement with Culnon over the Asheboro project. In
short, Baker's claim must fail because she has not presented any evi-
dence to suggest that her remarks to Culnon led to her discharge.
Accordingly, we affirm the grant of summary judgment to Appellees
on Baker's § 1983 First Amendment retaliation claim. See Celotex,
477 U.S. at 322.
AFFIRMED
10 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/994545/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIDGET FIELDS,
Plaintiff-Appellee,
v. No. 97-1493
WAL-MART STORES, INCORPORATED,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CA-96-808-2)
Submitted: March 10, 1998
Decided: March 25, 1998
Before WIDENER, MURNAGHAN, and HAMILTON,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
James C. Lewis, RABINOWITZ, RAFAL, SWARTZ,
TALIAFERRO & GILBERT, Norfolk, Virginia, for Appellant. Chris-
topher C. Trundy, LAW OFFICES OF CHRISTOPHER C.
TRUNDY, New Bedford, Massachusetts, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Wal-Mart appeals the jury verdict in favor of plaintiff and attacks
the district court's order granting Fields' motion for judgment as a
matter of law on the issue of contributory negligence. Fields' civil
action alleged that a Wal-Mart employee negligently loaded a furni-
ture item into her shopping cart, which caused the cart to overturn and
injure her ankle. We affirm.
In October 1993, Fields and her three-year-old daughter went to a
Wal-Mart Store in Norfolk, Virginia, to purchase a chifferobe.1 Upon
entering the store, Fields collected a shopping cart and went to the
Home Furnishings Department where she chose the piece of furniture
she wanted to purchase. A sign was posted in the furniture department
requesting that customers seek assistance from Wal-Mart employees.
Fields located a Wal-Mart employee and asked him to assist her in
loading the piece of furniture into her shopping cart.2 The employee
placed the box in the cart so that the bottom of the box was in the
right corner of the cart at the end where the handle is and the left side
of the box hung over the side of the cart.3 Fields did not instruct the
employee on how to load the cart, nor did she know how much the
box weighed. Also, Fields was not touching the cart at the time the
box was loaded; the cart appeared to be stable.
Once the box was loaded into the cart, Fields pushed the shopping
cart from the Home Furnishings Department to the Lay-A-Way
Department. Fields did not notice if the box shifted, nor did she notice
_________________________________________________________________
1 Mrs. Fields described this chifferobe as a piece of furniture similar to
an entertainment center.
2 This employee was never identified.
3 The box was fifty inches long, seventeen inches wide, eight inches
deep, and weighed 135 pounds.
2
any instability. Fields stood in line at the Lay-A-Way Department
with her hands on the cart until she was called forward by an
employee. When Fields took her hands off the cart, the cart began to
slide sideways onto her daughter. Fields pushed her daughter aside,
and the cart fell on Fields' ankle.
Following the accident, Fields was treated by several doctors and
required surgery to remove a nerve in her left foot, which left the last
two toes of her left foot permanently numb. Fields also had surgery
to alleviate aggravation from scarring after the removal of the nerve.
Fields filed a motion for judgment in the Circuit Court for the City
of Norfolk, Virginia, in October 1995 and subsequently removed the
action to the district court in August 1996. A jury trial commenced,
and at the conclusion of Fields' evidence, Wal-Mart moved for judg-
ment as a matter of law. The court denied the motion and again
denied the motion at the conclusion of all the evidence. At the conclu-
sion of all the evidence, Fields moved for judgment as a matter of law
on the issue of contributory negligence. The court granted this
motion, and the jury then returned a verdict awarding $275,000 to
Fields. The final judgment order was entered on March 21, 1997, and
Wal-Mart timely appealed.
On appeal, Wal-Mart asserts that the district court erred in granting
judgment as a matter of law on the issue of contributory negligence.
Wal-Mart claims that the evidence presented at trial created an issue
of fact as to whether Fields' conduct "during her trip from the Home
Furnishings Department to the Lay-Away-Department" contributed to
the instability of the shopping cart.
This court reviews the grant of a judgment as a matter of law de
novo. See Gairola v. Virginia Dep't of Gen. Servs., 753 F.2d 1281,
1285 (4th Cir. 1985). In ruling on a motion for judgment as a matter
of law, the district court must view the evidence in the light most
favorable to the nonmoving party. See Townley v. Norfolk & Western
Ry., 887 F.2d 498, 499 (4th Cir. 1989).
Under Virginia law, contributory negligence exists when "a plain-
tiff fail[s] to act as a reasonable person would have acted for his own
safety under the circumstances." Atrip v. E.E. Berry Equip. Co., 397
3
S.E.2d 821, 823-24 (Va. 1990). If the plaintiff was contributorily neg-
ligent, then Virginia law bars a plaintiff from recovering in a negli-
gence action if the plaintiff's contributory negligence proximately
caused the injury. See Litchford v. Hancock, 352 S.E.2d 335, 337 (Va.
1987). Federal district courts operate under a federal standard when
determining the sufficiency of the evidence for submission of the
issue of contributory negligence to a jury. See Jones v. Meat Packers
Equip. Co., 723 F.2d 370, 372 (4th Cir. 1983). In the absence of evi-
dence, or reasonable inferences that can be drawn from the evidence,
disclosing that a plaintiff was negligent, the issue of contributory neg-
ligence should not go to the jury. Id.
We find no evidence that Fields engaged in objectively negligent
behavior. Fields requested assistance from a store employee who
loaded the box into Fields' shopping cart. Fields did not pick up the
box or touch it before or after it was loaded into her cart. Fields sim-
ply pushed the cart containing the box to the Lay-A-Way Department.
There is no evidence that Fields negligently pushed her cart through
the store, and Wal-Mart conceded at trial that there was no substantial
evidence of contributory negligence. Negligence cannot be presumed
simply because an accident occurred. See Murphy v. J.L. Saunders,
Inc., 121 S.E.2d 375, 378 (Va. 1961). Accordingly, we affirm the dis-
trict court's order granting judgment as a matter of law to Fields on
the issue of contributory negligence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
4 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566754/ | 440 S.W.2d 873 (1969)
EL RANCHO RESTAURANTS, INC., Appellant,
v.
Warren GARFIELD et ux., Appellees.
No. 14744.
Court of Civil Appeals of Texas, San Antonio.
April 16, 1969.
Rehearing Denied May 14, 1969.
*875 F. W. Baker, Matthews, Nowlin, Macfarlane & Barrett, San Antonio, for appellant.
Pfeiffer & Gittinger, San Antonio, for appellees.
KLINGEMAN, Justice.
Damage suit by Warren Garfield and wife, Betty I. Garfield, appellees here and plaintiffs below, against El Rancho Restaurants, Inc., appellant here and defendant below, for injuries sustained when Mrs. Garfield purportedly tripped on or was caused to fall by a serving tray stand located against the back of a booth in one of defendant's restaurants. Trial was to a jury which found: That the tray stand was located against the back of the booth; the maintaining of such tray stand at said location was negligence and a proximate cause of the accident; the failure of defendant to warn Mrs. Garfield of the tray stand located behind the booth was negligence and a proximate cause of the accident; permitting coats of customers to be placed over the back of such booth was negligence and a proximate cause of the accident; Mrs. Garfield failed to keep a proper lookout but this was not a proximate cause of the accident, and it was not an unavoidable accident. Judgment was rendered for plaintiffs in the amount of $27,500, in accordance with the jury's findings, and that plaintiff Warren Garfield take nothing on his cause of action against defendant for the use and benefit of the United States of America.
On January 13, 1968, Mrs. Garfield and a number of other ladies had been playing bridge at the apartment of one of the ladies, located near a restaurant operated by defendant. A luncheon reservation had been made for the members of the bridge party at such restaurant and a table had been set up for them near the rear of the restaurant. After the ladies had finished playing bridge, Mrs. Garfield and Mrs. Snyder, another of the ladies in such group, entered the restaurant together. It was a cool day and both Mrs. Garfield and Mrs. Snyder were wearing coats. Mrs. Garfield testified that when she entered the restaurant some of the ladies were already seated at the table reserved for them, and she was told by an employee of defendant to place her coat over the back of a booth located near the rear of the restaurant, on the left-hand side of the restaurant, because the coat racks were full; that in order to get to such booth she walked down an aisle to the booth; that there was a coat rack stand behind the booth but it was full and the back of the booth was covered with coats; that she placed her coat on the back of the booth over other coats; that she then turned to walk to the table reserved for them and her foot became entangled in something and she fell to the floor hitting her knee; that before she walked down the aisle she looked down the aisle and did not see any obstructions or anything protruding from behind the booth, and that she never did see any tray stand. Mrs. Snyder testified that immediately after the fall she observed Mrs. Garfield on the floor and it appeared that her foot was entangled in the tray stand and that the tray stand and Mrs. Garfield went down together. One of defendant's waiters testified that the tray stand was customarily kept folded leaning against the back of the last booth when not *876 in use; that such stand was leaning against the back of the booth prior to Mrs. Garfield's fall; that he saw her immediately after the fall, and such tray stand was lying flat on the floor about one foot from Mrs. Garfield. A tray stand of the type used in such restaurant was introduced into evidence. It is sometimes called "a scissor," in that it opens and closes like a pair of scissors. When not in use, it is folded up with the legs together and is very compact. The tray stand is about two feet wide when open for useto place serving trays on it and it is approximately two and one-half feet high. Mrs. Garfield was permitted to testify, over objection, that immediately after her fall a waitress was by her side and stated to her that so-and-so should not have left the tray there. Mrs. Snyder testified that a waitress near the scene of the fall stated Mrs. Garfield tripped and fell over the tray stand, and that another person also stated that Mrs. Garfield tripped over the tray stand.
Defendant by its first two points of error contends that the judgment should be reversed and rendered because the condition of the premises was open and obvious as a matter of law, and that the judgment is not sustained by the verdict because plaintiffs failed to request open and obvious issues. These points will be discussed together.
It is undisputed that Mrs. Garfield was on the premises as a business invitee of defendant. The occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and to discover dangerous conditions. Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962); Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425 (1950), 20 A.L.R.2d 853. His duty is to protect his invitees from dangers of which he, the occupier, knows or (because of his duty to inspect) of which he should know in the exercise of ordinary care. If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof. But if there are open and obvious dangers of which the invitees know, or of which they are charged with knowledge, then the occupier owes the invitees "no duty" to warn or to protect them. This is so because there is "no duty" to warn a person of things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation of them. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex. Sup.1963).
Plaintiffs assert that defendant's first two points of error should be overruled because (1) defendant has no pleadings to support the submission of open and obvious issues; (2) the duty of requesting submission of such issues was on defendant; and (3) there is no evidence in the record to raise an open and obvious no-duty issue.
Mrs. Garfield testified that she never saw the tray stand, and that when she entered the aisle to go to the booth to put up her coat she saw no obstruction in the aisle. There is testimony that the tray stand was customarily kept folded behind the booth where the accident occurred, leaning across the back of the booth, and that on the date of the accident, prior to such fall, the tray stand was in such position, and that when located in such position the tray stand is not visible as you walk down the left aisle towards the rear of the restaurant. The only evidence in the record that anyone saw such tray stand is that of Mrs. Snyder, who testified that she walked to the rear of the restaurant with Mrs. Garfield to put up their coats, and she noticed something back there with some stuff on it, which she took to be the tray stand, that it was not folded, so far as she knew, and that after she put up her coat, instead of following Mrs. Garfield to go to the table she went another way.
However, a condition is not open and obvious unless it is so to the invitee, *877 and unless he fully appreciates the danger. The question of whether a plaintiff knows of the condition and knows of and appreciates the danger is a subjective one, that is, did this particular plaintiff know and did he appreciate the danger, or the defect must be so obvious as to charge plaintiff with knowledge of it. Greenhill, Assumed Risk, XVI Baylor Law Review 111. Defendant's contention that the condition was open and obvious as a matter of law is without merit.
The problem of whose obligation it is to plead the defense of "no duty" and to request submission of such issues is a more difficult one. Mr. Justice Greenhill in his article in XVI Baylor Law Review aforesaid treats the occupier-invitee "no duty" cases as part of the assumed risk cases. In a recent case, O. M. Franklin Serum Company v. C. A. Hoover & Son, 437 S.W.2d 613 (Tex.Civ.App.Amarillo 1969), the Court said: "Appellant contends the trial court erred in overruling its motion for judgment non obstante veredicto founded on the assumed risk principle. There were no pleadings to support this affirmative defense. No special issues involving this defense were requested and none were submitted. In the absence of such pleadings and findings, this defense was waived."
Under the decisions of this State, the proving of the landowner's duty and a breach of it is a part of plaintiff's case. Halepeska v. Callihan Interests, Inc., supra; Turner v. Victoria County Electric Co-Operative Co., 428 S.W.2d 484 (Tex.Civ.App. Waco 1968); Greenhill, Assumed Risks, supra. We find no case, however, which holds that this relieves the defendant of the obligation of pleading the defense of "no dutyopen and obvious," or of requesting submission of special issues in regard thereto. Mr. Justice Greenhill in his article on Assumed Risk, supra, states that it has not yet been decided by the Supreme Court whose burden it is to request submission of such issues.
In Gillespie v. Wesson, 370 S.W.2d 918 (Tex.Civ.App.Fort Worth 1963), the Court said: "In a suit for damages brought against the occupier as the defendant, if he pleads the defense of "no duty" in avoidance or as an affirmative defense under the provisions of T.R.C.P. 94, "Affirmative Defenses",is entitled to cast a burden upon the invitee to prove not only that he was injured as a proximate result of encountering a condition on the premises involving an unreasonable risk of harm, but also (upon the defendant's introduction of evidence raising an issue under the defense so pled) to prove as a part of his plaintiff's case that the occupier owed him a duty to take reasonable precautions to warn him or protect him from such danger, i. e., to negative the `no duty' doctrine invoked by the affirmative defensive pleading. Natalie K. Halepeska v. Callihan Interests, Inc., 6 Tex. Supreme Court Journal, August 3, 1963, pp. 644, 652, * * *." (Emphasis added.) This case was reversed on other grounds by the Supreme Court in Wesson v. Gillespie, 382 S.W.2d 921 (1964), but the Court did not pass on the question of pleading or submission of "no duty" issues, stating: "Assuming, without deciding, that the burden was on the defendant to request the `no duty' issues, * * *. In view of our disposition of the case, however, it is unnecessary for us to decide these difficult special issue matters on the submission of a `no duty' case." The most recent case we have found concerning the matter of pleading the `no duty' doctrine is Eagle Lincoln-Mercury, Inc. v. Hazlewood, 391 S.W.2d 180 (Tex.Civ.App.Fort Worth 1965, writ ref'd n. r. e.), in which the Court states in part: In a suit for damages brought by an invitee against the occupier, the latteras the defendant,if he pleads the defense of `no duty' in avoidance or as an affirmative defense under the provisions of Texas Rules of Civil Procedure, Rule 94, `Affirmative Defenses,is entitled to cast a burden upon the invitee to prove * * *." (Emphasis added.)
Defendant in the case before us plead only a general denial, failure to keep a proper lookout, and unavoidable accident. *878 Neither plaintiffs nor defendant requested any issues on open and obvious. It is our opinion that defendant was obligated to plead the defense of "no dutyopen and obvious," and having failed to do so it cannot complain of the court's action in failing to submit any issues thereon. We think such issues are in the nature of inferential rebuttal issues and should be specially pleaded. See Gillespie v. Wesson, supra, 370 S.W.2d at p. 921; Hodges on Special Issue Submission in Texas, Inferential Rebuttal Issues, § 17, p. 44 et seq. Under the pleadings and evidence in this case, we find no error of the court in not submitting any issue on "open and obvious." Defendant's points of error Nos. 1 and 2 are overruled.
Defendant also asserts there is no evidence "that plaintiff tripped on a serving tray stand or that the stand was leaning folded against a booth obstructing the aisle or that the stand was covered by coats or that defendant permitted coats to be put over the stand" (Point No. 6.); that the verdict of the jury is so against "the overwhelming weight and preponderance of the evidence as to be clearly wrong in finding that the tray stand was located against the back of the booth" (Point No. 7.); that the verdict of the jury is so against "the overwhelming weight and preponderance of the evidence as to be clearly wrong in finding that it was negligence for defendant to permit coats to be placed over the booth" (Point No. 8.); that "hearsay is no evidence that plaintiff was caused to fall by becoming entangled in a serving tray stand" and that admission of such hearsay testimony was prejudicially harmful (Point No. 4.); and that "the judgment is not sustained by the verdict because plaintiffs failed to request an issue whether plaintiff tripped on a serving tray stand" (Point No. 3.).
Without reviewing the evidence which we have heretofore set forth in some detail, it is our opinion, after careful consideration of the entire record, that the findings of the jury on which the trial court's judgment is based are supported by sufficient evidence.
We do not find any error of the court in admitting the spontaneous utterances of the bystanders who observed the accidentwe think they were admissible under the rule which admits res gestae statements as an exception to the hearsay rule. Truck Insurance Exchange v. Michling, 364 S.W.2d 172 (Tex.Sup.1963); Parking, Inc. v. Dalrymple, 375 S.W.2d 758 (Tex.Civ.App.San Antonio 1964, no writ); Missouri, K. & T. Ry. Co. v. Vance, 41 S.W. 167 (Tex.Civ.App.Austin 1897); 1 McCormick & Ray, Texas Law of Evidence, 2nd Ed. § 924, p. 708. It is generally held that the trial court has considerable discretion in passing upon the admissibility of the statement offered as a part of the res gestae. Truck Ins. Exchange v. Michling, supra; Parking, Inc. v. Dalrymple, supra.
Plaintiffs' failure to request an issue as to whether plaintiff tripped on the serving tray stand does not render the verdict and judgment thereon invalid. Under the record, there is no dispute in the evidence as to how Mrs. Garfield fell. It is plaintiffs' theory that her fall and injury were caused by the negligence of defendant in placing and permitting the tray stand to be located against the back of a booth in an area where its business invitees would come to place their coats, and the evidence, both direct and circumstantial, show that the injury could have occurred and did occur in the manner contended by plaintiffs. The cause of an accident may be inferred from the circumstances and both negligence and proximate cause may be established by circumstantial evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); Bock v. Fellman Dry Goods Co., 212 S.W. 635 (Tex.Com.App.1919, jdgmt. adopted); Renshaw v. Countess, 289 S.W.2d 621 (Tex. Civ.App.Fort Worth 1956, no writ). Defendant's points of error Nos. 3, 4, 6, 7 and 8 are overruled.
*879 By its point of error No. 5, defendant asserts that the judgment is not sustained by the verdict because plaintiffs failed to request issues whether defendant created or should have discovered the condition. Plaintiffs assert that point No. 5 should not be considered by this Court because defendant did not object to the failure of the trial court to submit an issue whether defendant created or should have discovered the condition. Defendant objected to the court's charge on the ground that there was no issue inquiring whether or not the defendant could have discovered the condition. Under Rule 274, Texas Rules of Civil Procedure, "A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection. Any complaint as to an instruction, issue, definition or explanatory instruction, on account of any defect, omission, or fault in pleading, shall be deemed waived unless specifically included in the objections." Safeway Stores, Inc. v. Bozeman, 394 S.W.2d 532 (Tex.Civ.App.Tyler 1965, writ ref'd n. r. e.); Hodges, Special Issue Submission in Texas, § 61, p. 155.
Assuming, without deciding, that such point of error was properly preserved for appellate review, we find no reversible error of the trial court in failing to submit the issue raised in this point. Under the undisputed evidence, the use of the serving tray stand was under the control and direction of defendant, and the tray stand was left in an area where defendant's business invitees would go to place their coats and hats, and plaintiff, one of defendant's business invitees, fell or tripped over such tray stand and was injured as a result thereof. No issues complained of by defendant in this point of error were requested by defendant and its point of error No. 5 is overruled.
By its point of error No. 9, defendant contends that the verdict of the jury is contrary to the overwhelming weight and preponderance of the evidence in finding that the failure of plaintiff to keep a proper lookout was not a proximate cause of the accident. Defendant asserts that the failure to keep a proper lookout was a proximate cause of the accident as a matter of law because all that plaintiff had to do was to stop walking before she reached the tray stand or walk around it and the accident would not have occurred.
Ordinarily, the issue of proximate cause is a question of fact for determination by the jury, Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951); Western Development Corp. v. Simmons, 124 S.W.2d 414 (Tex.Civ.App.El Paso 1939, writ ref'd); 40 Tex.Jur.2d, § 165, and in order for a court to hold as a matter of law that a certain negligent act was a proximate cause of the accident, the facts must be so clear that reasonable minds could not arrive at a different conclusion. International-Great Northern R. Co. v. Casey, 46 S.W.2d 669 (Tex.Com.App.1932, holding approved); Cave v. Texas & Pacific Ry. Co., 296 S.W.2d 558 (Tex.Civ.App.Eastland 1956, writ ref'd n. r. e.); Texas & N. O. R. Co. v. Stewart, 248 S.W.2d 177 (Tex. Civ.App.Waco 1952, writ ref'd n. r. e.); 40 Tex.Jur.2d § 165, p. 710. Under the record the jury's answer that plaintiff's failure to keep a proper lookout was not a proximate cause of the accident is sufficiently supported by the evidence.
Defendant, by its point of error No. 10, contends that the court erred in overruling its motion for mistrial made on the ground that the word "insurance" was injected into the case by plaintiffs' witness during the cross-examination of one of plaintiffs' witnesses by defendant's attorney. Such witness, in an unresponsive answer, testified that defendant's manager went to the telephone immediately after the accident to call the insurance company. It does not appear from the record that a motion for mistrial was made at that time, nor was any objection made to such testimony, or any motion to disregard or strike. Thereafter, *880 during the trial, defendant's own witness, a vice-president and general manager of defendant, in a voluntary and unsolicited statement testified that he was advised of the accident and immediately contacted the insurance people. Defendant complains only of the injection of insurance by plaintiffs' witness and not of the injection of insurance by its own witness. Both statements were voluntary and unsolicited and were not evoked by any fault of plaintiffs or their attorney.
The mention of insurance does not always require a reversal in a personal injury case. St. Louis Southwestern Ry. Co. v. Gregory, 387 S.W.2d 27 (Tex.Sup.1965); Dennis v. Hulse, 362 S.W.2d 308 (Tex.Sup. 1962). The latter was a case involving the injection of insurance by the plaintiff and the Supreme Court, in holding that mention of insurance does not always require reversal in personal injury actions, stated the following rule: "Under our practice an appellate court is not authorized to reverse merely because the record discloses some error that is reasonably calculated to cause a miscarriage of justice. The party appealing must also show that it probably did cause the rendition of an improper judgment in the case. Rules 434 and 503, Texas Rules of Civil Procedure." There is nothing in the record to indicate that the jurors discussed or considered the matter of insurance.
Our Supreme Court in Finck Cigar Co. v. Campbell, 134 Tex. 250, 133 S.W.2d 759 (1939), said: "It is a well settled rule in this jurisdiction that it is error to inform the jury that the defendant in an action for damages for personal injuries is protected by indemnity insurance. * * * (Citing cases.) But that rule has no application when the defendant, or one of his witnesses, voluntarily brings such information to the jury, and it is not brought through any fault of the plaintiff or his attorneys." See also Texas Textile Mills v. Gregory, 142 Tex. 308, 177 S.W.2d 938 (1944); Bishop v. Carter, 408 S.W.2d 520 (Tex.Civ.App.Waco 1966); Flatt v. Hill, 379 S.W.2d 926 (Tex.Civ.App.Dallas 1964, writ ref'd n. r. e.). Defendant's point of error No. 10 is overruled.
Defendant by point of error No. 11 asserts that the court erred in refusing defendant's requested instruction on the doctrine of avoidable consequences.[1] There was evidence that Mrs. Garfield had fallen while descending from the stands at a horse show subsequent to her fall in defendant's restaurant and this caused some aggravation of the injury. The evidence discloses that approximately a year after the El Rancho fall Mrs. Garfield was attending a horse show, in which her daughters were participating, and as she was coming down from the stands her leg gave way and she fell, striking her knee.
Our Supreme Court in City of Port Arthur v. Wallace, 141 Tex. 201, 171 S.W.2d 480 (1943), said: "The principle of law governing in this state of the record is stated in 15 Am.Jur., Damages, § 83, as follows:
`One who has received a personal injury as a result of the negligence of another can recover all damages proximately traceable to the primary negligence, including subsequent aggravations the probability of which the law regards as a sequence and natural result likely to flow from the original injury. Generally speaking, if the injured person conducts himself as would a reasonably prudent person in his situation and circumstances, but by his subsequent conduct innocently aggravates the harmful effect of the *881 original injury, whatever damage may be attributed to such aggravation of the injury is considered the proximate result of the original injury and recoverable as a part of the damages therefor. The original wrongful act is deemed the proximate cause of the entire injury, provided the act of the injured person which aggravates the injury is within the course of conduct of a reasonably prudent person under all the circumstances.'"
There is nothing in the record to indicate that Mrs. Garfield was not acting as a reasonable and prudent person under the situation and circumstances, and we find no error of the court in refusing to submit defendant's requested instruction.
Plaintiffs assert three cross points of error, but we do not deem it necessary to pass on the first two in view of our holding herein.[2] By their third cross point of error plaintiffs contend that the trial court erred in refusing to enter judgment for plaintiff Warren Garfield, for the use and benefit of the United States of America. Warren Garfield was an officer in the Armed Forces and a considerable portion of the medical and hospital services received by Mrs. Garfield was furnished by the United States Government. No damage issue pertaining to medical and hospital expenses was submitted to the jury, and it does not appear from the record that any such issues were requested by plaintiffs or that any objection was made by plaintiffs to the court's charge. We find no basis for any such recovery to plaintiff Warren Garfield under the record before us and plaintiffs' cross point No. 3 is overruled.
The judgment of the trial court is affirmed.
NOTES
[1] "In connection with issues Nos. 11, 12 and 13 you are instructed in connection with injuries and damages, if any, not to consider anything for the physical pain and suffering, nor for the lost or diminished capacity to earn money of Betty I. Garfield, nor for the loss of aid, comfort and assistance and society to Warran Garfield because of the failure of Betty I. Garfield in taking reasonable care of the injury and in preventing any aggravation of the injury."
[2] "CROSS POINT NO. I. There is no evidence to support the finding of the jury that plaintiff failed to keep a proper lookout."
"CROSS POINT NO. II. The verdict of the jury is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong in finding that plaintiff, Betty Garfield, failed to keep a proper lookout." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566779/ | 440 S.W.2d 919 (1969)
The COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellant,
v.
Billy J. KEMPE, Appellee.
No. 17262.
Court of Civil Appeals of Texas, Dallas.
April 25, 1969.
Rehearing Denied May 23, 1969.
Timothy E. Kelley, of Thompson, Knight, Simmons & Bullion, Dallas, for appellant.
John B. Foster, of Davis & Foster, Arlington, for appellee.
BATEMAN, Justice.
This appeal is from a judgment in favor of appellee for maximum workmen's compensation benefits, and the only questions raised are as to the adequacy of the evidence to support the jury findings of total permanent incapacity.
Appellant's points 1, 4 and 9, saying that there is no evidence to support such findings, and that the converse thereof was established by the evidence as a matter of law, are overruled. As will be shown later, there was at least some proof on these matters.
However, appellant's second, third, eighth and tenth points of error assert that the findings are not supported by sufficient evidence and are against the great weight and preponderance of the evidence. We have carefully studied the entire record and conclude that these points of error must be sustained. Our summary of the evidence follows.
Appellee testified that he had been continuously employed by appellant's insured, American Airlines, Inc., for sixteen years. On November 21, 1966 he pulled a mail cart or trailer which, with its load of mail, weighed about 2,000 pounds, and experienced a sharp pain in his lower back. He *920 completed that day's work although the pain continued. After trying unsuccessfully to see the company doctor, he went to Dr. Polson, a chiropractor, who treated him and told him it was "just a little catch or something and it would be all right." He stayed at home the next day, and thereafter was treated by two osteopaths, one of whom, after treating him three or four times, put him in a hospital on January 13, 1967. Except for the day after the injury, appellee worked all of the time until he went to the hospital, although his fellow employees helped him because he could not do the heavy lifting. When asked why he did not just take off and let his condition get better, he replied: "By golly, I had to eat and I've got four kids to feed; I just couldn't do it."
In the hospital a myelogram indicated a rupture of a disc in the lower part of his spine, and this disc was surgically removed. He was in the hospital a total of about fifteen days, and a little over three months after leaving the hospital he returned to work for the same employer.
Shortly prior to his injury the appellee had successfully undertaken a test to determine his qualifications to be made a "lead fleet service clerk," and when he returned from the hospital he became a "lead man" and was given light duty in the office. At that time he could not have done the stooping, lifting and bending that he formerly did, and does not think he will ever be able to do so, as his back still gives him difficulty. It gets to hurting at times and when it does he has to lie down. This has occurred several times while he was at work. He said that prior to his admission to the hospital, the pain was practically unbearable; that the operation relieved some of the pain, but that he still has some numbness in his left foot and ankle. He has passed up opportunities to do overtime work because that would probably consist of unloading cargo or heavy freight, which he could not do; that his back is weak and still gives him a tremendous amount of paint at times. He testified that at the time of trial his work consisted of "riding around or about halfway supervision" with a crew of men under him that he oversees; that they unload the airplanes and he does not have to pull these carts any more; that while he is not considered a supervisor he does direct other people; that with this new job he is making approximately 25 cents an hour more than he was making when injured.
Appellee further testified that if he lost his job at American Airlines and had to get another job, he could not do all of the tasks such as lifting and stooping and bending; he could not get out and do a hard day's work as a man of his low education would have to do in order to get a job; that he couldn't do the normal tasks of a workman; and that the overtime he has lost amounts to much more than the small increase in salary.
Appellee's wife testified that before the injury they were a very active family, going camping, hiking and boating very much; that appellee had cattle and worked with them and did his plowing, but "when he got down with his back he couldn't do this again"; that he hasn't been able to work around the home, take care of the yard, his farming needs or his cattle like he should.
Dr. T. T. McGrath, the osteopathic surgeon who removed the disc from appellee's back, described the operation in great detail, testified that there would be some permanent restriction to appellee's activities because of the loss of flexibility in his back, and that "it would be to his advantage to avoid certain stresses and strains and motions to avoid creating additional stress and strain to the adjacent or neighborhood tissues." He testified that he was familiar with the practices of corporations in hiring personnel, and that if he were examining appellee for employment he felt it would be his duty to mention the past medical and past injury and also restrictions. He said that he last saw appellee on March 20, 1967, at which time he *921 released him to return to regular duty for his employer, American Airlines, with restrictions as outlined to him; that when he last saw him appellee was recovering satisfactorily from the surgery, and he released him for regular work with certain restrictions; that a great many people he operates on for this very same condition do return to gainful employment and are able to do a regular day's work with the restrictions that he puts on them.
We have not found or had cited to us a reported case in which the facts were exactly like those in the case at bar, but the one most nearly like this one is Fidelity & Casualty Co. of New York v. Burrows, 404 S.W.2d 353 (Tex.Civ.App., San Antonio 1966, writ ref'd n. r. e.). As in this case, the employee there was employed by an airline to load and unload airplanes and received a low back injury. In both cases the employee returned to work for the same employer and made more money than before injury, and in both cases fellow workers assisted the injured employee by handling the heavier packages and leaving him the lighter work. In both cases the trial court gave substantially the definition of "total incapacity" approved in Texas Employers' Ins. Ass'n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000 (1944), and in both cases the jury found total permanent incapacity. The San Antonio court reversed and remanded, holding that those findings were so against the great weight and preponderance of the evidence as to be clearly wrong, saying:
"It would be wrong to say that appellee cannot obtain and retain employment when he has been doing so since June 1, 1964."
Likewise, we hold in this case that it would be wrong to say that Kempe could not obtain and retain employment, in the face of the admitted fact that he has been doing so since March 29, 1967.
Of course, the mere fact that a claimant works and earns money after being injured, even more money than he earned before, is not conclusive on the issue of his capacity to work. He may, driven by the goad of economic necessity, work when not physically able to do so. These are only evidentiary factors bearing on the issue of whether he has been rendered incapable of procuring and retaining employment. They are not overriding or controlling. 63 Tex.Jur.2d, Workmen's Compensation, § 462, p. 521.
As said in Employers' Reinsurance Corp. v. Holland, 162 Tex. 394, 347 S.W.2d 605, 606 (1961), "* * * the purpose of the Act is to compensate an injured employee, not for the loss of earnings or for the injury itself, but for loss of earning capacity." There is evidence in this record that would support a finding of total incapacity for a short period of time, followed by some permanent partial incapacity, but we are quite convinced that the findings of total permanent incapacity are so against the weight and preponderance of the evidence as to be manifestly wrong. Our decision finds support in Texas Employers' Ins. Ass'n v. Moran, 261 S.W.2d 855 (Tex.Civ.App., Eastland 1953, writ dism'd); Texas Employers' Ins. Ass'n v. Vineyard, 316 S.W.2d 156 (Tex.Civ.App., Dallas 1958, no writ); Texas Employers' Ins. Ass'n v. Hawkins, 387 S.W.2d 469 (Tex.Civ.App., Amarillo 1965, writ ref'd n. r. e.); Texas Employers' Ins. Ass'n v. Norton, 278 S.W.2d 287 (Tex.Civ.App., Amarillo 1955, writ dism'd); and the quite recent case of Travelers Ins. Co. v. Smith, 435 S.W.2d 248 (Tex.Civ.App., Texarkana 1968, writ dism'd).
Appellant's fifth, sixth and seventh points of error assert a right to reversal because the finding that appellee's total incapacity began on November 21, 1966 is not supported by any evidence, that the evidence is insufficient to support the finding, and that the finding is against the great weight and preponderance of the evidence. In view of our reversal and remand of the case for another trial, we deem it improper and unnecessary to discuss these points.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/696559/ | 55 F.3d 685
312 U.S.App.D.C. 120
NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.UNITED STATES of America, Appellee,v.Winston D. WEAVER, Appellant.
Nos. 92-3184, 92-3185.
United States Court of Appeals, District of Columbia Circuit.
April 24, 1995.Rehearing Denied June 7, 1995.
Before: EDWARDS, Chief Judge, WALD and GINSBURG, Circuit Judges.
JUDGMENT
PER CURIAM.
1
This cause came to be heard on appeal from judgments of conviction in the District Court. The cause was briefed and argued by counsel. The issues have been accorded full consideration by the Court and occasion no need for a published opinion. See D.C. Cir. Rule 36(b). It is
2
ORDERED and ADJUDGED, by the Court, that in Nos. 92-3184 and 92-3185, the judgments of the District Court are affirmed. The appellant failed to show that the police decision to delay his arrest until he sold crack cocaine, subjecting him to more severe penalties, amounted to outrageous misconduct or overcame his will. Cf. United States v. Lenfesty, 923 F.2d 1293, 1300 (8th Cir. 1991). The District Court did not impermissibly curtail appellant's cross-examination of the government's witnesses by limiting duplicative questioning. The prosecutor's cross-examination of defense witness Jeffrey Monroe on his prior convictions of crimes involving dishonesty and false statement was permissible for impeachment purposes under Federal Rule of Evidence 609(a). Even if parts of that cross-examination exceeded its permissible scope, any error was harmless because the witness, whose role in the trial was minor, had been thoroughly impeached on other grounds. For these reasons, the convictions are affirmed.
3
The Clerk is directed to withhold issuance of any mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 41(a). | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1919784/ | 146 N.J. Super. 291 (1977)
369 A.2d 949
RELIABLE WATER COMPANY, A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
v.
THE MONROE TOWNSHIP MUNICIPAL UTILITIES AUTHORITY, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued December 14, 1976.
Decided January 12, 1977.
*292 Before Judges HALPERN, BOTTER and KOLOVSKY.
Mr. Warren J. Kaps argued the cause for appellant.
Mr. William C. Moran, Jr. argued the cause for respondent (Messrs. Huff and Moran, attorneys).
PER CURIAM.
Plaintiff appeals from the denial of interest *293 on that portion of an arbitrators' award which had been disputed by defendant.
Defendant had acquired plaintiff's water company pursuant to a written contract providing for the establishment of fair market value by a panel of three arbitrators. The award was made on May 1, 1973. In its determination the arbitrators awarded $100,000 for the value of plaintiff's franchise. Defendant's objection to this portion of the award was upheld by the trial judge on plaintiff's application for confirmation of the award, but we reversed in an unreported opinion. Certification was denied by the Supreme Court. 68 N.J. 146 (1975).
On May 16, 1975 defendant paid the $100,000 plus interest of $1,643.84, calculated at 6% from the date of the Appellate Division's decision in February 1975. Plaintiff then moved to compel the payment of interest from the date of the arbitrator's award. This was denied by the trial judge "in view of the substantial controversy" over the allowance for franchise value in which defendant asserted "a meritorious position," although that position was rejected on appeal.
We conclude that the trial judge erred in denying interest on the award.
The contract provided for payment by defendant after the exercise of its option to acquire plaintiff's water company. The amount payable was to be determined by formula in which the arbitrators played their role. When that amount was determined defendant was obligated to pay a sum certain for the withholding of which interest will be awarded from the date that sum became due. Mahoney v. Minsky, 39 N.J. 208, 212 (1963) (a liquidated obligation normally carries conventional interest); Bachman Chocolate Mfg. Co. v. Lehigh Warehouse and Transp. Co., 1 N.J. 239, 244 (1949) (interest is allowed "where the damages are readily ascertainable" by computation using a fixed standard); Harsen v. West Milford Tp. Bd. of Ed., 132 N.J. Super. 365, 385 (Law Div. 1975) (an arbitration *294 award for a certain sum of money normally carries interest from the time it is due and payable). Interest is payable even if the principal obligation is disputed in good faith. Small v. Schuncke, 42 N.J. 407, 415-416 (1964), holding that a judgment in favor of the debtor which was later reversed did not toll the running of interest on a liquidated claim from the time it was due. See Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474 (1974), where the court said:
At least in the case of a liquidated sum, prejudgment interest has been regarded by our courts as compensatory to indemnify the plaintiff for the loss of what the monies due him would presumably have earned if payment had not been refused. * * * The basic consideration is that the defendant has had the use, and the plaintiff has not, of the amount in question; and the interest factor simply covers the value of the sum awarded for the prejudgment period during which the defendant had the benefit of monies to which the plaintiff is found to have been earlier entitled. See Small v. Schuncke, 42 N.J. 407, 416 (1964); Busik, supra, 63 N.J. at 359, 360. This consideration has controlled, and interest has been imposed even where, as here, the defendant had in good faith contested the validity of the claim. [65 N.J. at 506]
The contract between the parties gave defendant six months from the arbitrators' determination of fair market value in which to pay the amount of the award. Thus, the full amount became due on November 1, 1973. $100,000 having been withheld from that date until May 16, 1975, when it was paid, interest is allowed at 6% from November 1, 1973 to March 31, 1975 ($8500) and at 8% from April 1, 1975 to May 16, 1975 ($1000). See R. 4:42-11 (a). Defendant is entitled to a credit of $1643.84 for interest paid from the date of the prior decision of the Appellate Division. This leaves a balance of $7856.16 payable to plaintiff.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919789/ | 246 Pa. Superior Ct. 118 (1976)
369 A.2d 839
Bernard TOMASHEFSKI, Appellant,
v.
Joanne TOMASHEFSKI.
Superior Court of Pennsylvania.
Argued December 12, 1975.
Decided November 22, 1976.
*119 Robert B. Elion, Williamsport, for appellant.
No appearance entered nor brief submitted for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
*120 JACOBS, Judge:
This appeal raises the question of when a petitioner can be considered unable to pay the costs of his divorce for purposes of proceeding in forma pauperis. Because we find the lower court did not abuse its discretion in determining that the petitioner-appellant in the present case was financially able to pay the costs of his divorce, we affirm.
Petitioner, Bernard Tomashefski, filed a petition with the lower court for leave to bring an action in divorce in forma pauperis, i.e. without payment of costs and fees. As is its policy in reviewing such petitions, the lower court held a hearing to determine the veracity of petitioner's allegations of indigency. The testimony at the first hearing was not transcribed due to petitioner's failure to request a transcription, and therefore a second hearing was held at petitioner's request and the testimony transcribed. At the conclusion of the second hearing, the lower court judge found Mr. Tomashefski able to pay $200 toward the cost of his divorce, to be paid at $25 a month beginning two months from the date of the hearing.[1] The order indicated that $200 was the maximum that Mr. Tomashefski would have to advance for his divorce and if the fees and costs were less than that amount the excess would be refunded to the petitioner. If the expenses were greater than that amount, petitioner would, of course, be relieved of any obligation to satisfy them.
In his petition, Mr. Tomashefski indicated that his wife had left him in November 1973, he did not know her whereabouts or financial condition, that he was regularly employed at a job he had always held and at the time of the petition he lived with three children aged six, four and three. He alleged that his total income for the past *121 year was a net of $7,262.00 after taxes and other deductions were made, or about $605.00 a month.[2] According to the figures in the petition, his monthly expenses total between $483 and $508 including monthly installment payments of $98 on loans. Deducting his alleged expenses from his stated income, it seems that petitioner should be clearing $97 to $122 each month. In addition, the petition lists other loans which do not appear to be included in the installment payments totaling $520 for such things as a new refrigerator, new furniture and Christmas gifts.
At his hearing, the petitioner testified to a fluctuating income which we have computed to average $361.04 a month take home pay.[3] He also testified to receiving $96.00 every two weeks from welfare, which he asserts in his brief is not really a fortnightly payment but a semimonthly receipt totaling $192 a month. Assuming these figures are accurate, we reach a total of $553.04 income after taxes and deductions a month, or $6,636.48 a year. This income was apparently expected to increase shortly after the hearing as petitioner testified that he was soon to begin working five and one half days as opposed to simply five days a week. His expenses, including an anticipated increase in his rent, totaled $495 a month.[4] To these expenses we will add $32 for transportation *122 monthly which is the amount claimed in the petition, as that expense was not testified to at the hearing. The result is $527 of expenses a month, leaving petitioner with at least an additional $26.04 a month unaccounted for. Petitioner also testified that his household consisted of not three but two children, aged three and four, and in discussing his loans did not mention the $520 alleged in the petition in addition to his $98 monthly installment payments. The failure to allege these additional loans could mean, and apparently was taken by the lower court to mean, that they were satisfied between the time of the petition and the hearing.
It is important to note at this point that petitioner's take-home income, whether it is closer to $7,262 as alleged in the petition, or $6,636.48 as alleged in the hearing, is not reduced by medical or legal expenses, or by costs of day care for his children which is provided free of charge by the Headstart program along with two free meals a day. Furthermore, the figures set out above represent a decision to favor the petitioner whenever a doubt arose. Thus, the income figure does not include a probable raise in pay when petitioner begins to work an extra half day, whereas the expense figure does include an anticipated increase in living costs while not reflecting a probable decrease when the second child enrolls in Headstart. Even adopting this approach in analyzing petitioner's finances, however, he still has a surplus at the end of the month. In addition, the hearing judge, who not only reviewed the petition but had the opportunity to observe and question petitioner at two hearings, expressed his doubt concerning the reliability of the figures *123 which petitioner presented to the court. Due to the unexplained discrepancies in petitioner's varying representations of his financial condition, we believe the lower court was amply justified in concluding that petitioner's method of arriving at his figures was less than accurate and that the whole financial picture which he presented to the court was therefore suspect.
Pa.R.C.P. 1137 governs the right of an indigent party to proceed with a divorce without full payment of costs: "Prior to the commencement of the action, or at any time during its pendency, upon petition of a party averring his inability to pay all or part of the costs of the action, the court, upon being satisfied of the truth of the averments of the petition, shall enter an order permitting him to proceed upon payment of only those costs which the court finds he is able to pay. Costs include masters' fees and stenographic charges. The petition must disclose his full financial condition including his income and property." The rule was adopted in response to the opinion of the United States Supreme Court in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) which pronounced the due process requirement that the states make available a procedure by which individuals who are unable to pay may nevertheless have access to the courts in order to obtain a divorce. Whitehead v. Whitehead, 224 Pa.Super. 303, 307 A.2d 371 (1973).
In making its finding the Supreme Court was careful to stress that the due process right it outlined did not give free access to the courts without inquiry into the circumstances of each case. "In concluding that the Due Process Clause of the Fourteenth Amendment requires that these appellants be afforded an opportunity to go into court to obtain a divorce, we wish to re-emphasize that we go no further than necessary to dispose of the case before us, a case where the bona fides of both appellants' indigency and desire for divorce are here beyond *124 dispute." Boddie v. Connecticut, supra, 401 U.S. at 382, 91 S.Ct. at 788. Rule 1137 provides that the court must satisfy itself of the truth of the averment of inability to pay made in the petition before ordering that the petitioner may proceed by paying reduced costs or no costs. When a question has arisen under this rule in the past, this Court has referred the matter of determining the veracity of the petitioner's allegations to the lower court. See Whitehead v. Whitehead, supra; Wilson v. Wilson, 218 Pa.Super. 344, 280 A.2d 665 (1971).
Petitioner relies heavily on Gerlitzki v. Feldser, 226 Pa.Super. 142, 307 A.2d 307 (1973) in which this Court stated, "The question put by the Act of June 16, 1836 [P.L. 715, § 28, 5 P.S. § 72] is not whether petitioners are unable to pay the costs but whether they are in poverty. If they are in poverty, it follows that they are unable to pay the costs, and their petition should be granted. The Act, moreover, is to be read not with an accountant's but a housewife's eyes. `Poverty' does not refer solely to a petitioner's `net worth' but to whether he is able to obtain the necessities of life. Where, as here, petitioners allege that they have no income except public assistance benefits, and that their net worth is minimal, it appears prima facie that they are in poverty." Id. at 144-45, 307 A.2d at 308. There are, however, some notable distinctions between that case and the one at bar. In the first instance, the court in Gerlitzki was interpreting the Act of 1836 which deals with inability to pay the costs of an appeal from arbitration, not Rule 1137. Whatever the dispute in Gerlitzki regarding the interpretation of the qualifying phrase "by reason of poverty" which appears on the Act of 1836, it is clear in the present case that the question upon which we must focus, as it is posed by the rule, is the party's "inability to pay all or part of the costs of the action." Furthermore, the petitioners in Gerlitzki were shown to have no income except welfare benefits whereas the petitioner at bar receives *125 welfare only as a supplement to an income he is earning for himself. Finally, in Gerlitzki the judge failed to conduct a hearing, reaching his decision by merely considering the petition, and therefore had no basis for suspecting the truth of the allegations contained therein. Here, the judge observed the petitioner and reviewed his allegations of financial insufficiency at two hearings before determining that the petitioner did not present a full and accurate account of his financial affairs. Despite the finding that petitioner's testimony was conflicting and inexact and therefore to be received with some skepticism, the lower court attempted to sketch an outline of petitioner's financial picture. It is not surprising considering petitioner's apparent lack of concern for accuracy that the hearing judge, the author of this opinion, the dissent, and indeed petitioner himself, arrive at widely differing results in separately attempting to reconcile petitioner's figures. This tends to support the court's finding that petitioner's allegations lack credibility.
The standard set by the rule permitting a party to proceed without full payment of costs is proof of inability to pay. Mere receipt of supplemental public assistance does not mean that an individual is unable to meet the costs of his legal action. Although proof of financial need is necessary to qualify for public assistance, it would constitute an unrealistically pessimistic assessment of the welfare program to assume that the need persisted even after public funds were made available. The present case provides a good example of a situation where a family, with the help of some welfare assistance to supplement a small income, does make enough to afford the necessities of life and still have some money left over. Such a circumstance does not constitute inability to pay.
Petitioner's allegation that he had no money with which to pay for his divorce is clearly refuted by his own *126 evidence which demonstrates that after deducting necessary expenses from income he is in possession of extra money from which he could afford $25 a month toward the expenses of his legal proceeding and is further undermined by the lower court's finding regarding credibility.
The order of the lower court is affirmed.
SPAETH, J., concurs in the result.
HOFFMAN, J., files a dissenting opinion.
HOFFMAN, Judge, dissenting:
Appellant contends that the court below should have granted appellant's petition for leave to proceed in divorce without payment of fees and costs.
Susquehanna Legal Services represents appellant in these proceedings without compensation because appellant receives welfare assistance and, therefore, automatically qualifies as indigent. On August 13, 1974, appellant's affidavit reflected the following income and assets: assorted household furnishings, a 1967 Ford Mustang automobile, no real property, $90 per week from employment, and a supplementary grant of $120 every two weeks from the Department of Public Welfare under the Aid to Families with Dependent Children program. Appellant's affidavit recited the following expenses and obligations: rent, $60 per month; utilities, $33 to $48 per month; food, $30 per week; clothing, $10 to $20 per month; transportation expenses, $8 per week; babysitting, $30 per week; loan payments, $98 per month (on a balance of $2,353); and miscellaneous bills due, $520 total. Appellant filed his complaint in divorce, application to proceed in forma pauperis, and affidavit of income and expenses on September 30, 1974. On January 9, 1975, the court held a hearing on the application.
The Court of Common Pleas of Montour County holds hearings on all applications to proceed in forma pauperis, but does not customarily take notes of testimony. *127 After the first hearing, the court found that appellant was not indigent within the meaning of Rule 1137, Pa.R. C.P., and ordered that appellant pay $200 toward the costs of the divorce proceedings at the rate of $10 per week. At appellant's request, the court held a second hearing to permit the transcription of testimony. The second hearing was held on February 27, 1975, and the following facts were adduced: that appellant supported two young children who were in his custody, that he paid $60 per month for rent, that he would soon be paying $70 per month for rent; that he paid $55 per month for utilities; that his present take-home pay was $78 per week; that he received a public assistance supplementary grant of $96 every two weeks; that his income fluctuated seasonally to as much as $101 per week; that appellant paid $30 per week for a babysitter; that food cost $45 per week; that he owed $300 for taxes in 1974; and that all other expenses and income in the previous affidavit were re-affirmed. Further, appellant testified that he was unable to afford to buy clothing for the children. At the conclusion of this hearing, the court again held that appellant was not indigent, but ordered that the costs of $200 be paid at the rate of $25 per month. This appeal followed:
Rule 1137, Pa.R.C.P., provides:
"(a) Prior to the commencement of the action, or at any time during its pendency, upon petition of a party averring his inability to pay all or part of the costs of the action, the court, upon being satisfied of the truth of the averments of the petition, shall enter an order permitting him to proceed upon payment of only those costs which the court finds he is able to pay. Costs include masters' fees and stenographic charges. The petition must disclose his full financial condition including his income and property. No filing fee shall be required for the filing of the petition.
"(b) A petition by a plaintiff shall also include a statement of the financial condition of the defendant including *128 income and property, to the extent known to the plaintiff. The petition shall not be denied or delayed because of defendant's financial ability to pay the costs. The entry of an order relieving the plaintiff from costs of the action, in whole or in part, shall not relieve the defendant from any liability for payment of the costs of the action.
"(c) If the plaintiff has been relieved of the payment of all or part of the costs the court by general Rule or special order may provide the procedure by which the defendant may be required to pay such costs. Such proceedings shall in no manner delay or interfere with the disposition of the plaintiff's action."
Rule 1137 implements the United States Supreme Court decision in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), which held that a state may not deny access to its divorce courts because of the plaintiff's inability to pay the costs of the proceedings. See Schoepple v. Schoepple, 239 Pa.Super. 557, 361 A.2d 665 (1976).
In Gerlitzki v. Feldser, 226 Pa.Super. 142, 307 A.2d 307 (1973), our Court interpreted a statute[1] authorizing appeals in forma pauperis from arbitrators' awards if the appealing party is unable to pay the costs of the suit "by reason of poverty." We held that: "[t]he Act, moreover, is to be read not with an accountant's but a housewife's eyes. `Poverty' does not refer solely to a petitioner's `net worth' but to whether he is able to obtain the necessities of life. Where, as here, petitioners allege that they have no income except public assistance benefits, and that their net worth is minimal, it appears prima facie that they are in poverty." 226 Pa.Super. at 144-145, 307 A.2d at 308.
*129 In Schoepple v. Schoepple, supra, 239 Pa.Super. at 562, 361 A.2d at 668,[2] the lead opinion by Judge Spaeth noted that, "a distinction is to be drawn between the condition of `poverty' (called for by the Act of 1836) and the condition of `inability to pay all or part of the costs' (called for by Rule 1137). Of these two conditions, that of poverty is the more inclusive: one in poverty will not be able to pay costs; one not able to pay costs might not be in poverty (it would depend on the amount of the costs)." Thus, for the purposes of Rule 1137, the hearing judge must weigh the costs of the proceedings in the light of the litigant's available resources. Further, Schoepple, interpreting Rule 1137, adopted the reasoning of Gerlitzki, interpreting the Act of 1836, that a petitioner who receives public assistance is prima facie unable to pay costs and, thus, eligible to proceed in forma pauperis.
Appellant in the instant case receives a partial grant from state and federal funds under the Aid to Families with Dependent Children program (AFDC). "The AFDC program is one of three major categorical public assistance programs established by the Social Security Act of 1935. See U.S. Advisory Commission Report on Intergovernmental Relations, Statutory and Administrative Controls Associated with Federal Grants for Public Assistance 5-7 (1964) . . . The category singled out for welfare assistance by AFDC is the `dependent child,' who is defined in § 406 of the Act, 49 Stat. 629, as amended, 42 U.S.C. § 606(a) (1964 ed., Supp. II), as an *130 age-qualified `needy child . . . who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of the parent, and who is living with' any one of several listed relatives." King v. Smith, 392 U.S. 309, 313, 88 S.Ct. 2128, 2131, 20 L.Ed.2d 1118 (1968) (footnote omitted).
The AFDC program is administered by the Department of Public Welfare through County Boards of Assistance under the Act of 1967, June 13, P.L. 31, No. 21, art. 4, § 401 et seq.; 62 P.S. § 401 et seq.: "It is hereby declared to be the legislative intent to promote the welfare and happiness of all the people of the Commonwealth, by providing public assistance to all of its needy and distressed; that assistance shall be administered promptly and humanely with due regard for the preservation of family life . . . in such a way and manner as to encourage self-respect, self-dependency and the desire to be a good citizen and useful to society." Thus, the Congress and the legislature of the Commonwealth have attempted to provide the necessities of life to children who are needy and deprived of the support of at least one parent. An applicant for public assistance must establish to the satisfaction of the County Board that he qualifies for assistance under a very elaborate body of regulations, which are designed to qualify for assistance only those persons who cannot otherwise provide the basic essentials of life to their dependents. The County Board approves an application for assistance only after careful examination of an applicant's assets and available income. The approval, therefore, represents an administrative determination by the County Board that the AFDC recipient is needy.
In the instant case, appellant has worked for the same employer for 15 years. His income and the continued absence of his wife from the home qualifies him for assistance under the AFDC program. Thus, there has *131 been an administrative determination that appellant's children are needy and dependent under the Commonwealth's formula for AFDC eligibility. Appellant's only significant assets are a nine-year-old car, which he must have to travel to work, and various used household furnishings. Appellant testified that his monthly income from welfare and employment total $549.33[3] and that, due to seasonal fluctuations in earnings, his welfare supplement is adjusted to maintain his income at a constant level. Appellant testified that his monthly expenses total $566.08,[4] which include fixed monthly obligations incurred by appellant's wife. In addition to the $353 in unpaid balances on which appellant pays $98 per month, he owes $820 to other creditors including $300 in unpaid taxes. Review of the testimony indicates that appellant is in very bad financial straits and that the only conceivable way that appellant will be able to provide the necessities of life to his children is to forego litigation.
The clear, unambiguous policy of the United States Congress and the Commonwealth of Pennsylvania is to provide subsistence to needy, dependent children. Further, it is the intent of Rule 1137 to allow persons unable to pay the costs of litigation to proceed without payment of costs. It is illogical for the courts of this Commonwealth to require litigants who receive federal and state funds to purchase necessities for their children, to divert those funds to the payment of court costs to the county or to be barred from the relief which only the courts can give. I would, therefore, hold, that whenever an individual has qualified administratively for welfare payments, *132 he is prima facie indigent within the meaning of Rule 1137. Cf. Schoepple v. Schoepple, supra; Gerlitzki v. Feldser, supra. Having so qualified, he is presumptively indigent, and the burden shifts to the county to show: 1) that the welfare recipient is in fact not presently eligible for assistance; 2) that the recipient has presently available resources such that payment of cost will not reduce his ability to prove the necessities of life to his needy, dependent children, or 3) that the recipient's financial status is likely to change materially in the foreseeable future such that no hardship will be imposed if waiver of costs is not ordered. Absent such proof, it is an abuse of discretion to order a welfare recipient to pay costs incident to litigation.[5]
I would, therefore, reverse the order of the lower court, and grant appellant's petition to proceed in forma pauperis.
NOTES
[1] The court in its order noted that the costs would include master's and stenographer's fees and sheriff's and prothonotary's costs plus any miscellaneous items.
[2] In another place on the form petition, petitioner alleged a weekly take home income of $150.00: $60.00 a week from DPA and $90.00 a week from his employment.
[3] This figure is based on petitioner's testimony that he earns $78 a week during the year and between $96 and $101 during the summer. We have averaged his summer earnings at $98.50 weekly for 13 weeks and combined that total with 39 weeks of earning $78 a week.
[4] We arrive at this figure by taking all petitioner's alleged expenses at the figure he set except for food: $70 for rent (includes anticipated increase), $30 for gas (averaged), $15 for electricity, $130 for babysitters, $98 for loan repayments. Food was computed at $152, or $35 a week. Although petitioner testified, "Food varies about $28-$30 a week but then I am running back for more groceries. I would have to say about $45," the lower court found this an excessive estimation, and reduced the amount to $35 a week. We feel that the petitioner would agree that the lower figure represents a more accurate figure, which in fact he seems to have done in his supplemental brief. Our decision to use the lower figure is based on the fact that petitioner claimed only $30 for food for himself and three children in his written petition a mere six months previously; at the time of the hearing he claimed only two children aged three and four in his household; one child attends Headstart where she receives two free meals a day; and the other will soon begin the program.
[1] Act of June 16, 1836, P.L. 715, § 28, 5 P.S. § 72.
[2] In Schoepple v. Schoepple, supra, the lead opinion was authored by Spaeth, J., and joined by Hoffman, J. Price, J., wrote a concurring opinion in which Watkins, P.J., joined. Cercone, J., wrote a concurring opinion, and Van der Voort, J., concurred in the result. Jacobs, J., dissented. The lead opinion suggested the proper standard should be whether the petitioner was presently unable to pay the costs of litigation. The concurring opinions expressed the fears of three judges that such a standard was too generous and would permit persons to squander their resources and still qualify as indigent under the Rule. The holding proposed in this opinion would conflict with neither the lead opinion nor the concurring opinions.
[3] There is some conflict between the income and expense figures contained in appellant's petition and those to which he testified at the hearing. These discrepancies are relatively minor and, therefore, do not affect the result. At the hearing, appellant testified that he earned $338 per month and received a supplementary grant of $211.33 per month.
[4] See note 3, supra. This total is based on monthly expense figures of $70 for rent, $55 for utilities, $178.33 for food, $34.75 for transportation, $130 for babysitting and $98 for loan repayments.
[5] This is not meant to suggest that persons ineligible for welfare assistance bear any greater burden of proof or that the standards for qualification for welfare and for Rule 1137 are identical. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3034575/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-4117
___________
Zoumade Madjakpor, *
*
Petitioner, *
* On Petition for Review From
v. * an Order of the Board of
* Immigration Appeals.
John Ashcroft, Attorney General of *
the United States, * [UNPUBLISHED]
*
Respondent. *
___________
Submitted: December 17, 2003
Filed: May 24, 2004
___________
Before MELLOY, MCMILLIAN, and BOWMAN, Circuit Judges.
___________
PER CURIAM.
Zoumande Madjakpor, a native of Togo, seeks withholding of removal and
relief under the Convention Against Torture (CAT). Madjakpor claims his past
participation in a resistance movement would subject him to persecution and torture
if he were to be removed to Togo. The Immigration Judge denied withholding of
removal and ordered Madjakpor removed to the Ivory Coast where he had lived for
approximately twenty years. The removal order included Togo as an alternative
country of removal if the Ivory Coast refused to accept him. The Board of
Immigration Appeals affirmed the decision and Madjakpor petitions this Court for
review, challenging only his possible removal to Togo, not his removal to the Ivory
Coast.
Because Madjakpor makes no claim that removal to the Ivory Coast would
expose him to either persecution or torture, we hold his petition for review in
abeyance pending the outcome of the Attorney General's efforts to remove Madjakpor
to the Ivory Coast. If the Ivory Coast accepts Madjakpor, the Attorney General shall
so inform us of this fact, and we then will dismiss the petition as moot, since removal
to Togo would no longer be in order once the Ivory Coast has accepted him. If the
Ivory Coast declines to accept Madjakpor, the Attorney General shall so inform us,
and we then will proceed to adjudicate Madjakpor's claims regarding the suitability
of Togo as a country of removal.
Madjakpor also requests that we review the administrative denial of his request
for voluntary departure. This decision is unreviewable, and we therefore dismiss the
claim. 8 U.S.C. § 1229c(f) (2000). The Court retains jurisdiction over the petition
for review with respect to the request for withholding of removal and relief under the
CAT. The Attorney General may proceed with Madjakpor's removal to the Ivory
Coast.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/556485/ | 926 F.2d 663
59 USLW 2552
Oliver W. EIFLER, Petitioner,v.OFFICE OF WORKERS' COMPENSATION PROGRAMS, Peabody CoalCompany, and Old Republic Insurance Company, Respondents.
No. 90-1924.
United States Court of Appeals,Seventh Circuit.
Argued Dec. 19, 1990.Decided Feb. 27, 1991.
Leslie A. Jones, Johnson, Schaaf, Jones & Snelling, Thomas E. Johnson, Chicago, Ill., for petitioner.
Oliver W. Eifler, Chandler, Ind., pro se.
Donald S. Shire, Sol. Gen., Steven D. Breeskin, Rita Roppolo, Office of the Sol., Washington, D.C., John H. Secaras, Sol. Gen., Chicago, Ill., Sylvia T. Kaser, Melissa Reardon Henry, Black Lung Div., Carla Chapman, Ann McLaughlin, Benefits Review Bd., Dept. of Labor, Washington, D.C., W.C. Blanton, Terri A. Czajka, Ice, Miller, Donadio & Ryan, Indianapolis, Ind., for respondents.
Before POSNER, COFFEY, and RIPPLE, Circuit Judges.
POSNER, Circuit Judge.
1
This appeal from the denial of benefits under the Black Lung Benefits Act, 30 U.S.C. Secs. 901 et seq., requires us to decide whether an administrative law judge is authorized under the Act to correct his factual mistakes.
2
Oliver Eifler, who is now 77 years old, applied for black lung benefits back in 1980, after having worked in coal mines for 34 years. After a hearing, an administrative law judge denied his application in 1985 on the ground that Eifler had not been totally disabled by pneumoconiosis (black lung disease). Eifler did not appeal from this decision but did file a petition for modification (in effect for reconsideration) supported by additional medical evidence. The matter was referred to the original administrative law judge, who denied the petition. The Benefits Review Board affirmed the denial.
3
We are met at the threshold by the argument that an administrative law judge has no power to correct his mistakes of fact because the regulation authorizing him to do so, 20 C.F.R. Sec. 725.310(a), is contrary to the statute on which it is based. That statute--section 22 of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 922, incorporated by reference in the Black Lung Benefits Act, 30 U.S.C. Sec. 932(a)--provides that "on the grounds of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may ..., at any time prior to one year after the rejection of a claim, review a compensation case ... [and] issue a new compensation order." There thus are two grounds for modification. One is a change in conditions, and there is no question that the administrative law judge was authorized to modify the denial of benefits to Eifler on this ground, though he decided not to do so. The other ground is a mistake of fact, and it is here that the jurisdictional problem lies, by virtue of the statute's reference--omitted from the regulation--to "deputy commissioner." The statute authorizes a deputy commissioner to correct his mistakes but makes no reference to an administrative law judge's (or anyone else) being authorized to correct a mistake by an administrative law judge. In fact, there is no reference at all to administrative law judges in section 22.
4
History explains the omission and guides us to the solution of the interpretive puzzle. It used to be that the entire process for determining entitlement to benefits under the Longshore and Harbor Workers' Compensation Act was in the hands of officers of the Department of Labor known as "deputy commissioners." In 1972 Congress decided to amend the Act to conform the procedures under it to the Administrative Procedure Act. H.R.Rep. No. 1441, 92d Cong., 2d Sess. 3 (1972), U.S.Code Cong. & Admin.News 1972, 4698. To this end the amendment transferred all powers that the deputy commissioners had exercised with respect to hearings to administrative law judges (then called hearing examiners). 33 U.S.C. Sec. 919(d). As a result, the procedure for obtaining benefits under both the Longshore and Harbor Workers' Compensation Act and the Black Lung Benefits Act is bifurcated. The applicant still makes his application to a deputy commissioner, but upon the request of either party the deputy commissioner must refer the case to an administrative law judge for a hearing. 33 U.S.C. Secs. 919(a)-(d); Director v. Drummond Coal Co., 831 F.2d 240, 241 (11th Cir.1987). The same procedure applies to petitions for modification, because (as is plain from the reference to deputy commissioners in section 22) such a petition is submitted to the deputy commissioner in the first instance. Congress, undoubtedly through an oversight, failed to amend section 22 of the Longshore and Harbor Workers' Compensation Act to reflect the fact that any factual mistake which would warrant a reconsideration of a previous denial of benefits would now usually be committed by an administrative law judge and should be corrigible by him. But there is no insuperable obstacle, semantic or otherwise, to interpreting section 919(d) as effecting a substitution of "administrative law judge" for "deputy commissioner" in section 22 in any case in which either the original proceeding or the modification proceeding went to hearing before an administrative law judge. For then the mistake of fact if any will have been made by an administrative law judge, and the statute gives such judges all the adjudicative powers that deputy commissioners had exercised previously.
5
A contrary interpretation would have the bizarre consequence of making it impossible to correct mistakes in any longshore or black lung case that had gone to hearing. The deputy commissioner could not correct a mistake in such a case, for the mistake would have been made by the hearing officer, i.e., the administrative law judge, and the statute authorizes deputy commissioners to correct only their own mistakes. The resulting paralysis would be the unintended consequence of a statute (section 919(d)) the only purpose of which was to enhance the reliability of the hearing process by substituting administrative law judges for deputy commissioners having less status and independence. For almost twenty years the Department of Labor has proceeded on the assumption that the administrative law judge can correct his mistakes, and, as far as we are able to determine, not until this case did anybody think to challenge this administrative interpretation--to which we are required to give some deference. Chevron v. Natural Resources Defense Council, 467 U.S. 837, 844-45, 104 S. Ct. 2778, 2782-83, 81 L. Ed. 2d 694 (1984). An agency's power to reconsider its decisions for the purpose of correcting its mistakes has many times been said to be inherent, most recently in Rutherford v. United States, 806 F.2d 1455, 1460 (10th Cir.1986). "The power to reconsider is inherent in the power to decide." Albertson v. FCC, 182 F.2d 397, 399 (D.C.Cir.1950).
6
It is true that we and other courts, in decisions illustrated by Director v. Peabody Coal Co. (Sisk), 837 F.2d 295 (7th Cir.1988), have held that the deputy commissioner is not empowered to correct a mistake of fact by the administrative law judge. See also Director v. Palmer Coking Coal Co., 867 F.2d 552, 555 (9th Cir.1989); Director v. Kaiser Steel Corp., 860 F.2d 377, 379 (10th Cir.1988); Director v. Drummond, supra, 831 F.2d at 245. But those decisions are not inconsistent with the position we take today. The very fact that the 1972 statute substituted administrative law judges for deputy commissioners in hearings implies that the deputy commissioner is not authorized to reexamine a factual finding made by the administrative law judge after a hearing, for such a power would set at naught Congress's endeavor to make the administrative law judge the responsible hearing officer. No issue was raised in Sisk or, so far as we have discovered, in any other case concerning the power of the responsible hearing officer--the administrative law judge--to reexamine his own findings of fact.
7
The issue might seem to have little practical importance because a change of condition is an alternative ground for modification. But there is an important difference between the two grounds. A change in condition--a worsening of the applicant's black lung disease to the point where it is now totally disabling--entitles him to benefits from the date of the change. The correction of a mistake of fact, showing that he had totally disabling black lung disease at the time of the original hearing, entitles him to benefits from the date--which might be long before that hearing--on which he became totally disabled. Jarka v. Hughes, 299 F.2d 534, 536-37 (2d Cir.1962).
8
The evidence at Eifler's original hearing persuaded the administrative law judge that while Eifler might have mild pneumoconiosis, the cause of his being totally disabled was not that but instead cigarette smoking and obesity. The medical evidence consisted primarily of x-rays taken in 1980, except for one taken in 1983, and of the results of physical examinations of Eifler in 1980 and 1982. The evidence submitted with the petition for modification consisted of x-rays taken in 1986 and the results of a physical examination conducted that year. In the interim Eifler had quit smoking and lost weight. Nevertheless his condition had not improved--had in fact worsened, judging from the x-ray evidence.
9
The fact that Eifler's condition did not improve despite his quitting smoking and losing weight casts doubt on the accuracy of the administrative law judge's original determination that Eifler was not totally disabled as a result of pneumoconiosis. The administrative law judge did not consider, however, whether he might have made a mistake. This was not because he thought he lacked jurisdiction to correct his mistakes--the jurisdictional argument was not made to him--but because he thought Eifler had failed to seek modification on that ground and therefore had waived the point. But we do not think there was a waiver. The petition was not artful, but formal pleadings are not required in black lung or longshoremen's cases, Banks v. Chicago Grain Trimmers Ass'n, 390 U.S. 459, 465 n. 8, 88 S. Ct. 1140, 1145 n. 8, 20 L. Ed. 2d 30 (1968); Jarka v. Hughes, supra, 299 F.2d at 536; Stansfield v. Lykes Bros. S.S. Co., 124 F.2d 999, 1002 (5th Cir.1941), and the deputy commissioner to whom Eifler submitted his petition for modification had no difficulty construing it to raise both grounds--mistake of fact and change of condition--before forwarding it to the administrative law judge for hearing. This is indication enough that Eifler adequately raised the issue. Nor is it clear that he had to raise it, since the regulations (so far as relevant here) provide only that the hearing be confined "to those contested issues which have been identified by the deputy commissioner." 20 C.F.R. Sec. 725.464(a). The deputy commissioner can identify an issue that the parties have not raised, provided, of course, that he gives fair notice to them. He identified mistake of fact as an issue for the hearing before the administrative law judge.
10
The administrative law judge did address the issue of change of condition on the merits, and resolved it against Eifler primarily on the ground that the doctor who saw him in 1986 and whose report was part of the evidence submitted with the petition repeated his previous (and previously rejected) position that Eifler was totally disabled by reason of black lung disease. But a doctor who thought Eifler totally disabled earlier, and discovered nothing new that undermined his opinion, could only repeat that opinion. He could not say, "Eifler is now even more totally disabled"; totality like perfection does not admit of degrees. The report also indicated that Eifler had a lung infection brought on by his black lung disease, and the accompanying x-rays taken in 1986 indicated a deterioration in his condition. The administrative law judge disregarded this evidence that Eifler's condition had indeed changed for the worse.
11
We think the case must go back to the administrative law judge for further consideration of the issues of mistake of fact and change in condition, neither issue having been analyzed adequately in his opinion denying the petition for modification. O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 256, 92 S. Ct. 405, 407, 30 L. Ed. 2d 424 (1971). Of course we do not presume to prejudge the results of the remand.
12
VACATED AND REMANDED, WITH DIRECTIONS. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2694624/ | [Cite as State v. Pollard, 2011-Ohio-1437.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2010 CA 29
v. : T.C. NO. 09CR569
RICKEY POLLARD : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 25th day of March , 2011.
..........
LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E.
Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 W. Second Street, Suite 400, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
..........
BROGAN, J. (by assignment)
{¶ 1} Rickey Pollard appeals from his conviction of complicity to a breaking and
entering in violation of R.C. 2923.03(A)(2).
{¶ 2} In the early morning hours of June 1, 2009, Gloria Morgan observed
suspicious activity outside the Sidetrax Tavern in Springfield, Ohio. Morgan lived a short
2
distance from the bar and she made these observations while standing on her porch at five
o’clock in the morning. She testified as follows:
{¶ 3} “And so I was smoking, and I seen this one guy come at Sidetrax Tavern and
I seen him looking all down on the ground; and then he goes back around to the door and
then another guy comes around and does the same thing and then he goes back to the door
and then the other guy comes back and goes over to the dumpster; and I think, well, I don’t
know, maybe they’re just there for the cans. I mean because so many guys come there for
cans, you know; and I thought well, all right.
{¶ 4} “And they kept - and then the one guy, he looks at - down on the ground at
the side of the Sidetrax and then goes to the dumpster and then he comes back throwing his
hands all in the air, the one guy did, like he just didn’t know.” Tr., pp. 110-111.
{¶ 5} Ms. Morgan contemplated calling the police, but decided not to do so because
she did not “want to be wrong.” Tr., p. 111. She identified one man as “wearing a white
shirt and blue pants and he had a regular haircut.” Tr., p. 111. The “other guy was wearing
a blue shirt and blue jeans, and he had a cast on his leg and orange kinky hair.” Id. Neither
man she observed had a hat or jacket on. Tr., p. 126.
{¶ 6} After seeing this “suspicious” activity, Ms. Morgan returned to bed only to be
awoken by the bar’s alarm system an hour later at 6:00 a.m. Tr., p. 112. She returned to
her porch to see the guy without the brace walking away from the bar with a “great big white
container.” Tr., pp. 112-113, 129. According to Ms. Morgan the man with the white
container and the man with the leg brace “were separate the whole time.” Tr., p. 113. The
two men “did not leave together.” Tr., p. 114. They were “never both together.” Tr., p.
3
128. There was no exchange between the men. Id.
{¶ 7} According to Ms. Morgan, the man with the container then walked by the
paper delivery man (Fred Mays) and began to discuss something. Tr., pp. 129-130. There
were two men talking to the paper delivery man, and Ms. Morgan testified she “would
imagine” it was the two men she observed outside the bar. Tr. 130. She never saw a
heavy-built male. Tr., p. 131.
{¶ 8} Ms. Morgan observed Pollard in the courtroom and testified that the man she
saw had a regular hair cut, not long hair as Pollard. Tr., pp. 115-116. She also observed a
photo taken of Pollard shortly after the bar was broken into. Tr., pp. 117-118. She testified
that the cast worn by the man on the morning the bar was broken into was different than the
one Pollard wore in the picture. Tr., pp. 117-118, 133. On cross-examination, Ms. Morgan
testified that the style, color and type of hair in Pollard’s picture did not match the man’s
hair she saw that morning. Tr., p. 123. She also admitted that she never told the police
that one of the men she saw that morning had a cast on. Tr., p. 124.
{¶ 9} Fred Mays testified that while delivering papers at 6:00 a.m. that morning he
noticed “a couple of guys carrying a white bucket full of bottles.” Tr., p. 139. He opined
that his first impression was the men had gotten the bottles out of the dumpster next to the
bar. Id. He “stood there for a second staring at it and drove on.” Id. Mr. Mays then went
to Ms. Morgan’s house to deliver the paper and was told by her that two men had just broken
into the bar. Tr., pp. 139-140. Mr. Mays described the two men as follows: one “was kind
of stocky white male, tall and the other one was kind a skinny, carrying a bucket of liquor;
and the one was hollering ‘Come on let’s go.’ ” Tr., p. 140. One man was “wearing a black
4
jacket” and a “baseball cap”; the other was wearing a “hoodie.” Tr., p. 140. One of the
men was heavy-set. Tr., p. 140.
{¶ 10} Mr. Mays did observe a third man “further up the street” with a leg brace on.
Tr., pp. 140-141. The man with the leg brace walked passed Mr. Mays and was “behind”
him when he noticed the two guys with the white container full of bottles. Tr., pp. 148-149.
Mr. Mays identified Pollard as the man he saw “further up the street.” Tr., p. 141. Pollard
was not one of the men carrying the container. Tr., pp. 146-147. Mr. Mays admitted he
“really wasn’t paying any attention to ‘em ‘cause I was in a hurry trying to get done and go
home.” Tr., p. 149. Based upon his limited observation, Mr. Mays opined that the men did
not appear to be together. Tr., p. 150.
{¶ 11} The owner of the tavern, Melanie Meade, testified that she was called by the
police and notified of the breaking and entering of her bar. She testified that someone had
tried to kick the door to her tavern in, but was unsuccessful. Someone had thrown a
concrete brick through the window of the bar and entered the bar. Whoever entered knew
the password for the security alarm and managed to turn it off. She discovered that the thief
or thieves had stolen several half-gallons of liquor and money from the jukebox and video
game. She testified that one of the persons involved in the breaking and entering was
“serving time” for it and his brother’s girlfriend tended bar for her and had the pass-code.
(T. 91). Meade said there was a white trash can missing out of the bar’s men’s room.
Meade testified that she had seen Pollard in her bar on a previous occasion wearing a leg
brace similar to the one described by the police in their investigation. (T. 93). On
cross-examination, Meade stated a man in prison for the breaking and entering was Johnnie
5
Wade, Jr., a tall, skinny young man in his twenties. (T. 101).
{¶ 12} Angela Rogan testified she was “drinking buddies” with Pollard. (T. 153).
She testified that Pollard told her he was there when the Sidetrax was “robbed” but that he
didn’t do it, his nephew and cousin did. (Tr. 154). On cross-examination, Rogan testified
that Pollard told her that he heard that Johnny Wade had done the break-in. (T. 158).
{¶ 13} Officer Rex Ashworth of the Springfield Police Department testified he went
to the Sidetrax Tavern to follow up on the investigation. Ashworth testified Pollard was
present at the bar and Ms. Morgan was also present. Ashworth testified Morgan told him
that Pollard was the same build and wore the same clothing and leg brace she saw on one of
the suspects but she didn’t get a close enough look to identify him. Ashworth testified he
interviewed Fred Mays who gave him a description of what he saw the morning of the crime.
Mays told Ashworth he saw the man with the leg brace carry the white container with the
liquor bottles behind the tavern across the railroad tracks where a third heavy-set male was
waiting. Ashworth testified he showed a photo lineup to Mays who identified Pollard as
one of the persons he saw at the crime scene. Ashworth interviewed Pollard who stated he
was home at the time the break-in of the tavern occurred.
{¶ 14} Pollard testified that he did not help Wade and Hanke break into the Sidetrax
Tavern. He said he was home that morning in bed sick and his friends could vouch for him.
He said he heard his wife’s nephew, Johnnie Wade, committed the break-in. He denied
knowing Donald Hanke. On cross-examination, Pollard admitted he had been convicted of
aggravated burglary in 1989.
{¶ 15} Donald Hill, David Bass, and Joseph Tussing all testified they lived with
6
Pollard. They testified that Pollard went to bed at 10:30 the night before the break-in and
they saw him come downstairs the next morning at 10:30 in the morning. None could say
whether Pollard left the house early on the morning of the break-in.
{¶ 16} In his first assignment of error, Pollard contends the trial court erred when it
instructed the jury improperly concerning the culpability state necessary for complicity to
commit breaking and entering. Pollard argues that in order to convict him of the complicity
charge, the State was required to prove that he acted with the culpability required for the
commission of the underlying offense of breaking and entering. The State concedes the
court was required to instruct the jury that Pollard “purposely” aided and abetted another to
trespass into an unoccupied structure by force or stealth with the purpose to commit thereon
the offense of theft. Initially, the court improperly instructed the jury that the defendant
need only knowingly aid and abet another in the commission of the breaking and entering.
(T., pp. 280-281). No objection was made by counsel to the erroneous charge. The court
later corrected the erroneous charge by stating,
{¶ 17} “This is a complicity charge. You’ve been instructed that that means aiding
and abetting - that the allegation - another in the commission of the breaking and entering.
You can read into that instruction then that there was present in the mind of the defendant a
specific intention to aid and abet another in the commission of a theft.” (T. at 291).
{¶ 18} The court had earlier instructed the jury that a person acts purposely when it
is his specific intention to cause a certain result. (T. 282).
{¶ 19} The failure to object to a jury instruction constitutes a waiver of any claim of
error relative thereto, unless, but for the error, the outcome of the trial clearly would have
7
been otherwise. State v. Underwood (1983), 3 Ohio St.3d 12. The plain error rule should
be applied with utmost caution and should be invoked only to prevent a clear miscarriage of
justice. State v. Long (1978), 53 Ohio St.2d 91. The court’s erroneous instruction was
immediately corrected. Also, the defense raised by the defendant was not related to his
culpability state; it was an alibi defense. Pollard claimed he wasn’t there and the witnesses
misidentified him. We cannot say the outcome of the trial would have clearly been different
had the trial court not initially mispoke concerning the proper culpability state required of an
accomplice. The first assignment is overruled.
{¶ 20} In his second assignment, Pollard argues that the trial court erred in allowing
the prosecutor and two witnesses to comment that his accomplices had already pled guilty or
were in prison for their involvement in the break-in. The State argues that these pleas were
mentioned in the prosecutor’s opening statement and were not evidence and the jury was so
instructed.
{¶ 21} During the prosecutor’s opening statement the prosecutor stated in part the
following:
{¶ 22} “When the Defendant was arrested, in questioning he said that Johnny Wade,
Jr. was the one that broke in. Interesting that he would know that.
{¶ 23} “Also another person who pled guilty on this break-in was Donald Hanke
who is a heavy built white male, 6 foot three, 335 pounds.” (T., p. 19).
{¶ 24} No objection was made by Pollard’s counsel to the prosecutor’s statements.
During the trial, Melanie Meade testified that one of the persons involved was “now serving
time” for “this robbery.” (T., p. 91). She identified that person as Johnnie Wade, Jr. (T.,
8
p. 101). Later, Officer Ashworth testified that Johnnie Wade, Jr. and Donald Hanke
admitted their involvement in the break-in. (T., p. 173). Testimony from Fred Mays
established there were three men new to the bar when he made his observation. In closing
argument, the prosecutor stated the defendant’s nephew, Johnnie Wade, Jr., had already been
connected for his part in the break-in. (T. 251). No objection was ever made to any of this
testimony nor to the prosecutor’s remarks in opening and closing argument.
{¶ 25} Pollard notes that evidence that a co-defendant has pleaded guilty or has been
convicted of an offense stemming from the same facts forming the basis of the prosecution
against another is inadmissible as proof against the other. State v. Stewart, Seneca App. No.
13-08–18, 2009-Ohio-3411.
{¶ 26} The State argues that the guilty pleas were introduced for the purpose of
identifying the principal offenders and to show that the defendant did not have the same
build as Wade and Hanke which was later confirmed by eye witnesses. Testimony was
introduced that Wade was tall and thin, Hanke was tall and heavy set, and Pollard was
relatively short and of medium build. The State notes that this testimony was not
improperly emphasized or used as substantive evidence of Pollard’s guilt.
{¶ 27} In United States v. King (C.A.5, 1974), 505 F.2d 602, 607, the court made the
following assessment of reviewing cases like this where a defendant failed to object to a
mention that a co-defendant had pleaded guilty prior to trial:
{¶ 28} “In assessing King’s assertion of plain error in this case, then, we must
carefully examine all the facts and circumstances of the case in their proper ** context. The
presence or absence of an instruction is an important factor, but it is also essential to
9
consider other factors, such as whether there was a proper purpose in introducing the fact of
the guilty plea, whether the plea was improperly emphasized or used as substantive evidence
of guilt, whether the introduction of the plea was invited by defense counsel, whether an
objection was entered or an instruction requested, whether the defendant’s failure to object
to the testimony could have been the result of tactical considerations, and whether, in light of
all the evidence, the failure to give an instruction was harmless beyond a reasonable doubt.”
{¶ 29} It was proper for the State to introduce evidence of the physical
characteristics of Pollard’s accomplices. The prosecutor did not improperly emphasize the
fact that Wade and Hanke pled guilty to the breaking and entering nor did he argue that since
Wade and Hanke admitted their guilt, Pollard must also be guilty. No objection to this
testimony or the lack of a limiting instruction was made by Pollard’s counsel. There was
testimony by Angela Rogan that Pollard told her that he heard that his nephew did the
break-in.
{¶ 30} In his third assignment, Pollard contends the trial court erred in allowing
Officer Ashworth to give hearsay testimony from the State’s witnesses concerning the
identification of Pollard. Pollard contends these hearsay statements were more descriptive
of him than provided by the witnesses at trial.
{¶ 31} Ashworth testified he arrested Pollard at the Sidetrax Tavern four days after
the break-in. Ashworth testified that Pollard was “wearing basically the same clothing, and
had the same leg brace on. . .” he had on when he was seen four days earlier. Ashworth also
testified that Fred Mays told him the man with the leg brace carried the white container.
Tr., pp. 169, 176-177. Ashworth said Mays told him that one man “readily stuck out in his
10
mind because he had a leg brace on.” Id.
{¶ 32} The State argues that Ashworth’s testimony was not hearsay because it was
offered by him to explain his conduct while investigating the break-in. The State argues
that Ashworth’s testimony concerning Ms. Morgan’s statements to him was to explain why
Pollard was taken by him to police headquarters. The State argues that Ashworth’s
testimony concerning Mays was to explain why he asked Mays to examine a photo-lineup.
{¶ 33} Evid.R. 801(C) provides that hearsay is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted. Where statements are offered to explain an officer’s conduct while
investigating a crime, such statements are not hearsay. State v. Thomas (1980), 61 Ohio
St.2d 223; State v. Blevins (1987), 36 Ohio App.3d 147.
{¶ 34} In Blevins, the Franklin County Court of Appeals cited Thomas for the
admissibility of such statements but Judge Strausbaugh continued:
{¶ 35} “As Dean McCormick notes, however, the potential for abuse in admitting
such statements is great where the purpose is merely to explain an officer’s conduct during
the course of an investigation. McCormick, supra, Section 249, at 734. Our review of the
relevant Ohio case law finds no specific standards for the admission of such statements.
Accordingly, certain conditions should be met before the court admits statements which
explain an officer’s conduct during the course of a criminal investigation.
{¶ 36} “The conduct to be explained should be relevant, equivocal and
contemporaneous with the statements. 6 Wigmore, Evidence (Chadbourn Rev. Ed. 1976)
267, 268, Section 1772. Additionally, such statements must meet the standard of Evid.R.
11
403(A).”
{¶ 37} Judge Strausbaugh in a footnote opined that the defense counsel’s better
objection would have been on grounds of Evid.R. 402 or 403(B), since foundation can be
established by merely stating, “I came to know defendant through my conversations with X.”
{¶ 38} It is important to note that unlike Blevins, defense counsel made no objection
to Officer Ashworth’s alleged hearsay testimony. Evid.R. 103(A)(1) provides that error
may not be predicated upon a ruling which admits or excludes evidence unless a substantial
right of the party is affected, and in case the ruling is one admitting evidence, a timely
objection or motion to strike appears of record stating the specific ground of objection.
Crim.R. 52(B) provides that plain error or defects affecting rights may be noticed although
they were not brought to the attention of the court. Plain error does not exist unless it can
be said that but for the error, the outcome of the trial clearly would have been otherwise.
State v. Long (1978), 53 Ohio St.2d 91, para. two of the syllabus.
{¶ 39} Ashworth could have simply testified that after talking with Morgan and
Mays he arrested Pollard. The admission of this testimony was objectionable, but we
cannot say Pollard would probably have been acquitted without it. Defense counsel may
not have objected to Ashworth’s testimony concerning Fred Mays because Mays’ statements
to him contradicted his trial testimony. Defense counsel noted Mays’ contradictory
statement in his final argument. (T. 267). The appellant’s third assignment of error is
overruled.
{¶ 40} In his fourth assignment, Pollard contends his conviction was against the
manifest weight of the evidence and was based on insufficient evidence. Pollard argues that
12
viewing the evidence in its best light, the most it proved was he was in the area of the tavern
when the break-in occurred.
{¶ 41} Ms. Morgan testified that Pollard matched the general description of the man
with the leg brace she saw walking back and forth outside the Sidetrax at five o’clock in the
morning. When Pollard was arrested at the Sidetrax four days later, Ms. Morgan told police
Pollard was wearing the same clothing and leg brace as the morning of the break-in except
for a black jacket and black hat. (T. 132).
{¶ 42} Fred Mays testified he approached the tavern just after the break-in and
observed two individuals carrying a white trash can with bottles inside. He also saw a
person nearby whom he identified as his neighbor, Pollard. He noted that Pollard was
wearing a leg brace.
{¶ 43} “‘[S]ufficiency is a term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the evidence is legally sufficient to
support the jury verdict as a matter of law.’” State v. Thompkins, 78 Ohio St.3d 380, 386,
1997-Ohio-52, quoting Black’s Law Dictionary (6th Ed. 1990) 1433. “Whether the evidence
is legally sufficient to sustain a verdict is a question of law.” Id. “The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a reasonable
doubt.”State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus.
{¶ 44} Reviewing the evidence in a light most favorable to the prosecutor, the jury
could reasonably conclude that Pollard was present the morning of the break-in and was
acting as a “look-out” for Johnnie Wade, Jr., his nephew, and Donald Hanke who entered the
13
bar that morning.
{¶ 45} A weight of the evidence argument challenges the believability of the
evidence; which of the competing inferences suggested by the evidence is more believable or
persuasive. The proper test to apply to that inquiry is the one set forth in State v. Martin
(1983), 20 Ohio App.3d 172, 175:
{¶ 46} “The court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the jury lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.”
{¶ 47} While this issue is a closer question, we do not believe the jury lost its way in
finding appellant guilty of complicity to the break-in of the tavern. Ms. Morgan testified a
man matching Pollard’s description “with a leg brace” was walking up and down outside the
tavern consistent with “casing” the tavern before attempting to enter it. Mays knew Pollard
and said he saw him nearby two other men at the time of the crime. Pollard testified he was
not present that morning, but was home in bed sick. No evidence was presented that
suggested Mays was not a credible witness. Pollard’s nephew, Johnnie Wade’s wife, was a
bartender at the Sidetrax and had access to the pass-code. Ms. Morgan testified the alarm
rang only briefly consistent with the pass-code being entered to shut off the alarm by
someone familiar with it. Pollard’s alibi witnesses could only testify that they saw him go
to bed at ten o’clock the previous night and was not seen until 10:30 the next morning.
Pollard lived only two blocks from the tavern. The appellant’s conviction is not against the
manifest weight of the evidence either.
14
{¶ 48} The judgment of the trial court is affirmed.
..........
HALL, J., concurs.
FROELICH, J., concurring:
{¶ 49} The trial court initially instructed the jury, incorrectly, that the defendant need
only “knowingly” aid and abet another in the commission of a breaking and entering. The
judge later told the jury “This is a complicity charge. You’ve been instructed that that
means aiding and abetting - that the allegation - another in the commission of breaking and
entering. You can read into that instruction that there was present in the mind of the
defendant a specific intention to aid and abet another on the commission of a theft.”
{¶ 50} The Appellee says this “clarified the definition of purpose as it related to
Pollard’s complicity charge.” (Appellee’s brief, pg. 4). First, the indictment was for
complicity to commit breaking and entering, not complicity to commit theft.
{¶ 51} Second, the “clarification” did not say that the State must prove that the
defendant had a specific intention to aid and abet another in the commission a theft (or
breaking and entering), but rather, the jury could have heard, “You, the jury, can find from
my previous instruction, where I told you that you must find that the defendant only
knowingly aided and abetted another to trespass. . .with the purpose to commit a theft
offense, that I meant to tell you that there was a specific intention to aid and abet another in
the commission of a theft, trespass, or breaking and entering.”
{¶ 52} I find this less than clarified what culpable mental state the jury must find that
15
the State proved with regard to what offense. Nonetheless, especially since there was no
objection and the defense was that the defendant was not at the location (as opposed to he
was there but did not knowingly/purposely aid and abet anyone in doing anything), I agree
this was not plain error.
..........
(Hon. James A. Brogan, retired from the Second District Court of Appeals, sitting by
assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Lisa M. Fannin
Lucas W. Wilder
Hon. Richard J. O’Neill | 01-03-2023 | 08-01-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/492859/ | 826 F.2d 1059Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Charles Anegus ALLEN, Plaintiff-Appellant,v.Phillip G. DANTES, Chairman; Frances G. Stepter, AppealsClerk, Defendant-Appellee.
No. 87-6551
United States Court of Appeals, Fourth Circuit.
Submitted April 30, 1987.Decided Aug. 12, 1987.
Charles Anegus Allen, appellant pro se.
Karen Stakem Hornig, Assistant Attorney General, Office of the Attorney General of Maryland, for appellees.
Before WIDENER, K.K. HALL and WILKINS, Circuit Judges.
PER CURIAM:
1
Charles A. Allen filed this action pursuant to 42 U.S.C. Sec. 1983, alleging that he was denied access to the courts when a Baltimore City Circuit Court clerk declined to forward Allen's trial record to the Maryland Court of Special Appeals until he paid the required filing fee. See Md. Rule 1011. Allen demanded that the fee be waived and that the clerk be ordered to transmit the record immediately. Allen also claimed that the Maryland Parole Commission considered improper factors when Allen was denied parole. The district court granted defendants' motion for summary judgment. We affirm.
2
The district court dismissed Frances Stepter, a circuit court clerk, under the doctrine of qualified immunity. Because Allen sought only injunctive relief, that doctrine is inapplicable. See Pulliam v. Allen, 466 U.S. 522, 528-36 (1984); Wallace v. King, 626 F.2d 1157, 1161 (4th Cir. 1980), cert. denied, 451 U.S. 969 (1981). However, as this is a case in which the principle of comity demands that the federal court abstain, see Pennzoil Co. v. Texaco, Inc., ---- U.S. ----, 55 U.S.L.W. 4457, 4458-4459 (April 6, 1987), we affirm the decision below.
3
Allen's complaint concerning parole is directed not at parole procedures but at the factors taken into consideration when the Maryland Parole Commission denied him parole. Cf. Franklin v. Shields, 569 F.2d 784, 800 (4th Cir. 1977) (en banc) (per curiam), cert. denied, 435 U.S. 1003 (1978). As relief, he demanded that he be properly considered for parole and that he be given a copy of files used in making the parole determination. Because parole decisions and evidence to be relied upon in making such decisions are within the discretion of the parole commission, see United States v. Grayson, 438 U.S. 41, 47 (1978), the lower court properly concluded that Allen did not state a claim.*
4
As the dispositive issues recently have been decided authoritatively, we dispense with oral argument.
5
AFFIRMED.
*
Allen states that unspecified false information is in his prison file. However, as he has not made the showings required by Paine v. Baker, 595 F.2d 197 202-03 (4th Cir.), cert. denied, 444 U.S. 925 (1979), we lack jurisdiction to consider the claim | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/230798/ | 201 F.2d 140
ATCHISON, T. & S. F. RY. CO.v.SEAMAS.
No. 13246.
United States Court of Appeals, Ninth Circuit.
December 16, 1952.
Robert W. Walker and J. H. Cummins, Los Angeles, Cal., Peart, Baraty & Hassard, San Francisco, Cal., for appellant.
Michael & Papas, Stockton, Cal., for appellee.
Before DENMAN, Chief Judge, and BONE and POPE, Circuit Judges.
BONE, Circuit Judge.
1
Appellee brought this action under the Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq., for injuries sustained due to the alleged negligence of appellant, his employer, a common carrier by railroad engaged in interstate commerce. The jury returned a verdict in favor of appellee and awarded damages of $22,500. Judgment was entered on the verdict and this appeal followed.
2
The accident causing appellee's injuries occurred at appellant's Mormon Railroad Yard at Stockton, California on the night of December 9, 1950. In that portion of the yard here concerned there are two tracks, the No. 1 track on the north and the No. 10 track on the south, which run in a general east-west direction and converge at their easternmost points, from which junction there is a single track running to the east, known as the "tail track." The three tracks thus form a rough "Y" pattern. Extending west from tracks 1 and 10 are other tracks, numbered consecutively from the north to the south. Thus tracks 2, 3, 4, 5 and 6 are connected with the No. 1 track and tracks 7, 8 and 9 are connected with the No. 10 track.
3
The tracks are laid out in this manner to facilitate switching cars on to any one of the tracks numbered 1 to 10 where they might be needed. By properly setting the switches at the several track junctions, a car can be pushed west on the "tail track," "kicked," i. e., uncoupled, and propelled on to either track 1 or track 10 and from either of these on to any one of the tracks numbered 2 to 9.
4
On the night in question appellee was engaged in his duties as a switchman in the yard. The night was dark and foggy. An engine had pulled a train of five box-cars east on track 10 to the tail track preparatory to "kicking" them on to certain of the tracks numbered 1 to 10. As this was being done, appellee was setting switches to the north on track 1. The last, or westernmost car in the train, which we shall call car No. 1, was to be kicked on to track 9. This car, however, moved only a short distance past the junction of tracks 1 and 10 after being kicked, instead of moving on down track 10 and switching on to track 9. When the next car, which was to be placed on track 1, was kicked, it was seen by appellee that it was going to collide with car No. 1, since the latter car had not sufficiently cleared the junction of tracks 1 and 10. At appellee's direction the car was switched on to track 10, behind car No. 1, to avoid possible derailing of the second car. Thus the second car was coupled with car No. 1.1
5
Appellee then walked from the north to the space between the two cars to see that they had been coupled. He told his foreman, Mahan, who was on the south side of the cars, that he was going to go up and check the brake on car No. 1 to determine whether it was set. Mahan said, "Okay, kid, go ahead."2 Appellee climbed the ladder at the northwest corner of the car to the brake platform, which was a short distance from the top of the car. When he had one foot on the platform, the two cars were struck by the train of cars from the east, and appellee was knocked from the box-car to the ground, incurring the injuries for which this suit was brought. The signal to the engineer to move the train in to the two coupled cars was given by the foreman, Mahan, with the object of coupling and kicking car No. 1 to track 9, as originally planned.
6
Appellant's specifications of error are confined to two contentions. One relates to the giving of a certain instruction to the jury; the other charges that the damages awarded appear to have been given under the influence of passion or prejudice.
7
The claimed erroneous instruction reads as follows:
8
"When a foreman gives an employee an order, either expressly or by implication, the employee has a right to assume in the absence of warning or notice to the contrary, that he would not thereby be subjected to injury."
9
Appellant argues first that the effect of the instruction was to subject appellant to absolute liability for any injury incurred by appellee while acting in obedience to the order of the foreman. If this is the meaning which the law must attribute to the instruction, it would be erroneous since under the Federal Employers' Liability Act the employer's conduct need only measure up to what a reasonable and prudent person would have done under the same circumstances. The Supreme Court has held that a "jury should hold a master `liable for injuries attributable to conditions under his control when they are not such as a reasonable man ought to maintain in the circumstances', bearing in mind that `the standard of care must be commensurate with the dangers of the business.'"3
10
However, as we read the instruction, it has no bearing whatsoever on the question of what conduct of an employer will result in liability. The instruction is not that an employee acting in obedience to a superior's order has a right not to be injured. It provides only that upon being given an order by a foreman, an employee has a right to assume that he will not thereby be subjected to injury. What an employee is entitled to assume has a vital bearing on the question whether his acts are or are not negligent and the question whether the employer's liability, if any, should be reduced due to contributory negligence of the employee.4 But it in no way affects the question of what conduct of the employer will subject him to liability.5 In other instructions that question was fully covered by the court.
11
Appellant also argues that the effect of the instruction was to withdraw the question of contributory negligence from the jury, since it admonished in effect that where a foreman gives an employee an order, the employee, in the absence of warning or notification to the contrary, can proceed recklessly in obedience thereto, regardless of consequences, without being subject to a finding that his acts were negligent.
12
Appellee has read the word "notice" in the instruction as meaning "notification" and if this is a correct interpretation, there would be grave doubts as to the correctness of the charge. If this is its meaning, then the word "warning" in the instruction is unnecessary. We think a plain reading of the instruction would indicate that the word "notice" is used in the sense of "knowledge."6
13
Thus viewed, the instruction, as an abstract proposition of law, is more favorable to appellant than the law would warrant. The long-settled common law rule is that where an employee acts in obedience to a direct order of his principal or a vice-principal, he is not negligent unless the danger is so glaring and imminent that no reasonable person would incur it, even under orders.7 Even knowledge and appreciation of the danger will not be sufficient to charge the servant with negligence when acting in obedience to a direct command unless he not only knows what is the risk to be encountered, but also that it will probably be attended with injury which he cannot void by the exercise of care and caution.8
14
There remains another and more difficult question as to the correctness and adequacy of the challenged instruction. Appellant contends that it ignores the distinction between the effect of a general order, directing only what is to be done, and a specific order specifying not only what but how a thing is to be done. Here the order given by the foreman was general, directing appellee simply to check the brake on the boxcar, without specifying the manner or means of carrying out the order. It was appellant's theory at the trial that appellee was negligent in boarding the box-car from the north side out of sight of the engineer and foreman and in violation of the settled custom of the workers in the yard.
15
Where a general order is given, an employee must use ordinary care in its execution, and the giving of the order does not affect the question whether the servant has been negligent in his manner of carrying it out, where there is a choice open to him.9
16
Certainly the jury, under the challenged instruction, was obliged to find appellee negligent in the manner of carrying out the order if they found that he had "warning or notice" of danger. What remains of appellant's argument on this point is that the standard of care exacted of appellee in carrying out the order was fixed too low by the instruction. We are quite persuaded that it was for the jury to determine whether in appellee's choice of means in executing the order he exercised ordinary care, or, stated differently, whether appellee knew or should have known that his choice exposed him to an unreasonable risk. This question could not be resolved by simply finding that appellee had no warning or that he did not have notice that he might be subjected to injury. If the jury found that appellee should have known of the risk involved, i. e., had constructive notice of the risk, then appellee should still have been found to have been contributorily negligent.10
17
While the instruction does not make the distinction explicit, neither does it affirmatively misstate the law. Paraphrasing those parts here pertinent, the instruction is that when a foreman gives an order, the employee can assume that he will not thereby be exposed to injury. It means that the employee can assume he will not be subjected to injury by the order. Thus, before the employee can rely upon the order instead of independently exercising ordinary care for his own safety, there must be a relation of cause and effect between the order and his acts. Under the law as stated in the instruction, appellee could, in the absence of warning or notice to the contrary, assume that he could do the very act ordered, i. e., inspect the brakes on the car, without being subjected to injury. Thus far, he could rely upon the order. As to the preliminary means he chose to accomplish this task, the order was silent and he thus could not assume that in pursuing these means the order relieved him to any extent of the burden of independently exercising ordinary care for his safety.
18
But whatever doubt there might be about the above-stated interpretation of the court's instruction, and however adequate or inadequate was the instruction, when considered alone, we are convinced that when the instructions of the court are considered as a whole they adequately set out the law. The essence of appellant's argument is that the jury was erroneously instructed on the law of contributory negligence. In other instructions the court laid down fully and accurately the meaning and effect of contributory negligence.
19
The court also instructed on the effect of compliance and non-compliance with custom, which instruction patently referred to the alleged failure of appellee to follow the custom of working only within sight of the foreman and engineer. We do not believe the jury wrenched a contradiction to these complete and explicit admonitions from the single instruction here attacked. It is important to note that appellant did not specifically point out to the court below the distinction which he now urges here, nor did appellant ask that the instruction be supplemented in the respects in which we have indicated it might have been deficient. Moreover, we believe the omission was fairly supplied by the other instructions given, and we do not think the entire instruction on the subject was necessarily misleading or so liable to confuse that the giving of it would justify a reversal.11
20
Appellant's second specification of error is that the award of damages was excessive. No argument is pressed on the point beyond the bare assertion that appellee's injuries are not sufficient to justify the award made by the jury. In this connection our attention is called to Southern Pacific Co. v. Zehnle, 9 Cir., 163 F.2d 453. Suffice it to say that we have carefully examined the record and in light of the evidence of the nature of appellee's injury, his pain and suffering, his disability, the prolonged medical attention necessitated, and his past and prospective loss of earnings, we believe there is ample basis of probative facts to support the conclusion reached by the jury.12
21
The judgment is affirmed.
Notes:
1
The evidence on this point was disputed at the trial. Appellant's evidence was to the effect that only one car was on track 10 at the time immediately preceding the accident
2
At the trial the stated conversation between appellee and Mahan was denied by Mahan, appellant's witness, but the questions raised on the appeal assume that the conversation in fact occurred
3
45 U.S.C.A. § 51; Wilkerson v. McCarthy, 336 U.S. 53, 61, 69 S. Ct. 413, 417, 93 L. Ed. 497
4
45 U.S.C.A. § 53
5
Appellant's argument on this point is that an employee has only the right to assume that his employer has used ordinary care for the employee's safety, citing Griswold v. Gardner, 7 Cir., 155 F.2d 333, 335, and Foxe v. Southern Pacific Co., 121 Cal. App. 633, 9 P.2d 514. In the Foxe case the issue was whether the employee had "assumed the risk." The Griswold case involved the question, inter alia, whether it was proper to instruct the jury that "The employee has a right to assume that his employer has exercised ordinary care with respect to providing him with a reasonably safe place of work." In neither of the cases was there involved a direct order of the employer or a vice-principal to the employee. However, both contain language which seems to support appellant's argument that an employee has a right to assume only that his employer has used ordinary care
The use of the language in the cases thus relied upon by appellant can only be understood against the background of the law on "assumption of the risk" in cases involving actions of employees against employers for personal injuries. Where the doctrine of assumption of the risk has vitality, it is often held that it is part of the employee's burden of proof in an action against his employer to negate any "assumption of the risk" on the theory that where such assumption exists, the employer has no duty toward the employee, and a duty must be shown in order to establish negligence. See the discussion of this point in Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S. Ct. 444, 87 L. Ed. 610, and particularly Justice Frankfurter's concurring opinion in the same case 318 U.S. at page 68 et seq., 63 S. Ct. 444.
It is in these cases that the expression that the employee is entitled to "assume that the employer has used due care" is meaningful, since it is an assertion that under the circumstances the employer has a duty toward the employee which ordinarily would not exist. See, e.g., 4 Labatt, Master and Servant, 3802-3805; 56 C.J.S., Master and Servant, § 390, p. 1207; 4 Mechem, The Law of Agency, 1213-1214. In each of the works cited there is language that under certain circumstances, the "servant is entitled to assume" that the employer has used due care for the servant's safety, or language similar thereto, and such language is used to point out exceptions to the usual rule that the servant "assumes the risks" of his employment. This, it is submitted, explains why the court in the Griswold case, supra, spoke of the right of the employee to "assume" that the master had used ordinary care for the employee's safety as the correlative of the master's duty toward the employee, and thus gave the term "right to assume" the same meaning as "right."
The doctrine of assumption of the risk was completely abolished in Federal Employers' Liability cases by the 1939 amendment to the Act. 45 U.S.C.A. § 54; Tiller v. Atlantic Coast Line R. Co., supra. Therefore, if there was ever a reason to use the language that the employee is entitled to "assume" that the employer has used due care, there should no longer be occasion for such language. The law could be better expressed simply in terms of rights and duties, as in the case of the ordinary negligence action involving parties who do not stand in the employee-employer relation.
What the employee is entitled to "assume," if the language is used at all, should logically go only to the question whether the employee has been contributorily negligent. And it is patent that this is the sense of the instruction which is under scrutiny in the instant case. There is authority for the use of such language in connection with the question of whether or not an employee has been contributorily negligent when acting in obedience to orders of his superiors. See Hardy v. Chicago, R. I. & P. Ry. Co., 149 Iowa 41, 127 N.W. 1093, 1095; Illinois Steel Co. v. Schymanowski, 162 Ill. 447, 44 N.E. 876, 879. However, the law could be better expressed in terms more definitely indicating that the question involved is one of contributory negligence, than in terms of what the employee has a right to "assume," in view of the confusing connotations of the latter term.
6
This also appears to be the sense in which the word was used in Republic Iron and Steel Co. v. Berkes, 162 Ind. 517, 70 N.E. 815-817, on which appellee relies
7
Port Angeles Western R. Co. v. Tomas, 9 Cir., 36 F.2d 210; Ingram v. Prairie Block Coal Co., 319 Mo. 644, 5 S.W.2d 413; Central of Georgia R. Co. v. Lindsay, 28 Ga.App. 198, 110 S.E. 636; Hardy v. Chicago, R. I. & P. R. Co., 149 Iowa 41, 127 N.W. 1093; Rush v. Brown, 153 Kan. 59, 109 P.2d 84; Illinois Steel Co. v. Schymanowski, 162 Ill. 447, 44 N.E. 876; Usry v. Augusta Southern R. Co., 24 Ga.App. 722, 102 S.E. 184; Sorenson v. Northern Pacific R. Co., 53 Mont. 268, 163 P. 560; James v. Chicago, St. P., M. & O. R. Co., 218 Minn. 333, 16 N.W.2d 188; Tuttle v. Hanckel, 179 S.C. 60, 183 S.E. 484; Missouri Pac. R. Co. v. Brown, 195 Ark. 1060, 115 S.W.2d 1083; Oakes v. Mohon, 208 Miss. 478, 44 So. 2d 551; 4 Labatt, Master and Servant, 3933-3934; 56 C.J.S. Master and Servant, § 464
8
Hardy v. Chicago, R. I. & P. R. Co., 149 Iowa 41, 127 N.W. 1093; Oakes v. Mohon, 208 Miss. 478, 44 So. 2d 551; 4 Labatt, Master and Servant, 3932-3933, (Second edition). For comments on the basis of this rule see p. 3935 et seq., Labatt
9
Nichols v. Oregon-Washington R. & Nav. Co., 120 Wash. 262, 206 P. 939; Loftin v. Joyner, Fla., 60 S.2d 154; 4 Labatt, Master and Servant, 3953-3955
10
This distinction is also made in Atlantic Coast Line R. Co. v. Dixon, 5 Cir., 189 F.2d 525, though there it was the standard of care of the employer which was under scrutiny
11
Chicago, M., St. P. & P. R. Co. v. Harrington, 9 Cir., 185 F.2d 88, 92; Quinn v. Swift & Co., D.C.M.D.Pa., 20 F. Supp. 234, 239, 240; Chicago & N. W. R. Co. v. Grauel, 8 Cir., 160 F.2d 820, 824, 825
12
Lavender v. Kurn, 327 U.S. 645, 652, 653, 66 S. Ct. 740, 90 L. Ed. 916
22
POPE, Circuit Judge (concurring specially).
23
I think this instruction was distinctly misleading and that it was error to give it. An important circumstance in the case was the fact that when the plaintiff climbed on the car he went up in a place where he was hidden from the view of the men in the locomotive cab, contrary to the customary and accepted practice. This circumstance had an important bearing both upon the question whether the men on the locomotive were negligent, and upon the question whether the plaintiff himself was careless.
24
I am satisfied that with these circumstances before the jury, the giving of this instruction could serve no purpose except to mislead by creating a general impression that the fact that an order was given somehow relieved the plaintiff of his burden of proof on the issue of defendant's negligence, and eased his duty in respect to his own care. In my opinion this instruction had the same kind of vice found in the instruction held erroneous in Atlantic Coast Line R. Co. v. Dixon, 5 Cir., 189 F.2d 525.
25
I also think the instruction was bad because it did not relate to the facts in the case, for plaintiff was not ordered to go up on the wrong side of the car, although this instruction implies that he was. As to this point, however, I agree that it was not preserved by proper objection.
26
The problem here is whether what I think was clearly error was nevertheless non-prejudicial within the meaning of Fed. Rules Civ.Proc. Rule 61, 28 U.S.C.A. An erroneous instruction is not cured merely by adding an inconsistent correct one. Fillipon v. Albion Vein Slate Co., 250 U.S. 76, 83, 39 S. Ct. 435, 63 L. Ed. 853. Cf. McCandless v. United States, 298 U.S. 342, 347, 56 S. Ct. 764, 80 L. Ed. 1205; Lynch v. Oregon Lumber Co., 9 Cir., 108 F.2d 283. After much doubt, I have concluded that if this charge is read as a whole I must agree that the majority opinion reaches a proper conclusion by in effect labeling this as harmless error. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/301624/ | 455 F.2d 917
Melvin LINDSAY, Petitioner-Appellant,v.John N. MITCHELL, United States Attorney General, et al.,Respondents-Appellees.
No. 71-3213 Summary Calendar.*
United States Court of Appeals,Fifth Circuit.
Feb. 25, 1972.
Melvin Lindsay, pro se.
John N. Mitchell, Atty. Gen., Dept. of Justice, Washington, D. C., John W. Stokes, Jr., U. S. Atty., Charles A. Pannell, Jr., William P. Gaffney, Asst. U. S. Atty., Atlanta, Ga., for respondents-appellees.
Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.
PER CURIAM:
1
Lindsay, a federal prisoner, appeals from the denial of his pro se petition for writ of habeas corpus against the Attorney General of the United States and the warden of the United States Penitentiary at Atlanta, Georgia. The District Court treated the petition as one for writ of mandamus.
2
Appellant alleges that his transfer to the federal penitentiary at Atlanta, Georgia, from the Lewisburg, Pennsylvania, penitentiary is cruel and unusual punishment inasmuch as it deprives him of seeing his family who reside in Pennsylvania and are unable to travel to Atlanta because of indigency. The District Court properly dismissed this claim. 18 U.S.C. Sec. 4082; Mullican v. United States, 5 Cir., 1958, 252 F.2d 398. Appellant further alleges that he is being deprived of good-time credit, which issue the District Court failed to consider, necessitating our remanding for an evidentiary hearing and appropriate findings and conclusions.
3
Although the petition is inarticulately drawn, it is apparent therefrom that appellant is protesting the arbitrary failure of prison authorities to restore forfeiture of credit for the alleged earned good time. It is immaterial that the remedy sought will not result in his immediate release. Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968). See also Johnson v. Avery, 393 U.S. 483, 89 S. Ct. 747, 21 L. Ed. 2d 718 (1969); Glazier v. Hackel, 9 Cir., 1971, 440 F.2d 592. While forfeiture of good-time credit is a function which addresses itself to prison administration, subject to supervision by the Attorney General of the United States, 18 U.S.C. Secs. 4165, 4166; Gilchrist v. United States, 5 Cir., 1970, 427 F.2d 1132, an alleged abuse of that function constitutes proper grounds for federal judicial review. Sexton v. United States, 5 Cir., 1970, 429 F.2d 1300. In the absence of findings by the District Court, we have no way of determining whether such abuse exists. Exhibits attached to appellant's petition show his attempts to obtain the relief sought, including a letter from the Director of the Bureau of Prisons acknowledging his request for restoration of credit. Thus it appears petitioner has exhausted his administrative remedies and his resort to judicial review is proper. 18 U.S.C. Sec. 4166; Gilchrist v. United States, supra.
4
The order is vacated and the matter is remanded for hearing on the good-time credit issue; affirmed in all other respects.
*
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1562424/ | 960 A.2d 591 (2008)
Mulatua GOBA, Petitioner,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and
Au Bon Pain Company, Inc. and Wausau Insurance Company, Intervenors.
No. 07-AA-597.
District of Columbia Court of Appeals.
Argued October 7, 2008.
Decided November 20, 2008.
*592 Benjamin T. Boscolo, Greenbelt, MD, for petitioner.
Mary T. Connelly, Assistant Attorney General for the District of Columbia, with whom Linda Singer, Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General for the District of Columbia, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for respondent.
Donald P. Maiberger argued the case and Anita U. Ajenifuja filed a brief, for intervenors.
Before RUIZ, GLICKMAN, and FISHER, Associate Judges.
GLICKMAN, Associate Judge:
Petitioner Mulatua Goba seeks review of a decision by the Compensation Review Board ("CRB") of the Department of Employment Services ("DOES") denying her request for an award of attorney's fees she incurred in connection with her worker's compensation claim. Because Goba did not meet the statutory criteria for a fee award, we affirm.
Goba suffered temporarily disabling head and neck injuries when a set of pots fell on her while she was working at Au Bon Pain. She filed her claim for workers' compensation benefits on December 6, 2005. On or about that same date, Goba retained the law firm of Chasen & Boscolo to assist her with her claim. A few days later, Au Bon Pain's insurance carrier notified Goba's attorney that her claim was accepted. The carrier requested Goba's medical records and wage loss documentation in order to determine what compensation to pay her.
Apparently because the carrier had difficulty obtaining the documents it sought, its payment of Goba's compensation was delayed.[1] Accordingly, on January 11, 2006, Goba's attorney asked the Office of Workers' Compensation to schedule an informal conference on her claim. On March 6, 2006, shortly before the informal conference was to have been held, Goba started receiving her compensation payments.
Asserting that Au Bon Pain and its carrier (hereinafter "Intervenors") had been *593 "unwilling to voluntarily pay the benefits [she] sought" until they were prodded to do so by her attorney's request for an informal conference, Goba petitioned DOES for an award of her attorney's fees under D.C.Code § 32-1530(a) (2001).[2] Intervenors opposed the request, contending that they had "voluntarily agreed to pay any applicable compensation well before any conference took place." A claims examiner denied Goba's request to assess Intervenors for her fees. Goba appealed to the CRB, which upheld the examiner's ruling.
Although Intervenors promptly accepted her disability claim, Goba contended that their tardy payment (approximately 90 days after they were notified of her claim) entitled her to a fee award under D.C.Code § 32-1530(a). The CRB disagreed for two reasons. First, as it construed the statute, a claimant is not eligible for an award of attorney's fees unless her employer (or its carrier) "decline[d]" to pay compensation because it denied liability under the Workers' Compensation Act. In agreement with the claims examiner, the CRB found "no evidence" that Intervenors had "`declined' at any time to pay compensation for any reason other than the need to verify the nature and amount of the benefits sought." As the CRB explained, D.C.Code § 32-1530(a) "does not concern itself with mere late payment, or with delays in payment, whether reasonable or unreasonable;" unlike other provisions of the Workers' Compensation Act, the fee-shifting statute "is intended to encourage voluntary payment of benefits, not timely payments."
Second, the CRB held, D.C.Code § 32-1530(a) does not authorize an award of attorney's fees unless the claimant has obtained (through the successful efforts of her attorney) an "award of compensation," i.e., a compensation order. Such an award, the CRB explained, "can only come about as a result of Agency action (after a `successful prosecution') through the issuance of a Memorandum or Recommendation issued by the Office of Workers' Compensation (OWC) following an informal conference which thereafter becomes a final order, or following a formal hearing conducted by the Administrative Hearings Division (AHD)." In this case, there was no award of compensation, because no informal conference or formal hearing proved to be necessary.
In her petition for review in this court, Goba does not challenge the factual findings on which the CRB relied, but only its interpretation of D.C.Code § 32-1530(a). The question is one of law and our review is de novo,[3] though our policy in deference to the agency's expertise and responsibilities is to accept the CRB's interpretations of the Workers' Compensation Act if they are reasonable in light of the statutory language, the legislative history, *594 and judicial precedent.[4]
We agree with the CRB's first reason for rejecting Goba's request, that a claimant is not eligible for an award of attorney's fees under § 32-1530(a) unless the employer (or carrier) disputed liability. That is not merely a reasonable interpretation, it is the only interpretation compatible with the unambiguous statutory language. We therefore find it unnecessary to address the CRB's second reason, that an "award of compensation" in a compensation order is a prerequisite to a fee award.
By the plain language of § 32-1530(a), the mere failure to pay compensation within thirty days of receiving written notice of a claim is not enough to expose an employer or carrier to an attorney's fee award. Rather, fees may be awarded only "[i]f the employer or carrier declines to pay any compensation ... on the grounds that there is no liability for compensation...."[5] Thus, while other provisions of the Workers' Compensation Act address tardy payment of compensation,[6] § 32-1530(a) addresses a different matter the employer's (or carrier's) decision to contest liability and require the employee "thereafter [to] utilize[] the services of an attorney-at-law in the successful prosecution of his claim" for disability benefits.[7] Goba's alternative interpretation of the statute that every failure to pay compensation within thirty days may support a fee award, regardless of the reason ignores the express requirement that the employer's or carrier's refusal to pay must be "on the grounds" of lack of liability. An interpretation of the statute that nullifies some of its language is neither reasonable nor permissible.[8]
In order to dispute liability, the employer should file a timely notice setting forth "the grounds upon which the [employee's] right to compensation is controverted."[9] But an employer cannot "evade [attorney's] fee liability" for refusing to *595 pay compensation by the simple expedient of remaining silent and "failing to decline payment formally."[10] Where an employer fails to pay compensation but is silent as to the reason (or, conceivably, advances an invalid, pretextual justification), the fact finder should be able to infer that the employer declined to pay because it denied liability.
The history of § 32-1530(a) only confirms the CRB's reading. The statute is derived from, and is "virtually identical to," the fee-shifting provision in the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 928(a).[11] Judicial construction of the federal statute supports the CRB's interpretation that § 32-1530(a) applies only if the employer or carrier disputes liability. As one federal court has stated, "[t]he fee-shifting provision of the LHWCA contemplates four triggering events for assessing fees against the employer: (1) formal notice, (2) employer controversion of the claim, (3) successful prosecution by the claimant, and (4) use of an attorney to prosecute the claim."[12] The Council of the District of Columbia shared this understanding of the statute when it decided to retain it verbatim in the Workers' Compensation Act.[13]
We are satisfied that the CRB's legal conclusion that for a workers' compensation claimant to be eligible for an award of attorney's fees under D.C.Code § 32-1530(a), the employer or carrier must have "decline[d] to pay compensation ... on the grounds that there is no liability for compensation within the provisions of [the Workers' Compensation Act]" represents the only appropriate construction of the statute. As Goba does not dispute the CRB's determination that "there is no evidence... that [Au Bon Pain or its carrier] `declined' at any time to pay compensation for any reason other than the need to verify the nature and amount of the benefits sought," we affirm the order denying Goba's request for attorney's fees to be assessed against Intervenors.
NOTES
[1] It is not clear from the record before us exactly why Goba's disability compensation was held up. The Workers' Compensation Act states: "Compensation under this chapter shall be paid periodically, promptly, and directly to the person entitled thereto, without an award, except where liability to pay compensation is controverted by the employer." D.C.Code § 32-1515(a) (2001). "The 1st installment of compensation shall become due on the 14th day after the employer has knowledge of the job-related injury or death, on which date all compensation due shall be paid." Id. § 32-1515(b).
[2] D.C.Code § 32-1530(a) provides as follows:
(a) If the employer or carrier declines to pay any compensation on or before the 30th day after receiving written notice from the Mayor that a claim for compensation has been filed, on the grounds that there is no liability for compensation within the provisions of this chapter, and the person seeking benefits thereafter utilizes the services of an attorney-at-law in the successful prosecution of his claim, there shall be awarded, in addition to the award of compensation, in a compensation order, a reasonable attorney's fee against the employer or carrier in an amount approved by the Mayor, or court, as the case may be, which shall be paid directly by the employer or carrier to the attorney for the claimant in a lump sum after the compensation order becomes final.
[3] See, e.g., Georgetown Univ. Hosp. v. District of Columbia Dep't of Employment Servs., 929 A.2d 865, 869 (D.C.2007).
[4] Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Employment Servs. (WMATA), 825 A.2d 292, 294 (D.C.2003). The CRB exercises delegated authority to perform administrative appellate review in workers' compensation cases pursuant to D.C.Code § 32-1521.01 (Supp.2008).
[5] D.C.Code § 32-1530(a). The phrase "on the grounds that there is no liability for compensation within the provisions of this chapter" is an adverbial clause modifying the verb "declines."
[6] See D.C.Code § 32-1515(e) (2001) (imposing 10% penalty "[i]f any installment of compensation payable without an award is not paid within 14 days after it becomes due"); id. § 32-1515(f) (imposing 20% penalty "[i]f any compensation, payable under the terms of an award, is not paid within 10 days after it becomes due"); id. § 32-1528(b) (2001) (establishing penalty for "delay[ing] the payment of any installment of compensation to an employee in bad faith").
[7] D.C.Code § 32-1530(a) (emphasis added). The use of the word "thereafter" explicitly relates the compensable involvement of the claimant's attorney to the employer's declination of liability. Cf. Day v. James Marine, Inc., 518 F.3d 411, 415-19 (6th Cir.2008) (discussing import of the word "thereafter" in 33 U.S.C. § 928(a), the attorney's fee provision of the Longshore and Harbor Workers' Compensation Act).
[8] "Each provision of the statute should be given effect, so as not to read any language out of a statute whenever a reasonable interpretation is available that can give meaning to each word in the statute." Providence Hosp. v. District of Columbia Dep't of Employment Servs., 855 A.2d 1108, 1114 (D.C.2004) (construing D.C.Code § 32-1530(b)) (quoting Bd. Dirs. of the Washington City Orphan Asylum v. Bd. Trs. of the Washington City Orphan Asylum, 798 A.2d 1068, 1080 (D.C.2002)) (internal quotation marks omitted).
[9] D.C.Code § 32-1515(d); see also 7 DCMR § 210 (2008).
[10] Richardson v. Cont'l Grain Co., 336 F.3d 1103, 1105 (9th Cir.2003) (interpreting 33 U.S.C. § 928(a)).
[11] C & P Tel. Co. v. District of Columbia Dep't of Employment Servs., 638 A.2d 690, 694 (D.C.1994).
[12] Weaver v. Ingalls Shipbuilding, Inc., 282 F.3d 357, 359-60 (5th Cir.2002).
[13] See COUNCIL OF THE DISTRICT OF COLUMBIA, COMMITTEE ON PUBLIC SERVICES AND CONSUMER AFFAIRS, REPORT ON BILL 3-106, DISTRICT OF COLUMBIA WORKERS' COMPENSATION ACT OF 1979, at 17 (Jan. 16, 1980) (explaining that the fee-shifting statute "provides that where a claim is contested and not voluntarily paid by the employer and insurance carrier, the injured worker is entitled to have the employer or insurance carrier pay attorney's fees where the worker wins the contested claim"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562433/ | 4 F.2d 71 (1925)
KELLY-SPRINGFIELD TIRE CO.
v.
BOBO et al.[*]
No. 4341.
Circuit Court of Appeals, Ninth Circuit.
February 16, 1925.
*72 Preston & Duncan, of San Francisco, Cal., for plaintiff in error.
G. L. Aynesworth and L. N. Barber, both of Fresno, Cal., for defendants in error.
Before GILBERT, ROSS, and RUDKIN, Circuit Judges.
RUDKIN, Circuit Judge (after stating the facts as above).
The issues of fact in this case having been determined by the court without the intervention of a jury, according to section 649 of the Revised Statutes (Comp. St. § 1587), the rulings of the court in the progress of the trial, if excepted to at the time and duly presented by bill of exceptions, are subject to review by this court, and, if the finding is special, the review may extend to the determination of the sufficiency of the facts found to support the judgment. Revised Statutes, § 700 (Comp. St. § 1668).
Before the consolidation of the two cases, the plaintiff in error moved for judgment on the pleadings. In one case, upon the ground that the complaint of the defendant in error did not state facts sufficient to constitute a cause of action. In the other case, upon the ground that the answer of the defendant in error did not state facts sufficient to constitute a defense or counterclaim. These motions were denied, and upon the rulings of the court the first error is assigned.
The objections to the complaint in the one case and to the answer in the other are based on the same grounds and may be considered together. Speaking generally, these objections are: First, that the contract between the parties was one of agency and was, therefore, terminable or revocable at the will of either party; second, that the plaintiff in error had an absolute right to terminate the contract whenever it became satisfied that the defendant in error was not giving it proper representation, and of the latter fact it was the exclusive judge; third, that the contract is void for uncertainty because it does not fix, or prescribe any mode for fixing, the kinds and sizes of tires and tubes or define what is meant by popular sizes; fourth, that the contract and facts alleged in the complaint and answer do not entitle the defendant in error to any damages whatever; and, fifth, that the contract is void under the statute of frauds.
The parties are not agreed as to the construction or meaning of the contract in suit. The plaintiff in error contends that it is a mere contract of agency, while the defendant in error contends that it is a contract of sale. As said by the Supreme Court in Banker Brothers v. Pennsylvania, 222 U. S. 210, 32 S. Ct. 38, 56 L. Ed. 168: "This is one of the common cases in which parties find it to their interest to occupy the position of vendor and vendee for some purposes under a contract containing terms which, for the purpose of restricting sales and securing payment, come near to creating the relation of principal and agent."
In Willcox & Gibbs Co. v. Ewing, 141 U. S. 627, 12 S. Ct. 94, 35 L. Ed. 882, it was held that a contract very similar in terms was a contract of agency only. But, for the purposes of this case, it is not very material whether the relation established by the contract was that of vendor and purchaser, or that of principal and agent; for the defendant in error was at liberty to terminate the contract at any time by simply refusing to pay his accounts, or give proper representation, and inasmuch as he might terminate the contract at will, the like privilege cannot be denied to the plaintiff in error, unless the contract was founded upon a valuable consideration. In the latter case the right of revocation does not exist. Thus, in Pierce v. Tennessee Coal, etc., Railroad Co., 173 U. S. 1, 19 S. Ct. 335, 43 L. Ed. 591, in consideration of the release of a claim for personal injuries, the railroad company agreed to pay the injured employee wages at the rate of $65 per month and to allow him his fuel and the benefit of a garden, so long as the disability to do further work continued, and the employee, on his part, agreed to do such work as he could. For the breach of this contract the company was held liable, notwithstanding there was no obligation upon the part of the employee to continue in its service for any specified time. Many other cases might be cited to the same effect. The principal question in the case is, therefore: Was there a consideration for the agreement. That there was a consideration within the ordinary and accepted meaning of that term does not admit of question. "Good consideration" is defined by the Civil Code of California as follows: "Any benefit *73 conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise." Deering, § 1605.
"Consideration" has also been defined as: "A benefit to the party promising, or a loss or detriment to the party to whom the promise is made." 13 C. J. 311.
It is there further said: "It may be laid down as a general rule, in accordance with the definition given above, that there is a sufficient consideration for a promise if there is any benefit to the promisor or any loss or detriment to the promisee. It is not necessary that a benefit should accrue to the person making the promise; it is sufficient that something valuable flows from the person to whom it is made, or that he suffers some prejudice or inconvenience, and that the promise is the inducement to the transaction. Indeed there is a consideration if the promisee in return for the promise, does anything legal which he is not bound to do, or refrains from doing anything which he has a right to do, whether there is any actual loss or detriment to him or actual benefit to the promisor or not." Id. 315.
Here the defendant in error was induced to purchase a small stock of tires and tubes from a third party, and in consideration of the purchase, the plaintiff in error granted him the exclusive right to purchase and sell similar tires and tubes in certain territory so long as he promptly paid his accounts and gave proper representation. The purchase of this small stock without any means of replenishing it and without any exclusive right to purchase and sell in the vicinity was a very different matter from its purchase accompanied by such exclusive privilege. For this reason the defendant in error might well be prejudiced by a revocation of the exclusive privilege; but whether he was, or was not, is not material on the question of consideration. So, too, the plaintiff in error may have benefited by the third party purchase in order to close out an existing agency and establish a new one in its place; but whether it was, or was not, is again immaterial. In other words, the consideration in this class of cases does not differ from the consideration required in any other case, nor is it necessary to show that the implied agreement against revocation was supported by a special or independent consideration. The plaintiff in error, for a consideration, granted to the defendant in error the exclusive right to purchase and sell in certain territory for a specified time, and the consideration for this grant extended to every part of the agreement including the implied agreement not to revoke.
Willcox & Gibbs Co. v. Ewing, supra, is cited in support of the right to revoke at will; but so far as the case is in point at all it would seem to support the contrary view. In that case two agency contracts existed between the parties. The first was dated in 1867 and the second in 1874. In the first contract the agent agreed to continue the business, then established at Philadelphia, of the sale of sewing machines, and in good faith to devote his entire time and energy to its advancement and improvement and to the increase of the sales of the machines as fully and energetically as he had done in the previous year "and so long as he faithfully did so and in good faith kept at least the sum of $25,000 actively employed therein, the company `agreed to, continue, and in equal good faith, carry out all the provisions' of the agreement." It will thus be seen that the agent in that case might terminate the contract by ceasing to faithfully perform or to keep the sum of $25,000 actively employed in the business, just as the defendant in error here might terminate the contract by ceasing to make prompt payment or give proper representation. But in the course of its opinion the court there said: "If this action was based upon the agreement of 1867, there would be some ground for holding that the company was obliged, by that agreement, to continue Ewing as agent so long as he performed its stipulations."
For the foregoing reasons we are of opinion that the plaintiff in error could not revoke the contract at will whether it be construed as a contract of agency or a contract of sale. The contract contains no provision that the performance shall be to the satisfaction of the plaintiff in error, and in the absence of an express provision in the contract itself performance need not be to the satisfaction of the other party. 13 C. J. 676. Indeed, the agreement to make prompt payment and give proper representation was little, if anything, more than the law would imply, and whether prompt payment was made or proper representation given was a question for the determination of the court or jury, not for one of the parties. Nor is the contract void for uncertainty. Agency and sales contracts, such as this, are always more or less indefinite from the *74 necessities of the case, because the requirements of the parties can never be known or ascertained in advance; but, so far as we are advised, such uncertainty as this has never been deemed a sufficient cause for avoiding a contract. A breach of the contract as set forth in the pleadings might well result in substantial damages, whether the breach occurred immediately or after an established business had grown up under it, and the objection to the pleadings in that regard is without merit.
Again, the contract might be fully performed within a year by the death of the defendant in error or other contingencies, and therefore the statute of frauds has no application. Warner v. Texas & Pacific Railway Co., 164 U. S. 418, 17 S. Ct. 147, 41 L. Ed. 495.
The findings in the case were general, and their sufficiency to support the judgment is not questioned, so that the only remaining questions for review are rulings made in the progress of the trial and excepted to at the time. The only rulings of that character called to our attention are certain rulings admitting and excluding testimony. The testimony thus admitted and excluded did not go to the material issues in the case, and, without prolonging the opinion, it is deemed sufficient to say that the rulings were not prejudicial, especially in a case tried by the court without the intervention of a jury. It is further claimed that the evidence is insufficient to establish the authority of the agent who negotiated the contract on behalf of the plaintiff in error, and criticism is made of the methods employed by the trial court in arriving at the amount of damages; but no specific ruling of the court was made as to either of these matters, and there is therefore no question before us for review.
Finding no error in the record, the judgment is affirmed.
NOTES
[*] Certiorari denied 45 S. Ct. 513, 69 L. Ed. ___. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562448/ | 16 So.3d 305 (2009)
STATE of Florida, Appellant,
v.
W.W., a Child, Appellee.
No. 5D09-321.
District Court of Appeal of Florida, Fifth District.
August 28, 2009.
Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellant.
James S. Purdy, Public Defender, and Frank W. Scott, Assistant Public Defender, Daytona Beach, for Appellee.
EVANDER, J.
W.W. was charged in a three-count petition for delinquency with leaving the scene of an accident with injuries,[1] driving under the influence (DUI),[2] and carrying a concealed weapon.[3] He moved to dismiss the DUI count, contending that the circuit court lacked jurisdiction over a juvenile charged with a misdemeanor traffic offense. The circuit court agreed and dismissed the count without prejudice to the State to re-file in the county court. We have jurisdiction[4] and reverse the trial court's order of dismissal. We conclude that where a juvenile is charged with both a felony and a misdemeanor traffic offense, and the charges arise out of the same *306 circumstances, jurisdiction lies with the circuit court.
W.W. argued below that our decision in N.J.G. v. State, 987 So.2d 101 (Fla. 5th DCA 2008) required that the DUI count be transferred to county court. In N.J.G., we determined that where a juvenile is charged with a misdemeanor traffic offense only, jurisdiction lies with the county court. Our decision was based primarily on section 316.635(1).[5] That statute provides:
A court which has jurisdiction over traffic violations shall have original jurisdiction in the case of any minor who is alleged to have committed a violation of law or of a county or municipal ordinance pertaining to the operation of a motor vehicle; however, any traffic offense that is punishable by law as a felony shall be under the jurisdiction of the circuit court.
The instant case is readily distinguishable from N.J.G. because W.W. was charged with both a felony and a misdemeanor traffic offense. Furthermore, it is undisputed that the two charges arose from the same circumstances. Specifically, W.W. was alleged to have been driving a motor vehicle while impaired when he lost control of the car, resulting in a single vehicle rollover crash. W.W. was then alleged to have fled the scene of the crash although he knew or should have known that one of his passengers had suffered personal injuries.
We believe that section 26.012(2)(d) controls the resolution of this case. That section provides that circuit courts shall have exclusive original jurisdiction "[o]f all felonies and of all misdemeanors arising out of the same circumstances as a felony which is also charged." The obvious intent of this statute is to provide for a single forum to try two or more criminal offenses when those offenses arise from the same circumstances. By doing so, section 26.012(2)(d) promotes judicial efficiency and reduces the likelihood of inconsistent results. Consider for example the lack of judicial economy and the potential for inconsistent judgments if W.W.'s two traffic offenses were tried separately before two different fact finders and his primary defense in both cases was that he was not the driver.
Florida courts have recognized that the circuit court has jurisdiction where the State charges an adult, in a single information, with both a felony and a misdemeanor traffic offense and the charges arise out of the same circumstances. See Ledlow v. State, 743 So.2d 165 (Fla. 4th DCA 1999) (circuit court had jurisdiction over misdemeanor DUI offense where defendant was also charged with felony driving with suspended license); Heckard v. State, 712 So.2d 1157 (Fla. 2d DCA 1998) (circuit court had jurisdiction over misdemeanor driving with suspended license charge where defendant was also charged with felony DUI).
W.W. argues that section 26.012(2)(c) mandates a different result where the individual charged is a juvenile.[6] We disagree. That section provides that a circuit court does not have exclusive original jurisdiction *307 when a juvenile is charged with a misdemeanor traffic offense. It does not preclude the circuit court from exercising jurisdiction where, as in the present case, another statute (section 26.012(2)(d)) specifically provides for circuit court jurisdiction.
REVERSED and REMANDED.
MONACO, C.J., concurs.
COHEN, J., dissents with opinion.
COHEN, J., dissenting.
In my view, the trial court correctly dismissed the driving under the influence count, finding the county court had jurisdiction over that offense. As Judge Griffin observed in N.J.G. v. State, 987 So.2d 101 (Fla. 5th DCA 2008), the various statutory provisions implicated in this case are inconsistent and disorganized. It is incumbent upon us to discern the legislative intent.
The majority correctly set forth the statutory provisions involved. Section 316.635(1), Florida Statutes, vests jurisdiction in the county court over misdemeanor traffic offenses, despite the general provisions of section 985.0301(1), which would otherwise have provided for jurisdiction in the juvenile division of the circuit court. Thus, by enacting a specific statute carving out misdemeanor traffic offenses, the Legislature evinced an intent that juveniles who operate a motor vehicle and commit misdemeanor traffic offenses are not entitled to the benefits of juvenile treatment.[1] There are obvious reasons for such a policy. Driving an automobile is an inherently dangerous act which potentially endangers the public. Add the consumption of alcohol or drugs, and the danger increases exponentially.[2]
In reversing the trial court, the majority finds section 26.012(2)(d) controlling. That section sets forth the general rule that the circuit court has exclusive original jurisdiction of all misdemeanors arising out of the same circumstances as a charged felony. Although the Legislature has used the term "exclusive," section 26.012(2)(d) is general in nature, and speaks to the broad range of misdemeanors. Conversely, section 316.635(1) addresses a specific class of misdemeanors. When addressing conflicting statutes the specific statute controls the general statute. Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1273, 1287 (Fla.2000).
It seems apparent that the intent of the Legislature was to exempt chapter 316 misdemeanor traffic violations from the benefits of juvenile court. This is further evidenced by the prohibition, within section 316.656(1), of withholding adjudication upon conviction for driving under the influence. State v. Rowell, 669 So.2d 1089 (Fla. 2d DCA 1996). This provision would be inapplicable if the DUI were prosecuted in juvenile court because W.W. would not be convicted of DUI, but rather only adjudicated guilty of a delinquent act. Further, should W.W. be convicted of DUI upon becoming an adult, the earlier DUI could not be used for enhancement purposes. See State v. J.M., 824 So.2d 105 (Fla.2002).
*308 The practical effect of the majority's ruling is that a juvenile being arrested for a DUI would avoid adult sanctions by committing a felony such as high speed flight to avoid arrest, battery upon the investigating officer, resisting with violence, or, as in this case, leaving the scene of an accident with injuries. Surely this is not what the Legislature intended.
NOTES
[1] § 316.027(1)(a), Fla. Stat. (2008).
[2] § 316.193, Fla. Stat. (2008).
[3] § 790.01(1), Fla. Stat. (2008).
[4] Fla. R.App. P. 9.145(c)(1)(A).
[5] In N.J.G., we recognized that section 316.635(1) appeared to be in conflict with section 985.201 (since renumbered as section 985.0301(1)), which provided that a circuit court shall have "exclusive original jurisdiction of proceedings in which a child is alleged to have committed a delinquent act or violation of law."
[6] Section 26.012(2)(c) provides:
(2) [Circuit courts] shall have exclusive original jurisdiction:
(c) In all cases in equity including all cases relating to juveniles except traffic offenses as provided in chapters 316 and 985.
[1] Under the statutory scheme, a juvenile's felony violation of chapter 316 would be handled in juvenile court as a delinquent act unless the prosecuting authority elected to treat the juvenile as an adult.
[2] Interestingly, the procedural history of this case reflects that the State, most likely concerned primarily about possible inconvenience to potential witnesses and perhaps judicial economy, chose to file both charges in juvenile court. Defense counsel moved to sever the driving under the influence charge for reasons that are unclear. I recognize that other defense attorneys might prefer avoiding adult sanctions for their juvenile clients, even for misdemeanor traffic offenses. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562495/ | 16 So.3d 810 (2009)
J.M.
v.
C.M.
2071223.
Court of Civil Appeals of Alabama.
February 13, 2009.
Thomas H. Claunch III of Harding & Claunch, LLC, Montgomery, for appellant.
Larry E. Darby of Darby Law Firm, LLC, Montgomery, for appellee.
Debora E. Palmer of Clenney & Palmer, LLC, guardian ad litem.
THOMAS, Judge.
J.M. ("the father") and C.M. ("the mother") are the parents of T.A.M. In 2007, the father was ordered to pay $225 per month in child support. In February 2008, the father filed a petition seeking to have the Montgomery Juvenile Court award him joint legal custody of the child and to set a specific visitation schedule. In June 2008, the juvenile court awarded the mother temporary legal custody of the child. In *811 August 2008, the mother filed a cross-petition, seeking full custody of the child. The juvenile court "consolidated" the custody petitions with an existing child-support case numbered 2007-251 ("the child-support case"); no filings related to the child-support case appear in the record. After a trial, at which neither parent was represented by an attorney, the juvenile court entered a judgment awarding the mother custody of the child, awarding the father specific visitation rights, and "reinstating" the $225 child-support order from case number 2007-251. The father timely appealed, asserting that the juvenile court erred by "reinstating" his child-support obligation.
At trial, the father testified that the court that had initially presided over the child-support case had "taken [him] off" child support because he and the mother had testified in that court that they were sharing custody of the child. The father also told the juvenile court that he and the mother had been before the court that had initially presided over the child-support case twice. In regard to the father's claim that he kept the child two weeks out of the month, the mother commented: "That was last year." The mother never testified that the father's child-support obligation was $225 per month. That information was supplied by the child's guardian ad litem at the start of the trial.
The father argues that the juvenile court erred when it awarded child support without complying with Rule 32, Ala. R. Jud. Admin.[1] The father specifically complains that there is no documentation supporting the $225 child-support obligation the juvenile court ordered because there are no child-support-guideline forms in the record, as required by Rule 32(E).[2] This court will reverse a child-support judgment when the record fails to contain the forms required by Rule 32(E). Wilkerson v. Waldrop, 895 So.2d 347, 349 (Ala.Civ.App.2004); M.S.H. v. C.A.H., 829 So.2d 164 (Ala.Civ.App.2002); and Martin v. Martin, 637 So.2d 901 (Ala.Civ.App. 1994).
The mother and the child's guardian ad litem, who has filed a brief in this court, argue that the juvenile court was not required to apply Rule 32 or to take any evidence on the child-support issue because it merely "reinstated" the original child-support obligation set by the court that had initially presided over the child-support case. They base their argument in support of the juvenile court's judgment on Rhea v. Rhea, 360 So.2d 1029 (Ala.Civ. App.1978), a case that predates the adoption of the child-support guidelines by several years.
In Rhea, this court considered an appeal by a father who complained that the trial court had improperly reinstated his child-support payments. Rhea, 360 So.2d at 1029. The original divorce judgment, which was entered in 1974, had set the father's alimony and child-support payments at $400 per month. Id. In 1976, the *812 trial court reduced the father's child-support obligation to $200 per month. Id. The mother then filed a motion to modify the father's child-support obligation; a hearing on that motion occurred in May 1977. Id. After determining the amount of the arrearage owed by the father, the trial court continued that hearing because the father was not present. Id. At the next hearing, which was held in August 1977, the father was again absent. Id. at 1030. The trial court determined that the mother's motion to modify "was to be continued generally and to be reset for review during February, 1978, and every six months thereafter until a final determination of the cause was made," and it further ordered that the father pay, on a temporary basis, $100 per month in child support and $150 per month toward the established child-support arrearage. Id. In February 1978, the trial court, after a hearing at which the father was again absent, ordered that the father resume paying $200 per month in child support. Id. The father appealed, arguing that the trial court had lacked an evidentiary basis to modify his child-support obligation. Id.
This court affirmed the trial court's judgment. Id. The following language appears in this court's opinion:
"It is clear to this court that the nature of the court's order of February, 1978, was more of a reinstatement of a prior decree than a modification. When the [mother] filed her motion to modify, the [father] was paying $200 per month for child support. This was later raised on a temporary basis to $250 in August, 1977. The court's order of February, 1978, the subject of this appeal, reinstated the support payments in the amount of $200. This was the same amount the court had previously ordered the [father] to pay prior to the [mother's] motion to modify and the instigation of the above proceedings. The court, in this instance, was merely exercising its continuing power over the parties, basing its order on evidence previously taken."
Id.
The mother and the guardian ad litem argue that, based on Rhea, the juvenile court had the authority to "reinstate" the child-support obligation set by the judgment previously entered by the court that had initially presided over the child-support case. We disagree with this interpretation of Rhea. A close reading of Rhea indicates that the trial court's "reinstatement" of the father's child-support obligation was an order returning the parties to the status quo ante or to the trial court's own most recent modification judgment after a pendente lite adjustment to the father's child-support obligation. The pendente lite adjustment in the father's child-support obligation was not a final judgment reducing the father's child-support obligation. Instead, the pendente lite order, like any pendente lite order, was a interlocutory order entered pending the completion of the litigation. Evans v. Evans, 978 So.2d 42, 48 (Ala.Civ.App.2007) (quoting T.J.H. v. S.N.F., 960 So.2d 669, 672 (Ala.Civ.App.2006)) (explaining that "`[a] pendente lite custody order is an order that is effective only during the pendency of the litigation in an existing case and is usually replaced by the entry of a final judgment'"); Murphree v. Murphree, 579 So.2d 634, 637 (Ala.Civ.App.1991) (stating that "alimony pendente lite is purely interlocutory in nature"). Because in Rhea the reduction in child support was interlocutory in nature, the trial court could amend the pendente lite order at any time. Rheams v. Rheams, 378 So.2d 1125, 1128 (Ala.Civ.App.1979) ("An interlocutory *813 judgment is subject to modification at any time before final judgment."). Thus, the trial court's decision in Rhea to return the father's child-support obligation to the original amount at the conclusion of the litigation was simply a return to the status quo ante and not a new judgment modifying the father's child-support obligation.
Based on the testimony at trial in the present case, the father and the mother had been sharing custody "last year," or in 2007. The father testified that he had been "taken off" child support because of the parties' shared-custody arrangement. When the father questioned how the juvenile court could order him to pay child support when the court that had initially presided over the child-support case had relieved him of the obligation, the juvenile court stated that its order "trumped" the order of the court that had initially presided over the child-support case.
We fail to see how the juvenile court could "reinstate" a prior order of the court that had initially presided over the child-support case, which set the father's child-support obligation at $225 per month, when that court had, based on the undisputed testimony at trial, modified that award in a later modification proceeding. The most recent child-support judgment, according to the parties, reflected that the parties shared custody of the child and that the father was not required to pay child support to the mother. The juvenile court's judgment modified that existing child-support order without taking testimony on the parties' respective incomes and without having either party complete a child-support income affidavit or a CS-42 child-support form. Thus, we must reverse the juvenile court's judgment insofar as it orders the father to pay $225 per month in child support, and we remand this cause for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.
NOTES
[1] The father appended several pleadings and judgments from the court that had initially presided over the child-support case to his brief. We have not considered those items because "[t]he record on appeal cannot be supplemented or enlarged by the attachment of an appendix to an appellant's brief." Goree v. Shirley, 765 So.2d 661, 662 (Ala.Civ. App.2000).
[2] Rule 32(E) states that "[a] standardized Child-Support Guidelines form (Form CS-42 as appended to this rule) and a Child-Support-Obligation Income Statement/Affidavit form (Form CS-41 as appended to this rule) shall be filed in each action to establish or modify child-support obligations and shall be of record and shall be deemed to be incorporated by reference in the court's child-support order." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562537/ | 118 F.2d 232 (1941)
GREAT NORTHERN LIFE INS. CO.
v.
VINCE et al.
No. 8493.
Circuit Court of Appeals, Sixth Circuit.
March 11, 1941.
*233 Charles R. Holton, of Chicago, Ill. (Whitman, Holton & Tews, of Chicago, Ill., and John J. Temple, of Detroit, Mich., on the brief), for appellant.
David E. Roberts, of Detroit, Mich. (David E. Roberts and Dale D. Libkuman, both of Detroit, Mich., on the brief), for appellees.
Before HICKS, SIMONS, and HAMILTON, Circuit Judges.
SIMONS, Circuit Judge.
The appellant, upon the death of its insured, conceiving itself defrauded by false statements and representations in the application for the policy, refused to pay the claim of the beneficiary, and brought suit in the court below by bill in equity for a declaratory judgment or decree pursuant to the Federal Declaratory Judgment Act, 28 U.S.C.A. § 400, praying that the court adjudge and decree the legal relations of the parties to the subject matter, adjudge the insurance policy to be null and void, and decree that it be delivered up and canceled. Appellee Andris was joined as party defendant because of assertion by him of some claim to the proceeds of the policy as a co-partner of the deceased. The beneficiary answered denying the appellant's right to relief, and cross-claimed for a declaration of the policy as valid, and for judgment in the sum mentioned therein.
The defendants requested determination of all triable issues of fact by a jury, and over the appellant's protest a jury was impaneled and the case tried, in all substantial respects, as a suit at law. The appellant's motion for directed verdict at the conclusion of all of the evidence, was overruled, a verdict was returned upon the cross-claim and the appellant's motion for judgment notwithstanding the verdict, or in the alternative for a new trial, denied. Andris, having disclaimed any interest in the policy, the bill was dismissed as to him and judgment entered for the beneficiary alone.
The claim of error includes denial of plaintiff's motion to discharge the jury; denial of its motions for directed verdict, and for judgment notwithstanding the verdict, or in the alternative for a new trial; the inadmissibility of evidence received; and errors and omissions in instructing the jury.
The first question presented by the appeal is not unattended with difficulty. The nature of an action for declaratory relief under the statute, is said to be "neither *234 legal nor equitable, but sui generis." Borchard, Declaratory Judgments, 120. The Federal Declaratory Judgment Act provides [§ 274d(3), 28 U.S.C.A. § 400 (3)], that when a declaration of right involves the determination of issues of fact triable by a jury, such issues may be submitted to the jury in the form of interrogatories, with proper instructions by the court, whether a general verdict be required or not. No interrogatories were submitted to the jury, and none were sought by either litigant. It has been thought that the phrase "triable by a jury" relates to a case triable as of right under the Seventh Amendment to the Federal Constitution, and that it was not the intent of Congress, when it changed the form of proceeding and permitted an action for declaratory relief, that this should affect the right of parties to a trial by jury as it had formerly existed. Pacific Indemnity Co. v. McDonald, 9 Cir., 107 F.2d 446, 131 A.L.R. 208. Compare Ætna Casualty & Surety Co. v. Quarles, 4 Cir., 92 F.2d 321; United States Fidelity & Guaranty Co. v. Koch, 3 Cir., 102 F.2d 288. In the principal case, however, the opinion pointed out that the trial court was of the view that some issues of fact were essentially equitable in nature, and others essentially legal, and disposed of them accordingly. This course was not disapproved.
Our difficulty resides in the fact that the federal courts can render no judgment at law directing cancellation of a contract for fraud, since this is a form of relief which a court of equity alone can give, and in the fact that the basis of equitable relief, when cancellation is asked, is the necessity of protecting the suitor from irreparable injury when there is manifest danger that his defense at law on the policy will be lost or prejudiced. Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440; American Life Ins. Co. v. Stewart, 300 U.S. 203, 57 S.Ct. 377, 81 L.Ed. 605, 111 A.L.R. 1268. The circumstance usually relied upon as indicating the need for equitable relief is the impending expiration of the period during which the insurer may assail the validity of the policy unhampered by the incontestable clause. There is no such special circumstance here, and so no suit in equity may be entertained to cancel the policy because there exists an adequate legal remedy in defending a suit upon the policy which, though not pending, is imminent. The relief prayed can therefore be based only upon the declaratory judgment statute. There being no question of the existence of a controversy, the jurisdiction below to entertain the plaintiff's suit was clear, Ætna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; Maryland Casualty Co. v. Pacific Oil & Coal Co., 61 S.Ct. 510, 85 L. Ed. ___, decided February 3, 1941, though relief is limited to that provided by the statute. That the courts of Michigan provide in such circumstances the equitable remedy of cancellation, is not controlling. Atlas Life Insurance Co. v. W. I. Southern, Inc., 306 U.S. 563, 59 S.Ct. 657, 83 L. Ed. 987.
While the court is unable to grant the equitable remedy of cancellation and cancellation may not be sought in the federal courts in a suit at law, and while the relief prayed in the counterclaim presents triable issues of fact in the decision of which the defendant was entitled to the verdict of a jury, though such issues should have been submitted upon special interrogatories for the guidance of the court in adjudication of the declaratory relief prayed, yet the issue as to the validity of the policy is so squarely raised upon the motion of the appellant for directed verdict and motion for judgment, that we find no need to decide whether, in the usual case, the issues raised by the bill and answer should first have been determined by the court before submission to the jury of the counterclaim, and we shall be able by our mandate to make such decision as shall dispose of the entire case.
The insured, William A. Vince, applied for the policy in dispute, on April 29, 1937. He was required to furnish certain information in respect to his insurability, and to answer certain questions contained in the application blank. To the question whether, during the preceding seven years, he had consulted any physician not previously mentioned, the answer was "No." To the question whether he had received treatment in any hospital, sanitarium, or asylum, the answer was also "No." The application blank more specifically sought information of various disorders including those of the respiratory system, and an affirmative answer required the name of the disease, the number of attacks and their date, duration and results, together with the name and address of the physicians consulted in connection therewith, but all *235 were answered in the negative. To the still more specific question whether the applicant had ever had any disorder of the respiratory system, such as pneumonia, asthma, bronchitis, chronic cough, tuberculosis, spitting of blood, etc., the answer of the applicant was that he had never had any disorders of the respiratory system, and had never consulted any physician in connection with such disorders.
It appears, however, by the admissions of the appellee, or by uncontroverted evidence, that the applicant had not only had an attack of pneumonia in 1926-27, but that he had had a second attack in 1931-32, which required treatment in a hospital in Philadelphia and consultation with physicians there, which was accompanied by the spitting of blood, and which necessitated treatment for a considerable period in Jackson and Chicago, and was variously diagnosed as lung involvement, lung abscess, infection of the hilus glands, and bronchiectasis. He made claim to and received benefits from an association maintained by his employer, and received disability compensation for a period of seven months, his recovery being completed on or about July 5, 1932. The insured died on March 14, 1938, as the result of streptococcal infection of the throat.
That the answers made over the signature of the insured in the application blanks were false, is not open to dispute. The appellee sought to avoid the legal consequences of such representations by reliance upon the terms of the Michigan Statute, Act 256, Public Acts 1917; by evidence of Andris, partner of the decedent, who was present at the examination, that the questions were, in fact, truthfully answered; and by invoking the principle of estoppel in an effort to show that the insurer was not deceived.
The Michigan Statute provides: "The falsity of any statement in the application for any policy * * * shall not bar the right to recovery thereunder unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer." Part 3, c. 2, § 17.
While the Michigan court has recognized much confusion in the statement of the law as to the liability of an insurer when false statements have been made in the insurance application, and concedes that its decisions rest so largely on varying facts that the ruling in one case may not be at all adaptable to the facts in another, Asposito v. Security Benefit Ass'n, 258 Mich. 507, 243 N.W. 37, yet, the court has constantly adhered to the doctrine that concealment of a material fact which the insurer had a right to know, voids the policy, and that a false statement with respect to serious illness, hospitalization, or consultation with physicians, bears a direct relation to the acceptance of the risk and the hazard assumed by the insurer, as a matter of law. Rathman v. New Amsterdam Casualty Co., 186 Mich. 115, 152 N. W. 983, L.R.A.1915E, 980, Ann.Cas.1917C, 459; Bellestri-Fontana v. New York Life Ins. Co., 234 Mich. 424, 208 N.W. 427; Mutual Life Ins. Co. v. Geleynse, 241 Mich. 659, 217 N.W. 790, 56 A.L.R. 702; Metropolitan Life Ins. Co. v. Carter, 252 Mich. 432, 233 N.W. 370; New York Life Ins. Co. v. Bahadurian, 252 Mich. 491, 233 N.W. 390. Our own earlier exploration into the law of Michigan led us to a similar conclusion. Lawrence v. Connecticut Mutual Life Ins. Co., 6 Cir., 91 F.2d 381. See, also, Haddad v. New York Life Ins. Co., 6 Cir., 42 F.2d 651; New York Life Ins. Co. v. Cohen, 6 Cir., 57 F.2d 494; Lyttle v. Pacific Mutual Life Ins. Co., 6 Cir., 72 F.2d 140. While there may have been departures from this rule in cases of minor disorders, we think there have been none in respect to ailments as serious as those here concealed.
Andris testified that he was present at the examination of the insured, and that the insured had told the physician that he had had pneumonia for several months, but that it was not serious; that he had also told the physician that he had received medical treatment within the period of five or six years prior to the issuance of the policy. The court, recognizing that under the law of Michigan the cross-complainant was estopped to deny that the insured made the false statements that appeared over his signature, since the evidence disclosed that he had received the policy with a copy of the application attached thereto and had, without objection, retained it in his possession until his death, nevertheless permitted this evidence to go to the jury upon the issue of the insured's intention to deceive, instructing the jury that if the false statements had not in fact been made they could not, of course, indicate an intent to deceive the insurer. Whether or *236 not the rule of estoppel precludes the admission of such evidence for every purpose, we do not find it necessary to decide. Taking the evidence of Andris at its full value, and viewing it in the light most favorable to the appellee, it does not present substantial evidence of truthful response to the questions in the application. The testimony of Andris goes no further than to support an alleged statement by the applicant that he had had an attack of pneumonia which was not serious. When the disease was suffered is not indicated, nor is there any reference in the evidence to two attacks, nor to the seriousness of either. It is now common knowledge that there are many types of pneumonia infection, varying greatly in their virulence. It cannot be denied, upon this record, that the disease suffered in 1931-32 was of an extremely serious character. The insurer was entitled to know its seriousness, or to such information which, if imparted to it, would have permitted an investigation. Bellestri-Fontana v. New York Life Ins. Co., supra; Metropolitan Life Ins. Co. v. Carter, supra.
That the insurer was willing to accept the hazard upon disclosure of a single attack of pneumonia, not serious, is no evidence that it would have accepted the risk if it had knowledge of both maladies or the serious character of either. The susceptibility of an applicant for insurance to specific types of infection is material to the acceptance of the risk. Indeed, the answer of the appellee discloses that the insured contracted pneumonia for a third time subsequent to the issuance of the policy. Nor is it important that subsequent medical testimony throws doubt upon the accuracy of the earlier diagnosis that the insured suffered from bronchiectasis. The insurer sought complete information as to all respiratory diseases and was entitled to know, or to the means of ascertaining not only whether such diseases actually had been suffered, but whether there had been any reputable diagnosis of their presence. The jury may not be permitted to exercise the judgment which the insurer alone had the right to make in determining whether to accept the risk.
In support of the contention that the insurer was estopped to claim that it was deceived by the application, the appellee was permitted to introduce evidence to show that about the time the insured applied for the policy here in issue, he had made applications for insurance in other companies, and that such applications had disclosed the pneumonia attack in 1931-32. This, with evidence that might warrant an inference of an exchange of information between the insurer and the other companies, led the court to submit to the jury an issue of fact as to whether the insurer had been put upon inquiry which, if pursued, would have disclosed to it the true facts in the applicant's medical history. But if the inquiry had been pursued, it is clear that nothing in the applications would have disclosed either definitely or symtomatically, actual or suspected bronchiectasis or lung abscess in 1931-32. There is clear authority in Michigan decisions that even its own earlier records do not put the insurer upon notice of the falseness of statements in an application unless there is some circumstance which directs attention to them. Brown v. Metropolitan Life Ins. Co., 65 Mich. 306, 32 N.W. 610, 8 Am.St. Rep. 894; Rhode v. Metropolitan Life Ins. Co., 129 Mich. 112, 88 N.W. 400; Id., 132 Mich. 503, 93 N.W. 1076. An intention to deceive necessarily follows as a matter of law from concealment of material facts, unless the presumption is overthrown by substantial evidence, and this is particularly true when the policy and a copy of the application has been held by the insured, without objection, for a considerable period. Ruggirello v. Detroit Automobile Inter-Ins. Exchange, 272 Mich. 44, 260 N.W. 787; Kane v. Detroit Life Ins. Co., 204 Mich. 357, 170 N.W. 35. Our conclusion is that under the law of Michigan the representations were false; that from their falsity a presumption arises that they were made with intent to deceive; that this presumption was not overcome by substantial evidence; and that the representations, as a matter of law, were material and affected the hazard.
The court should have granted the motion for directed verdict. Insofar as it encompassed, by implication if not expressly, a prayer that the appellee should take nothing by her counterclaim, it will upon remand be granted, notwithstanding the verdict, Montgomery Ward & Co. v. Duncan, 61 S.Ct. 189, 85 L.Ed. ___, decided December 9, 1940. While we have concluded, in our earlier discussion, that equitable relief by a decree for the cancellation of the policy is not within our power to grant, we may, under the Declaratory Judgment Act, direct and so do direct the *237 entry of a decree adjudging the policy of insurance here involved to be null and void.
Reversed and remanded for further proceedings pursuant herewith. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562553/ | 16 So.3d 142 (2009)
McDONALD
v.
STATE.
No. 3D09-1377.
District Court of Appeal of Florida, Third District.
September 4, 2009.
Decision without published opinion Vol. dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562561/ | 960 A.2d 240 (2008)
STATE
v.
Kenneth Wayne PITTS.
No. 2007-366-C.A.
Supreme Court of Rhode Island.
December 3, 2008.
*241 Aaron Weisman, Providence, for Plaintiff.
Janice Weisfeld, Providence, for Defendant.
Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.
OPINION
Justice FLAHERTY, for the Court.
The defendant, Kenneth Wayne Pitts, appeals from a Superior Court adjudication of probation violation. This case came before the Supreme Court for oral argument on November 5, 2008, pursuant to an order directing the parties to show cause why the issues raised in this appeal should not summarily be decided. After considering the record, the memoranda submitted by the parties, and the oral arguments of counsel, we are of the opinion that cause has not been shown and that the case *242 should be decided at this time. For the reasons set forth in the opinion below, we affirm the judgment of the Superior Court.
Procedural History
On March 19, 1997, Pitts pled nolo contendere to one count of first-degree and one count of second-degree child sexual molestation. The trial justice sentenced Pitts to thirty-five years in prison, with seven years to serve and twenty-eight years suspended, for his conviction of first-degree child sexual molestation and thirty years in prison, with seven years to serve and twenty-three years suspended, for his conviction of second-degree child sexual molestation. The sentences were to run concurrently. Nearly ten years later, after Pitts was released from prison, but while still on probation, the state alleged that Pitts violated the terms and conditions of his suspended probationary sentence and presented Pitts as a violator under Rule 32(f) of the Superior Court Rules of Criminal Procedure.[1] After a probation-violation hearing in the Superior Court, the hearing justice concluded that Pitts had violated his probation and sentenced Pitts to serve five years of his twenty-eight-year suspended sentence. Pitts timely appealed.[2]
Factual Background
On April 24, 2007, the father of a student at a private school on the East Side of Providence drove his son from the school's nearby athletic fields in Seekonk, Massachusetts, back to the main campus in Providence because the boy had forgotten his book bag. The day was warm and the top was down on the parent's convertible. As he waited for his son to emerge from the school building, the parent noticed a white van pull up behind him. The driver of the van appeared to be filming or taking pictures; a camera lens was pointed at the school's entrance. The parent said that his suspicions were aroused, so he took four pictures of the van, first from his own car and then from the curb after he exited his vehicle.[3] He stated that he walked up to the van until the driver "seem[ed] to get the message" and left. The parent also photographed the license plate on the van. Uneasy about the man's behavior, the parent gave the pictures to the school's security officer the next morning.
Providence Police Officer Richard Piccirillo testified that on April 25, 2007, his supervisor told him during roll call to be on the lookout for a white van, with a particular license plate number registered to Pitts, a known sex offender.[4] Officer *243 Piccirillo said that soon after he started his shift at 3 p.m., he spotted the van parked on Cushing Street, within one block of the school's campus. He testified that he parked his cruiser behind the van and broadcasted over his radio to all of the other police cruisers in the city that he was about to conduct a traffic stop of the white van that the officers had been warned about earlier that day during roll call. Officer Piccirillo testified that as soon as he approached the partially opened driver's side window, he heard Pitts moaning and then he observed him masturbating in the driver's seat. Officer Piccirillo testified that because he was concerned for his own safety he immediately ordered Pitts to exit the vehicle before he could cover himself. He then patted Pitts down for weapons, and handcuffed him.
The state's final witness, Providence Police Officer Nicole Darling, testified that she arrived at the scene as backup to Officer Piccirillo and saw him place Pitts in the back of the patrol car. At this time, Pitts's pants were still unfastened and his penis was exposed. Officer Darling testified that during an inventory search of the van she found a video camera, a blue lunch bag, a blue knit ski mask, a used condom, a book with photos of adult women, and masking tape. She said that after she completed the inventory search, the Bureau of Criminal Investigation documented the contents of the vehicle before it was impounded.
Pitts testified in his own defense at the probation-violation hearing. He said that he was familiar with the area around the school because he was an artist who sold his work as a street merchant on nearby Thayer Street. Pitts explained that on the day before his arrest he parked outside the school to take pictures of people as they walked away. Pitts said that he had previously taken a series of pictures of people arriving, and he contended that these new photos were going to be used for a similar series of pictures of people departing.
Pitts also said that he worked for a company called "French Design Builders."[5] He testified that on the day of his arrest, after he worked at a job site for the company in North Smithfield from 7:30 a.m. until 3 p.m., he drove to Butler Hospital in Providence, where the company had another job site. After he concluded that there was no further work to be done that day at that location, he parked his van on Cushing Street to purchase some pizza on Thayer Street. He said that when Officer Piccirillo approached his van, the window was not half open, but was raised because it was broken and could not be lowered, and that he was talking to his boss on his company cellular telephone. He insisted that he was not masturbating at the time of the arrest, and he denied that his penis ever was exposed during the encounter with the police.
Moreover, Pitts argued that even if the hearing justice believed the state's witnesses, there was no evidence that he was engaged in any criminal behavior because he had a reasonable expectation of privacy while in his van. He further argued that the police officers fabricated the entire incident because a parent from a prestigious private school saw an African-American man with dreadlocks in the school's vicinity.
After the hearing justice heard all the evidence he found the state's witnesses were being "absolutely forthright with the *244 Court" and that Pitts's testimony was "totally unbelievable." The hearing justice concluded that there is no "expectation of privacy when you're in a motor vehicle on a public highway," and that any inappropriate behavior in a vehicle could be the basis of a disorderly-conduct charge based on G.L. 1956 § 11-45-1(a)(7).[6] The hearing justice determined that he was satisfied that Pitts had committed the acts described by the two police officers in their testimony. He also noted that he believed Pitts would be convicted of disorderly conduct.[7] However, the hearing justice said that even if Pitts's conduct did not satisfy the elements of the crime of disorderly conduct, he nonetheless found that Pitts exposed himself and that his actions clearly were inappropriate and not in keeping with the good behavior required of a probationer. Therefore, the hearing justice declared that Pitts had violated the terms and conditions of his probation. As a result, the hearing justice imposed an additional five years for Pitts to serve from his previously suspended sentence. Pitts timely appealed.
Standard of Review
"At a probation violation hearing, the sole issue for the presiding judicial officer to consider is whether or not the defendant has breached a condition of his or her probation by failing to keep the peace or remain on good behavior." State v. Bouffard, 945 A.2d 305, 310 (R.I.2008) (citing State v. Crudup, 842 A.2d 1069, 1072 (R.I.2004)); see also State v. Forbes, 925 A.2d 929, 934 (R.I.2007). "The burden of proof on the state is much lower than that which exists in a criminal trialthe state need only show that `reasonably satisfactory' evidence supports a finding that the defendant has violated his or her probation." Bouffard, 945 A.2d at 310 (quoting Forbes, 925 A.2d at 934); see also State v. Sylvia, 871 A.2d 954, 957 (R.I.2005). The trial justice weighs the evidence presented at the probation-violation hearing and assesses the credibility of the witnesses. State v. Christodal, 946 A.2d 811, 816 (R.I.2008) (citing State v. Pena, 791 A.2d 484, 485 (R.I.2002) (mem.)). This Court gives the trial justice's assessment of the credibility of witnesses "great deference." Id. (quoting Bajakian v. Erinakes, 880 A.2d 843, 852 (R.I.2005)). When reviewing a finding of a probation violation, "this Court considers only whether the hearing justice acted arbitrarily or capriciously in assessing the credibility of the witnesses or in finding such a violation." Christodal, 946 A.2d at 816.
*245 Analysis
On appeal Pitts contends that: (1) the hearing justice abused his discretion and came to arbitrary and capricious conclusions when he found that the state's witnesses were credible and (2) even if this Court agrees with the hearing justice's finding that Pitts masturbated in his van, this act did not amount to disorderly conduct or a violation of the terms and conditions of his probation. After a thorough review of the record, we hold that Pitts has failed to show that the hearing justice acted arbitrarily and capriciously when he made credibility determinations and when he found that Pitts violated the terms and conditions of his probation.
Pitts contends that the situation spiraled out of control when the father of two teenagers at a prestigious, predominantly white private school misinterpreted his artistic endeavors and concluded that he was inappropriately filming children. He argues that the police officers did not want a black man festooned with dreadlocks, who happened to be a convicted sex offender, near the school, and that they were "determined to get him off the streets." Pitts also maintains that the police officers fabricated their version of events and, as a result, they were uncomfortable on the witness stand because they were testifying falsely. He also submits that there were no photographs proving that he had been engaged in a sexual act while in his car. We see utterly no merit in his arguments.
It is well settled that a hearing justice's credibility determinations are "conclusive unless an examination of the record discloses that he or she has misconceived or misinterpreted material evidence or that he or she otherwise was clearly wrong." In re Harold S., 731 A.2d 265, 268 (R.I.1999) (citing Donnelly v. Grey Goose Lines, Inc., 667 A.2d 792, 794-95 (R.I.1995)). This Court defers to a hearing justice's determination of a witness's credibility because he or she has the benefit of observing the physical appearances of the witnesses as they testify. "Our perspective is limited to analyzing words printed on a black and white record." State v. Woods, 936 A.2d 195, 198 (R.I. 2007) (deference to hearing justice for credibility determinations because this Court does not have the same vantage point to observe the "witness' demeanor, tone of voice, and body language"). In this case the hearing justice concluded that any discomfort displayed by the police officers while they were on the witness stand was due to the fact that "these were relatively young police officers who had observed something that was unpleasant to both of them and I think that unpleasantness came through as they tried to testify as to what happened that day." The hearing justice found Officers Piccirillo and Darling's testimony to be "absolutely forthright." By contrast, he found Pitts's testimony to be "totally unbelievable." In our opinion, the hearing justice's credibility determinations are supported by the record.
Pitts further contends that even if this Court affirms the hearing justice's finding that Pitts committed a sexual act in his van, his actions did not amount to disorderly conduct. Pitts does not concede the factual findings of the hearing justice, but he argues that even if he had engaged in such activity, he nonetheless had an expectation of privacy while he was alone in his vehicle. Indeed, he contends that casual passersby would have been able to observe only his chest and head and would not even have been able to see anything below his waist. Therefore, he argues that his actions did not constitute disorderly conduct because he did not expose himself to the public.
*246 However, we agree with the hearing justice that under these circumstances, there is no expectation of privacy with respect to a person's behavior while occupying a motor vehicle on a public highway. Although the van's window may have been higher than the window of a passing car, anyone walking past the van would have been able to see Pitts. Further, a public bus or a school bus would have been high enough to provide a clear view of Pitts.
Irrespective of whether Pitts could be found guilty of disorderly conduct, there was sufficient evidence for the hearing justice to conclude that he had violated his probation by failing to keep the peace and remain on good behavior. Further, it is axiomatic that the state need not prove beyond a reasonable doubt that the defendant committed a crime to support a finding of a probation violation. A probation-violation hearing focuses "on whether or not the defendant's `conduct on the day in question had been lacking in the * * * good behavior expected and required by his [or her] probationary status.'" State v. Maloney, 956 A.2d 499, 507 (R.I.2008) (quoting State v. Brown, 915 A.2d 1279, 1282 (R.I.2007)). In our opinion, the fact that Pitts was engaged in a sexual act in a vehicle on a public highway, at a time when he was on probation for prior sex offenses, constituted a violation of the terms of his probation. Especially in light of this defendant's prior convictions for child sexual molestation, his masturbating in his van near a school undoubtedly does not meet the test of good behavior.
After our thorough review of the record, we hold that the hearing justice acted neither arbitrarily nor capriciously when he found that the evidence presented at the probation-violation hearing was sufficient to demonstrate that the defendant had violated the terms and conditions of his probation. We agree with the hearing justice that the facts presented by the state were sufficient to demonstrate that the defendant failed to keep the peace and remain on good behavior.
Conclusion
For the reasons stated in this opinion, we affirm the judgment of the Superior Court. The papers in this case may be remanded to the Superior Court.
NOTES
[1] Rule 32(f) of the Superior Court Rules of Criminal Procedure provides that:
"The court shall not revoke probation or revoke a suspension of sentence or impose a sentence previously deferred except after a hearing at which the defendant shall be afforded the opportunity to be present and apprised of the grounds on which such action is proposed. The defendant may be admitted to bail pending such hearing. Prior to the hearing the State shall furnish the defendant and the court with a written statement specifying the grounds upon which action is sought under this subdivision."
[2] It appears that Pitts filed his notice of appeal on the day before judgment was entered concerning the probation violation. We have stated in the past that we treat premature appeals as timely filed, and we will continue to do so in this case. State v. McManus, 950 A.2d 1180, 1181 n. 2 (R.I.2008) (mem.) (citing State v. Hesford, 900 A.2d 1194, 1197 n. 3 (R.I.2006)).
[3] The parent testified that he was within four feet of the driver as he took the picture from the curb.
[4] Officer Piccirillo testified that during roll call that day his supervisor issued a "BOLO" regarding Pitts's van; a "BOLO" notifies the police officers to be on the lookout for a certain vehicle, in this case, Pitts's van.
[5] Pitts testified that he had been working for the company for eleven months at the time of his arrest and that his job responsibilities included cleaning up at and transporting materials to the company's various work sites.
[6] At the time of Pitts's arrest, G.L. 1956 § 11-45-1(a)(7) provided:
"Disorderly conduct.(a) A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly: * * * (7) Exposes his or her genitals to the view of others under circumstances in which his or her conduct is likely to cause affront, distress, or alarm to the other persons."
Chapter 11 of Title 45 entitled "Disorderly Conduct" was amended by the General Assembly in July 2008 by adding the following section:
"Indecent exposureDisorderly conduct. (a) A person commits indecent exposure/disorderly conduct when for the purpose of sexual arousal, gratification or stimulation, such person intentionally, knowingly or recklessly: (1) Exposes his or her genitals to the view of another under circumstances in which his or her conduct is likely to cause affront, distress, or alarm to that person." Section 11-45-2, as enacted by P.L. 2008, ch. 183, § 2.
[7] The hearing justice's assessment proved to be correct because a Superior Court jury convicted Pitts of disorderly conduct in April 2008. The trial justice sentenced Pitts to six months in prison to be served consecutively with his five-year sentence for his probation violation. Pitts timely appealed his conviction; however, that appeal is not now before this Court, nor does the outcome of that appeal impact our decision in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562623/ | 960 A.2d 360 (2008)
196 N.J. 544
Raymond Arthur ABBOTT, a minor, by his Guardian Ad Litem, Frances Abbott; Arlene Figueroa, Frances Figueroa, Hector Figueroa, Orlando Figueroa and Vivian Figueroa, minors, by their Guardian Ad Litem, Blanca Figueroa; Michael Hadley, a minor, by his Guardian Ad Litem, Lola Moore; Henry Stevens, Jr., a minor, by his Guardian Ad Litem, Henry Stevens, Sr.; Caroline James and Jermaine James, minors, by their Guardian Ad Litem, Mattie James; Dorian Waiters and Khudayja Waiters, minors, by their Guardian Ad Litem, Lynn Waiters; Christina Knowles, Daniel Knowles and Guy Knowles, Jr., minors, by their Guardian Ad Litem, Guy Knowles, Sr.; Liana Diaz, a minor, by her Guardian Ad Litem, Lucila Diaz; Aisha Hargrove and Zakia Hargrove, minors, by their Guardian Ad Litem, Patricia Watson; and Lamar Stephens and Leslie Stephens, minors, by their Guardian Ad Litem, Eddie Stephens, Plaintiffs-Respondents and Cross-Movants,
v.
Fred G. BURKE, Commissioner of Education; Edward G. Hofgesang, New Jersey Director of Budget and Accounting; Clifford A. Goldman, New Jersey State Treasurer; and New Jersey State Board of Education, Defendants-Movants and Cross-Respondents.
M-969/1372 September Term 2007,
Supreme Court of New Jersey.
Argued September 22, 2008.
Decided November 18, 2008.
*361 Robert J. Gilson, Director, Division of Law, Assistant Attorney General, argued the cause for movants and cross-respondents (Anne Milgram, Attorney General of New Jersey, attorney; Nancy Kaplen, Assistant Attorney General and Michelle Lyn Miller, Senior Deputy Attorney General, on the briefs).
David G. Sciarra, Executive Director, Education Law Center, argued the cause for respondents and cross-movants (Mr. Sciarra and Gibbons, attorneys; Mr. Sciarra, Elizabeth A. Athos, Theresa Luhm, Ellen Boylan, Avidan Y. Cover and Deborah G. Splansky, on the briefs).
Emily B. Goldberg submitted a brief on behalf of amicus curiae Urban Mayors' Association (Seton Hall University School of Law Center for Social Justice and American Civil Liberties Union of New Jersey Foundation, attorneys; Ms. Goldberg, Edward L. Barocas and Jeanne M. LoCicero, on the brief).
*362 Cecilia M. Zalkind, Newark, submitted a brief on behalf of amicus curiae Association for Children of New Jersey.
Mary A. Ciccone submitted a brief on behalf of amici curiae Alliance for The Betterment of Citizens with Disabilities, The Brain Injury Association of New Jersey, New Jersey Protection & Advocacy, Inc., New Jersey Special Education Practitioners, Special Education Clinic at Rutgers University School of Law-Newark and Special Education Leadership Council of New Jersey.
Arnold Robinson, Millville, submitted a letter in lieu of brief on behalf of amicus curiae Millville Board of Education (Robinson, Andujar & Webb, attorneys).
Richard A. Friedman submitted a letter in lieu of brief on behalf of amicus curiae New Jersey Education Association (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys).
Robert A. De Santo, Vineland, submitted certifications in lieu of brief on behalf of amicus curiae Vineland Board of Education (Gruccio, Pepper, De Santo & Ruth, attorneys).
Rafael C. Haciski, Cherry Hill, submitted a letter brief on behalf of amicus curiae Camden City School District (Wolf-Block, attorneys).
Richard E. Shapiro, Princeton, submitted a brief on behalf of amici curiae Boards of Education of City of Bridgeton, City of Burlington, City of East Orange, City of Elizabeth, Gloucester City, Keansburg Borough, Jersey City Public Schools, City of Passaic, State-Operated School District of Paterson, Pemberton Township, City of Perth Amboy, Town of Phillipsburg and City of Trenton.
Morris G. Smith, Collingswood, submitted a letter brief on behalf of amicus curiae New Jersey Black Issues Convention.
Perry L. Lattiboudere, General Counsel, submitted a letter brief on behalf of amicus curiae State Operated School District of the City of Newark.
Anna Maria Tejada submitted a letter in lieu of brief on behalf of amicus curiae Hispanic Directors Association of New Jersey (Kaufman Dolowich & Voluck, attorneys).
Stephen Eisdorfer, Princeton, submitted a brief on behalf of amicus curiae Dollar$ and Sense (Hill Wallack, attorneys).
PER CURIAM.
Since the early 1970s, pupils attending some of New Jersey's poorest school districts have come to the courts of this state to obtain fulfillment of their right to a thorough and efficient education guaranteed by the New Jersey Constitution. N.J. Const. art. VIII, § 4. This Court has enforced that constitutional guarantee for students in so-called "special needs" school districts since 1973, first in the Robinson v. Cahill litigation,[1] and, later, in this action, commenced in 1981 to challenge the constitutionality of the Public School Education Act of 1975, L. 1975, c. 212 (Chapter 212).
In our first decision in this matter, this Court referred plaintiffs' challenge to the Commissioner of Education for the development of a record. Abbott v. Burke, 100 N.J. 269, 495 A.2d 376 (1985) (Abbott I). Ultimately, plaintiffs carried their burden to overcome the presumption of validity that is accorded to legislative enactments, and successfully demonstrated the unconstitutionality of public school funding under Chapter 212 as applied to them. See *363 Abbott v. Burke, 119 N.J. 287, 575 A.2d 359 (1990) (Abbott II). The State was ordered to provide plaintiffs attending special needs districts (later designated as "Abbott districts") with a constitutionally compliant education, id. at 374, 575 A.2d 359, supported by funding in accordance with standards established to guide the State's achievement of a constitutional system of education, id. at 384-86, 575 A.2d 359.
The State's efforts to comply with its constitutional obligation have spanned decades. Plaintiffs have had to bring numerous challenges to ensure that the State satisfied its constitutional obligation. They have worked long and hard to obtain a constitutionally sound, mandated educational program that is supported by a consistent level of State funding. And, their success has enabled children in Abbott districts to show measurable educational improvement. That background brings the present application into sharp relief.
In January 2008, the Legislature passed, and the Governor signed into law, a new school funding formula titled the School Funding Reform Act of 2008 (SFRA), L. 2007, c. 260. Thereafter, the State sought to reopen this matter by filing a motion seeking declarations that the SFRA satisfies the requirements of the thorough and efficient education clause of the New Jersey Constitution and, further, that the Court's prior remedial orders concerning the provision of a thorough and efficient education in the Abbott districts "are no longer necessary." Plaintiffs, through the Education Law Center (ELC), opposed the State's motion. Moreover, plaintiffs filed a cross-motion seeking an order that preserves the "status quo" in this decades-old litigation and that specifically declares that this Court's prior remedial orders remain in force.
On September 22, 2008, the Court heard oral argument on the dual applications. For the reasons hereinafter set forth, we conclude that this matter cannot be resolved on an undeveloped record. Because the issues before us require more than a summary review, we order that this matter be remanded for further proceedings consistent with this opinion.
I.
It is well recognized that legislative enactments enjoy a presumption of validity. See State v. Trump Hotels & Casino Resorts, 160 N.J. 505, 526, 734 A.2d 1160 (1999) (noting that presumption of validity attaches to statutory enactments); Abbott v. Burke, 149 N.J. 145, 174, 693 A.2d 417 (1997) (Abbott IV) ("We do not minimize the State's contention that, as a legislative enactment [the statute before us] is entitled to a presumption of validity"); N.J. Sports & Exposition Auth. v. McCrane, 61 N.J. 1, 8, 292 A.2d 545 (1972) (recognizing presumption of validity conferred on legislative enactments), appeal dismissed sub nom, Borough of E. Rutherford v. N.J. Sports & Exposition Auth., 409 U.S. 943, 93 S.Ct. 270, 34 L.Ed.2d 215 (1972); Gangemi v. Berry, 25 N.J. 1, 10, 134 A.2d 1 (1957) (same). Ordinarily, a party challenging a legislative enactment bears the burden of overcoming that presumption and proving that the law is unconstitutional. See Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 285, 716 A.2d 1137 (1998) (noting that party may overcome presumption of constitutionality by demonstrating, beyond reasonable doubt, statute's repugnancy to Constitution (citing Harvey v. Bd. of Chosen Freeholders, 30 N.J. 381, 388, 153 A.2d 10 (1959))); see also Jamouneau v. Harner, 16 N.J. 500, 515, 109 A.2d 640 (1954) (explaining that when constitutionality of legislation must be addressed, every reasonable *364 intention is accorded to enactment). As Chief Justice Hughes explained, our judicial restraint springs from a
seemly respect for the act of a co-equal branch of government, as well as for the public interest in the effective operations of government both elements invoking a "broad tolerance" in considering a charge of constitutional evasion or excess.
[N.J. Ass'n on Correction v. Lan, 80 N.J. 199, 218, 403 A.2d 437 (1979) (citations omitted).]
The SFRA, however, was not enacted in an ordinary context. Plaintiffs, more than once, have carried their burden when challenging prior school funding statutes, resulting in the invalidation of those funding schemes. See, e.g., Abbott IV, supra, 149 N.J. at 188, 693 A.2d 417; Abbott v. Burke, 136 N.J. 444, 451, 643 A.2d 575 (1994) (Abbott III). As a consequence of plaintiffs' successful prior challenges to constitutionally deficient funding schemes, this Court has entered specific remedial orders to ensure that plaintiffs would receive a constitutional level of funding. See infra, Section III.A (summarizing history of Court's involvement, fashioning remedies to ensure plaintiffs' receipt of State-supported thorough and efficient education). SFRA is the most recent legislative effort toward the enactment of a constitutional school funding statute. We cannot ignore that SFRA's passage came in the wake of the constraining circumstances of those prior remedial orders directed at the State.
The State comprehends the unique procedural circumstances before us because its application includes a request to be relieved from compliance with this Court's prior remedial orders. The State also asks that we declare the new SFRA funding formula constitutional. The State made the policy choice to provide state funding to public school districts in the current fiscal year consistent with SFRA.
We cannot give an advisory opinion on SFRA's statewide constitutionality. The Abbott v. Burke litigation does not provide this Court with jurisdiction to address the statute's applicability to students not before the Court. However, we do have jurisdiction to determine whether SFRA is constitutional as applied to pupils in the Abbott districts. Moreover, the existing decisions and orders of this Court must serve as the starting point for any discussion of the constitutionality of SFRA as applied to the pupils who are the beneficiaries of those rulings.
Because those decisions have dictated, to date, how a constitutional level of state funding for the pupils in Abbott districts is to be provided, SFRA's constitutionality, which otherwise would be presumptive, must be approached differently. Through their pending applications the State and plaintiffs ask that we confront the intersection of the Legislature's new funding formula with our prior decisions. In essence, the question is whether the formula should be permitted to replace the funding methodology previously ordered.
II.
A. SFRA Development Process
The State's affidavit submissions go into great detail about the process through which it developed the new funding formula embodied in SFRA. We begin, therefore, by summarizing the State's description of that process and the formula it produced.
The State's efforts began in 2003. The State Department of Education (DOE), in conjunction with a consulting firm, Augenblick, Palaich and Associates (APA), decided to use a professionally recognized methodology, known as the Professional *365 Judgment Panel (PJP) approach, in order to develop a new school funding formula.[2] Pursuant to that method, one identifies desired performance standards, then develops prototypical model districts, and finally employs panels of experts to determine the resources needed to reach the selected performance standards in those districts.
The DOE's use of the PJP methodology began with a determination that its performance standards would be the Core Curriculum Content Standards (CCCS), which were deemed in Abbott IV, supra, to be a reasonable definition of a constitutionally sufficient, thorough and efficient education. 149 N.J. at 168, 693 A.2d 417. The CCCS's mandated standards embrace nine subject areas, see N.J.A.C. 6A:8-1.1, which must be reviewed and updated by the State Board of Education every five years. See L. 2007, c. 260, § 4.
According to the State, to develop prototypical model schools and districts, DOE's consulting firm used data from each district in the State to generate six model districts, which assertedly conform to the demographics of New Jersey school districts. The characteristics reflected in the district models include size, grade span, and percentages of at-risk, Limited English Proficiency (LEP), and special education students.
The DOE next turned to the identification of educational resources needed to meet the CCCS in the six prototype districts. To that end, DOE convened three panels of experts. The first group was comprised of educators within the DOE. That panel made the initial resource recommendations, which became the starting points for the work of the later groups. Panel members were instructed to identify necessary resources and not to be overly constrained by concerns about cost, but they also were counseled not to design their dream school.
The experts comprising the next round of panelists were selected by education-stakeholder groups, and included an ELC representative and representatives from Abbott districts. That panel reviewed and modified the resources identified in the work of the first-round panel. Their work product was adjusted in turn by a third panel of eight district-level administrators, including two superintendents and one business administrator from Abbott districts. The process yielded a set of necessary resources for an elementary, middle, and high school for each model district and included recommendations that were detailed enough to include, for example, specialty teachers for the arts and additional personnel and aides for at-risk or LEP students, as well as summer school and after-school programs for schools having certain percentages of at-risk and LEP students.
The final step involved identifying a base per-pupil amount for general education and similar, identified per-pupil costs that would reflect the services necessary for students having special needs. DOE applied actual-cost data from 2004-2005 to the resources identified as needed by the panels. Salary statistics from data on file with the DOE and the Department of Labor also were used. Applying those costs to the different district and school *366 models, DOE's consultant extracted formulas for estimating the costs needed to achieve the CCCS standards in all districts in the State.
Those findings, and the process used to develop them, were set forth in a December 2006 Report on the Cost of Education (Report). DOE held public hearings, inviting public comment on the Report.[3] That input convinced the DOE to publish a January 2007 Addendum to the Report, updating cost figures with 2005-2006 data.
Also during the public comment time period, DOE retained three experts to review the findings in the report. In sum, they produced a report that recommended the following changes: allocate more resources for professional development; expand the definition of "at-risk" to include students eligible for a reduced-price lunch; use mean, instead of median, salary data; undertake additional research into the cost of substitute pay and employee benefits; employ a newer geographic cost adjustment; and simplify the formula by combining the base amounts for moderate, large, and very large districts.[4]
Armed with those additional recommendations, DOE began finalizing a funding formula. It convened another panel of experts: one versed in systemic reform and evidence-based practices; one whose background was in teacher retention and early childhood; and the third having expertise in educational finance. Their recommendations, together with the public comments, the previous experts' report, and additional "stakeholder" meetings held between April and December 2007, helped to finalize a new funding formula.
B. Formula Development
DOE decided to base its formula on one model district the "large" district out of the original six models. Its rationale for that decision was based on several considerations. It claims that larger districts generally are more efficient and that, therefore, the use of a larger model would provide incentive for the creation of larger, more efficient districts, consistent with the Legislature's preference for such efficiencies. In addition, DOE asserts that large and extra-large districts tend to have more at-risk students, and generally are more likely to reflect the characteristics of a greater number of districts.[5] DOE also weighted students based on grade level to reflect the higher cost of educating middle and high school students.
DOE then applied certain categorical cost-enhancements to the model. Those included: adding $175 per student for capital improvements; adjusting utilities costs to reflect inflation; adding more resources for professional development; increasing funding for instructional aides for districts with at-risk populations of over forty percent;[6] providing for extra security guards *367 in districts that are over forty percent at-risk; and expanding the definition of "at-risk" to include students eligible for both free and reduced-price lunches.
DOE also adjusted the formula to use census or actual-cost data for categories such as salary benefits and vocational schools, and switched from a median to a mean value for the calculation of teachers' salaries. In addition, DOE carved out a third weight for students who qualify as both at-risk and LEP, and enhanced the LEP weight (from .47 to .50). According to DOE, that weight enhancement increases the fiscal resources allocated for LEP students by approximately $300 per student. Additional weights were added for districts with at-risk pupil percentages exceeding sixty percent, according to a sliding scale. Under the adjusted formula, districts with high percentages of at-risk students receive additional funds beyond those needed to support the resources identified through the PJP process.
Finally, DOE expanded the provision of preschool programs and changed the method through which special education is funded. For example, every district is obligated to provide preschool to all three- and four-year-olds who qualify as atrisk, and any DFG A, B, or CD district[7] with a concentration of forty percent or more children must offer full-day preschool to all three- and four-year-olds in that district. That designation includes all Abbott districts except Hoboken, which is classified as DFG FG. Under DOE's proposal, the State will fully fund those per-pupil amounts based on actual enrollment and the funds will be segregated in a special revenue fund.
One of the primary differences between the new formula and prior school funding formulas is that virtually all aid under the new formula is wealth-equalized. Each district contributes to its adequacy budget an amount that is based on its ability to raise local revenue. The adequacy budget includes: (1) the base amounts for elementary, middle, and high school students; (2) the additional weights for at-risk, LEP, and at-risk LEP students; (3) two-thirds of the census-based cost for general education; and (4) all census-based costs for speech. It therefore constitutes the vast majority of a district's education expenditures. Adding to that is a district's required local fair share contribution. That amount is calculated by indexing the district's property wealth and aggregate income using statewide multipliers. State equalization aid compensates for the difference between the fair share and the adequacy amount. Categorical aid is then allocated, regardless of a district's ability to raise revenue, to pay for: (1) one-third of the census-based cost for general special education; (2) security aid; (3) preschool aid; and (4) extraordinary aid for special education.
C. The SFRA
In December 2007, DOE published A Formula for Success: All Children, All Communities, which included the weights and costs for the 2008-2009 school year and set forth DOE's final version of its funding proposal. The SFRA generally incorporates that formula, and includes additional structural provisions to address the formula's timeliness and continued efficacy. *368 The SFRA was passed by both houses of the Legislature on January 7, 2008, and signed by the Governor on January 13, 2008.
In terms of 2008-2009 costs, the base amounts for each elementary, middle, and high school student are $9,649, $10,035, and $11,289, respectively. The cost for a full-time vocational student is $14,789. An at-risk weight is assigned on a sliding scale ranging from .47 to .57. According to DOE, the at-risk aid results in an additional $4,535 to $6,435 per student, depending on the concentration of at-risk students in that district. The LEP weight yields an additional $4,825 to $5,645 per pupil. The combined at-risk/LEP weight, allocated in the same way, generates an additional $5,741 to $7,846 per student. Special education students receive an excess dollar amount, $1,082 for speech-only special education pupils and $10,898 for other special education pupils.
The SFRA also provides certain aid adjustments. Those adjustments enable districts to receive at least a two-percent increase in State aid for 2008-2009 as they become acclimated to the new formula and, at the same time, the SFRA limits one-year aid increases to "ensure that districts anticipate and plan for optimal use of any significant aid increases." Further, former Abbott districts that have been spending less than their calculated adequacy amounts may be eligible for "Education Adequacy Aid," which is designed to bring each to the spending level necessary to achieve the CCCS standards within three years. DOE claims that the provision of Education Adequacy Aid is an appropriate response to the likelihood that communities with a local tax levy far below their calculated fair share amount will be unable to meet their fair share without some form of state assistance.
The SFRA also imposes a number of systemic requirements. The Governor must generate and present to the Legislature an Educational Adequacy Report every three years. The report must address recommendations for adjustments to: (1) the base per-pupil amount; (2) the per-pupil amounts for full-day preschool; (3) the weights for various special-needs populations; (4) cost coefficients for security aid and transportation aid; and (5) specific identified special education cost information. Unless the adjustments are rejected by the Legislature by November 30th of the reporting year, the SFRA makes them self-executing during the following school year.
In addition, the Commissioner independently is required to study the special education census methodology by June 30, 2010, to determine whether adjustments to that formula are needed. The study must be completed by the time the local levy growth limitation provisions expire. See L. 2007, c. 62.
D. Plaintiffs' objections to SFRA
Plaintiffs mount numerous challenges to SFRA. Generally stated, plaintiffs' argument is that the funding formula is based on unproven models and is not based on the actual needs of Abbott districts. They object to the State's failure to produce evidence that it considered the Court-prescribed criteria for Abbott-district designation when developing the SFRA formula and assert that SFRA essentially abandons the Abbott-district designation, without prior Court approval. Thus, plaintiffs contend that, under SFRA, funding to Abbott districts will decline in coming years, undoing the accomplishments achieved in the past.
More specifically, plaintiffs assert that the SFRA is inconsistent with the remedies previously ordered by this Court for *369 the Abbott districts, most especially the parity remedy, the Abbott K-12 supplemental programs remedy, and municipal overburden. They contend that it is the State's burden to demonstrate, as to the parity remedy for example, that the legal standard for supplanting that specific remedy has been met. That standard, they contend, requires that the State first show that spending in the I and J districts is inefficient before any reduction in parity can occur. As for supplemental programs, the plaintiffs similarly argue that the State must show that the SFRA will enable the Abbott districts to meet the needs that currently are met through supplemental needs-based funding. And, as for municipal overburden, plaintiffs contend that the State must demonstrate that municipal burden no longer cripples the Abbott districts' ability to increase tax levies before requiring the districts to raise those levies to the extent SFRA requires.
According to plaintiffs, all those proofs must be made, and convincingly so, before the State may discontinue implementation of the Abbott remedies. Thus, plaintiffs contend that the State's application should be denied or, in the alternative, the matter should be remanded for development of a proper evidentiary record.
III.
There are several parts to the inquiry that we must undertake in order to resolve the applications before us. We must consider, first, whether our prior holdings preclude an alternative legislative approach to financial support for a thorough and efficient education; and, second, if not, whether the Court is willing to entertain a different approach. If so, then, the final part to this inquiry must address whether the prior decisions of the Court bar or constrain aspects of the State's alternative funding approach.
A.
A brief history of certain key decisions in the Abbott litigation sheds light on the Court's present ability to answer the first question in the negative. An alternative school funding approach is not precluded by our earlier decisions.
In Abbott II, supra, the State presented the Public School Education Act of 1975 (the Act) as a school funding formula that would satisfy the constitutional requirement of a thorough and efficient education. 119 N.J. at 295, 575 A.2d 359. The Court reviewed the Act after it had been examined through the development of a full record. Id. at 295-300, 575 A.2d 359. Based on that record, the Court found the funding formula to be constitutionally inadequate. Id. at 295, 575 A.2d 359. Importantly, the Court further found that "funding alone will not achieve the constitutional mandate" for the pupils in districts having high concentrations of poor children; that "without educational reform,... money may accomplish nothing; and that in these [poorer] districts substantial far-reaching change in education [was] absolutely essential to success." Ibid.
The Court ordered the remedy of "certain funding" to be provided to the special needs districts, resorting to the conventional wisdom that money is a factor. Id. at 385, 575 A.2d 359. The Court used the successful I and J districts the most affluent suburban districts as a benchmark it could identify for success. Id. at 386, 575 A.2d 359. As was later underscored in Abbott IV, supra, 149 N.J. at 167, 693 A.2d 417, the Court in Abbott II, supra, looked to those districts it deemed were likely to be providing a level of education that was consistent with the Constitution. 119 N.J. at 357-69, 575 A.2d 359. The Court ordered that the funding must approximate the average net current expense budgets *370 of the I and J districts, id. at 386, 575 A.2d 359, acknowledging that expenditure disparity could continue to exist because the I and J districts were not being capped, id. at 388, 575 A.2d 359. The important point of the remedy was to bring a thorough and efficient education to the poorer urban districts. Id. at 385, 575 A.2d 359. Further, the court ordered that the funding be adequate to provide for the special educational needs of students in poorer districts. Id. at 386, 575 A.2d 359.
Four years later, in Abbott III, supra, the Court considered the Quality Education Act (QEA), enacted by the Legislature in 1990 in response to Abbott II. 136 N.J. at 446-47, 643 A.2d 575. After a full chancery court hearing was conducted in which the State bore the burden of showing that the new statute complied with the prescriptions for a constitutional funding program set forth in Abbott II, the Court declared the QEA unconstitutional. Id. at 446-47, 643 A.2d 575. The new funding formula failed to implement key aspects of the Abbott II decision, which directed that there be certainty in the funding for the special needs districts, among other requirements. Id. at 451, 643 A.2d 575.
In response to Abbott III's rebuff of the QEA funding approach, the State turned its attention to the creation of comprehensive content standards for a thorough and efficient education from which a standard of fiscal support could be built. Thereafter, the Legislature, working with the Executive Branch, enacted the Comprehensive Educational Improvement and Financing Act of 1996 (CEIFA), L. 1996, c. 138 (codified at N.J.S.A. 18A:7F-1 to -33).
In Abbott IV, supra, the Court addressed the constitutionality of CEIFA, declaring upon examination of the statute's educational content provisions that, with the enactment of CEIFA, the Legislature had taken a major step in detailing the components and meaning of a constitutional education, an effort that "strongly warrant[ed] judicial deference." 149 N.J. at 167-68, 693 A.2d 417. The Court ultimately concluded that the CCCS established in CEIFA provided a constitutionally acceptable definition of a thorough and efficient education. Id. at 168, 693 A.2d 417.
That said, the Court was unable to approve the fiscal standards adopted in CEIFA to support the CCCS because the standards were based on costs in a hypothetical school district that supposedly served as a model for all school districts. Id. at 163, 693 A.2d 417. The Court noted that the "model" did not account for the characteristics of special needs districts. Id. at 172, 693 A.2d 417. Furthermore, the Court also found that those special needs were not adequately provided for through CEIFA's categorical aid for supplemental programs demonstrable effective program aid (DEPA) because DEPA funding also was not calculated based on a study of the special needs of the high concentrations of poor students attending Abbott districts. Id. at 185, 693 A.2d 417. Thus, the Court was forced to conclude that the State had not demonstrated an adequate basis for using the per-pupil funding amounts for supplemental programs. Ibid.[8]
Faced with no viable alternative legislative or administrative solution to the funding dilemma, the Court ordered the parity remedy. Abbott IV, supra, 149 N.J. at 189, 693 A.2d 417. The Court resorted to the I and J district average as an objective and *371 reasonable indicator of resources needed to achieve the CCCS. Id. at 191-92, 693 A.2d 417. The parity remedy was recognized, even at the time, as an "interim" remedy, albeit the Court's "chosen interim remedy." Id. at 190, 693 A.2d 417. The door was left open, however, for an alternative funding approach. The Court allowed that the Legislative and Executive Branches could devise an adequate alternative funding remedy so long as the State could show, convincingly, that a thorough and efficient education can be met through expenditures lower than parity, or if the State showed that the I and J districts' spending contained inefficiencies. Id. at 196, 693 A.2d 417.
Thereafter, in Abbott V, supra, following an extensive hearing before a special master appointed by the Court, the Court directed the implementation of whole school reform and otherwise settled details about the supplemental programs that would be required for pupils in special needs districts, now designated as "Abbott districts." 153 N.J. at 489, 508-19, 527-28, 710 A.2d 450.[9]Abbott V also required a remedy for the extensive facility needs found to exist in such districts. Id. at 527-28, 710 A.2d 450.
B.
Except for individual years in which a freeze on State funding forced economies in the operation of the funding scheme ordered by Abbott IV and Abbott V, the State has abided by the Court-ordered parity remedy enhanced by supplemental funding to the Abbott districts. That scheme was in place until SFRA was enacted. Plaintiffs take the position that the State must prove a lack of need for the funds currently going to the support of I and J districts in order to displace parity with SFRA or any other funding scheme. The State takes the entirely different approach of asserting that, with SFRA, it has built a school funding formula from the ground up, applicable for all districts, taking into account and incorporating sufficient budgetary support for special needs within Abbott districts and in other districts where concentrations of poor, at-risk children generate similar special needs.
We would agree with plaintiffs if we viewed the parity remedy as the only means by which this Court could envision a constitutional funding scheme, but we do not. It was one but not the sole means to achieve a constitutional funding scheme. The parity order was chosen because of the absence of any other "measuring stick" by which to gauge the necessary educational resources for the CCCS to be provided in districts having large concentrations of poor children within their pupil population. Our prior decisions and orders did not preclude experimentation and consideration of alternative approaches to an equitable and constitutional funding approach. On the other hand, the Court has never abdicated its responsibilities to plaintiffs and will not do so now.
We approach the matter before us mindful that all three branches of government have a shared purpose to achieve for all students compliance with the constitutional command for a thorough and efficient education. The legislative findings in the preamble to the SFRA declare as much and profess that years of diligent effort in a careful and deliberate process have produced a unitary funding approach that has identified the resources needed by all districts to provide a constitutionally sufficient *372 program of education consistent with CCCS standards. See L. 2007, c. 260, § 2. Specifically, the Legislative and Executive Branches claim to have developed a formula that adjusts for the unique special needs of all districts with higher concentrations of at-risk and LEP students and that, accordingly, the Abbott district remedies are no longer needed.
We begin our consideration of the applications before us by declaring that another funding approach may prove constitutionally satisfactory. That said, it is the State's obligation to demonstrate that it has produced an equitable funding formula one it describes as being applicable to all districts based on size, regional costs, and the characteristics of the district that can ensure Abbott districts have sufficient resources to enable them to provide a thorough and efficient education, as defined by the CCCS standards. Our prior remedial orders require no less. By that, however, we do not mean that the formula must produce the equivalent in an exact dollar amount to that which parity/supplemental-program funding would have provided to be constitutional.
In its motion before the Court, the State robustly asserts that the SFRA formula provides all districts, including Abbott districts, with sufficient funds to deliver a constitutionally adequate education by providing sufficient support for the CCCS standards. The State contends that SFRA's fiscal standards are not hampered by the shortcomings that originated from CEIFA's model-school-district approach to the CCCS. According to the State's submissions, it has taken a more nuanced and layered approach to the calculation of "sufficient" aid by district, which includes a means for accounting for the "at-risk" cost attributable to the educational and social challenges occasioned by concentrated pupil poverty. It also asserts that SFRA adjusts, in numerous other ways, to the various types of needs faced by large and small school districts as a whole, and by schools of differing population size and grade configuration in urban as well as rural district settings.
Certainly there exist, in this state, districts other than Abbott districts that are challenged in their provision of a thorough and efficient education because they have concentrated populations of poor, at-risk children with exceptional educational and social needs. The State's desire to step back and take a hard look at its whole approach to school funding is reasonable and responsible, particularly when the cost of public funding for education comprises such an overwhelming portion of the State's annual budget. However, until the State demonstrates to our satisfaction that a constitutionally adequate education can be provided to Abbott district students through the funding that will be provided via SFRA, the State is bound to comply with the prior remedial orders and decisions respecting the plaintiffs in Abbott districts.
Because the State's assertions that its revised funding scheme is constitutional are supported only by affidavits that are challenged by opposing affidavits from plaintiffs and by submissions of the amici Abbott districts, we are unable to resolve the matter on the present record. The question is not suited to summary disposition. We have, therefore, determined to remand the matter for the development of an evidential record. Live testimony and cross-examination will be required to resolve disputed matters of fact. The burden of proof shall be on the State, as it has been each time the State has advanced a new funding program that it has asserted to be compliant with the thorough and efficient constitutional requirement.
*373 C.
In this instance, the remand issue is limited. The Court has already held the CCCS standards to be constitutional. At this time, the issue to be resolved is whether the State has overcome the deficiencies found in CEIFA's funding provisions as applied to Abbott districts. To answer that question, we must know how the State's new formula will accommodate Abbott pupils' resource needs through the calculation of the base cost of regular education and as supplemented by the "at-risk" and other costs.[10] The new formula must be examined specifically to determine whether the special needs of disadvantaged students can be met sufficiently through the SFRA's orderly and planned approach to addressing special needs, with all the benefits that such deliberate planning provides. That demonstration also will need to address the reasonableness of allowing SFRA's approach to replace the open-ended, individual-district-needs-based approach to such fiscal needs that has evolved through the current method of supplemental-program funding.
Because our prior decisions and orders shall remain in effect during the pendency of the remand and until the Court approves an alternative funding program for the Abbott districts, we require maintenance of funding to the Abbott districts consistent with those standards. In the Court's consideration of the State's request to be relieved immediately from continued compliance with the existing remedial orders, we note, however, that the State informed us that the Abbott districts are funded in the 2009 fiscal year at 102% of the 2008 fiscal year's funding level for each district. That information compels us to add that we consider that level of funding for any individual Abbott district to be presumptively sufficient for the current year.
Nevertheless, pending our review of the record to be developed on remand, we are reluctant to deprive the Abbott districts of the opportunity to demonstrate that, within the limits of their current year funding, they are incapable of providing a thorough and efficient education. Therefore, we hold that the remand shall not preclude any Abbott district from attempting such a demonstration to rebut the presumption of sufficient current year funding.
IV.
The matter is remanded to a special master to be appointed by Order of the Court. The proceedings on remand shall be expedited. Jurisdiction is otherwise retained.
For remandmentJustices LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS5.
OpposedNone.
ORDER
This matter having come before the Court on the application of defendants (collectively, "the State") for a determination that the School Reform Funding Act of 2008 (SFRA) is constitutional (M-969) and the application of plaintiffs for an Order that preserves the "status quo" in funding and that declares all of the Court's prior remedial orders remain in force;
And the Court having granted applications for leave to file amicus curiae briefs *374 on behalf of designated Abbott districts and other interested entities[11];
And the Court having heard oral argument on the motions from the State and counsel for plaintiffs;
And the Court having determined that it is unable to resolve the disputed issues of fact between the parties concerning the constitutionality of SFRA in the absence of a testimonial record;
And good cause appearing;
IT IS ORDERED that the within matter is remanded to Superior Court Judge Peter E. Doyne, sitting as a Special Master, to conduct a plenary hearing to develop a full and complete evidential record that addresses the factual contentions raised by the parties and amici curiae before this Court; and it is further
ORDERED that the Special Master shall permit amicus curiae participation by any Abbott district that is not already in the within matter, provided such district submits appropriate moving papers within twenty-one days of the filing date of this Order; and it is further
ORDERED that the examination and cross-examination of witnesses at the hearings shall be limited to counsel for the State and plaintiffs; and it is further
ORDERED that the burden is on the State to prove that SFRA's funding formula provides sufficient resources to enable the Abbott districts, with their special needs in respect of the at-risk pupils entrusted to their care, to deliver a thorough and efficient education, as defined by the Core Curriculum Content Standards; and it is further
ORDERED that plaintiffs and amici shall have the burden of proof on the factual issues that relate to their specific claims of current year inadequate school funding; and it is further
ORDERED that the Special Master shall conduct the hearings on an expedited basis and shall file a report on his factual findings and conclusions with the Court within sixty days of the completion of the hearings; and it is further
ORDERED that the Court shall thereafter determine a supplemental briefing schedule for the parties and, if deemed appropriate, amici curiae.
Jurisdiction is otherwise retained.
Justices LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in the Court's Order. Chief Justice RABNER and Justice LONG did not participate.
NOTES
[1] See Robinson v. Cahill, 62 N.J. 473, 303 A.2d 273 (1973) (Robinson I) and ensuing decisions culminating in Robinson v. Cahill, 70 N.J. 464, 360 A.2d 400 (1976).
[2] The PJP methodology was developed in Wyoming in response to its State Supreme Court's order requiring the state to re-examine its school funding structure. See Campbell County Sch. Dist. v. State, 907 P.2d 1238, 1279-80 (Wyo.1995) (directing state to calculate cost of services needed to provide proper education to all students). The PJP method is described as one of four well-established methods for conducting cost studies for education financing, and the most popular for adequacy studies. See Silverstein Aff. ¶ 4-5.
[3] See Report on the Cost of Education, Dec. 11, 2006, available at http://www.nj.gov/ education/sff/background.htm.
[4] With those recommended adjustments, the experts' report concluded that the resources identified by DOE would be sufficient to meet the benchmarks for success used by a variety of entities, including satisfaction of the resources in the "illustrative" school budgets described in Abbott v. Burke, 153 N.J. 480, 710 A.2d 450 (1998) (Abbott V). The report also recommended that the State study successful and unsuccessful schools and districts to identify strategies that have been especially successful or unsuccessful. We are informed that the DOE is conducting such a study in partnership with Rutgers University.
[5] According to DOE, of the thirty-one Abbott Districts, eleven qualify as extra large, twelve are large, seven are moderate, and one is small.
[6] DOE states that this will enable every kindergarten class in a district that is over forty percent at-risk to have an instructional aide in the classroom.
[7] The DOE classifies school districts according to socioeconomic status. See generally Abbott IV, supra, 149 N.J. at 155 n. 3, 693 A.2d 417 (summarizing DOE's classification system, which is based on ten District Factor Groups (DFGs) identified as A through J). DFG A and B districts are those having the greatest indicia of poverty and, at the other end of this socioeconomic scale, DFG I and J districts comprise the state's most affluent school districts. Ibid.
[8] The Court also concluded that the State had failed to address the need for facilities improvement. Id. at 186-88, 693 A.2d 417.
[9] Abbott V later was modified to allow additional options. Abbott v. Burke, 177 N.J. 578, 586-87, 832 A.2d 891 (2003) (Abbott X).
[10] We understand that facility needs are not part of plaintiffs' present challenge. It appears that the SFRA does not call into question compliance with our prior orders in respect of that State obligation.
[11] Amici include the following: Urban Mayors' Association; Association for Children of New Jersey; Alliance for the Betterment of Citizens with Disabilities, The Brain Injury Association of New Jersey, New Jersey Protection & Advocacy, Inc., New Jersey Special Education Practitioners, Special Education Clinic at Rutgers University School of Law-Newark and Special Education Leadership Council of New Jersey; Millville Board of Education; New Jersey Education Association; Vineland Board of Education; Camden City School District; Boards of Education of City of Bridgeton, City of Burlington, City of East Orange, City of Elizabeth, Gloucester City, Keansburg Borough, Jersey City Public Schools, City of Passaic, State-Operated School District of Paterson, Pemberton Township, City of Perth Amboy, Town of Phillipsburg, and City of Trenton; New Jersey Black Issues Convention; State-Operated School District of the City of Newark; Hispanic Directors Association of New Jersey; and Dollar$ and Sense. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567424/ | 579 S.W.2d 804 (1979)
STATE of Missouri, ex rel. ST. JOSEPH, MISSOURI ASSOCIATION OF PLUMBING, HEATING AND COOLING CONTRACTORS, INC., a corporation, and James W. Supple, Individually and Representative of those persons constituting the United Association of Plumbers and Pipe Fitters of United States and Canada, Local # 45, Relators-Respondents,
v.
CITY OF ST. JOSEPH, Missouri and Frank L. Endebrock, Director of Public Works of the City of St. Joseph, Missouri, Respondents,
v.
TOWN AND CAMPUS INTERNATIONAL, INC., Intervenor-Appellant.
No. KCD 29646.
Missouri Court of Appeals, Western District.
April 2, 1979.
*805 Stephen J. Briggs, Morton, Reed & Counts, St. Joseph, for intervenor-appellant.
William G. Whetsell, St. Joseph, for respondents, City of St. Joseph, and Frank L. Endebrock.
Downs & Pierce, Robert D. Colley, St. Joseph, for respondents, St. Joseph, Missouri Ass'n of Plumbing, Heating and Cooling Contractors and James W. Supple.
Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
DIXON, Judge.
Town and Campus, Inc. appeals from an order denying them intervention in a mandamus action brought at the relation of Missouri Association of Plumbing, Heating and Cooling Contractors and Local # 45 of the United Association of Plumbers and Pipe Fitters against the City of St. Joseph. The mandamus sought a circuit court order directing the cancellation of plumbing permits issued to a plumber, Ronald Woods, for work on an apartment project under development by Town and Campus, Inc.
Ronald Woods had been licensed in several other cities but was not licensed in St. Joseph. The mandamus was brought after the decision in State ex rel. Sprague v. City of St. Joseph, 549 S.W.2d 873 (Mo. banc 1977), which held that St. Joseph as a charter city was not required to afford reciprocity in licensing under the provisions of Sections 341.010-341.080 RSMo 1969. Upon the issuance of the preliminary writ in mandamus, Endebrock, the administrative officer of the City of St. Joseph who had issued the permits, wrote to Ronald Woods advising him that the City would comply with the preliminary writ and would rescind the permits. This notice also advised Woods of the date upon which the hearing was set. On that date, an attorney representing Woods was present; an attorney representing Town and Campus also appeared and filed a motion to intervene.
The intervenor-appellant's motion alleged irreparable harm if the writ were issued because Ronald Woods could not complete his work on the apartment project already in progress. There was an allegation that the intervenor would be damaged in the sum of $2 million if Woods were not permitted to complete the work. The attorney for Woods took no part in the proceedings except for a response to an inquiry from the court that the record could show he was "present."
At the June 3 hearing, the City of St. Joseph confessed the allegations of the alternative writ; the court overruled the motion to intervene and entered a peremptory *806 writ of mandamus directing rescission of the Ronald Woods permits. Intervenor Town and Campus appeals from the denial of the motion to intervene.
In a single point, the intervenor argues that the trial court's judgment was in error because it was entitled to intervene as a matter of right under the provisions of Rule 52.12(a). The applicable provisions of that rule are as follows:
"52.12 Intervention
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
. . . . .
(c) Procedure. A person desiring to intervene shall serve a motion upon all parties affected thereby. The motion shall state the grounds therefor, and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of this state gives a right to intervene."
Rule 52.12(a) was changed in 1972 so that the entire rule is now substantially identical to Rule 24 of the Federal Rules of Civil Procedure. The change in the rule broadened the language and the requirements for mandatory intervention. While the former rule required a showing that the applicant would be bound by a judgment in the action, the present rule requires only that the applicant show that "the disposition of the action may as a practical matter impair or impede his ability to protect that interest . . .." According to the Advisory Committee Notes to the 1966 amendment to Fed.R.Civ.P. 24, the Rule's "criterion imports practical considerations, and the deletion of the `bound' language similarly frees the rule from undue preoccupation with strict considerations of res judicata." 28 U.S.C.A. Rule 24, pp. 16-17. Overall, however, the major purpose of the rule, both in Missouri and in the federal jurisdictions, is "to facilitate the determination of all related disputes in one proceeding, and thereby avoid a multiplicity of actions." State ex rel. Hughes v. Smith, 485 S.W.2d 646, 651 (Mo.App.1972).
Despite the broadening of the Rule's language, any request for mandatory intervention under 52.12(a) must establish that three basic elements are present: (1) the applicant must show an "interest" in the subject of the action in which he seeks to intervene; (2) he must show that his ability to protect his interest will be impaired or impeded as a practical matter; and (3) he must show that his interest is not adequately represented by the existing parties.
Intervenor does not quarrel with the foregoing statement of principles; its brief recites the same tests. The problem in this case is the application of the criteria to a very scanty record. All that appears in the record is a bare allegation by Town and Campus that it would suffer $2 million in damages if the plumbing permits were rescinded.
The respondents contend that the lack of a formal pleading is a fatal flaw in intervenor's case and that the trial court properly overruled the Motion to Intervene. The cases in the federal jurisdictions using Rule 24 and in the Missouri cases under Rule 52.12 demonstrate that a compliance with the pleading requirement may be excused in compelling circumstances. Wright and Miller, Federal Practice and Procedure: Civil § 1914, and cases cited therein. In Missouri, the general rule has always been that the statute should be liberally construed to permit broad intervention. Bolin v. Anders, 559 S.W.2d 235, 247 (Mo. App.1977); State ex rel. Hughes v. Smith, supra at 651.
However, applying this principle to excuse the lack of a formal pleading does not resolve the dilemma in applying the three-fold test required under Rule 52.12.
The requirement that the applicant have an interest in the subject of the litigation is *807 a requirement that did not change with the recent amendment to the rule. Early cases in Missouri gave substantial discussion to this requirement, and the analysis in those cases is still valid for the present case. Most often cited is the case of State ex rel. Farmers Mutual Automobile Insurance Co. v. Weber, 364 Mo. 1159, 273 S.W.2d 318 (banc 1954). The pertinent language on "interest" is as follows:
". . . `interest' means a direct and immediate claim to, and having its origin in, the demand made or proceeds sought or prayed by one of the parties to the original action, but such `interest' does not include a mere consequential, remote or conjectural possibility of being in the same manner affected by the result of the original action; . . . the `interest' must be such an immediate and direct claim upon the very subject matter of the action that intervenor will either gain or lose by the direct operation of the judgment that may be rendered therein." supra 273 S.W.2d at 321.
Other early cases in Missouri cite and follow the Weber definition of interest. See Pine Lawn Bank & Trust Co. v. City of Pine Lawn, 365 Mo. 666, 285 S.W.2d 679, 685 (1956); Laclede Gas Company v. Abrahamson, 296 S.W.2d 100, 102 (Mo.1956); State ex rel. State Farm Mutual Ins. Co. v. Craig, 364 S.W.2d 343, 346 (Mo.App.1963).
Federal cases which followed the 1966 version of the portion of Rule 24 dealing with mandatory intervention give a more practical definition of the "interest" necessary for intervention. Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967) discusses the "interest" term without much definition, other than to quote the Advisory Committee Notes, supra at 133 n. 3. Hobson v. Hansen, 44 F.R.D. 18 (D.D.C.1968) states that the Notes of the Advisory Committee "indicate that the petitioner's interest should be clearly related (directly or indirectly) to the subject matter of the action, and suggest that that interest be a substantial one." supra at 23.
Most useful of all the federal case definitions is that found in Nuesse v. Camp, 128 U.S.App.D.C. 172, 385 F.2d 694 (1967).
"We know of no concise yet comprehensive definition of what constitutes a litigable `interest' for purposes of standing and intervention under Rule 24(a). One court has recently reverted to the narrow formulation that `interest' means a `specific legal or equitable interest in the chose'. Toles v. U. S., 371 F.2d 784 (10th Cir. 1967). We think a more instructive approach is to let our construction be guided by the policies behind the `interest' requirement. We know from the recent amendments to the civil rules that in the intervention area the `interest' test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process." supra 128 U.S.App.D.C. at 178, 385 F.2d at 700.
Based on this definition of interest, it appears that the intervenor possessed the requisite interest to justify intervention. For the purposes of this decision, it may be conceded that the existing parties would not protect the intervenor's claimed interest.
The ultimate and essential issue is whether or not there is anything in this record which will support the second element of the test under Rule 52.12that the intervenor's interest will be impaired or impeded as a practical matter if it is not permitted to intervene. All that the intervenor says in its brief with respect to this issue is that as a practical matter it would have no way to challenge the peremptory writ once it was issued and, therefore, its ability to protect its "interest" would be impaired.
This rather bald assertion does not provide a basis for finding that the second element is present. The authorities have analyzed the right to intervention under the rule by stating the necessary elements separately. Nonetheless, the elements are interrelated and, in a situation like the present one, the relationship of the elements is important. Under the earlier version of the rule, the relationship between *808 the intervening party's interest and the remedy was a rigid one. The intervenor was required to show some binding effect of the judgment upon his interest. The present rule relaxes the requirement to a showing that as a practical matter the interest will be affected, but the intervenor must still show how his interest will be affected. The instant case is classic in demonstrating the importance of the relationship between the factors justifying intervention. The intervenor here has focused on a claim of damage but has not related that assertion of damage to the interest in the permits in any but the most general terms. Conceding that the immediate or apparent interest of the intervenor was the continuation of valid permits for Woods, the real issue is how the cancellation of the permits would affect the ultimate and real interest of the intervenor in the completion of the project.
How, as a practical matter, the cancellation of the permits would affect the interest of intervenor depends upon the nature of the contractual relationship between Woods and the intervenor with respect to the permits. The record and the briefs are silent on these matters. The contract may have required intervenor to obtain the permits; it may have permitted cancellation if the permits were not obtained or were cancelled, or it may have been silent as to the obligations of the parties concerning the permits. The contract provisions would obviously be important in determining whether, as a practical matter, the intervenor's interest would be affected by the cancellation of the permits. Indeed, it is possible that the underlying contract would show by its terms that the apparent interest of intervenor was not, in fact, a protectible interest.
Only by speculation or tacit assumption can the second element of practical impairment and its relationship to intervenor's interest be found. The intervenor as the pleader had the burden to show in some fashion all of the elements. The motion itself does not show the elements sufficiently. Although the failure to file a pleading may not be fatal, State ex rel. Hughes, supra, the factual and theoretical basis for the claim of intervention must appear in some fashion. It is not clear from the case law that the failure to file a pleading with the motion excuses the failure to state the basis for a claim of intervention in the motion itself. Whatever the source, there must be some basis for review of the trial court's order. The record in this case, the briefs, and the record in the prohibition proceeding filed by intervenor in this court, State ex rel. Town & Campus v. Steeb, No. KCD 29572, have been examined. There is no hint or suggestion concerning the nature of the contractual arrangement between Ronald Woods and the intervenor as it affects the plumbing permits in any of these sources. Thus, even assuming that the necessary factual and theoretical basis for intervention could be supplied from the briefs or the record, there is nothing here to permit a finding that the trial court erred in refusing intervention. The intervenor has failed to demonstrate that an interest existed which would as a practical matter be impaired or impeded.
The judgment is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3036669/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1812
___________
Richard Kurtzeborn, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Allied Gear and Machine Co., Inc.; *
International Association of Machinists * [UNPUBLISHED]
and Aerospace Workers, District No. 9, *
*
Appellees. *
___________
Submitted: January 12, 2005
Filed: January 18, 2005
___________
Before WOLLMAN, McMILLIAN, and FAGG, Circuit Judges.
___________
PER CURIAM.
After Richard Kurtzeborn, a union employee of Allied Gear and Machine Co.,
Inc., was laid off, he filed a grievance asserting his discharge violated the terms of the
collective bargaining agreement (CBA) because more junior employees were
retained. Kurtzeborn’s grievance was denied, and Kurtzeborn’s union declined to
pursue the grievance to arbitration. Kurtzeborn then brought this action against
Allied Gear asserting breach of the CBA and against the union for breach of its duty
of fair representation. The district court* granted summary judgment to Allied Gear
and the union, concluding Allied Gear complied with the seniority provisions of the
CBA when laying off Kurtzeborn and thus the union did not breach its duty of fair
representation.
On appeal, Kurtzeborn contends summary judgment is improper because there
is a genuine issue of material fact–whether Allied Gear breached the CBA when it
laid him off. Having carefully reviewed the parties’ briefs, the record, and the
applicable law, we conclude the district court properly granted summary judgment to
Allied Gear and the union. Because we have nothing to add to the district court’s
explanation, we affirm on the basis of the district court’s memorandum and order.
See 8th Cir. 47B.
______________________________
*
The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1678361/ | 516 So.2d 907 (1987)
Glenn McGILBERRY
v.
STATE.
1 Div. 471.
Court of Criminal Appeals of Alabama.
July 28, 1987.
Rehearing Denied September 8, 1987.
Certiorari Denied November 20, 1987.
*908 Ian Gaston of Gaston & Gaston, Mobile, for appellant.
Don Siegelman, Atty. Gen., and Rosa Davis, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 86-1616.
McMILLAN, Judge.
The appellant, Glenn McGilberry, was convicted of sexual abuse in the first degree, in violation of § 13A-6-66, Code of Alabama (1975), and sentenced to a term of two years; he was to serve twelve months in the Mobile County Jail, with the balance of the sentence suspended for a five-year period.
I
The appellant argues that the trial court's administering of an Allen charge to the jury under the circumstances of this case was impermissibly coercive. The record indicates that on December 15, 1986, the jury began deliberations at 4:15 p.m. At 5:05 p.m., the jury had not yet reached a verdict and the trial court declared a recess until the following morning. The jury continued deliberations at 9:00 a.m. on December 16, 1986. At 10:50 a.m., the foreman informed the trial court that the jury was unable to reach a unanimous decision. The trial court gave the following charge:
"Well, have a seat. Let me talk with you all about that. And let me say this to you all up front: That we are not going to keep any of you here. We are not going to keep you here to irritate you or to put you under pressure. We are not going to do that. But I want to discuss with you the significance of failing to reach a verdict. When you all were impanelled, I was quite excited about the composition of the jury because you look like an excellent jury. During the course of the trial, you proved to be an excellent jury.... You all have invested a day, a little bit more than a day in this case and have done it well. If we have to re-try this case, I don't know that I could get a jury as fine as this one. And if we don't get a jury as fine as this one, then the product of the deliberations would not be as fair and the product of the deliberations that you all can perform in this case. And the wonderful work that you have done so far would be wasted, I mean utterly wasted. That would be a real shame. That would be kind of a blow to the parties in this case and a blow to our system of trying to resolve conflicts by having a trial of impartial people. Now, I am going to talk to you a little bit about unanimous verdicts. As I have said, your verdict does have to be unanimous and I don't want for anything that I say in this case to detract from the law which is that for you to find the defendant guilty, each and every one of you must be convinced beyond a reasonable doubt and to a moral certainty of his guilt. That is true. And, likewise, to find him not guilty each and every one of you must harbor a reasonable doubt as to his guilt. That is true. But when we speak of proof beyond a reasonable doubt and when we speak of reasonable doubt, we mean not doubt on a personal We mean not your being convinced or your harboring a doubt on ameasured by a personal standard, but rather measured by an objective standard. In other words, when you are trying to determine whether you harbor a doubt or whether you are convinced beyond a reasonable doubt, the question is not really your personal leanings or predilections. Its how would a fair and reasonable person view the evidence.... But remember that none of us are herethat none of you are hearing this case or trying this case really because you want to except insofar as you want to do your duty to your community. You are hearing this case because we have to hear the case and the judgment you make is not going *909 to be a happy thing either way. Either way, one side or another is going to be bitterly disappointed and they will either beOne side or the other will either be bitterly disappointed by your verdict or we will have to retry this case with another jury, possibly not nearly as wise and attentive as this one. And then they will have to be bitterly disappointed at that point. One side is going tothe complaining witness's side or the defendant's sideone or the other will win, one or the other will lose. So it's not as if there is going to be an outcome that's happy for everybody at any point in these proceedings. I am going toI will ask you if you can do it, think about your position and consider reevaluating it against the standard of what would the average, fair, and reasonable person think of the evidence.... Another thing that I would like for all of you to bear in mind is this: changing your position is no personal disgrace. In fact, some of the greatest leaders down through history have followed a procedure of decision-making which almost inherently and invariably required them to change position. Some of our greatest leaders, ones that pop into mind right now are Abraham Lincoln, John Kennedy, Dr. Martin Luther King. Those are three I can think of right now who when they were faced with a difficult decision would get their advisors around them, whether they be cabinet members of other advisers. We get their advisors around and would throw out an idea for discussion. The leader, himself, would throw out the idea for discussion and let his advisors just tear it to pieces.... And then the leader would look among all the different thoughts that had been proposed and would pick out the best and frequently would say, `Well, yeah, the position I originally took did have a lot of flaws. Let's take this other position. It looks like the right one, having considered everything.' And those people became famous for making good decisions, sound decisions. And they got themselves a place in history by virtue of the interesting process by which they would examine an idea, by adopting the wrong one first, tearing it to pieces, and then finding the right one from there. That dynamic process is one that you jurors can use to reach a verdict which will be truly unanimous in the heart of each and every one of you, measured by an objective standard of how the average, reasonable and fair person would view the evidence. Would you all be willing to bear that in mind? I understand Commissioner Mason is under the gun to some extent because he has to go up to Montgomery. I don't want for that pressure to be creating a problem. It might be that we could put you ladies and gentlemen in recess until such time as Commissioner Mason could get back from Montgomery, depending on how long your trip would be, Jim,
"JUROR MASON: Judge, I am willing to go back in and see if we can reach an agreement. As far as that goes, I can postpone it. I am not under that much pressure to go. So, I would like to try to resolve this.
"THE COURT: We are deeply grateful for your service on the jury and for your service as a commissioner and we want to fit the two together compatibly if we can. If you all find you are making progress and you also find you are under time constraints with regard to your trip, as I say, if need be, we can put the jury into recess for a day or two so that you could run up and do that. Would all of you be willing to take a fresh look at the case and each one of you evaluating your position and see if you can reach a unanimous verdict. Is there anybody that thinks it wouldn't be a good idea to do that?"
Thereafter the defense counsel objected and took exception to the trial court's reference to Commissioner Mason and his personal business "with time constraints" in that such might "put undue pressure on the jury to compromise even further possibly to the detriment of the defendant." At 11:05 a.m., approximately five minutes later, the jury returned with a verdict of guilty.
*910 The propriety of the trial judge's inquiry and statements concerning the particular jury member should be determined under a "totality of the circumstances" test. Ex parte Showers, 407 So.2d 169 (Ala.1981).
"`While the trial judge is vested with large discretion in the conduct of the trial and may admonish the jury as to the desirability and importance in agreeing on a verdict, he may also urge jurors to make every effort consistent with their consciences to reach such verdict. He may request jurors to lay aside mere pride of judgment and listen to what the other jurors believe from the evidence. The judge may ask the jurors to reason together in a spirit of fairness and candor and, if possible, harmonize them. However, it is not proper to give an instruction censoring jurors for not agreeing with the majority.'"
Richardson v. State, 508 So.2d 289 (Ala.Cr. App.1987), quoting Showers v. State, 407 So.2d 167, 169 (Ala.Cr.App.1980), reversed on other grounds, 407 So.2d 169 (Ala.1981).
"`"It is quite clear that under Alabama law a trial judge may urge a jury to resume deliberations and cultivate a spirit of harmony so as to reach a verdict, as long as the court does not suggest which way the verdict should be returned and no duress or coercion is used." Showers v. State, 407 So.2d 169, 171 (Ala.1981).'" Harris v. State, [Ms. 6 Div. 176, April 28, 1987] (Ala.Cr.App.1987), quoting Channell v. State, 477 So.2d 522, 531 (Ala. Cr.App.1985).
In the present case, the numerical division of the jury was never indicated in the record. Harris v. State, supra slip at 7. Furthermore, the trial court did not indicate to the jury through words or conduct that it "expected" a verdict. Channell v. State, supra at 531; Orr v. State, 40 Ala. App. 45, 111 So.2d 627 (1958), affirmed, 269 Ala. 176, 111 So.2d 639 (1959). While it is true that the verdict was returned very soon following the trial court's comments concerning the jury member, Gidley v. State, 19 Ala.App. 113, 95 So. 330, 331 (1923), under the totality of the circumstances of the judge's charge, we do not find that the "trial court's instructions encouraging [the] jury to arrive at a unanimous verdict exceeded the bounds of permissible instructions by coercing the jury into reaching a unanimous verdict which the jury would probably not have rendered but for such coercion." Franklin v. State, 502 So.2d 821, 827 (Ala.Cr.App.1986), cert. quashed, 502 So.2d 828 (Ala.1987).
Moreover, we note that the case sub judice is distinguishable from Ex parte Morris, 465 So.2d 1180 (Ala.1985). In Morris, the judge ended his remarks in sending the jurors back for further deliberations by stating "that he would be back by 5:00 that afternoon." The Court found that this statement "clearly put within the minds of the jurors a deadline for returning with an unanimous verdict. There can be no doubt that, at this point, [the judge's] `words and deeds' had crossed the `Allen line' and Petitioner's motion for a mistrial should have been granted." Ex parte Morris, supra, at 1183. In the present case, no such deadline was set, as the trial court explained that the jury could recess for a few days in order for the jury member to conduct his business.
For the above-stated reasons, we do not believe that the trial judge's comments constituted reversible error.
II
The appellant argues that the trial court abused its discretion by allowing a witness to testify after she violated the rule of sequestration. The record indicates that, following the testimony of the victim, a recess was called during which the trial court held a conference in his chambers with both attorneys. The trial court explained:
"I just went out in the hall to get a drink of water and the complaining witness, what's her name, ... was sitting between her parents. They all had their three heads together talking about something. And as I came out the door, she said to both of them, `Shush.' I have a feeling that all three of them were discussing the case." *911 Thereafter, the victim's father was called to the judge's chambers. When the trial court questioned the victim's father, concerning the incident, he responded that they were not discussing the case, but rather a fishing trip or his purchase of "a big rod and reel." The victim's mother was then called into chambers. The following transpired:
"THE COURT: ... [W]hat were you all discussing when I came out the door to get a drink of water?
"[THE MOTHER]: [My daughter] was saying you better get all the water you want before you get in there because you can't have any. Your mouth feels like a cotton ball. And her daddy said, `If you want water, all you have to do is say, I want water.' She said, `Uh uh.'
"THE COURT: Did you all discuss anything else?
"[THE MOTHER]: No.
"THE COURT: Nothing at all?
"[THE MOTHER]: Not that I can remember. As far as the case is concerned?
"THE COURT: Uh-huh.
"[THE MOTHER]: No.
"THE COURT: Well, what were you discussing?
"[THE MOTHER]: That's what I said, the water. That's the only thing I can think of.
"THE COURT: You mean for the last 15 minutes you all only discussed a thing?
"[THE MOTHER]: Well, we were talking about them going to Switzerland this summer.
"THE COURT: How long had the three of you been sitting there talking?
"[THE MOTHER]: We had just sat down because he had brought [my daughter] back out there.
"[PROSECUTOR]: Judge, I brought her out there. I didn't want her sitting in there until Your Honor was ready.
"THE COURT: Anything further?
"[DEFENSE COUNSEL]: No."
The victim was then called to the judge's chambers. The victim stated that they were discussing softball and a trip to Switzerland for a softball tournament. She stated that they had been talking for approximately five minutes before the judge walked out into the hall. The following then transpired:
"THE COURT: ... When I came out there in the hall, how come you said, `Shush?'
"[VICTIM]: I didn't feel you wanted to hear our conversation.
"THE COURT: ... Somebody is not telling the truth. Your father came in here and said y'all had been discussing fishing. You come in here and tell me Switzerland. Nothing would really meritI mean discussing Switzerland or fishing would provoke your saying `Shush.' What really were you all talking about?
"[VICTIM]: That is what we were talking about.
"THE COURT: Not talking about fishing?
"[VICTIM]: I wasn't talking about fishing. I was talking Switzerland.
"THE COURT: Was anybody talking about fishing?
"[VICTIM]: No, sir.
"...
"[PROSECUTOR]: When you [victim] said `Shush,' were you trying to hide anything from the Judge?
"[VICTIM]: No, sir.
"[PROSECUTOR]: Why were you saying `Shush'?
"[VICTIM]: They were too loud.
"[PROSECUTOR]: Was it out of respect for the judge?
"THE COURT: Don't lead her into that, Buz. Somebody is lying through their teeth. I am sorry I didn't put them all under oath before I called them back here. They were murmuring very softly. They were not too loud. And somebody is just lying through his or her teeth. I don't know who it is or what the purpose of it is.
"[PROSECUTOR]: Judge, may I ask her
"THE COURT: Uh huh.
"[PROSECUTOR]: Were you talking about the testimony in this case?
"[VICTIM]: No, sir.
*912 "[PROSECUTOR]: Were you talking to your parents, telling them what to say or telling them what you said?
"[VICTIM]: No, sir.
"[PROSECUTOR]: Judge, whatever they were talking about, I am confident they were not trying to hinder the court process. I have a great deal of respect for this family. For whatever reason the [victim] said, `Shush,' she is only 17 years old. I am sure she is not trying to hide anything. Her mother is very incidental as far as her testimony, very little to say. Her father's testimony is very limited. She is, obviously, the main witness, and she has already testified. I just want to be on the record.
"...
"[PROSECUTOR]: Again for the record, I had her sitting beside me in the courtroom. I wanted her to sit with her family until Your Honor took the bench. I didn't want to leave her there by herself. That is why she was outside at all."
Thereafter, the father was again brought to the judge's chambers, where he was placed under oath. He explained that when the judge had questioned him concerning their topic of conversation, his mind "just went that blank." He then stated that they had been discussing the trip to Switzerland and never discussed fishing. The trial court then stated:
"[PROSECUTOR], We don't need this quality of testimony in this trial. Now, this witnessI don't know what the situation with him is, but if [defense counsel] objects to his testifying, I am not going to have him testify. I have the feeling that somebody has been violating the rule of sequestration. I have gotten two different stories out of this witness, one under oath, one not under oath. And the rule has got to mean something."
The defense counsel then objected to allowing the mother to testify, but the trial court overruled the objection, noting that there had been no conflict in what she had said. The defense counsel then reminded the trial court that the mother had testified that they had been talking "about a drink of water" and that initially that was all that she could recall. The trial court then responded, "I have some misgivings about the whole business." Thereafter, although the father was not allowed to testify, the mother was allowed to take the stand. The mother testified that on Friday she drove her daughter to the father's home, where she was to spend the weekend. The appellant lived near the victim's father, and it was the following Sunday afternoon that the alleged offense occurred. The mother testified that on Friday when she dropped her daughter off at the father's house, there were no marks on the victim's neck. However, when she returned to drive the victim home on Monday morning, she said there was "a passion mark" on the victim's neck. She testified that after she spoke to the victim, she drove to the Sheriff's Department and signed a warrant for the appellant's arrest.
Although there was a definite appearance of impropriety on the part of the victim and her parents, and although the trial judge noted that he had "some misgivings about the whole business," this matter lies largely within the trial court's discretion.
"The general rule in Alabama is that the invocation and enforcement of the rule of exclusion of witnesses is a matter within the sound discretion of the trial court and is not normally subject to appellate review. Stone v. State, 55 Ala. App. 663, 318 So.2d 359 (1975); Patterson v. State, 53 Ala.App. 567, 302 So.2d 540, cert. denied, 293 Ala. 770, 302 So.2d 545 (1974); Gamble, McElroy's Alabama Evidence, § 286.01 (3d ed. 1977).
"...
"Because appellate judges cannot observe the demeanor of the parties at trial nor hear the inflection of their voices, the determination of whether the [party] was at fault rests in the discretion of the trial court, and is not subject to appellate review in the absence of clear abuse. Johnson v. State, 8 Ala.App. 14, 62 So. 450, rev'd on other grounds, 183 Ala. 88, 63 So. 73 (1913)." *913 Chatman v. State, 380 So.2d 351, 353 (Ala. Cr.App.1980). See also Averitte v. State, 384 So.2d 1245, 1247 (Ala.Cr.App.1980).
"As was recognized in Degg [v. State], 150 Ala. 3, 43 So. 484 (1907), it is well settled in this state that the question of whether a witness who has violated a sequestration order may thereafter testify is a matter which lies within the sound discretion of the trial judge. See also Stephens v. State, 250 Ala. 123, 33 So.2d 245 (1947); State v. Brookshire, 2 Ala. 303 (1841)." Ex parte Faircloth, 471 So.2d 493, 496 (Ala.1985).
"The purpose of sequestration is to obviate as far as possible one witness's trying to make his testimony consistent with that of another." Young v. State, 416 So.2d 1109, 1111 (Ala.Cr.App.1982) citing Carpenter v. State, 400 So.2d 417, 423 (Ala.Cr. App.), cert. denied, 400 So.2d 427 (Ala. 1981); Rowell v. State, 53 Ala.App. 286, 299 So.2d 332 (1974).
"The purpose of the witness sequestration rule is to prevent any one witness from hearing the testimony of other witnesses and perhaps perceiving the value of his own testimony to one party or the other. Obviously, if witnesses are sequestered, they are not able to `strengthen or color their own testimony, or to testify to greater advantage in line with their bias, or to have their memories refreshedsometimes undulyby hearing the testimony of other witnesses.' Louisville and Nashville R.R. Co. v. York, 128 Ala. 305, 310, 30 So. 676, 678 (1901)." Ex parte Faircloth, supra, at 496.
We note that this is not a situation in which the defendant's witnesses were not allowed to testify because of a violation of the rule and thus his constitutional right to call witnesses is not at issue. Cf. Ex parte Faircloth, supra; Chatman v. State, supra;
Furthermore, because of the close relationship of the victim to her family, it is normal to expect that "each should be fully aware of what testimony the other plans to give." Cowgill v. State, 426 So.2d 517, 521 (Ala.Cr.App.1982) (wherein a wife and husband were victims of a crime and the wife remained in the courtroom during the reception of the husband's testimony, in violation of the rule).
We find that the trial judge did not abuse his discretion in allowing the victim's mother to testify.
III
The appellant argues that the trial court erred in disallowing evidence concerning the victim's "interest in and propensity for seeking affection from older men." The appellant argues that this evidence was clearly relevant and material to his theory of defense. The trial court ruled that if such evidence was indeed relevant, it was banned by the rape shield law, § 12-21-203, Code of Alabama (1975).
This statute states in pertinent part:
"(b) In any prosecution for criminal sexual conduct or for assault with intent to commit, attempt to commit or conspiracy to commit criminal sexual conduct, evidence relating to the past sexual behavior of the complaining witness, as defined in subsection (a) of this section, shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or of other witnesses, except as otherwise provided in this section.
"(c) In any prosecution for criminal sexual conduct, evidence relating to the past sexual behavior of the complaining witness shall be introduced if the court, following the procedure described in subsection (d) of this section, finds that such past sexual behavior directly involved the participation of the accused."
This section has been found constitutional. Darrow v. State, 451 So.2d 394 (Ala.Cr. App.1984). Under the rape shield statute, although evidence of past sexual behavior of the victim directly involving the participation of the accused may be considered by the jury as bearing on the issue of consent, Wooten v. State, 361 So.2d 1192 (Ala.Cr.App.1978), "evidence of particular acts of unchastity on the part of the victim *914 with a third person are not admissible. Hollis v. State, 380 So.2d 409 (Ala.Cr.App. 1980)." Moseley v. State, 448 So.2d 450, 454-55 (Ala.Cr.App.1984). "Evidence of sexual activity between the complaining witness and third persons is immaterial and irrelevant." Smiley v. State, 435 So.2d 202, 206 (Ala.Cr.App.1983).
AFFIRMED.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567296/ | 579 S.W.2d 587 (1979)
ARKANSAS STATE HIGHWAY COMMISSION, Appellant,
v.
FIRST PYRAMID LIFE INSURANCE COMPANY OF AMERICA et al., Appellees.
No. 78-277.
Supreme Court of Arkansas, In Banc.
April 2, 1979.
Rehearing Denied May 21, 1979.
*588 Thomas B. Keys and Kenneth R. Brock, Little Rock, for appellant.
Spitzberg, Mitchell & Hays by John P. Gill, Little Rock, for appellees.
BYRD, Justice.
Appellant Arkansas State Highway Commission by eminent domain took 58.39 acres from three separate tracts of land, the title of which was held by appellee First Pyramid Life Insurance Company of America, for construction of the East Belt Freeway where it connects with 1-40. Appellant deposited $44,960.00 as estimated just compensation at the time of the taking. Appraisal *589 witnesses Jack Farris, James Larrison and Wesley Adams called on behalf of appellee testified to damages of $550,150, $640,950 and $495,000 respectively. For appellant Dave Roberts placed damages at $73,743 and William B. Putnam placed the damages at $46,945. The jury returned a verdict for $495,000. For reversal of the judgment entered on the jury's verdict, appellants contend:
"I. The trial court erred in permitting Wesley Adams to be called as a witness by the appellees over appellant's objection.
II. The trial court abused its discretion in allowing appellees to call Wesley Adams in rebuttal.
III. The trial court erred in admitting into evidence certain transactions between 1st Pyramid and Harris Cattle Company.
IV. The trial court erred in not striking the value testimony of appellee's expert witness, Jack Farris, relating to his before value.
V. The trial court erred in not striking the before value testimony of appellee's expert witness, James Larrison.
VI. The trial court erred in not granting a mistrial.
VII. The trial court erred in not allowing appellant's Exhibit "D" and the testimony relative thereto into evidence.
VIII. The trial court erred in not permitting appellant to introduce its proffered Exhibit No. 11."
POINT I. Appellant makes two contentions under this pointI. e.:
"(1) The trial court erred in allowing appellees to call Wesley Adams, an appraisal expert, as a witness in order to ascertain the amount of his appraisal, and
(2) The trial court erred in permitting appellee to bring out that Wesley Adams had been hired by appellant as an expert appraisal witness and the appellant was not calling him as a witness."
Both questions were virtually answered in Arkansas State Highway Comm'n v. Witkowski, 257 Ark. 659, 519 S.W.2d 743 (1975), wherein we cited Boyles v. Houston Lighting and Power Company, 464 S.W.2d 359 (Tex. 1971), State ex rel. State Highway Comm'n v. Texaco, Inc., 502 S.W.2d 284 (Mo. 1973) and Logan v. Chatham County, 113 Ga.App. 491, 148 S.E.2d 471 (1966). Those cases hold that neither party to a condemnation case is bound by rejected opinions of expert witnesses employed by them to appraise property being condemned and cannot be prejudiced by the admission in evidence of rejected appraisals made at their instance. All of those cases also hold that testimony as to the original employment of the expert is not pertinent to the issue of just compensation and when admitted over the objection of the party who originally employed the expert the same constitutes prejudicial error requiring a new trial.
It follows that the trial court erred in permitting appellee to show that Wesley Adams had been employed by appellant to make an appraisal of the estimated just compensation due.
POINT II. In view of the fact that Adams if called must be called as a witness for the landowner, this alleged error is not apt to occur on a retrial.
POINTS III. and VII. The record shows that appellee in the purchase of the property from Harris Cattle Company had some kind of an agreement for the sharing of development costs with Rector, Phillip and Morse, Inc. The 1973 deed from Harris Cattle Company to appellee recites a consideration of $10,000 paid and the execution of a Vendor's Lien Note in the amount of $2,000,765.30 with interest at 4%. The deed provided that the lien retained could be released upon any part of the property by the payment of $7,700.00 per acre. The Vendor's Lien Note provided:
"VENDOR'S LIEN NOTE
$2,000,765.30 September 6, 1973 First Pyramid promises to pay Harris Cattle Company $2,000,765.30 with interest at rate of 4% per annum. Principal sum due September 6, 1979. Interest due *590 and payable March 6, 1975, and annually then after. Note is evidence of unpaid balance of purchase price for 260 acres and payment of note is secured by Vendor's lien retained in deed between parties. Harris not entitled to obtain a judgment against First Pyramid in event of defaultsole and exclusive remedy of Harris is to retain any payments previously made and require First Pyramid to reconvey the said land, or that part which they still have. Upon reconveyance it shall be by Warranty Deed free and clear of any liens. If upon default First Pyramid fails to reconvey upon written demand by Harris within 10 days, then Harris can obtain judgment plus 10% interest and attorney's fees."
Rudolph S. Del Donno, the Senior Vice-President of appellee in charge of investments testified that appellee had laid out for improvements $1,425,000. That the North Little Rock Water Department, Plough Incorporated [The Maybelline Plant], North Little Chamber of Commerce and Fifty For The Future had reimbursed appellee for $640,318.00, leaving appellee's unreimbursed improvement costs at $784,682.00. Other than for the lands involved in this litigation appellee according to the terms of the Vendor's Lien Note had paid $57,000 on the principal. The witness was permitted to show by cancelled check that for the lands involved in the eminent domain action, appellee had paid to Harris Cattle Company at the rate of $7,700 per acre for a total of $448,500. Mr. Del Donno also stated that at the request of appellee's counsel in a lawsuit in chancery court between appellee and Harris Cattle Company, he had executed a deed of the property back to Harris Cattle Company but he did not know whether the deed had been accepted.
Appellant to rebut the foregoing proof sought to call Allan W. Home a member of appellee's board of directors and its legal counsel in the chancery court action between appellee and Harris Cattle Company to show how appellee was attempting to extricate itself from any obligation on the Vendor's Lien Note by trying to return the land to Harris Cattle Company. In its proffer of proof appellant elicited from Home that appellee was not necessarily a volunteer in paying the $7,700 per acre to Harris Cattle Company for the 58.39 acres involved in this eminent domain actioni. e. the $448,500 checkbut that the obligation arose because the Vendor's Lien Note failed to make an exception in cases of eminent domain actions. However, the trial court excluded all of the testimony of Home.
To support the action of the trial court in permitting appellee to show the price that it paid for the land, appellee relies upon Arkansas State Highway Commission v. Hubach, 257 Ark. 117, 514 S.W.2d 386 (1974), where we stated:
"When a parcel of land is taken by eminent domain, the price which the owner paid for it when he acquired it is one of the most important pieces of evidence in determining its present value. However, this assumes that the sale was recent, was a voluntary transaction between parties each of whom was capable and desirous of protecting his own interests, and that no change in conditions or marked fluctuation in values has occurred since the sale. A price paid under such conditions is a circumstance which a prospective purchaser would seriously consider in determining what he himself should pay for the property. As evidence before a jury, it consumes little time in introduction and raises few collateral issues, so that every argument is in favor of its admissibility."
Based upon the foregoing we agree with appellee that the trial court did not err in permitting appellee to show what it had paid for the land. It does not follow that the court was correct, in refusing to permit appellant to show through Home, that appellee was attempting to extricate itself from the transaction. Rules 401 and 402 of the Uniform Rules of Evidence, Ark.Stat. Ann. § 28-1001 (Supp.1977), provide:
"Rule 401. Definition of `Relevant evidence.''Relevant evidence' means evidence having any tendency to make the *591 existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Rule 402. Relevant evidence generally admissibleIrrelevant evidence inadmissible.All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible."
In view of the foregoing rules the appellant was certainly entitled to produce any evidence that it might have to show the Two Million Dollar transaction between appellee and Harris Cattle Company was a sick or sham transaction. Consequently, the trial court erred in refusing to admit the testimony of Home.
POINT IV. Jack Farris, called as a real estate expert by appellee, testified that in determining that the fair market value of the property taken had a fair market value of $569,425 he considered that the highest and best use of the property was for industrial purposes. Farris stated that he used the comparable sale approach in appraising the property. The first comparable sale he used was First Pyramid Life Insurance Company to Pulaski Equipment Company, 5 acres sold for $21,800 per acre. The second sale was First Pyramid Life to Kenneth Penebaker, one acre sold to Twin City Bank for $53,000. The third sale was First Pyramid to Mapco, an easement at $12,000 per acre. The fourth sale was Faulkner and Saterra to Southwestern Bell, eight acres at the corner of I-40 and Highway 161 at $22,500 per acre. Farris also used the sale of Winrock Homes in 1976, next to the Southwestern Bell tract, at $12,148 per acre for 14.89 acres. On cross-examination Farris stated that he did not consider the Penebaker purchase (Twin City Bank) as comparable. He was not sure whether Mapco had the power of eminent domain. Neither did he know whether Southwestern Bell had the power of eminent domain for the eight acre tract.
At the conclusion of Farris' testimony appellant moved "to strike the before value testimony . . . and consequently the figure on just compensation ... on the grounds he has given no fair and reasonable basis for his value." Appellant contends here that the sales used by Farris were either sales to a condemning authority or sales which were located near interchanges, small in size and in developed areas and consequently not comparable.
The trial court was not asked to exclude the Mapco and Southwestern Bell sales on the grounds now suggested and, consequently, committed no error. However, since the issue is likely to arise on a retrial, we point out that sales to one having the right of eminent domain do not ordinarily fall in the category of voluntary sales in the ordinary course of business and, consequently, are not fair criteria of value for purposes of comparable sales in determining the just compensation due in eminent domain actions. Arkansas Power & Light Company v. Harper, 249 Ark. 606, 460 S.W.2d 75 (1970). The party relying upon comparable sales to show estimated just compensation has the burden of proving that such sales are voluntary. May v. Dewey, 201 Va. 621, 112 S.E.2d 838 (1960). As pointed out in Transwestera Pipeline Company v. O'Brian, 418 F.2d 15 (5th Cir. 1969), the burden is a heavy one when the purchaser of the proposed comparable sale falls in the category of those possessing the power of eminent domain.
As to the second contention that the comparables used by Farris were located near interchanges, small in size and in developed areas, we cannot say from the record as abstracted that appellant demonstrated that Farris had no fair and reasonable basis for his value. As pointed out in Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S.W.2d 201 (1966), where the testimony shows only a weak or questionable basis for the opinion of the expert, the issue becomes one of credibility for the fact finder rather than a question of law for the court. Thus, the mere showing that an expert witness uses an eight and a fourteen acre tract as a comparable tract for appraising *592 three parcels of property comprising 58.39 acres does not as a matter of law show that the witness has no fair or reasonable basis for his opinion.
POINT V. James Larrison, an expert witness for the landowner, testified that estimated just compensation for the three tracts involved in the taking would total $640,950. On cross-examination he testified that he considered the Plough sale, the Mack Truck five acre sale, the Winrock sale north of Protho Interchange and the Southwestern Bell sale just north of the Winrock sale. He also considered two sales in the Little Rock Port development, i. e., Reynolds Metal consisting of 17.62 acres and the 7¼ acre Hershey sale. Larrison admitted that the demand for industrial sites between the period of 1973 to January, 1978, was stagnant all over Arkansas.
Following Larrison's testimony, appellant moved to strike his before value testimony and, consequently, his figure of just compensation on the grounds that "he has given no fair and reasonable basis for his value testimony." Appellant now contends that the sales used by Larrison were not comparable and that there was no competent testimony as to the value of the property condemned as industrial property.
We have searched appellant's abstract of Larrison's testimony and failed to find any statement by Larrison that he relied upon the enumerated sales as being comparable. So far as the abstract shows Larrison only considered the enumerated sales in arriving at his estimated just compensation. As pointed out in Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S.W.2d 436 (1963), the admissibility of the opinion of a real estate expert is not conditioned upon his stating facts upon which the opinion is based. Furthermore, once an expert has given his opinion, the burden shifts to the condemnor to demonstrate that the expert had no basis for his opinion. Consequently, we cannot say that the trial court erred in refusing to strike Larrison's testimony.
Larrison's statement that the demand in Arkansas for industrial sites was stagnant for five years prior to the taking, while detracting from the present value of the land for industrial sites, cannot be taken as a matter of law to mean that no land in Arkansas had a value for use as an industrial site.
POINT VI. In view of the action of the trial court in striking that portion of witness Byron Morse's testimony with reference to the use of federal funds in the building of a highway interchange, we do not rule upon this contention as it is not apt to arise upon a new trial.
POINT VIII. Appellant's proffered Exhibit # 11 is an aerial photograph made on the date that the eminent domain action was filed. Since the witness admitted that it was not a photograph of the lands taken by the appellant, we cannot say that the trial court abused its discretion in refusing to admit the photograph.
Reversed and remanded.
FOGLEMAN, J., dissents in part.
FOGLEMAN, Justice, dissenting in part.
I agree that the judgment must be reversed because of the exclusion of the testimony of Allen Home. I cannot agree, however, with the court's holding as to the testimony of Wesley Adams.
The trial of any lawsuit should be a search for truth, not a "cat and mouse" game. This should especially be true in an eminent domain suit. It is a procedure for seeking a truth based on an idealistic concept, that of "just compensation" for "private property taken, appropriated or damaged for public use." Art. 2, § 22, Constitution of Arkansas. The application of this concept in a realistic way is essential to a government which puts more emphasis on the rights of the individual and on the concept of private property than on sovereign rights. Under the Constitution of Arkansas, great emphasis is put upon the rights of the individual by Art. 2. Specifically, in the context of this case, § 22 of that article expresses the philosophy of this state in seeking to balance the inequality *593 inherent in a contest between the might of the sovereign and the relative impotence of its subject. Before the "State's ancient right of eminent domain" is "conceded" by Sec. 23, this document pronounces in Sec. 22 that "[t]he right of private property is before and higher than any constitutional sanction." That section goes further than most American constitutions in that it requires just compensation for damaging private property, as well as for its taking. The fundamental basis of the American system is the accentuation of the rights of the citizen-subject, accompanied by limitations on sovereign power.
In this case, the ultimate power of the sovereign is pitted against the private citizen-subject, who bears the burden of proving by a preponderance of the evidence the amount of "just compensation" due him for his property taken by the sovereign. The combatants in this contest are not equal. The Arkansas State Highway Commission is the state in these proceedings. Once we did not think so, especially where the power of eminent domain was exercised. Campbell v. Arkansas State Highway Com'n., 183 Ark. 780, 38 S.W.2d 753. But later, the state's sovereign immunity was extended to this commission. Arkansas State Highway Com'n. v. Dodge, 190 Ark. 131, 77 S.W.2d 981. All the might of the sovereign became fully vested by Arkansas State Highway Com'n. v. Nelson Bros., 191 Ark. 629, 87 S.W.2d 394, and has remained so continuously. It was extended to eminent domain actions by Arkansas State Highway Com'n., v. Kincannon, 193 Ark. 450, 100 S.W.2d 969. The continuous emphasis placed upon the posture of the commission is illustrated in the following unbroken line of cases, some of which admittedly produced extremely harsh results by leaving the property owner to the grace of the sovereign, i. e., by "filing an administrative claim for such relief as the State may see fit to provide." See Bryant v. Arkansas State Highway Com'n., 233 Ark. 41, 342 S.W.2d 415 and the following cases: Arkansas State Highway Com'n. v. Partain, 193 Ark. 803, 103 S.W.2d 53; Federal Land Bank of St. Louis v. State Highway Com'n., 194 Ark. 616, 108 S.W.2d 1077; Arkansas State Highway Com'n. v. Bush, 195 Ark. 920, 114 S.W.2d 1061; Arkansas State Highway Com'n. v. Palmer, 222 Ark. 603, 261 S.W.2d 772; Arkansas State Highway Com'n. v. McNeil, 222 Ark. 643, 262 S.W.2d 129; Roesler v. Denton, 239 Ark. 462, 390 S.W.2d 98; Arkansas State Highway Com'n. v. Lasley, 239 Ark. 538, 390 S.W.2d 443; Arkansas State Highway Com'n. v. Cunningham, 239 Ark. 890, 395 S.W.2d 13; Arkansas State Highway Com'n. v. Flake, 254 Ark. 624, 495 S.W.2d 855; Arkansas State Highway Com'n. v. Rice, 259 Ark. 190, 532 S.W.2d 727; TriB Advertising, Inc. v. Arkansas State Highway Com'n., 260 Ark. 227, 539 S.W.2d 430. Casting aside "due process" and "equal protection" arguments that might be advanced [1] against barring inverse condemnation where the taker (or "damager") is the Arkansas Highway Commission, via the dilution of Art. 2, § 22 by making Art. 5, § 20 superior, the appellant in this case is the complete sovereign in its field. That sovereignty has been more firmly established since, in the wisdom of the people of Arkansas, the ultimate sovereign (see Art. 2, § 1, Constitution of Arkansas), Amendment 42 was adopted.
Thus, when the property was taken, the appellee bore the burden of showing, to the satisfaction of a jury, by a preponderance of the evidence, the amount by which it would be justly compensated. A preponderance of the evidence is another concept that is more susceptible to perception than definition. We spoke of it in Titan Oil & Gas Co. v. Shipley, 257 Ark. 278, 517 S.W.2d 210. There we said:
The weight to be given evidence depends upon its effect in inducing belief. Romines v. Brumfield, 199 Ark. 1066, 136 S.W.2d 1023. Where evidence is in conflict, that which preponderates is the evidence entitled to greater weight in respect to credibility. Missouri Pacific *594 Railroad Co. v. Hancock, 195 Ark. 414, 113 S.W.2d 489. There is a preponderance of the evidence only when there is a preponderance of all reasonable inferences that might be drawn to prove the principal facts sought to be established, sufficient to outweigh all other contrary inferences. Smith v. Magnet Cove Barium Corp., [212 Ark. 491, 206 S.W.2d 442].
In Smith v. Magnet Cove Barium Corp., supra, we had more to say on the concept. Omitting that portion of the language upon which we relied in Titan, we said:
* * * The term does not mean preponderance in amount, but implies an overbalancing in weight. United States v. Mancini, D.C.Pa., 29 F.Supp. 44-45. * *
The words "weight", "credibility", "overbalancing", "degree", "force", "tipping of the scales", and others of similar connotation, have been used by opinion writers so long that one would suppose their inclusion in "preponderance of the evidence" gives to the term a fixed, inflexible meaning, applicable alike to all cases where the rule invokes the use. Much must be left to the Judge who considers the evidence. Nature of the testimony, demeanor of the witness if the hearing is oral, opportunity for acquiring the information it is sought to impart, interest in the subject matter or in the parties to be affected, bias based upon political, secular, or novel social beliefs, regard for accepted conventions in dealing with conduct and behavior, environment, a capacity to understand, fidelity to the oath that has been taken,these and other considerations are, or may be, components of that general result called "preponderance". The number of witnesses is not controlling, and may even be unimportant. It is possible for cumulus error to overshadow intrinsic truth, and the statement of a single witness may be entitled to more consideration than assertions of a dozen whose source of knowledge or capacity for appraising values impairs the probative force of testimony. [Emphasis mine.]
In arriving at the truth as to just compensation, there are rules of evidence to be followed. The most recent ones are the Uniform Rules of Evidence, set out in Ark. Stat.Ann. § 28-1001 (Repl.1976). They are to be construed to secure fairness in administration and promotion of growth and development in the law of evidence, to the end that truth may be ascertained and proceedings justly determined. Rule 102. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 401. The evidence in this ease falls into the category of expert opinion testimony, which is admissible when specialized knowledge will assist the trier of fact to understand the evidence or determine a fact issue. In such a case, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify by stating his opinion. Rule 702.
Wesley Adams fell into this category. What is important, however, is the weight to be given his testimony. Appellee should have been permitted to show every factor which might persuade the jury to give his testimony more weight than it gave that of other witnesses. The only prejudice to the sovereign in this case was that there were compelling reasons for giving his testimony more weight than might have been given testimony of those who had been employed by appellee for the express purpose of giving an opinion or by others employed by the sovereign, whose opinions found greater favor in its sight.
The question as to the showing that Adams was employed to make an appraisal for the Arkansas State Highway Commission must be examined in the interest of fairness, and in light of emphasis on the rights of the subject and the preservation of the right of private property.
I suggest that it is very important that Adams was caused to make his appraisal and express his opinion as to just compensation at a very critical stage of the proceeding. It was at the time the sovereign was *595 to decide the amount of money it would deposit in the registry of the court to assure the private property owner that it would receive just compensation, in order that the sovereign might take possession of the property before a jury decided the amount which constituted just compensation.
Appellant must have thought that Adams' testimony would be given considerable weight. During discovery procedures, it successfully avoided disclosing the fact that Adams had made an appraisal for it until it was compelled to do so by the trial court. When Wesley Adams was called as a witness by appellee, appellant objected that his appraisal was privileged (but it was not). Appellant seems to have abandoned that objection. It further made the objection that use of his testimony should be prohibited on the ground that Adams had a contractual relationship with the Arkansas State Highway Department.
It was important for the jury to know the purpose for which Adams made his appraisal. It was also important for the jury to know that this expert had not been employed by anyone who had any interest in the lands taken. Appellant says that it should not be put in the position of having to explain why it did not choose to use Mr. Adams as one of its expert witnesses. Why not? It says in its brief that the reason was that he considered, as a basis for his opinion, the transaction between Harris Cattle Company and First Pyramid Life Insurance Company, the details of which we hold to be admissible evidence on retrial. Appellant is still going to have to explain why this transaction does not afford a basis for an opinion as to the land value, even if Adams does not testify. Other witnesses used by appellant also used this transaction as a basis. Furthermore, appellant informs us that Adams' appraisal, and all other appraisals, are reviewed by a reviewing appraiser, who may reject an appraisal based upon a factual consideration he considers inaccurate. If the reviewing appraiser is competent to perform his job, why can't he show the inadequacies of the appraisal that caused it to be rejected? What is there about the fact that Adams submitted an appraisal that was rejected by the party who employed him that would arouse passion in the breast of a juror or embed prejudice in his mind? Prejudice cannot be inferred from the fact that the jury verdict was for the exact compensation that was just, in the opinion of Adams. It simply indicates that the jury found that his testimony carried the greatest weight. 11t was also important for the jury to know that Adams was under contract with appellant to make appraisals when he testified.
I would suggest that the majority has a new definition for "reconsidered." The rule stated in Phillips was to "be reconsidered." In today's opinion the majority says that the questions posed by appellant were "virtually answered" in Arkansas State Highway Com'n. v. Witkowski, 257 Ark. 659, 519 S.W.2d 743. The two terms are certainly not synonymous. Furthermore, a different question was posed in Witkowski, i. e., whether a party to an eminent domain action could present evidence to a jury that the adverse party had used appraisers that were not called to testify. In this case, the appraiser in question was called to testify. I am unable to see how Witkowski answered the question.
I am convinced that the eases cited by the majority in support of its position are not sound. One of them does not seem to me to support that position at all. That case is State Highway Com'n. v. Texaco, Inc., 502 S.W.2d 284 (Mo., 1973). In that case, the landowner moved to strike the testimony of three expert valuation witnesses on the ground that the state withheld an appraisal by a fourth such expert, more favorable to the landowner than the other three. The landowner sought to equate this action with that of the state in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), where evidence favorable to the defendant was withheld by the state. Naturally the court held Brady inapplicable. Furthermore, there the landowner knew the value put on his land by this expert.
I am willing to join with the court in holding Adams' testimony admissible when *596 called by appellee. In that respect, I am persuaded by cases cited by appellee such as State v. Steinkraus, 76 N.M. 617, 417 P.2d 431 (1966); Town of Thomaston v. Ives, 156 Conn. 166, 239 A.2d 515 (1968), and cases cited in those opinions. But I also agree with the holding in City of Baltimore v. Zell, 279 Md. 23, 367 A.2d 14, that the matter of admitting the fact that the appraiser had been employed by the condemning authority is a matter lying in the sound judicial discretion of the trial court. The Maryland court said:
* * * We also have no disagreement with the general principle that a party ordinarily may not sustain the credibility of his own witness absent an attack upon credibility by the other side. * * * Nevertheless, we believe that the opinions in the above-cited cases, and the City's position in the instant case, represent too rigid an application of the general principle.
The rule that one cannot cannot bolster the credibility of his own witness, absent an attack upon credibility by the other side, is not without exceptions. * * * Moreover, the rule is usually applied in completely different circumstances than presented in the instant case, such as an attempt to call an additional witness to testify concerning the good character for veracity of the witness or an attempt to offer a prior consistent statement of the witness solely for the purpose of supporting his veracity. * * * In those circumstances, as Wigmore points out, valuable trial time is taken up by the introduction of unnecessary and often cumbersome evidence, as an unimpeached "witness may be assumed to be of normal moral character for veracity . . ." * * * However, merely asking a witness a brief preliminary question concerning his employment in connection with the case is not subject to this same objection.
It is a routine practice in trials for an attorney to ask his witness certain preliminary questions which may not be relevant to the issues being litigated, which may go beyond mere identification and which are designed to show that the witness will be somewhat credible or not biased in favor of the side calling him. For example, the educational background or professional status or employment position of a non-expert witness may be asked, or the witness's lack of prior contact with the side who has called him may be brought out. These questions give the jury some knowledge of the individual and a more complete perspective in considering his testimony. * * * [Citations omitted.]
I believe that the majority has gone too far in indicating that Adams' testimony was not properly admitted in rebuttal, and in attempting to control the trial court's discretion in that respect on retrial. It did tend to rebut testimony by the two expert witnesses presented by the state. One of them had been employed the week before the trial, and his identity first disclosed to appellee virtually on the eve of trial.
In all other respects, I agree with the majority opinion.
NOTES
[1] It appears that we have been faced with such an argument only once. We somewhat summarily rejected it in Arkansas State Highway Com'n. v. Flake, 254 Ark. 624, 495 S.W.2d 855. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2403372/ | 330 Pa. Super. 284 (1984)
479 A.2d 553
Joanne C. MAPP, Administratrix of the Estate of Naomi Mapp and Deborah Mapp
v.
Hal DUBE and Kitty Dube, his wife, Appellants.
Supreme Court of Pennsylvania.
Argued March 28, 1984.
Filed June 22, 1984.
Reargument Denied August 16, 1984.
*287 Paul A. Barrett, Scranton, for appellants.
Martin J. Meyer, Kingston, for appellee.
Before BROSKY, WIEAND and McEWEN, JJ.
McEWEN, Judge:
This case arose after an apartment building owned by the appellants was destroyed by fire resulting in the death of two women who were tenants in the building. Appellee instituted this action on behalf of the estates of the dead women and alleged that appellants were negligent in their failure to provide adequate means of escape from the building. After the jury returned a verdict in favor of both estates and the trial judge denied the appellants' Motions for a New Trial and for Judgment N.O.V., this appeal was commenced. Appellants present the following issues for our review:
(1) whether the trial court erred when it precluded appellants' expert witness from testifying as to the utility of *288 additional means of emergency egress from the apartment building owned by appellants.
(2) whether the trial court erred when it precluded appellant from cross-examining appellee's expert witness concerning the institution where one of the decedents obtained her Graduate Equivalency Diploma.
(3) whether the trial court was in error when it precluded evidence concerning the incendiary nature of the instant fire.
(4) whether the trial court erred when it permitted appellee's expert to testify as to employment opportunities for switchboard operators in northeastern Pennsylvania.
(5) whether the trial court erred when it permitted a tenant of the destroyed building to testify that he heard women screaming inside the burning building.
(6) whether the trial court erred when it excluded from evidence a letter from a building inspector concerning the premises here in question.
(7) whether the trial court was in error when it commented to the jury regarding the prejudicial nature of certain photographs.
The record demonstrates the painstaking effort of the distinguished President Judge Edwin M. Kosik to weigh carefully the difficult issues presented so as to insure a fair trial of this serious and complex case. While we reject as meritless, with but one exception, the assertions of appellant upon each of these issues, we are constrained to order a new trial by reason of our holding upon that one issue.
Appellants first contend that the trial court erred prejudicially when it prevented their expert witness from testifying as to whether any further means of emergency egress would have aided the decedents under the circumstances. We note initially:
Unless there is a substantial reason therefor, a new trial should not be granted in a negligence case. . . In an appeal from a jury trial, where the moving party alleges reversible error he must show not only the existence of the error, but also that the jury was misled by this error *289 to his detriment. . . It is only when improperly admitted evidence may have affected a verdict that a new trial will be the correct remedy. (citations omitted).
Warren v. Mosites Construction Co., 253 Pa.Super. 395, 403, 385 A.2d 397, 401 (1978). See also Anderson v. Hughes, 417 Pa. 87, 208 A.2d 789 (1965); Furey v. Thomas Jefferson University Hospital, 325 Pa.Super. 212, 219-220, 472 A.2d 1083, 1087 (1984). The focus of our inquiry is, of course, the existence of prejudicial error, namely, error that may have affected the verdict of the jury and, therefore, whether the evidentiary error is one of admission or, as here, one of omission, is of no consequence.
The record reveals the following trial dialogue between counsel for appellee and a fire safety expert presented by appellee:
Q. Mr. Dove, the fact that there was, in your opinion, no approved means of egress from the front third floor apartment other than the staircase, is that correct?
A. That's correct.
Q. Can you whether or not that circumstance in and of itself created a situation that exposed the occupants of the third floor front apartment to an unreasonable risk of harm or hazard in the event of a fire?
* * * * * *
THE WITNESS: I have an opinion.
* * * * * *
Q. Would you state it, please.
A. That it created a hazard to the occupants of the third floor front apartment.
Q. And would you explain why.
* * * * * *
A. In a multiple occupancy dwelling, in any dwelling, but particularly a multiple occupancy dwelling, one must anticipate and that's the purpose of preventive measures, particularly fire preventive measures that a fire may occur. And should that fire occur particularly in the stairwell or common hallways of a multiple *290 occupancy dwelling, that a second independent safe means of egress must be provided so that those people living in that building can find refuge by way of that second means of egress. With the only means of egress for the third floor front being the open stairwell, in my opinion, created a hazard.
Q. What, if anything, sir, could the owner of this building have done, or what devices, in your opinion could have been provided to the occupants of that particular apartment that would have alleviated the problem that you described?
* * * * * *
A. There are a number of apparatus that could and should be used and are used in multiple occupancy dwellings. They would be smoke detectors, fire alarm systems, independent emergency lighting, metal or masonry or wood, as far as that is concerned, fire escapes affixed to the exterior of the building so that someone could get out of their window or out of their apartment and onto that ladder and make their way to safety. There are also apparatus which are recommended and are used extensively and they are known as collapsible ladders, generally of metal construction. They are affixed to the underside of a window in a specific apartment. In the event of an emergency, the occupant merely has to raise the window, drop the ladder out the window. It unfolds and they can then make their way to safety. They would not be subjected to making their way into a hallway where they may be trapped by the heat and fire. (emphasis added).
Thus did appellee's expert opine that the probability of survival of the decedents would have been considerably enhanced had appellants provided alternate methods of egress for the decedents. The court did not, however, permit appellants to rebut this testimony since the trial judge refused to allow an expert witness of appellants, John Connell, to testify that such equipment would not have availed the decedents under the circumstances of the instant *291 fire. Appellants, therefore, were unable to refute highly damaging testimony upon the crucial issue of the trial, namely, the causation element of negligence. We believe that this ruling composes reversible error since it was to the detriment of appellants and, as well, may have affected the verdict.
Nor are we persuaded to the contrary by the contention of appellee that this testimony was correctly excluded since it did not fall within the fair scope of the pretrial summary of appellants' expert testimony provided by appellee during discovery. Pennsylvania Rule of Civil Procedure 4003.5(c) states:
Rule 4003.5. Discovery of Expert Testimony. Trial Preparation Material
* * * * * *
(c) To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, his direct testimony at the trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto. However, he shall not be prevented from testifying as to facts or opinions on matters on which he has not been interrogated in the discovery proceedings.
The answer of appellants to the pertinent interrogatory propounded by appellee described the anticipated testimony of their expert:
John Connell will testify concerning the effect of the incendiary arson fire, the force of the fire, its effect on oxygen and surroundings and the hazards resulting from it including the difficulty in preventing injuries and death to the plaintiff herein by use of alarms, etc. (emphasis supplied).
We believe that the offered testimony of appellants' expert regarding the utility of additional means of emergency egress from the premises would not have been inconsistent *292 with nor beyond the fair scope of the foregoing answer to appellee's interrogatory. We are, therefore, constrained to order a new trial.
While our holding that a new trial is required effectively resolves this appeal, we, nonetheless, proceed to an expression of view upon the other issues raised by appellants so as to serve the court and counsel in the likely event that these questions again become issues in the retrial.
Appellants also argue that the trial court erred when it precluded cross-examination by appellant of appellee's expert vocational consultant, as to the institution where one of the decedents, Naomi Mapp, obtained her Graduate Equivalency Diploma. A trial court, however, may "properly exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury." Daset Mining Corporation v. Industrial Fuels Corporation, 326 Pa.Super. 14, 22, 473 A.2d 584, 588 (1984). The Graduate Equivalency Diploma in question was awarded to one of the decedents during her incarceration at a state correctional institute. The trial judge, therefore, was required to balance the probative value of this evidence as it related to the future value of the degree with the unfair prejudice which would have resulted had the jury learned of this decedent's prior criminal activity. We cannot fault the conclusion of the court that the prejudicial effect of such evidence far exceeded any probative value.
Another error asserted is the purported exclusion of evidence concerning the undisputed incendiary nature of the fire. The record discloses, however, that the origin of the fire was made clear to the jury by the trial judge at the very outset of the trial:
THE COURT: [to the jury] We might save a little time because in this side bar conference, it was determined that both counsel will agree that the fire in this case was of an incendiary nature and that the accelerant or the *293 cause of the fire was gasoline, and it will eliminate the necessity of procuring any opinion from this witness.[1]
The learned trial judge did not err when he excluded additional evidence of this undisputed fact.[2]
We next consider the contention that the trial court was in error when it permitted appellee's vocational expert to testify as to employment opportunities for switchboard operators in northeastern Pennsylvania. We note, however, that the trial judge has broad discretion with regard to the admission of expert testimony. Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 433 A.2d 40 (1981). Appellees' expert testified that, based on his personal knowledge, opportunities for employment as a switchboard operator "commonly" occurred in northeastern Pennsylvania between 1976 and the time of trial. Although such testimony may not be admitted into evidence if based upon conjecture, Hussey v. May Department Stores, Inc., 238 Pa.Super. 431, 357 A.2d 635 (1976), here, the witness, a "vocational consultant", specifically stated that his testimony was based upon his own personal knowledge. We, therefore, find no abuse of discretion on the part of the trial court in ruling such testimony admissible.
*294 Appellant also asserts that the trial court was in error when it permitted a tenant of the destroyed building to testify as a rebuttal witness that he heard women screaming from inside the burning building. The admission or rejection of rebuttal evidence is within the sound discretion of the trial judge. Flowers v. Green, 420 Pa. 481, 218 A.2d 219 (1966); McNair v. Weikers, 300 Pa.Super. 379, 446 A.2d 905 (1982); Pittsburgh-Des Moines Steel Co. v. McLaughlin, 77 Pa.Cmwlth. 565, 466 A.2d 1092 (1983). The record reveals the testimony of appellants' fire expert that, in all probability, the conditions inside the building at the time of the fire resulted in the instantaneous deaths of the women. Rebuttal testimony as to the possibility that the women might not have died immediately and, indeed, might have suffered prior to their demise, was certainly relevant to the issue of damages. We, therefore, can discern no abuse of discretion on the part of the trial court.
Appellant further argues that the trial court was in error when it excluded from evidence a letter written by a building inspector concerning the building wherein the decedents perished. The Uniform Business Records as Evidence Act, 42 Pa.C.S. § 6108, states:
§ 6108. Business records
* * * * * *
(b) General Rule. A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.
* * * * * *
42 Pa.C.S. § 6108(b). The proposed letter did not, however, achieve the status of competent evidence since appellant did not comply with the conditions precedent that testimony be presented as to (1) the mode of preparation of the letter and *295 (2) the writer's sources of information.[3] Therefore, the ruling of the trial judge was proper.
The final assertion of appellant arises from the effort of appellee to have certain photographs of the charred bodies admitted into evidence. While the court sustained the timely objection of counsel for appellant that the photographs were inflammatory, appellant urges that the extended explanation of the ruling delivered to the jury by the court was in itself prejudicial. We need not discuss, however, whether the ruling might have been better expressed in general, terse fashion, nor address the question of whether the explanation effected such prejudice as to compose reversible error. Rather, since the record does not reflect any expression of objection at the time the explanation was offered by the court, the issue must be considered waived. Whistler Sportswear, Inc., supra.
Judgment vacated. Case remanded for a new trial. Jurisdiction relinquished.
NOTES
[1] We note that, in addition to the announcement of this stipulation by the court, evidence concerning the incendiary nature of the fire was presented twice during the trial including this testimony by appellants' fire expert:
A. Well, during the course of going through the fire building and the debris, we uncovered a one-gallon plastic Texaco container that had at one time apparently contained antifreeze. The point at which this container was found was just inside the main entrance door at the foot of a flight of stairs which led up to the second floor. The debris in that area, down at the floor level, with the assistance of the Fire Department we were able to dig down to what had been the floor. We detected relatively strong odor of gasoline as well as having found the Texaco container and concluded that this fire was of incendiary origin and that it had been accelerated by the use of a flammable liquid, notably gasoline.
[2] Appellant also contends that he was prevented by the trial judge from arguing that the deaths were caused by the unforeseeable and superseding act of arson. We can find, however, no evidence in the record to support this claim.
[3] Nor did the letter indicate to whom the letter was sent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562600/ | 960 A.2d 687 (2008)
The STATE of New Hampshire
v.
Robert THERIAULT.
No. 2007-601.
Supreme Court of New Hampshire.
Argued: October 8, 2008.
Opinion Issued: December 4, 2008.
*688 Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, on the brief and orally), for the State.
David M. Rothstein, deputy chief appellate defender, of Concord, on the brief, and Paul Borchardt, assistant appellate defender, orally, for the defendant.
DUGGAN, J.
The defendant, Robert Theriault, was found guilty of prostitution, see RSA 645:2, I(f) (2007), following a bench trial in the Superior Court (Conboy, J.). The defendant appeals the trial court's denial of his motion to dismiss, alleging the prostitution statute is constitutionally overbroad as applied to him. We reverse.
The record reveals the following. The defendant was employed as a court security officer in Franklin District Court. On December 5, 2005, he asked a young woman, C.H., and her boyfriend, J.S., who were at the court paying fines, if they needed employment. After informing them that he could not discuss the job at the courthouse, he met them in a parking lot behind a bank. The defendant asked the couple if they wanted to make "f____ flicks." The defendant specified the details: he would pay them fifty dollars per hour, he would rent a hotel room, and they would use temperature blankets and different condoms while the defendant videotaped them having intercourse.
C.H. and J.S. reported the incident to J.S.' mother, who in turn reported it to a court official. The defendant was charged with multiple counts of prostitution arising out of these allegations as well as another incident involving a different couple, but which did not involve a request to videotape them.
Prior to trial, the defendant moved to dismiss both the charges in this case and those arising from the other incident, claiming that the prostitution statute is constitutionally overbroad. He argued that "RSA 645:2, I(f) is written broadly, and could literally be applied to sexual contact of a nature that theatres/movies are constitutionally entitled to present." The trial court denied the motion, relying upon the definition of "sexual contact," see RSA 632-A:1, IV (2007) (including only conduct that is "for the purpose of sexual arousal or gratification"), to conclude that RSA 645:2, I(f) is not substantially overbroad. The trial court, however, further observed that "sexual contact for a purpose other than sexual gratification, like producing a movie or a theatrical production, would not be subject to sanction under the statute."
The defendant was convicted, in two separate trials, of the charges arising out of the facts currently before us as well as the other charges. As to the other charges, which did not involve videotaping, the defendant appealed, arguing the statute is facially unconstitutional. We affirmed the trial court's decision. State v. Theriault, 157 N.H. 215, 949 A.2d 678 (2008). In this appeal, the defendant argues that the statute is unconstitutional as applied to the facts of this case.
The defendant argues the prostitution statute is overbroad as applied to the constitutionally protected activity of making a sexually explicit videotape. He raises his argument under the free speech protections of both the New Hampshire and Federal Constitutions. See N.H. *689 CONST. pt. I, art. 22; U.S. CONST. amends. I, XIV. Because the issue before us is one of constitutional law, we review it de novo. Theriault, 157 N.H. at 217, 949 A.2d 678. The party challenging a statute's constitutionality bears the burden of proof. State v. Pierce, 152 N.H. 790, 791, 887 A.2d 132 (2005). We first address the defendant's argument under the State Constitution, citing federal opinions for guidance only. See State v. Ball, 124 N.H. 226, 231, 471 A.2d 347 (1983).
Our overbreadth law is well-settled: "The purpose of the overbreadth doctrine is to protect those persons who, although their speech or conduct is constitutionally protected, `may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression.'" State v. Brobst, 151 N.H. 420, 422, 857 A.2d 1253 (2004) (quoting New York v. Ferber, 458 U.S. 747, 768, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982)). "While the Constitution `gives significant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere,' the application of the overbreadth doctrine is `strong medicine' to be employed `only as a last resort.'" Id. (quoting Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002); Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973)).
As we reiterated in Theriault:
The substantial overbreadth doctrine applies to constitutional challenges of statutes that prohibit conduct, as well as challenges to those statutes prohibiting pure speech and conduct plus speech.
If a statute is found to be substantially overbroad, the statute must be invalidated unless the court can supply a limiting construction or partial invalidation that narrows the scope of the statute to constitutionally acceptable applications. If, on the other hand, a statute is not substantially overbroad, then whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.
Theriault, 157 N.H. at 217-18, 949 A.2d 678 (quotations omitted).
Here we must decide whether RSA 645:2, I(f) is unconstitutional as applied to the particular facts of this case. RSA 645:2, I, provides: "A person is guilty of a misdemeanor if the person: ... (f) Pays, agrees to pay, or offers to pay another person to engage in sexual contact as defined in RSA 632-A:1, IV or sexual penetration as defined in RSA 632-A:1, V, with the payor or with another person." RSA 632-A:1, IV defines "sexual contact" as "the intentional touching whether directly, through clothing, or otherwise, of the victim's or actor's sexual or intimate parts, including breasts and buttocks. Sexual contact includes only that aforementioned conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification." RSA 632-A:1, V includes a list of sexual acts that constitute sexual penetration but does not include the provision "for the purpose of sexual arousal or gratification."
In Theriault, the defendant argued "that RSA 645:2, I(f) is substantially overbroad because it could be applied to criminalize constitutionally permissible activities such as the production of a non-obscene but sexually explicit movie." Theriault, 157 N.H. at 218, 949 A.2d 678. We disagreed that the statute was facially overbroad and held that "any applications of the statute that infringe upon protected conduct, to the extent that such applications exist, may be remedied on a case-by-case basis." Id. at 219, 949 A.2d 678. In doing so, we emphasized that the definition of "sexual *690 contact" includes "for the purpose of sexual arousal or gratification." Id. at 218, 949 A.2d 678.
In this case, however, the State did not charge the defendant with offering to pay another to engage in "sexual contact," and there was no evidence or allegation that the defendant acted with "the purpose of sexual arousal or gratification." In fact, at trial, the only witness was C.H. She testified that the defendant asked her and her boyfriend if they needed employment, and if they wanted to make videos. She testified that "[h]e said that he would rent a hotel room and he would be the only one recording, so we didn't feel uncomfortable." C.H. said that the defendant offered to pay them fifty dollars per hour, and she specified: "He's just going to pay us to make the video." The trial court found that the State "proved beyond a reasonable doubt, that [the defendant] offered to pay [the couple] money, that is $50 an hour, to engage in sexual penetration. That is, [J.S.] would sexually penetrate [C.H.] while [the defendant] videotaped them."
The facts boil down to the defendant offering to remunerate the couple to have sexual intercourse while being videotaped. There was no evidence or allegation that the defendant solicited this activity for the purpose of sexual arousal or gratification as opposed to making a video. The State did not charge the defendant under the "sexual contact" portion of the statute and therefore there was no finding by the trial court that the defendant acted for the purpose of sexual arousal or gratification. Thus, if the statute constitutionally prohibits the defendant's conduct, a request to pay two individuals to make a sexually explicit video would be unprotected under the free speech guarantees of the State Constitution.
"[E]xpression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments." Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S. Ct. 777, 96 L. Ed. 1098 (1952). "It cannot be doubted that motion pictures are a significant medium for the communication of ideas." Id. at 501, 72 S. Ct. 777. "The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform." Id. There is, however, a "legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles." Miller v. California, 413 U.S. 15, 18-19, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973) (establishing obscenity standard). "As a general rule, pornography can be banned only if obscene," Ashcroft, 535 U.S. at 240, 122 S. Ct. 1389, and thus some pornography is protected speech.
We must decide to what extent the production of sexually explicit but non-obscene videos is constitutionally protected. Although this issue has not been widely decided in other jurisdictions, those that have addressed it are divided. See People v. Freeman, 46 Cal. 3d 419, 250 Cal. Rptr. 598, 758 P.2d 1128 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1133, 103 L. Ed. 2d 194 (1989); People v. Kovner, 96 Misc. 2d 414, 409 N.Y.S.2d 349 (Sup.Ct.1978). The United States Supreme Court has not addressed this issue. See California v. Freeman, 488 U.S. 1311, 1314-15, 109 S. Ct. 854, 102 L. Ed. 2d 957 (1989) (denying application for stay because California Supreme Court decision in Freeman supported by adequate and independent state grounds).
In Kovner, the defendant was charged with promoting prostitution arising out of *691 the production of films that depicted explicit sexual conduct. Kovner, 409 N.Y.S.2d at 350. The defendant maintained a studio for the purpose of making films, paid actors and actresses to engage in sexual intercourse and recorded the activity on films he later sold. Id. The defendant moved to dismiss the charges. Id. Kovner stated: "This court is not unmindful of the fact that a literal interpretation of the prostitution laws, and their vigorous enforcement may create potentially a chilling effect on the exercise of First Amendment freedoms." Id. at 352. "However, when a state undertakes to regulate a social evil such as prostitution or pornography, it has a greater power to regulate the non-verbal physical conduct which may occur than to suppress depictions or descriptions of the same." Id. (citing United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968)). Kovner concluded: "While First Amendment considerations may protect the dissemination of printed or photographic material regardless of the manner in which it was obtained, this protection will not shield one against a prosecution for a crime committed during the origination of the act." Id.
The reasoning in Kovner is based upon a distinction that has never been adopted by the United States Supreme Court. The Court has never held that for First Amendment purposes, there is a distinction between production and dissemination in regulating pornography. Moreover, this distinction is illogical. It would mean that sale, distribution and viewing of a non-obscene movie is constitutionally protected while production of the same movie is not. Instead, to regulate the production and dissemination of sexually explicit films, the Court has established certain categories that are simply outside First Amendment protection. See Ferber, 458 U.S. 747, 102 S. Ct. 3348 (child pornography); Miller, 413 U.S. 15, 93 S. Ct. 2607 (obscene material).
In addition, Kovner relied upon a California case, People v. Fixler, 56 Cal. App. 3d 321, 128 Cal. Rptr. 363 (1976), in support of its holding. In Fixler, the defendants were a photographer and a photo editor for a magazine devoted to the depiction of sexual activity. Fixler, 128 Cal.Rptr. at 364. They were convicted of pandering as a result of lewd photographs taken of a fourteen-year-old girl. Id. at 365. The defendants appealed the decision on First Amendment grounds. Fixler held that, assuming the defendants "intended to use the photographs in a nonobscene publication, the fact remains that in order to obtain these photographs they become, by definition, common panderers and were not immune from prosecution of their crimes." Id. at 366. Fixler stated:
While First Amendment considerations may protect the dissemination of printed or photographic material regardless of the manner in which the material was originally obtained, where a crime is committed in obtaining the material, the protection afforded its dissemination would not be a shield against prosecution for the crime committed in obtaining it.
The fact that a motion picture of an actual murder, rape or robbery in progress may be exhibited as a news film or a full length movie without violating the law does not mean that one could with impunity hire another to commit such a crime simply because the primary motivation was to capture the crime on film.
Id. at 365-66.
This reasoning was abandoned in Freeman. While Freeman distinguished Fixler because the conduct charged in Fixler was not prostitution or the procurement of prostitution, but aiding and abetting unlawful *692 sexual intercourse with a minor, Freeman further explained the logical fallacy of Fixler: "Undeniably, one cannot lawfully hire another to commit murder, rape or robbery for the purpose of photographing the act. Murder, rape and robbery and aiding and abetting intercourse with a minor for that matter, are crimes independent of and totally apart from any payment for the right to photograph the conduct." Freeman, 250 Cal. Rptr. 598, 758 P.2d at 1133-34. Freeman concluded that the defendant's conduct, producing a movie, did not involve an independent crime, such as murder, rape or aiding and abetting intercourse with a minor, but instead was "entirely dependent on the payment for the right to photograph." Id. at 1134.
In Freeman, the defendant was charged with pandering arising out of the hiring of actors to perform sex acts in a film. Id. at 1129. In construing the pandering statute, Freeman looked to the definition of "lewd acts," which requires "touching of the genitals, buttocks, or female breast for the purpose of sexual arousal, gratification, annoyance or offense." Id. at 1130 (quotations, citations and emphasis omitted). Analyzing the facts, Freeman stated that the only payment made was acting fees for the actors' performance in a non-obscene film, and "[t]here [was] no evidence that defendant paid the acting fees for the purpose of sexual arousal or gratification, his own or the actors'." Id. at 1131. Freeman thus held that the defendant "did not engage in either the requisite conduct nor did he have the requisite mens rea or purpose to establish procurement for purposes of prostitution." Id. Freeman qualified its holding by stating that "even if defendant's conduct could somehow be found to come within the definition of `prostitution' literally, the application of the pandering statute to the hiring of actors to perform in the production of a nonobscene motion picture would impinge unconstitutionally upon First Amendment values." Id.
To uphold the conviction in the instant case, where the only facts adduced at trial were that the defendant offered to pay two people to have sexual intercourse while being videotaped, would infringe upon an area of speech protected by the State Constitution. See Ashcroft, 535 U.S. at 240, 122 S. Ct. 1389 (pornography protected where not obscene). We emphasize that our holding is dictated by the specific charges and unique facts of this case. The defendant was charged with offering to pay two individuals to engage in sexual penetration while he videotaped them. We note that the State did not charge the defendant with offering to pay them to engage in sexual contact, which would have required the State to prove that he acted for "the purpose of sexual arousal or gratification" and thus engaged in conduct that was not constitutionally protected. Thus, our holding today will not prevent the State from continuing to prosecute prostitution, even when the acts are videotaped.
Here, C.H. testified that the defendant offered to pay fifty dollars per hour "to make pornography." The only evidence in this record as to the defendant's intent is that he intended to make pornography. Moreover, the trial court found that the State "proved beyond a reasonable doubt, that [the defendant] offered to pay [the couple] money, that is $50 an hour, to engage in sexual penetration. That is [J.S.] would sexually penetrate [C.H.] while he videotaped them." There was, therefore, no finding by the trial court that the defendant's request to make a movie was for an illegitimate purpose. Thus, the defendant has met his burden to prove that RSA 645:2, I(f) is unconstitutionally overbroad as applied to the specific facts of this case.
*693 In light of our ruling under the State Constitution, we need not address the defendant's arguments under the Federal Constitution. See Ball, 124 N.H. at 237, 471 A.2d 347.
Reversed.
BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919759/ | 245 Pa. Super. 164 (1976)
369 A.2d 345
COMMONWEALTH of Pennsylvania, Appellant,
v.
David BELL, Appellee.
Superior Court of Pennsylvania.
Submitted December 16, 1975.
Decided November 22, 1976.
*165 Stephen B. Harris, First Assistant District Attorney, Warrington, for appellant.
Richard S. Wasserbly, Assistant Public Defender, Doylestown, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
PRICE, Judge:
This appeal presents yet another new and very narrow question for decision under Pa.R.Crim.P. 1100. Where the action is instituted against a juvenile by a delinquency petition and subsequently certified to the Criminal Division of a Court of Common Pleas for full criminal trial, when does the allowable period of 180 days under Pa.R.Crim.P. 1100 start for purposes of insuring prompt trial? The lower court answered this question by starting the time on the date of filing the delinquency petition and granted appellee's petition to dismiss and discharged appellee. We reverse.
On February 7, 1975, the delinquency petition was filed in the lower court alleging that appellee was involved in a series of burglaries in Bucks County. Appellee requested that the case be certified to the Criminal Division for adult proceedings. On March 31, 1975, a hearing was held on this petition and appellee's petition was granted. The case was transferred on that date. On May 30, 1975, appellee was indicted. His case was listed for trial on June 16, 1975. Trial, however, was continued because of the lack of available court rooms.
*166 On July 24, 1975, the Commonwealth petitioned for an extension of time pursuant to Pa.R.Crim.P. 1100(c) and a hearing on said petition was scheduled for August 11, 1975. On August 8, 1975, appellee, claiming the 180 day period commenced on February 7, 1975, and hence expired on August 6, 1975, filed a petition to dismiss pursuant to Pa.R.Crim.P. 1100(f). On August 11, 1975, after a hearing on both petitions, the lower court denied the Commonwealth's petition to extend and granted the appellee's petition to dismiss.
We need not decide whether or not the lower court was correct in denying the Commonwealth's petition for extension since we hold that the lower court did err in considering the delinquency petition as the starting point for computation of the 180 day period under Pa.R.Crim. P. 1100. The Supreme Court of Pennsylvania has clearly indicated to the contrary in Pa.R.Crim.P. 1(a) by excluding juvenile proceedings from the ambit of the Pennsylvania Rules of Criminal Procedure. Indeed, a major purpose for the establishment of specialized juvenile proceedings was to protect juveniles from the full thrust of adult criminal justice.
As a basis for its decision, the lower court places great reliance upon Geiger Appeal, 454 Pa. 51, 309 A.2d 559 (1973). We agree that the Geiger decision is important to the resolution of the problem; however, as we interpret Geiger, it in fact supports our decision to reverse.
The Pennsylvania Supreme Court in Geiger, supra at 56, 309 A.2d at 562 quoting Pa.R.Crim.P. 1(a), clearly recognizes that:
"Unless otherwise specifically provided, these rules shall not apply to juvenile or domestic proceedings nor to summary cases in Philadelphia County."
The court continues at page 57, 309 A.2d at page 563:
"We think it clear that the Criminal Rules apply until the point at which the powers of the Juvenile Court come into play under the Juvenile Court Law."
*167 Although the situation presented in this appeal is a matter of first impression in this Commonwealth and is the reverse of the Geiger situation, we believe that the rationale of Geiger supports a holding that the Pennsylvania Rules of Criminal Procedure do not apply until the point at which the powers of the Criminal Court come into play. And, this holding is given added impetus when it is the juvenile that requests the Juvenile Court to certify the action to Criminal Court, as appellee did in the case before us.
It is true that the comment to Pa.R.Crim.P. 1100 states:
"For the purpose of this Rule only, it is intended that `complaint' also includes special documents used in lieu of a complaint to initiate criminal proceedings in extraordinary circumstances."
However, we hold that a delinquency petition and any subsequent juvenile proceeding are not such "extraordinary circumstances" as contemplated by the Supreme Court as to justify the equating of the delinquency petition filed on February 7, 1975, with the filing of the complaint, where, as here, the juvenile proceedings are certified to criminal court for trial.
The 180 day period under Pa.R.Crim.P. 1100 commences at that point when the case comes within the powers of the Criminal Court, and hence within the ambit of the Rules of Criminal Procedure. The Order of Transfer then starts the commencement of the 180 day time period. We recognize that this holding also does not clearly meet the challenge of "a written complaint" as stated in Pa.R.Crim.P. 1100(a). However, it does clearly meet the intent of the Supreme Court in excluding juvenile proceedings from the operation of the Rules of Criminal Proceedings, and on balance insures to defendants the right to a speedy trial.
Since the Order certifying this case was entered on March 31, 1975, the Commonwealth was obligated to *168 commence appellee's trial prior to September 27, 1975, and not August 6, 1975, as concluded by the lower court.
We therefore reverse the order of the lower court and remand the case for trial.
WATKINS, President Judge, concurs in the result.
CERCONE, J., files a dissenting opinion.
CERCONE, Judge, dissenting:
The majority concludes that for the purposes of Rule 1100, the 180-day period starts to run when a case is certified to adult court rather than when a delinquency petition is filed in Juvenile Court. Rule 1100(a)(2) states: "Trial in a court case in which a complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed." To rationalize the majority opinion would require that certification to adult court be equated with the filing of a written complaint. Neither I, nor the majority itself, is willing to admit to such a strained interpretation in order to reach its result. Moreover, such an interpretation would also negate the intent of our Supreme Court as manifested in the following comment to Rule 1100: "For the purpose of this rule only, it is intended that `complaint' also include special documents used in lieu of a complaint to initiate criminal proceedings in extraordinary circumstances." Even if it is conceded that juvenile delinquency petitions are not "special documents used in lieu of a complaint to initiate criminal proceedings in extraordinary circumstances," when read in context with the rule, the comment nevertheless clearly indicates that the word "complaint" was used to designate the point when criminal proceedings are initiated. In the instant case, proceedings were initiated by the filing of the delinquency petition in Juvenile Court, not by the certification of the case to adult court. While I agree with the majority that generally the intent *169 of the Supreme Court was to exclude juvenile proceedings from the operation of the rules of criminal procedure, I cannot agree that such an application under the facts of this case, limiting Rule 1100, insures the accused of his right to a speedy trial. The juvenile exclusion was intended to protect juveniles from the full thrust of adult criminal proceedings, rather than to deny juveniles the benefit of a speedy trial. The request for certification should merely justify an extension of time for the Commonwealth under Rule 1100(c), if needed. Accordingly, in my view, since the Commonwealth did not raise the question of certification in its petition for an extension, the lower court was correct in computing the 180-day period from the date of the filing of delinquency petition and granting appellee's motion to dismiss. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563625/ | 16 So.3d 10 (2009)
Mary Kathleen BOSARGE and Delmas Bosarge, Jr.
v.
LOUISIANA PATIENT'S COMPENSATION FUND.
No. 2008 CA 1923.
Court of Appeal of Louisiana, First Circuit.
May 8, 2009.
Kevin C. Schoenberger, New Orleans, LA, for Plaintiffs-Appellees, Mary Kathleen Bosarge and Delmas Bosarge, Jr.
David A. Woolridge, Jr., Carlton Jones, III, Baton Rouge, LA, for Defendants-First Appellants, The Louisiana Patient's Compensation Fund Oversight Board and the Louisiana Patient's Compensation Fund.
*11 Peter E. Sperling, James P. Waldron, New Orleans, LA, for Defendant-Second Appellant, DePaul/Tulane Behavioral Health Center.
Before PARRO, McCLENDON, and WELCH, JJ.
WELCH, J.
This is an appeal by the Louisiana Patient's Compensation Fund and the Louisiana Patient's Compensation Fund Oversight Board[1] (collectively referred to as "the PCF") and DePaul/Tulane Behavioral Health Center ("DePaul-Tulane") from a judgment in favor of the plaintiffs, Mary Kathleen Bosarge and Delmas Bosarge, Jr., declaring that their medical malpractice complaint against DePaul-Tulane was deemed filed on October 22, 2004. After considering the provisions of La. R.S. 40:1299.47(A)[2] in light of the undisputed evidence in the record, we find that the plaintiffs did not pay the requisite filing fee within the statutory time frame that would allow the complaint to be deemed filed on that date; therefore, we reverse the judgment of the trial court in compliance with Uniform Rules-Courts of Appeal Rule 2-16.1(B).
We borrow from our earlier opinion, Bosarge v. Louisiana Patient's Compensation Fund, XXXX-XXXX, pp. 2-4 (La.App. 1st Cir.5/4/07), 960 So.2d 1063, 1064-1065:
By letter dated October 19, 2004, the plaintiffs sent a complaint to the Division of Administration requesting the formation of a medical review panel to review a claim against DePaul-Tulane for alleged acts of malpractice occurring on October 24, 2003. Enclosed with the letter and complaint was a check in the amount of $100.00, payable to the PCF. This letter was addressed and mailed to the Division of Administration at an incorrect post office box.
On October 22, 2004, the plaintiffs sent the October 19, 2004 letter and complaint by facsimile transmission to the Division of Administration which "stamped and certified" the complaint "received" on that date. A copy of the request was then forwarded to the PCF and received on October 28, 2004. By letter dated November 12, 2004, but not mailed until November 16, 2004, the PCF confirmed receipt of the plaintiffs' request for review and notified the plaintiffs that DePaul-Tulane was a qualified health care provider under the provisions of the MMA. The letter also provided as follows:
In accordance with Act No. 961 of the 2003 Regular Session, which amended LA R.S. 40:1299.47.A.(l)(c), effective August 15, 2003, a filing fee of $100 per qualified defendant is due within 45 days from the date of this notice. Please remit a payment to the [PCF] in the amount of $100.00. This filing fee may only be waived upon receipt of an affidavit from a physician or a district court's forma pauperis ruling as set forth in LA R.S. 40:1299.47A.(l)(d) as amended by Act No. 961. Failure to comply shall render *12 the request invalid and without effect and the request shall not suspend the time within which suit must be instituted.
By letter dated January 27, 2005, the PCF notified the plaintiffs that they had failed to remit the $100 filing fee within the time allowed by law, and "declar[ed]" that the plaintiffs' case against DePaul-Tulane was "no longer considered filed" by its office. Thereafter, the plaintiffs sent a letter dated January 31, 2005, to the PCF disputing its contention that they had failed to remit the $100 filing fee or had failed to comply with the provisions of La. R.S. 40:1299.47(A)(1)(c). The plaintiffs further explained that they had mailed a check for the required fee with the original complaint, and although the original letter and complaint were mailed to an incorrect address, the letter, complaint, and check had not been returned to them, and therefore, they had assumed that the PCF had received and negotiated the check. Additionally, in the January 31, 2005 letter, the plaintiffs enclosed another check (dated January 31, 2005) payable to the PCF in the amount of $100 to replace the previous check.
The PCF received the plaintiffs' January 31, 2005 letter and check, and deposited the funds. Thereafter, the PCF sent a letter dated February 17, 2005, to the plaintiffs stating that "it continues to be the position of this office that [your] claim is invalid," that the January 31, 2005 check for the filing fee was received "beyond the time allowed," and that a "refund" of the filing fee would "be processed."
On March 8, 2005, the plaintiffs filed a "Petition for Judicial Review" against the PCF in the trial court requesting judicial review of the PCF's determination that their malpractice claim against DePaul-Tulane was "null and void," and requesting that their medical malpractice complaint be deemed filed as of October 22, 2004. On April 28, 2006, the trial court signed a written judgment in favor of the plaintiffs, declaring their medical malpractice complaint "be and is hereby deemed to have been filed with the PCF on October 22, 2004." (Footnotes omitted.)
The PCF appealed the April 28, 2006 judgment, and on review of that judgment, this court determined that the plaintiffs' petition actually sought declaratory judgment, and then held that DePaul-Tulane, as the defendant in the underlying medical malpractice action, had an interest that would be affected by the trial court's declaration and should have been made a party to the plaintiffs' suit. Therefore, this court vacated the April 28, 2006 judgment and remanded the matter to allow DePaul-Tulane to be made a party to the plaintiffs' suit. Bosarge, XXXX-XXXX at p. 8, 960 So.2d at 1067-1068.
On July 3, 2007, the plaintiffs filed a supplemental and amended petition naming DePaul-Tulane as a party to this action. DePaul-Tulane filed an answer generally denying the allegations of the plaintiffs' petition and asserting the affirmative defense that the plaintiffs' initial request for the formation of a medical review panel to review the alleged acts of malpractice was not timely filed, and therefore, the claim was prescribed.
On August 6, 2008, the trial court signed a written judgment in favor of the plaintiffs and against DePaul-Tulane, declaring that the plaintiffs' medical malpractice complaint against DePaul-Tulane "be and is hereby deemed to have been filed with the PCF on October 22, 2004."[3] From *13 this judgment, both the PCF and DePaul-Tulane have appealed. On appeal, DePaul-Tulane and the PCF contend that the trial court erred in failing to find that the plaintiffs' request for review of their malpractice claim was statutorily rendered "invalid and without effect" when it determined that the initial filing fee was not timely paid to the PCF within the forty-five day period set forth in La. R.S. 40:1299.47(A)(1)(c). Additionally, the PCF asserts that the trial court erred in finding that the PCF's action in negotiating the plaintiffs' second untimely check for the filing fee rendered the payment of the filing fee timely.
Louisiana Revised Statutes 40:1299.47(A)(1)(c) and (e) establish the amount and time period within which a medical malpractice claimant must pay a filing fee with the PCF, and the legal effect of the failure to do so:[4]
(c) A claimant shall have forty-five days from the mailing date of the confirmation of receipt of the request for review in accordance with Subparagraph (3)(a) of this Subsection to pay to the board a filing fee in the amount of one hundred dollars per named defendant qualified under this Part.
* * *
(e) Failure to comply with the provisions of Subparagraph (c) or (d) of this paragraph within the specified time frame shall render the request for review of a malpractice claim invalid and without effect. Such an invalid request for review of a malpractice claim shall not suspend time within which suit must be instituted in Subparagraph (2)(a) of this Subsection.
Louisiana Revised Statutes 40:1299.47(A)(2)(b) expressly conditions the effective date of filing of the request for a medical review panel upon timely payment of the required filing fee:
(b) The request for review of a malpractice claim under this Section shall be deemed filed on the date of receipt of the request stamped and certified by the division of administration or on the date of mailing of the request if mailed to the division of administration by certified or registered mail only upon timely compliance with the provisions of Subparagraph (l)(c) or (d) of this Subsection. Upon receipt of the request, the division of administration shall forward a copy of the request to the board within five days of receipt.
*14 Finally, La. R.S. 40:1299.47(A)(3) and (4) impose a duty upon the PCF to notify a medical malpractice claimant of its receipt of a request for a medical review panel and the amount and deadline for filing of the required filing fee:
(3) It shall be the duty of the board within fifteen days of the receipt of the claim by the board to:
(a) Confirm to the claimant that the filing has been officially received and whether or not the named defendant or defendants have qualified under this Part.
(b) In the confirmation to the claimant pursuant to Subparagraph (a) of this Paragraph, notify the claimant of the amount of the filing fee due and the time frame within which such fee is due to the board, and that upon failure to comply with the provisions of Subparagraph (l)(c) or (d) of this Subsection, the request for review of a malpractice claim is invalid and without effect and that the request shall not suspend the time within which suit must be instituted in Subparagraph (2)(a) of this Subsection.
(c) Notify all named defendants, whether or not qualified under the provisions of this Part, that a filing has been made against them and request made for the formation of a medical review panel; and forward a copy of the proposed complaint to each named defendant at his last and usual place of residence or his office.
(4) The board shall notify the claimant and all named defendants of any of the following information:
(a) The date of receipt of the filing fee.
(b) That no filing was due because the claimant timely provided the affidavit set forth in Item (l)(d)(i) of this Subsection.
(c) That the claimant has timely complied with the provisions of Item (l)(d)(ii) of this Subsection.
(d) That the required filing fee was not timely paid pursuant to Subparagraph (1)(c) of this Subsection.
In this case, the record establishes that on October 22, 2004, the plaintiffs' request for review of their malpractice claim was stamped and certified as received by the Division of Administration. By letter dated November 12, 2004, the PCF confirmed receipt of the plaintiffs' request for a medical review panel, confirmed that DePaul-Tulane was a qualified health care provider under the MMA, notified the plaintiffs that a $100.00 filing fee was due within forty-five days of the date of the mailing of the letter, and that the failure to pay the filing fee within forty-five days would render the request for review invalid and without effect and would not suspend the time within which a suit must be instituted. The November 12, 2004 letter was mailed to the plaintiffs on November 16, 2004. Therefore, pursuant to La. R.S 40:1299.47(A)(2)(b), the plaintiffs' request for review would be deemed filed on October 22, 2004, only upon timely compliance with La. R.S. 40:1299.47(A)(1)(c). Louisiana Revised Statutes 40:1299.47(A)(1)(c) required the plaintiffs to pay the $100.00 filing fee to the PCF within forty-five days of November 16, 2004the date the confirmation of the receipt of the request for a medical review panel was mailed. Forty-five days from November 16, 2004, was December 31, 2004. However, the plaintiffs did not mail the $100.00 filing fee to the PCF until January 31, 2005. This was not within the statutory forty-five day time frame. Thus, according to La. R.S. 40:1299.47(A)(1)(e), the plaintiffs' request for review of the malpractice claim was "invalid and without effect."
*15 Although the plaintiffs contend that the PCF waived the right to reject the request for review as untimely since the PCF negotiated the check for the filing fee, we find no merit to this argument. The duties of the PCF under La. R.S. 40:1299.47(A) are mandatory duties of a clerical or ministerial nature to facilitate the medical review process. Bosarge, XXXX-XXXX at p. 6, 960 So.2d at 1067. Therefore, any action taken by the PCF in furtherance of those clerical or ministerial duties, such as depositing a filing fee check, would likewise be of a clerical or ministerial nature. Thus, such actions should not have any effect on the date on which a request for review of a malpractice claim is deemed to be filed or transform an untimely payment of the filing fee into a timely payment.
In this case, the plaintiffs' complaint could only be deemed filed on October 22, 2004, the date it was stamped and certified as received by the Division of Administration, if the $100.00 filing fee was paid within forty-five days of November 16, 2004. The plaintiffs did not do so, and therefore, their suit could not be deemed filed on October 22, 2004. Furthermore, since the plaintiffs did not pay the $100.00 filing fee within forty-five days of November 16, 2004, La. R.S. 40:1299.47(A)(1)(e) compels the conclusion that the plaintiffs' request for a review of their malpractice claim was "invalid and without effect." Because the trial court erroneously concluded otherwise, the August 6, 2008 declaratory judgment of the trial court is hereby reversed in compliance with Uniform Rules-Courts of Appeal Rule 2-16.1(B). We remand for further proceedings consistent with this opinion.
All costs of this appeal are assessed to the plaintiffs/appellees, Mary Kathleen Bosarge and Delmas Bosarge, Jr.
REVERSED AND REMANDED.
NOTES
[1] The Louisiana Patient's Compensation Oversight Board is a legislatively created entity that administers the Louisiana Patient's Compensation Fund, which holds private monies in trust to compensate victims of medical malpractice and to protect qualified health care provider members who may be liable for damages caused by their malpractice. See La. R.S. 40:1299.44.
[2] All references to the provisions of the Medical Malpractice Act ("the MMA"), La. R.S. 40:1299.41, et seq., are to the content of such provisions during the appropriate time periods herein.
[3] The original judgment was signed by the trial court on July 29, 2008. This original judgment declared the plaintiffs' medical malpractice complaint "be and is hereby deemed to have been filed with the PCF on October 22, 2007." The record reflects that the parties acknowledged that the October 22, 2007 date contained in the July 29, 2008 judgment was a typographical or clerical error and that October 22, 2004 was the date that the trial court declared the plaintiffs' complaint was deemed to have been filed with the PCF. Thus, the August 6, 2008 amended judgment merely altered the phraseology of the judgment by correcting the clerical error and did not alter its substance. See La. C.C.P. art. 1951.
[4] We also note that under La. R.S. 40:1299(A)(l)(d)(i) and (ii), the filing fee may be waived if the plaintiffs, within forty-five days of the mailing date of the confirmation of receipt, submits to the PCF either an affidavit of a physician holding a valid and unrestricted license to practice his specialty in the state of his residence certifying that adequate medical records have been obtained and reviewed and that the allegations of malpractice against each defendant health care provider named in the claim constitutes a claim of a breach of the applicable standard of care as to each named defendant health care provider, or an in forma pauperis ruling from a district court in a venue in which the malpractice claim could properly be brought upon conclusion of the medical review panel process. However, compliance with either of these provisions was not at issue in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919807/ | 369 A.2d 684 (1977)
WIFE K, Plaintiff below, Appellant,
v.
HUSBAND K, Defendant below, Appellee.
Supreme Court of Delaware.
Submitted September 20, 1976.
Decided January 24, 1977.
Thomas Herlihy, III, of Herlihy & Herlihy, Wilmington, for plaintiff below, appellant.
Wilmer C. Bettinger, of Schmittinger & Rodriguez, Dover, for defendant below, appellee.
Before HERRMANN, C. J., DUFFY and McNEILLY, JJ.
*685 PER CURIAM:
This action was brought in the Family Court for support of minor children, combined with an action to enforce an alimony award made by the Superior Court in a divorce action. The Family Court ruled against the plaintiff in both actions on a common question of law. The plaintiff appealed to the Superior Court on the alimony judgment and to this Court directly on the child support judgment.
Dismissal of the direct appeal from the Family Court to this Court is sought on the ground that 13 Del.C. § 515(a)[1] does not authorize such direct appeal. We agree.
There is ambiguity in § 515 and, therefore, statutory construction is necessary.
The provisions of § 515 must be read in the light of 13 Del.C. § 507[2] (simultaneously *686 enacted) and of 10 Del.C. § 960(a).[3] When the Statutes are read together, it seems evident that the legislative intent was two-fold: (1) to divest the Court of Chancery of all jurisdiction over support and maintenance cases, vesting exclusive jurisdiction thereof in the Family Court, Jones v. Dickerson, Del.Ch., 330 A. 2d 164 (1974); Wife P. v. Husband P., Del.Ch., 287 A.2d 409 (1972); Wife S. v. Husband S., Del.Ch., 295 A.2d 768 (1972); but (2) to leave undisturbed all procedural rights theretofore enjoyed by litigants in that type of case in the Chancery Court.
The Family Court has had exclusive jurisdiction over child support cases since 1971. 10 Del.C. § 921(3).[4] Appeals therefrom are to the Superior Court by virtue of 10 Del.C. § 960(a). Thus, in the absence of express language to the contrary, it seems clear that the right of direct appeal provided by § 515(a) is limited to appeals in contractual separate maintenance and support actions which were within the jurisdiction of the Chancery Court when § 515 was enacted in 1974.
Since this was not such separate maintenance and support action, a direct appeal to this Court does not lie.
Appeal dismissed.
NOTES
[1] 13 Del.C. § 515(a), effective October 24, 1974, provides:
"§ 515. Procedural rights of parties.
"(a) All parties to a civil action brought pursuant to this chapter shall possess all procedural rights which such parties would have heretofore possessed in an action for support or separate maintenance in the Court of Chancery of the State, including but not limited to the following:
"(1) Right to institute and retain complete control of the suit;
"(2) Right to select counsel;
"(3) Right to appeal to the Supreme Court of the State, on the record, from interlocutory or final orders or judgments. Such appeal shall be in the form and manner provided by the rules of the Supreme Court."
[2] 13 Del.C. § 507 provides:
"§ 507. Jurisdiction in Family Court; termination of chancery jurisdiction.
"(a) The Family Court of the State shall have exclusive original jurisdiction over all actions arising under this chapter. The Court shall have exclusive jurisdiction with respect to construction and enforcement of agreements relating to payments for support between spouses, between persons formerly spouses, between parents and children and between parents and children's spouses or former spouses. The Court shall have and exercise all other jurisdiction and powers relating to support and separate maintenance actions heretofore possessed by the Chancellor or the Court of Chancery of the State.
"(b) The jurisdiction of the Court of Chancery in civil actions for separate maintenance is hereby terminated, except for such actions for separate maintenance as have been commenced in the Court of Chancery prior to the effective date hereof. The Court of Chancery shall retain exclusive jurisdiction over such latter actions."
[3] 10 Del.C. § 960(a) provides:
"§ 960. Appeals.
"(a) From any order, ruling, decision, or judgment of the Court there shall be the right of appeal as provided by law to the Superior Court."
[4] 10 Del.C. § 921(3) provides:
"§ 921. Exclusive original jurisdiction.
"The Court shall have exclusive original jurisdiction in all proceedings in this State concerning:
* * *
"(3) Enforcement of any law of this State or any subdivision or any regulation promulgated by a governmental agency, or any petitions or actions, for the education, protection, control, visitation, possession, custody, care, or support of children;" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/994901/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICKY A. COX; SCOTT A.
TRACHTENBERG; FOREST EDGE FARMS,
INCORPORATED; CRAVEN COUNTY
LIVESTOCK ASSOCIATION; WADE S.
DUNBAR, III,
Plaintiffs-Appellants,
and
THOMAS L. MCCOY,
Plaintiff,
v.
DONALD L. PHILLIPS, individually and in
his official capacity as Chairman and
member of the Craven County Board
of Commissioners; CHARLES F. TYSON,
No. 97-2207
individually and in his official capacity
as Vice-Chairman and member of the
Craven County Board of
Commissioners; LEE K. ALLEN,
Individally and in his official capacity
as a member of the Craven County
Board of Commissioners; GARY BLEAU,
Individually and in his official capacity
as a member of the Craven County
Board of Commissioners; JOHNNIE
SAMPSON, JR., Individually and in his
official capacity as a member of the
Craven County Board of
Commissioners; ALBERT H. TOON, In
his official capacity as a member of
the Craven County Board of
Commissioners; EARL WRIGHT,
Individually and in his official capacity
as a member of the Craven County
Board of Commissioners; CRAVEN
COUNTY, NORTH CAROLINA,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CA-97-57-4-H)
Argued: April 7, 1998
Decided: May 5, 1998
Before WILKINSON, Chief Judge, and HAMILTON and
MICHAEL, Circuit Judges.
_________________________________________________________________
Vacated and remanded by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Isaac Clark Wright, Jr., WARD & SMITH, P.A., New
Bern, North Carolina, for Appellants. Trawick Hamilton Stubbs, Jr.,
STUBBS & PERDUE, P.A., New Bern, North Carolina, for Appel-
lees. ON BRIEF: Robert E. Futrell, Jr., WARD & SMITH, P.A.,
New Bern, North Carolina, for Appellants. David J. Haidt, STUBBS
& PERDUE, P.A., New Bern, North Carolina, for Appellees.
_________________________________________________________________
2
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Craven County enacted a temporary moratorium on certain inten-
sive livestock operations. The district court dismissed plaintiffs' com-
plaint challenging the moratorium and seeking declaratory and
injunctive relief. During the course of this appeal, the county's mora-
torium expired. This case is therefore moot. Accordingly, we vacate
the judgment of the district court and remand the case with directions
that it be dismissed.
I.
On February 25, 1997, the Craven County Board of Commission-
ers adopted an ordinance placing a moratorium on most new intensive
livestock operations and the expansion of existing operations in the
county. Craven County, N.C., Ordinance Providing For A Morato-
rium On Intensive Livestock Operations in Craven County, North
Carolina (Feb. 25, 1997) ("Ordinance"). The ordinance defined inten-
sive livestock operations to include any enclosure, pen, feedlot, build-
ing or group of buildings intended for the confined feeding, breeding,
raising or hold of animals where animal waste may accumulate or
where vegetative cover cannot be maintained due to the concentration
of animals. Ordinance ¶1(a). According to the ordinance's preamble,
the Board was concerned about the environmental and health risks
associated with these operations such as water contamination and dis-
ease transmission. The Board enacted the moratorium in order to
study the growth of intensive livestock operations and to determine
whether to regulate them. The moratorium lasted through February
16, 1998.
At the time the moratorium took effect, plaintiff Thomas L. McCoy
was upgrading and expanding his swine farm in Craven County.
Plaintiffs Ricky A. Cox, Wade S. Dunbar, III, and Scott A. Trachten-
3
berg had undertaken extensive preparations for a large swine farm in
Craven County and had formed Forest Edge Farms, Incorporated to
own and operate it. After the Board declined to exempt their activities
from the moratorium, these parties, as well as the Craven County
Livestock Association, filed suit against the board members and the
county. Their complaint alleged violations of the United States Con-
stitution and North Carolina law. In their prayer for relief, plaintiffs
requested only a declaratory judgment that the moratorium was
invalid, an injunction prohibiting its enforcement, and other relief as
the court should deem just and proper. Plaintiffs did not request
money damages. Subsequently, McCoy settled his claims with the
defendants. Following a hearing, the district court found no violation
of federal law and dismissed the state law claims without prejudice.
This appeal followed.
II.
Initially, we must determine whether we have jurisdiction over this
appeal. Plaintiffs seek only a declaration that Craven County's mora-
torium is invalid and an injunction against its enforcement. That mor-
atorium, however, ended on February 16, 1998. Its expiration
therefore renders this case moot, and we lack jurisdiction to consider
the merits of plaintiffs' claims.
Article III of the Constitution limits the judicial power to "actual,
ongoing cases or controversies." Lewis v. Continental Bank Corp.,
494 U.S. 472, 477 (1990) (citations omitted); see U.S. Const. art. III,
§ 2. Federal courts cannot decide questions not affecting the rights of
litigants in the case before them; a decision under such circumstances
would be tantamount to rendering an advisory opinion. Preiser v.
Newkirk, 422 U.S. 395, 401 (1975); North Carolina v. Rice, 404 U.S.
244, 246 (1971) (per curiam). To avoid this possibility, the "case-or-
controversy requirement subsists through all stages of federal judicial
proceedings, trial and appellate." Lewis, 494 U.S. at 477. Thus, an
actual controversy must exist "at all stages of review, not merely at
the time the complaint is filed." Arizonans for Official English v.
Arizona, 117 S. Ct. 1055, 1068 (1997) (internal quotation marks and
citations omitted); see Burke v. Barnes, 479 U.S. 361, 363 (1987).
When a law no longer remains in effect, cases challenging that law
and requesting only prospective equitable relief ordinarily become
4
moot. See Burke, 479 U.S. at 363; Diffenderfer v. Central Baptist
Church, 404 U.S. 412, 414 (1972) (per curiam). For example, this cir-
cuit has found moot a challenge to a statute when the legislature
repealed it after the district court's entry of judgment. Maryland
Highways Contractors Ass'n, Inc. v. Maryland, 933 F.2d 1246, 1249-
50 (4th Cir. 1991). That case, involving only a request for declaratory
and injunctive relief, had "lost its character as a present, live contro-
versy of the kind that must exist if we are to avoid advisory opinions
on abstract propositions of law." Id. at 1249 (internal quotation marks
and citation omitted); see Jordahl v. Democratic Party of Va., 122
F.3d 192, 198 (4th Cir. 1997), cert. denied, 118 S. Ct. 856 (1998). Of
course our concerns about the need for a continuing controversy in
cases of repealed laws apply equally to cases where laws have expired
by their own terms. See Burke, 479 U.S. at 363. Thus, we agree with
those circuits that have found "[a]s a general rule, if a challenged law
. . . expires, the case becomes moot." Native Village of Noatak v.
Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994) (citations omitted);
accord Associated Gen. Contractors of Conn., Inc. v. City of New
Haven, 41 F.3d 62, 67 (2d Cir. 1994).
Plaintiffs' challenge to the Craven County moratorium has become
moot. The complaint, as plaintiffs' counsel acknowledged at oral
argument, does not request money damages. It requests only declara-
tory and injunctive relief. That relief, however, would have no legal
effect now that the moratorium has expired. Though a live contro-
versy undoubtedly existed when plaintiffs filed their complaint, that
controversy has ended. Any ruling on the merits of plaintiffs' claims,
therefore, would amount to nothing more than an advisory opinion on
an expired law.
This case does not fall within an exception to the mootness doc-
trine. This is not a case capable of repetition yet evading review. See
Southern Pac. Terminal Co. v. ICC, 219 U.S. 498 (1911). In the event
the county adopts another ordinance, ample opportunity exists for
judicial review. See National Black Police Ass'n v. District of
Columbia, 108 F.3d 346, 350-51 (D.C. Cir. 1997); Associated Gen-
eral Contractors, 41 F.3d at 66 n.7; Native Village of Noatak, 38 F.3d
at 1509-10. Nor does the county's voluntary decision to set a time
limit on the moratorium require us to reach the merits of this case. See
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982). The
5
Board of Commissioners set the moratorium's expiration date before
this lawsuit had been filed; thus, it cannot be said that the Board acted
in an attempt to avoid an adverse judgment. See, e.g., National Black
Police Ass'n, 108 F.3d at 349-50; Associated General Contractors, 41
F.3d at 66.
III.
When a case becomes moot on appeal, the ordinary course is to
vacate the judgment below and remand the case for dismissal.
Arizonans for Official English, 117 S. Ct. at 1071; United States v.
Munsingwear, Inc., 340 U.S. 36, 39 (1950); Suarez Corp. Indus. v.
McGraw, 125 F.3d 222, 228 (4th Cir. 1997). We see no need to depart
from this "established practice." Arizonans for Official English, 117
S. Ct. at 1071 (quoting Munsingwear, 340 U.S. at 39). We therefore
vacate the judgment of the district court and remand the case with
directions to dismiss the complaint.
VACATED AND REMANDED
6 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/994940/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VENKAT C. REDDY,
Plaintiff-Appellant,
v. No. 97-1053
BDM FEDERAL, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CA-95-3906-L)
Submitted: March 31, 1998
Decided: May 15, 1998
Before LUTTIG and MICHAEL, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Shelton H. Skolnick, SKOLNICK & LEISHMAN, P.C., Derwood,
Maryland, for Appellant. Michael F. Marino, Eric A. Welter, REED,
SMITH, SHAW & MCCLAY, McLean, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Venkat C. Reddy, an Indian male, was employed as a
Senior Staff Member at BDM Federal, Inc. ("BDM"). He was dis-
charged in November 1993 as part of a reorganization and reduction
in force. Alleging that race was a determining factor for his discharge,
Reddy sued BDM under Title VII.1 The district court granted BDM's
motion for summary judgment, concluding that Reddy failed to assert
a prima facie case of discriminatory discharge and that he failed to
refute BDM's legitimate, nondiscriminatory explanation for his dis-
charge. The court relied primarily on the fact that Reddy had provided
no evidence that his work level was substantially equivalent to the
lowest level of the group of employees who were retained, or that the
residual group included persons performing at a level below his.
After a review of the entire record before the district court on sum-
mary judgment, we agree that Reddy failed to state a prima facie case
of race discrimination under Title VII. We therefore affirm the district
court's grant of summary judgment to BDM.
Reddy began his work for BDM in March 1991 as support for a
contract (the EM-40) between BDM and the Department of Energy
("DOE"). In November 1992, the DOE terminated the EM-40 contract
with BDM. Reddy was reassigned to a different contract (the EM-30)
and to a different supervisor. Although Reddy's performance evalua-
tions from 1991 through 1993 stated that his work was acceptable and
that he had excellent technical skills and field experience, his overall
performance ratings fluctuated from "acceptable" in 1991, to "good"
in 1992, to "marginally acceptable" in 1993. Each evaluation empha-
sized Reddy's need to improve his oral communication skills and
directed that he take specific action to improve these skills. Reddy
admitted that he never inquired about or enrolled in an oral communi-
cations course.
In addition to his weak communication skills, Reddy had perfor-
_________________________________________________________________
1 See 42 U.S.C. §§ 2000e-2, 2000e-5 (1994).
2
mance problems in the EM-30 work group. Reddy was not an engi-
neer and had no hands-on construction experience, so the group
manager for the EM-30 contract had difficulty finding assignments
for Reddy.2 Further, Reddy's performance evaluations and comments
from his supervisors reflected difficulties in meeting client expecta-
tions and following project procedures. At the time of his discharge,
Reddy's work performance had declined to such a point that he was
being assigned administrative tasks normally performed by high
school summer interns.
In October 1993 the DOE notified BDM of its proposed changes
in funding the EM-30 contract. These changes required a reduction of
approximately one-third of the EM-30 workforce. In Reddy's Novem-
ber 1993 discharge letter, BDM cited these cutbacks as the reason for
his discharge.3 Of the four employees discharged at this time, Reddy
was the only member of a protected class.
Summary judgment is appropriate when there is no genuine issue
of material fact given the parties' burdens of proof at trial.4 In deter-
mining whether there is a genuine issue of material fact, a court must
assess the factual evidence and all inferences to be drawn therefrom
in the light most favorable to the non-moving party. 5 The appellate
court reviews a grant of summary judgment de novo. 6
To establish a prima facie case of unlawful race discrimination in
a reduction-in-force termination under Title VII, a plaintiff must show
_________________________________________________________________
2 After the cutbacks which precipitated Reddy's termination, the
EM-30 work group's assignments required engineering skills which
Reddy did not possess.
3 After Reddy received his reduction-in-force notice, his immediate
supervisor circulated Reddy's resume within BDM and to two outside
companies, but was unable to locate another position for which Reddy
was qualified.
4 See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986).
5 See Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th
Cir. 1985).
6 See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167
(4th Cir. 1988).
3
that: (1) he was a member of a protected group; (2) he was selected
for discharge from a larger group; (3) he was performing at a level
substantially equivalent to the lowest level of that in the group
retained; and (4) the process of selection produced a residual work
force that contained some unprotected persons who were performing
at a level lower than that at which the plaintiff was performing.7 Once
the plaintiff sets forth a prima facie case of discrimination, the burden
of articulating a legitimate, nondiscriminatory explanation for the
adverse employment decision shifts to the defendant. 8 If the defendant
meets this burden, then the presumption of discrimination drops from
the case, leaving the plaintiff with the ultimate burden of proving that
the defendant intentionally discriminated against him.9
Reddy has not produced any evidence aimed at the third and fourth
elements of the Mitchell test. He conducted no discovery of the per-
formance evaluations of those employees in the EM-30 contract resid-
ual group and admits that he has no personal knowledge of these
facts. Reddy argues that his performance was adequate and there was
no written documentation of complaints about his performance, so his
termination must have been due to his race. Because Reddy has not
shown that any non-protected employees performing at or below his
level were retained, he has not stated a prima facie case.
Finally, even if Reddy established a prima facie case, we conclude
that he failed to meet his burden of producing evidence to show that
BDM's reason for terminating him was pretextual. BDM had to ter-
minate a large part of its work force due to the DOE-mandated reduc-
tions. Reddy's performance evaluations reflected difficulties in his
_________________________________________________________________
7 See Mitchell v. Data Gen. Corp. , 12 F.3d 1310, 1315 (4th Cir. 1993).
Although Mitchell involves a claim of age discrimination under the Age
Discrimination in Employment Act, 29 U.S.C.A. § 621-634 (West 1985
& Supp. 1997), the burden-shifting scheme of McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973), is equally applicable--and in fact
originated--in the context of Title VII cases involving claims of racial
discrimination in employment. See McDonnell Douglas, 411 U.S. at
802-05; see also Duke v. Uniroyal, Inc., 928 F.2d 1413, 1418 (4th Cir.
1991).
8 See Mitchell, 12 F.3d at 1314-15.
9 See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).
4
performance, and he did not have the engineering skills necessary to
remain on the EM-30 project. Because Reddy failed to come forth
with evidence to contradict the reason given for his termination, he
has not established that BDM's reason for terminating him was pre-
textual.
We find that no genuine issue of material fact exists as to Reddy's
Title VII claim; therefore, we affirm the district court's order granting
summary judgment to BDM. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
5 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1982665/ | 309 Md. 224 (1987)
522 A.2d 1348
JEROME EDWIN CHASE
v.
STATE OF MARYLAND.
No. 114, September Term, 1986.
Court of Appeals of Maryland.
April 3, 1987.
John L. Kopolow, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.
Ronald M. Levitan, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.
Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.
ORTH, Judge.
The saga of the current travails of Jerome Edwin Chase began when he pled guilty to robbery in the Circuit Court for Prince George's County. He was sentenced to imprisonment for a term of 10 years. The execution of all but 55 days of the sentence was suspended, and he was placed upon conditional probation for a period of five years.
Apparently Chase was not impressed by his good fortune in escaping a lengthy incarceration. A year later he was found to have violated certain conditions of his probation. The court "reimposed" the 10 year sentence, gave credit for 250 days served, and again suspended execution of the balance in favor of probation for five years. One of the conditions of this grant of probation was that he "obey all laws." Chase was still not convinced that he should abide by the conditions upon which he was permitted to stay out of jail nor did he attempt to become a respectable member of society. Less than a year later, he tempted fate again. He was observed by two police officers in an area of considerable narcotic trafficking engaged in what they believed to be a drug transaction. They arrested him and searched him incident to the arrest. Their belief proved to be correct. They seized from his person marijuana, drug paraphernalia and a substantial amount of cash. He was charged with violations of the Controlled Dangerous Substances Act. Chase filed a motion in the criminal cause against him to suppress the evidence seized from him. The court conducted a plenary hearing and granted the motion. It found that the officers did not have probable cause to arrest Chase. Therefore, the warrantless arrest was illegal and the search and seizure incident thereto was repugnant to the Fourth Amendment to the Constitution of the United States as unreasonable. The exclusionary rule applied to exclude the evidence from the prosecution's case-in-chief at a criminal trial on the merits. The State, in light of this ruling, nol prossed the charges.
In the meantime the State had filed a petition to revoke his probation for failure to comply with the condition that he "obey all laws," in that he possessed marijuana and narcotic paraphernalia. It pursued the petition. Chase asked the court "whether or not [it] will consider the evidence seized at the time of [Chase's] arrest as the basis of violation of [Chase's] probation." The court treated this question as a motion to dismiss grounded on the claim that the challenged evidence was inadmissible at the revocation hearing. The court denied the motion on the basis that the exclusionary rule did not apply, in the circumstances, to bar the evidence at Chase's revocation of probation hearing. Upon that ruling, Chase ultimately conceded that he had possessed marijuana. The court revoked his probation and the suspension of the execution of the 10 year sentence, suspended all but four years of it, gave credit for 580 days of previous incarceration and placed him once more on conditional probation for a period of five years commencing upon his release from prison. Chase appealed. The Court of Special Appeals affirmed the judgment except as to the length of the probationary period, which it ordered be reduced by 408 days, representing probationary time already served. Chase v. State, 68 Md. App. 413, 511 A.2d 1128 (1986).
We granted Chase's petition for a writ of certiorari and our order for the issuance of the writ accepted the two questions presented by Chase:
1) Is evidence that police have seized without a warrant and in violation of [Chase's] Fourth Amendment rights admissible to prove that he violated a condition of his probation?
2) Must the record of [Chase's] violation hearing show either that he was present and contested the charges or that he knowingly and voluntarily waived his rights to be present and to contest the charges?
I
The violation of probation hearing consisted of two phases, conducted about three months apart. The first phase dealt with the matter of the admissibility, at the hearing on the merits of the revocation of probation, of the evidence seized from Chase incident to his arrest. This evidence was the foundation of the State's case, but, as we have seen, it had been suppressed with respect to the criminal cause. The transcript of the suppression phase of the revocation hearing shows that when the case was called, defense counsel informed the court that Chase was "in the lock-up." The prosecutor thereupon introduced himself to the court, and the transcript immediately thereafter reads, "(Defendant present)." Defense counsel suggested that the evidence adduced at the suppression hearing in the criminal cause surrounding the arrest of Chase be entered in the revocation hearing by way of stipulation. The following stipulation was proffered by the State:
If we were to actually present evidence at this hearing the State would show that Private Andrew Pappas and Private Anderson, who is present in the courtroom, on January the 9th, 1985, were in the 7300 block of Hawthorne Street in Landover, Prince George's County, Maryland, when they saw the Defendant apparently signal to a passing motorist, who stopped his car. They saw apparently something exchanged between the Defendant, who pulled something out of his glove and gave it to a person in the car. The person in the car gave something back to him.
Given the nature of the area, that has a high volume of drug transactions that occur in exactly the same manner, they felt that they had just witnessed a drug transaction and decided to apprehend the Defendant.
Both officers did apprehend the Defendant. They conducted a search of the Defendant and recovered from him one plastic bag containing 58.6 grams of marijuana; three manila coin envelopes each containing a quantity, a small quantity of marijuana; and ... 125 small empty manila envelopes, and $171 in U.S. currency.
It was further proffered that
Officer Anderson did not know the Defendant, Jerome Edwin Chase, Jr., prior to this time. He had no knowledge at the time of the apprehension that he was on probation.
In fact, the reason for the apprehension was in order to prosecute him for what they believed to be a drug violation at that point in time.
Defense counsel expressly agreed to the stipulation and it was accepted by the court. It appears that the stipulation was in accord with the evidence adduced at the suppression hearing in the criminal cause. It was on that evidence that the court ruled that the articles seized from Chase were not admissible to prove the criminal charges against him, prompting the State to enter a nolle prosequi to all criminal charges. At the revocation suppression hearing, counsel argued whether the evidence seized from Chase incident to his arrest was admissible to establish that he had violated a condition of his probation. After due consideration, the court ruled that it was admissible.
Following the ruling of the court, the revocation action came on for hearing on the merits. It is at this adjudicatory phase of the revocation hearing that the record is deficient. When the case was called for trial, Gregory Powell, Esq., informed the court that he was "standing in" for the defense counsel who was trying a case elsewhere. Powell said that he was ready to proceed and that Chase was "in the lock-up." The court asked: "He's coming around?" The Deputy Clerk of the court answered: "Yes, I called for him." There immediately follows in the transcript a question by the court:
All right, Mr. Powell, you admit or deny the allegations in the petition for violation of probation?
There is no indication in the transcript whether Chase was present in the courtroom when the court asked that question and Powell answered, or how much time elapsed between the clerk's statement that he had called for Chase to be brought from the lock-up and what thereafter followed. Powell answered the court's question:
For the record, we would like to preserve the right to appeal. We would deny any violation. But I believe we previously stipulated to the facts of the alleged violation. And basically that was, Your Honor, was that we agreed if there had been testimony presented in this case, the police officer would have provided the same testimony that he presented at the suppression hearing.
And, also, Your Honor, in light of the fact that there is a drug report in the underlying case reflecting that the material seized from Mr. Chase was, in fact, marijuana, we would stipulate that there was marijuana taken from Mr. Chase.
The court said: "Based upon that evidence, I am going to find the defendant in violation of probation." Defense counsel and the prosecutor entered into a discussion with the court concerning the disposition to be made of Chase. It was at the end of this discussion that the presence of Chase is affirmatively shown by the transcript. The court addressed Chase: "Mr. Chase, do you have anything you wish to tell me?" The transcript reads: "The Defendant: No, sir Your Honor." The court announced its disposition and informed Chase that he had "a right to appeal this judgment of guilt in 30 days; ask me to reconsider it in 90 days." According to the transcript the case was called at 9:45 a.m. and the proceedings concluded at 9:55 a.m.
No one, including Chase and his counsel, have at any time suggested that Chase was in fact not present when the hearing went forward. Chase's complaint is simply that the record does not reflect that he was present at all times. We know that Chase was in the courthouse lock-up awaiting the calling of his case and was readily available. We know that the Clerk had "called for him." We know that he was brought to the courtroom. What we do not know from the record is precisely when during the ten minutes it took to dispose of the case he appeared. It stretches credibility to believe that the hearing would have proceeded in the absence of the defendant, particularly after the judge had asked if he was present, without some indication by the court, defense counsel or the prosecutor that Chase was not in court. We are not willing to assume that judges will knowingly not fulfill their sworn obligations, but it is an assumed proposition that "judges are men of discernment, learned and experienced in the law ..." and that the application of this proposition in the performance of their duties "lies at the very core of our judicial system." State v. Babb, 258 Md. 547, 550, 267 A.2d 190 (1970). See State v. Hutchinson, 260 Md. 227, 236-237, 271 A.2d 641 (1970). But, although the probability is that Chase had appeared before the court asked defense counsel whether the charges were admitted or denied and that the reporter had inadvertently neglected to include in the record those magic words, "Defendant present," it is possible, no matter how unlikely in the circumstances, that Chase was not then present. Of course, he was entitled to be present, as a part of the minimal due process applicable to probation revocation proceedings. See Morrissey v. Brewer, 408 U.S. 471, 488-489, 92 S. Ct. 2593, 2603-04, 33 L. Ed. 2d 484 (1972). So we shall assume that Chase was not present until the transcript reveals that his presence was recognized, and we look at what occurred during the interim.
There were no witnesses called. Evidence was presented by stipulation at the suggestion of defense counsel. It was at the express suggestion of defense counsel that the evidence offered by stipulation in the revocation suppression hearing be accepted in the hearing on the merits. It will be recalled that this was the same evidence adduced at the suppression hearing in the criminal cause in the presence of Chase and received at the suppression hearing in the revocation proceedings in the presence of Chase without objection by him. We note that during the suppression phase of the revocation hearing, Chase conceded that he possessed marijuana when arrested. The strategy of the defense at the hearing on the merits was clear. In the words of defense counsel, "We would like to preserve the right to appeal" the ruling that the evidence seized incident to an illegal arrest was admissible to establish the violation of a condition of probation. Whether or not that evidence was admissible was the only concern of the defense. The State was content to abide by the ruling that the search and seizure were illegal, and, of course, Chase was happy with that ruling. In no event was Chase in a position to refute successfully that he had been arrested, possessed marijuana and paraphernalia and charged with a crime. If the contraband seized was admissible at his revocation hearing, it would establish that he had not "obeyed" the law; if it were inadmissible the charge apparently could not be proved. The tactics to accomplish the strategy were to deny the violation but to stipulate the facts which Chase had twice before conceded rather than expend time and money by requiring the State to prove the charge by the introduction of testimonial and physical evidence which the defense realistically could not refute. The denial of the violation was simply to preserve the appeal on the vital question, and the tactics employed accomplished that strategic objective. What was done in Chase's assumed absence did not prejudice him one whit. Furthermore, it will be recalled, when the judge asked Chase toward the end of the hearing, "do you have anything you wish to tell me," Chase answered "no." There was no indication that Chase was not aware of what had previously occurred, no intimation that he had actually not been present at all times, and no objection of any kind.
In Williams v. State, 292 Md. 201, 438 A.2d 1301 (1981), we modified prospectively the Maryland common law rule of the defendant's right to be present in a criminal trial. We explained:
Today, with the complexity of many criminal trials and the absolute right of counsel if there is a danger of incarceration, our system proceeds upon the assumption that it is primarily counsel's function to assert or waive most "rights" of the defendant. Unless a defendant speaks out, normally he must be bound by the trial decisions, actions and inactions of counsel. Otherwise, the system simply would not work. Id. at 218, 438 A.2d 1301.
We concluded:
With respect to all criminal trials, or parts of trials, taking place after the issuance of our mandate in this case, an effective waiver of the defendant's right to be present at every stage of the trial will not always require a personal waiver by the defendant. Where the right of confrontation is not implicated, and where there is involved no other right requiring intelligent and knowing action by the defendant himself for an effective waiver, a defendant will ordinarily be bound by the action or inaction of his attorney.
* * * * * *
[I]f the defendant himself does not affirmatively ask to be present at such occurrences or does not express an objection at the time, and if his attorney consents to his absence or says nothing regarding the matter, the right to be present will be deemed to have been waived. Id. at 219-220, 438 A.2d 1301.
Cf. State v. Magwood, 290 Md. 615, 432 A.2d 446 (1981).
We think that the teachings of Williams are equally applicable to a revocation of probation hearing, which does not require the full panoply of rights and safeguards associated with a criminal trial. See Black v. Romano, 471 U.S. 606, 105 S. Ct. 2254, 2259, 85 L. Ed. 2d 636 (1985).
On the particular circumstances of the instant case, we agree with the Court of Special Appeals, that "[o]n the record, we cannot find any basis for concluding that, to the extent [Chase] was, in fact, not present, his right of presence was not effectively waived." Chase v. State, 68 Md. App. at 418, 511 A.2d 1128. As the Court of Special Appeals explained:
[Chase's] right of confrontation was certainly not transgressed, for no witnesses testified against him. It had already been determined that the evidence taken from him was admissible, and the most damaging thing that occurred was his counsel's stipulation that the substance seized was, in fact, marijuana. But that was never in dispute; indeed at the [previous] hearing, [Chase] stipulated that a bag containing 58.6 grams of marijuana had been seized. Id. at 417-418, 511 A.2d 1128.
If Chase was not in fact present at the commencement of the proceedings, counsel made no objection then or later. The record is clear that Chase was not absent during the entire hearing, and when he was given the opportunity to speak, he made no objection regarding any lack of presence on his part or to any action by his counsel. "There is no war between the Constitution and common sense." Mapp v. Ohio, 367 U.S. 643, 657, 81 S. Ct. 1684, 1692, 6 L. Ed. 2d 1081 (1961). In the circumstances here, the Constitution and common sense are not in conflict.
We have an alternative reason for holding that to the extent Chase was not present at the adjudicatory phase of his revocation hearing, his absence does not require reversal of the judgment. In Noble v. State, 293 Md. 549, 446 A.2d 844 (1982), we laid to rest the notion that a violation of the right to be present during a stage of a criminal trial can never be harmless. In doing so we overruled State v. Saul, 258 Md. 100, 265 A.2d 178 (1970) and disapproved Young v. State, 5 Md. App. 383, 247 A.2d 751 (1968). Noble v. State, 293 Md. at 569, 446 A.2d 844. We held flatly that
the harmless error principle is fully applicable to a defendant's right to be present during a stage of the trial. Prejudice will not be conclusively presumed. If the record demonstrates beyond a reasonable doubt that the denial of the right could not have prejudiced the defendant, the error will not result in a reversal of his conviction. Id. at 568-569, 446 A.2d 844.
This teaching is also equally applicable to the presence of a respondent at a revocation of probation hearing. The harmless error principle is set out in Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665 (1976):
[W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed "harmless" and a reversal is mandated.
We have made our own independent review of the entire record. In light of the way in which the defense chose to proceed with its case and the reason for proceeding in that manner as shown by the record, we are convinced beyond any reasonable doubt that Chase's absence in no way influenced the verdict. As we pointed out above, Chase was not prejudiced one whit if he were not present under the circumstances. As we are satisfied beyond a reasonable doubt that, to the extent he was not present at the hearing, he was not harmed thereby, the error may be deemed harmless under Dorsey. We so deem it.
It follows from all of what we have said that, to the extent Chase may not have been present at the revocation of probation hearing, his absence does not require a reversal of the judgment.
II
In Maryland, the revocation of probation is considered to be a civil proceeding.[1] Chief Judge Murphy, speaking for the Court in Howlett v. State, 295 Md. 419, 456 A.2d 375 (1983), described a probation revocation proceeding thus:
While a probation revocation proceeding relates directly to the criminal case of the substantive offense, the proceeding is not itself a new criminal prosecution; the commission of a crime is not charged and the alleged violation of probation, if established, is not punishable beyond the reimposition of the original sentence imposed. Id. at 424, 456 A.2d 375.
It may be that the nature of probation revocation procedures in Maryland is not quite as "flexible and informal" as the Supreme Court perceives such procedures to be generally. Romano, 471 U.S. at 613, 105 S. Ct. at 2259. See the description of a revocation hearing in Gagnon v. Scarpelli, 411 U.S. 778, 779, 93 S. Ct. 1756, 1758, 36 L. Ed. 2d 656 (1973).[2] But even if we have gone beyond the constitutional requirements for the conduct of a revocation hearing,[3] it is luminously clear that Maryland, like the Supreme Court, deems that a revocation of probation proceeding is not a stage of a criminal prosecution.[4] It is firmly established as a civil action, and, as we have noticed above, the probationer is not cloaked with the full panoply of constitutional rights and procedural safeguards enjoyed by a defendant in a criminal cause, "A person charged with a violation of probation is not, therefore, invested with all the rights constitutionally accruing to a defendant in a criminal prosecution and the hearing is not subject to all the limitations [and procedural safeguards] imposed by law upon a trial leading to conviction." Howlett, 295 Md. at 424, 456 A.2d 375; Romano, 471 U.S. at 613, 105 S. Ct. 2259; Gagnon, 411 U.S. at 778, 93 S. Ct. at 1756. For example, the admission of a violation of conditions of probation is not restricted as is the acceptance of a plea of guilty to a criminal charge. Rule 4-346(c) declares: "The provisions of Rule 4-242 [Pleas] do not apply to an admission of violation of conditions of probation." See also Howlett v. State, supra. A probationer is not entitled to a trial by jury. Moreover, the Supreme Court said in Minnesota v. Murphy, 465 U.S. 420, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984):
Just as there is no right to a jury trial before probation may be revoked, neither is the privilege against compelled self-incrimination available to a probationer. It follows that whether or not the answer to a question about a residential requirement is compelled by the threat of revocation, there can be no valid claim of the privilege on the ground that the information sought can be used in revocation proceedings.
Our cases indicate, moreover, that a State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination. Under such circumstances, a probationer's "right to immunity as a result of his compelled testimony would not be at stake," ... and nothing in the Federal constitution would prevent a State from revoking probation for a refusal to answer that violated an express condition of probation or from using the probationer's silence as "one of a number of factors to be considered by the finder of fact" in deciding whether other conditions of probation have been violated. Id. at 435 n. 7, 104 S. Ct. at 1146 n. 7.
The right of a probationer to confront the witnesses against him is not absolute. The right is lost if the hearing judge "specifically finds good cause for not allowing confrontation." Gagnon, 411 U.S. at 786, 93 S. Ct. at 1762 (quoting Morrissey, 408 U.S. at 489, 92 S. Ct. at 2604). See State v. Fuller, 308 Md. 547, 552, 520 A.2d 1315 (1987). In Dean v. State, 291 Md. 198, 202, 434 A.2d 552 (1981), after observing that "[t]he procedural protections afforded a probationer at a revocation of probation hearing are not equivalent to those accorded at a criminal trial," we said: "Formal procedures and the rules of evidence are not employed." We made a like statement in State v. Fuller, 308 Md. at 553, 520 A.2d 1315 (citing Gagnon as authority) and added that "reasonably reliable hearsay may be received." In Fuller at 552, 520 A.2d 1315, we noted that Scott v. State, 238 Md. 265, 208 A.2d 575 (1965), although "drastically weakened" had "not been completely overruled" by Morrissey and Gagnon. We said in Scott, 238 Md. at 276, 208 A.2d 575:
The facts presented to or coming to the knowledge of the judge, as to the breach of conditions of probation, need not establish guilt beyond a reasonable doubt as in criminal offenses; all that is required is that the facts before him be such that the judge reasonably could be satisfied that the conduct of the probationer has not been what he agreed it would be if he were given liberty.
We held that
acquittal of a probationer of a charge of criminal conduct which was a violation of probation does not preclude revocation of probation, if the judge passing on the question is with reason satisfied that the probationer actually did that charged in the indictment on which he was acquitted. Id.
We see nothing in the decisions of the Supreme Court which undermines the viability of this part of Scott.[5]
Even though a revocation of probation proceeding is a civil action, it does result in a loss of liberty. Gagnon, 411 U.S. at 782, 93 S. Ct. at 1759. The deprivation of liberty is "not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions." Morrissey, 408 U.S. at 480, 92 S. Ct. at 2600. Both the probationer and the State have a vital interest. Id. The Court spoke to the interest of the probationer:
[T]he liberty of a [probationer], although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a "grievous loss" on the [probationer] and often on others." Id. at 482, 92 S. Ct. at 2601.
It discussed the interest of the State and concluded:
[T]he State has an overwhelming interest in being able to return an individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his [probation]. Id. at 483, 92 S. Ct. at 2601.
It follows that
[t]he [probationer] is not the only one who has a stake in his conditional liberty. Society has a stake in whatever may be the chance of restoring him to normal and useful life within the law. Id. at 483-484, 92 S. Ct. at 2601.
Thus,
[b]y whatever name, the liberty [of the probationer] is valuable.... Its termination calls for some orderly procedure, however informal. Id. at 482, 92 S. Ct. at 2601.
The validity of the procedure called for is tested by "fundamental fairness the touchstone of due process...." Gagnon, 411 U.S. at 790, 93 S. Ct. at 1763; Howlett, 295 Md. at 427, 456 A.2d 375; State v. Bryan, 284 Md. 152, 159 n. 6, 395 A.2d 475 (1978). This is so because since "the liberty [of the probationer] is valuable [it] must be seen as within the protection of the Fourteenth Amendment." Morrissey, 408 U.S. at 482, 92 S. Ct. at 2601.
The Fourteenth Amendment guarantees as to State prosecutions that no person shall be deprived of "life, liberty, or property, without due process of law."[6] "The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation." Romano, 471 U.S. at 610, 105 S. Ct. at 2257 (citing Bearden v. Georgia, 461 U.S. 660, 666 and n. 7, 103 S. Ct. 2064, 2069 and n. 7, 76 L. Ed. 2d 221 (1983)). Inasmuch as it is clear that due process applies to revocation of probation proceedings, "the question remains what process is due." Morrissey, 408 U.S. at 481, 92 S. Ct. at 2600. The precise question before us is whether the admission at the adjudicatory phase of a revocation of probation hearing of evidence seized incident to an illegal arrest is fundamentally unfair and thereby offensive to due process of law. In considering the question, we are aware that the Supreme Court emphasized that
there is no thought to equate [the adjudicatory] stage of [probation] revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.
* * * * * *
We have no thought to create an inflexible structure for [probation] revocation procedures. Morrissey, 408 U.S. at 489-490, 92 S. Ct. at 2604.
It follows that the mere fact that the evidence sought to be admitted at the revocation hearing was suppressed as illegally seized at the criminal trial of Chase provides, in itself, no sound reason to exclude it at his revocation hearing. Nor, as we have seen, does the fact that Chase was not convicted of the criminal charges arising from the evidence, render the evidence inadmissible at his revocation hearing. We are also mindful of the wide range of constitutional rights and procedural safeguards, listed supra, which are available to a defendant in a criminal cause but are denied a probationer in a revocation hearing without violating due process. This leads us to the bottom line, whether, for process to be due, the exclusionary rule adopted with respect to the search and seizure clause of the Fourth Amendment must be applied in revocation of probation hearings.
III
A
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. Const. amend. IV.
It is a rule of the common law that the admissibility of evidence is not affected by the illegality of the means by which it is obtained. Despite indication in Boyd v. United States, 116 U.S. 616, 635, 6 S. Ct. 524, 535, 29 L. Ed. 746 (1886), that the use of evidence illegally obtained by federal officials was "unconstitutional," the rule was generally followed by the courts throughout the first decade of this century. Early in 1914, the Supreme Court decided Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652. For the first time, the Court held that "in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure." Wolf v. Colorado, 338 U.S. 25, 28, 69 S. Ct. 1359, 1361, 93 L. Ed. 1782 (1949). The Court "has ever since required of federal law officers a strict adherence to that command...." Mapp v. Ohio, 367 U.S. 643, 648, 81 S. Ct. 1684, 1688, 6 L. Ed. 2d 1081 (1961). Thirty-five years after Weeks, the Court, again for the first time, discussed the effect of the Fourth Amendment upon the states through the Fourteenth Amendment. But, although it declared that the guarantee of the Fourth Amendment was enforceable against the states through the due process clause and announced that it "stoutly adhere[d]" to the Weeks decision, the Court "decided that the Weeks exclusionary rule would not then be imposed upon the states as `an essential ingredient of the right.'" Mapp, 367 U.S. at 650, 81 S. Ct. at 1689 (quoting Wolf, 338 U.S. at 29, 69 S. Ct. at 1362). In Irvine v. California, 347 U.S. 128, 139, 142, 149, 74 S. Ct. 381, 386, 388, 392, 98 L. Ed. 561 (1954), the Court expressed the hope that the states would adopt the federal exclusionary rule. But it took until 1961 for the Court to appreciate that its hope was largely unrealized. So it settled the issue itself. It flatly declared in Mapp, 367 U.S. at 655, 81 S. Ct. at 1691:
We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.
In a revealing opinion in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), the Court discussed the exclusionary rule and a number of its decisions concerning it.[7] It laid to rest the notion that the exclusionary rule is a necessary corollary of the Fourth Amendment or that the rule is required by the conjunction of the Fourth and Fifth Amendments. It said:
The Fifth Amendment theory has not withstood critical analysis or the test of time ... and the Fourth Amendment "has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons." Id. at 906, 104 S. Ct. at 3411 (quoting Stone v. Powell, 428 U.S. 465, 486, 96 S. Ct. 3037, 3048, 49 L. Ed. 2d 1067 (1976)).
It declared:
The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands, and an examination of its origin and purposes makes clear that the use of fruits of a past unlawful search or seizure "works[s] no new Fourth Amendment wrong." Leon 468 U.S. at 906, 104 S. Ct. at 3411 (quoting United States v. Calandra, 414 U.S. 338, 354, 94 S. Ct. 613, 623, 38 L. Ed. 2d 561 (1974)).
It explained, in the words of Calandra, at 348, 94 S. Ct. at 620, that
[t]he rule thus operates as "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." Leon 468 U.S. at 906, 104 S. Ct. at 3412.
It noted that its decisions made clear that whether the exclusionary sanction is appropriately imposed in a particular case is "an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct." Id. (quoting Illinois v. Gates, 462 U.S. 213, 223, 103 S. Ct. 2317, 2324, 76 L. Ed. 2d 527 (1983)).
The imprimatur of the Supreme Court on the application of the exclusionary rule has been confined to criminal trials, and within those trials, to the prosecution's case in chief on the merits of guilt or innocence. Standing to invoke the rule has been limited to cases in which the prosecution seeks to use the fruits of an illegal search or seizure against the victim of the police misconduct. Leon, 468 U.S. at 910, 104 S. Ct. at 3413-14. However, "[e]ven defendants with standing to challenge the introduction in their criminal trials of unlawfully obtained evidence cannot prevent every conceivable use of such evidence." Id. Evidence inadmissible in the state's case in chief as secured in violation of the Fourth Amendment may be used to impeach a defendant's direct testimony. Id. (citing Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954) and other cases). And such evidence may be used to impeach statements made by a defendant in response to proper cross-examination reasonably suggested by the defendant's direct examination. Leon 468 U.S. at 910, 104 S. Ct. at 3414 (citing United States v. Havens, 446 U.S. 620, 627, 100 S. Ct. 1912, 1916, 64 L. Ed. 2d 559 (1980)). The Leon opinion pointed out that the Court, when considering the use of evidence obtained in violation of the Fourth Amendment in the prosecution's case in chief, had declined to adopt a per se or "but for" rule that would render any evidence that came to light through a chain of causation that began with an illegal arrest. Id. 468 U.S. at 910-911, 104 S. Ct. at 3413-14 (citing Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975)). The Court has also held that a witness' testimony may be admitted even when his identity was discovered in an unconstitutional search. Leon 468 U.S. at 911, 104 S. Ct. at 3414 (citing United States v. Ceccolini, 435 U.S. 268, 98 S. Ct. 1054, 55 L. Ed. 2d 268 (1978)). And in cases not involving the scope of the rule itself, the rule has been held inapplicable. Thus, the Court has not required suppression of the fruits of a search incident to an arrest made in good-faith reliance on a substantive criminal statute that subsequently was declared unconstitutional. Leon 468 U.S. at 911-912, 104 S. Ct. at 3414 (citing Michigan v. DeFillippo, 443 U.S. 31, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979)). In Leon itself the Court held that "evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate... should be admissible in the prosecution's case in chief," even though the warrant was later found to be defective. Id. 468 U.S. at 913, 104 S. Ct. at 3415. And we note that this Court, in Logan v. State, 289 Md. 460, 486, 425 A.2d 632 (1981), concluded that ordinarily the exclusionary rule "does not extend to the sentencing stage of a criminal cause."
"In the complex and turbulent history of the [exclusionary] rule, the Court has never applied it to exclude evidence from a civil proceeding, federal or state." United States v. Janis, 428 U.S. 433, 447, 96 S. Ct. 3021, 3029, 49 L. Ed. 2d 1046 (1976). The Court explained this statement in the light of forfeiture proceedings in a footnote 17 in 428 U.S. at 447, 96 S.Ct. at 3029:
The Court has applied the exclusionary rule in a proceeding for forfeiture of an article used in violation of the criminal law. Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S. Ct. 1246, 14 L. Ed. 2d 170 (1965). There it expressly relied on the fact that "forfeiture is clearly a penalty for the criminal offense" and "[i]t would be anomalous indeed, under these circumstances, to hold that in the criminal proceeding the illegally seized evidence is excludable, while in the forfeiture proceeding, requiring the determination that the criminal law has been violated, the same evidence would be admissible." Id., at 701, 85 S. Ct., at 1251. See also Boyd v. United States, 116 U.S. 616, 634, 6 S. Ct. 524, 534, 29 L. Ed. 746 (1886), where a forfeiture proceeding was characterized as "quasi-criminal."
In our revocation of probation proceedings the revocation is "not a penalty for the criminal offense," even though the new criminal offense may be the basis for the revocation. See Howlett v. State, 295 Md. at 424, 456 A.2d 375. The revocation is a civil action to determine whether the probationer is to remain on probation, not to punish his conduct for which probation may be revoked. Cf. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S. Ct. 3479, 3483, 82 L. Ed. 2d 778 (1984). For further support that Plymouth Sedan v. Pennsylvania provides no sound basis for applying the exclusionary rule to civil or administrative proceedings, see W. LaFave and J. Israel, Criminal Procedure, § 3.1(g). There it is pointed out that the courts which hold that the exclusionary rule applies in forfeiture proceedings rely on Plymouth's reasoning that the rule applies to proceedings which are "quasi-criminal" in that their object is to penalize for the commission of an offense against the law and could result in even greater punishment than the criminal prosecution. We iterate that this is not the situation in our revocation of probation proceedings. So it was that the Supreme Court confirmed in Leon, 468 U.S. at 909, 104 S. Ct. at 3413, that "[p]roposed extensions of the exclusionary rule to proceedings other than the criminal trial itself have been evaluated and rejected...."
The Court has held that a state prisoner who has been afforded a full and fair opportunity to litigate a Fourth Amendment claim may not obtain federal habeas corpus relief on the ground that unlawfully obtained evidence had been introduced at his trial. Leon, 468 U.S. at 909, 104 S. Ct. at 3413 (citing Stone v. Powell, 428 U.S. at 489-495, 96 S. Ct. at 3050-3052). The Court declined to allow grand jury witnesses to refuse to answer questions based on evidence obtained from an unlawful search or seizure. Leon, id. (citing United States v. Calandra, 414 U.S. at 348, 94 S. Ct. at 620). And it has permitted the use in federal civil proceedings of evidence illegally seized by state officials. Leon, id. (citing United States v. Janis, 428 U.S. 433, 96 S. Ct. 3021, 49 L. Ed. 2d 1046). On the same day that Leon was decided, the Court held that the exclusionary rule did not apply in a deportation proceeding, a civil action, to bar the admission of the respondent's admission of illegal entry after an illegal arrest. INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S. Ct. 3479, 82 L. Ed. 2d 778.
B
The Supreme Court has not had squarely before it the question whether the exclusionary rule applies to probationary revocation proceedings. But its evaluation and rejection of the application of the rule to proceedings other than the criminal trial itself leads to a logical conclusion that, consistent with its other decisions, the rule would not generally apply to our revocation proceedings. We have learned, however, that it is not prudent to speculate about what the Supreme Court may do down the road, and we look for further support for our view.
The exclusionary rule is a remedial device and, accordingly, its application "has been restricted to those areas where its remedial objectives are thought to be most efficaciously served." Leon, 468 U.S. at 908, 104 S. Ct. at 3413 (quoting Calandra, 414 U.S. at 348, 94 S. Ct. at 620, and citing Powell, 428 U.S. at 486-487, 96 S. Ct. at 3048-49 and Janis, 428 U.S. at 447, 96 S. Ct. at 3028). "Close attention to those remedial objectives has characterized [the Court's] recent decisions concerning the scope of the Fourth Amendment exclusionary rule." Leon, id. Although, from time to time, various notions have been advanced as to the purpose of the rule, the Court "has established that the `prime purpose' of the rule, if not the sole one, `is to deter future unlawful police conduct.'" Janis, 428 U.S. at 446, 96 S. Ct. at 3028 (quoting Calandra, 414 U.S. at 347, 94 S. Ct. at 619, and citing United States v. Peltier, 422 U.S. 531, 536-539, 95 S. Ct. 2313, 2317-2318, 45 L. Ed. 2d 374 (1975)).
The rule is calculated to prevent, not to repair. Its purpose is to deter to compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it. Elkins v. United States, 364 U.S. 206, 217, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960).
Accord, Mapp, 367 U.S. at 656, 81 S. Ct. at 1692; Tehan v. United States ex rel Shott, 382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453 (1966); Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968). In sum, the rule is a judicially created remedy with a broad deterrent purpose, designed to safeguard Fourth Amendment rights generally through its deterrent effect. Calandra, 414 U.S. at 348, 94 S. Ct. at 620. "Jurists and scholars uniformly have recognized that the exclusionary rule imposes a substantial cost on the societal interest in law enforcement by its proscription of what concededly is relevant evidence." Janis, 428 U.S. at 448-449, 96 S. Ct. at 3029. In determining the application vel non of the rule in particular circumstances, the Supreme Court has adopted a balancing test. It weighs the costs and benefits of suppressing reliable physical evidence seized by officers, and this analytic approach has marked all of its decisions on the subject. We pointed out supra the interests of both the probationer and the State in revocation of probation proceedings. In making the decision whether to revoke probation the court must balance the competing interests of the community in safety with the rehabilitative goals of probation. Almost all of the federal courts have refused to exclude, in probation revocation proceedings, evidence obtained as a result of an illegal search and seizure. See cases collected in Annot., 30 A.L.R. Fed. 824 (1976 and October 1986 Supp.). A substantial majority of the state courts concerned with the "admissibility, in state probation revocation proceedings, of evidence obtained through illegal search and seizure," have generally held that evidence so obtained is admissible. See cases collected under that title in Annot., 77 A.L.R. 3d 636 (1977 and August 1986 Supp.). The Court of Special Appeals referred to Thompson v. United States, 444 A.2d 972 (D.C. 1982), which quoted United States v. Winsett, 518 F.2d 51 (9th Cir.1975), as illustrative. Chase, 68 Md. App. at 423, 511 A.2d 1128. Thompson, noting Winsett's belief that "it is extremely important that all reliable evidence shedding light on the probationer's conduct be available during probation revocation proceedings," 518 F.2d at 55 (emphasis in original), declared:
In determining whether to apply the exclusionary rule to probation revocation proceedings we must weigh the potential benefit deterrence of police misconduct which would result against the potential harm to the function of the probation and probation revocation system that would result from the exclusion of relevant evidence. 444 A.2d at 974.
Thompson followed the conclusion of "[t]he majority of jurisdictions ... that the deterrence which would result from applying the exclusionary rule in this context is outweighed by the need of the sentencing court for full and accurate information." Id. Hence the majority have "held the exclusionary rule inapplicable to probation revocation proceedings." Id.
Most of the law review articles, treatises and commentaries concerned with the exclusionary rule in this context appear to be in tune with the majority of the courts. See, e.g., W. LaFave and J. Israel, Criminal Procedure § 3.1(g) (1985), 1 W. LaFave, Search and Seizure § 1.7 (2d ed. 1987); 1 W. Ringel, Searches and Seizures, Arrests and Confessions, § 3.6(d) (2d ed. 1986); Cole, The Exclusionary Rule in Probation and Parole Revocation Proceedings: Some Observations on Deterrence and the "Imperative of Judicial Integrity" 52 Chi.-Kent L.Rev. 21 (1975); Note, The Exclusionary Rule in Parole Revocation Hearings: Deterring Official Infringement of Parolees' Fourth Amendment Rights, 1979 B.Y.U.L.Rev. 161 (1979); Note, The Exclusionary Rule in Probation and Parole Revocation: A Policy Appraisal, 54 Tex.L.Rev. 1115 (1976); Note, The Exclusionary Rule and Probation Revocation Proceedings, 11 Val.U.L.Rev. 149 (1976); Note, The Exclusionary Rule in Probation Revocation Hearings, 19 Wake Forest L.Rev. 845 (1983). We are convinced by our scanning of such works that the holding of the majority of the courts that the exclusionary rule does not apply to revocation proceedings is the correct one; and we are not persuaded otherwise by the rationale of the minority of the courts and scholars who favor the application of the rule to such proceedings.
So it is that we adopt the following general rule: In revocation of probation proceedings, the exclusionary rule does not apply to bar evidence illegally seized by the police from the probationer.
We adopt this general rule because we are satisfied that the prime purpose of the rule to deter police misconduct would not be fulfilled by applying it to such proceedings. We are confident that its application would be subversive of the goals of the probation system. The harm to that system would far outweigh the marginal deterrent effect, if there be any at all by applying the rule. We find that our view is amply supported. It reflects the rationale of the decisions of the Supreme Court. It is in accord with the holdings of the majority of the courts in other jurisdictions, federal and state. It is in harmony with the better reasoned conclusions of the scholars.
IV
We have seen that the validity of a revocation of probation proceeding is governed by the precepts of due process of law. Given compliance with those basic precepts outlined by Morrissey, 408 U.S. at 488-490, 92 S. Ct. at 2603-2605, and Gagnon, 411 U.S. at 786, 93 S. Ct. at 1761 (see Romano, 471 U.S. at 609-612, 105 S. Ct. at 2257-2558), and given that the police have illegally seized evidence from a probationer, we adopted a general rule that due process of law does not require that such evidence be suppressed at a revocation of probation hearing. In other words, the exclusionary rule does not ordinarily apply in such circumstances. "Where the official action was pursued in complete good faith ... the deterrence rationale loses much of its force," Leon, 468 U.S. at 919, 104 S. Ct. at 3418, Michigan v. Tucker, 417 U.S. 433, 447, 94 S. Ct. 2357, 2365, 41 L. Ed. 2d 182 (1974), Peltier, 422 U.S. at 542, 95 S. Ct. at 2320, and the rule we have adopted serves to admit the evidence.
Inherent in the characterization of our rule as a "general" one is the recognition that in particular circumstances the conduct of the police may be such as to call for the application of the exclusionary rule in revocation proceedings.
The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. Leon, 468 U.S. at 919, 104 S. Ct. at 3418 (quoting Tucker, 417 U.S. at 447, 94 S. Ct. at 2365, which was reiterated in Peltier, 422 U.S. at 539, 95 S. Ct. at 2318).
Therefore, when the officer has acted in bad faith and not as a reasonable officer would and should act in similar circumstances, the evidence should, in any event, be suppressed. Cf. Powell, 428 U.S. at 539-540, 96 S. Ct. at 3073.
We are not willing to assume that every time a person subjected to what ultimately is held to be an illegal search and seizure by a police officer proves to be on probation, that the officer acted in bad faith. We observe that police officers who violate the constitutional rights of citizens are subject to both state and federal penalties, and we note that such police officers are further subject to civil liabilities. In today's litigious climate, that is no idle threat. Cole postulates:
Since it is highly improbable that a particular suspect is a probationer, it is abundantly clear that the likelihood that constitutional police conduct will be fruitful is infinitely greater than is the likelihood that unconstitutionally obtained evidence will ever actually be available for use at a revocation hearing. 52 Chi.-Kent L.Rev. at 36-37.
Accordingly, Cole posits,
it cannot realistically be supposed that a police officer, no matter how venal he may be, will refrain from obeying the law, thereby losing vital case-in-chief evidence, in the vain hope that in exchange he may obtain evidence which can only be used "should it subsequently appear that the victim of such conduct was a [probationer]." The contrary arguments blink reality. Id. (footnotes omitted).
On the other hand, however, we did not adopt a rule that evidence obtained by an unreasonable search and seizure was per se admissible in revocation proceedings because we thought that it would derogate due process of law to presume conclusively that in such cases the police officer acted in good faith. Our rule affords the probationer the opportunity, upon due challenge, to establish that the officer, in fact, acted in bad faith, and gives the State the opportunity to establish that the officer, in fact, acted in reasonable good faith. The fact is to be resolved, of course, by the hearing judge on a preponderance of the evidence. "Good faith bad faith" in this context is not an esoteric concept. Leon and its progeny have deemed the good faith standard to be relevant and workable in relation to the exclusionary rule, and applied it. Thus, our general rule that the exclusionary rule does not apply to revocation of probation proceedings is modified to permit its application upon a showing that the police did not act in good faith in effecting the search and seizure.
The question remains how this showing is to be made. The Court of Special Appeals notion was that because it accepted as a general proposition that the exclusionary rule should not apply to revocation proceedings, the burden should be on the probationer to produce evidence showing a lack of good faith. Chase, 68 Md. App. at 426, 511 A.2d 1128. The court continued:
Once the [probationer] produces sufficient credible evidence that the officer did not act in good faith, however, the State must rebut that evidence and bear the burden of persuading the court that there was good faith. Id. (emphasis in original).
The intermediate appellate court thought that such an "approach ... makes the rule both fair and reasonable." Id. So do we.
Evidence concerning the officer's conduct which would be sufficient to call upon the State to rebut is credible evidence indicating prima facie to the satisfaction of the hearing judge that the officer's actions were not in accord with reasonable law enforcement activities but were prompted by improper motives. As the Court of Special Appeals pointed out, the standard of good faith "encompasses all aspects of the officer's actions how egregious the violation was, whether the officer knew the person was on probation or parole, what the circumstances were that led to the seizure." Id. It is clear in Leon that good faith must be evaluated on an objective, not a subjective basis. It declares that the exclusionary rule should not be applied "to deter objectively reasonable law enforcement activity." 468 U.S. at 919, 104 S. Ct. at 3418 (emphasis added). Leon notes:
We emphasize that the standard of reasonableness we adopt is an objective one. Many objections to a good-faith exception will turn on the subjective good faith of individual officers. "Grounding the modification in objective reasonableness, however, retains the value of the exclusionary rule as an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth Amendment." Id. n. 20 (citations omitted).
As we understand Chase's argument, he does not contend that the evidence found to have been illegally seized was prompted by bad faith on the part of the police. His basic claim, which we have rejected, is that the exclusionary rule applied in any event to revocation of probation proceedings. He urges that "a good faith standard can be justified only where the initial probable cause determination is made by a neutral and detached judicial officer." It is correct that, thus far, the Supreme Court has invoked the good faith exception to the exclusionary rule only when the police acted under color of a search warrant or a statute. But we repeat that the exception has been so considered only in the frame of reference of the State's case-in-chief at a criminal trial. We see nothing in Leon and its progeny which forestalls our view of the role good faith may play in the application of the exclusionary rule vel non to revocation proceedings when the sanctity of such proceedings are at stake and the purposes of probation are a vital consideration. A good faith evaluation of the officer's conduct, as we have pointed out, is in no wise restricted to his subjective belief that he acted on probable cause, and the motives behind his actions may be objectively determined.
In any event, as is our obligation when the infringement of a fundamental right is involved, we have made an independent constitutional appraisal of the entire record. We do not believe that the admission of the challenged evidence was fundamentally unfair, and thus due process of law was not thereby affronted. We see no sound reason why our general rule that in revocation proceedings, the exclusionary rule does not apply to suppress evidence secured in violation of the Fourth Amendment should not be invoked. We see no lack of good faith on the part of the officers in the circumstances here. Whether there was probable cause for Chase's arrest was a close call, at least arguable. One of the arresting officers not only did not know that he was on probation, but did not know him at all. There was no intimation that the other arresting officer knew Chase or was aware that he was on probation. There was no suggestion that the officers had theretofore harassed Chase. In short, there was no indication whatsoever that the arrest, search and seizure of Chase were other than a bona fide attempt to engage in proper law enforcement activity. We have seen that it was stipulated that the evidence would show that
[i]n fact, the reason for the apprehension was in order to prosecute [Chase] for what [the officers] believed to be a drug violation at that point in time.
This belief was objectively understandable. The arrest was not an arbitrary action but a rational response, in no way invidiously motivated, to the situation facing the officers at the time.
We hold that the revocation hearing court did not err in refusing to apply the exclusionary rule and that the judgments of the Court of Special Appeals were not erroneous.
JUDGMENTS AFFIRMED; COSTS TO BE PAID BY APPELLANT.
NOTES
[1] Suspension of the imposition or execution of sentence and the grant of conditional probation is authorized by Md.Code (1957, 1982 Repl. Vol., 1986 Cum.Supp.) Art. 27, § 641A.
The statute is implemented by Md.Rule 4-346.
[2] The Supreme Court sees no difference relevant to due process between the revocation of parole and the revocation of probation. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973) noted:
Despite the undoubted minor differences between probation and parole, the commentators have agreed that revocation of probation where sentence has been imposed previously is constitutionally indistinguishable from the revocation of parole. Id., 411 U.S. at 782 n. 3, 93 S. Ct. at 1759 n. 3.
[3] In Maryland, a charge that a probationer violated a condition of probation is tried before a judge. Rule 4-346(c) provides: "The hearing shall be held before the sentencing judge, whenever practicable." The charge is prosecuted by a State's Attorney.
Since the decision of the Court of Special Appeals in Laquay v. State, 16 Md. App. 709, 299 A.2d 527 (1973), the Office of the Public Defender has provided counsel to defend probationers who are indigent. See State v. Bryan, 284 Md. 152, 158 n. 5, 395 A.2d 475 (1978).
[4] The fact that the revocation of probation action is usually docketed in the underlying criminal cause does not indicate that the revocation action is criminal in nature. The use of the criminal docket is only a matter of convenience.
[5] Scott v. State, 238 Md. 265, 275, 208 A.2d 575 (1965), spoke of probation as "a matter of grace." Morrissey v. Brewer, 408 U.S. 471, 482, 92 S. Ct. 2593, 2601, 33 L. Ed. 2d 484 (1972), observed: "It is hardly useful any longer to try to deal with [probation] in terms of whether the [probationer's] liberty is a `right' or a `privilege."' Gagnon v. Scarpelli, 411 U.S. at 782 n. 4, 93 S. Ct. at 1760, n. 4, stated:
It is clear at least after Morrissey ..., that a probationer can no longer be denied due process, in reliance on the dictum in Escoe v. Zerbst, 295 U.S. 490, 492, 55 S. Ct. 818, 819, 79 L. Ed. 1566 (1935) that probation is an "act of grace."
It is in this respect that Scott may be said to be "weakened."
[6] Due process of law is also encompassed in both Article Nineteen and Article Twenty-four of the Maryland Declaration of Rights. See, e.g., Crawford v. State, 285 Md. 431, 404 A.2d 244 (1979).
[7] The opinion of the Court was delivered by White, J., joined by Burger, C.J., Blackmun, Powell, Rehnquist, and O'Connor, JJ. Blackmun, J., while joining the Court's opinion, filed a concurring opinion stating that the announced rule was provisional. Brennan, J., joined by Marshall, J., dissented on the ground that illegally obtained evidence is inadmissible by virtue of the Fourth Amendment. Stevens, J., dissented on the ground that there was no probable cause for the search and therefore it was unreasonable under the Fourth Amendment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2402586/ | 465 S.W.2d 786 (1971)
TEX-CRAFT BUILDERS, INC., et al., Appellants,
v.
ALLIED CONSTRUCTORS OF HOUSTON, INC., et al., Appellees.
No. 536.
Court of Civil Appeals of Texas, Tyler.
March 25, 1971.
Rehearing Denied April 22, 1971.
*788 Mays, Moore, Dickson & Roberts, Aubrey L. Roberts, Jr., Sweetwater, for appellants.
Sallas, Griffith & Meriwether, Joe E. Griffith, Crockett, for appellee National Standard Ins. Co.
Sallas, Griffith & Meriwether, Joe E. Griffith, Crockett, Landis, Gregory & Mullins, Buddy W. Gregory, Houston, for appellee Allied Constructors of Houston, Inc.
MOORE, Justice.
This is a suit by a subcontractor against a prime contractor and its surety upon a performance bond, wherein prime contractor filed a cross-action against subcontractor and its surety upon a performance bond. Appellant, Tex-Craft Builders, Inc.,[1] the prime contractor, contracted to construct a public housing project in the city of Crockett, Texas, with appellant, Continental Casualty Company of Chicago, Illinois, Inc.,[2] acting as surety upon Tex-Craft's performance bond. As prime contractor, Tex-Craft entered into a subcontract with appellee, Allied Constructors of Houston, Inc.,[3] for the concrete work, consisting of streets, parking areas, gutters, sidewalks, patio and house slabs, with appellee, National Standard Insurance Company, acting as surety upon Allied's performance bond. The subcontractor called for a total payment to Allied of the sum of $99,765.00 and was based upon an agreed schedule of unit prices and the amount of concrete furnished. Allied alleged that in addition to the specific unit prices agreed upon, the contract also provided that Tex-Craft had authority to require changes, deviations and additions to the work; that in the event such changes and additions were made, it was agreed that the contract price was to be adjusted accordingly; that Tex-Craft subsequently made certain changes and additions and refused to pay Allied the sum of $65,365.63 due and owing under the terms of the contract. Tex-Craft answered with a general denial, denying that it owed Allied any amount of money upon the contract and also filed a cross-action against Allied alleging that Allied failed and refused to perform its contract according to the schedule of unit prices; that as a result Tex-Craft was required to complete the concrete work called for in the contract at a cost of $53,470.00 for which amount Tex-Craft prayed judgment over against Allied and the surety on its performance bond.
After a trial before the court, sitting without a jury, the trial judge entered judgment in favor of Allied against Tex-Craft and Continental, jointly and severally, for the sum of $25,219.11 and denied Tex-Craft any relief upon its cross-action. *789 From said judgment, Tex-Craft and Continental have perfected this appeal.
Findings of fact and conclusions of law were filed by the trial judge. Among other things, the court found that (a) the contract between Tex-Craft and Allied provided that Tex-Craft could require changes in, deviations from, additions to and omissions from the work therein contracted, and, that in such event, the contract price would be adjusted accordingly; (b) Continental Casualty Company of Chicago, Illinois, executed, as surety, for Tex-Craft, a performance bond which provided that all claimants thereunder would have a direct right of action against the surety; (c) Allied commenced work under the terms of said contract with Tex-Craft shortly after the execution thereof and performed its work under the terms of said contract in accordance with the terms thereof and in good workmanlike manner until Tex-Craft unilaterally undertook to complete certain remaining portions of the work provided for under said contract to be done by Allied; (d) Allied substantially performed its said contract with Tex-Craft and completed numerous, expensive extras and changes to said contract. Additionally, Allied was at all times ready, willing and able to perform its contract with Tex-Craft; (e) the work performed by Allied pursuant to its contract with Tex-Craft was in accordance with the plans and specifications provided for in such contract and in Tex-Craft's contract with the housing authority with the city of Crockett, except only in those instances where changes, extras, alterations or additions were required of Allied by Tex-Craft; (f) in late August, 1965, W. J. Grierson, Allied's president, conferred with Mr. Turner in the bonding department of Continental Casualty Company of Chicago, Illinois, concerning his company's future prospect for payment from Tex-Craft, and was advised that if Continental was the surety on the bond, there would be no problem with payment and that Mr. Grierson should not worry about it; (g) Continental had repeated actual notice and knowledge of Allied's specific claim by virtue of being furnished with the original, and/or copies of correspondence from either Tex-Craft, Allied or the housing authority of the city of Crockett; (h) Duane Fossler, vice president of Tex-Craft, talked to representatives of Continental and fully advised and notified them of the claim of Allied and the billings received from Allied as they were received; (i) Continental received, prior to Tex-Craft's assumption of the remaining work under the contract, a full itemization of the work done by Allied, the dates thereof, the amounts thereof and all lawful offsets, credits and payments; and (j) there remains due and owing to Allied by Tex-Craft for work performed under the terms of said contract, after all offsets, payments and credits the sum of $25,219.11. In the conclusions of law, the court found that (1) Allied substantially performed its contract with Tex-Craft; (2) Tex-Craft, without cause, breached its contract with Allied by failure to make payments as agreed upon and by unilaterally undertaking to complete the terms of Allied's contract with it; (3) because of its conduct, Continental Casualty Company of Chicago, Illinois (Continental) is estopped from claiming a lack of adequate notice of Allied's claim against Tex-Craft and Continental; (4) Continental had repeated, actual, timely, substantial and sufficient notice of Allied's claim against Tex-Craft and Continental; (5) Continental waived any further compliance with the notice provisions of Article 5160, Vernon's Ann.Civ.St., regarding Allied's said claim; (6) Allied substantially complied with the notice requirements of Article 5160, V.A.C.S., in making its claim against Tex-Craft and Continental; (7) Allied instituted its suit against Tex-Craft and Continental within the time prescribed by law; (8) after all just and lawful offsets, payments and credits, there remains unpaid to Allied by Tex-Craft under the provisions of thier contract, the sum of $25,219.11, for which sum both Tex-Craft and Continental are liable to Allied and Allied is entitled to judgment in such amount together with interest thereon *790 on and costs of court against both Tex-Craft and Continental; and, (9) neither Allied nor National Standard Insurance Company, Cross-defendants, have any liability to either Tex-Craft or Continental.
Appellants bring forward numerous points of error attacking the trial court's findings on the ground that such findings were not supported by the evidence. By that first group of points, they contend (a) that there is no evidence to support the trial court's findings that Allied substantially performed the contract and (b) that there is no evidence that Allied was prevented from completing the contract due to the wrongful acts of Tex-Craft.
In determining the "no evidence" points, we are required to follow the elementary rule that if the record contains any evidence of probative force to support the trial court's findings, such findings may not be disturbed on appeal. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97, 99. In determining whether such findings are supported by any evidence of probative force, we must give credence only to the evidence favorable to the findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex., 1965).
The record before us does not disclose whether the judgment in favor of Allied is based upon the finding that Allied substantially performed the contract, or was prevented from doing so by the wrongful acts of Tex-Craft, or whether the judgment of $25,219.11 was awarded to Allied for extra work performed at the request of Tex-Craft. It is undisputed, however, that Allied did not complete the contract. According to the undisputed evidence, Allied completed only about 75-85% of the work. Allied admits that while the contract called for the laying of 68 building slabs containing a total of 95,046 square feet, Allied laid only 58,037 square feet. It was also admitted that although the contract called for 66,800 square feet of sidewalk, only 41,826 square feet was laid. Under these circumstances we cannot agree with the finding that Allied substantially performed its contract. While "substantial performance" of a building contract does not mean an exact performance in every slight and unimportant detail, it means a performance of all important particulars and permits only such omissions or deviations from the contract as are inadvertent and unintentional, and are not due to bad faith, do not impair the structure as a whole, and are remedial without doing material damage to the other parts of the construction project. 10 Tex.Jur.2d, Building Contracts, sec. 21, p. 25; Atkinson v. Jackson Bros., 270 S.W. 848 (Tex.Com.App.). It thus appearing that the contract had not been substantially performed in accordance with the above equitable principles, we agreed with appellants' contention that the trial court's judgment cannot be sustained upon such theory.
Appellants further assert that the judgment cannot be sustained upon the theory that appellant prevented appellee from completing its contract because they say the evidence shows without dispute that Allied abandoned its contract. When viewed in a light most favorable to Allied, the evidence shows that Allied had completed approximately 81% of the concrete work at the time it ceased work. According to Allied, the reason it took its men off the job was because Tex-Craft had failed to prepare the ground work for the concrete. W. J. Grierson, Allied's president, testified that at the time he took his cre off the job in the latter part of October, 1965, he advised Tex-Craft that he would return and complete the job just as soon as the preparatory ground work was completed by Tex-Craft. He admitted that Tex-Craft later contacted him requesting him to return and finish the work. He testified, however, that on each occasion, he found that Tex-Craft had not done the preparatory ground work so that the concrete could be laid, or at least they had performed only a very small part thereof so that he could not bring his crew back and do the job on a piecemeal basis. Finally, he testified that upon a subsequent inspection visit to the job, he found *791 that Tex-Craft, without his knowledge or consent, had poured a substantial part of the remaining concrete work required under Allied's contract.
The rule is well settled that there may be a recovery on the contract for part performance of an entire contract if complete performance has been prevented by the other party. 17 Am.Jur.2d, p. 826; Trahan v. Federal Sign Company of Texas, 412 S.W.2d 814 (Tex.Civ.App., Houston, 1967, n. w. h.). Stated in another way, where a party in whose favor something is to be done prevents that performance and the other party is not in default, a recovery may be had as if the act had been performed. Dodds & Wedegartner, Inc. v. Reed, 69 S.W.2d 165 (Tex.Civ.App., Dallas, 1934, writ dism.); Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744 (1937); Davis Bumper to Bumper, Inc. v. American Petrofina Company of Texas, 420 S.W.2d 145 (Tex.Civ.App., Amarillo, 1967, ref., n. r. e.).
As we view the record, there is some evidence of probative force to sustain the finding that Tex-Craft prevented the full performance of the contract. It is without dispute that Tex-Craft with the consent of Allied performed work called for by the contract. The evidence offered by Allied shows that as of November 3, 1965, it had performed specific items of work required by the contract as well as extra work requested by Tex-Craft in the total sum and amount of $137,298.29. Of this amount, Allied admitted that Tex-Craft had paid the sum of $67,762.54. Thus, according to the evidence adduced by Allied, evidenced by Allied's itemized bill of November 3, 1965, there was a balance due and owing it on said date in the amount of $69,535.75. While Tex-Craft disputed many of the items contained in the itemized invoice and claimed back charges for concrete work required to be corrected, nevertheless Tex-Craft, in response to Allied's bill of November 3rd, advised Allied, by letter, that based upon official reports of the housing authority and the architect's estimate of total gross progress to that date, Allied was due the sum of $85,197.52 of which $67,516.52 had been paid. Thus, this evidence, viewed in a light favorable to the findings, indicates an admission on the part of Tex-Craft that as of that date, Allied was due something in excess of $17,000.00. While we recognize that much of the evidence is conflicting, we nevertheless believe that there is at least some evidence of probative force to support the trial court's findings that Allied was entitled to compensation by reason of the fact that it was prevented from performing the contract as well as for compensation for extra work performed. Appellants' no evidence points are accordingly overruled.
After a review of the entire record, and upon weighing all of the evidence, both that in favor of and against the findings and judgment, we have concluded that appellants' proposition that the judgment is against the overwhelming weight and preponderance of the evidence is without merit.
It follows, therefore, that if Allied was prevented from performing its contract and entitled to recover on that basis, Tex-Craft would not be entitled to recover any of the amounts alleged to have been expended by it in completing the contract as sued for in its cross-action. Accordingly, all of appellants' points asserting that the evidence shows, as a matter of law, that Tex-Craft was entitled to recover for work performed in completing the contract are overruled. As to Tex-Craft's claim for back charges for work corrected, the trial court, by refusing to make findings thereon, apparently concluded that Tex-Craft failed to establish its claim by a preponderance of the evidence. We are not prepared to hold that the record shows that such claims were established as a matter of law. Appellants' points so contending are overruled.
By other points of error, appellants complain of the action of the trial court in refusing to make additional requested findings *792 of fact. As we view the record, these points are without merit. In the first place, each of such requested findings calls for findings upon evidentiary matters and not for findings of ultimate fact issues. The cases are legion holding that the trial court is not required to make findings upon facts which are merely evidentiary. Secondly, the record before us contains a full statement of facts. The refusal by the court to make such additional findings has not, and will not, in any way prevent appellants from making a proper presentation of their case in this court since the statement of facts includes all of the evidence adduced at the trial. Appellants have not attempted to demonstrate how the refusal to make such additional findings resulted in any harm to them and therefore the error, if any, is harmless. Rule 434, Texas Rules of Civil Procedure; Adams v. Houston Belt & Terminal Railway Company, 405 S.W.2d 838 (Tex.Civ.App., Houston, 1966, n. w. h.); Blair v. Blair, 434 S.W.2d 943, 948 (Tex.Civ.App., Dallas, 1968, n. w. h.).
We turn now to the points of error presented by appellant, Continental, challenging the judgment against it as surety. Continental attacks the judgment against it on the grounds that there was no evidence and that the evidence was factually insufficient to support the finding that Continental had "notice" of Allied's claim as required under the provisions of Article 5160, V.A.C.S., sec. B(a).
The statute provides, in substance, that as a condition precedent to suit against the surety, the claimant shall, within 90 days, after the 10th day of the month next after furnishing labor or material, notify the prime contractor by certified or registered mail of his claim, and shall accompany such notice with a sworn statement, stating that the amount claimed is just and correct and all lawful offsets, payments and credits have been allowed. It is undisputed that at no time did Allied ever serve Tex-Craft or Continental with any notice or sworn statement of its account by registered mail as required by the statute. Continental was not joined as a party to the suit until approximately one year after Allied instituted suit against Tex-Craft.
While Allied does not contend it gave Continental notice by certified or registered mail, Allied urges the judgment must be sustained because Continental had actual knowledge of the claim. Therefore Allied argues that there was substantial compliance with the statute. In this connection the record shows that Allied forwarded Continental a copy of the itemized statement dated November 3rd furnished Tex-Craft. The statement was in the form of an invoice or bill. Neither the original furnished Tex-Craft nor the copy forwarded to Continental was sworn to as required by statute. Allied adduced other testimony showing that a vast amount of correspondence between Allied, Tex-Craft and the housing authority concerning Allied's claim was forwarded to Continental. None of these items however was sent by registered or certified mail. Insofar as we have been able to determine there is nothing in the record showing that any of the correspondence was properly addressed and actually posted in the mail. Moreover there is nothing in the record showing that Continental ever received the itemized bill or any of the correspondence. Consequently we cannot agree with the trial court's finding that Continental had actual knowledge of the claim by reason of the correspondence allegedly forwarded by mail, nor do we believe that the various telephone conversations between officials of the housing authority and Continental concerning Allied's claim were sufficient to charge Continental with actual knowledge of the claim. As we construe the testimony, the telephone conversations did nothing more than advise Continental that a controversy existed. Under the circumstances we no not believe the evidence sufficient to establish actual knowledge of the details of the claim as required by the statute.
Allied further urges that the judgment must be sustained on the basis of the trial court's finding of waiver and estoppel *793 on the part of Continental. In this connection, Allied claims that Continental waived the requirement of notice and is estopped to deny notice because of a certain telephone conversation between Mr. Grierson, its president, and a Mr. Turner who he identified as being in the bonding department of Continental. The evidence shows that sometime in August, 1965, Mr. Grierson heard rumors concerning the solvency of Tex-Craft and became concerned about his company's future prospect for payment. He heard that Continental was the surety on the bond and called Continental's office in Houston, Texas and talked to a Mr. Turner. As we understand his testimony relating to the conversation, there was some question on the part of Mr. Turner as to whether or not Continental was the surety on that particular job. At any rate Mr. Grierson testified that Mr. Turner advised him that if Continental was the surety on the bond he had nothing to worry about; that it would be taken care of. Nowhere in his testimony does he say that he told Continental that he was making a claim or state the amount thereof. Moreover the telephone conversation took place several months before Allied delivered Tex-Craft its itemized statement of account. Insofar as we have been able to determine the telephone conversation is the only evidence that Continental ever said or did anything regarding Allied's claim.
It has been held that compliance with the notice provisions of Article 5160 may be waived. General Insurance Company of America v. Smith and Wardroup, Inc., 388 S.W.2d 262 (Tex.Civ.App., Amarillo, 1965, ref., n. r. e.). Waiver depends solely on what the obligor does; estoppel depends on what he has caused his adversary to do. Graham v. San Antonio Machine and Supply Corporation, 418 S.W.2d 303 (Tex.Civ.App., San Antonio, 1967, ref., n. r. e.). A waiver of strict compliance with the notification requirements of Article 5160 occurs when the surety after receiving a defective or improper notice has by its own affirmative acts and conduct created an impression that the notice given is adequate, i. e., the surety makes some response to the defective notification. United Benefit Fire Insurance Company v. Metropolitan Plumbing Company, 363 S.W.2d 843 (Tex.Civ.App., El Paso, 1962, n. w. h.).
As we view the record, there is no evidence that Continental ever did anything or said anything indicating any intention to relinquish its right to insist upon notice of the claim as required by the statute, nor have we been able to find anything in the record showing that Continental did or said anything leading Allied to believe that a notice of claim would not be required thereby causing Allied to fail to file its claim.
Allied had the burden of establishing notice as provided for under the statute. H. Richards Oil Company v. W. S. Luckie, Inc., 391 S.W.2d 135 (Tex.Civ.App., Austin, 1965, ref. n. r. e.). In the absence of any evidence showing either statutory or actual notice and in the absence of any evidence raising either the issue of waiver or estoppel, Allied's proof fails to establish a cause of action against Continental. Accordingly that portion of the trial court's judgment entered against Continental must be reversed and rendered in favor of Contimental. In other respects the judgment is affirmed.
Affirmed in part and reversed and rendered in part.
NOTES
[1] Hereinafter referred to as "Tex-Craft."
[2] Hereinafter referred to as "Continental."
[3] Hereinafter referred to as "Allied." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/31671/ | United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2003
Charles R. Fulbruge III
Clerk
No. 02-40760
Conference Calendar
R. WAYNE JOHNSON,
Plaintiff-Appellant,
versus
JANA WHATLEY, Judge; JOEL B. JOHNSON, Judge;
CHARLES ELDRED,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CV-107
--------------------
Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
R. Wayne Johnson, Texas prisoner # 282756, seeks leave to
proceed in forma pauperis (IFP) following the district court’s
certification that his appeal from the dismissal of his 42 U.S.C.
§ 1983 complaint was frivolous. In his 42 U.S.C. § 1983
complaint, Johnson challenged the constitutionality of TEX. CIV.
PRAC. & REM. CODE ANN. § 11.101 and sought declaratory and
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-40760
-2-
injunctive relief. As an initial matter, Johnson’s motion to
file a supplemental brief is GRANTED.
By seeking IFP status in this court, Johnson is challenging
the district court’s certification that his appeal is not taken
in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). Johnson has failed to show that the district court abused
its discretion in finding that his complaint was barred by the
Younger** abstention doctrine. See Middlesex County Ethics Comm.
v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982); Nationwide
Mut. Ins. Co. v. Unauthorized Practice of Law Comm., 283 F.3d
650, 652 (5th Cir. 2002). Nor has he shown that the state court
contempt proceeding was undertaken in bad faith or with an intent
to harass him. See Younger, 401 U.S. at 56; Perez v. Ledesma,
401 U.S. 82, 85 (1971).
Johnson has failed to show that he will present a
nonfrivolous issue on appeal. Accordingly, the district court’s
order certifying that the appeal is frivolous is upheld,
Johnson’s request for IFP status is DENIED, and his appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH
CIR. R. 42.2. The dismissal of his complaint and appeal as
frivolous each count as one strike for purposes of 28 U.S.C.
§ 1915(g), and he has already received two strikes as a result of
the dismissal of his 42 U.S.C. § 1983 complaint and appeal as
frivolous in Johnson v. Tepper, No. 02-51232 (5th Cir. March 31,
**
Younger v. Harris, 401 U.S. 37 (1971).
No. 02-40760
-3-
2003)(unpublished). See Adepegba v. Hammons, 103 F.3d 383, 388
(5th Cir. 1996). Therefore, Johnson has accumulated four
“strikes” under 28 U.S.C. § 1915(g), and he is BARRED from
bringing any civil action or appeal IFP while he is incarcerated
or detained in any facility unless he shows that he is under
imminent danger of serious physical injury. Johnson’s motion for
appointment of counsel is DENIED.
MOTION TO FILE SUPPLEMENTAL BRIEF GRANTED; IFP DENIED;
APPEAL DISMISSED; THREE-STRIKES BAR IMPOSED; MOTION FOR
APPOINTMENT OF COUNSEL DENIED. | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3344571/ | Upon the argument of this demurrer the right was reserved by plaintiff to file a brief in support of her contention. This reservation was overlooked by the Court and a decision filed without the assistance of that brief.
When the situation was called to the attention of the Court the decision was withdrawn and the brief accepted. *Page 455
In the original memorandum reliance was placed on a decision of Judge Ells of our Court sustaining a demurrer in a similar case. Since the decision of Judge Ells the Court of Appeals of New York, in the case of Mertz vs. Mertz,271 N.Y. 466, has considered the effect of our law allowing a wife to sue her husband, in New York State, where a disability attaches to both husband, and wife, for an injury sustained in Connecticut. Among other things the New York Court said (p. 469): "A trespass, negligent or willful, upon the person of a wife, does not cease to be an unlawful act though the law exempts the husband from liability for the damage." The Court said further (p. 470): "A cause of action for personal injuries is transitory. Liability follows the person and may be enforced wherever the person may be found."
The Court also said (p. 471), and our Court is in accord with this principle, that "the test of a right to resort to the courts of this State for enforcement of a foreign right exists `unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep rooted tradition of the common weal'."
Also, the New York Court announced (p. 473) that "the law of the forum determines the jurisdiction of the courts, the capacity of parties to sue or to be sued, the remedies which are available to suitors and the procedure of the courts."
If the unlawful act has not ceased to be such and the action is transitory and the law of the forum accords a wife the right to sue her husband and it is not against our public policy, then it is difficult to see the merits of the demurrer and I am constrained to reverse my original impressions and consequently overrule the demurrer. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1563593/ | 16 So. 3d 1028 (2009)
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant,
v.
Steven FISCHER, Appellee.
No. 2D08-589.
District Court of Appeal of Florida, Second District.
September 9, 2009.
*1030 Robert H. Oxendine and Edwin Valen of Oxendine & Oxendine, P.A., Tampa, for Appellant.
Kevin B. Weiss of Weiss Legal Group, P.A., Maitland, for Appellee.
SILBERMAN, Judge.
State Farm Mutual Automobile Insurance Company appeals a summary judgment and a final declaratory judgment entered in favor of Steven Fischer. Because the trial court erred in determining that an ambiguity existed in the insurance policy at issue and that Mr. Fischer is entitled to medical expense coverage under his parents' insurance policy with State Farm as a matter of law, we reverse and remand for further proceedings.
On March 19, 2006, Mr. Fischer was a passenger in a car being driven by his friend. They were involved in an automobile accident, resulting in injuries to Mr. Fischer. Mr. Fischer's parents owned the car and insured it with State Farm. The insurance policy included $10,000 in personal injury protection ("PIP") coverage and $50,000 in medical expense coverage. As a result of Mr. Fischer's injuries, State Farm paid the $10,000 in PIP coverage to Mr. Fischer's health care providers, but it denied Mr. Fischer's demand for payment of medical expenses in excess of $10,000.
Mr. Fischer filed a declaratory judgment action against State Farm, seeking a determination that he was entitled to the medical expense coverage under his parents' policy. He also requested a determination that State Farm was obligated to pay pre-judgment interest on benefits not timely paid and his reasonable attorney's fees and costs. State Farm denied that Mr. Fischer was entitled to the medical expense coverage on the basis that he "was not a resident relative of the named insured at the time of the accident."
The insurance policy provides that it will pay medical expenses for bodily injury sustained by the first person named in the declarations, his or her spouse, and their relatives. Concerning medical expense coverage, the policy defines "relative" as "a relative of any degree by blood or by marriage who usually makes his home in the same family unit, whether or not temporarily living elsewhere." (Emphasis added.)
Mr. Fischer filed a motion for final summary judgment, arguing that there were no genuine issues of material fact and that his entitlement to medical expense coverage could be decided as a matter of law. He argued that the applicable definition of "relative" in the policy was ambiguous and must be construed to extend coverage to him. In support of his motion, he filed his deposition and the depositions of his parents.
The deposition testimony established that at the time of the accident, Mr. Fischer lived in a mobile home some three to four miles away from his parents' home. He purchased the mobile home in 1998. The mortgage for the mobile home and the lot lease were in his name, as were the electric and water bills. Mr. Fischer received mail at his home, including the mortgage, electric, and water bills. However, he received some mail at his parents' home address. At various times during the eight years that he lived in his mobile home, he rented a room in the mobile home to others.
Mr. Fischer has a learning disability, and he worked sporadically in the construction industry. He had financial difficulties, and his parents paid many of his debts. His mother testified that they paid 95% of his bills, and his father stated that Mr. Fischer paid part of his bills some of *1031 the time. If Mr. Fischer could not pay his bills, his parents would pay them. Mr. Fischer's parents purchased a truck for him and paid for significant repairs to the truck. They also paid for the furniture that Mr. Fischer had purchased on credit.
Mr. Fischer's mother took him to the grocery store and purchased groceries for him about once a month. Mr. Fischer visited his parents' home two to four times a month and sometimes ate meals there. During the eight years that he lived in his mobile home, he spent the night at his parents' home a total of three or four times.
After a hearing on Mr. Fischer's motion for summary judgment, the trial court concluded, without explanation, that the applicable definition of "relative" in the insurance policy was ambiguous and that "the undisputed facts of this case require an interpretation in favor of coverage under the medical payment provisions." On that basis, the trial court granted summary judgment and then entered a final judgment in Mr. Fischer's favor.
State Farm argues that the trial court erred in concluding that the policy language is ambiguous. It contends that there is no ambiguity in the definition of the term "relative" and that the pertinent policy language is readily understood. It notes that the definition of "relative" applicable to the policy's no-fault coverage and medical expense coverage, quoted above, is in all material respects identical to the definition of "relative residing in the same household" found in section 627.732(6), Florida Statutes (2005), which is part of the Florida Motor Vehicle No-Fault Law.[1]See § 627.730. However, State Farm concedes that a factual dispute exists as to whether Mr. Fischer was a relative within the meaning of the policy.
Mr. Fischer responds that State Farm's definition of "relative" is ambiguous because State Farm did not define the term "family unit" or the phrases "usually made his home in the same family unit" or "whether or not temporarily living elsewhere." Alternatively, he contends that even if the policy is not ambiguous, the judgment should be affirmed based on the evidence that he presented in support of his motion for summary judgment.
Our standard of review is de novo. State Farm Mut. Auto. Ins. Co. v. Colon, 880 So. 2d 782, 783 (Fla. 2d DCA 2004). Insurance contracts, like other contracts, "should receive a construction that is reasonable, practical, sensible, and just." Gen. Star Indem. Co. v. W. Fla. Vill. Inn, Inc., 874 So. 2d 26, 29 (Fla. 2d DCA 2004); see also The Doctors Co. v. Health Mgmt. Assocs., Inc., 943 So. 2d 807, 809 (Fla. 2d DCA 2006) (quoting Gen. Star for same). "Terms used in a policy should be read in light of the skill and experience of ordinary people." Gen. Star, 874 So.2d at 29; see also Auto-Owners Ins. Co. v. Above All Roofing, LLC, 924 So. 2d 842, 847 (Fla. 2d DCA 2006) (citing Gen. Star for same). In addition, "in construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect." Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla.2000).
"If the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and [] another limiting coverage, the insurance policy is considered ambiguous. Ambiguous policy provisions are interpreted liberally *1032 in favor of the insured and strictly against the drafter who prepared the policy." Id. (citations omitted). But, "the rule of liberal construction in favor of the insured applies only when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction," and the fact that a policy fails to define an operative term does not, by itself, create an ambiguity. Gen. Star, 874 So.2d at 30. "When the insurer has not defined a term, the common definition of the term should prevail." Above All Roofing, 924 So.2d at 847.
We cannot agree with the trial court's conclusion that the definition of "relative" contained in the policy is ambiguous. The policy language, including the definition of "relative," is readily understood as providing medical expense coverage to a person related by blood or marriage to the named insured who usually makes his or her home with the named insured. Coverage would not be precluded if the person is temporarily living elsewhere. Although certain phrases within the disputed policy provision are not specifically defined, those phrases are readily understood within the context of the full provision. Further, the definition as a whole is not ambiguous or fairly susceptible to more than one meaning. Accordingly, the trial court's determination that an ambiguity existed cannot be upheld.
Mr. Fischer contends that apart from any ambiguity, the facts contained in the record support summary judgment in his favor. State Farm maintains that factual issues remain to be resolved. The parties do not dispute that Mr. Fischer is related to his parents "by blood or by marriage." However, they disagree as to whether Mr. Fischer "usually makes his home in the same family unit, whether or not temporarily living elsewhere." A number of Florida cases have addressed whether an individual qualifies as a "[r]elative residing in the same household."
In construing the terms "household" or "residency" under an insurance policy several courts, including this one, have observed there are three material aspects, including: "(1) close ties of kinship, (2) fixed dwelling unit, and (3) enjoyment of all the living facilities." Dwelle v. State Farm Mut. Auto. Ins. Co., 839 So. 2d 897, 899 (Fla. 1st DCA 2003); see also Kepple v. Aetna Cas. & Sur. Co., 634 So. 2d 220, 221-22 (Fla. 2d DCA 1994) (recognizing same). A number of cases have held that the concept of household does not require an individual to live at the same physical address as the insured relative. See, e.g., Patterson v. Cincinnati Ins. Co., 564 So. 2d 1149, 1151 (Fla. 1st DCA 1990) (noting that "it is not essential that the insured and the person claiming under the insured's policy actually live within the same structure"); Alava v. Allstate Ins. Co., 497 So. 2d 1286, 1287 (Fla. 3d DCA 1986) (acknowledging that recent case law "approves of a variety of family arrangements which extend beyond the physical parameters of the house"); Sutherland v. Glens Falls Ins. Co., 493 So. 2d 87, 89 (Fla. 4th DCA 1986) (recognizing that "one can remain a resident of one's former household while trying out different living accommodations"); Am. Sec. Ins. Co. v. Van Hoose, 416 So. 2d 1273, 1274 (Fla. 5th DCA 1982) (noting "that an insurance policy in some situations covers one who is not physically within the same house as the named insured"). Finally, this court has recognized that "[a] determination of residency involves consideration of both fact and intention." Colon, 880 So.2d at 783.
Here, the evidence established that Mr. Fischer had close ties of kinship with his parents and was financially supported by them to a significant degree. However, he was not physically living with them at *1033 the time of the accident and was not living in his mobile home on merely a temporary basis. Instead, he maintained his residence separate from his parents and had been living at that residence for years, and he did not establish that he had full enjoyment of his parents' home or that he ever intended to live there again. See Van Hoose, 416 So.2d at 1275-76 (recognizing that although the father provided significant financial support for the daughter's expenses, "this fact alone is not sufficient to show a joint household," and determining that "the daughter gave sufficient indicia of having a separate household, such as putting the electric in her name, having the lease for the original house in her name, and putting that address down for job applications and on federal income tax forms").
When the evidence with respect to residence points in either direction, the issue is for the trier of fact. Patterson, 564 So.2d at 1151; Sutherland, 493 So.2d at 89. However, when the facts are not disputed, "whether the facts fit within the insurance policy definition is a question of law that may be decided on appellate review." Colon, 880 So.2d at 783. Our record does not include a transcript of the hearing on the motion for summary judgment or any response by State Farm to Mr. Fischer's motion. State Farm did not seek summary judgment in the trial court and did not submit any evidence in opposition to Mr. Fischer's motion. Instead, it simply relied upon the evidence of record to argue that summary judgment should not be granted. On appeal, State Farm has not suggested that it is entitled to summary judgment. Rather, in its briefing and at oral argument it maintained its position that factual issues exist as to whether Mr. Fischer may qualify as a relative for purposes of medical expense coverage.
After fully reviewing the record and the arguments, we conclude that the trial court erred in determining that the insurance policy is ambiguous. Therefore, we reverse the summary judgment and the final declaratory judgment. And, based on the record and State Farm's concession that factual issues remain for resolution, we remand for further proceedings.
Reversed and remanded.
VILLANTI, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.
NOTES
[1] Section 627.732(6) provides as follows: "`Relative residing in the same household' means a relative of any degree by blood or by marriage who usually makes her or his home in the same family unit, whether or not temporarily living elsewhere." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563599/ | 558 S.W.2d 924 (1977)
ANDERSON DEVELOPMENT COMPANY, INC., et al., Appellants,
v.
PRODUCERS GRAIN CORPORATION, Appellee.
No. 5069.
Court of Civil Appeals of Texas, Eastland.
November 17, 1977.
Rehearing Denied December 8, 1977.
*925 James H. Milam, Crenshaw, Dupree & Milam, Lubbock, Graddy Tunnell, La Font, Tunnell, Formby, La Font & Hamilton, Plainview, for appellants.
Don M. Dean, Underwood, Wilson, Sutton, Berry, Stein & Johnson, Amarillo, Lucian E. Morehead, Morehead, Sharp, Tisdel & White, Plainview, for appellee.
WALTER, Justice.
Producers Grain Corporation recovered a judgment against Anderson Development Company, Inc. also known as and doing business as Anderson Cattle Company and Anderson Cattle Company, Inc. for $286,760.54 on a contract for the sale of cattle. Anderson has appealed.
On December 6, 1974, Producers, as seller, entered into a contract for the sale of 2,000 head of cattle with Anderson, as purchaser. The contract stipulated delivery to Anderson and payment by draft on Anderson through the Frost National Bank of San Antonio, Texas.
On December 11, 1974, Anderson entered into a contract with American Beef Packers for the sale of 1,506 head of cattle that Anderson purchased from Producers. Producers did not participate in the negotiation of this contract. After Anderson and American Beef executed the contract, Russell Center of Anderson showed the contract to Grover Phillips of Producers. When asked by Center if American Beef could receive the cattle and send checks to Producers, Phillips replied, "That's fine".
The 1,506 head of cattle were delivered to American Beef. American Beef's checks for the cattle were dishonored when presented for payment.
On January 7, 1975, American Beef filed petition seeking relief under Chapter XI of the Bankruptcy Act. On February 7, 1975, Producers and Anderson entered into a nonwaiver agreement whereby any actions taken by Producers against American Beef in the bankruptcy proceeding would not be deemed an election of remedies or affect any rights which Producers has against Anderson. The agreement also provided:
*926 "Producers Grain Corporation agrees, however, that any sum or sums which it may collect by or through the aforesaid actions shall be taken and held by it as a credit on any obligation of Anderson Development Company, Inc...."
Producers' claim in bankruptcy was approved in the amount of $560,109.21. Payment was to be made according to the Plan of Arrangement approved by Producers, 55 percent of said claim in cash ($308,060.06) and a deferred payment of the balance of 45 percent.
The only issue submitted and the jury's answer and the court's instructions are as follows:
"Do you find from the preponderance of the evidence that on or about the 11th day of December, 1974, the Producers Grain Corporation, the American Beef Packers, Inc. and the Anderson Cattle Company each and all agreed that the Producers Grain Corporation would substitute the obligation of the American Beef Packers, Inc. to pay for a thousand five hundred and six head of Holstein steers instead of the obligation of the Anderson Cattle Company to pay for them.
ANSWER: `YES' or `NO'
ANSWER: NO
You are instructed that to effectuate the substitution of a new obligation between the parties for the old obligation there must be consent and agreement of all parties that the new obligation would operate as a discharge of the old obligation of the Anderson Cattle Company to pay for the cattle. It is not necessary that such agreement and consent to accept the new obligation instead of the first obligation be in writing or that it be evidenced by express words but may be proved from the acts and conduct of the parties and other facts and circumstances in evidence."
In its judgment, the trial court ordered Producers to apply any payment under the Plan of Arrangement first to the cost of the court, then to interest accrued under the judgment and thereafter to the payment of the principal sum of the judgment. Upon payment in full of the judgment, Producers must assign to Anderson all of its then existing rights under the Plan of Arrangement.
Anderson's contention the evidence establishes a valid accord and satisfaction as a matter of law cannot be sustained. In George Linskie Company v. Miller-Picking Corporation, 463 S.W.2d 170 (Tex.1971), the court said:
"The burden was upon defendant as the movant for a partial summary judgment to conclusively establish the affirmative defense of accord and satisfaction. The tests in cases of this nature are set forth in Jenkins v. Henry C. Beck Company, 449 S.W.2d 454 (Tex.Sup.1970); H. L. `Brownie' Choate, Inc. v. Southland Drilling Co., 447 S.W.2d 676, 679-680 (Tex. Sup.1969); and Industrial Life Insurance Company v. Finley, 382 S.W.2d 100, 104-106 (Tex.Sup.1964). In the Beck case, in order to support a summary judgment of accord and satisfaction, this Court held:
"There must be an unmistakable communication to the creditor that tender of the lesser sum is upon the condition that acceptance will constitute satisfaction of the underlying obligation. It has been said that the conditions must be made plain, definite and certain * * *; that the statement accompanying the tender of a sum less than the contract price must be so clear, full and explicit that it is not susceptible of any other interpretation.'"
The satisfaction in an accord and satisfaction is generally the performance of the new promise. However, a promise alone may be accepted as satisfaction. Ferguson-McKinney Dry Goods Co. v. Garrett, 252 S.W. 738 (Tex.Com.App.1923, holding approved). In that event, the intention of the parties is of major importance. In *927 McCarty v. Humphrey, 261 S.W. 1015 (Tex. Com.App.1924, jdgmt adopted), the court recognized:
"... accord and satisfaction, being dependent upon agreement, only occurs where the parties mutually assent to it. Their intention is a controlling element. In such a transaction `there can be no agreement expressed or implied when both parties have no intention to make it, or when one has but the other has not.'"
The burden of proof in establishing the alleged defense of accord and satisfaction is on the party asserting it. The jury found against Anderson on conflicting evidence, therefore, Anderson's burden in this court is to show the evidence conclusively establishes accord and satisfaction. We hold Anderson has not discharged its burden.
If the satisfaction was to be the actual performance by American Beef, the executory agreement of accord was breached by nonperformance. An unexecuted accord cannot be a defense to a suit on the original contract. Upon default of the accord, the creditor may sue either on the accord or on the original contract. Alexander v. Handley, 136 Tex. 110, 146 S.W.2d 740 (1941).
Appellants' points 8 and 9 are as follows:
"POINT EIGHT
The Trial Court erred in admitting, over objection of defendant, testimony of Grover Phillips that nothing was said by Russell Center or Grover Phillips as to whether the checks of American Beef would be in payment of the cattle.
POINT NINE
The Trial Court erred in admitting, over objection of defendant, testimony of Grover Phillips that he did not tell Russell Center that they would not look to defendant for payment of the cattle and that he and Russell Center did not discuss release or forgiveness or anything of that nature."
Phillips was asked:
"Q Was anything said by Russell Center to you or by you to Russell Center as to whether the checks from American Beef would be in payment of the cattle?"
And the record shows:
"A No sir.
MR. MILAM: May we have the same objection on that question?
THE COURT: Yes sir, you may have the same objection.
MR. MILAM: May we have a running objection on it?
THE COURT: Yes sir."
Phillips also testified that he did not discuss release or forgiveness or anything of that variety; did not discuss the substitution of American Beef for Anderson; and did not discuss if and when American Beef sent the checks Anderson would be relieved of paying for the cattle.
It is difficult to determine what appellants' objection is. "The same objection on that question" and a "running objection" are general objections where several objections have been made. The record shows appellant had previously made objections that the testimony was argumentative, leading and suggestive, improper and invaded the province of the court and jury.
Producers contends several of the matters complained about were elicited without objections. For example, Phillips was asked:
"Q When Russell Center came from the coffee room 50 feet back to your office and handed you the copy of Plaintiff's Exhibit No. 2, tell this Jury everything that was said in that conversation."
And he gave the following answers:
"A Mr. Center said that he had sold 1,500 head of cattle to American Beef Packers. He gave me the copy of this document and asked if it would be all right if American Beef Packers sent the check to us and I *928 said `This will be fine', and that's the conversation.
Q Was anything else said?
A No sir."
It does not appear from the record an objection was made to this testimony. The substance of this testimony is not set out in appellants' brief with reference to the pages of the record where same may be found as required by Rule 418, T.R.C.P. This testimony is substantially the same testimony as that set out in appellants' points of error.
We hold Anderson has not discharged its burden of showing the testimony set forth in its points of error was subject to the objections made. Also, it has failed to show that any error, if any, in admitting such testimony was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, T.R. C.P.
Appellants' point number 10 is as follows:
"The Trial Court erred in sustaining plaintiff's objections and refusing to permit cross examination of plaintiff's witness, Bill Nibler, by defendant as to whether it was the witness's understanding of the agreement that it was the obligation of American Beef to pay for the cattle instead of Anderson Cattle Company and that this was the agreement by Grover Phillips, manager of plaintiff's feed yard."
The witness could testify what was said by the parties, but his understanding and conclusions were not competent because his opinion as to the agreement invaded the province of the jury.
In Terry v. Witherspoon, 255 S.W. 471 (Tex.Civ.App.Amarillo 1923, no writ), the court said:
"... Witherspoon and Kinney's statements as to what they concluded or understood from the conversation with W. H. Terry concerning the extent of their authority was not admissible, and in giving their understanding from what was said they invaded the province of the jury, and all such statements must be disregarded in determining the effect of the evidence. Shaw v. Gilmer (Tex.Civ. App.) 66 S.W. 679; Biering v. Wegner, 76 Tex. 506, 13 S.W. 537; Buzard v. McAnulty, 77 Tex. 438, 14 S.W. 138..."
In Shaw v. Gilmer, 66 S.W. 679 (Tex.Civ. App.1902, no writ), the court said:
"Inasmuch as we will have to reverse the judgment for the reason just stated, we deem it proper to say that if the cause had been tried before a jury the admission of the testimony of Cotulla, complained of in the second assignment of error, as to his understanding of how the account should run, was such an error as would require a reversal of the judgment. Such testimony was simply a conclusion of the witness. His testimony should have been limited to facts within his knowledge, and as to what conclusions should be drawn from them would be for the jury."
We have considered the entire record and hold the finding to special issue number one is not against the great weight and preponderance of the evidence. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
We find no merit in appellants' point the court erred in submitting special issue number one over its objection that the issue did not submit the ultimate and controlling issue. Hough v. Grapotte, 127 Tex. 144, 90 S.W.2d 1090 (1936).
Appellants also contend the court erred in refusing to submit its instruction to the effect an agreement can either be made expressly or by implication, and that an implied agreement is where the acts of the parties are such as to indicate a meeting of the minds as implied and evidenced by their course of dealings. We find no merit in this contention. The instruction given by the court was proper under Chastain v. *929 Cooper & Reed, 152 Tex. 322, 257 S.W.2d 422 (1953).
In its final point of error, Anderson contends that the full amount of Producers' claim in bankruptcy, included in the Plan of Arrangement, should be credited to the judgment. The Plan of Arrangement is only relevant to this cause of action for determining the amount of credit due Anderson for "any sum or sums" which Producer "may collect".
The word "sum" is most commonly used to mean "money" and is lexically defined as such. Unless a different meaning plainly appears in the context in which it is used, its application is restricted to money. U. S. v. Van Auken, 96 U.S. 366, 24 L. Ed. 852 (1878); 83 C.J.S. Sum, p. 787. The word "money" ordinarily refers to cash or coin. Stewart v. Selder, 473 S.W.2d 3 (Tex.1971); Baker & Taylor Drilling Co. v. Blanchard Drilling Co., 363 S.W.2d 818 (Tex.Civ.App. Amarillo 1962, no writ).
The nonwaiver agreement, therefore, allowed a credit for any "cash" which Producer "may collect". When used in this context, "collect" is interpreted as that which is actually received in cash. Board of Commissioners of Okfuskee County v. Hazelwood, 79 Okl. 185, 192 P. 217 (1920); Power v. Fleming County, 99 Ky. 200, 35 S.W. 541 (1896); OK Bakery v. Morten Milling Co., 141 S.W.2d 436 (Tex.Civ.App.Dallas 1940, no writ).
At the time of judgment, the full amount of Producers' claim in bankruptcy was not "collected". The court properly denied Anderson's motion for credit of the entire claim in bankruptcy.
We have considered all of appellants' points of error and find no merit in them. They are overruled.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1540262/ | 77 Md. App. 431 (1988)
550 A.2d 731
COMSTOCK INSURANCE COMPANY
v.
THOMAS A. HANSON & ASSOCIATES, INC., ET AL.
No. 480, September Term, 1988.
Court of Special Appeals of Maryland.
December 6, 1988.
David A. Carter (J. Snowden Stanley, Jr., and Semmes, Bowen & Semmes, on the brief), Baltimore, for appellant.
Kenneth F. Spence, III (K. Donald Proctor, and Miles & Stockbridge, on the brief), Towson, for appellees, Carl and Edward Julio.
Argued before MOYLAN, WILNER and ROBERT M. BELL, JJ.
WILNER, Judge.
There are three parties in interest to this dispute over an exclusion clause in an insurance contract. Carl and Edward Julio, together, are developers; Thomas A. Hanson & Associates, Inc. is an engineering firm that provided certain architectural and engineering services to the Julios; Comstock Insurance Company is an insurance company that issued a professional liability insurance policy to Hanson.
The Julios recovered a $287,500 judgment against Hanson for breach of contract and professional negligence. They and Hanson are seeking to have Comstock pay that judgment, which Comstock has so far refused to do. Upon Comstock's complaint for declaratory judgment, the Circuit Court for Baltimore County, applying Illinois law, construed the exclusion clause relied upon by Comstock and declared that Comstock was nonetheless liable. Hence this appeal, in which Comstock complains that the trial court misconstrued the clause. We shall affirm.
(1) The Factual Setting
In 1983, the Julios became interested in purchasing a warehouse from Levitz Furniture Company and renovating it into an office building and motel complex. They consulted Hanson with respect to the motel phase, seeking, essentially, a determination of whether the project would be economically feasible. The Julios had concluded that, to be economically feasible, the motel would have to be constructed within and utilize part of the existing warehouse structure; to demolish the structure and engage in new construction would be too costly. The Julios stressed upon Hanson the feasibility consideration and the need to have the motel built within the existing warehouse.
Eventually, Hanson prepared and delivered to the Julios preliminary drawings and a handwritten projection of costs, showing that the motel they envisioned could be built within the warehouse structure at a cost of $12,500 per unit. Based on Hanson's drawings and estimate, the Julios concluded that the overall project was economically feasible, and so, effective February 21, 1984, they entered into an agreement with Levitz to buy the property for $4,200,000. The contract called for a $200,000 deposit, which was made. It gave the Julios the option to terminate the agreement and receive back the deposit if, within 20 days, they notified the seller that the property was "unsatisfactory." In the event such notice was not given and the Julios thereafter decided not to proceed, they could cancel the contract upon payment of liquidated damages of $287,500 the $200,000 deposit already made plus an additional $87,500.
In the belief that the motel could be built as Hanson indicated, the Julios did not exercise their right to terminate the contract within the 20-day period and so became bound to it. Thereafter, however, they discovered that the motel could not be built as designed by Hanson and that, to build it within the existing structure would cost over $24,000 per unit; new construction would cost well over $19,000 per unit. That, in their view, made the project unfeasible, and so, to contain their loss, they defaulted on the contract and forfeited the $287,500 in liquidated damages.
The initial lawsuit was filed in the Circuit Court for Baltimore County by Hanson, who charged the Julios with breach of the AIA contract they had entered into in March, 1984. The Julios responded, in part, with a counterclaim charging Hanson with breach of contract and negligent misrepresentation. The gravamen of both counts of the counterclaim was the averment that:
"[Hanson] represented to the [Julios] that the motel portion of the complex could be built at a cost of $12,500 per unit, or a total cost, including a restaurant, but excluding demolition, of $2,750,000. [Hanson] also represented to the [Julios] that the entire four-story motel portion of the complex could be built within the existing warehouse structure for the aforementioned amount. In connection with these representations, [Hanson] supplied the [Julios] with certain design documents, which indicated that the motel portion of the complex could be built within the existing warehouse structure."
These representations, the Julios continued, were false, were justifiably relied upon, and caused damage when it turned out that the Julios could not proceed and had to forfeit the $287,500.
The Hanson v. Julio action was tried non-jury before Judge Fader. In a memorandum opinion and judgment filed in May, 1986, Judge Fader dismissed the action by Hanson on the dual grounds that (1) it was a foreign corporation that regularly did business in Maryland but had failed to register to do business in this State and, (2) although the basis of its contract with the Julios was the provision of architectural services, neither Hanson nor its employees were licensed architects. These deficiencies, Judge Fader found, precluded Hanson from bringing and maintaining an action in a Maryland court. With respect to the counterclaim, Judge Fader credited the evidence produced by the Julios and concluded that Hanson had erred both in its design for building the motel within the existing warehouse structure and in its estimate of the probable cost of construction.
The error in the cost estimate, Judge Fader found, was attributable in part to the error in design and in part to mistakes in some of the component cost figures and assumptions. As to the first aspect, Judge Fader noted that:
"Problems with the Hanson design started to develop immediately. Of much concern and the subject of much discussion were the following issues: (1) whether the outside wall panels could be coordinated with inside room formats and window locations; (2) whether four full floors of rooms could be placed within the existing structure; (3) whether the existing slab would support the new structure and allow utility installation to the rooms; and (4) how and where the bearing walls and columns were and could be placed."
Judge Fader recounted the evidence bearing on some of these design problems, noting in particular the testimony of a structural engineer testifying for the Julios that "Hanson did not properly take into account the existing building's columns and necessary coordination with the room and window location." Though raising doubt as to some aspects of the opinions from the Julios' experts, Judge Fader believed "the overall content of these opinions ... to be correct and against the Hanson position." His conclusion, then, as to this aspect of the problem, was that:
"There was on Hanson's part a great misconception of the Levitz building structure and the ability to use that structure with its existing columns, panels, slab floor and possibly the roof structure to accommodate the four-story motel to be placed thereon at the cost Hanson proposed. The costs of accommodation were far in excess of the Hanson estimate...."
Additionally, Judge Fader concluded that, in applying a published square foot estimate of cost, Hanson had erroneously neglected to add on a 15% overhead and profit figure and that it further erred in using a single, general square foot cost figure without taking into account more specific cost estimates that were available. As to this, Judge Fader stated:
"Hanson made another mistake in using the Means publication. Increased construction costs are evident in the Means square foot costs for a hotel, 4-7 story, as compared with a motel, 2-3 story, from that same publication. Testimony on this point was not exhaustive but it was sufficient to satisfy the Court of the correctness of the Julio position; namely, that the four-story Julio project falls somewhere between the building and structure requirements evidenced by these separate estimates. Hanson's reliance on a publication using a single cost figure under the label of `Motels' was error and not accepted in the trade."
Upon these findings, the court entered judgment on the counterclaim in favor of the Julios for $287,500.
Aggrieved by that result, Hanson appealed. In a per curiam Opinion filed March 27, 1987, however, this Court affirmed. After reciting the procedural history of the case, we stated:
"We have carefully examined the record in this case and find ample evidentiary support for all of Judge Fader's factual findings. We perceive no error in his application of the law to those findings. For the reasons stated in the opinion of the trial court, which we hereby adopt as our own, the judgment is affirmed."
Hanson v. Julio, unreported, Sept. Term, 1986, No. 897, Op. filed March 27, 1987.
Hanson, supported by its erstwhile foes, the Julios, then turned to Comstock for payment of the judgment. Comstock, as we observed, had issued an Architects and Engineers Professional Liability Insurance Policy to Hanson. In that policy, Comstock agreed to pay on behalf of Hanson "all sums which the Insured shall become legally obligated to pay as damages as a result of claims first made against the Insured ... in the performance or failure to perform professional services...." In the "Exclusions" section, however, the policy stated: "This policy does not apply to ... (F) express warranties or guarantees, estimates of probable construction or cost estimates being exceeded...."
Believing that the judgment against Hanson was based on an estimate "of probable construction or cost estimates being exceeded" and thus fell squarely within Exclusion (F), Comstock denied liability and filed this declaratory judgment action in the Circuit Court for Baltimore County seeking a construction of the policy favorable to its point of view. Hanson, of course, was the initial defendant, but the Julios were permitted to intervene. Presented with cross motions for summary judgment, the court, through Judge Sfekas, concluded that (1) Illinois law the lex locus contractus applied, (2) under Illinois law, "where a policy expressly insures against loss covered by one risk but excludes loss caused by another risk, coverage is extended to a loss caused by the insured risk even though the excluded risk is a contributory cause," (3) based on Judge Fader's findings, while in part the loss arose from an overage in the cost estimate, "Hanson's professional negligence was a contributory cause, if not in fact that proximate cause of Julio's injuries," and (4) the loss therefore did not fall within Exclusion (F). Accordingly, the court entered judgment against Comstock for $287,500, and this appeal was taken.
Comstock makes three arguments. First, it urges that Judge Sfekas erred in finding that the loss to the Julios was not solely the product of Hanson's negligent estimate of probable construction costs. The evidence before Judge Fader, and Judge Fader's factual findings, it says, compels the conclusion that the loss stemmed entirely from an erroneous cost estimate, which would put the loss squarely within Exclusion (F). Second, picking up on one brief remark in Judge Sfekas's memorandum opinion, Comstock contends that he added an element to the exclusion that is not in the contract and thus misconstrued the exclusionary clause. And finally, it argues that Judge Sfekas misconstrued the applicable Illinois law that this was not a situation in which one risk was covered and one was not, but rather a case in which one area of a single risk was excluded.
(2) The Legal Setting
As a preface, we observe that all parties agree that the policy is to be construed in accordance with Illinois law. The policy was issued in Illinois, and, as a general rule, an insurer's liability is determined by the law of the place where the contract was made. See Galford v. Nicholas, Adm., 224 Md. 275, 281, 167 A.2d 783 (1961); Grain Dealers v. Van Buskirk, 241 Md. 58, 65-66, 215 A.2d 467 (1965); Billingsley v. Lincoln Nat'l Bank, 271 Md. 683, 685 n. 1, 320 A.2d 34 (1974). We look, then, to see what the Illinois law is in this area.
Citing one line of cases applying Illinois law, Comstock argues that, in order for coverage to exist, the covered event must be the "significant" or the "efficient and predominating" cause of the loss. See Am. States Ins. Co. v. Byerly Aviation, Inc., 456 F. Supp. 967 (S.D.Ill. 1978); General Accident Fire & Life Assurance Corp. v. Brown, 35 Ill. App. 2d 43, 181 N.E.2d 191 (1962); Bituminous Casualty Corp. v. Hartford Accident & Indemnity Co., 330 F.2d 96 (7th Cir.1964); Clark v. Travelers Indemnity Co., 313 F.2d 160 (7th Cir.1963). Here, it argues, the "significant" or "efficient and predominating" cause of the loss was the excluded one, not the covered one. Alternatively, or additionally, it cites another line of cases for the proposition that, for coverage to exist in the face of an exclusion, the loss must arise and exist without reference to an excluded event. See Louis Marsch, Inc. v. Pekin Insurance Co., 140 Ill. App. 3d 1079, 96 Ill. Dec. 386, 491 N.E.2d 432 (1985); Allstate Insurance Co. v. Panzica, 162 Ill. App. 3d 589, 114 Ill. Dec. 28, 515 N.E.2d 1299 (1987); State Farm & Cas. Co. v. McGlawn, 84 Ill. App. 3d 107, 39 Ill. Dec. 531, 404 N.E.2d 1122 (1980). Here, it contends, the loss cannot be said to arise without reference to an excluded event the negligent underestimate of probable cost.
Hanson and the Julios, on the other hand, dismiss the Louis Marsch line of cases as involving negligent entrustment claims and therefore as inapposite and argue that Illinois has discarded the "significant" or "efficient and predominating" tests in favor of a rule that, if a proximate cause of a loss is within the included coverage, that coverage is not voided merely because an additional proximate cause falls within an exclusion. For that proposition, they cite United States Fidelity & Guaranty Co. v. State Farm Mut. Auto Ins. Co., 152 Ill. App. 3d 46, 105 Ill. Dec. 254, 504 N.E.2d 123, cert. denied 115 Ill. 2d 551, 110 Ill. Dec. 466, 511 N.E.2d 438 (1987), Davis v. Sheehan, 43 Ill. App. 3d 449, 2 Ill. Dec. 523, 357 N.E.2d 690 (Ill. App. 1976), and Mattis v. State Farm Fire & Casualty Co., 118 Ill. App. 3d 612, 73 Ill. Dec. 907, 454 N.E.2d 1156 (1983).
These various cases do say what the parties claim they say. None of them involves the precise point now before us, however, and none of them, in our view, directly controls that issue.
The first group of cases cited by Comstock did indeed speak in terms of "efficient and predominating cause," but one must look at the context in which that language was used. In General Accident Fire and Life Assur. Corp. v. Brown, supra, 181 N.E.2d 191, the principal issue was not the scope of an exclusionary clause but whether the loss fell within the general coverage. A general automobile liability policy covered, among other things, accidents arising from the loading or unloading of insured vehicles. The claimant was injured during a loading operation, and so a demand was made on the policy.
The court pointed out that the mere use of an insured vehicle during the loading operation did not suffice to establish coverage; there must also be "a causal connection between the use of the truck and the injury." Thus, it said, "unless we can determine that the loading of the truck was the efficient and predominant cause of [the claimant's] injury, the matter will not come within the terms of the ... policy." 181 N.E.2d at 194. In the particular case, the court went on, the claimant maintained that his injury resulted solely from a defect in the loading dock; there was no assertion that his carrying of merchandise "in any way contributed to his fall, [or] that any merchandise or anything connected with the loading operation or the truck itself in any way caused his injury." Id. On those facts, the court found no coverage.
Clark v. Travelers Indemnity Co., supra, 313 F.2d 160, and Bituminous Casualty Corp. v. Hartford Accident and Indemnity Co., supra, 330 F.2d 96, are also "loading" cases in which the Seventh Circuit Court of Appeals followed Brown. In both instances, although the injury occurred while a loading operation was in progress, the cause of the injury was entirely unconnected with the loading operation.
Am. States Ins. Co. v. Byerly Aviation, Inc., supra, 456 F. Supp. 967, involved essentially the same principle but in the context of an exclusionary clause. An aircraft liability policy insured against damages for bodily injury or death sustained by a passenger arising out of the use of the insured helicopter. A specific exclusion, however, provided that the policy did not apply if the helicopter was being operated by anyone other than two named pilots. The claimant, a student, was killed while on a teaching flight when the rotor broke and the helicopter crashed. Citing the exclusionary clause, the insurer denied liability on the ground that the pilot was someone other than the two named in the policy.
Rejecting that defense, the court observed initially that, under Illinois law, insurance policies are construed liberally in favor of the insured and that "where an insurer relies upon an exclusion as a defense, it has the burden of showing that the loss involved falls within such exclusion." 456 F. Supp. at 968. Moreover, as Illinois law requires the existence of a causal connection in order for coverage to be afforded, the court said that it would be unfair "not to require such connection between the loss which occurs and the exclusion, in order for the insurer to successfully escape coverage...." Id. at 970. As to the exclusion at issue, the court continued:
"The only reasonable purpose of such an exclusion is to limit the insurer's liability for potential losses caused by pilot error or negligence by an unskilled pilot. The policy quite reasonably insures against pilot error or negligence only with respect to those pilots whom the insurer has considered to be acceptable risks. However, there is nothing in the record to suggest that pilot error or negligence was any part of the cause of the helicopter crash involved here. Assuming that pilot conduct did not cause the tragedy, there is no connection between the cause of the loss and the exclusion."
On that basis, the court refused to apply the exclusionary clause; it was, in a nutshell, irrelevant.
As Hanson and the Julios point out, the second line of cases cited by Comstock involved claims based on negligent entrustment. The seminal case, in Illinois, was State Farm Fire & Cas. Co. v. McGlawn, supra, 39 Ill. Dec. 531, 404 N.E.2d 1122. A homeowners' policy provided general liability coverage but excluded claims or losses arising out of the use or maintenance of any motor vehicle loaned to an insured. One insured, McGlawn, Sr., lent his motorcycle to his son, McGlawn, Jr., who also was an "insured" under the policy. McGlawn, Jr. injured the claimant while operating the motorcycle. The claimant sued McGlawn, Sr. for negligent entrustment; McGlawn, Sr. demanded coverage under the homeowners policy; the company denied liability; and a declaratory judgment action was filed.
Siding with the insurer, the court noted first that "[i]n order to state a cause of action for negligent entrustment two elements must appear: (1) A negligent entrustment, and (2) that the incompetence of the entrustee was the proximate cause of the injury." 39 Ill. Dec. at 533, 404 N.E.2d at 1124. Continuing:
"As is obvious from the foregoing, the first element concerns itself with conduct only; the second concerns itself not only with conduct but with an instrumentality, in most cases a motor vehicle. If there exists a specific exclusion in the policy as to the instrumentality, there can be no coverage."
The policy at issue, said the court, "specifically excludes motor vehicles"; ergo, no coverage.
The other cases in that line cited by Comstock are to the same effect. As more succinctly stated in Allstate Ins. Co. v. Panzica, supra, 114 Ill.Dec. at 28, 30-31, 515 N.E.2d at 1299, 1301-02: "Under Illinois law it is clear that where the instrumentality which causes the injury is excluded, no liability coverage is afforded for negligent entrustment of the instrumentality. This is because an injury resulting from the use of the instrumentality is a necessary element of the cause of action."
The three cases principally relied on by Hanson and the Julios are also, in a sense, fact-specific. In Davis v. Sheehan, supra, 357 N.E.2d 690, for example, a farmer, through his three employees, mistakenly loaded field corn into a bin leased to the plaintiff, ruining the seed corn that the plaintiff had stored in the bin. The farmer sought coverage under three insurance policies, the one relevant here being an automobile policy insuring a truck used in the operation. That policy covered losses arising from unloading the truck, and it was on that basis that the farmer sought coverage. The insurer, insisting that the "efficient and predominating" cause of the loss was not so much the unloading operation itself as the farmer's negligence in failing to give clear instructions to his employees as to which bin to use, denied liability.
Although the Court reviewed the Brown, Clark, and Bituminous Cas. Corp. cases cited above and discussed the "efficient and predominant" cause standard, its conclusion that coverage existed was based on its determination that, unlike the situations in those cases, the loss did, in fact, arise out of the unloading operation. Responding to the insurer's argument, however, the Court observed, 2 Ill. Dec. at 527-28, 357 N.E.2d at 694-95:
"If the [farmer's] employees at the bin were engaged in unloading, and their acts in unloading were sufficient to impose on them tort liability, it would be illogical to deny them insurance coverage because a concurrent cause of the damage to the seed corn was more predominating.... The [Illinois] Supreme Court has not passed on the `efficient and predominating cause' rule. We do not apply it to reach the result requested by [the insurer]. When tort law recognizes multiple acts as giving rise to a separate tort liability for the same injury, a rule of contract law construing liability insurance policies with a more restrictive concept of causation, creates many problems."
Mattis v. State Farm Fire & Cas. Co., supra, 73 Ill. Dec. 907, 454 N.E.2d 1156 the case principally relied on by Judge Sfekas involved a homeowners policy insuring against all risks of physical loss except those specifically enumerated in various exclusionary clauses. Improper design or construction of the dwelling was not listed among any of the exclusions. Five years after they bought their home, the insureds observed that part of the basement wall was buckling. The problem grew progressively worse and was very expensive to repair. Claim was made on the policy.
There was evidence that the problem could have resulted from a number of things that were indeed excluded under the policy. But the trial court found that one cause of the problem was improper design or construction. Quoting from a Wisconsin case, the Court declared that, "Where a policy expressly insures against loss caused by one risk but excludes loss caused by another risk, coverage is extended to a loss caused by the insured risk even though the excluded risk is a contributory cause." Id. 73 Ill.Dec. at 912, 454 N.E.2d at 1161.
On that basis that improper design or construction was a contributing cause and a covered risk the Court found the insurer liable.
The third case cited by Hanson and the Julios U.S. Fidelity & Guar. Co. v. State Farm Mut., supra, 105 Ill. Dec. 254, 504 N.E.2d 123 is, in some respects, similar to Mattis. At issue was a general liability policy issued to a day care center and its proprietor. The policy covered losses arising from the failure to provide adequate supervision of the children but excluded losses arising from the operation or use of an automobile. The claim in dispute arose when a child fell out of a station wagon being operated by the insured's employee. There were, at the time, eight to ten children in the vehicle with only the driver to supervise. In an action filed against the day care center, the child's parents alleged both the failure to provide adequate supervision and the negligent operation of the station wagon. Contending that the injuries "could not have occurred without the operation or use of the station wagon," the insured denied liability. The Court rejected that defense, holding 105 Ill. Dec. at 256, 504 N.E.2d at 125:
"USF & G's argument overlooks the fact that there may be more than one proximate cause of an injury. A proximate cause of an injury is any cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury. If a proximate cause of an injury is within the included coverage of an insurance policy, the included coverage is not voided merely because an additional proximate cause of the injury is a cause which is excluded under the policy. Thus, in order for an injury to be excluded from coverage under an insurance policy, the injury must have been caused solely by a proximate cause which is excluded under the policy. The insurance carrier has the burden of proof as to whether the injury was caused solely by a proximate cause which is excluded under the policy."
(Citation omitted; emphasis added.)
None of these decisions or pronouncements, we observe, are of the Illinois Supreme Court. They all represent either intermediate appellate court decisions or those of Federal courts attempting to divine what the Illinois Supreme Court would hold. Nor are they necessarily in conflict. The parties, we think, have paid more attention to some of the language used by the courts than to the context of its use and thus have missed the forest for the trees. From the cases cited, we perceive the Illinois law to be as follows:
(1) Where the insured is seeking to have the insurer pay a loss or defend a claim, he has the burden of establishing that the loss or claim falls within either the general or a specific coverage of the policy. As part of that burden, he must show a clear causal connection between an act or event insured against and the injury or loss. The "efficient and predominant" standard has been applied in that context.
(2) Where the insurer seeks to escape liability on the ground that the loss or claim falls within a specific exclusion in the policy, it has the burden of showing that the exclusion applies. As part of that burden, it must prove a causal connection between the excluded act or event and the loss. The "efficient and predominant" standard, if applicable to the insured's burden under (1), would also be applicable to the insurer's burden. Moreover, in this regard, exclusionary clauses are narrowly construed against the insurer; policies are liberally construed in favor of the insured.
(3) If the loss or claim arises from multiple contributing causes and any one of the causes is within the policy coverage and is not excluded, the insurer is liable even if other contributing causes are specifically excluded from coverage. In that situation, the "efficient and predominant" standard is not applied to measure the relative contribution of the covered and excluded causes. The covered, non-excluded cause need not be the "more efficient" or "predominant" one; it need only be a contributing one. Thus, as was stated in the USF & G case, supra, for an otherwise covered injury to be excluded "the injury must have been caused solely by a proximate cause which is excluded under the policy." 105 Ill.Dec. at 256, 504 N.E.2d at 125. (Emphasis added.)
(3) Discussion
As we observed in part (1) of this Opinion, the Julios' counterclaim against Hanson was based on two alleged misrepresentations that the motel could be built within the existing warehouse structure as indicated on the preliminary drawings prepared by Hanson and that it could be so built at a cost of $12,500/unit. Judge Fader found that both representations were incorrect. He concluded that Hanson had erred in two independent respects in the overall design, which was based on a "great misconception" of the ability of the existing structure to accommodate the motel, and in the actual calculation of the probable cost of construction. Both errors contributed to the overall, ultimate underestimate of cost.
Comstock looks solely at the end result of its insured's negligence the underestimate. The loss, it urges, arose entirely from the fact that Hanson's "probable construction or cost estimates [were] exceeded," and that loss falls within Exclusion (F). That approach, we think, is much too simplistic, for, if we followed that line of reasoning, the exclusion would tend to swallow the policy.
Few engineering or architectural contracts, we expect, are on a "cost is no object" basis. Whether the engineer or architect is given a target figure within which to work or is expected to estimate the cost of implementing his design, the employer generally wants, and is given, either expressly or implicitly, some assurance that the project as designed can be built within a certain cost range. We also think it reasonable to suppose that if the engineer or architect develops a design that will not work that cannot be feasibly or safely implemented that negligence is probably going to have an adverse impact on the cost of the project. In every such case, then, where, because of a faulty design, the project ends up costing more than was estimated or has to be abandoned, the argument could be made that the loss suffered by the employer stemmed from the cost estimate "being exceeded" and is therefore not covered under the policy.
Such a broad reading of Exclusion (F) would be wholly inappropriate, especially under Illinois law which, as noted, requires a restrictive construction of exclusions. We think that the better approach is to be somewhat more circumspect and examine the nature and cause of the cost overrun. Certainly, as Judge Sfekas remarked, if the overrun result from events beyond the engineer/architect's control and that he could not reasonably have anticipated or measured in the preparation of his cost estimates, the exclusion would apply. As to those causes, the exclusionary clause would be more in the nature of a clarification than an actual withdrawal from coverage, since, if they did not arise from the designer's negligence in the first place, there would likely be no liability on his part and therefore no indemnity coverage under the general insuring clause.
Although clauses similar to Exclusion (F) are apparently common in architects and engineers liability insurance policies (see 3 S. Stein, Construction Law § 13.06[4][f] (1988); also F. Baltz, Selecting a Professional Liability Insurance Policy for Design Professionals (1984)), we have been unable to find any reported cases specifically construing such clauses, and none have been brought to our attention by the parties. A reasonable argument can be made that Exclusion (F) covers more than simply events and causes beyond the engineer/architect's control. Indeed, Comstock makes that very argument, contending that Judge Sfekas unduly narrowed the exclusion to "circumstances beyond Hanson's control, such as a strike, increased cost of goods and building supplies or Act of God...." Assuming arguendo that the clause is not so limited and does in fact include events or causes that were within Hanson's ability to control or predict, that still does not require that the clause be given unlimited scope.
At most, we believe, the exclusion would cover mistakes in the preparation of the estimate itself errors in estimating the quantity or quality of materials that will be needed, or in applying or estimating component costs, or in arithmetic or other aspects of calculating or constructing the estimate. But if the overrun results from an underlying defect in either design or other basic engineering work, the exclusion would not apply. That kind of negligence is precisely what the policy was intended to cover, even if its effect is a cost overrun.
Here, as indicated, the underestimate resulted from both basic design defects and errors in the estimating process. One cause is covered; the other is excluded. Under our analysis of Illinois law, then, Comstock is liable.
JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/995005/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARY STEINKE, individually and as
personal representative of the estate
of Zachary Steinke; MIKE STEINKE,
individually and as personal
representative of the estate of
Zachary Steinke,
Plaintiffs-Appellees,
v.
BILLY PLAYER,
Defendant-Appellant,
and
No. 97-1625
BEACH BUNGEE, INCORPORATED;
CAROLINA LAND HOLDING
COMPANY OF LITTLE RIVER,
INCORPORATED; CHARLES VEREEN;
HAROLD MORRIS; MARSHALL BEAM;
RECREATIONAL STRUCTURES,
INCORPORATED; INGERSOLL-RAND
COMPANY; MASTER MECHANIC
MANUFACTURING COMPANY; JAY
PLAYER; ROBERT PLAYER,
Defendants.
MARY STEINKE, individually and as
personal representative of the estate
of Zachary Steinke; MIKE STEINKE,
individually and as personal
representative of the estate of
Zachary Steinke,
Plaintiffs-Appellees,
v.
CHARLES VEREEN,
Defendant-Appellant,
and
No. 97-1730
BEACH BUNGEE, INCORPORATED;
CAROLINA LAND HOLDING
COMPANY OF LITTLE RIVER,
INCORPORATED; HAROLD MORRIS;
BILLY PLAYER; MARSHALL BEAM;
RECREATIONAL STRUCTURES,
INCORPORATED; MASTER MECHANIC
MANUFACTURING COMPANY; JAY
PLAYER; ROBERT PLAYER, INGERSOLL-
RAND COMPANY,
Defendants.
Appeals from the United States District Court
for the District of South Carolina, at Florence.
William B. Traxler Jr., District Judge.
(CA-93-2679-4-21)
Argued: January 28, 1998
Decided: May 11, 1998
Before WILKINSON, Chief Judge, and ERVIN and
HAMILTON, Circuit Judges.
_________________________________________________________________
2
Affirmed by unpublished opinion. Judge Ervin wrote the opinion, in
which Chief Judge Wilkinson and Judge Hamilton joined.
_________________________________________________________________
COUNSEL
ARGUED: Thomas Casey Brittain, HEARN, BRITTAIN & MAR-
TIN, Myrtle Beach, South Carolina, for Appellant. John Daniel Kas-
sel, SUGGS & KELLY, Columbia, South Carolina, for Appellees.
ON BRIEF: Scott B. Umstead, HEARN, BRITTAIN & MARTIN,
Myrtle Beach, South Carolina, for Appellant.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
ERVIN, Circuit Judge:
This case arises out of a wrongful death action by Mike and Mary
Steinke for the death of their 17-year-old son, Zachary, which resulted
from the defendants' negligent operation of a bungee jumping site.
After the defendants appealed the jury's original $12 million actual
damages verdict rendered against them, we remanded the issue of
remittitur to the district court for reconsideration in light of Gasperini
v. Center for Humanities, Inc., 518 U.S. 415 (1996). Defendant Billy
Player now appeals the district court's order remitting the verdict to
$6 million, contending that the amount should be further remitted or,
in the alternative, that a new trial should be granted. Because there is
no evidence that the district court abused its discretion in failing to
grant a new trial absolute or in including damages for the parents'
having witnessed their son's death, we affirm.
I.
We described the events giving rise to this wrongful death action
in great detail in the previous appeal, and only a brief summary is
3
necessary here. On August 10, 1993, Zachary Steinke, the 17-year-old
son of Mike and Mary Steinke, was killed at an attraction called
Beach Bungee near Myrtle Beach, South Carolina when a cable in the
jury-rigged attraction snapped, sending the steel cage in which Zack
was riding plummeting 160 feet to the ground below.
Zack's parents did not see the cage actually fall, but were aware of
the accident immediately after it happened. They entered the mangled
cage and unsuccessfully attempted CPR on their son. The evidence
further showed that Zack was an exemplary young man, who excelled
in school and sports, and who was devoted to his parents. There is
ample evidence that both his parents have been emotionally devas-
tated by his death.
A jury awarded the Steinkes $12 million in actual damages on their
wrongful death claim. The defendants, owners and operators of the
bungee attraction, contended that the award was clearly excessive and
sought remittitur. On appeal we affirmed on the question of the defen-
dants' liability, but vacated the award and remanded the case to the
district court to consider the defendants' motion for remittitur under
South Carolina law, stating:
[I]n determining on remand whether the jury's verdict was
rendered in accordance with South Carolina law, the district
court should look to South Carolina cases to determine the
range of damages in cases analogous to the one at hand. See
Imbrogno v. Chamberlin, 89 F.3d 87, 90 (2d Cir. 1996);
Douglass v. Delta Air Lines, Inc., 897 F.2d 1336, 1339 (5th
Cir. 1990). If the court believes that a departure from that
range is justified, it should provide the reasoning behind its
view. If the court determines that there are no comparable
cases under South Carolina law, it should explain this deter-
mination as well. Such a decision by the district court will
reduce the risk of caprice in large jury awards and will
assure a reviewing court that the trial court exercised its
considered discretion under the applicable state law.
Steinke v. Beach Bungee, Inc., 105 F.3d 192, 198 (4th Cir. 1997). In
its order on remand, the district court found that the $12 million ver-
dict was not the result of passion, caprice, or prejudice on the part of
4
the jury and did not therefore warrant a new trial absolute. However,
the district court concluded that $12 million in damages was unduly
liberal and reduced the amount to $6 million. The Steinkes accepted
this reduction.
Defendants Billy Player and Charles Vereen appealed again, argu-
ing that the district court failed to evaluate properly the size of the
verdict in accordance with South Carolina law and that the $6 million
award should be further remitted. Vereen failed to file a timely notice
of appeal and his motion for an extension of time was denied by the
district court. Consequently, only Player's appeal is before this court.
II.
Player maintains that the original verdict of $12 million was the
result of jury passion or caprice and that the district court therefore
erred in not granting a new trial absolute. Under South Carolina law,
a new trial absolute should be granted "only if the verdict is so grossly
excessive that it shocks the conscience of the court and clearly indi-
cates the amount of the verdict was the result of caprice, passion, prej-
udice, partiality, corruption, or other improper motive." Knoke v.
South Carolina Dept. of Parks, Recreation & Tourism , 478 S.E.2d
256, 258 (S.C. 1996). There is no evidence of any such improper
motive at work here.
In reviewing the verdict, as we instructed it to do, the district court
examined South Carolina cases analogous to this one-- wrongful
death verdicts involving minor children and no pecuniary loss. Ver-
dicts ranged from $22,000 in 1952, Hopkins v. Derst Baking Co., 71
S.E.2d 407 (S.C. 1952), to $3 million in 1996, Knoke, 78 S.E.2d at
258. The district court recognized that $12 million was above this
range, but stated that this departure was justifiable based on the cir-
cumstances. Specifically, the district court looked at the evidence of
the Steinkes' grief over the loss of their son, the circumstances sur-
rounding Zack's death, and Zack's character. J.A. at 120. The district
court pronounced itself "most persuaded" by the recent Knoke case,
in which a 12-year-old boy died from asphyxiation in a cabin fire at
a state park, and noted that in upholding the Knoke jury's $3 million
dollar verdict, the South Carolina Supreme Court stressed that the
intangible damages suffered by a parent who loses a child to a tragic
5
accident, "cannot be determined by any fixed measure." J.A. at 117
(quoting Knoke, 478 S.E.2d at 258-59). Twelve million dollars is
clearly an enormous sum of money, and significantly greater than the
$3 million Knoke award, but given the facts of this case, it is not so
grossly excessive as to "shock the conscience of the court" and
require a new trial absolute. Cf. Knoke, 478 F.2d at 258.
Finally, Player failed to point to any trial event or evidence that
might have caused the jury to act out of passion or prejudice.
Although he argued that the accident-scene evidence was impermiss-
ibly used to increase the amount of damages, nowhere did he contend
that it was so prejudicial that it should have been excluded or that it
caused the jury to make its award out of passion or prejudice. There-
fore, while the verdict is indeed higher than any found to date in a
South Carolina state court, it is not so "monstrous" or "plainly unjust"
as to require a new trial absolute. See Lucht v. Youngblood, 221
S.E.2d 854, 859-60 (S.C. 1976) (using such phrases to give standard
for new trial).
III.
Player contends that the district court improperly evaluated the size
of the verdict in accordance with South Carolina law when remitting
the $12 million verdict to $6 million. A district court's decision on
questions of remittitur is reviewed under an abuse of discretion stan-
dard. Gasperini v. Center for Humanities, 116 S. Ct. 2211, 2225
(1996); see also Johnson v. Hugo's Skateway, 974 F.2d 1408, 1414
(4th Cir. 1992) (en banc); Defender Inds. v. Northwestern Mut. Life
Ins. Co., 938 F.2d 502, 507 (4th Cir. 1991) (en banc). A district court
sitting in diversity must apply state law standards to determine
whether a verdict is excessive. Gasperini, 116 S. Ct. at 2224-25.
A.
Player contends that the district judge improperly allowed the grief
suffered by Zack's parents as a result of their witnessing his death to
be included in the $6 million verdict. According to Player, this type
of compensation could only have been awarded through an action for
negligent infliction of emotional distress. The problem with this argu-
ment, however, is that there is simply no South Carolina case law that
6
specifically prohibits including, as part of a wrongful death award,
damages that arise from witnessing a death.
A claim for negligent infliction of emotional distress is certainly
one avenue by which a person can seek compensation for damages
arising from witnessing an accident involving a loved one, see, e.g.,
Kinard v. Augusta Sash & Door Co., 336 S.E.2d 465, 467 (S.C. 1985)
(adopting general approach of Dillon v. Legg, 441 P.2d 912 (Cal.
1968), and setting forth elements for negligent infliction of emotional
distress cause of action in South Carolina), but there are no cases in
which a South Carolina court has stated, either explicitly or implicitly,
that such an action is the only way to get such relief. To the contrary,
as the district court noted, the South Carolina Supreme Court has spe-
cifically recognized that, when considering whether a verdict is exces-
sive, each case must be evaluated individually and within the
framework of its distinctive facts. J.A. at 121 (citing Lucht v.
Youngblood, 221 S.E.2d 854, 858 (S.C. 1976); Smoak v. Seaboard
Coast Line R. Co., 193 S.E.2d 594, 597 (S.C. 1972); Lynch v.
Alexander, 130 S.E.2d 563, 567 (S.C. 1963)).
The South Carolina Wrongful Death Statute allows recovery for a
very broad range of damages. According to the South Carolina
Supreme Court, the recoverable elements of damages include pecuni-
ary loss, mental shock and suffering, wounded feelings, grief, sorrow,
and loss of society and companionship. Lucht, 221 S.E.2d at 859 (cit-
ing Zorn v. Crawford, 165 S.E.2d 640, 645 (S.C. 1969)). Witnessing
the accident that led to a beloved child's death can certainly be said
to belong in the "mental shock and suffering" category and, as the dis-
trict court persuasively explained in its order, a parent's feelings of
grief and sorrow would almost certainly be intensified by witnessing
the death of a child, J.A. at 121-22, especially where a parent person-
ally participated in an unsuccessful resuscitation attempt. Accord-
ingly, we find that the district court did not abuse its discretion when
it considered the damage Zack's parents suffered as a result of wit-
nessing his death in setting the amount of the award in the wrongful
death verdict.
B.
Player also suggests that, by failing to remit the verdict to an
amount within the range of awards made by South Carolina courts in
7
similar cases, the district court failed on remand to properly follow
our instructions. We reject this argument because the district court
followed our instructions to the letter. As our previous opinion made
clear, we did not place any type of cap on the amount of damages that
the district court could find. Instead, we merely directed the district
court to "look to South Carolina cases to determine the range of dam-
ages in cases analogous to the one at hand," and cautioned that "[i]f
the court believes that a departure from that range is justified, it
should provide the reasoning behind its view." Steinke, 105 F.3d at
198 (citations omitted). The district court's order did just that: it care-
fully examined South Carolina case law to determine the range of
damages previously awarded by that state's courts in similar cases
and then provided a thoughtful and thorough analysis of the facts in
this case, including Zack's character, the violent circumstances sur-
rounding his death, and the additional grief suffered by his parents as
a result of having watched him die in such a terrible manner. The dis-
trict court then reasonably concluded that these factors called for an
award of damages significantly greater than any awards to date by
South Carolina courts in similar wrongful death cases. The district
court therefore complied with our instructions, demonstrating to the
satisfaction of this court that it did indeed appropriately "exercise[ ]
its considered discretion under applicable state law." Id.
IV.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED
8 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/571463/ | 948 F.2d 914
UNITED STATES of America, Plaintiff-Appellee,v.Diane RODRIGUEZ, Defendant-Appellant.
No. 90-2781.
United States Court of Appeals,Fifth Circuit.
Nov. 27, 1991.
James S. Dougherty (court appointed), Houston, Tex., for defendant-appellant.
Kathlyn G. Snyder, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty. and Paula Offenhauser, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before WILLIAMS, DUHE, and EMILIO M. GARZA, Circuit Judges.
DUHE, Circuit Judge:
1
Defendant-Appellant Diane Rodriguez conditionally pleaded guilty to a one-count information charging conspiracy to possess marijuana with intent to distribute, reserving her right to appeal the district court's denial of her motions to suppress and dismiss. On appeal she asks to withdraw her guilty plea and for dismissal of the indictment and information because of several alleged errors: violation of a Justice Department policy against successive prosecutions, a double jeopardy violation based on a 1987 conviction, and outrageous conduct in seizure of her file from her defense attorney in the 1987 charge and conviction. Finding no error, we affirm.
2
In 1987 Defendant was charged with possession of 211 pounds of marijuana with intent to distribute. She pleaded guilty to simple possession, and the felony indictment was dismissed. She was represented by the law firm of Bonner & Bonner. Another member of that firm represented defendant's uncle, George Rodriguez Sr.
3
In exchange for Defendant's plea to conspiracy to possess marijuana with intent to distribute in the instant case, the Government dismissed two counts of a 1989 felony indictment: Count Three, alleging conspiracy to import marijuana, and Count Four, charging conspiracy to possess with intent to distribute marijuana and cocaine. The overt acts incorporated in both counts included her 1987 arrest with 211 pounds of marijuana, George Rodriguez Sr.'s furnishing $2,000 to Wilma Delauney in 1987 to post bond for Defendant's release from jail, and Defendant's payment of $5,000 to Delauney in 1987 for transportation of marijuana.
I. GOVERNMENT'S PETITE POLICY
4
Defendant contends that Counts Three and Four of the 1989 indictment should be dismissed because the Government failed to comply with the Justice Department's policy acknowledged in Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960). The Petite policy precludes successive federal prosecutions against a defendant based on the same transaction without prior approval from an Assistant Attorney General. The district court assumed the prior approval was not obtained and rejected the Petite argument for dismissal. We find no error in denial of the motion, because the Petite policy is merely an internal rule of the Justice Department; a criminal defendant may not invoke it to bar prosecution. United States v. Harrison, 918 F.2d 469, 475 (5th Cir.1990).II. OUTRAGEOUS CONDUCT IN SEARCH AND SEIZURE
5
Rodriguez next contends that the government engaged in such outrageous conduct in executing a post-indictment search of her former attorney's office that the indictment should be dismissed. Defendant asks in this appeal only for dismissal of the indictment, so suppression of the seized documents is not at issue.
6
She alleges that the outrageous conduct violated attorney-client privilege, her right to counsel under the Sixth Amendment, due process under the Fifth Amendment, her privilege against self-incrimination under the Fifth Amendment, the Fourth Amendment's protection against unlawful searches and seizures, and another Justice Department policy.
7
As to the claimed violation of privilege, Rodriguez has never indicated any document from the seized file which constituted a communication or described a communication between herself and her attorney. The burden of establishing privilege rests on the party who invokes it. Hodges, Grant & Kaufmann v. Comissioner, 768 F.2d 719, 721 (5th Cir.1985). "The privilege must be specifically asserted with respect to particular documents." United States v. El Paso Co., 682 F.2d 530, 539 (5th Cir.1982), cert. denied, 466 U.S. 944, 104 S.Ct. 1927, 80 L.Ed.2d 473 (1984). Her allegation of violation of privilege is unsubstantiated and constitutes no ground for dismissal of the indictment.
8
As to the claim that the seizure violated Rodriguez's Sixth Amendment right to counsel, "the remedy for such a violation is not dismissal but the suppression of any evidence so obtained." United States v. Sander, 615 F.2d 215, 219 (5th Cir.), cert. denied, 449 U.S. 835, 101 S.Ct. 108, 66 L.Ed.2d 41 (1980). Moreover, Rodriguez fails to show any prejudice; she simply asks this Court to infer prejudice from the fact of seizure. Without a showing of " 'demonstrable prejudice, or substantial threat thereof, dismissal is plainly inappropriate.' " United States v. Melvin, 650 F.2d 641, 644 (5th Cir. Unit B 1981) (quoting United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 668, 66 L.Ed.2d 564 (1981)).
9
Similarly, for a Fifth Amendment violation, dismissal of the indictment is inappropriate. See Morrison, 449 U.S. at 365 n. 3, 101 S.Ct. at 668 n. 3 (quoting United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 1419, 16 L.Ed.2d 510 (1966)):
10
Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial.... Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether.
11
The remedy for any Fourth Amendment violation is likewise exclusion of evidence rather than dismissal of the indictment altogether. United States v. Franklin, 598 F.2d 954, 957 (5th Cir.), cert. denied, 444 U.S. 870, 100 S.Ct. 147, 62 L.Ed.2d 95 (1979).
12
Finally Rodriguez urges dismissal because the Department of Justice failed to adhere to its regulation requiring authorization from a Deputy Assistant Attorney General before a federal officer applies for a warrant for confidential materials in the hands of a lawyer. See 28 C.F.R. § 59.4(b)(1)-(2) (1991). The regulation further provides, however, that any issue relating to the failure to comply with the guideline may not be litigated. 28 C.F.R. § 59.6(b) (1991). "[C]ourts are not charged with enforcing internal governmental guidelines and will not remedy an alleged violation by the dismissal of an indictment...." United States v. McInnis, 601 F.2d 1319, 1328 (5th Cir.1979), cert. denied, 445 U.S. 962, 100 S.Ct. 1649, 64 L.Ed.2d 237 (1980).
13
Rodriguez has not demonstrated any cause for dismissal of the indictment based on seizure of the file.
III. DOUBLE JEOPARDY
14
Rodriguez contends that double jeopardy principles bar this prosecution for conspiracy to possess marijuana with intent to distribute in view of her previous prosecution for the underlying substantive offense of simple possession. Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), directs courts to follow a two-step analysis in resolving double jeopardy claims: the Blockburger1 test and the new Grady test. See Ladner v. Smith, 941 F.2d 356, 359-63 (5th Cir.1991).
15
The Blockburger Test. The first question in the Blockburger phase is " 'whether the offense charged in the subsequent prosecution "requires proof of a fact which the other does not." ' " Ladner, 941 F.2d at 359 (quoting United States v. Calderone, 917 F.2d 717, 720 (2d Cir.1990) (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182), petition for cert. filed, 60 U.S.L.W. 3014 (U.S. Apr. 3, 1991) (No. 90-1527)). The 1989 conspiracy charge requires proof of an agreement and voluntary joinder in that conspiracy. Proof of those facts is not required by the earlier possession charge. Furthermore, neither conspiracy nor possession is a lesser included offense of the other.
16
The 1989 conspiracy prosecution must also be tested to determine whether it is barred under one of the two limited exceptions to Blockburger, noted in Harris,2 and Ashe.3 Ladner, 941 F.2d at 360. The Harris exception does not apply because the second prosecution does not require the defendant to defend against the previous charge (as, in the example of Harris, robbery with a firearm and felony-murder). The Ashe inquiry is whether the second prosecution is collaterally estopped. This prosecution is not collaterally estopped because it does not require relitigation of any factual issue that was necessarily resolved in the first prosecution.4 The issue of Defendant's possession of marijuana (litigated in the first prosecution) need not be relitigated in the instant prosecution of conspiracy.
17
The New Grady Test. Under the new Grady phase of resolving Defendant's double jeopardy claim, the Court examines whether, to establish an essential element of an offense charged in this prosecution, the government will prove conduct that constitutes an offense for which the Defendant has already been prosecuted. Grady, 110 S.Ct. at 2087, 2093; Ladner, 941 F.2d at 361.
18
The essential elements of the offenses in the 1989 indictment are an agreement between two or more persons and the Defendant's willful joinder in that agreement. It is unnecessary to allege or prove an overt act in a drug conspiracy prosecution. United States v. Mann, 615 F.2d 668, 671 (5th Cir.1980), cert. denied, 450 U.S. 994, 101 S.Ct. 1694, 68 L.Ed.2d 193 (1981). The Defendant's arrest with another person in 1987 with 211 pounds of marijuana does tend to prove the essential elements of agreement and joinder. However, George Rodriguez Sr.'s furnishing of bond money to obtain defendant's release in 1987 and defendant's payment of money to Delauney to transport marijuana in July 1987 also tend to prove the essential elements of conspiracy.
19
We agree with the Fourth Circuit on this point:
20
I think we are obliged to apply Grady in a way that gives the "element" component significance. That means barring the second prosecution only when the conduct previously prosecuted is to be used to "establish" the element of the second crime, which I think must mean "constitute the entirety of" the element. If Grady is read more broadly, that is, if the second prosecution is barred whenever the previously prosecuted conduct is to be used only as evidence of an element of the second offense, then we would almost be applying a "same evidence" test.
21
United States v. Clark, 928 F.2d 639, 642 (4th Cir.1991) (emphasis in original) (quoting Calderone, 917 F.2d at 724 (Newman, J., concurring)). A "same evidence" test was rejected in Grady. 110 S.Ct. at 2093 n. 12. Defendant's 1987 possession is only evidence of conspiracy; it does not "establish an essential element" of conspiracy.
22
Accordingly, under the two-step analysis articulated in Grady and Ladner, double jeopardy principles do not bar Defendant's prosecution for conspiracy despite her previous prosecution for possession. In accordance with the foregoing, the rulings of the district court are AFFIRMED; Defendant's request to withdraw her guilty plea is DENIED.
1
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)
2
Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977)
3
Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)
4
In Ashe, a previous trial showed that the defendant was not present at a poker game to rob a victim; collateral estoppel barred a trial for robbing another victim at the same poker game | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1562711/ | 16 So. 3d 823 (2009)
SCHILLER
v.
STATE.
No. 1D07-4807.
District Court of Appeal of Florida, First District.
September 2, 2009.
Decision without published opinion Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564864/ | 67 F.2d 855 (1933)
LEWITH
v.
IRVING TRUST CO.
No. 216.
Circuit Court of Appeals, Second Circuit.
December 11, 1933.
*856 Krause, Hirsch & Levin, of New York City (Sydney Krause, and Morris M. Marcus, both of New York City, of counsel), for appellant.
Joseph & Demov, of New York City (Charles L. Grad and Jacob S. Demov, both of New York City, of counsel), for appellee.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
L. HAND, Circuit Judge.
The creditor, whose claim is here in suit, was the owner of a shop in Pennsylvania which the bankrupt held under lease. The adjudication was on August 24, 1932, and on September 15, 1932, the lessor filed a general claim with the referee for rent in the sum of about $700, to which by amendment he added the heating charges on October 21, 1932, making a total of about $1,000. So matters stood when the six months within which claims could be filed, expired on February 24, 1933. Thereafter the trustee filed objections to the claim, which came on to be heard before the referee on May 23, 1933, when the parties composed their differences by a stipulation in open court that the claim should be allowed for $850. Upon this stipulation the referee allowed the claim generally for that amount. The common-law remedy of distress still exists in Pennsylvania, and under section 96 of its Insolvency and Assignment Law (39 PS, Pa.) a lessor has a priority in bankruptcy to the extent that his claim is so secured. This statute is incorporated into the Bankruptcy Law, § 64b (7), as amended by Act May 27, 1926, 11 USCA § 104 (b) (7). On May 27, 1933, the creditor petitioned the referee to direct the trustee to pay his claim in full, claiming priority on the ground that there were goods of the bankrupt on the premises at petition filed of the value of $850. The petition does not allege that the creditor was ignorant of the value of this property when the claim was originally filed, when it was amended, or when it was allowed; nor that he was ignorant of the Pennsylvania law giving him priority; it alleges no reason whatever why he should be relieved of the allowance. The referee did not grant the petition, but did allow the creditor to amend his claim so as to assert a priority for the reasons alleged. The judge reversed this order, and the creditor appeals.
The statute of limitations (Bankr. Act) section 57n, 11 USCA § 93 (n), does not prevent a creditor who has filed an unsecured claim, from amending it into a secured claim, and asserting his security, after the period for filing has expired. In re Ashland Steel Co., 168 F. 679 (C. C. A. 6); Maxwell v. McDaniels, 195 F. 426 (C. C. A. 4); In re Fisk & Robinson (D. C.) 185 F. 974; In re Hamilton Automobile Co., 209 F. 596 (C. C. A. 7); Ensley v. First National Bank (D. C.) 17 F.(2d) 603. Such an amendment does not change the cause of action, like that in Re Miller & Co., 45 F.(2d) 115 (C. C. A. 2); the claim rests upon the same debt as before. All that is added is a statement to show that for its payment some security is available either by agreement, or by force of law. The referee was therefore within his powers, and the only question is whether facts existed calling for their exercise. The Bankruptcy Act, § 57k, 11 USCA § 93 (k), gives power to the court to reconsider for "cause" claims allowed, "according to the equities of the case," until the estate has been closed. So far as concerns the formal allowance of the claim by mere filing, "the equities of the case" may require nothing more than that the creditor wishes to amend, and is not estopped. Maxwell v. McDaniels, supra (C. C. A.) 195 F. 426; Wuerpel v. Commercial, etc., Bank, 238 F. 269, 272 (C. C. A. 5); In re Myers (D. C.) 99 F. 691. It is true that in Re O'Gara Coal Co. (C. C. A. 7) 12 F.(2d) 426, 46 A. L. R. 916, the creditor was not allowed by amendment to set up a secured claim, but the case was exceptional; the creditor had been fully advised of all the facts and had in effect chosen to abandon the security which was worthless at the time. Except for the referee's allowance of the claim, we may therefore assume that the amendment would have been proper. But an allowance after objection is another matter; there has been a litigation upon issues, settled by the decision of a court. Such an allowance has *857 all the substantial elements of a judgment, and has the effect of a judgment; it is res judicata between the parties, not only in other suits, but in the bankruptcy proceedings themselves. Hargadine, etc., Co. v. Hudson, 122 F. 232 (C. C. A. 8); Stearns, etc., Co. v. Hammond, 217 F. 559, 564 (C. C. A. 6); Breit v. Moore, 220 F. 97 (C. C. A. 9); Ullman, Stern & Krausse v. Coppard, 246 F. 124 (C. C. A. 5); In re Small Shoe Co., 5 F.(2d) 956 (C. C. A. 2). Cf. Lesser v. Gray, 236 U.S. 70, 35 S. Ct. 227, 59 L. Ed. 471.
So far as we can see, no "equities of the case" show any "cause" for the reconsideration of this allowance. As we have said, the petition does not allege that the creditor was ignorant of the amount of property on the premises when the petition for adjudication was filed, or even that he was ignorant of the law of Pennsylvania giving him a priority; he may merely have neglected to assert his rights. We do not forget that the bankruptcy court had appraised the property on the premises at forty-nine dollars; the creditor does not claim to have been misled by this, or even to have been aware of it. A Pennsylvania attorney had been in charge of the matter until the trustee objected to the claim; it does not appear that he was ignorant of the Pennsylvania law, or of the amount of property on the premises. When the objections were filed, this attorney retained a New York attorney, and it does appear, though dehors the petition, that he did not know of the Pennsylvania statute, and that he made the stipulation acting upon that ignorance. Thus the most that we can assume is that the creditor and his Pennsylvania attorney failed to advise the New York attorney of the facts or the law; we cannot supplement their petition, or take anything in their favor which they have not said. The ignorance of the New York attorney in such a setting does not appear to us enough to justify reconsidering an allowance made after objection. No one would suppose it enough to set aside a judgment, and for this purpose the allowance is such. It is a firmly fixed doctrine of our jurisprudence that a matter once brought before a court and finally decided, shall not be reopened without good reason. The parties on their day in court are bound to present any facts and arguments then available to them. The very purpose of the proceeding is to settle the dispute; the "equities of the case" make more for the avoidance of repeated litigation than to excuse the negligence of a party.
Order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564869/ | 691 S.W.2d 722 (1985)
Anthony B. DELGADO, Appellant,
v.
The STATE of Texas, Appellee.
No. 04-84-00240-CR.
Court of Appeals of Texas, San Antonio.
March 27, 1985.
Lawrence L. Garcia, San Antonio, for appellant.
Sam Millsap, Jr., Kirk Sherman, Phylis West, Edward F. Shaughnessy, III, Criminal Dist. Attorney's Office, San Antonio, for appellee.
Before CANTU, TIJERINA and DIAL, JJ.
OPINION
TIJERINA, Justice.
This is a driving while intoxicated case which involves video taped evidence of a field sobriety test. The trial court, without jury, found appellant guilty as charged and assessed punishment at sixty (60) days confinement, a three hundred dollar fine and court costs. Appellant was placed on probation for a period of two (2) years.
Subsequent to his arrest on suspicion of DWI, appellant was videotaped while performing a field sobriety test which included touching his nose and walking a line. Appellant was required to submit to either a breathalizer test or the videotaped sobriety test. It is suggested that the consent, if any, to the test was not voluntary and that appellant did not waive his rights against self-incrimination. The trial court sustained appellant's objection to the audio portion of the videotape; only the video portion of the field sobriety test was admitted in evidence.
The two grounds of error will be addressed jointly. Appellant first complains that the video tape was erroneously admitted in evidence over objection and contrary to the provisions of TEX.CODE CRIM. PROC.ANN. art. 38.22 (Vernon Supp.1985). Secondly, he contends that the admission of such evidence violated his right against *723 self-incrimination guaranteed by the fifth amendment of the Constitution of the United States.
This offense occurred June 15, 1983, which is prior to the effective date of the amendments to TEX.REV.CIV.STAT.ANN. art. 6701l-1. Therefore, the video-tape amendment is not applicable. In Edwards v. State, 551 S.W.2d 731, 733 (Tex.Crim. App.1977), the court spelled out the necessary predicate for the introduction in evidence of sound recordings. This included the requirement that the testimony was elicited voluntarily and without any kind of inducement. However, in this case the sound recording containing the questioning of defendant by the police was excluded because the court sustained appellant's objection to its admissibility.
The rulings in other jurisdictions provide us with guidance as we address this issue. In People v. Strozier, 116 Misc. 2d 103, 455 N.Y.S.2d 217, 219 (N.Y.Just.Ct.1982), the court held that the video tape of defendant taken shortly after his arrest for driving while intoxicated was essentially evidence that "spoke for itself" and was merely a mechanical reproduction of an observation made by an individual who witnessed actions of defendant at time of video taping. In State v. Haefer, 110 Wis. 2d 381, 328 N.W.2d 894 (1982), it was determined that the defendant's fifth amendment rights were not abridged by the admission of a video tape made of defendant performing a field sobriety test. And in State v. Finley, 173 Mont. 162, 566 P.2d 1119, 1121 (1977), the recording of defendant's post arrest words and actions on audio-video tape without his consent or knowledge, and admission of the tape in evidence, did not violate the defendant's privilege against self-incrimination, his right to due process or his right to be secure from unreasonable searches and seizures.
On a related issue involving evidentiary use of a motorist's refusal to take a blood-alcohol test, the United States Supreme Court in South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983), decided that an accused drunk driver's "refusal" to take a blood-alcohol test may be used against him at trial without violating the privilege against self-incrimination. The Court reasoned that the motorist's refusal involved no impermissible coercion on the part of the police or the State and is therefore not protected by the privilege. It was further held that the admission of "refusal" evidence is not subject to challenge on due process grounds even though the accused was not given proper warning. The Court suggested that State may actually force a suspected drunk driver to take a blood-alcohol test. The State's prohibition against self-incrimination is based on article I, section 10 of the Texas Constitution; it is similar to the privilege prescribed by the fifth amendment of the United States Constitution and provides a defendant with the same protection. Olson v. State, 484 S.W.2d 756, 762 (Tex.Crim.App. 1972).
The video tape in this case was nontestimonial, since the audio recording had been deleted. The privilege against self-incrimination guaranteed by both the federal and state constitutions extends only to testimonial communications from a defendant, not to real or physical evidence. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). In Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967), the Court said: "A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic," (Emphasis added.) The taking of a handwriting sample did not violate the fifth amendment privilege against self-incrimination. Motion pictures of a defendant after arrest will be admissible if the person taking the film testifies that he made an examination of the film, and that there were no eliminations or insertions and that the film accurately reproduced the scene taken. See 62 A.L.R. 2d 701. In Housewright v. State, 154 Tex. Crim. 101, 225 S.W.2d 417, 418 (1949), the defendant claimed his constitutional rights were violated when a motion picture was taken while he was under arrest *724 for driving while intoxicated. The court approved the admissibility of the motion picture in evidence, saying:
Evidently the witness could delineate the peculiarities of appellant at the scene of the alleged offense and his demeanor and actions in order to give a basis of their opinion as to his intoxicated condition; and it seems to us to be but a clearer delineation of what they saw and described to the jury if such a scene could thus be shown by a series of pictures taken immediately after his apprehension instead of the eyewitness testifying only from memory.
* * * * * *
Of course, the pictures should be identified as correctly portraying the scene....
Thus, the admissibility ultimately depends on the testimony of the operator of the video camera. The witness Sherman testified that he videotaped appellant; that the video tape machine was operating properly; that the tape did not contain additions, deletions or changes; and that the tape clearly and accurately depicts the events during the video taping of appellant. We find no reversible error and therefore overrule appellant's two points of error.
The judgment of the trial court is affirmed.
CANTU, Justice, concurring.
I agree that the conviction should be affirmed but I would not paint with as broad a brush as the majority elects to do.
Appellant does not invoke Article I, Section 10 of the Texas Constitution and I would not unnecessarily burden the opinion with references to it.
As I understand the record, appellant was given the option of either submitting to an intoxilizer test or being video taped. Upon refusing the intoxilizer test appellant was taken into a special room equipped for video taping of persons suspected of being intoxicated.
While there appellant was read his Miranda[1] warnings and fully advised that he would be subjected to a sobriety test while being filmed. He was further advised that he did not have to participate in the test but if electing to do so, could terminate the test at any time. He was further advised that he would continue to be video taped in any event.
A viewing of the video tape included in the appellate record evidences appellant's willingness to voluntarily participate in the sobriety test. Moreover the video portion appears to conclusively establish nothing other than that appellant performed the required procedures without significant event. In my opinion the trial court's viewing of the video tape could not have influenced the court nor harmed appellant in any manner. The video display of appellant in itself, violates no privilege against self incrimination. Carpenter v. State, 169 Tex. Crim. 283, 333 S.W.2d 391 (1960); Housewright v. State, 154 Tex. Crim. 101, 225 S.W.2d 417 (1949); see also Palmer v. State, 604 P.2d 1106 (Alaska 1979); State v. Strickland, 276 N.C. 253, 173 S.E.2d 129 (1970); State v. Fellows, 47 Ohio App. 2d 154, 352 N.E.2d 631 (1975).
Moreover the other testimonial evidence clearly sufficed to support the conviction independent of any reference to the video tape.
I concur in the affirmance.
NOTES
[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564862/ | 691 S.W.2d 657 (1985)
Roger Leroy DeGARMO aka Quinton Earl Combest, Appellant,
v.
The STATE of Texas, Appellee.
No. 69027.
Court of Criminal Appeals of Texas, En Banc.
March 13, 1985.
Rehearing Denied April 24, 1985.
*659 Kenneth D. Hartfiel, Rosenberg (court appointed), for appellant; David K. Chapman, San Antonio, of counsel.
Timothy Sloan, Sp. Prosecutor, Bay City, William A. Meitzen, Dist. Atty., Richmond, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
TEAGUE, Judge.[*]
Roger De Garmo, aka Quinton Earl Combest, appellant, murdered Kimberley Anne Strickler, a young lady who was only twenty (20) years of age at the time of her untimely death. After finding appellant guilty of capital murder, the jury returned affirmative findings to special issues that were submitted to it by the trial judge pursuant to Art. 37.071(b), V.A.C.C.P. Based upon the jury's answers, the trial judge assessed appellant's punishment at death.
Appellant was accompanied and assisted by an accompliceHelen Leydalia Mejia when he kidnapped and later murdered Strickler. Mejia testified for the State. As a result of a plea bargain agreement with the prosecution, but after appellant's trial, Mejia received ten (10) years' deferred probation for her participation in the abduction and murder of Strickler.
We affirm appellant's conviction and sentence of death.
We overrule appellant's challenge to the sufficiency of the evidence to sustain the jury's verdict finding him guilty of capital murder.
The record on appeal reflects that appellant and Mejia kidnapped Strickler in Harris County after she befriended them by giving them a ride in her automobile. Appellant later forced Strickler to get inside the trunk of her motor vehicle, after which he closed and locked the trunk lid. Later, after driving to a location in Fort Bend County, appellant opened the trunk lid of Strickler's vehicle. Acting with a state of mind which showed a heart regardless of social duty and fatally bent on mischief, appellant then deliberately and intentionally fired one bullet from a pistol into Strickler's head, which wound caused Strickler to die almost instantaneously. Because appellant intentionally murdered Strickler in the course of committing the offense of kidnapping, *660 he is guilty of capital murder. See V.T.C.A., Penal Code, Section 19.03(a)(2).
The record on appeal also reflects that shortly before appellant murdered Strickler, but after he and Mejia had kidnapped Strickler and stolen her automobile, and with Strickler inside of the locked trunk, but still alive, he and Mejia abducted John Moers, which abduction occurred after Moers had also befriended appellant and Mejia by helping them extricate Strickler's vehicle from its then stuck position. Mejia held Moers captive by pointing a pistol at him. With Mejia driving Strickler's vehicle, and Strickler still alive but inside of the locked trunk, and appellant driving Moer's pick-up, with Moers held hostage inside of the cab of his vehicle, appellant and Mejia changed their location. After arriving at the new location, which was out in the country, appellant opened the trunk lid and shot Strickler in the head which caused her death. Thereafter, Mejia drove Strickler's vehicle to another location, at which Strickler's vehicle, with Strickler's body in the trunk, was abandoned. With appellant now driving Moers' vehicle, Mejia sitting in the middle of the cab, and Moers sitting next to the passenger door, the parties proceeded to another location. During this drive, appellant told Moers, "I will kill you too if you try anything, just don't try anything." Soon thereafter, Moers successfully escaped from appellant and Mejia by opening the passenger door and jumping from his vehicle.
As a result of what appears to have been extremely fine investigative work by several members of the Fort Bend County Sheriff's Department, who had been assigned the case after it had apparently been written off by other members of the Sheriff's Department as an unsolved murder, appellant and Mejia were eventually arrested.
Appellant's contention that the evidence is insufficient to sustain the jury's verdict finding him guilty of the capital murder of Strickler is totally without merit because at the punishment stage of the trial he testified and admitted killing Strickler. In so testifying, appellant intentionally, knowingly, and voluntarily rejected his attorneys' advice not to testify at the punishment stage of the trial, even though he had followed their advice at the guilt stage of the trial. Appellant told the members of the jury that they had made the right decision by finding him guilty of committing the capital murder of Strickler. He stated: "I was the one that was there and I was the one that did the crime. So, now you can at least sleep well knowing that you picked the right person and not thinking you might not have ..."
When he testified, appellant also threatened the jurors with death if they answered the special issues submitted to them in such a way that he, appellant, would only receive life imprisonment. He told the jurors that if that happened, i.e., that if he only received a life sentence, he would eventually, either acting individually or in conspiracy with others, cause each juror to die, or, if the juror was no longer alive, he would cause members of the juror's family to die. Appellant made no bones about what he intended to do if the jury's verdict did not result in him receiving the death penalty: "I'm not threatening, I'm promising that if and when some catastrophe happens and I was put back on the street, if you are not available, somebody of your possession would be and I would just say my statement is you should give me the death penalty because that's the only way you're ever going to stop me because you have put me in this position ... I'm going to die any way, so why not take with me some of the people that's going to make me die. That's the way I feel ... so you better ... put the `Yes' on both of them questions from my point of view."
And the record reflects that the jurors did as appellant requestedthey answered both special issues in the affirmative, which caused the death penalty to become the only penalty that the trial judge could assess.
In asserting that the evidence is insufficient to sustain the jury verdict finding him guilty of capital murder, appellant acknowledges that the present law in Texas *661 is that if a defendant does not testify at the guilt stage of the trial, but does testify at the punishment stage of the trial, and admits his guilt to the crime for which he has been found guilty, he has, for legal purposes, entered the equivalent of a plea of guilty. The law as it presently exists is clear that such a defendant not only waives a challenge to the sufficiency of the evidence, but he also waives any error that might have occurred during the guilt stage of the trial. In this instance, appellant unequivocally admitted his guilt to the capital murder of Strickler. We decline appellant's invitation to overrule the above principles of law regarding waiver of a challenge to the sufficiency of the evidence, and hold that because appellant admitted his guilt to the capital murder of Strickler, he waived any challenge to the sufficiency of the evidence. Brown v. State, 617 S.W.2d 234 (Tex.Cr.App.1981); Richardson v. State, 458 S.W.2d 665 (Tex.Cr.App.1970). Also see the cases collected in Smyth v. State, 634 S.W.2d 721, 724 (Tex.Cr.App. 1982) (Teague, J., dissenting opinion); and see also Bodde v. State, 568 S.W.2d 344, 348 (Tex.Cr.App.1978), in which this Court rejected the argument that a defendant was deprived of due process of law because he could not testify at the punishment hearing and admit his guilt without waiving any error that might have occurred during the guilt stage of the trial. This Court held: "We cannot say that this common-sense rule of procedure denied appellant due process of law." (348).
Furthermore, it has long been the law of this State that in reviewing the sufficiency of the evidence, this Court will look to all of the evidence in the case that was adduced at both stages of the trial, and not just that offered or presented by the State. See Davis v. State, 440 S.W.2d 291, 293 (Tex.Cr.App.1969); Bellah v. State, 415 S.W.2d 418 (Tex.Cr.App.1967). Thus, evidence presented at the punishment stage of the trial may be considered in determining whether the evidence is sufficient to sustain a guilty verdict for the primary offense. Compare Branch v. State, 445 S.W.2d 756, 758 (Tex.Cr.App. 1969), (Evidence admitted during the guilt stage of the trial may be considered by the jury in assessing the punishment.)
It is also now axiomatic that this Court, as all appellate courts must do when a challenge to the sufficiency of the evidence is made, will review the facts of the case in the light most favorable to the verdict, in order to make the determination whether any rational trier of fact could find guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Berry, 670 F.2d 583, 588 (5th Cir.1982); Sutherlin v. State, 682 S.W.2d 546, 548-549 (Tex.Cr. App.1984).
Notwithstanding that we find and hold that appellant's admissions that were made at the punishment stage of the trial constitute waiver of his challenge to the sufficiency of the evidence, we have carefully reviewed the evidence, and have done so without even considering Mejia's testimony, and find that circumstantially[1] the evidence is more than sufficient to sustain the verdict of the jury, and would permit a rational trier of fact to find guilt beyond a reasonable doubt. Appellant's ground of error that the evidence is insufficient to sustain the capital murder verdict of the jury is overruled.[2]
*662 Appellant asserts in his second ground of error that "one on trial for his life should not be subject to a conviction and a death penalty when his co-defendant, and the principal witness against him, (subsequently) receives a sentence of remarkable leniency, and the jury is not informed of that fact."
We find that appellant's contention centers upon the fact that almost eighteen months after appellant's trial, the office of the local district attorney entered into a plea bargain agreement with Mejia that was consummated when the trial judge approved the agreement. The plea bargain agreement that was placed into effect provided that in exchange for a plea of guilty to the lesser offense of murder, Mejia was placed on adult probation and the proceedings against her were deferred for a period of ten (10) years.
Considering the active role that Mejia played throughout the ordeal that Strickler was put through prior to appellant needlessly shooting her in the head, and her participation in the robbery and abduction of Moers, and notwithstanding Mejia's claim that she acted at all times under some form of duress, we are inclined to agree with appellant that the punishment Mejia received is relatively light.
However, and notwithstanding our agreement with appellant, we also find that as a matter of law such recommended punishment that was made by the local prosecuting attorney was solely within his discretion and its approval rested solely within the discretion of the trial judge. Thus, in this instance, if we find that the jury was in all things informed of any plea bargain agreement that existed between Mejia and the prosecution, prior to her testifying against appellant, then neither the plea bargain agreement nor its approval by the trial judge concern us.
However, if we find that the jury was not informed of such an agreement or understanding, then we will be compelled to order appellant's conviction and sentence of death reversed because failure of the prosecution to inform the jury of such an agreement or understanding would render appellant's conviction void because the jury had the legal right to know about any agreement or understanding that might have existed between Mejia and the prosecution in order that it might consider what weight to give Mejia's testimony. Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). On the other hand, if we find that the prosecution disclosed to the jury whatever agreement or understanding that might have existed between it and Mejia, the fact that it might be said by some persons that Mejia got "a fantastic deal" from the prosecution does not amount to a violation of either due process or due course of law.
After carefully reading the record on appeal, we are compelled to conclude that there is nothing in the record that might reflect or indicate that other than Mejia would be charged only with the lesser offense of murder, or the offense of kidnapping, about which the jury was informed, no other agreement between Mejia and the prosecution was in effect at the time of appellant's trial. Thus, appellant has not established that he has been denied his right of confrontation. See and compare, however, Harris v. State, 645 S.W.2d 447 (Tex.Cr.App.1983); Burkhalter v. State, 493 S.W.2d 214 (Tex.Cr.App.1973).
Although we believe that it was probably obvious to the jury that in addition to not being charged with the offense of capital murder, Mejia had the hope or expectation that at some time in the future the State would recommend some specific form of leniency as to punishment, nevertheless, we do not find anything in the record on appeal that would reflect or indicate that the jury was misled into believing that, in addition to what they were informed, there might have been some other "deal," "arrangement," or "tacit understanding" that might have existed between Mejia and the local prosecuting attorney when Mejia testified against appellant.
*663 Appellant also appears to argue under this ground of error that because Mejia, his co-defendant, was assessed a punishment that was what he claims disproportionate to his sentence of death that this, without more, is violative of the Eighth Amendment to the Federal Constitution. We disagree.
The death penalty that appellant has been assessed is not cruel and unusual punishment. Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976). There is no constitutional requirement that a co-defendant who testifies for the prosecution must receive the same punishment as the defendant has received, nor is there any constitutional requirement that a comparative proportionality review of appellant's death sentence must be made by an appellate court. Pulley v. Harris, 465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984).
Appellant's second ground of error is overruled.
Appellant asserts in his third and last ground of error that the trial court erred when it, over objection, refused to delete the following underscored portion from the first special issue that the jury was asked to answer: "Do you find from the evidence beyond a reasonable doubt that the conduct of the Defendant, Roger Leroy DeGarmo, that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result?" We first observe that the instruction as given is verbatim to the provisions of Art. 37.071(b)(1), V.A.C.C.P.[3]
Prior to the punishment hearing, the jury had found that appellant had intentionally and knowingly caused the death of Strickler, and further found that Strickler's death occurred in the course of committing the offense of kidnapping of Strickler, all of which was alleged in the indictment against appellant. Cf. King v. State, 594 S.W.2d 425 (Tex.Cr.App.1980).
As we understand appellant's objection that he made in the trial court, his ground of error on appeal, and his argument thereunder, he is not complaining that he did not have sufficient notice in order to prepare against the accusation; we find, instead, that he is complaining that he did not have sufficient notice that at the punishment stage of the trial the State would establish that his conduct that caused Strickler's death could have occurred not only with the reasonable expectation of Strickler's death but that "of another" unnamed person as well. Appellant thus complains that the phrase "or another" in the special issue permitted the jury to speculate that his causing Strickler's death was committed with the reasonable expectation that the death of a person other than Strickler would result. He asserts on appeal that because the evidence reflects that only Strickler could have been the reasonable object of his assault, inserting the phrase "or another" causes the charge to become fundamentally erroneous. For authority, he cites Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979), which was recently overruled by this Court in its decision of Almanza v. State, 686 S.W.2d 157 (Tex.Cr. App.1985), to the extent that Cumbie holds that any fundamental error requires "automatic" reversal.
However, had the jury not been required to first find beyond a reasonable doubt that appellant had deliberately caused the death of Strickler, which it did find beyond a reasonable doubt, and, secondly, had there been other evidence that would have supported or tended to support a finding that appellant caused Strickler's death with the reasonable expectation that the death of a person other than Strickler would result, *664 we believe that appellant's ground of error might have been meritorious.
The undisputed evidence, however, only supports the jury's affirmative finding that appellant's conduct that caused the death of Strickler was committed deliberately and with the reasonable expectation that the death of Strickler, and no other person, would result. Russell v. State, 665 S.W.2d 771, 781 (Tex.Cr.App.1983); Granviel v. State, 552 S.W.2d 107, 122-123 (Tex.Cr. App.1976). Also see Fearance v. State, 620 S.W.2d 577, 584 (Tex.Cr.App.1981); Milton v. State, 599 S.W.2d 824 (Tex.Cr. App.1980).
Furthermore, we also find that had there been a reasonable hypothesis that there was a reasonable expectation that the death of a person other than Strickler would result, when appellant fired the fatal shot that caused Strickler's death, it would have been incumbent upon appellant to have requested the trial court to order the prosecution to reveal who the "other person" was in order to establish that he did not have notice of such fact. In summary, it was incumbent upon appellant to establish that he was surprised by such fact. See and compare what Judge Roberts stated in the concurring opinion he filed in Garcia v. State, 581 S.W.2d 168, 180 (Tex. Cr.App.1979), regarding notice and the admissibility of unadjudicated extraneous offenses at the punishment stage of a capital murder case. In this instance, appellant made no such demand or request. Therefore, we hold that if the trial court erred by inserting the phrase, "or another," in the first special issue, such error was, under the circumstances and facts of this case, harmless beyond a reasonable doubt.
Appellant's third ground of error is overruled.
The judgment of conviction and sentence of death are affirmed.
ONION, P.J., and CLINTON, J., concur in the result.
NOTES
[*] We point out that one of the key investigative witnesses for the prosecution was Deputy Sheriff Billy Frank Teague of the Fort Bend County Sheriff's Department. However, Billy Frank Teague is no relation, by either consanguinity or affinity, to the author of this opinion.
[1] The jury was instructed that this was "a case depending for conviction on circumstantial evidence," and was also instructed on the law of circumstantial evidence. In Hankins v. State, 646 S.W.2d 191, 197 (Tex.Cr.App.1981) (On State's Motion for Rehearing), this Court held that even when a case is dependent upon circumstantial evidence for conviction, an instruction on the law of circumstantial evidence no longer must be given by the trial court.
[2] In Adams v. State, 685 S.W.2d 661 (Tex.Cr. App.1985), this Court rejected the assertion that appellant makes in this cause, that when the prosecution uses an accomplice witness to establish its case against the accused, the sufficiency of the evidence must be reviewed by examining the evidence independent of the accomplice witness' testimony in order to make the determination whether the evidence is sufficient beyond a reasonable doubt to convict the defendant of the crime which he is accused of committing.
[3] Art. 37.071(b)(1), V.A.C.C.P., provides:
"(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result ..." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564887/ | 55 F.2d 67 (1932)
UNITED STATES
v.
KELLY.
No. 135.
Circuit Court of Appeals, Second Circuit.
January 18, 1932.
*68 Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Emanuel Bublick, Asst. U. S. Atty., of Brooklyn, N. Y. and Norman J. Morrison, Special Asst. to Atty. Gen., of counsel), for the United States.
Arthur A. Kestler, of Brooklyn, N. Y. (Anthony A. Marcell, of Brooklyn, N. Y., of counsel), for appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
One Mortimer Kelly was arrested by prohibition agents in the Eastern district of New York upon a charge of having sold to the agents one quart of gin. On the day of the arrest, and before arraignment before a United States commissioner, he was told by the agents that his finger prints must be taken for the use of the Bureau of Prohibition, and that, if he did not permit the finger prints to be taken, they would be taken by force. Kelly submitted and permitted his finger prints to be taken; whereupon he filed a petition in the District Court setting forth the foregoing facts and praying that the finger prints should be returned. The District Court ordered the United States attorney, the prohibition administrator, and whoever should have possession of the finger prints to return them. From that order the United States took the present appeal.
The District Judge delivered an opinion in which he stated that the right to take finger prints in the case at bar did not exist because of the absence of a state or federal statute providing for it and because finger printing subjected "a possible misdemeanant before trial and conviction" to "unnecessary indignity."
The government contends that there is ample authority supporting finger printing upon arrest irrespective of statute, that finger printing is necessary to ascertain whether a defendant has been previously convicted so as to plead the prior conviction as provided in section 29, title 2, of the National Prohibition Act (27 USCA § 46), and that finger printing is not an infringement of constitutional rights.
Such means for the identification of prisoners so that they may be apprehended in the event of escape, so that second offenders may be detected for purposes of proper sentence where conviction is had, and so that the government may be able to ascertain, as required by section 29, title 2, of the National Prohibition Act, whether the defendant has been previously convicted, are most important adjuncts of the enforcement of the criminal laws.
Any restraint of the person may be burdensome. But some burdens must be borne for the good of the community. Crowley v. Christensen, 137 U. S. at page 89, 11 S. Ct. 13, 34 L. Ed. 620; Jacobson v. Massachusetts, 197 U. S. at page 26, 25 S. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765; Molineux v. Collins, 177 N. Y. at page 399, 69 N.E. 727, 65 L. R. A. 104. The slight interference with the person involved in finger printing seems to us one which must be borne in the common interest.
Arrest upon probable cause and search of the person in connection with the arrest and seizure of evidences of crime have long been allowed. Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Marron v. United States, 275 U.S. 192, 48 S. Ct. 74, 72 L. Ed. 231; People v. Chiagles, 237 N.Y. 193, 142 N.E. 583, 32 A. L. R. 676. Yet the person arrested and thus humiliated may be entirely innocent. The New York Court of Appeals in People v. Gardner, 144 N.Y. 119, 38 N.E. 1003, 28 L. R. A. 699, 43 Am. St. Rep. 741, held it lawful to take a prisoner accused of murder before his dying victim to be identified. The same court in People v. Van Wormer, 175 N.Y. 188, 67 N.E. 299, sustained the action of the public authorities in taking the shoes from the defendants, after their arrest on a charge of murder, and placing them in the foot marks which led to the house of the deceased in new fallen snow. And in Holt v. United States, 218 U. S. at page 252, 31 S. Ct. 2, 6, 54 L. Ed. 1021, 20 Ann. Cas. 1138, the Supreme Court regarded testimony that a prisoner had been compelled to put on a blouse which was found to fit him as competent evidence that the blouse belonged to him. Justice Holmes *69 said that "* * * the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof."
Finger printing seems to be no more than an extension of methods of identification long used in dealing with persons under arrest for real or supposed violations of the criminal laws. It is known to be a very certain means devised by modern science to reach the desired end, and has become especially important in a time when increased population and vast aggregations of people in urban centers have rendered the notoriety of the individual in the community no longer a ready means of identification.
The Maryland Court of Appeals held that it was lawful, though before conviction, to photograph and measure under the Bertillon system a person arrested on a felony charge. Downs v. Swann, 111 Md. 53, 73 A. 653, 23 L. R. A. (N. S.) 739, 134 Am. St. Rep. 586. In Maryland no statute existed authorizing such means of identification. The Supreme Court of Indiana reached a similar conclusion in State ex rel. Bruns v. Clausmeier, 154 Ind. 599, 57 N.E. 541, 50 L. R. A. 73, 77 Am. St. Rep. 511, and O'Brien v. State, 125 Ind. 38, 25 N.E. 137, 9 L. R. A. 323, and so did the Supreme Court of Arkansas in Mabry v. Kettering, 92 Ark. 81, 122 S.W. 115. The Court of Appeals of the District of Columbia is in accord. Shaffer v. U. S., 24 Ohio App. D. C. 417. The Court of Chancery of New Jersey in Bartletta v. McFeeley, 107 N. J. Eq. 141, 152 A. 17, held only a year ago, and in the absence of a statute, that a prisoner who had been arrested for possessing papers pertaining to a lottery was lawfully subjected to photographing, finger printing, and measurement under the Bertillon system. To the same effect is the opinion of the New York Court of General Sessions in People v. Sallow, 100 Misc. Rep. 447, 165 N. Y. S. 915, and of the Supreme Court of the District of Columbia in United States v. Cross, 9 Mackey (20 Dall. C.) at page 382.
It is true that the Appellate Division of the New York Supreme Court in Hawkins v. Kuhne, 153 A.D. 216, 137 N. Y. S. 1090, affirmed 208 N.Y. 555, 101 N.E. 1104, may be thought to have held that photographing and measuring a prisoner before conviction were unlawful in the absence of a statute. But the opinion was in a case where the arresting officers refused to take the prisoner before a magistrate for a hearing prior to being photographed and measured. After photographing and measurement he was taken to court and held only for vagrancy and admitted to bail. Thereupon he was rearrested on the original charge of embezzlement based upon a cable from the Governor of Porto Rico under which the magistrate had refused to hold him after the first arrest. The photographing and measuring in connection with the first arrest were held by the Appellate Division to constitute an unlawful assault, and the imprisonment under the second arrest to amount to false imprisonment by the officer ordering the acts to be done. Justice Woodward in the Appellate Division stated that the counsel for the appellant did not question that the taking of the plaintiff's picture before the conviction was an illegal act and that an assault was thereby committed, citing with approval Justice Burr's opinion at Special Term in Gow v. Bingham, 57 Misc. Rep. 66, 107 N. Y. S. 1011, in which it was said that photographing and finger printing prior to conviction were, in the absence of legislative authority, an unlawful invasion of personal rights. Three out of the seven judges of the Court of Appeals which affirmed a judgment awarding damages to the plaintiff did so upon the opinion of Justice Woodward, but the remaining four only concurred in the result. The argument on appeal seems to have somewhat turned on whether the particular police officer who gave the various orders was personally responsible. The liability for the photographing and measuring may well have depended upon the unreasonableness of these acts at a time when the prisoner was demanding an instant hearing in the hope of obtaining a discharge without being submitted to any indignities. But, in any event, the case as submitted was upon the concession by defendant's counsel that "the taking of the plaintiff's picture before conviction was an illegal act," Hawkins v. Kuhne, 153 A.D. 219, 137 N. Y. S. 1090, so that the point involved here was not properly before the court. As for the opinion of Justice Burr in Gow v. Bingham, 57 Misc. Rep. 66, 107 N. Y. S. 1011, his remarks about measurement and finger printing, were clearly not necessary to his decision which was only that a writ of mandamus did not lie to compel the Police Department to destroy the photographs, records, and impressions taken from the prisoner.
*70 But the New York Law of Criminal Procedure, though its statute only provides for taking "thumb prints" in cases where the person arrested is charged with a felony or with certain specified misdemeanors (Code of Criminal Procedure, § 940), does not regulate the methods which federal officials may employ for securing identification while they hold prisoners in custody. Section 1014 of the United States Revised Statutes (18 USCA § 591) as the trial judge said in the case at bar, states in effect that "an offender against any law of the United States may be arrested, imprisoned and bailed `agreeably to the usual mode of process against offenders in such state.'" We said in Marsh v. United States (C. C. A.) 29 F.(2d) 172 at page 174, that section 1014 "relates only to the practice when a warrant issues," and none seems to have issued here. But, aside from this, the section does not in terms cover the matters we are considering, and it has been construed rather strictly. Marsh v. United States (C. C. A.) 29 F.(2d) at page 174; Roth v. United States (C. C. A.) 294 F. 475; United States v. Powlowski (D. C.) 270 F. 285; Cohen v. United States (C. C. A.) 214 F. at page 28; United States v. Kerr (D. C.) 159 F. 185.
We find no ground in reason or authority for interfering with a method of identifying persons charged with crime which has now become widely known and frequently practiced both in jurisdictions where there are statutory provisions regulating it and where it has no sanction other than the common law.
The appellee argues that many of the statutes and the decisions in common-law states have allowed finger printing only in case of felonies. But, as a means of identification, it is just as useful and important where the offense is a misdemeanor, and we can see no valid basis for a differentiation. In neither case does the interference with the person seem sufficient to warrant a court in holding finger printing unjustifiable. It can really be objected to only because it may furnish strong evidence of a man's guilt. It is no more humiliating than other means of identification that have been universally held to infringe neither constitutional nor common-law rights. Finger printing is used in numerous branches of business and of civil service, and is not in itself a badge of crime. As a physical invasion it amounts to almost nothing, and as a humiliation it can never amount to as much as that caused by the publicity attending a sensational indictment to which innocent men may have to submit.
Finger printing may also be justified in prohibition cases as a means of ascertaining whether a defendant has been previously convicted, so that the prior conviction can be pleaded as required in section 29, title 2, of the National Prohibition Act. Where a statute imposes a duty, it carries by implication every reasonable means necessary to effectuate the desired end. City of New York v. Sands, 105 N.Y. 210, 11 N.E. 820; Dooley v. Pennsylvania R. Co. (D. C.) 250 F. 142. We prefer, however, to rest our decision upon the general right of the authorities charged with the enforcement of the criminal law to employ finger printing as an appropriate means to identify criminals and detect crime.
It should be added that all United States attorneys and marshals are instructed by the Attorney General not to make public photographs, Bertillon measurements or finger prints prior to trial, except when a prisoner becomes a fugitive from justice, and are required to destroy or to surrender to the defendant all such records after acquittal or when the prisoner is finally discharged without conviction. There is therefore as careful provision as may be made to prevent the misuse of the records and there is no charge of any threatened improper use in the present case.
Upon the proofs submitted we find no justification for ordering the return of the finger prints of Mortimer Kelly, and the order directing such return is accordingly reversed, with direction to the District Court to dismiss the petition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2459586/ | 392 S.W.2d 950 (1965)
Buford HILL, Jailer, Metropolitan Jail of Nashville and Davidson County, Tennessee, Plaintiff in Error,
v.
STATE of Tennessee ex rel. Mitchell D. PHILLIPS, Defendant in Error.
Supreme Court of Tennessee.
August 3, 1965.
*951 Neill S. Brown, Metropolitan Atty., Gilbert S. Merritt, Jr., Associate Metropolitan Atty., Nashville, for plaintiff in error.
Dan Garfinkle, Nashville, for defendant in error.
WHITE, Justice.
Mitchell D. Phillips was fined $50.00 and sentenced to serve fifteen days in the Metropolitan Workhouse of Nashville and Davidson County, by the Judge of Division II of the Metropolitan Court, for driving an automobile on a revoked driver's license in express violation of T.C.A. § 59-716. This section provides that any person who drives a motor vehicle on any public highway of Tennessee when his license to do so is canceled, suspended or revoked, shall be guilty of a misdemeanor, and upon conviction shall be punished by imprisonment by not less than two days nor more than six months, and there may also be imposed, in addition thereto, a fine of not more than $500.00.
The usual mittimus was issued by said judge commanding the jailer, Buford Hill, to receive and safely keep Phillips in jail until the completion of his sentence, or until released by due course of law. Within a short time after being so confined, the relator, Phillips, filed a petition for the writ of habeas corpus, alleging that he was being illegally and unlawfully restrained of his liberty, because the said Court imposing the sentence lacked authority or jurisdiction to do so.
The defendant Hill, in his official capacity as Jailer of the Metropolitan Jail of Nashville and Davidson County, answered by saying that Phillips was not illegally restrained of his liberty. He expressly averred in said answer that Division II of said Metropolitan Court had jurisdiction and authority to levy a fine against the petitioner of $50.00 and to sentence him to serve fifteen days in the Metropolitan Workhouse. The defendant also averred that Phillips executed a waiver of trial by jury and that the sentence imposed was valid and legal in all respects.
Upon the hearing the trial judge held that said Metropolitan Judge did not have the authority or jurisdiction to impose a jail sentence upon a defendant charged with the violation of a State statute. In so holding he referred to two sections of the Metropolitan Charter, the first being § 14.01, viz.:
There shall be a Metropolitan Court consisting of two divisions, to be designated Division I and Division II, with one judge for each division. Division I of the Court shall have exclusive jurisdiction to hear, try and dispose of cases involving the breach of any ordinance of the Metropolitan Government, excepting traffic violations, and to impose fines for the breach of such ordinances. Division II of the Court shall have the exclusive jurisdiction to hear, try and dispose of cases in which violations of the Metropolitan traffic laws, ordinances and resolutions may be charged, or in which offenses under the general laws of the State involving vehicular operations are charged, and to impose fines for the breach of any such laws, ordinances or resolutions. The Judges shall have power to remit fines and to release or suspend sentences imposed by them.
The Judges of the Metropolitan Court shall have jurisdiction to bind over offenders to the Grand Jury where probable cause is found to exist in cases involving violations of the criminal laws of the State and in lieu of bond to commit to jail the persons charged and also jurisdiction in misdemeanor cases to *952 bind over to the General Sessions Court.
The second section referred to is § 14.06, which provides that appeals from the judgment of the Metropolitan Court shall be to the Circuit Court of Davidson County, or they may be reviewed by said court by the writ of certiorari. All such cases so appealed or taken by certiorari to the Circuit Court from the Metropolitan Court shall be tried by the Circuit Judge without the intervention of a jury.
The broad question to be resolved here is whether one charged with the offense of driving an automobile on a revoked license in violation of the State statute aforesaid, may be tried and sentenced for such violation by said Metropolitan Traffic Court.
In determining this matter, we look first to the basic law authorizing the creation of our judicial system and we find that by Article 6, § 1 of the Constitution, provision is made for the judicial power of the State to be vested in one Supreme Court, and in such Circuit, Chancery, or other inferior courts as the Legislature shall from time to time ordain and establish in the judges thereof, and in the justices of the peace. Said section also provides that the Legislature may vest such jurisdiction in corporation courts as may be deemed necessary. [Corporation courts are, of course, municipal courts.]
In the case of State ex rel. Haywood v. Superintendent, Davidson County Workhouse, 195 Tenn. 265, 259 S.W.2d 159 (1953), it was held that the Legislature may establish, as a part of the governmental machinery of a municipality, "a corporation court" with limited jurisdiction and this would not be a delegation of judicial power within the meaning of the Constitution, such as one imposing a penalty for what is commonly known as small offenses. That is, a violation of municipal ordinances. The violation of such ordinances partakes more or less of a civil wrong. Bristol v. Burrow, 73 Tenn. 128 (1880); Memphis v. Smythe, 104 Tenn. 702, 58 S.W. 215 (1900); and other cases.
It was held in Moore v. State, 159 Tenn. 468, 19 S.W.2d 233 (1929), that municipal governments are instrumentalities of the State for the purpose of local government, and, while ordinarily the jurisdiction of municipal courts is limited to cases involving violation of municipal ordinances, it may be extended by the Legislature to cases arising under the State law.
In the recent case of City of Elizabethton v. Carter County, 204 Tenn. 452, 321 S.W.2d 822 (1958), it was held again that municipal governments are instrumentalities of the State for purposes of local government and the Legislature has absolute control over their creation, modification or abolition, but any such action requires the passage of a law by the Legislature.
It appears, therefore, from all of the authority cited to us by counsel, and which we have been able to locate in our independent research, that a municipal or corporation court has no jurisdiction to hear cases based upon violation of State statutes unless the Legislature has expressly conferred such jurisdiction upon such court. We have been unable to find a private or public act conferring jurisdiction upon the Metropolitan Traffic Court to try and dispose of cases based upon violation of State statutes. We have been cited to none.
Counsel for plaintiff in error argue very forcefully and logically that said Metropolitan Court should have such jurisdiction and with these conclusions we agree. The arguments for economy, efficiency and expeditious handling of traffic cases advanced by counsel for Hill are strong, cogent and convincing, as a matter of public policy, but these arguments for the expansion of municipal court jurisdiction should properly be addressed to members of the General Assembly. We are dealing here with what the law is and not what it should be.
Section 14.01 aforesaid provides that Division II of the Metropolitan Court shall *953 have exclusive jurisdiction to hear, try and dispose of cases in which violation of the Metropolitan traffic laws, ordinances and resolutions may be charged, or in which offenses under the general laws of the State involving vehicular operations are charged, and to impose a fine for the breach of any such laws, ordinances or resolutions.
The Charter Commission assumed that it had the authority to confer such jurisdiction to try "offenses under the general laws of the State involving vehicular operations." But, did it have such authority? We conclude that it did not for the reasons appearing in this opinion.
The authority of the Charter Commission to create and provide for such courts must, of course, be derived from the Metropolitan Government enabling legislation. The pertinent part of T.C.A. § 6-3719 is:
Municipal courts created by the charters of the principal city and smaller cities may be provided for, consolidated or abolished by the charter for metropolitan government as courts thereof * * *.
This could only mean that the Charter Commission had authority to deal with the courts of the Metropolitan Government in the affected area. It is contended on behalf of Hill that the Charter was so drafted
as to make the Traffic Court an integral part of the State system for the enforcement of the State traffic laws. Once the Traffic Court becomes a part of the State system, the court must follow the terms of State law in enforcing the State traffic code in Davidson County, including the State law which prescribes the punishment to be administered.
We are cited to no authority to support the thought that this corporation court is an integral part of the State judicial system or that it has the jurisdiction contended for. While it is true that provision is made for the establishment of corporation courts in the Constitution, the Legislature did not see fit by the general enabling legislation (T.C.A. § 6-3719) to provide that such courts should have such jurisdiction. The section aforesaid merely provides that the municipal courts created by the Charter may be provided for, consolidated or abolished by the Charter for metropolitan governments as courts thereof. That is, as courts of metropolitan governments. No logic could ever support the conclusion that this gave to the Metropolitan Charter Commission authority to create courts having jurisdiction to try State cases.
We have had a limited number of cases submitted to us involving certain aspects of this new type of government and in the first case of Frazer v. Carr, 210 Tenn. 565, 360 S.W.2d 449 (1962), we held that the enabling statutes providing for the establishment of a metropolitan government by consolidation of governmental and corporate functions of cities and counties above a certain population were not void as being an unconstitutional delegation of legislative power. See also Article 11, § 9 of the Constitution.
We agree that the Charter Commission had the power to consolidate governmental and corporate functions, but we are unable to find that any authority was conferred upon the Commission to provide that a Metropolitan Traffic Court would have jurisdiction to try and dispose of cases involving violations of State statutes.
It must be remembered that the Constitution states in Article 6, § 1 that the Legislature may also vest such jurisdiction in corporate courts as may be deemed necessary. This authority runs to the Legislature and since the Legislature failed to provide in said general enabling act for such jurisdiction, and since it only provided that municipal courts created by the charters of the principal city and smaller cities may be provided for, consolidated or abolished by the charter for metropolitan *954 government as courts thereof, we are unable to find that the court in question had authority to try and dispose of the instant case. The trying of violations of State statutes is not a municipal corporate function in the traditional sense of the word under the established law of this State.
We have carefully studied the provisions of said T.C.A. § 6-3719 aforesaid, and in no way can we interpret them as extending the jurisdiction of the municipal court to permit trial and disposition of State offenses. The statute refers solely to the consolidation or abolition of municipal courts and as municipal courts have never been possessed in Nashville with the jurisdiction sought by the plaintiff in error here, we are not permitted to construe the statute as giving to the Metropolitan Traffic Court the jurisdiction which it has exercised in this case.
In Winter v. Allen, 212 Tenn. 84, 367 S.W.2d 785 (1963), we approved the charter provisions which transferred the duties of assessing merchants ad valorem taxes from the county court clerk, where they had been lodged by general statute, to the Tax Assessor of the Metropolitan Government.
In Robinson v. Briley, 213 Tenn. 418, 374 S.W.2d 382 (1963), we approved the transfer of certain functions and duties from the county trustee, lodged there by general statute, to the Metropolitan Treasurer.
In Metropolitan Government of Nashville and Davidson County v. Poe, 215 Tenn. ___, 383 S.W.2d 265 (1964), we affirmed the principle set out in the cases just referred to that the duties imposed by general statute could be transferred by the Charter from one metropolitan official to another and cited as authority for such action T.C.A. § 6-3702, which provides for the consolidation of all or substantially all of the governmental and corporate functions vested in municipal corporations.
The instant case, however, is not one of consolidation or transfer of power or authority from one court to another, but it is a conferring of jurisdiction upon a municipal court, a corporation court, power and authority not expressly authorized by legislative act.
We hold, under the law as it now exists, that the Traffic Court of the Metropolitan Government of Nashville and Davidson County has no authority to try and dispose of cases involving the violation of State statutes.
The trial court was correct in sustaining the writ of habeas corpus. Therefore, the assignments of error are overruled. Affirmed.
BURNETT, C.J., and DYER, HOLMES and CHATTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3034578/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-2343
___________
United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Raymond A. Poitra, * District of North Dakota.
*
Appellant. * [UNPUBLISHED]
*
___________
Submitted: May 7, 2004
Filed: May 24, 2004
___________
Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Raymond A. Poitra pleaded guilty to charges relating to his embezzlement and
theft of funds from an Indian tribal organization owned by the Turtle Mountain Band
of Chippewa Indians. The district court1 sentenced him to 57 months imprisonment
and 2 years supervised release, and ordered restitution of $577,397. Poitra appeals.
1
The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.
The government moves to dismiss on the basis of an appeal waiver contained
in the plea agreement. Poitra’s counsel has moved to withdraw and filed a brief under
Anders v. California, 386 U.S. 738 (1967), noting the appeal waiver and suggesting
that no appealable issues exist. Poitra has filed a pro se supplemental brief raising
issues related to his counsel’s effectiveness and the validity of his guilty plea.
We enforce the appeal waiver and grant the government’s motion to dismiss
this appeal. See United States v. Andis, 333 F.3d 886, 889-90 (8th Cir.) (en banc),
cert. denied, 124 S. Ct. 501 (2003). Having reviewed the record independently under
Penson v. Ohio, 488 U.S. 75 (1988), we have found no nonfrivolous issues falling
outside the scope of the appeal waiver. Accordingly, we grant counsel’s motion to
withdraw.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1924855/ | 925 A.2d 720 (2007)
394 N.J. Super. 159
TRINITY CHURCH, Plaintiff-Appellant,
v.
Atkin Olshin LAWSON-BELL, formerly Tony Atkin Associates; Bruce E. Brooks & Associates; E. Allen Reeves, Inc.; and Gallo Masonry, L.L.C.,[1] Defendants-Respondents, and
Dibiase Construction, Inc.; Ortega Consulting Structural Engineering; Lower Bucks Cooling and Heating; and F & M Rojak Insulation Co., Defendants, and
Gallo Masonry, L.L.C., Defendant/Third-Party Plaintiff-Respondent,
v.
Maria Isabel G. Beas, Third-Party Defendant-Respondent.
Superior Court of New Jersey, Appellate Division.
Argued April 23, 2007.
Decided June 27, 2007.
*721 Adrienne C. Rogove, Princeton, argued the cause for appellant (Saul Ewing, attorneys for appellant; Ms. Rogove, of counsel and on the brief; David C. Kistler, on the brief).
John H. King argued the cause for respondent Atkin Olshin Lawson-Bell (Thompson Becker & Bothwell, Cherry Hill, attorneys; Mr. King, on the brief).
Stephen D. Menard, King of Prussia, PA, argued the cause for respondent Bruce E. Brooks & Associates (Powell, Trachtman, Logan, Carrle & Lombardo, attorneys; Mr. Menard, of counsel and on the brief).
James W. Scott, Jr., Philadelphia, PA, argued the cause for respondent E. Allen *722 Reeves, Inc. (White and Williams, attorneys; Mr. Scott, of counsel and on the brief; Warren E. Kampf, of the Pennsylvania bar, admitted pro hac vice, on the brief).
Louis A. Bove, Philadelphia, PA, argued the cause for respondent Gallo Masonry, L.L.C. (Bodell, Bove, Grace & Van Horn, attorneys; Mr. Bove, of counsel and on the brief; Jay M. Green, on the brief).
Keith L. Hovey, Woodbridge, argued the cause for respondent Maria Isabel G. Beas (Wilentz, Goldman & Spitzer, attorneys; Mr. Hovey, of counsel and on the brief).
Before Judges LINTNER, S.L. REISNER and C.L. MINIMAN.
The opinion of the court was delivered by
S.L. REISNER, J.A.D.
Plaintiff Trinity Church appeals from four trial court orders dismissing on summary judgment its complaint against an architect and several other defendants based on alleged construction defects. We conclude that plaintiff's complaint was properly dismissed because it was filed beyond the statute of limitations which, by contract, commenced on the date of substantial completion of the construction project. While we agree with plaintiff that the standard contract clauses abrogating the discovery rule are subject to equitable tolling, plaintiff did not establish a factual basis for equitable relief. Therefore, we affirm.
I
In 1994, Trinity Church (Trinity) contracted with defendants Atkin Olshin Lawson-Bell (AOL-B or architect) and E. Allen Reeves, Inc. (general contractor), who in turn subcontracted with defendants Bruce E. Brooks & Associates (HVAC and plumbing) and Gallo Masonry, L.L.C. (mason), and third-party defendant Maria Isabel G. Beas (mason consultant).[2] The contracts were for renovations to Trinity's historic church located in Princeton, New Jersey, and construction of an addition to the structure.
The relevant contracts, which were also incorporated by reference in the subcontracts, contained clauses providing that the statute of limitations for any cause of action arising under the contracts would run from the date of "Substantial Completion." The architect's contract provided:
Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of Substantial Completion for acts or failures to act occurring prior to Substantial Completion, or the date of issuance of the final Certificate for Payment for acts or failures to act occurring after Substantial Completion.
The general contractor's contract similarly provided:
As to acts or failures to act occurring prior to the relevant date of Substantial Completion, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of Substantial Completion[.]
By their terms, the contracts pertaining to the architect and its subcontractors are governed by Pennsylvania law, which provides a four-year statute of limitations for *723 construction contract lawsuits, 42 PA. CONS. STAT. § 5525(a)(8) (2006), while those of the general contractor and its subcontractors are governed by New Jersey law, which has a six-year limitation period. N.J.S.A. 2A:14-1. See Gustine Uniontown Assocs. v. Anthony Crane Rental, Inc., 577 Pa. 14, 842 A.2d 334, 349 (2004).
The parties signed a certificate establishing August 1, 1997, as the date of substantial completion of the project. Trinity first noticed problems with the construction in April 2000, particularly problems with the mortar, and began communicating with AOL-B about those issues. The parties, including Reeves and Beas, held a series of meetings at which they discussed possible causes of the problems and possible solutions. Finally, AOL-B hired a consultant, 1:1:6 Technologies, Inc., which investigated and issued a lengthy report in September 2002 detailing the problems it discovered with the construction. Trinity received a copy of the report, but it neither filed suit at that time nor undertook any investigation of its own.
Two years later, on September 13, 2004, Trinity filed a two-count complaint, alleging that a defective mortar had been used in the construction and that the HVAC and plumbing work had been done in a defective manner, causing a mold problem and water damage in the building. After filing suit, Trinity hired an engineering consulting firm to evaluate the construction; this firm issued a report on August 24, 2005, and a second report on October 13, 2005. In September and October 2005, defendants filed motions for summary judgment seeking dismissal of the complaint on statute of limitations grounds. On October 18, 2005, Trinity filed a motion for leave to amend its complaint to "clarify" the existing counts of the complaint, to add defendants, and to add a count concerning defective lamination of the church doors and a count concerning "defects in the wall structure of the Church" based on Trinity's expert reports.
After filing its initial opposition to summary judgment, Trinity changed attorneys on October 25, 2005, and the return date of the summary judgment motions was extended to January 6, 2006. Trinity filed supplemental opposition papers on November 23, 2005. Although its initial motion brief contended generally that discovery was incomplete, none of Trinity's motion submissions indicated specifically what further discovery it needed. The record is barren of any motions by Trinity to compel discovery from other parties. On the other hand, Trinity was in default of its discovery obligations until its new counsel provided discovery in response to a court order.
In an oral opinion placed on the record on January 6, 2006, Judge Jacobson granted summary judgment. Relying on Harbor Court Associates v. Leo A. Daly Co., 179 F.3d 147 (4th Cir.1999), and College of Notre Dame of Maryland, Inc. v. Morabito Consultants, Inc., 132 Md.App. 158, 752 A.2d 265 (2000), she concluded that, in the "Substantial Completion" clauses of the contracts, Trinity bargained away its right to invoke the discovery rule as a means of avoiding the bar of the statute of limitations. Addressing Trinity's claims for equitable relief from the bar of the statute, she reasoned that "[t]here's no claim in this complaint for fraud. There's no claim even for misrepresentation." She also noted that no such claims appeared in the proposed amended complaint which was the subject of plaintiff's motion.
Judge Jacobson found no evidence that defendants had tried to mislead Trinity or to convince plaintiff not to file a lawsuit. She reasoned that the 2002 report from 1:1:6 Technologies revealed "significant cracking" and other problems with the *724 construction, and this should have put plaintiff on notice to investigate and/or file a lawsuit at that time. The judge rejected Trinity's estoppel claim: "[H]ow can I estop the defendants when they were the ones providing most of the information to the plaintiff regarding problems at the church within the New Jersey statute of limitations[?]" She found that "the church had information that there were problems with the work . . . well within the statute of limitations and for whatever reason, which is not clear on the record, they did not file the lawsuit until after the statute of limitations had lapsed." She concluded that no further discovery was warranted and that summary judgment should be granted.
[T]o allow further discovery at this point seems to me to be simply a fishing expedition. . . .
. . . [T]here has been discovery . . . [and] opportunities for discovery and nothing in any of the documents that I've seen suggests that the kind of conduct necessary for an estoppel was present here.
. . . .
. . . And to suggest now that the significance of the latent defects alone should be enough to undo the original contract, AIA contract, to [undo] the church's signing off on the date of substantial completion, I think would effectively destroy the consistency that parties on both sides have a right to rely upon in situations of this nature.
II
Our review of a trial court's grant of summary judgment is de novo, using the Brill standard employed by the trial court. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167, 704 A.2d 597 (App.Div), certif. denied, 154 N.J. 608, 713 A.2d 499 (1998). That is, we consider whether there are any material factual disputes and, if not, whether the facts viewed in the light most favorable to the non-moving party would permit a decision in that party's favor on the underlying issue. Brill, supra, 142 N.J. at 540, 666 A.2d 146.
A party opposing summary judgment on the ground that more discovery is needed must specify what further discovery is required, rather than simply asserting a generic contention that discovery is incomplete. Auster v. Kinoian, 153 N.J.Super. 52, 56, 378 A.2d 1171 (App.Div. 1977). This is particularly significant where the summary judgment motion concerns a statute of limitations defense, since statutes of limitations are designed to accord defendants repose from litigation. See Martinez v. Cooper Hosp.-Univ. Med. Ctr., 163 N.J. 45, 51-52, 747 A.2d 266 (2000).
In this case, defendants seek to enforce contract provisions defining the date on which the statute of limitations commences. The courts of other states have held the clause valid and have held that its purpose is to abrogate the discovery rule. The courts of this State have not addressed the validity or meaning of the clause; however, those issues are not directly before us because plaintiff has not raised them. Rather, all parties have assumed that the clause is valid and that its purpose is to abrogate the discovery rule. See Lopez v. Swyer, 62 N.J. 267, 273-74, 300 A.2d 563 (1973) (discussing the genesis and purpose of the discovery rule). In other words, the clause defines the limitations period as commencing upon the date of issuance of the certification of substantial completion of the structure. Hence, at the latest, any lawsuit must be commenced within six years of that date since that is *725 New Jersey's statute of limitations for lawsuits based on contracts or injury to real property. N.J.S.A. 2A:14-1. Under Pennsylvania law, the limitations period is four years. 42 PA. CONS.STAT. § 5525(a)(8) (2006). Trinity's lawsuit was not filed within the statute of limitations of either state.
Instead of challenging the clause itself, plaintiff argues that the running of the limitations period should be tolled on equitable principles. In order to consider plaintiff's argument, we deem it necessary to review the treatment of this clause by the courts of other states that have addressed it.
Because the architect's contract by its terms is to be construed in accordance with Pennsylvania law, we begin with precedent from that State. In Gustine Uniontown Associates v. Anthony Crane Rental, Inc., 892 A.2d 830, 836-37 (Pa.Super.2006), Pennsylvania's intermediate appellate court held that the "substantial completion" clause in an architect's contract was enforceable and that its unambiguous purpose was to abrogate the discovery rule as applied to causes of action arising under the contract. The court did not rule on the issue of equitable estoppel, because the plaintiff had not raised that issue in the trial court. Id. at 835-36. The court, however, indicated that both doctrines were recognized in Pennsylvania, and cogently explained the distinction between the discovery rule and the theory of equitable estoppel:
The discovery rule is distinct from the issue of whether a party is equitably estopped from invoking the statute of limitations. The discovery rule operates to toll the statute of limitations during the period the plaintiff's injury or its cause was neither known nor reasonably knowable to the plaintiff. The separate doctrine of fraudulent concealment tolls the statute based on an estoppel theory and provides that a defendant may not invoke the statute of limitations if through either intentional or unintentional fraud or concealment, the defendant causes the plaintiff to relax his vigilance or deviate from his duty of inquiry into the facts. Thus, the former doctrine involves a plaintiff's lack of knowledge and the latter doctrine pertains to a defendant's conduct after the cause of action arose.
[Id. at 835 n. 2 (citations omitted).]
New Jersey courts have recognized both doctrines and have noted the same distinctions between them. See Villalobos v. Fava, 342 N.J.Super. 38, 45-46, 775 A.2d 700 (App.Div.), certif. denied, 170 N.J. 210, 785 A.2d 438 (2001).
Relying on precedent from other states, all of which supported enforcement of the clause, and principles of freedom of contract, the appellate court in Gustine held that the clause was valid and enforceable:
We are persuaded by this weight of authority [from other states]. Gustine was not an unversed and unrepresented consumer who could not understand this language. It is a sophisticated business entity fully capable of negotiating on even terms the provisions of its contracts with the benefit of legal counsel. The contract at issue was a standard agreement for contracts between an owner and architect developed by the American Institute of Architects. The stated policy of our Supreme Court is to enforce clear contract language.
[Gustine, supra, 892 A.2d at 839-40.]
The Fourth Circuit Court of Appeals reached the same conclusion in Harbor Court Associates v. Leo A. Daly Co., supra, concluding that under Maryland law the substantial completion clause would be found consistent with that State's judicial policy in favor of freedom of contract:
*726 In light of this established judicial commitment to protecting individuals' efforts to structure their own affairs through contract, we cannot conclude that the Maryland Court of Appeals would decline to allow parties to contract around the state's default rule establishing the date on which a relevant statute of limitations begins to run. This is especially true where, as here, the parties to the agreement are sophisticated business actors who sought, by contract, to allocate business risks in advance. That is, rather than rely on the "discovery rule," which prolongs the parties' uncertainty whether or if a cause of action will lie, the parties to this contract sought to limit that period of uncertainty by mutual agreement to a different accrual date.
. . . Appellants have not alleged that this contract was induced by fraud or duress, or that the bargaining power of the parties was anything but equal. Rather, by all appearances, HCA/Murdock are sophisticated business actors that determined, in the unfettered exercise of their business judgment, that the bargain they received from appellee was adequate consideration for the surrender of the discovery rule's potential advantages.
[Harbor Court Assocs., supra, 179 F.3d at 150-51.]
The court also concluded it would reach the same result if the contract were governed by Nebraska law, based on that state's commitment to upholding the parties' freedom to contract and because the clause does not shorten the statute of limitations; rather it simply establishes the accrual date from which the statute begins to run. Id. at 152-53.
The Maryland Court of Special Appeals reached the same result in College of Notre Dame of Maryland, Inc. v. Morabito Consultants, Inc., supra, 752 A.2d at 271. In rejecting the College's claim that the clause was ambiguous, the court held "that the disputed contract provision is unambiguous and susceptible of only one meaning. It specifies a clear date for accrual of a cause of action." Ibid. The court also concluded that Maryland law permitted parties to contract for reasonable limitations on the time of accrual of a cause of action, and thus they could contract around the discovery rule, provided the contract provision "is not subject to other defenses such as fraud, duress, or misrepresentation." Id. at 273. The Maryland court recognized that the substantial completion clause was standard in the industry and had been upheld by courts in several other states, and found no reason not to enforce it against a party such as the College that had equal bargaining power and presented no proof that it was coerced or defrauded into agreeing to the provision. Id. at 273-75.
In light of the strong public policy in favor of freedom to contract, the recognized ability of parties to agree to a shorter period of limitations, and the construction by other jurisdictions of similar accrual clauses, we conclude that the provision in the parties' contracts that alters the normal rules governing the time for accrual of causes of action is enforceable.
[Id. at 275.]
Several other state courts have reached the same conclusion, based on essentially the same rationale. See Old Mason's Home of Ky., Inc. v. Mitchell, 892 S.W.2d 304, 307-09 (Ky.Ct.App.1995); Oriskany Cent. Sch. Dist. v. Edmund J. Booth Architects, 206 A.D.2d 896, 615 N.Y.S.2d 160, 161 (1994), aff'd, 85 N.Y.2d 995, 630 N.Y.S.2d 960, 654 N.E.2d 1208 (1995); Keiting v. Skauge, 198 Wis.2d 887, 543 N.W.2d 565, 567-68 (App.1995).
*727 While we have not addressed this particular clause, our courts have recognized the validity of contract provisions shortening the limitations period for filing an action so long as they are reasonable:
N.J.S.A. 2A:14-1 sets forth the statute of limitations in New Jersey, but does not prohibit parties to a contract from stipulating to a shorter time period. Plaintiff argues that the Consumer Fraud Act, N.J.S.A. 56:8-1 to -91, which applies to some of her claims, also bars the contractual time limitation. However, the statute of limitations that applies to consumer fraud claims is the same six-year general limitation contained in N.J.S.A. 2A:14-1. Neither of these statutes specifically bars parties from contracting to a shorter time period.
Generally, "[c]ontract provisions limiting the time parties may bring suit have been held to be enforceable, if reasonable." Eagle Fire Protection Corp. v. First Indem. of Am. Ins. Co., 145 N.J. 345, 354, 678 A.2d 699 (1996) (citations omitted). Such provisions are accepted by the courts as long as they do not violate public policy. A.J. Tenwood Assoc. v. Orange Senior Citizens Housing Co., 200 N.J.Super. 515, 523-24, 491 A.2d 1280 (App.Div.), certif. denied, 101 N.J. 325, 501 A.2d 976 (1985).
[Mirra v. Holland Am. Line, 331 N.J.Super. 86, 90-91, 751 A.2d 138 (App. Div.2000).]
Based on the foregoing discussion we conclude that the clause at issue is valid under Pennsylvania law, and if the issue were before us we would be inclined to conclude that the clause is valid under New Jersey law. While our conclusion is dicta in the sense that plaintiff is not contesting the validity of the clause, we deem it significant in that we find no basis to treat this clause with any less deference than we would any other provision of a private contract. Normally we will enforce a contract freely negotiated at arms' length and will not make a better contract for the parties than that for which they bargained. See Solondz v. Kornmehl, 317 N.J.Super. 16, 21-22, 721 A.2d 16 (App. Div.1998).
While the clear purpose of the clause is to abrogate the discovery rule, the courts of other states have indicated that enforcement of the clause may be subject to equitable defenses. See Gustine, supra, 892 A.2d at 835 n. 2; Coll. of Notre Dame, supra, 752 A.2d at 275-76; Oriskany Cent. Sch. Dist., supra, 615 N.Y.S.2d at 161. Thus we turn to plaintiff's equitable arguments.
First, we conclude that although the clause abrogates the discovery rule, it is still subject to equitable tolling in certain circumstances. Like the courts of other states that have interpreted the clause, our courts have generally recognized that a defendant may be denied the benefit of a statute of limitations where, by its inequitable conduct, it has caused a plaintiff to withhold filing a complaint until after the statute has run. See Pressler, Current N.J. Court Rules, comment 36.4.1 on R. 4:5-4 (2007) ("The doctrine of equitable tolling is typically applied to relieve a plaintiff who has been induced or tricked by defendant into missing a deadline."); Price v. N.J. Mfrs. Ins. Co., 368 N.J.Super. 356, 363, 846 A.2d 617 (App.Div.2004), aff'd, 182 N.J. 519, 867 A.2d 1181 (2005); Villalobos v. Fava, supra, 342 N.J.Super. at 50, 775 A.2d 700.
The requirements of equitable estoppel are quite exacting. We have defined equitable estoppel as
the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . as against *728 another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse. . . .
In contract actions, equitable estoppel has been used to prevent a defendant from asserting the statute of limitations when the defendant engages in conduct that is calculated to mislead the plaintiff into believing that it is unnecessary to seek civil redress. Thus, we have recognized that equitable estoppel may be appropriate where "a defendant has lulled a plaintiff into a false sense of security by representing that a claim will be amicably settled without the necessity for litigation."
[W.V. Pangborne & Co. v. N.J. Dep't of Transp., 116 N.J. 543, 553-54, 562 A.2d 222 (1989) (citations omitted).]
Likewise, estoppel may arise if a defendant wrongfully conceals or withholds information which it has a duty to provide to the plaintiff, thus causing the plaintiff to miss a filing deadline. See Mosior v. Ins. Co. of N. Am., 193 N.J.Super. 190, 196-97, 473 A.2d 86 (App.Div. 1984). However, a plaintiff must act with reasonable diligence once it obtains the information necessary to file its action and cannot invoke equitable tolling if it has the information in sufficient time to comply with the limitations period:
[I]t is the law of this state that if, after the cessation of any basis for continued reliance by a plaintiff on the conduct of a defendant, there remains a reasonable time under the applicable limitations period to commence a cause of action, the action will be barred if not filed within this remaining time. See Ochs v. Federal Ins. Co., 90 N.J. 108, 116-117, 447 A.2d 163 (1982); Evernham v. Selected Risks Ins. Co., 163 N.J.Super. 132, 137, 394 A.2d 373 (App.Div.1978), certif. denied 79 N.J. 479, 401 A.2d 235 (1979). Here, the three-year period of limitations began to run on November 28, 1972. Even making the dubious assumption that plaintiff first obtained knowledge of the existence of the [insurance] policy in January of 1974, he still had 22 months to commence this action within the applicable limitation period, which ended on November 28, 1975. As such, he may not invoke the doctrine of equitable estoppel.
[Id. at 197, 473 A.2d 86 (emphasis added).]
See also, Binder v. Price Waterhouse & Co., 393 N.J.Super. 304, 312-14, 923 A.2d 293 (App.Div.2007). Although Mosior involved insurance coverage, the same reasoning applies to cases involving construction contracts. See Torcon, Inc. v. Alexian Bros. Hosp., 205 N.J.Super. 428, 437, 501 A.2d 182 (Ch.Div.1985), aff'd o.b., 209 N.J.Super. 239, 241, 507 A.2d 289 (App.Div.), certif. denied, 104 N.J. 440, 517 A.2d 431 (1986).
Having reviewed the record, we conclude that the undisputed evidence in this case is insufficient to establish Trinity's equitable estoppel claim or its related claim that it is entitled to invoke the discovery rule despite the clause. First, there is no evidence that defendants lulled Trinity into missing the filing deadline by concealing the seriousness of defects in the construction or by promising to repair all of the defects without the need for litigation. Cf. Amodeo v. Ryan Homes, Inc., 407 Pa.Super. 448, 595 A.2d 1232, 1237 (1991) (adopting the "repair doctrine," which tolls the statute of limitations where a contractor lulls the customer into inaction by undertaking to repair its defective work and promising that its repairs will fix the problem); Senior Hous., Inc. v. Nakawatase, Rutkowski, Wyns & Yi, Inc., 192 Ill.App.3d 766, 139 Ill.Dec. 878, 549 N.E.2d 604, 608-09 (1989) (equitable estoppel *729 found where architect accepted responsibility for directing repair work over a period of years). The meeting minutes between Trinity and its consultants do not indicate that defendants promised to fix the problems, or that they portrayed the problems as minor, or that they even represented that they knew for certain what caused the problems.
The evidence also indicates that long before the limitations period expired, Trinity was on notice of the very types of problems it now claims its experts only discovered years later. At a December 7, 2001 meeting, the architect and the engineering consultant, Rick Ortega, discussed problems with possible use of the wrong kinds of setting pins to anchor the coping stones and the need to remove the coping stones and re-set them "with the proper detail." The memorandum of that meeting was not concealed. Rather, it was given to the consultant, 1:1:6 Technologies, which included it in the list of documents consulted, as an appendix to its 2002 report, which was given to Trinity. The 2002 report also contains multiple references to the need to pin the coping, "[l]ack of mechanical anchorage between the face stone and the back-up CMU," "[i]nsufficient embedment of pins holding [the] coping," and "[f]ailure of anchorage of coping support pins in both coping unit and back-up CMU." These are the types of problems Trinity claims its experts uncovered in the 2005 reports.
Trinity has provided no explanation as to why it did not file suit until 2004, when it had the 1:1:6 Technologies report in 2002, or why it did not hire its own consultant to follow up on the 1:1:6 Technologies report until 2005, after it filed suit. See Torcon, Inc., supra, 205 N.J.Super. at 436-38, 501 A.2d 182.
In opposing summary judgment, Trinity presented a certification from its Associate Rector, explaining that prior to receiving the 1:1:6 Technologies report in September 2002, Trinity had discovered a mold problem in the summer of 2002, and it needed to deal with that "emergent condition." His certification, however, does not indicate when the mold problem was remediated, when "it was established by our experts that the mold was not related to the masonry issues," and why Trinity did not file suit sooner if it did believe that its pervasive mold problem was related to the masonry issues. In fact, count two of Trinity's 2004 complaint alleged that defendants were responsible for the mold problem.
In short, nothing in this record explains why Trinity waited two years to file its lawsuit, when it was on notice in September 2002 that there were significant problems with the construction. Nor is there any explanation on this record as to why Trinity did not conduct its own investigation for three years after it was on notice that there were problems with the structure. We agree with the trial judge that there is no evidence that defendants tricked or lulled plaintiff into letting the statute of limitations expire. We next turn to plaintiff's alternate argument concerning alleged fraud.
At oral argument of the summary judgment motion, Trinity's counsel asserted a new theory of plaintiff's case that defendants fraudulently certified that the structure was substantially complete. Trinity repeats that argument on appeal. Putting aside the impropriety of Trinity's asserting a new legal contention for the first time at a motion argument, and assuming that intentional fraud might justify denying defendants the benefit of the substantial completion clause, we address plaintiff's argument. We conclude that the argument is based on a mistaken understanding of "substantial completion" and that in *730 any event the record does not support this theory of recovery.
We first address plaintiff's predicate argument that the event defined by the clause as commencing the running of the statute, i.e., the issuance of the certificate of "substantial completion," is equivalent to a certificate that the construction is in substantial compliance with the contract or that there are no major construction defects. Based on that argument, plaintiff contends that the architect fraudulently certified the project as being substantially complete. Plaintiff's argument is based on an incorrect interpretation of "substantial completion" as that term is understood in the construction industry.
Contrary to plaintiff's contention, the term "substantial completion" does not mean "substantial compliance" with the contract or an absence of defects. As our Supreme Court has recognized, substantial completion is a term of art in the construction industry and it has a well-recognized meaning.
"Substantial completion has a definite meaning in the construction industry." Perini Corp. v. Greate Bay Hotel [ & ] Casino, Inc., 129 N.J. 479, 500, 610 A.2d 364 (1992), overruled on other grounds by In re Tretina Printing, Inc. v. Fitzpatrick & Assoc., Inc., 135 N.J. 349, 640 A.2d 788 (1994). The American Institute of Architects (AIA) distributes widely-used forms that define and use the concept of "substantial completion." See Perini, supra, 129 N.J. at 500, 610 A.2d 364 (citing Justin Sweet, Sweet on Construction Industry Contracts: Major AIA Documents § 1.1 (1987)). Substantial completion is defined by the AIA (and the contract in this case, which was modeled on an AIA form) as the date when "construction is sufficiently complete . . . so the owner can occupy or utilize" the building. Substantial completion occurs when the architect certifies such to the owner and a certificate of occupancy is issued attesting to the building's fitness. See id. at 501, 610 A.2d 364. At that point, the building is inhabitable, and only touch-up items and disputed items, the "punch list," remain. The punch list is "a final list of small items requiring completion, or finishing, corrective or remedial work." Viking Builders, Inc. v. Felices, 391 So.2d 302, 303 n. 1 (Fla.Dist.Ct.App.1980).
[Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 117, 675 A.2d 1077 (1996) (emphasis added).]
In Russo, the Court construed the ten-year statute of repose applicable to architects and construction contractors, N.J.S.A. 2A:14-1.1.[3]Russo, supra, 144 N.J. at 116, 675 A.2d 1077. The Court rejected an argument that completion should be measured, and the statute should run, from the date of final completion when all punch list items are completed:
[I]f liability were to be measured from the date the last retainage is released and all disputed and punch list items are completed, a contractor's exposure to suit might be prolonged unreasonably. Disputes over workmanship and compensation for services can continue for years. Under the Appellate Division's *731 analysis, a contractor would remain liable and the commencement of the statute of repose could be delayed indefinitely. Such a result is inconsistent with the statutory purpose to provide repose and allow contractors and architects to walk away from liability at a certain point in time; indeed, it would, all too often, provide "liability for life."
[Id. at 117-18, 675 A.2d 1077.]
Accordingly, the Court agreed with decisions from other states which "have interpreted their statutes to begin running at substantial completion, when the property is fit for occupancy by the public." Id. at 118, 675 A.2d 1077. The point of so defining substantial completion is to set a "bright line" date on which the limitations period begins to run. To that end, the issue is not whether the construction has defects but whether a certificate of occupancy has been issued such that the property can be used for its intended purpose. There is no dispute in this case that not only did Trinity obtain a temporary certificate of occupancy for the addition, but its parishioners used the addition for many years before the lawsuit was filed.
While declining to extend the ten-year statute of repose, the Court in Russo did implicitly recognize that the discovery rule applied to the ordinary six-year statute of limitations applicable to claims based on injury to property. Id. at 115, 675 A.2d 1077. See also Torcon, supra, 205 N.J.Super. at 432, 501 A.2d 182. On the other hand, the discovery rule does not extend the ten-year statute of repose, because that statute was specifically passed to protect architects and other construction professionals from the potential "liability for life" posed by the discovery rule. Russo, supra, 144 N.J. at 116, 675 A.2d 1077. See also Greczyn v. Colgate-Palmolive, 183 N.J. 5, 10, 869 A.2d 866 (2005).
In construing the ten-year statute of repose, we also rejected an argument that the discovery rule could operate to toll the statute based on alleged fraudulent concealment, since its fundamental purpose was "to counteract the effect of the discovery rule." County of Hudson v. Terminal Constr. Corp., 154 N.J.Super. 264, 268, 381 A.2d 355 (App.Div.1977), certif. denied, 75 N.J. 605, 384 A.2d 835 (1978). Our reasoning, however, might be equally applicable to this case, in which the parties have by contract agreed to abrogate the discovery rule:
Since the discovery rule is an instrument of equity, it might seem proper, at first, to allow the rule to be applied in those cases where it is alleged that there was a purposeful concealment of a defect. (The fraud-like deception alleged herein was the bending back of the metal ties and cutting off the back of tiles so that they would take up less space and conceal the fact that the cinder block wall was built too far into the stairwell.) However, virtually all latent defects in construction could probably be subject to the allegation that they were purposefully concealed. Certainly any suit against an architect based on the fact that he incorrectly certified work as being completed in accordance with the specifications and in a workmanlike manner may be framed in terms of an accusation that the certification was made with knowledge of the defect. Such an exception would quickly engulf the statute (N.J.S.A. 2A:14-1.1) and render it worthless. This contention of plaintiffs is rejected.
[Id. at 268-69, 381 A.2d 355.]
On the other hand, in County of Hudson, we addressed a statute which was entitled to our deference since it expressed the will of the Legislature. In this case, we address a contract which is subject to *732 the same equitable principles applicable to the parties to all contracts, including the principle that a party may not benefit from its own fraudulent conduct. See Joe D'Egidio Landscaping, Inc. v. Apicella, 337 N.J.Super. 252, 257, 766 A.2d 1164 (App. Div.2001). With that in mind, we see no impediment in our assuming for purposes of this case that some types of intentional fraud could defeat defendants' right to invoke the protection of the clause.
As previously discussed, "substantial completion" is a term of art which refers to the point at which a temporary certificate of occupancy issues. Russo, supra, 144 N.J. at 117, 675 A.2d 1077. Although Trinity's expert reports refer to the Building Officials and Code Administrators (BOCA) Code and the State Uniform Construction Code and conclude that the improvements do not meet the codes in some respects, there is no assertion or evidence in the reports (including those submitted with Trinity's motion to supplement the record on appeal[4]) that any of the defendants bribed or lied to the building inspectors or otherwise procured the temporary certificate of occupancy by fraudulent means.
Nor is there any evidence that defendants lied to Trinity during construction. In support of its claim, Trinity could have provided to the trial court any memoranda or other written information supplied to Trinity by defendants during construction, but did not do so.[5] Trinity's counsel had the opportunity to inspect the architect's file but did not do so.[6] Nor did Trinity's briefs in opposition to summary judgment specify any additional discovery it needed on this or any other issue. See Auster, supra, 153 N.J.Super. at 56, 378 A.2d 1171. There is no evidence that defendants procured the signature of Trinity's agent on the certificate of substantial completion by fraud.
At most, Trinity's proofs show that there are latent defects in the construction. But the very purpose of the substantial completion clause is to protect the construction professionals against the assertion of claims based on latent defects after the statute of limitations has expired. Absent proof of inequitable conduct, other than the alleged shoddy work itself,[7] defendants are entitled to enforce the time limitation provisions of the contracts. That being the case, the trial court also properly denied Trinity's motion to amend its complaint, since the amendment would likewise have been barred by the statute of limitations. See Interchange State Bank v. Rinaldi, 303 N.J.Super. 239, 256-57, 696 A.2d 744 (App.Div.1997); Hartford Accident *733 & Indem. Co. v. Baker, 208 N.J.Super. 131, 137, 504 A.2d 1250 (Law Div. 1985).[8]
Affirmed.
NOTES
[1] E. Allen Reeves, Inc. was improperly named in the complaint as E. Allen Reeves and E. Allen Reeves General Contractors. Gallo Masonry, L.L.C. was improperly named in the complaint as Gallo Masonry.
[2] Several additional defendants were named in the complaint but were never served, and Trinity voluntarily dismissed its complaint against them.
[3] In New Jersey, construction contracts are subject to a six-year statute of limitations, N.J.S.A. 2A:14-1, which is subject to the discovery rule, and a separate ten-year statute of absolute repose, N.J.S.A. 2A:14-1.1, after which potential causes of action no longer exist. See County of Hudson v. Terminal Constr. Corp., 154 N.J.Super. 264, 270, 381 A.2d 355 (App.Div.1977), certif. denied, 75 N.J. 605, 384 A.2d 835 (1978). The substantial completion clause insulates architects and other construction professionals from the operation of the discovery rule during the four-year gap between the statutes.
[4] We granted Trinity's motion to supplement the record with expert reports rendered after the summary judgment orders in this case, for the limited purpose of allowing us to determine whether, even considering that evidence, Trinity might be able to establish its right to relief from the substantial completion clause.
[5] At oral argument in the trial court, defense counsel indicated that Trinity had its own consultant overseeing the work but the consultant had passed away at some point. However, neither Trinity's moving papers nor its appellate briefs cited this as a factor in its inability to timely pursue its claims against defendants. Of course, if Trinity had its own consultant overseeing the work, it would be more difficult to establish a claim that any of the defendants concealed defects during construction.
[6] In light of our disposition of this case, the architect and other defendants should maintain their files until their counsel determines whether Trinity intends to assert any claims against its former counsel.
[7] In fairness to defendants, we emphasize that neither the trial court nor we have adjudicated the underlying merits of plaintiff's claims.
[8] We note the trial court's exemplary patience in permitting plaintiff's counsel to explore issues at oral argument that were not raised in plaintiff's motion briefs, and we find no abuse of discretion in the court declining counsel's belated request, raised for the first time at argument, for leave to file yet another motion to amend the complaint. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/571090/ | 947 F.2d 1259
UNITED STATES of America, Plaintiff-Appellee,v.Ira Wayne PRIVETTE, Defendant-Appellant.
No. 90-7052.
United States Court of Appeals,Fifth Circuit.
Nov. 15, 1991.Rehearing Denied Dec. 12, 1991.
Danny D. Burns, Ft. Worth, Tex. (Court-appointed), for defendant-appellant.
Joe C. Lockhart, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.
Appeal From the United States District Court for the Northern District of Texas.
Before WISDOM, HIGGINBOTHAM and SMITH, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
1
Appellant Ira Wayne Privette appeals from his conviction of one conspiracy count, one count of possession of amphetamines with intent to distribute and two counts of using a firearm during the commission of a drug trafficking crime. Privette makes two arguments on appeal. First, he challenges the admission of evidence obtained in a search of his warehouse, alleging that the affidavit used to obtain the search warrant contained false or misleading statements. Because the affidavit supports a finding of probable cause when read without the challenged statements, the trial court did not err in denying Privette's motion to suppress. Second, Privette challenges his conviction and sentence for the two firearms counts because the indictment charges that both counts were committed during the same drug trafficking crime. Because we agree that the indictment did not sufficiently link each firearms count to a separate drug trafficking offense, we vacate the conviction and sentence on one of them.
2
* On March 8, 1988, Fort Worth Police officers arrested Charles Apodaca at his home on a complaint that he had assaulted a postal employee who had maced his dog. During the arrest, Officer Fitch noticed that Apodaca had a strong odor normally associated with amphetamine manufacture. Apodaca told the officers he had just produced 14 pounds of amphetamines as part of an agreement with Wayne Privette. Apodaca told the police that Privette lived and dealt with drugs in a local warehouse. He gave them the address and a detailed description of the warehouse.
3
The officers set up surveillance at the warehouse that afternoon. Further police investigation corroborated Apodaca's statements. A computer check of a vehicle at the scene indicated that it was registered to Privette. The leasing office told police that the warehouse was leased to Privette. The officers then obtained and executed a search warrant at the warehouse. They found Privette along with some drugs, weapons, a set of scales, and a large amount of currency. These items were later admitted against Privette at trial.
4
Privette was convicted of one count of conspiracy to manufacture amphetamine and to distribute and possess with intent to distribute amphetamine, one count of possession of amphetamine with intent to distribute and two counts of using firearms during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c). He was sentenced to 210 months imprisonment on the two drug trafficking crimes, to run concurrently. On the firearms counts, he was sentenced to 120 months on one and 60 months on the other to run consecutive to each other and consecutive to the sentence for the drug trafficking crimes.
II
5
Privette challenges the search of his warehouse on the basis that the affidavit used to obtain the warrant contained false or misleading statements. Privette points to two statements in the affidavit which are allegedly false: that Apodaca had previously used amphetamines and that the affiant had previously arrested Apodaca for possession of amphetamine. His argument fails because even when the statements he challenges are excised, the affidavit contains facts sufficient to establish probable cause.
6
Even if the defendant makes a showing of deliberate falsity or reckless disregard for the truth by law enforcement officers, he is not constitutionally entitled to a hearing "if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause." Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667 (1978).
7
We evaluate probable cause under a totality-of-the-circumstances test, rather than any rigid set of criteria. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). Probable cause existed here without any of the challenged material. The affidavit asserted that:
8
1) The informant had been in the warehouse within the past 24 hours and observed Privette in possession of a large quantity of white powdery substance, which Privette represented as amphetamine;
9
2) The informant said that Privette was in possession of a large amount of chemicals and glassware used in the manufacture of amphetamine and described them.
10
3) The informant said that Privette was living in the warehouse and described a trailer sitting in front of the door. He also told them that stolen automobiles could be found at the location.
11
4) The police officer went to the location following the informant's directions and found it to be as described by the informant.
12
5) The police officers found a truck parked in front of the warehouse to be an outstanding stolen vehicle;
13
6) A Camaro parked in front of the warehouse was found to be registered to Privette;
14
7) The officer checked with the leasing office and confirmed that warehouse was leased to Privette.
15
Privette argues that without the challenged information the affidavit fails to provide a basis for the magistrate to evaluate the credibility of the informant. We disagree. In Gates, the Supreme Court rejected the rigid two-prong test which required that the affidavit demonstrate both the informant's reliability and veracity. The "practical common-sense judgment called for in making a probable cause determination" can be made on the basis of corroboration of the informant's statements by police investigation. Gates, 103 S.Ct. at 2335. In Gates, an anonymous letter was used to establish probable cause because its details were corroborated by police investigation. Uncertainty about the veracity of an informant can also be compensated for by detail of the statement or internal consistency of the statement and surrounding facts. United States v. Phillips, 727 F.2d 392 (5th Cir.1984); Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). Here the detail and internal consistency of Apodaca's statements and the corroboration provided by the police investigation gave the magistrate facts sufficient to evaluate Apodaca's credibility.
16
Finally, Privette argues that this court should hold that a showing of deliberate falsehood in an affidavit renders the warrant void whether or not the statements were necessary to the finding of probable cause. Even if we were inclined toward such an approach, it is foreclosed by Franks. The district court did not err in admitting the evidence obtained in the search of the warehouse.
III
17
The indictment charged Privette with two drug offenses and two firearms offenses. Each firearms count was supported by drug trafficking crimes committed by either Privette or Apodaca as his co-conspirator, as set out in the margin.1 Each firearms count includes the Count 2 conspiracy as one of its drug trafficking crimes.
18
As the government concedes, use of more than one gun will not support multiple counts under 18 U.S.C. 924(c) for use of a firearm during a single drug trafficking crime. United States v. Henning, 906 F.2d 1392, 1399 (10th Cir.1990); United States v. Henry, 878 F.2d 937 (6th Cir.1989); United States v. Fontanilla, 849 F.2d 1257 (9th Cir.1988). But see, United States v. Freisinger, 937 F.2d 383 (8th Cir.1991) (multiple counts can be based upon number of weapons but sentences must run concurrently).
19
Multiple sentences under § 924(c) must be based upon the number of drug trafficking crimes in which firearms were used. Drug trafficking crimes separated by the measure of the double jeopardy clause can each support § 924(c) convictions. United States v. Chalan, 812 F.2d 1302 (10th Cir.1987); United States v. Fontanilla, 849 F.2d 1257 (9th Cir.1988). A conspiracy and its target crimes are separate offenses for these purposes. United States v. Guthrie, 789 F.2d 356, 358 (5th Cir.1986). We agree with the government that Privette's conviction of conspiracy and his conviction of possession with intent to distribute could each support a separate § 924(c) conviction and sentence.
20
The question we must decide here is whether the firearm counts must be linked to a particular drug trafficking offense. We conclude that to avoid violating double jeopardy principles each firearms offense must be sufficiently linked to a separate drug trafficking offense to prevent two convictions under § 924(c) on the same drug offense.
21
In United States v. Henry, 878 F.2d 937, 943 (6th Cir.1989), the government had charged two counts of firearms use and the defendant was convicted of two separate drug trafficking crimes, manufacturing and possessing with intent to distribute. The indictment charged in each count of firearm use that it was "during and in relation to a drug trafficking crime, to-wit, manufacturing and possessing with intent to distribute ..." Although each of the drug trafficking crimes could have supported a § 924(c) conviction, the Henry court held that the government must tie each count to a specific drug trafficking crime to avoid possible double punishment.
22
We face the same problem here as the court faced in Henry and come to the same conclusion. We cannot determine whether the jury based both convictions on the use of firearms in the conspiracy. If the jury convicted Privette twice for using firearms during the conspiracy, Privette would be doubly punished for the same crime.
23
The government would distinguish Henry because here the indictment included an additional drug trafficking crime. It is true that in Henry the drug trafficking offenses were identical and here they only overlap, but this distinction does not address the double jeopardy problem. The firearm charge must be tied to a specific drug trafficking offense to avoid the possibility that the jury will base two firearms charges on the same drug trafficking crime. The jury is able to do so whether the substantive drug offenses listed in the firearms charges are identical or overlapping.
24
The necessary linkage between a firearms charge and a drug trafficking offense is best accomplished by clearly identifying in the indictment the drug offense supporting each firearms count. We do not say that the required linkage cannot be supplied by jury instructions or can never be determined by the facts of a case. For example the facts of a case might permit no reasonable conclusions of multiple punishment. The key issue is whether a reviewing court can determine from the jury verdict whether the convictions violate double jeopardy principles.
25
The proper remedy for multiplication of punishment is to vacate the sentences on all the counts and remand with instructions that the count elected by the government be dismissed. United States v. Olivares, 786 F.2d 659, 664 (5th Cir.1986). Id. The defendant is then to be resentenced.
26
We AFFIRM the conviction, VACATE the sentences, and REMAND for sentencing upon all counts remaining after dismissing the selected count.
1
The drug offenses which the indictment used in support of the firearms charges are as follows:
Use of a firearm Use of a firearm
(Count 9) (Count 11)
1. conspiracy (Count 2) 1. conspiracy (Count 2)
2. maintaining a place 2. possession with intent to
for the manufacture of distribute (Count 8)
amphetamines (Count 3)
3. manufacturing amphetamine
(Count 4)
4. manufacturing phenylacetone
(Count 5)
5. possession with intent to
distribute (Count 6)
6. possession with intent to
manufacture (Count 7) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/995034/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4193
FRED BULL, JR.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4194
KEITH L. HOPKINS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4234
DOUGLAS A. DODSON, JR., a/k/a
Becky,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-95-73)
Submitted: February 28, 1997
Decided: May 20, 1998
Before WIDENER, MURNAGHAN, and LUTTIG, Circuit Judges.
_________________________________________________________________
Nos. 96-4193 and 96-4194 affirmed and No. 96-4234 affirmed in
part and vacated and remanded in part by unpublished per curiam
opinion.
_________________________________________________________________
COUNSEL
David E. Boone, Andrea C. Long, BOONE, BEALE, CARPENTER
& COSBY; Jeffrey L. Everhart, Richmond, Virginia; Thomas P. Col-
lins, ECK & COLLINS, Richmond, Virginia, for Appellants. Helen F.
Fahey, United States Attorney, Nicholas S. Altimari, Assistant United
States Attorney, John G. Douglas, Assistant United States Attorney,
Mary Catherine Hart, Third-Year Law Student, Richmond, Virginia,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Douglas A. "Becky" Dodson, Jr., Keith Hopkins, and Fred Bull
were charged in a seven-count second superseding indictment with
various offenses relating to a large drug organization that Dodson
headed. Dodson, Hopkins, and Bull now appeal their convictions on
a number of the charges. Dodson also appeals his sentence. We affirm
in all respects with the exception of Dodson's conviction for using or
carrying a firearm in connection with a drug trafficking offense
(Count Five). We vacate the conviction and sentence on Court Five.
Finally, we vacate the sentences on Counts Two, Four, and Seven and
remand for resentencing on those counts.
2
I
Evidence at trial showed that Becky Dodson led a heroin and crack
distribution ring that operated in the Richmond, Virginia, area
between 1992 and the summer of 1995. The Defendants and others
transported, packaged, and sold crack and heroin. The organization
operated out of a number of residences and at least one motel room
during the course of the conspiracy. It last operated out of the apart-
ment of Kim Booker, where Becky Dodson warehoused, packaged,
and distributed drugs.
Two of Dodson's crack suppliers testified at trial. Tom Davis testi-
fied that he sold Dodson one and one-half kilos, plus one-eighth of
an ounce, of crack. Haile Hopson sold Dodson one-half kilo of crack.
Butch Page, a member of the Dodson organization, testified that Dod-
son generally obtained his heroin supply from New York or Balti-
more. He or his agents usually took fellow conspirators, among them
Page and Fred Bull, on the trips north. Page and Bull tested the
potency and effectiveness of the heroin that Dodson proposed to buy
to ensure that it was of good quality. Page, like Terry Edwards and
others, also functioned as doormen/runners for Dodson, shuttling
drugs and money between Dodson and his customers. In return for
their services, Page and others were paid with drugs and money.
Violence and guns played a significant part in the organization.
Page saw a number of guns in Dodson's possession; he witnessed
Dodson's purchase of an AK-47 in early 1994. He testified that Dod-
son held a handgun to the head of Yvette Lyles when Dodson mis-
takenly thought she had stolen drugs from him. Beverly Cook, who
assisted Dodson by weighing and selling heroin, testified that she wit-
nessed the murder of Fred Davis, which Dodson directed. Davis had
already been shot several times when Cook saw Dodson hand a gun
to another man to complete the killing.
Cook testified that Keith Hopkins distributed heroin and crack for
Dodson. Antonio Crews, who sold drugs for Hopkins for approxi-
mately one month, occasionally accompanied Hopkins when he
needed a fresh supply of crack or heroin. Hopkins told Crews that he
was going to see "Becky" to obtain more drugs. Crews saw Dodson
and Hopkins together on one of these trips.
3
On July 12, 1995, Dodson was arrested. Officers conducted a
search of his home and the Booker apartment, where Dodson had
located his operation. Officers searching Booker's apartment recov-
ered heroin, crack, guns, drug paraphernalia, and other items typically
associated with drug trafficking. Dodson had a key to the apartment,
paid the rent for the apartment, and was frequently seen there. His fin-
gerprints were on a number of items seized from Booker's apartment.
Dodson, Hopkins and Bull were convicted of conspiracy to possess
with intent to distribute heroin and cocaine, 21 U.S.C. § 846 (1994)
(Count One). Dodson and Bull were found guilty of possession with
intent to distribute heroin, 21 U.S.C. § 841(a)(1) (1994) (Count Four),
on approximately June 18, 1995, and Dodson was convicted of com-
mitting the same offense on or about July 12, 1995 (Count Two).
Dodson additionally was convicted of using or carrying a firearm in
connection with a drug trafficking offense, 18 U.S.C. § 924(c)(1)
(1994) (Count Five), and of being a felon in possession of a firearm,
18 U.S.C. § 922(g)(1) (1994) (Count Seven).
II
Dodson, Hopkins, and Bull first claim that the evidence was insuf-
ficient to support their convictions. We must uphold the convictions
if there was substantial evidence to support the jury's verdicts.
Glasser v. United States, 315 U.S. 60, 80 (1942). In making this
determination, we view the circumstantial and direct evidence in the
light most favorable to the prosecution to decide whether any rational
trier of fact could have found the essential elements of the crimes
beyond a reasonable doubt. United States v. Lowe , 65 F.3d 1137,
1142 (4th Cir. 1995), cert. denied, #6D6D 6D# U.S. ___, 65 U.S.L.W. 3231
(U.S. Oct. 7, 1996) (No. 95-1659).
Appellants primarily argue that the credibility of many of the wit-
nesses was suspect. Numerous witnesses had criminal records, were
drug abusers, or were testifying in accordance with plea bargains in
the hopes of receiving more lenient sentences. However, these facts
were before the jury, whose function is to weigh the evidence and
resolve any conflicts in the evidence. United States v. Murphy, 35
F.3d 143, 148 (4th Cir. 1994). "Credibility determinations are within
the sole province of the jury and are not susceptible to judicial
4
review." United States v. Lowe, 65 F.3d at 1142. We therefore will
not disturb the jury's verdicts, provided there was some evidence to
support them.
There was sufficient evidence to convict the three Appellants of
conspiracy. To prove this offense, the prosecution"must establish
that: (1) an agreement to possess [the drugs] with intent to distribute
existed between two or more persons; (2) the defendant knew of the
conspiracy; and (3) the defendant knowingly and voluntarily became
a part of this conspiracy." United States v. Burgos, 94 F.3d 849, 857
(4th Cir. 1996) (in banc), cert. denied, ___ U.S. ___, 65 U.S.L.W.
3586 (U.S. Feb. 24, 1997) (No. 96-6868).
Each defendant need not know the details of the conspiracy's struc-
ture and organization or the identities of all the conspirators. Id. "[A]
loosely-knit association of members linked only by their mutual inter-
est in sustaining the overall enterprise of catering to the ultimate
demands of a particular consumption market" may be sufficient to
establish the existence of a conspiracy. United States v. Banks, 10
F.3d 1044, 1054 (4th Cir. 1993). Once the existence of a conspiracy
is established, only a slight link between a defendant and the conspir-
acy will support a conviction. United States v. Brooks, 957 F.2d 1138,
1147 (4th Cir. 1992).
Dodson obviously headed the instant conspiracy, which distributed
heroin and crack. Hopkins sold drugs for Dodson, in furtherance of
the conspiracy. And Fred Bull often traveled north to ensure that the
heroin that Dodson purchased was of good quality. This conduct is
sufficient to establish the Appellants' guilt on the conspiracy charge.
There was sufficient evidence to convict Dodson of violating
§ 841(a)(1) on July 12, 1995. Although he was not in actual posses-
sion of the drugs seized at Booker's apartment, he had constructive
possession of them because he had "the power to exercise . . . domin-
ion and control over them." See United States v. Zandi, 769 F.2d 229,
234 (4th Cir. 1985). He paid the rent on the apartment, to which he
had a key, his drug business was conducted out of the apartment, and
his fingerprints were found on a number of items seized from the
apartment. As constructive possession will sustain a§ 841(a)(1) con-
viction, id., the evidence was sufficient to convict.
5
Sufficient evidence also supports Dodson's and Bull's convictions
for possession of heroin with intent to distribute on or about June 18,
1995. Cook testified that Bull told her about the trip and that she saw
Bull and others leave Richmond on June 18 for New York. In accor-
dance with past practice, Bull tested the heroin that Dodson's agent
purchased for resale in Richmond. Surveillance photographs from
June 18 showed Bull leaving the Booker residence.
The evidence was sufficient to support Dodson's convictions of
possession of a firearm by a convicted felon. There was a stipulation
that Dodson was a convicted felon and that the firearm in question,
an AK-47, was manufactured outside Virginia. Page testified that he
saw Dodson purchase the weapon, which subsequently was stored, at
Dodson's direction, in various locations.
After formal briefs were filed, we granted Dodson's motion to file
a supplemental pro se brief. He claimed that there was no evidence
that he had used or carried a firearm on April 20, 1995, as charged
in Count Five. See 18 U.S.C. § 924(c)(1). On that date several con-
spirators committed a kidnaping in furtherance of the conspiracy. The
United States concedes, and our review of the transcript confirms, that
there was no evidence introduced that Dodson used or carried a fire-
arm during this incident. We therefore vacate his conviction on Count
Five.
III
Appellants argue that the district court erred when it sustained the
government's objection to a proposed defense witness, David Baugh.
Baugh, a criminal defense attorney, would have offered expert testi-
mony about the federal sentence reduction process.
The Federal Rules of Evidence allow the admission of expert testi-
mony when the expert's "knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue." Fed. R. Evid.
702. The district court has broad discretion in deciding whether such
testimony should be admitted. United States v. Portsmouth Paving
Corp., 694 F.2d 312, 323 (4th Cir. 1982). Here, Baugh's testimony
was unnecessary. Testifying in order to gain a more lenient sentence
6
is a concept well within the grasp of a typical juror. The court there-
fore did not abuse its discretion in ruling that Baugh could not testify.
IV
Dodson was sentenced to life imprisonment for conspiracy, 240
months on the § 841(a)(1) convictions, 120 months on the § 922(g)(1)
conviction, and five years on the § 924(c)(1) conviction. The first four
sentences run concurrently; the five-year sentence runs consecutively
to the life sentence. Dodson contends, as he did before the district
court, that the court erred in overruling his objections to the findings
in the presentence report that he was responsible for the total weight
of all drugs attributable to all the conspirators, USSG § 2D1.1(c)(1);1
he was an organizer or leader of a conspiracy involving five or more
people, USSG § 3B1.1(a); and he possessed a dangerous weapon in
connection with the Fred Davis and Yvette Lyles incidents, USSG
§ 2D1.1(b)(1).
Dodson was properly held accountable for all drugs attributable to
members of the conspiracy. For sentencing purposes, quantities attrib-
utable to persons convicted of conspiracy to distribute illegal drugs
are determined by examining "the quantity of[drugs] reasonably fore-
seeable to each conspirator within the scope of his agreement." United
States v. Irvin, 2 F.3d 72, 78 (4th Cir. 1993); see also USSG
§ 1B1.3(a)(1)(B). The government bears the burden of establishing by
a preponderance of the evidence the quantity of drugs attributable to
a defendant. United States v. Goff, 907 F.2d 1441, 1444 (4th Cir.
1990). Determinations regarding reasonable foreseeability and quan-
tity of drugs are factual findings reviewed for clear error. United
States v. Banks, 10 F.3d 1044, 1057 (4th Cir. 1993).
In the subject case, the district court did not err in finding "more
than ample" information to support the probation officer's determina-
tion that enough drugs were attributable to Dodson to warrant a base
offense level of 38. Davis and Hopson alone testified that they sold
Dodson over two kilos of crack. As 1.5 kilos of crack mandates a base
offense level of 38, USSG § 2D1.1(c)(1), the district court's finding
was not clearly erroneous.
_________________________________________________________________
1 U. S. Sentencing Guidelines Manual (1995).
7
Because Dodson was the leader of a conspiracy involving at least
five people (including Hopkins, Bull, Page, Cook, and Booker), the
4-level adjustment of Dodson's offense level was not clearly errone-
ous. USSG § 3B1.1(a); see United States v. Harris, 39 F.3d 1262,
1270 (4th Cir. 1994). Similarly, the district court did not clearly err
in increasing the base offense level by two levels because Dodson
possessed a dangerous weapon. The Fred Davis and Yvette Lyles
incidents demonstrate that the adjustment was proper. USSG
§ 2D1.1(b)(1); see United States v. Apple , 915 F.2d 899, 914 (4th Cir.
1990).
V
We accordingly affirm the convictions of Hopkins and Bull. We
deny Dodson's motion to file an addendum to his supplemental brief.
We vacate Dodson's conviction and sentence on Count Five and
affirm his other convictions. To ensure that the§ 924(c) conviction
does not taint Dodson's overall sentence, we also vacate his sentences
on Counts Two, Four, and Seven2 and remand for resentencing. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
Nos. 96-4193/4194 -- AFFIRMED
No. 96-4234 -- AFFIRMED IN PART,
VACATED AND REMANDED IN PART
_________________________________________________________________
2 This does not in any way imply that the initial sentences on Counts
Two, Four, and Seven were incorrect.
8 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/995035/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MONTE L. LAYFIELD,
Plaintiff-Appellant,
v. No. 97-1021
ROADWAY EXPRESS, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-95-3767-S)
Submitted: April 14, 1998
Decided: May 20, 1998
Before WIDENER and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Hans S. Goerl, Hagerstown, Maryland, for Appellant. David F.
Albright, Franklin T. Caudill, ALBRIGHT, BROWN, GOERTEMIL-
LER & CAUDILL, L.L.C., Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Monte L. Layfield appeals the district court's orders granting sum-
mary judgment to his former employer, Roadway Express, Inc.
(Roadway), and denying his motion for reconsideration. Layfield
claimed that his termination from his job as a dockworker at Road-
way's Hagerstown, Maryland, terminal constituted race discrimina-
tion in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 1994 & Supp.
1998), and 42 U.S.C. § 1981 (1994). Because Layfield did not estab-
lish a prima facie case of discriminatory discharge under either stat-
ute, we affirm.
I
Layfield worked for Roadway at the Hagerstown terminal from
September 6, 1989, until July 13, 1994. He repeatedly violated com-
pany rules throughout his tenure with Roadway. His employment
record reflects numerous instances of arriving to work late, failing to
notify his employer that he would not be at work, abusing company
time, not performing his job responsibilities, and refusing to follow
direct orders. For these infractions, Layfield received warning letters,
suspensions of between one and five days, and discharges which,
prior to his termination, were reduced to suspensions.
On July 13, 1994, Layfield tore his sweat pants in the crotch area.
He was not wearing underwear, and he found himself in an embar-
rassing and potentially dangerous predicament. Layfield asked per-
mission to leave work early. His terminal operations manager
suggested that Layfield change clothes on his lunch break approxi-
mately one hour later. The manager offered to move the only female
worker away from the area where Layfield was working. Layfield,
who believed his absence would be excused, clocked out and went
home. His supervisors, on the other hand, believed that Layfield
walked off the job.
Because of Layfield's infraction, Roadway designated his absence
a "voluntary quit" and removed him from the seniority list. Pursuant
2
to a collective bargaining agreement, Layfield submitted a grievance
to a committee comprised of members of his union and representa-
tives of Roadway. Following a hearing, the committee unanimously
denied the grievance and upheld Roadway's revocation of seniority
rights.
Layfield then filed a complaint with the EEOC, claiming that his
discharge constituted race discrimination in violation of Title VII.
Because an investigation disclosed no violation of Title VII, the
EEOC issued a right to sue letter. Layfield then filed this action alleg-
ing race discrimination under Title VII and § 1981. The district court
granted summary judgment to Roadway and denied Layfield's motion
for reconsideration. Layfield timely appeals.
II
Layfield contends that white employees with similar disciplinary
records were not terminated for their infractions. He therefore alleges
a disparate treatment claim. To prevail, Layfield must satisfy the test
articulated in the line of Supreme Court cases following McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that test, the
plaintiff must first establish a prima facie case of discrimination. The
employer may then respond by providing a legitimate, nondiscrimina-
tory reason for its employment action. Finally, the employee may
rebut this response by producing evidence that the employer's reason
is pretextual. See id. at 802-804. The McDonnell Douglas scheme
applies with equal force to a § 1981 claim of race discrimination in
employment. See Theard v. Glaxo, Inc., 47 F.3d 676, 680 (4th Cir.
1995).
Under Title VII, a plaintiff may establish a prima facie case of
intentional discrimination by direct or circumstantial evidence. To
meet his burden with circumstantial evidence, he must show that:
(1) he is a member of a protected class; (2) he was qualified for his
job and was performing his work satisfactorily; (3) he was fired; and
(4) others outside the protected class were retained under apparently
similar circumstances. See Hughes v. Bedsole, 48 F.3d 1376, 1383
(4th Cir. 1995).
We review summary judgment orders de novo; if there is no genu-
ine issue as to any material fact, the moving party is entitled to sum-
3
mary judgment as a matter of law. See Henson v. Liggett Group, Inc.,
61 F.3d 270, 274 (4th Cir. 1995). "An employer is entitled to sum-
mary judgment if the plaintiff fails to establish a prima facie case of
discrimination or fails to raise a factual dispute regarding the employ-
er's proffered reasons for the alleged discriminatory act." Id. "[T]he
mere existence of a scintilla of evidence in support of the plaintiff's
position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff." Anderson v. Liberty Lobby,
Inc., 447 U.S. 242, 252 (1986).
III
Layfield presented no direct evidence of race discrimination.
Therefore, he had to meet the four-part test identified above to estab-
lish, though circumstantial evidence, a prima facie case of discrimina-
tion. See Hughes v. Bedsole, 48 F.3d at 1383.
We agree with the district court that Layfield did not meet his bur-
den. He concedes in his brief that his overall disciplinary record was
not good. Given his pattern of repeatedly being disciplined for violat-
ing company policy and his walking off the job on the day he was
fired, he was not performing his job at a satisfactory level.
Further, Layfield did not demonstrate that white employees with
comparable employment records were retained while he was dis-
charged. On appeal, Layfield points to the disciplinary history of Billy
Bunch. On July 1, 1994, Bunch had a loud argument with supervisors,
then left work without permission. Bunch was fired and then rein-
stated. In his brief, Layfield also mentions three white employees who
received permission to leave the premises on a particularly busy
night. Finally, Layfield includes in the appendix the disciplinary his-
tory of a fifth white employee, K. E. Martin, who was not fired. Lay-
field, however, does not mention Martin in his brief.
A plaintiff need not present comparatives with precisely the same
employment problems when attempting to establish that others out-
side his protected class were retained in the face of similar conduct.
Nonetheless, the problems must be similar. See McDonald v. Santa
Fe Trail Transp. Co., 427 U.S. 273, 282 (1976); see generally Hughes
v. Bedsole, 48 F.3d at 1384. None of the white employees whom Lay-
4
field identifies were similarly situated. Only one incident involving
Bunch is referenced. In contrast, the record is replete with Layfield's
infractions. Martin, unlike Layfield, never walked off the job, and he
never was terminated and then reinstated. Finally, the three employ-
ees who left the jobsite are not similar to Layfield because they
received permission to leave. Moreover, other information about
those three employees' disciplinary histories is not included in the
record. Layfield simply presented no evidence to show that white
employees with comparable records were retained while he was fired.
Thus, we find Layfield has failed to prove that others outside his class
were retained under similar circumstances. See Hughes, 48 F.3d at
1383.
IV
We accordingly affirm the decision of the district court. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
5 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/995036/ | Filed: May 20, 1998
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-2200
(CA-96-1745-6-20, BK-95-71435-B)
Greenville Plaza Investors Limited
Partnership,
Plaintiff - Appellee,
versus
Corporate Real Estate Service, etc.,
Defendant - Appellant.
O R D E R
The Court amends its opinion filed May 11, 1998, as follows:
On page 3, first paragraph, lines 6-7 -- the word "identify"
is corrected to read "identi ty."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: GREENVILLE PLAZA INVESTORS
LIMITED PARTNERSHIP,
Debtor.
GREENVILLE PLAZA INVESTORS
LIMITED PARTNERSHIP,
Plaintiff-Appellee, No. 96-2200
v.
CORPORATE REAL ESTATE SERVICE,
INCORPORATED, formerly known as
The Webb-Stevenson Company,
d/b/a Plaza Executive Suites,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CA-96-1745-6-20, BK-95-71435-B)
Submitted: April 15, 1998
Decided: May 11, 1998
Before WIDENER and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Charles Benjamin Patterson, ARRINGTON, HOLLOWELL & PAT-
TERSON, L.L.P., Greenville, South Carolina, for Appellant. Helen
Elizabeth Burris, NEXSEN, PRUET, JACOBS & POLLARD, L.L.P.,
Greenville, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Corporate Real Estate Services, Inc., (Corporate) appeals from the
district court's order affirming the bankruptcy court's order granting
summary judgment in favor of Greenville Plaza Investors (Greenville)
avoiding a lease between the parties pursuant to 11 U.S.C. §§ 544(a),
550 (1994) and S.C. Code Ann. §§ 30-7-10, 27-33-30 (Law. Co-op
1976). Corporate contends that the bankruptcy court erred by (1) fail-
ing to apply the appropriate federal and state law in reaching its deci-
sion; (2) failing to address its counterclaim; and (3) failing to take into
consideration Greenville's discovery abuses. For the reasons that fol-
low, we affirm.
Greenville, a South Carolina limited partnership, filed a petition
under Chapter 11 of the Bankruptcy Code on March 20, 1995. Its pri-
mary asset was real estate known as Nationsbank Plaza in Greenville,
South Carolina. Corporate claimed a possessory interest in the prop-
erty based on a lease agreement (Agreement) dated March 31, 1994,
and amended on March 1, 1995. The Agreement purports to grant a
leasehold interest in Nationsbank Plaza to Corporate from June 1,
1994, through August 31, 1997. Neither the Agreement nor the
Amendment were recorded prior to Greenville's filing of its bank-
ruptcy petition.
2
Greenville sought to avoid the lease under S.C. Code Ann. §§ 30-
7-10, 27-33-30, which provide that if a document evidencing a lease-
hold interest in real estate for a period of longer than twelve months
is not recorded it is invalid and unenforceable against certain bona
fide purchasers and/or subsequent creditors. Under 11 U.S.C. § 544(a)
(the "strong-arm" clause), a trustee in bankruptcy may take the iden-
tity of a hypothetical entity that could, under state law, defeat a
claimed interest in the debtor's property.* Greenville, as debtor in
possession, has the same rights and powers as a trustee. See 11 U.S.C.
§ 1107(a) (1994).
Section 544(a)(3) confers upon the trustee the rights of a bona fide
purchaser when, as in this case, real property is at issue. The extent
of the trustee's strong arm powers is defined by the law of the state
where the property is located. See 4 Lawrence P. King, Collier on
Bankruptcy, ¶ 544.02 at 544-5, 544-14 (1996). Contrary to Corpo-
rate's assertions, the bankruptcy court and the district court properly
applied South Carolina law to determine that the Agreement was sub-
ject to avoidance under § 544(a)(3). See S.C. Code Ann. § 30-7-10
(providing that a leasehold interest in real estate for a period greater
than twelve months is invalid and unenforceable against certain bona
fide purchasers and/or subsequent creditors without notice); In re
Kitchin Equip. Co. of Virginia, Inc., 960 F.2d 1242, 1245 (4th Cir.
1992) ("a debtor in possession, without regard to any knowledge, is
empowered to avoid any transfer of property of the debtor or any obli-
gation of the debtor that is voidable by a hypothetical lien creditor").
_________________________________________________________________
* Section 544(a)(3) provides that:
(a) The trustee shall have, as of the commencement of the case,
and without regard to any knowledge of the trustee or of any
creditor, the rights and powers of, or may avoid any transfer of
property of the debtor or any obligation incurred by the debtor
that is voidable by--
...
(3) a bona fide purchaser of real property, other than fix-
tures, from the debtor, against whom applicable law permits
such transfer to be perfected, that obtains the status of a bona
fide purchaser and has perfected such transfer at the time of
the commencement of the case, whether or not such a pur-
chaser exists.
3
Corporate next claims that the bankruptcy court erred by failing to
address its counterclaims in ruling on Greenville's motion for sum-
mary judgment. However, as the district court properly found, Corpo-
rate failed to raise these counterclaims at the hearing on Greenville's
motion for summary judgment. And, in any event, none of Corpo-
rate's counterclaims were supported by the record.
Finally, Corporate contends that the bankruptcy court failed to take
into account alleged discovery abuses committed by Greenville. Spe-
cifically, Corporate claims that Greenville delayed producing certain
documents and scheduling of depositions that it needed to adequately
oppose Greenville's summary judgment motion. Even assuming that
Corporate's allegations are true, Corporate is precluded from arguing
that inadequate discovery made summary judgment inappropriate
because it did not submit an affidavit informing the district court that
additional discovery was necessary for it to respond to Greenville's
summary judgment motion. See Fed. R. Civ. P. 56(f); see also Evans
v. Technologies Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir.
1996) (holding that on appeal, a party must have submitted a Rule
56(f) affidavit in order to argue that summary judgment was inappro-
priate because of inadequate discovery).
Accordingly, we affirm.
AFFIRMED
4 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3032061/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-3760WM
___________
Gary J. Fuller, *
*
Appellant, *
*
v. *
*
Board of Curators of Lincoln * Appeal from the United States
University, Members in Personal and * District Court for the Western
Individual capacities; Claude Rogers, * District of Missouri.
Member of the Board of Curators of *
Lincoln University; John Heyward, Jr., * [UNPUBLISHED]
Member of the Board of Curators of *
Lincoln University; Donald Wyss, *
Member of the Board of Curators of *
Lincoln University; Yvonne Wilson, *
Member of the Board of Curators of *
Lincoln University; Robert Taylor, *
Member of the Board of Curators of *
Lincoln University; Robert Culler, *
Member of the Board of Curators of *
Lincoln University; Stephana *
Landwehr, Member of the Board of *
Curators of Lincoln University; George *
Brooks, Member of the Board of *
Curators of Lincoln University, *
*
Appellees. *
___________
Submitted: June 26, 2003
Filed: July 2. 2003
___________
Before MORRIS SHEPPARD ARNOLD, BYE, and RILEY, Circuit Judges.
___________
PER CURIAM.
Gary Fuller brought a 42 U.S.C. § 1983 action against the members of Lincoln
University’s Board of Curators, seeking damages against them in their individual
capacities for constitutional and state law violations. He appeals only the district
court’s1 adverse grant of summary judgment on his state law fraudulent-concealment
claim. Upon de novo review, see Rademeyer v. Farris, 284 F.3d 833, 836 (8th Cir.
2002), we conclude that judgment for defendants was appropriate. Undisputed
evidence showed that Mr. Fuller’s injury--whether it was the cancellation of his
enrollment, or his non-reinstatement--did not result from concealment of a certain
University policy, but from Mr. Fuller’s failure to comply with requirements of which
he had knowledge. See Dechant v. Saaman Corp., 63 S.W.3d 293, 295 (Mo. Ct. App.
2001) (elements of claim for nondisclosure or fraudulent misrepresentation).
Accordingly, we affirm. See 8th Cir. R. 47B.
1
The Honorable William A. Knox, United States Magistrate Judge for the
Western District of Missouri, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
-2-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/235956/ | 219 F.2d 934
55-1 USTC P 9229
Edna G. HOLLANDER, Petitioner,v.COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 11464.
United States Court of Appeals, Third Circuit.
Argued Jan. 18, 1955.Decided Feb. 14, 1955.
Thomas J. McManus, Pittsburgh, Pa., (Robert F. Banks, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., on the brief), for petitioner.
Dudley J. Godfrey, Jr., Washington, D.C., (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, Lee A. Jackson, Stanley P. Wagman, Sp. Assts. to the Atty. Gen., on the brief), for respondent.
Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
1
The problem in this tax case is whether under the particular facts the cost of an inclinator should be considered a medical expense within Section 23(x) of the Internal Revenue Code of 1939.1
2
The apparatus, also called a stair-seat elevator, is a strongly constructed collapsible chair propelled by an electrically driven cable along a channelled steel rail attached to the wall side of stairs in taxpayer's home. Its purpose is to transport taxpayer up and down stairs.
3
The critical tax year is 1948. On November 24, 1947 petitioner, then sixty-four, suffered an attack of coronary thrombosis with definite damage to the anterior artery. She was hospitalized the same day and so confined until January 15, 1948 when she was removed to her home. During the early part of 1948 she had marked insomnia and anxiety neurosis coupled with depression. She had no bedroom or bath on the first floor of her home. Her physician, Dr. Lawrence Wechsler, who had treated her since 1937, prescribed for her a complete slow down program. He does not pretend in his testimony that this could or would cure thrombosis but he does say regarding the effect of such treatment upon people so afflicted that 'They can live their life for many, many years, but they must live it on a lower plane. Whether they eat or drink or walk, you see, they must, as I say, live their life on a lower plane.' As part of this method of keeping her alive he did not wish her to climb stairs and tried to persuade her to move to a one floor dwelling. Petitioner, living alone and attached to her home, refused. The doctor then advised her to have a stair elevator installed, not as a cure for the condition but to avoid another acute attack by preventing her from running up and down stairs. Parenthetically it is pleasing to note that Dr. Wechsler's program would seem to have been successful to date.
4
Whether a particular expenditure qualifies as a medical expense depends upon 'the present existence or the imminent probability of * * * illness' and proof that such expenditure was 'incurred primarily for the prevention or mitigation of the particular * * * illness.' Stringham v. Commissioner, 1949, 12 T.C. 580, 584, affirmed 6 Cir., 1950, 183 F.2d 579. See Havey v. Commissioner, 1949, 12 T.C. 409. This inclinator was installed solely to alleviate the thrombosis condition. With neither bathroom nor bedroom on the first floor of the Hollander home and with this elderly woman living alone, the necessity of her going from one floor to the other is apparent. The use, therefore, of the inclinator had a directly beneficial effect with respect to both present mitigation of taxpayer's serious illness and future avoidance of a crisis provoking source with respect to it. It has helped importantly to enable her to live with less physical effort; as her doctor described it, 'on a lower plane'. In caring for herself she was forced to move about her house. By means of the stair elevator she has been saved from a very real source of strain on her heart which could and probably would have caused a recurrence of the acute stage of the disease. Dr. Wechsler by his slowing down treatment was striving to prevent that perhaps fatal consequence. Under such circumstances the Commissioner's argument that the inclinator was not 'proximately related' to the imminent recurrence of petitioner's thrombosis has no merit whatsoever. The argument, if it ever had any weight, now flies in the face of the Tax Court's specific finding of fact that Dr. Wechsler's purpose in having petitioner obtain the inclinator 'was to prevent her from doing any further damage to her heart.'
5
As we understand it, the Tax Court's position, unlike that of the Commissioner,2 is that regardless of the circumstances the cost of an inclinator cannot be a medical expense because an inclinator is by its inherent nature a capital item. We now address ourselves to that proposition.
6
The Tax Court, inferentially at least, seems to agree that the contraption involved adds nothing to the value of the house. Aside from its appearance it clutters up the stairs to a considerable degree. From the photograph of it, Exhibit No. 1 in evidence, it is difficult to imagine adults using it unless forced to do so by illness but at the same time it could be a dangerously attractive nuisance to children. A witness who has had the exclusive agency for the sale of inclinators in Western Pennsylvania since 1929 testified at the Tax Court hearing that 'the inclinator is purchased by people who are unable to walk stairs or forbidden to walk stairs', and that to his knowledge he had never installed an inclinator in the home of a family in robust health.
7
The Tax Court's sole reason for holding the inclinator to be a capital item of a personal nature and its cost not a medical expense is apparently that the inclinator had a useful life and a period of benefit to this petitioner extending far beyond 1948. The Commissioner's own regulations, however, include a medical deduction for 'artificial teeth or limbs.' Regulations 118, Section 39.23(x)-1. The 1954 edition of 'How To Prepare Your Income Tax Return' which is prepared by the Internal Revenue Service as an aid to taxpayers lists eyeglasses, artificial teeth and braces as allowable medical and dental expenses; the 1953 edition also listed crutches, hearing aids 'and similar items'; and a special Treasury Department pamphlet, 'Your Federal Income Tax' (1953 ed.), included Seeing Eye dogs. And the Tax Court itself has allowed medical expense deductions for elastic stockings and eyeglasses.3 All of these items can have a useful life and period of benefit to the particular taxpayer extending far beyond the year of deduction.
8
The Tax Court relied upon Estate of Hayne v. Commissioner, 1954, 22 T.C. 113. While that opinion rests on alternative theories, the facts there are radically different from the present situation. As the court said in the Hayne opinion, 'The use of the elevator was not intended to have and had no beneficial effect upon the mitigation or cure of the paralytic condition of the decedent. Its primary function was to solve a transportation problem, resulting from wishes of the decedent to get out of his room, which were merely incidental to the illness.' The other decision cited by the Tax Court, Seymour v. Commissioner, 1950, 14 T.C. 1111, concerned the cost of putting an oil burner into a home. The court disallowed that as a medical expense because it was 'a permanent improvement in petitioner's property.'4
9
It seems to us that we are here dealing with a true medical expense under the letter and spirit of the Code.5 The cost of the inclinator was directly within the definition of medical care as given in Section 23(x). It was an amount 'paid for the * * * mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body * * *.' It should have been allowed.
10
The decision of the Tax Court will be reversed.
1
Now incorporated in Section 213 of the Internal Revenue Code of 1954, 26 U.S.C
2
The Commissioner considers the ultimate characterization of a nondeductible item under Sec. 24(a)(1) or 24(a)(2), 1954 Code, §§ 262, 263, as an unnecessary additional step after resolving the primary question of whether the expenditure is or is not proximately related to an illness
3
In an unpublished memorandum decision, Cohen v. Commissioner, 1951, 10 T.C.M. 29. See, also, Denny v. Commissioner, 1935, 33 B.T.A. 738, where the predecessor of the Tax Court allowed the cost of artificial teeth as a business expense
4
Though we express no opinion on the validity of the Hayne and Seymour decisions it should be noted that both the elevator in the Hayne case and the oil burner in the Seymour case appear, at first glance at least, to fall within the specific exception provided by Section 24(a)(2) of the Internal Revenue Code of 1939, which reads:
' § 24. (a) General rule. In computing net income no deduction shall in any case be allowed in respect of--
'(2) Any amount paid out for new buildings or for permanent improvements or betterments made to increase the value of any property or estate; * * *.' (Emphasis supplied.)
Here 'This inclinator, concededly, was not permanently affixed to and did not become a part of the realty.' While the Tax Court treats it as a capital item outside the definition of Section 24(a)(2), there is no specific statutory direction of non-deductibility comparable to Section 24(a)(2) for capital items of a personal nature.
5
The Senate Finance Committee report (S.Rep.No.1631, 77th Cong., 2d sess., page 6) outlined the purpose of Section 23(x) as follows:
'This allowance is recommended in consideration of the heavy tax burden that must be borne by individuals during the existing emergency and of the desirability of maintaining the present high level of public health and morale.' | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3034588/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: LAURA FREDRIKA PLUMA,
Debtor,
No. 04-55107
LAURA FREDRIKA PLUMA, BAP No.
Appellant, SC-03-01098-
v. BaRyMa
TAX COLLECTOR FOR THE OPINION
COUNTY OF SAN DIEGO,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Marlar, Ryan, and Baum, Bankruptcy Judges, Presiding
Argued and Submitted
October 21, 2005—Pasadena, California
Filed October 31, 2005
Before: A. Wallace Tashima and Raymond C. Fisher,
Circuit Judges, and Milton I. Shadur,* Senior District Judge.
Per Curiam Opinion
*The Honorable Milton I. Shadur, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.
14879
14880 IN RE: PLUMA
COUNSEL
Brian M. Mahoney, American Debt Relief, San Diego, Cali-
fornia, for the appellant.
Timothy M. Barry, Senior Deputy County Counsel, San
Diego, California, for the appellee.
OPINION
PER CURIAM:
This is an appeal from the judgment of the Bankruptcy
Appellate Panel (“BAP”), Tax Collector v. Pluma (In re
Pluma), 303 B.R. 444 (B.A.P. 9th Cir. 2003), reversing the
judgment of the bankruptcy court, see In re Pluma, 289 B.R.
151 (Bankr. S.D. Cal. 2003).1 We affirm the judgment of the
BAP for the reasons stated in its opinion, 303 B.R. 444,
supra, and remand to the bankruptcy court for further pro-
ceedings.
AFFIRMED.
1
We deny appellee’s motion to dismiss the appeal. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1562793/ | 960 A.2d 838 (2008)
COM.
v.
MILANO.
No. 161 MAL (2008).
Supreme Court of Pennsylvania.
September 18, 2008.
Disposition of petition for allowance of appeal. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562799/ | 118 F.2d 500 (1941)
NATIONAL LABOR RELATIONS BOARD
v.
NEW ERA DIE CO., Inc.
No. 7551.
Circuit Court of Appeals, Third Circuit.
February 26, 1941.
*501 *502 Mortimer Kollender, of Washington, D. C. (Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, Bertram Edises, and Ramey Donovan, all of Washington, D. C., on the brief), for petitioner.
Joseph W. Henderson, of Philadelphia, Pa. (Robert C. Fluhrer, of York, Pa., on the brief), for respondent.
Before BIGGS, MARIS, CLARK, JONES, and GOODRICH, Circuit Judges.
JONES, Circuit Judge.
The National Labor Relations Board petitions for the enforcement of its order which directs the respondent to cease and desist from certain unfair labor practices, to take affirmative action for the future and to post the customary notices of its intention to comply. The respondent answers that the Board's findings are unsupported by the evidence, that the order is invalid and should, therefore, be denied enforcement.
When the matter was originally argued here, it was suggested that a question was present as to the majority status of the bargaining agent, similar to the question in Oughton et al. v. National Labor Relations Board, 3 Cir., 118 F.2d 486. Consequently when, upon petition for rehearing, the Oughton case was ordered for reargument, the present case was also set down for reargument at the same time.
The respondent is a Pennsylvania corporation having its place of business in Red Lion, Pennsylvania, where it is engaged in the manufacture, sale and distribution of steel clicking dies for use in cutting materials in the fabrication of shoes. About twenty per cent. of the materials used in the manufacture of dies, the respondent obtained from points outside of Pennsylvania, and it shipped directly to points outside of Pennsylvania approximately sixty per cent. by value of its manufactured products. These facts appear in material part by stipulation. The Board correctly concluded that the respondent was amenable to the provisions of the National Labor Relations Act.[1] The disruption of respondent's business because of labor troubles would directly affect the flow of interstate commerce. Cf. National Labor Relations Board v. Bradford Dyeing Association (U. S.A.) et al., 310 U.S. 318, 60 S. Ct. 918, 84 L. Ed. 1226; National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S. Ct. 668, 83 L. Ed. 1014; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893, 108 A.L.R. 1352.
The parties also stipulated that the unit appropriate for the purposes of collective bargaining should consist of all production and maintenance employees of the respondent, exclusive of supervisory and clerical employees. And the Board accordingly so concluded. There were thirty-nine such employees in the unit.
The Board found that the respondent, in violation of Sec. 8(1) of the National Labor Relations Act, had interfered with, restrained and coerced its employees in the exercise of rights guaranteed to them by Sec. 7 of the Act; that it had refused, in violation of Sec. 8(1) and (5) of the Act, to bargain collectively with the representative (International Association of Machinists) chosen for such purposes by a majority of its employees; and that, in violation of Sec. 8(1) and (3), it had discriminatorily treated one Eby, an employee, because of his union activities. It is these findings which the respondent contests.
Upon questions, such as are here raised, it is not within our province to make findings independently of the Board. The Act commits the fact-finding function to the Board exclusively. Sec. 10(c). Necessarily therefore the credibility of the witnesses and the facts testified to by them, as well as the reasonable inferences to be deduced therefrom, are for the Board's consideration. Our duty upon a review of the Board's action, in addition to passing upon any question of law involved, is to determine whether there is substantial evidence which, if believed, supports the Board's findings either directly or circumstantially. National Labor Relations Board v. Waterman Steamship Corp., 309 U.S. 206, 208, 209, 60 S. Ct. 493, 84 L. Ed. 704.
In substantial part, the material testimony was undisputed and no important conflict of fact has been called to our attention. It *503 is the inferences and conclusions, rather, which the Board drew from the testimony, whereof the respondent complains, contending that the Board erred in concluding that the management's action was designed to interfere with, restrain and coerce the employees in the exercise of their right to organize and to bargain collectively through representatives of their own choosing. It is the respondent's contention that, contrary to the Board's conclusion, the management's action was intended in the company's and, by the same token, the employees' best interests.
In support of its argument, the respondent stresses that the company was new (incorporated in 1937) and, consequently, its position in the industry not yet so established that union requirements could be met; that its employees, who were relatively few (thirty-nine in production and maintenance; forty-six in all), were highly interdependent in their work and all were in proximity to the management at all times; that there was no need for an outside independent agency as the bargaining representative of the employees; and that when the employees fully perceived and appreciated these facts, they, of their own choice, revoked the union's authority.
Unfortunately for the respondent's contention, the management's handling of the matter was such as to justify the Board's conclusion that the respondent did not permit its employees to enjoy the freedom of choice which the National Labor Relations Act contemplates. The speeches of Dedrick, formerly plant manager and later president of the company, at meetings of the employees which he called on company property, and in one instance on company time, during the employees' organizational activities, were thinly veiled threats that, if the employees chose the union for bargaining agent, the plant would close down and they would all lose their jobs. This innuendo, Mosher, plant superintendent after Dedrick's elevation to the company's presidency, buttressed with statements of like import. It was easy to forecast the probable effect of this conduct. As observed by this court in National Labor Relations Board v. Griswold Mfg. Co., 3 Cir., 106 F.2d 713, 722, "the employee is sensitive and responsive to even the most subtle expression on the part of his employer, whose good will is so necessary, * * *." And, what was foreseeable was what actually happened. The testimony of several of the employees who had joined the union but later signed revocations of their prior union authorizations gave reasons for their action which indicate the certain effect of the management's threats. One said "Well, why I signed it [the revocation] was to keep the shop from shutting down and would be more safer on the job; if the shop shut down we had no jobs." Mosher, the superintendent, had just told this witness prior to his signing that "The ones that sign it will be the ones that will get the gravy around the shop." According to the witness, "gravy" meant the chance "to put in * * * extra time". Another testified as a reason for his revoking the bargaining agent's authority " * * * that we heard about the shop closing up, and different things like that. I was the same as the rest of the guys; I didn't want to be out of a job." And another, a witness for the respondent admitted on cross-examination as his reason for signing the revocation that he was "afraid that the plant would close if * * * [he] did not sign it." The Board's finding that the respondent coerced its employees in respect of their exercise of their right to bargain collectively was warranted.
As much may be said for the Board's findings that the respondent interfered with and restrained its employees in the exercise of their rights. After twenty-five of the employees (more than a majority) had signed cards authorizing the union to represent them for collective bargaining, Cederholm, the union representative, immediately notified the respondent to that effect and requested a conference for the purposes of the union's representative function. Instead, however, of acceding to its employees' own choice of a bargaining representative, the company failed to respond to Cederholm and immediately caused a petition to be circulated among the employees (Mosher saw to it through the foremen), calling upon them to make a signed choice on the petition between a union and an open shop, a spurious issue. The respondent thus actively interfered with the exercise of its employees' rights by going "over the heads of the representatives to their constituents; to discredit them as representatives, to destroy their power to bargain as such." National Labor Relations Board v. Remington Rand, Inc., 2 Cir., 94 F.2d 862, 870, certiorari denied 304 U.S. 576, 58 S. Ct. 1046, 82 L. Ed. 1540. The worthlessness of the company's petition *504 as any evidence of its employees' free and untrammeled choice could hardly be better indicated than by what is disclosed concerning the signing of the petition. Although within ten days or so prior to the circulation of the petition twenty-five of the employees had signed up with the union as their bargaining representative, when the petition was circulated, thirty of the total thirty-nine employees signed for an open shop and none for a union. The bald form of the employer-sponsored "poll" was not without its desired effect. Cf. Titan Metal Mfg. Co. v. National Labor Relations Board, 3 Cir., 106 F.2d 254, 260, certiorari denied 308 U.S. 615, 60 S. Ct. 260, 84 L. Ed. 514.
Three times Cederholm for the union endeavored to bargain collectively with the management, and each time the opportunity was denied. At the conferences held, the time was largely consumed by the management in an effort to prove to Cederholm that the union did not represent a majority. And, upon the occasion of Cederholm's last visit, for which he arranged by telephoning Mosher and at which Raub, secretary of the company, was also present, the time was taken up in controversy over Cederholm's demand that the shop committee (Eby, Kelly and Hibbs) be summoned, which Mosher rejected. As a conclusion to the meeting, Mosher, for some reason not accounted for by him, apprehended personal harm to Cederholm and warned him that he had better not remain in town over night "somebody is out to get you." Cederholm left the place of meeting but did not leave town immediately. Shortly after he had gone, ten or twelve of the employees arrived at Raub's office (the place of the conference) seeking Cederholm. They had noisily rushed out of their place of work without interference from foremen or supervisors upon the rallying call of one Poet, an employee, "Come on, fellows, let's go." Nor did Mosher or Raub reprove them for having left their place of employment during working hours. When told by Mosher that Cederholm had gone, all but four of the group returned to work, but the four continued to roam the town until they met up with Cederholm and told him that it would not be "healthy" for him to remain in town and advised him not to make any more complaints to the Board against the respondent. Was this treatment of the union representative inspired by the company? The Board was justified in its conclusion that it was at least encouraged and approved by the company. And being so encouraged, it constituted an interference with the employees' bargaining rights for which the employer is responsible. National Labor Relations Board v. Ford Motor Company, 6 Cir., 114 F.2d 905, 911, 912, certiorari denied 61 S. Ct. 621, 85 L.Ed. ___. See also Consumers Power Co. v. National Labor Relations Board, 6 Cir., 113 F.2d 38, 44.
The respondent argues that it was under no obligation to bargain collectively with the union, alleging, in this connection, that Cederholm failed to furnish proof, upon request, that the union actually represented a majority of the employees. It has been held that it is a bargaining representative's duty, when an employer in good faith questions its majority status, to offer, and it is the employer's duty to accept, some reasonable method for ascertaining the truth of the representative's claim. Matter of The Serrick Corporation, etc., 8 N.L.R.B. 621, enforced in International Ass'n of Machinists, Tool and Die Makers Lodge No. 35 v. National Labor Relations Board, 71 App.D. C. 175, 110 F.2d 29, affirmed by the Supreme Court, 311 U.S. 72, 61 S. Ct. 83, 85 L.Ed. ___. But Cederholm cannot be said to have refused the requested proof. He suggested that the respondent inquire of the Philadelphia office of the National Labor Relations Board where the signed cards of the employees were on file but the respondent made no such inquiry. Cederholm did refuse to show Mosher the signed cards. To have done so would have been to deprive the employees of their secrecy of choice which the Act is designed to secure. The undeniable fact is that a majority of the employees had authorized the union to bargain collectively for them and the respondent took no reasonable steps to ascertain that fact. The Board was "convinced that the respondent never intended to bargain collectively with the Union, and merely utilized an asserted doubt regarding the Union's status as majority representative to evade bona fide collective bargaining with the Union". The evidence in the case justifies that conclusion.
The respondent's remaining contentions in attempted impairment of the union's majority are devoid of any merit. Relying upon the fact that the employees signed their union affiliation cards on a Sunday, the respondent cites a Pennsylvania statute of 1794, 18 P.S.Pa. § 1991, *505 on Sunday observance and a state case applying that statute. In cases where local law is controlling, federal courts are, of course, bound by it, but here we are concerned with the enforcement of a federal statute which must be unaffected by local enactments. In any case, a thing as important to life as wages, hours of work, and other conditions of employment, is above the ordinarily secular. The requirements upon the time of workers during the rest of the week make Sunday peculiarly a convenient day for them to assemble concerning matters of fundamental importance to them and to their community in general. In this connection, it is not irrelevant to observe that those who would exact strict Sunday observance in order to retain for themselves an economic advantage would do so in the face of divine precedent for the performance on the Sabbath of a service for human welfare; Matthew, XII, 10-12. Equally unworthy is the respondent's contention that, because several of the union members were minors, their authorization of the union to bargain and contract for them was voidable, as if legal majority were essential to a worker's right to select a bargaining representative. If such were the law, then in units where minor employees predominated, they would be unable to bargain collectively at all. But, it is the majority choice of the employees in an appropriate unit, and not just of the adults among them, which the National Labor Relations Act contemplates; hence, anyone old enough to be employed is old enough to vote for a bargaining agent.
Nor is any denial of the right of freedom of speech, which the respondent espouses, present in this case. It may be conceded that some of the statements by Dedrick, Mosher and Null, the office man, which the Board rightly considered of importance upon a question of the management's motive and intent, went no further in their derogation of the union than Ford's Viewpoint on Labor and the "Fordisms" contained in the pamphlets handed out to the workers at Dearborn. See National Labor Relations Board v. Ford Motor Company, supra, 114 F.2d at pages 913, 914. But no one here is restrained from uttering anything. The Board's order contains no such provision. The management now, as heretofore, may freely give currency to their views. Ford case, supra, 114 F.2d at pages 913-915, 916. What the respondent apparently misconceives is that the right to entertain opinions and to express them freely does not carry with it freedom from responsibility for the intended or reasonably foreseeable consequences in so far as the utterance may restrain or impair the rights of others. The fact that expression is free does not mean that the utterer may not be called upon to answer for it by way of being held accountable for the effect of his expressions. The evidentiary value of the utterance, when competent and material, is ever present. Coercion may be thus established, if the proof be sufficient and although the proof may result from one's exercise of his right to speak freely. It may be further noted that in the Ford case, unlike here, the assailed speech "contain[ed] no threat of discharge or discrimination" (114 F.2d page 913). If the respondent should reply that no threat of discharge was made in this case, the answer is that the implication of the threat to close the plant was tantamount to a threat of loss of employment and was so interpreted by a number of the employees.
The respondent complains that it was denied the right by the trial examiner to show by the testimony of the twenty-one employees who revoked their authorizations of the union that they did so voluntarily, and asserts that the Board erred in approving the examiner's action. It should be noted, however, that the refusal of the respondent to bargain collectively and its commission of the other proven unfair labor practices occurred before, and still existed when, the revocations were executed. In such circumstances it is impossible to establish that the employees, when they revoked, acted with the full freedom of choice which the Act requires. The testimony was therefore properly rejected as immaterial. International Ass'n of Machinists, Tool and Die Makers Lodge No. 35 v. National Labor Relations Board, 311 U.S. 72, 61 S. Ct. 83, 88, 85 L.Ed. ___. See National Labor Relations Board v. Bradford Dyeing Association (U.S.A.) et al., 310 U.S. 318, 340, 60 S. Ct. 918, 84 L. Ed. 1226; Oughton et al. v. National Labor Relations Board, supra.
The evidence warrants the Board's conclusion that the respondent took discriminatory action against its employee Eby because of his activity in unionizing the employees. Eby occupied a fore-front position in the discussions about organizing and was markedly active among the employees to that end. At the first organization meeting *506 he became a member of the shop committee. He also refused to sign the petition circulated by the management, thereby isolating himself as one who preferred the union to which the management had indicated its opposition. That he was singled out for special treatment by the company is evident. At the second employee meeting, which Dedrick called after a majority of the employees had signed union cards, Eby's attendance was deliberately avoided. This, the management accomplished by arranging the meeting for 6:00 P. M. and by having the foreman tell all of the employees to continue work until that time, except Eby, who was told to check out at 5:00 P. M. When he failed to leave at that time, a foreman insisted that he check out, which Eby did at 5:15 P. M. Mosher, also, on several occasions had shown an antipathy toward Eby, which can be attributed only to the latter's efforts to organize the employees. And, finally, within a few weeks after Cederholm's last attempt at a conference with the management, to which we have already referred, Eby's hourly rate of pay was reduced, although that of the other employees was not; and two months later he was discharged. This action takes on added significance when it is observed that Eby was one of the company's most skillful workmen. The satisfactory character of his work had prompted favorable comment by his superiors; and he was the only employee under the grade of foreman who had been used as an instructor for other employees. Moreover, the reason ascribed by the respondent for Eby's discharge, namely, that they wanted only employees from Red Lion, was inapplicable. Eby lived in Red Lion when he was discharged and had lived there for several months preceding. The Board, therefore, acted properly in ordering Eby's reinstatement as an employee and in directing that the respondent make him whole for his loss due to the reduction in his rate of pay and to his ultimate discharge down to the offer of reinstatement.
The Board's order, however, requires modification in its provision for making whole Eby's loss. So much of the order as provides that, from the amount otherwise due Eby, the respondent shall deduct such sums as Eby may have received from federal, state, municipal, or other work-projects and shall pay over the amount so deducted to the appropriate public fiscal agency must be excised. It was beyond the power of the Board to so order. Republic Steel Corporation v. National Labor Relations Board et al., 311 U.S. 7, 61 S. Ct. 77, 78, 79, 85 L.Ed. ___. Accordingly, the provisional clause in sub-paragraph (c) of paragraph 2 of the Board's order, toward the end thereof, beginning with the words "deducting, however" and ending at the close of the sub-paragraph, will be deleted.
As modified in conformity with this opinion, the Board's order will be enforced, for which purpose a form of decree may be submitted.
GOODRICH, Circuit Judge (dissenting in part).
Our dissent in this case is to the same point as that raised in the Oughton case decided this day and referred to in the majority opinion. It seems to us that the question of the existence of union membership in a majority of the employees of a given employer at the time of a hearing concerning unfair labor practices is a relevant question. The trial examiner evidently considered it relevant to the extent that he received testimony tending to prove that the relinquishment of union membership in this case was due to unfair labor practice on the part of the employer. But testimony offered to the effect that the employees revoked their authorization voluntarily was rejected. How the testimony is relevant for presentation for one side but not the other is hard to understand. We believe that this conflicting testimony presented an important relevant issue and that the action of the examiner in rejecting it and of the Board in approving the rejection was error.
The majority of the court in stating that the issue presented by the testimony was irrelevant is consistent with the opinion expressed in the Oughton case. The statement of our belief that it was relevant and its rejection arbitrary is consistent with the dissenting opinion in the Oughton case. The dissent in this case presents no new point and the majority opinion obviously settles the rule hereafter to be followed in in this court.
MARIS, Circuit Judge, concurs in this opinion.
NOTES
[1] 49 Stat. 449 et seq., c. 372, 29 U.S.C.A. § 151 et seq. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564867/ | 55 F.2d 854 (1932)
NESTLE-LE MUR CO.
v.
EUGENE, Limited.
No. 5787.
Circuit Court of Appeals, Sixth Circuit.
February 5, 1932.
*855 F. O. Richey, of Cleveland, Ohio (F. M. Bosworth and Richey & Watts, all of Cleveland, Ohio, on the brief), for appellant.
Alfred W. Kiddle, of New York City (Wylie C. Margeson, of New York City, Squire, Sanders & Dempsey, of Cleveland, Ohio, on the brief), for appellee.
Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.
HICKENLOOPER, Circuit Judge.
This is an action for infringement of patent No. 1,266,879, issued to Eugene Francois Suter, May 21, 1918, for electrical heating apparatus for permanently waving hair. Claim 1 is the only claim in suit, and is printed in the margin.[1] The District Court found this claim to be valid and infringed as against defenses of anticipation, aggregation, want of invention, and noninfringement. The defendant below appeals.
The human hair is waved (permanently, so called) by winding strands or tresses tightly around suitable curlers, dampening with borax solution or other preferred preparation, enclosing these coils in stiff paper tubes, inserting in tubular electric stoves, and applying heat. The patentee is said to have discovered that, since the hair is coarser and more abundant near the roots, that portion requires heating for a longer period than nearer the tips, where it is finer and more easily injured by excessive heat. To accomplish this result, or practice this method, the patentee duplicated the electric stoves or heaters in common use (see patents to Grosert and Unger, No. 1,103,506, and to Kremer, No. 1,164,102), and connected the electric circuit in parallel to the resistance or heating coils, so that by the operation of a switch the current to the upper or outer heater could be connected or disconnected at will. The two heaters are coaxially arranged, attached to each other and held in position by hollow struts through which the electrical connections pass, and, except for these struts, are separated by air gaps to prevent heat from passing from one to the other. The method employed by the plaintiff for use of this device is first to connect electrically the lower heater, or that next to the head, and, after that heater has been in operation for a given period of time, to connect the upper or outer heater by means of the switch. Both heaters then remain in use until the waving operation is completed, and thus heat is applied for a longer period to that portion of the hair nearer the roots. The device of the patent is said by the defendant to be but the obvious and logical means of accomplishing the desired end of applying heat for different periods of time to the different longitudinal sections of the hair, to involve no more than the ordinary skill of an electrician, and to represent merely a duplication of parts, and hence not to be patentable.
The defendant's device is an almost exact copy of the plaintiff's commercial device, but is claimed not to infringe chiefly for two reasons, (1) because the connecting struts are of aluminum, a metal of high heat conductivity, and the two heaters are thus said not to be "heat insulated from each other"; and (2) because in operation the defendant first passes current through both heaters for a given period of time and then disconnects the upper heater whereby the heat is said to *856 be thereafter maintained throughout both heaters by the sole operation of the lower unit. The patent says nothing as to the material of which the tubular struts are to be made, and it is obvious that, if these struts are composed of a metal of high heat conductivity, which joins the tubular members forming the inner and outer casings of the heater, which members are likewise of high conductivity, the two stoves cannot be completely "heat insulated" from each other. Claim 1 as originally presented in the application contained no call for heat insulation. It was rejected upon reference to the patent to Grosert and Unger, supra, and other patents, and was canceled, and claim 1 as now contained in the issued patent was substituted. Under these circumstances it is at least very doubtful whether any device could be said to infringe which did not have the several units heat insulated from each other, and whether the defendant's device, in spite of similarity of construction to plaintiff's commercial device, is so insulated. See Grand Rapids Refrigerator Co. v. Stevens (C. C. A.) 27 F.(2d) 243; Southern Textile Machinery Co. v. United Hosiery Mills Corp. (C. C. A.) 33 F.(2d) 862; Reynolds Spring Co. v. L. A. Young Industries, 36 F.(2d) 150 (all C. C. A. 6). In our opinion, however, the case need not turn upon this now well-established principle.
We are not impressed by the contention that, because the defendant, as manufacturer, instructed its vendees to operate the heaters by a method differing from the method employed by the plaintiff, or even by a method which is in direct opposition to plaintiff's method, infringement is thereby avoided. Both plaintiff's and defendant's heaters are susceptible of operation in the same manner. The patent is a machine patent, and, so long as all of the mechanical and electrical elements are identical in both the defendant's and the patented devices, and both are capable of being operated in the same manner and to accomplish the same result in substantially the same way, there would be infringement through manufacture and sale notwithstanding different methods of use were employed by the hairdresser vendees.
Defendant also attacks the utility of the device, contending that human hair is neither coarser nor more abundant near the roots to an extent requiring application of heat for longer periods to those portions. We have no doubt that by copying and using the patented device the defendant has estopped itself from claiming want of utility in the sense of the patent statute. Seymour v. Ford Motor Co., 44 F.(2d) 306, 308 (C. C. A. 6), and cases there cited. As pointed out by us in the decision just cited, this defense of want of utility is distinct from that of lack of the exercise of the inventive faculty, as to which no estoppel arises because of infringement or use.
We come then to what we consider the main issue upon the present record. Conceding the utility, or even the necessity, of applying heat for a longer period to the hair near the roots in order to procure a better and more permanent hair wave, the only real advance in the art seems to lie in, or result from, the discovery of the advantages of that method. Having made this discovery, the patentee designed the obvious electrical device to effect his purpose. We say "obvious," for it seems to us that, if the desired end of applying heat for different periods to different sections of the hair had been disclosed, it was well within the realm of electrical and mechanical skill, in view of the prior art, to arrange a plurality of heaters along a common axis, corresponding to the sections of hair to be differently treated, to construct resistance or heating coils within each of said units, of the size and material best adapted to produce the intensity of heat desired, and to connect such heating units in parallel and with such switches that each might be operated independently of the other or simultaneously. The question of law thus presented may perhaps be stated as follows: Where one discovers a new and useful process for accomplishing a given result, is the obvious mechanical or electrical device, obvious to any one to whom the proposed method is disclosed, patentable apart from the process? We are constrained to the opinion that it is not.
In Corning et al. v. Burden, 15 How. 252, 267, et seq., 14 L. Ed. 683, the court refers to the fundamental difference between process and machine patents, calling attention to the fact that a process may be patentable irrespective of any particular form of machinery or mechanical device for practicing it. Such process patent will cover all means of practicing the process although such means may not be pointed out in or disclosed by the specification. One may not secure a process patent merely covering the operation of a machine, for such a patent would be but for the function or operative effect of the machine (Westinghouse v. Boyden Co., 170 U.S. 537, 557, 18 S. Ct. 707, 42 L. Ed. 1136); but, on the other hand, a patent for a new and *857 useful process is not invalidated because of a lack of novelty in the mechanical means disclosed for practicing it. The subjects covered by patents for a process and for a machine, although frequently related and in a sense often founded upon the same mental concept, are nevertheless in substance independent and radically different. As clearly stated in the authorities here cited, "a machine is a thing," while "a process is an act, or a mode of acting"; "a new process is usually the result of a discovery; a machine, of invention." In Cochrane v. Deener, 94 U.S. 780, 788, 24 L. Ed. 139, it was distinctly pointed out that a process may be altogether new, and produce an entirely new result, while the machinery "suitable to perform the process may or may not be new or patentable."[2] The same thought underlies the language of Mr. Justice Bradley in Tilghman v. Proctor, 102 U.S. 707, 728, 26 L. Ed. 279, and the decision in Risdon Locomotive Works v. Medart, 158 U.S. 68, 79, 15 S. Ct. 745, 39 L. Ed. 899, where it was held that a process patent was invalid because all that the patentee invented was a machine. We see no reason why the converse of this is not equally true, or why a machine patent which does not meet all the tests of patentability applicable to machine patents should not be held invalid for that reason, notwithstanding the patentee may have discovered a clearly patentable process. Compare, also, Expanded Metal Co. v. Bradford, 214 U.S. 366, 29 S. Ct. 652, 53 L. Ed. 1034.
These decisions seem to approach the question of the separate patentability of a process and the machine for practicing it solely from the viewpoint of the novelty of each, and this is not precisely the question with which we are confronted, namely, whether other now well-recognized tests of the patentability of machines must here be applied with the performance of the process steps, in their order, as the previously recognized and desired end, as the purpose for the accomplishment of which the machine was designed. We are of the opinion that they must be so applied. A machine is a device or combination of devices by means of which energy can be utilized or a useful operation can be performed. It is adapted to rendering a mechanical service or to the fabrication of material so as to change its form or produce a desired product. Doubtless superiority of the product, or the more economical and efficient performance of the service, is always the ultimate end sought the test of an advance in the art and of the utility of the machine yet, where the entire utility of such machine depends upon the method of its use in following the successive steps of a prescribed process in the true sense of this word, the situation is analogous to that presented by an aggregation; the ultimate improvement in product or service is not determinative of the question of invention, but of utility only; the ultimate unity of operative result is to be disregarded and must yield, as a criterion, to the fact that separate operations are independently performed by the several units, and the court must determine whether, with the performance of these several operations in view, an exercise of the inventive faculty was required to organize the machine. Compare, Concrete Appliances Co. v. Gomery, 269 U.S. 177, 46 S. Ct. 42, 70 L. Ed. 222; Grinnell Washing Machine Co. v. E. E. Johnson Co., 247 U.S. 426, 38 S. Ct. 547, 62 L. Ed. 1196; E. Fredericks, Inc., v. Eugene, Ltd., 3 F.(2d) 543, 547 (C. C. A. 2). This principle applies to the present case, for, apart from the process disclosed, the device of the patent in suit lacks all patentable utility.
If we are right in the conclusion just reached, the language of the Supreme Court in Saranac Mach. Co. v. Wirebounds Co., 282 U.S. 704, 51 S. Ct. 232, 75 L. Ed. 634, is in point. It is true that a method patent had there issued simultaneously with the machine patent in suit, as well as a previously issued and then expired product patent, the applications for all of which had been copending, and that the court limited itself to a decision upon the validity of the machine patent. It is also true that the court seems to base its decision largely upon an attempted extension of the monopoly of the expired reissue (product) patent by resort to the machine patent (a position difficult to sustain, since the applications were copending); but the opinion also deals with the question of the exercise of the inventive faculty in the creation of a machine to perform the method disclosed in the product patent first issued, and this necessitates that the practice of the process be accepted as the end in view in determining the validity of the machine patent. Thus on page 713 of 282 U. S., 51 S. Ct. 232, 236, 75 L. Ed. 634, the court says: "Given the *858 method of the reissue patent, failure to adapt these obvious means to the solution of the problem in hand would, we think, have evidenced a want of ordinary mechanical skill and familiarity with them. Their adaptation to the new use was not the creative work of the inventive faculty. It was `but the display of the expected skill of the calling, and involves only the exercise of the ordinary faculties of reasoning upon the materials supplied by a special knowledge, and the facility of manipulation which results from its habitual and intelligent practice.'"
This language is peculiarly applicable to the present case, and, so applying it, the problem was how to heat different sections of the coiled hair for different periods of time, that is, how to practice the method; and the obvious solution of that problem was by duplication of the electrical heating device common to the art, the multiple units being so connected that they might be operated singly or simultaneously. This was but the exercise of the mechanical and electrical skill naturally to be expected.[3] The fact that no method patent was applied for or issued seems to us immaterial. Having discovered a new and useful method, which we assume was patentable as such (although see Thomas Lasting Wave Co. v. E. Fredericks, Inc., 277 F. 186, C. C. A. 2), a machine patent was applied for and issued upon an unpatentable device. This was an error in judgment and administration for which the courts cannot and should not afford a remedy.
It is also clear that but little prejudice could result from an inventor's indecision as to whether his invention should properly be the subject of a patent for a machine or an article of manufacture, or of a patent for an article of manufacture or a composition of matter. These three subjects of patent are in a true sense all products or articles, but all differ fundamentally in nature from a process. Cf. Burr v. Duryee, 1 Wall. 531, 568, 17 L. Ed. 650. The latter is not a "thing." It may be protected and patented only as a process, and failure to observe this distinction is here fatal.
The decree of the District Court is reversed, and the cause is remanded, with instructions to dismiss the bill.
NOTES
[1] "1. In electrical heating apparatus adapted for use in permanently waving hair, a plurality of independent tubular heaters arranged along a common axis so as to be heat insulated from each other, and in combination with a switch whereby one of such heaters may be put into and out of operation independently."
[2] Thus patents are frequently issued for the machine and/or the process, but the question of patentability of each must be separately decided. The machine of the Eibel patent, No. 845,224 (see 261 U.S. 45, 43 S. Ct. 322, 67 L. Ed. 523), although in a sense practicing a new and useful method of paper making, is an example where the means adopted to produce speedier production was not obvious to the skilled mechanic, and the machine was therefore held to evidence the exercise of invention, and to be patentable apart from any process. Such examples might be greatly multiplied.
[3] It also represents but a duplication of operative parts, which likewise is not invention. Slawson v. Grand Street R. Co., 107 U.S. 649, 2 S. Ct. 663, 27 L. Ed. 576; Dunbar v. Myers, 94 U.S. 187, 24 L. Ed. 34; Indiana Lamp Co. v. Alvo Mfg. Co., 296 F. 623 (C. C. A. 6); Condit Elec. Mfg. Co. v. Westinghouse Elec. & Mfg. Co., 200 F. 144 (C. C. A. 1); Nathan Anklet Support Co. v. Cammeyer, Inc., 264 F. 968 (C. C. A. 2). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562802/ | 960 A.2d 1101 (2008)
111 Conn.App. 656
Dean B. HOLLIDAY
v.
STATE of Connecticut.
No. 28741.
Appellate Court of Connecticut.
Argued April 23, 2008.
Decided December 23, 2008.
*1102 Dean B. Holliday, pro se, the appellant (petitioner).
Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Brian Preleski, senior assistant state's attorney, for the appellee (respondent).
DiPENTIMA, GRUENDEL and MIHALAKOS, Js.
MIHALAKOS, J.
The pro se petitioner, Dean B. Holliday, appeals, following the denial of his petition for certification to appeal, from the judgment of the trial court denying his petition for a new trial, which was rendered upon the granting of the motion for summary judgment filed by the respondent, the state of Connecticut. On appeal, the petitioner claims that the court abused its discretion in denying the petition for certification to appeal and improperly determined that his petition for a new trial was time barred because it was filed outside the three year statute of limitations.[1]*1103 Specifically, he claims that the court improperly found that he had failed to present evidence that the statute of limitations should be tolled because the state department of veterans' affairs had fraudulently concealed evidence. We dismiss the appeal.
Following the court's granting of the respondent's motion for summary judgment, the petitioner filed a petition for certification to appeal, pursuant to General Statutes § 54-95(a), which certification was denied by the court.
The petitioner first claims that the court improperly denied certification to appeal from the denial of his petition for a new trial. "It is well established that we apply the abuse of discretion standard when reviewing a court's decision to deny a request for certification to appeal from a denial of a petition for a new trial." Daniels v. State, 88 Conn.App. 572, 576, 870 A.2d 1109 (2005), cert. denied, 274 Conn. 902, 876 A.2d 11 (2005). Therefore, the threshold issue that we must now decide is whether the court abused its discretion in denying the petition for certification to appeal. Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), establishes the framework for satisfying the criteria necessary to show an abuse of discretion. "A petitioner satisfies that burden by demonstrating: [1] that the issues are debatable among jurists of reason; [2] that a court could resolve the issues [in a different manner]; or [3] that the questions are adequate to deserve encouragement to proceed further." (Internal quotation marks omitted.) Seebeck v. State, 246 Conn. 514, 534, 717 A.2d 1161 (1998).
In our review of whether the court abused its discretion in denying certification to appeal, we examine the petitioner's underlying claim that the court improperly rendered summary judgment because genuine issues of material fact existed. We conclude, after an exhaustive review of the record, that the court properly rendered summary judgment because there was no genuine issue of material fact. The record clearly supports the court's finding, and, therefore, the petitioner has failed to demonstrate that the issues raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised merit encouragement to proceed further. Accordingly, there was no abuse of discretion by the court in denying the petition for certification to appeal.
The following facts and procedural history are relevant to our resolution of the petitioner's appeal. In April, 2001, the petitioner entered the Veterans Administration Federal Credit Union in Newington wearing a dust mask over his face, latex gloves, heavy clothes and a backpack. Concerned employees alerted Diane Jarvis, the chief executive officer of the credit union, of the petitioner's appearance. She approached the petitioner, and they had a brief conversation concerning the ability of a nonmember to cash a check at the credit union. The petitioner then exited the credit union.
The next day, on the basis of the incident with the petitioner the previous day, Jarvis informed her employees to be prepared for trouble. By chance, an employee of the credit union, Stacey Rechenberg, was walking to the front door of the credit union when she saw the petitioner and another man exit a car parked in a no *1104 parking zone wearing dust masks and latex gloves. Rechenberg then saw the petitioner reach into the back-seat of the car and remove a black bag. Cognizant of the earlier warning, she closed and locked the door. Another employee contacted Jarvis, who in turn activated an alarm and telephoned the police.
The petitioner and his accomplice fled the scene in an automobile, which they subsequently abandoned, and then fled on foot. A police canine tracked the pair to a dumpster approximately two miles from the car. The petitioner was arrested and thereafter was convicted, after a jury trial, of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134(a)(2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134(a)(2), and attempt to commit robbery in the second degree in violation of General Statutes § § 53a-49 and 53a-135(a)(2). On June 18, 2002, he was sentenced to forty years incarceration. This court subsequently affirmed the decision of the trial court. State v. Holliday, 85 Conn.App. 242, 856 A.2d 1041, cert. denied, 271 Conn. 945, 861 A.2d 1178 (2004).
On November 23, 2004, the petitioner, while incarcerated, filed a Freedom of Information Act request with the United States Department of Veterans Affairs in West Haven, seeking, among other things, any reports generated by the federal agency's police department concerning the attempted robbery of the "Newington V.A. Credit Union."[2] Nelly McCrory, the Freedom of Information Act officer who responded to the petitioner's request, advised the petitioner by letter dated December 6, 2004, that there were no responsive records pertaining to his request. The petitioner thereafter appealed from that determination to the general counsel for the United States Department of Veterans Affairs, located in Washington, D.C.
By letter dated November 15, 2005, the general counsel for the United States Department of Veterans Affairs notified the petitioner that his appeal was granted in part and denied in part. Enclosed with the letter were two redacted United States Department of Veterans Affairs police reports. On March 27, 2006, the petitioner filed a petition for a new trial on the basis of this newly discovered evidence pursuant to General Statutes § 52-270 and Practice Book § 42-55. He claimed that the police reports showed that the Newington police department and the Veterans Administration Federal Credit Union in Newington were alerted to a potential robbery of the credit union, unrelated to the attempted robbery of which he was convicted, and that in response they had set up a sting operation. The petitioner asserted that because of the sting operation, the credit union employees were on heightened alert concerning a possible robbery and, therefore, overreacted to his parking in a no parking zone, exiting his car wearing a dusk mask and latex gloves and removing a black bag from the back of his vehicle. He claimed that the jury would have understood the employees' alarm at his presence and peculiar dress if they had seen the police reports. The petitioner also claimed that because this newly discovered evidence arose after the conclusion of his trial, he was entitled to a new trial.
*1105 The respondent thereafter filed a motion for summary judgment, claiming that the petition for a new trial was filed by the petitioner after the applicable three year statute of limitations. At oral argument on the motion for summary judgment, the petitioner claimed that the delay in filing his petition for a new trial was caused by the respondent's misrepresentation and concealment of the two United States Department of Veteran Affairs police reports. Specifically, he claimed that the state had failed to provide him with copies of the police reports and had denied that the reports existed in response to his initial Freedom of Information Act request. He claimed that the respondent's conduct amounted to fraudulent concealment and tolled the statute of limitations.
The court, in its memorandum of decision, found that the period for filing a petition for a new trial ended June 18, 2005, which was three years from the petitioner's June 18, 2002 sentencing. The petitioner's March 27, 2006 petition, therefore, was outside the limitations period. Moreover, the petitioner failed to present any evidence that the respondent, rather than the United States Department of Veterans Affairs, had engaged in any conduct that would warrant the tolling of the statute of limitations. On this basis, the court concluded that the petition for a new trial was barred by the applicable statute of limitations. Accordingly, the court granted the respondent's motion for summary judgment.
We now set forth the applicable standard of review. "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 296 (2008).
The opportunity for a new trial when new evidence comes to light provides a criminal defendant an important procedural mechanism for remedying an injustice. Seebeck v. State, supra, 246 Conn. at 531, 717 A.2d 1161. A critical limitation on the exercise of the trial court's discretion in passing on such a petition for a new trial, however, is the statute of limitations. See General Statutes § 52-582.[3] "The three year statute of limitations on a petition for a new trial based on newly discovered evidence is the product of the legislature's balancing of the interests of the petitioner against the interests of the public and the state.... Thus, for a petition for a new trial, within the three year limitations period, the petitioner's interests trump those of the public and the state. Beyond that period, however, the interests of the public and the state trump those of the petitioner." (Citations omitted.) Summerville v. Warden, 229 Conn. 397, 426-27, 641 A.2d 1356 (1994). The three year period begins to run from the date of rendition of judgment by the trial court; Varley v. Varley, 181 Conn. 58, 61, 434 A.2d 312 (1980); which, in a criminal case, is the date of imposition of the sentence by the trial court. State v. Coleman, *1106 202 Conn. 86, 89, 519 A.2d 1201(1987).
It is undisputed in this case that the petition for a new trial was filed more than three years after the imposition of his sentence by the trial court.[4] The petitioner argues, nevertheless, that his petition was timely because the statute of limitations was tolled by the respondent's fraudulent concealment of evidence. We conclude, however, that the petitioner failed to present evidence that the respondent, rather than the United States Department of Veterans Affairs, fraudulently had concealed evidence.[5]
The only argument advanced by the petitioner on the issue of fraudulent concealment was that the state department of veterans' affairs[6] delayed in providing him with copies of certain police reports.[7] He argued that these reports were in the possession of the state department of veterans' affairs and, therefore, necessarily were in the possession of the respondent.[8] To support this argument, he submitted to the court documents that he claims are communications between himself and the state department of veterans' affairs. Specifically, he submitted (1) his November 23, 2004 Freedom of Information Act request, (2) the December 6, 2004 reply letter from McCrory, (3) the September 13, 2005 reply letter from the office of the general counsel for the United States Department of Veterans Affairs stating that it was in the process of obtaining records related to his appeal, (4) the November 15, 2005 letter from the office of the general counsel for the United States Department of Veterans Affairs granting in part and denying in part his appeal and (5) copies of the redacted police reports that he had received from the United States Department of Veterans Affairs. Contrary to the petitioner's claims, however, *1107 the documents he submitted do not create a genuine issue of material fact because they are not evidence of fraudulent concealment by the respondent.
The petitioner's erroneous assumption in this case is that the documentary evidence he submitted in support of his fraudulent concealment claim originated from the state department of veterans' affairs. As the court found, however, the evidence he submitted clearly originated from the United States Department of Veterans Affairs, not the Connecticut department of veterans' affairs. His initial Freedom of Information Act request was directed to the veterans affairs police service for the United States Department of Veterans Affairs. The subsequent response letter from McCrory contained the United States Department of Veterans Affairs seal at the top of the letterhead and directed the petitioner to file any appeal with the general counsel for the United States Department of Veterans Affairs in Washington, D.C. The communications from the office of the general counsel contain the same United States Department of Veterans Affairs seal at the top of the letterhead and have a return address in Washington, D.C. Although it is true that the state and federal departments in this case have similar names, thereby making the source of the petitioner's confusion understandable, the petitioner has presented no evidence that the respondent, rather than a federal agency, fraudulently had concealed evidence. Accordingly, there is no genuine issue of material fact, and the court properly granted the respondent's motion for summary judgment. We therefore conclude that the issue presented by the petitioner is not debatable among jurists of reason, that a court could not properly resolve the issue in a different manner and that it is not adequate to deserve encouragement to proceed further. As a result, the court did not abuse its discretion by denying the certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
NOTES
[1] The petitioner also claims that there are disputed issues of material fact related to the merits of his petition. Like the trial court, however, we need not address these claims because we find that his petition was time barred by the applicable statute of limitations.
[2] The petitioner's request sought: "Any reports or statements concerning viewing of surveillance tapes by Diane Jarvis, Danielle Gallagher, and Stacey Rechenberg for N.P.D. case # XX-XX-XXXX. Any and all reports concerning attempted robbery of Newington V.A. Credit Union before 4-4-01 and after 4-4-01. Any reports of viewing surveillance tapes from N.P.D. case # XX-XX-XXXX on 3-22-02 submitted to [assistant] [s]tate's [a]ttorney [Paul N.] Rotiroti."
[3] General Statutes § 52-582, titled "Petition for new trial," provides in relevant part: "No petition for a new trial in any civil or criminal proceeding shall be brought but within three years next after the rendition of the judgment or decree complained of...."
[4] The petitioner did file two timely petitions for a new trial, both of which were based on alternate grounds not raised in his current petition. Because the prior, timely petitions did not allege the same grounds as the present petition, they are irrelevant in determining whether the statute of limitations bars the present petition.
[5] To prove fraudulent concealment, the petitioner would have been required to show that the respondent (1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the cause of action, (2) intentionally concealed these facts from the petitioner and (3) concealed the facts for the purpose of obtaining delay on the petitioner's part in filing a complaint on their cause of action. Falls Church Group v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 105, 912 A.2d 1019 (2007). Moreover, the petitioner would have been required to prove that the respondent had concealed the cause of action by the more exacting standard of clear, precise and unequivocal evidence. Bartone v. Robert L. Day Co., 232 Conn. 527, 533, 656 A.2d 221 (1995).
[6] The state department of veterans' affairs is established pursuant to General Statutes § 27-102/.
[7] The petitioner advances an alternative argument, which we summarily reject. He claims that "the prosecuting attorney, Paul N. Rotiroti, knew of the cause of action and failed to bring this information to the appellant's attention before his criminal trial, during or after." Our review of the record, however, reveals that the petitioner failed to present any evidence that Rotiroti knew of the existence of the United States Department of Veterans Affairs police reports or failed to inform the petitioner of their existence. The petitioner's bare assertion that Rotiroti knew of the reports does not create a genuine issue of material fact. See Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).
[8] The petitioner appears to advance an agency theory of liability. We note, however, that the petitioner has cited no case law supporting his argument that the state, in its role in prosecuting criminal cases, is responsible for ensuring the timely production of documents from other state agencies. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858106/ | FLACK
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-555-CV
DIANNE FLACK,
APPELLANT
vs.
LAWRENCE T. FLACK,
APPELLEE
FROM THE DISTRICT COURT OF LLANO COUNTY, 33RD JUDICIAL DISTRICT
NO. 95-15, HONORABLE D. V. HAMMOND, JUDGE PRESIDING
Dianne Flack, appellant, sued Lawrence Flack, appellee, for divorce. The trial
court granted the divorce on the ground of insupportability and divided the community estate.
Mrs. Flack appeals, arguing that the trial court erred by refusing to enforce a buy-sell agreement
entered into by the Flacks, and three other shareholders of Flack Interiors, Inc. She also argues
that the trial court abused its discretion in dividing the community estate. We will affirm the
judgment of the trial court.
BACKGROUND
Dianne and Lawrence Flack were married in 1965. In the beginning of the
marriage, Mrs. Flack operated an interior design business, Dianne Flack Interiors, out of their
home, and Mr. Flack worked elsewhere as a salesman. Eventually, Mr. Flack quit his job and
began working full-time for Dianne Flack Interiors. The Flacks incorporated the business in 1975
as the sole shareholders. Mr. Flack became President and handled the advertising and sales for
the corporation, and Mrs. Flack became Vice-President and handled the design work. The
business at that time had an up-scale image and provided interior design services for expensive
homes. The Flacks purchased the "Wurzbach property" in San Antonio, which they leased to the
corporation.
In the 1980's, the business suffered financial difficulties. Fearing bankruptcy, the
Flacks hired D.M. Reid, a company that organizes special sales events, to sell its inventory and
raise cash. D.M. Reid relied on a high-volume, low-price strategy, and the business began to
recover financially. The Flacks then hired D.M. Reid's employees, Kim Gilbert and Jerry Horhn,
to become part of their management team along with a former Flack employee, Marian Chester.
While the company became more profitable, Mrs. Flack objected to the management team's
aggressive marketing approach and objected to many of the company's daily operations.
In 1991, Chester, Gilbert, and Horhn purchased a minority interest in the
corporation from the Flacks, and all parties signed a buy-sell agreement. Under that agreement,
when a shareholder offers to purchase another shareholder's stock in the corporation by tendering
a written offer, the offeree shareholder must either sell his ownership interest at the stated terms
or buy the offeror's interest under those same terms.
Mrs. Flack filed for divorce in 1991. On July 20th of that year, she made an offer
to Mr. Flack to purchase his interest in their 1200 shares of corporate stock, which she concedes
was community property. Mr. Flack did not respond to the offer. Mrs. Flack alleged in her third
amended original petition that she was entitled to specific performance of the buy-sell agreement,
and that under the agreement the 1200 shares would become her separate property.
The trial court refused to enforce the buy-sell agreement and awarded all 1200
shares of stock to Mr. Flack. The other primary assets awarded to him consisted of the Wurzbach
property, a home at Horseshoe Bay, and three notes receivable from shareholders Chester,
Gilbert, and Horhn. The primary award to Mrs. Flack consisted of Mr. Flack's promissory note
in the amount of $537,814. The trial court ordered Mr. Flack to apply one-half of the proceeds
from the sale of the home at Horseshoe Bay to reduce the principal of the note.
DISCUSSION
Buy-Sell Agreement
Dianne Flack's third, fourth, and fifth points of error address the buy-sell
agreement. She complains that the trial court erred as a matter of law by refusing to enforce this
agreement. She also contends that the trial court erroneously construed the agreement to create
only community property rights between Mr. and Mrs. Flack, and that she was divested of her
separate property right to initiate the buy-sell procedure. Both spouses agree that the stock itself
was acquired during the marriage and is therefore community property. See Tex. Fam. Code
Ann. § 5.01(b) (West 1993).
Mrs. Flack states in her brief that she has "never claimed that execution of the Buy-Sell Agreement partitioned the stock." Rather, she contends that the agreement creates a separate
property right "to force Husband to buy or sell his interest in the community shares of stock so
that, after the sale, the acquiring spouse would own the stock as separate property." However,
absent a gift by Mr. Flack of his interest in the stock, the parties must create a partition or
exchange in order to convert community property into separate property. Tex. Fam. Code Ann.
§ 5.52 (West 1993); Tex. Const. art. 16, § 15; Hilley v. Hilley, 342 S.W.2d 565, 568 (Tex.
1961). Because Mrs. Flack does not contend that Mr. Flack made a gift of his interest in the
stock to her, the buy-sell agreement must at least provide for a future partition or exchange in
order for either party to acquire the other's stock as separate property.
Spouses may exchange or partition community property into separate property by
a written agreement signed by both parties. Tex. Fam. Code Ann. § 5.54 (West 1993).
However, the language of the agreement cannot merely imply a partition or exchange. The
language must be specific. See McBride v. McBride, 797 S.W.2d 689, 692 (Tex.App.--Houston
[14th Dist.] 1990, writ denied) (forfeiture provision in marital property settlement agreement did
not constitute partition agreement because there was no reference to partition); Collins v. Collins,
752 S.W.2d 636, 637 (Tex. App.--Fort Worth 1988, writ refused) (joint income tax return signed
by both parties and listing assets as separate property did not constitute partition agreement absent
specific language indicating parties' intent to partition); Maples v. Nimitz, 615 S.W.2d 690, 695
(Tex. 1981) (partition was fictional without specific reference to "partition").
The buy-sell agreement makes no specific reference to a right to partition or
exchange the community property interest. Nor does the agreement make any reference to the
creation of a separate property right. Article V of the buy-sell agreement reads in part:
Notwithstanding the foregoing Buy-Sell provisions, in the event that any
Shareholder wishes to purchase the outstanding stock ownership interest of any
remaining Shareholder(s), the Shareholder desiring to make such purchase
(hereinafter termed the "Offeror") shall deliver notice in writing . . . to the
Shareholder whose interest he desires to purchase (hereinafter termed the
"Offeree") stating the price, terms and conditions of such proposed sale or transfer.
For a period of thirty (30) days after receipt of said notice by the Offeree,
the Offeree shall have an option to purchase the corporate stock ownership interest
of the Offeror at the same pro rata price and on the terms and conditions stated in
the original Offeror's notice.
Should the Offeree fail to purchase the corporate stock ownership interest
of the Offeror within said thirty-day period or should the Offeree fail to decline in
writing to purchase the offered corporate stock ownership interest within such
thirty-day period, the Offeree shall be determined to have offered for sale all of its
interest in the corporation to the Offeror at the same pro rata price, terms, and
conditions as is found in the original Offeror's notice . . .[.]
The language of this provision does not refer to altering the character of the community property
should either spouse choose to exercise the buy-sell right. No mention of "partition" or
"exchange" is made. Nowhere does the agreement provide that Mrs. Flack has the right to
exchange her community property funds for Mr. Flack's interest in community stock, taking the
stock as her separate property. Moreover, the Flacks did not execute this agreement solely
between themselves; they entered into this agreement with Chester, Horhn, and Gilbert,
suggesting that the purpose of the provision was to maintain the Flacks' control of a closely held
corporation, rather than to alter the character of the stock. We conclude that the buy-sell
agreement creates no separate property right and creates no right to force an exchange or partition
of the community property stock. Mrs. Flack's points of error three, four, and five are overruled.
In her first and second points of error, Mrs. Flack complains that the trial court
erred in admitting parol evidence to construe the buy-sell agreement because the agreement is
unambiguous and because Mr. Flack did not plead or offer evidence to show any ambiguity. Mr.
Flack had provided evidence that the parties did not intend for the buy-sell provision to apply to
transfers of stock between the Flacks. We do not reach these points of error because even if the
provision were to apply to the Flacks, the plain language of the buy-sell agreement does not
provide for a partition or exchange of their community property stock. Therefore, the stock
remained community property and the trial court correctly included the 1200 shares in the
community estate to be divided. Tex. Fam. Code Ann. § 3.63(a) (West 1993); see Cameron v.
Cameron, 641 S.W.2d 210, 214-15 (Tex. 1982) ("estate of the parties" refers to community
property).
Division of the Estate
In her sixth point of error, Mrs. Flack argues that the trial court abused its
discretion in dividing the community estate. She complains the division was manifestly unjust
because the trial court excluded her from the business, awarded all the income-producing property
to Mr. Flack, and overvalued the indebtedness on the Wurzbach property.
We cannot disturb a trial court's division of a marital estate absent a clear abuse
of discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). Because Dianne Flack did not
request findings of fact and conclusions of law in this case, (1) we must affirm the judgment of the
trial court on any legal theory that finds support in the evidence. Allen v. Allen, 717 S.W.2d 311,
313 (Tex. 1986); Roever v. Roever, 824 S.W.2d 674, 676 (Tex. App.--Dallas 1992, no writ).
The trial court may consider many factors in making its division, including the
nature of the property. Murff, 615 S.W.2d at 699. The trial court may also consider the debts
secured by liens on property awarded to each spouse, the liabilities, and the parties' abilities to
manage the encumbered property so that the property will not be foreclosed. Walker v. Walker,
527 S.W.2d 200, 203 (Tex. Civ. App.--Fort Worth 1975, no writ). In light of these
considerations, we cannot say that the trial court abused its discretion in dividing the community
estate.
In this case, the major assets comprised the family business: the 1200 shares of
stock and the Wurzbach property owned by the spouses and leased to the corporation. The
business had to prosper in order for either spouse to receive any value from these assets.
Therefore, the court was entitled to divide the assets in the manner most likely to ensure the
greatest chance of the business' survival.
The trial court could reasonably conclude from the evidence that Mrs. Flack should
be excluded from the business in order to ensure its survival. Dan Henry Hanke, the Flacks'
accountant, testified that the company was on "incredibly thin ice" in the mid-eighties before
D.M. Reid entered. He testified that D.M. Reid and the management team's switch from Mrs.
Flack's up-scale philosophy to a more aggressive marketing approach caused the business to start
making money again and to become profitable. He testified that Mrs. Flack objected to this
marketing technique and to the business accounting method, costing the business "hours upon
hours" of time in its operation of daily affairs. He also stated that Mrs. Flack had indicated that
she would fire the management team if given control of the company. Hanke believed that
without question the business would be less profitable if the management team's aggressive
marketing approach changed.
Gilbert, the general manager of the business, testified that Mr. Flack is able to
work with the management team, but that it is very difficult to work with Mrs. Flack. Gilbert
believed that Mrs. Flack had cost the company money by her objections to the company's
accounting methods and to proposed lease agreements. From the evidence, the trial court could
reasonably conclude that the 1200 shares of stock, representing the controlling interest of the
business, should be awarded to Mr. Flack.
In addition to the stock, the trial court awarded all the other potential income-producing property to Mr. Flack, while awarding Mrs. Flack a $537,814 promissory note secured
by the 1200 shares of the corporation. A trial court may award one spouse a money judgment to
balance out a disproportionate award of assets to the other spouse when the court gives due
consideration to the nature and type of property involved and the relative conditions,
circumstances, and capabilities of the parties. Finch v. Finch, 825 S.W.2d 218, 224 (Tex.
App.--Houston [1st Dist] 1992, no writ) (quoting Hanson v. Hanson, 672 S.W.2d 274, 278 (Tex.
App.--Houston [14th Dist.] 1984, writ dism'd w.o.j.)). In addition to the 1200 shares of stock,
the other potential income-producing assets awarded to Mr. Flack consisted of the Wurzbach
property and three notes receivable from the minority shareholders, Gilbert, Chester, and Horhn.
The trial court could reasonably conclude that these business-related assets should
be kept together in order to ensure the business' survival. Mr. Hanke testified that single
ownership of the Wurzbach premises and the business "makes a lot more sense," and agreed that
this would help keep the business going. He also testified that the stock purchase agreement
between the Flacks and the minority shareholders provided for a deferral of the minority
shareholders' note payments and this deferral kept cash in the business. Hanke believed that Mrs.
Flack would call these notes and foreclose on the stock, despite this provision. From the
circumstances, the trial court could reasonably conclude that this bundle of business-related assets
should be kept together and awarded to Mr. Flack. See Wallace v. Wallace, 623 S.W.2d 723,
728 (Tex. Civ. App.--Houston [1st Dist.] 1981, writ ref'd n.r.e) (trial court did not abuse its
discretion in awarding all stock and mineral interests to husband and a money judgment to wife
when, among other things, there was evidence to support court's finding that great conflict
between the parties made it difficult for them to continue the business together).
Moreover, Dianne Flack's money judgment is secured by the 1200 shares of stock.
Should Mr. Flack default on the note, she would acquire control of the corporation. In addition,
the trial court ordered Mr. Flack to pay for all debts on the real and personal property he received
and to indemnify and hold Mrs. Flack harmless from his failure to pay these debts.
Finally, the trial court did not abuse its discretion in its valuation of the Wurzbach
property indebtedness. The Wurzbach property secures two lien notes, one to Bexar Savings for
$134,000 and the other to Bonnet Resources for $1,535,000. The parties stipulated that the
unencumbered fair market value of the property was $1.2 million. Mrs. Flack argues that the trial
court improperly reduced the community estate by $469,000, the difference between the fair
market value of the property and its encumbrances, and that this valuation substantially reduced
the amount of the note awarded to her. She complains that the record conclusively shows that
much of this $469,000 will be forgiven in a restructuring arrangement and that, therefore, the
court's division is fundamentally unfair.
Because Mrs. Flack did not request findings of fact and conclusions of law, we do
not know what value the trial court assigned to the Wurzbach debt that Mr. Flack is ordered to
pay. We have reviewed the record, however, and it does not conclusively show that all or part
of $469,000 will be forgiven. While Mr. Hanke, the Flacks' accountant, testified that he believed
Bonnet Resources would probably accept some discount on the debt, he said that the amount of
the discount was "a total unknown at this point of time" and that there were "other problems" in
working out a restructuring arrangement. The trial court could reasonably conclude from the
evidence that the fact or amount of a possible discount was not discernable at the time of trial.
See In Re Marriage of Jackson, 506 S.W.2d 261, 266 (Tex. Civ. App.--Amarillo 1974, writ
dism'd w.o.j.) (trial court is entitled to consider the weight and credibility of the testimony and
other evidence as to valuations to be assigned to property).
We conclude that Mrs. Flack has not demonstrated that the trial court abused its
discretion in dividing the estate. It could reasonably have determined that Mr. Flack should be
awarded the bundle of business-related assets, while Mrs. Flack should receive a note secured by
the 1200 shares of stock. Moreover, the evidence was not conclusive with respect to forgiveness
of part of the debt on the Wurzbach property. In light of the evidence and the absence of findings
of facts and conclusions of law, we overrule Mrs. Flack's sixth point of error.
CONCLUSION
Accordingly, we affirm the trial court's judgment.
Jimmy Carroll, Chief Justice
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Affirmed
Filed: December 8, 1993
Do Not Publish
1. While the trial court notes in its divorce decree that all rights in the buy-sell
agreement are community property and that it made a just and right division of the
marital estate, these comments cannot constitute reviewable fact findings on appeal. A
trial court shall not recite findings of fact in a judgment, but must file them in a separate
document. Tex. R. Civ. P. 299a. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2460946/ | 255 P.3d 424 (2011)
2011 OK 47
STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant,
v.
Rhonda V. NOLAND, Respondent.
SCBD No. 5747.
Supreme Court of Oklahoma.
May 24, 2011.
ORDER APPROVING RESIGNATION FROM OKLAHOMA BAR ASSOCIATION PENDING DISCIPLINARY PROCEEDINGS
¶ 1 The State of Oklahoma, ex rel. Oklahoma Bar Association (complainant) has presented this Court with an application to approve the resignation of respondent, Rhonda V. Noland, from membership in the Oklahoma Bar Association. Respondent seeks to resign pending disciplinary proceedings and investigation into alleged misconduct as provided in Rule 8.1, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A. Upon consideration of the complainant's application and respondent's affidavit for resignation, we find:
1. Respondent executed her resignation on May 5, 2011;
2. Respondent's resignation was freely and voluntarily tendered, she was not subject to coercion or duress, and she was fully aware of the consequences of submitting her resignation;
3. Respondent was aware that the Office of the General Counsel of the Oklahoma Bar Association had received and was investigating grievance DC 10-94, alleging respondent misappropriated a large amount of funds from the trust account of a minor under respondent's guardianship. Respondent's affidavit of resignation stated she pled nolo contendere to one count of embezzlement in Cleveland County, Oklahoma, case no. CF-2010-1134, in connection with the misappropriation of the ward's funds;
4. Respondent is aware that the allegations concerning the conduct specified in paragraph three (3) above, if proven, would constitute violations of Rules 1.15, 8.4(b), and 8.4(c) of the Oklahoma Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A and Rule 1.3, Oklahoma Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A, and her oath as an attorney;
5. Respondent acknowledges that as a result of her conduct the Client Security Fund may receive claims from her former clients. She agrees that should the Oklahoma Bar Association approve and pay such Client Security Fund claims, she will reimburse the fund the principal amount and the applicable statutory interest prior to filing any application for reinstatement;
6. Respondent recognizes and agrees she may not make application for reinstatement to membership in the Oklahoma Bar Association prior to the expiration of five years from the effective date of this Court's approval of her resignation; she acknowledges she may be reinstated to practice law only upon compliance with the conditions and procedures prescribed by Rule 11 of the Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A;
7. Respondent has agreed to comply with Rule 9.1 of the Rules Governing Disciplinary Proceeding, 5 O.S.2001, Ch. 1, App. 1-A;
8. Respondent's resignation pending disciplinary proceedings of respondent is in compliance with Rule 8.1 of the Rules Governing *425 Disciplinary Proceedings, 5 Ohio St. 2001, Ch. 1, App. 1-A;
9. Respondent's name and address appears on the official roster maintained by the Oklahoma Bar Association as follows: Rhonda V. Noland, OBA # 13550, 2821 Edgemere Dr., Norman, Oklahoma 73071;
10. Costs in this matter have been waived by complainant;
11. Respondent's resignation should be approved; and
12. This Order accepting respondent's resignation is effective as of May 5, 2011, the date the application for approval of her resignation was filed in the Court.
¶ 2 It is therefore ORDERED that complainant's application is approved and respondent's resignation is accepted and approved effective May 5, 2011.
¶ 3 It is further ORDERED that respondent's name be stricken from the Roll of Attorneys and that she make no application for reinstatement to membership in the Oklahoma Bar Association prior to five years from May 5, 2011, the effective date of her resignation.
¶ 4 It is further ORDERED that respondent comply with Rule 9.1 of the Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.
¶ 5 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 23rd DAY OF MAY, 2011.
ALL JUSTICES CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/274012/ | 369 F.2d 829
AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, Appellant,v.Ethel Hill GERALD, Appellee.
No. 10542.
United States Court of Appeals Fourth Circuit.
Argued Oct. 6, 1966.Decided Nov. 22, 1966.
Clyde T. Rollins and Armistead W. Sapp, Jr., Greensboro, N.C. (Armistead W. Sapp. Greensboro, N.C., on the brief), for appellant.
Welsh Jordan, Greensboro, N.C. (Charles E. Nichols, Edward L. Murrelle and Jordan, Wright, Henson & Nichols, Greensboro, N.C., on the brief), for appellee.
Before BOREMAN, J. SPENCER BELL and WINTER, Circuit Judges.
WINTER, Circuit Judge:
1
Appellant seeks reversal of a judgment against it in the amount of $100,000.00, with interest, on a 'Special Hazards Accident Policy,' purchased by appellee's deceased husband's employer, wherein it insured him, under certain conditions, against accidental injury or accidental death. Three basic questions, presented by a variety of motions throughout the litigation, are presented for decision. First, did the policy cover decedent, when he died while attending an awards dinner held in a country club constructed on property owned by his employer; second, was the decedent's death an accidental death within the meaning of the policy; and third, if coverage is found by reason of affirmative answers to the first two questions, was appellee entitled to interest from the date of filing proof of decedent's death? Also asserted as reversible error are two evidentiary rulings made during the course of trial. We conclude that each of these questions should be answered in the affirmative, that there was no error in the evidentiary rulings and that, hence, the judgment of the district court should be affirmed.
2
The decedent, W. A. Gerald, was a senior vice president of Pilot Life Insurance Company. His duties included attendance at dinner meetings throughout the twenty-two state area in which Pilot Life operated, to make promotional talks and present awards to Pilot's agents and employees in recognition of their efforts on behalf of Pilot, and to induce them to greater efforts to further the business of Pilot. Prior to September 24, 1964, Pilot purchased a policy of life insurance on the life of Mr. Gerald, in which his wife, the appellee herein, was the named beneficiary. The policy was in effect on September 24, 1964. By the terms of the policy, designated a 'Specific Hazards Accident Policy,' appellant agrees to pay $100,000.00 in the event of the death of the named insured 'resulting directly and independently of all other causes from injury * * *.' 'Injury' was defined to mean 'bodily injury caused by accident occurring while this Policy is in force with respect to the Insured Person whose injury is the basis of claim and sustained under the circumstances and in the manner described in the attached Hazards Insert(s).' The 'Hazards Insert(s)' set forth in the margin,1 paraphrased in pertinent part, insured the decedent against accidental death 'while on the business of the Policyholder (Pilot)' and during the course of any bona fide trip made by the decedent, if the trip required the decedent to travel outside the corporate limits of the town or city 'in which he is regularly employed.' By the terms of the insert, such a trip would be deemed to have commenced when the decedent left his 'place of regular employment for the purpose of going on such trip.'
3
The decedent was employed at Pilot's home office, located on 132 acres of land between Greensboro and High Point, North Carolina, outside of the corporate limits of any town or city. Two main buildings have been erected on this tract. One, on the northern side, is a multistory office building, which includes offices, a cafeteria, conference rooms, and other facilities for the conduct of Pilot's insurance business. There are employee parking lots to the rear and sides of this complex of buildings. About three-tenths of a mile south of this building is the Pilot Country Club, formed by Pilot 'for the enjoyment and benefit of its home office staff, field office employees, agency representatives, and their families and friends.' The country club was separated from the office buildings by a wooded area, a lake, a dam, and two small streams. It had a separate telephone, with a different number and separate listing, and separate parking facilities. Another relatively undeveloped 115 acre tract, owned by Pilot, was separated from this 132 acre tract by a railroad.
4
On September 24, 1964, the decedent, in the performance of his usual duties for Pilot, left his office suite on the fourth floor of the office building at about 4:30 P.M., the usual hour of closing, to attend an awards dinner to be held at the country club for the agents from the Salisbury, north Carolina district of the division of which decedent was the vice president. His attendance was for the usual purpose of making a promotional speech and presenting awards to agents with ten years' service. From his office the decedent went to the office building parking lot, entered his car and drove it to the country club parking lot, using a roadway contained solely within land owned by Pilot. He parked his automobile in the country club parking lot, then entered the country club, where he spent about an hour in the basement room chatting with fellow-employees and some of the agents from the Salisbury district, their wives and guests. During this time, he was observed drinking one highball and a glass of tomato juice.
5
When dinner was served at 6:00 P.M. the decedent, and all others present, were served a shrimp cocktail, lettuce salad, and then steak with vegetables. While the decedent was consuming the steak, he was observed to place his napkin to his face, his head dropped to the table and a bluish, purple color appeared in his neck and lower part of his face. Those present tried to assist him; his tie was loosened; he was carried to a couch; an unsuccessful effort was made to remove a piece of steak from his throat; and he was given artificial respiration. A physician and an ambulance were summoned. The physician, who arrived shortly after the decedent was first observed to be in difficulty, examined him and pronounced him dead. A later examination of decedent's body led to the discovery of a piece of steak, about the size of a silver dollar and about an inch thick, lodged in his hypopharynx, immediately above the larynx, so as to cut off all ingress of air. Death was caused by suffocation.
6
After appellee filed a proof of loss, appellant disclaimed coverage under the policy. In the suit which ensued, appellant moved for summary judgment; and when this motion was denied, the case was tried to a jury. At the conclusion of appellee's evidence, appellant moved for a directed verdict, which was denied, and, at the conclusion of all of the evidence, both parties sought a directed verdict. The later motions were held sub curia and the case submitted to the jury on special issues. After deliberations occupying part of two days, the jury reported its inability to agree and a mistrial was declared. Each party then filed a motion for a judgment non obstante verdicto, or, in the alternative, for a new trial. Making specific findings of fact, the district judge concluded that the decedent's place of regular employment was the main office building on the 132 acre tract, that his presence at the country club was part of a bona fide business trip which commenced at the main office building, and that decedent's death resulted directly and independently of all other causes from bodily injury caused by accident. The district judge entered judgment for appellee in the amount of $100,000.00, and allowed her interest at 6% from October 28, 1964, the date on which proof of loss was filed with the appellant.
7
We think the district judge was correct in his factual and legal conclusions, and we affirm the judgment below. We do so by application of the rule that, notwithstanding that the burden of proof is upon a plaintiff, a plaintiff is entitled to a directed verdict when the facts are so convincing that reasonable men could not differ as to their significance, particularly when there is no conflict in the evidence. Norfolk Southern Ry. Co. v. Davis Frozen Foods, 195 F.2d 662 (4 Cir. 1952); Davis Frozen Foods v. Norfolk Southern Ry. Co., 204 F.2d 839 (4 Cir. 1953), cert. den. 346 U.S. 824, 74 S.Ct. 41, 98 L.Ed. 349 (1953). See also, Wachovia Bank & Trust Co. v. United States, 288 F.2d 750 (4 Cir. 1961); Young v. Clinchfield Railroad Co., 288 F.2d 499 (4 Cir. 1961).
8
* The question of whether the coverage of the policy extended to the decedent when he died while attending an awards dinner held in a country club constructed on property owned by his employer depends upon whether all of the conditions of coverage were met. From the face of the policy, it would apply only during the course of any bona fide business trip made by the decedent, provided the trip required the decedent to travel outside the corporate limits of the town or city in which he is regularly employed. There is no doubt that the decedent went to the country club for a business purpose-- to present service awards to agents of Pilot who had achieved significant milestones in their period of service and to make a promotional and inspirational speech to all present. For an insurance company whose method of making money is to sell insurance, awards, promotional and inspirational addresses to agents who do the selling are a necessary business activity.
9
Whether the decedent was on a business trip away from his 'place of regular employment' is a nerrower question. The contract of insurance between Pilot and appellant was embodied in a printed form supplied by appellant. Appellant concedes that the form is in part inoperative because Pilot's entire 132 acre tract on which its home offices and the country club are constructed is outside the corporate limits of any town or city; hence, the provision of the policy that the 'bona fide' trip must have required the decedent to travel outside the corporate limits of the town or city in which he was regularly employed is meaningless. The language following, however, that 'such trip shall be deemed to have commenced when the Insured Person leaves his * * * place of regular employment * * *' is the language which presents the essence of the first question. Because the language requiring travel outside the corporate limits of the town or city in which decedent was regularly employed is meaningless, the later phrase terming the trip to have commenced when the decedent would leave his 'place of regular employment' must be the only qualification to the requirement that the accidental death occur in the course of any bona fide business trip. Thus, we must decide whether decedent's death occurred away from his 'place of regular employment.'
10
On this narrow issue, appellant contends that Gerald's 'place of regular employment' was the entire 132 acre tract; appellee argues that it was only the office building where the decedent maintained his suite of offices and adjacent parking lot. That the extent of the journey-- three-tenths of a mile-- from the office building to the country club is not significant is inherent in appellant's concessum in argument that the policy would apply had the decedent met an accidental death at an inn, sometimes used for awards dinners, across the road from the 132 acre tract and closer to the office building than the country club. Appellant's contention is, therefore, grounded solely on the fact that the country club was on the same tract as the office building and that it was, and could have been, used by the decedent for Pilot's business.
11
At the trial the evidence showed that the decedent was a member of the country club and was one of eight officers of Pilot designated as those who had the authority to reserve the club for social business. While the function of the club was primarily recreational, its by-laws provided that Pilot's official business took precedence over all other uses to which the country club could be put. Alcoholic beverages were not sold at the club, but there were in the clubhouse lockers for the storage of whiskey and other alcoholic beverages. There was a locker assigned to the division of Pilot of which the decedent was the senior vice president, and decedent had access to that locker. On the evening of his death, the guests attending the dinner consumed part of a bottle to bourbon whiskey which had been paid for by Pilot and which had been stored and removed from the division beverage locker.
12
While the case was submitted to the jury on the theory that 'place of regular employment' was an ambiguous phrase, we do not perceive that this was so. 'The common or normal meaning of language will be given to the words of a contract unless circumstances show that in a particular case a special meaning should be attached to it,' 3 Williston, Contracts (1961 Ed.) 618; 1 Restatement of the Law of Contracts (1932 Ed.) 235(a). It is only where, after application of this rule and the correlative rules set forth in the Restatement, supra,2 the meaning to be given to a contract is still uncertain that resort may be had to secondary rules of interpretation to ascertain what the contract legally means. 1 Restatement, supra, 236; 3 Williston, supra, 619.
13
Short of the production of proof, the question of where was decedent's 'place of regular employment' presented a factual question. Application of the primary rules of interpretation, however, raised no question of what the phrase 'place of regular employment' meant generically, or in what sense the parties used it, because there is nothing in this record to show that 'place of regular employment' meant or was intended to mean anything other than its common or normal meaning.3 We conclude that decedent's 'place of regular employment' presented only a factual question, and no problem of interpretation of what was sought to be expressed by the parties. We conclude, further, that under the evidence the only possible resolution of this question was that the decedent's 'place of regular employment' was the building in which he had his office and the parking lots surrounding that building.
14
Appellant relies on decisions of the Supreme Court of North Carolina arising under the North Carolina Workmen's Compensation Act, in support of the proposition that the decedent's 'place of regular employment' included the entire 132 acres. Maurer v. Salem Co., 266 N.C. 381, 146 S.E.2d 432 (1966); Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570 (1962); Davis v. Devil Dog Manufacturing Co., 249 N.C. 543, 107 S.E.2d 102 (1959); and Bryan v. T. A. Loving Co., 222 N.C. 724, 24 S.E.2d 751 (1943), are cited. These cases all deal with whether there was injury at a time that an employee was on premises of his employer and whether, under such circumstances, his injuries could have been said to arise out of, and in the course of, his employment. These cases all seek to determine, in the light of a broad, remedial statute which is to be liberally construed to afford coverage, whether an employee was about his master's business at a time that he was injured. They do not establish immutable geographical limits of what are places of regular employment; place of injury is only one factor to be considered in determining whether the Act applies. At most, the cases support the correctness of the conclusion that decedent was on Pilot's business when he attended the awards dinner at the country club, but they are no authority for a negative answer to the question of whether the decedent had left his 'place of regular employment' when he went to the country club.
II
15
The district judge correctly determined that decedent's death was an accidental death within the meaning of the policy. The district judge found:
16
'The evidence here establishes conclusively that a piece of steak lodged in the insured's throat, completely blocking his windpipe and caused his death. There is not the slightest evidence that the insured did it voluntarily or under circumstances from which he could anticipate death or bodily harm. This object caused the death of the insured as effectively as would death resulting from the heart being penetrated by a bullet. It was an unexpected and accidental death caused directly and solely by the object shutting off his windpipe.'
17
The law of North Carolina, which governs us here, draws a distinction between a policy of insurance which insures against death by 'accident,' and one which insures against death by 'accidental means.' Metropolitan Life Insurance Co. v. Henkel, 234 F.2d 69 (4 Cir. 1956); Henderson v. Hartford Accident and Indemnity Co., 268 N.C. 129, 150 S.E.2d 17 (1966); Chesson v. Pilot Life Insurance Co., 268 N.C. 98, 150 S.E.2d 40 (1966); and cases cited therein.
18
In the Henderson case, supra, one of the latest expressions of the Supreme Court of North Carolina, it is said:
19
'* * * our courts have drawn a distinction between 'accident' and 'accidental means,' on the theory that although the results of an intentional act may be an accident, the act itself, that is, the cause, where intended, is not an 'accidental means,' that where an unusual or unexpected result occurs by reason of the doing by the insured of an intentional act, with no mischance, slip or mishap occurring in doing the act itself, the ensuing death or injury is not caused by 'accidental means." Id., 268 N.C. p. 132, 150 S.E.2d p. 19.
20
The policy in the case at bar insures against death or injury caused by 'accident.' We understand the law of North Carolina to be that because of this wording the policy covers if the decedent's death was an unusual or unexpected result of means knowingly and intentionally employed by him, although this would clearly not be the case if the policy excluded death 'by accidental means.' Death by suffocation resulting from the swallowing of food was certainly an 'accident'; hence, the policy affords coverage.
21
The policies considered in the Henderson and Chesson cases, supra, as well as the companion decision of Bentley v. Western and Southern Life Insurance Co., 268 N.C. 155, 150 S.E.2d 45 (1966), all of which are pressed on us by appellant, were all policies insuring against death or injury from accidental means, and the holdings therein not authority for concluding that the policy in the case did not afford coverage.
22
Notwithstanding that the policy contained no exclusion for excessive use of alcoholic beverages, appellant contends that the decedent's death occurred as a result of intoxication and, hence, did not result 'directly and independently of all other causes from injury.' In this regard the district judge found, and concluded:
23
'There is not the slightest evidence that alcohol as such was an effective, immediate and direct cause of his death. The blocking of his windpipe, being the sole cause of death, would have killed him whether sober or drunk. If, as defendant contends, the alcohol might have played some part in his swallowing the meat, it amounts to nothing more than what happened in Pilot Life Insurance Co. v. Ayers, supra (163 F.2d 860 (4 Cir. 1947)), and Metropolitan Life Insurance Co. v. Henkel, supra (234 F.2d 69 (4 Cir. 1956)). The mere remote or indirect cause falls short of an immediate proximate cause. Hence, on this phase of the case plaintiff is entitled to a directed verdict.'
24
Our consideration of the record leads us to rest content on what was said by the district judge. The sobriety of the decedent was vouched for by all who saw him on the night in question. He was observed to consume at most only one highball, followed by tomato juice, which was seasoned by Worcestershire sauce. True, a blood sample taken after death indicated a high alcohol content, but this test was admittedly erroneous because some of the chemicals used to conduct it had become contaminated, and the margin of error was unknown.
25
We conclude, therefore, that decedent's death was an accidental death within the meaning of the policy.
III
26
A week after decedent's death, Pilot reported that fact, in a letter dated October 1, 1964, to appellant and requested it to supply the proper forms on which proof of claim could be made. The letter was not acknowledged until twenty days later, and the forms not furnished until they were transmitted in a letter dated October 26, 1964. The following day, appellant dispatched another letter requesting full disclosure of the events preceding and leading up to the decedent's death and, in particular, why he was present at the country club, what function he was performing, and in what capacity he was serving when he died. The forms and responses to all of these inquiries were mailed to appellant October 28. Appellant rejected the claim on November 23. Neither in its letter of rejection nor at any time thereafter did it seek any additional information about the circumstances of the decedent's death.
27
In the light of these facts, the interest allowance was correctly made. General Metals, Inc. v. Truitt Mfg. Co., 259 N.C. 709, 131 S.E.2d 360 (1963); Harris and Harris Const. Co. v. Crain and Denbo, Inc., 256 N.C. 110, 123 S.E.2d 590 (1962); Miller v. Barnwell Bros., 137 F.2d 257 (4 Cir. 1943).
IV
28
We find appellant's two complaints of rulings on the evidence lacking in merit.
29
Appellee showed, through the testimony of the president of Pilot and a second vice-president of Pilot, who was decedent's assistant, the duties which the decedent performed for Pilot, and the place where they were performed. Appellant objected to this testimony, on the ground that the 'best evidence' rule required such matters to be proved by Pilot's corporate minutes, its charter and by-laws, and the minutes of Pilot's executive committee. The district judge ruled that while documentary proof of the decedent's authority was pertinent, it was not the only method of proving the decedent's 'regular place of emplayment,' and overrruled the objections. What appellee proved was not a document, the production of the original of which was required (McCormick, Evidence (1954 Ed.) 195), but how and where decedent performed his duties. We are constrained to add that it would be unusual if, in fact, the charter, bylaws and minutes of Pilot would prove the decedent's duties and the manner and place of performing them in the degree of detail necessary for a determination of his place of regular employment.
30
Appellee sought to impeach the testimony of the second vice-president in regard to some of the decedent's duties on the basis of certain statements contained in a settlement agreement by and between appellee, the decedent's minor daughter, and Pilot and Globe Indemnity Company, Pilot's workmen's compensation insurance carrier. The settlement agreement was entered into in final disposition of a claim made under the North Carolina Workmen's Compensation Act, and recited that, notwithstanding the decedent's attendance at a dinner for the purpose of presenting awards to employees, Pilot contended that the decedent was not required to perform this function, because someone else could have performed it and, in any event, while he was eating dinner he was performing a personal function unrelated to his job. The settlement agreement was executed on behalf of Pilot by an attorney and not by the witness who was sought to be impeached.
31
The settlement agreement was not a proper basis for impeachment. The portion sought to be used by appellant was a statement of legal conclusions and not of facts and, moreover, was not a statement made by the witness sought to be impeached. We are aware, also, that usually workmen's compensation litigation is in the control of the workmen's compensation carrier. Manifestly, the district judge was correct in sustaining an objection to cross examination based on the agreement.
32
Affirmed.
1
'24-HOUR ACCIDENT PROTECTION WHILE ON A TRIP OUTSIDE CITY LIMITS-- BUSINESS ONLY
Description of Hazards
The hazards against which insurance is provided under this Policy are injury sustained by the Insured Person 'while on the business of the Policyholder' and during the course of any bona fide trip made by the Insured Person, provided such trip requires the Insured Person to travel outside the corporate limits of the town or city in which he is regularly employed or has his residence (excluding everyday travel to and from work and bona fide vacations).
Such trip shall be deemed to have commenced when the Insured Person leaves his residence, or place of regular employment for the purpose of going on such trip, whichever last occurs, and shall continue until such time as he returns to his residence or place of regular employment, whichever first occurs.
Definitions
The term 'while on the business of the policyholder' as used in this Policy means during any trip authorized by or at the direction of the Policyholder for the purpose of furthering the business of the Policyholder.'
2
'235. RULES AIDING APPLICATION OF STANDARDS OF INTERPRETATION
The following rules aid the application of the standards stated in 230, 233.
(a) The ordinary meaning of language throughout the country is given to words unless circumstances show that a different meaning is applicable.
(b) Technical terms and words of art are given their technical meaning, unless the context or a usage which is applicable indicates a different meaning.
(c) A writing is interpreted as a whole and all writings forming part of the same transaction are interpreted together.
(d) All circumstances accompanying the transaction may be taken into consideration, subject in case of integrations to the qualifications stated in 230.
(e) If the conduct of the parties subsequent to a manifestation of intention indicates that all the parties placed a particular interpretation upon it, that meaning is adopted if a reasonable person could attach to it the manifestation.'
3
Evidence was adduced to show Pilot's policy of paying a mileage allowance to its employees who were required to travel. The allowance began when an employee's automobile left one of the parking lots surrounding the office building. There was no evidence that appellant knew of or acquiesced in this practice. The only other evidence was proof that the policy was on a printed form prepared and furnished by appellant. This might be said to provide the factual basis for application of the familiar rule that in case of ambiguity a contract is to be interpreted most strongly against the party who wrote it. 3 Williston, supra, 621 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/398870/ | 668 F.2d 1153
Frank T. LABASH, individually, George F. Labash, as guardianand next friend of Frank T. Labash, and George F.Labash and Mieko Labash, individually,Plaintiffs-Appellants,v.The UNITED STATES DEPARTMENT OF the ARMY, the United StatesDepartment of Defense, and the United States ofAmerica, Defendants-Appellees.
No. 80-1799.
United States Court of Appeals,Tenth Circuit.
Submitted Oct. 16, 1981.Decided Jan. 13, 1982.
James B. Blevins, Oklahoma City, Okl., for plaintiffs-appellants.
Larry D. Patton, U. S. Atty., W. D. Okl., John E. Green, First Asst. U. S. Atty., Oklahoma City, Okl., Major J. Thomas Holloman, JAGC, Dept. of the Army, Washington, D. C., of counsel, for defendants-appellees.
Before DOYLE, BREITENSTEIN and McKAY, Circuit Judges.
McKAY, Circuit Judge.
1
While serving in the United States Army, Frank LaBash was admitted to the United States Army Hospital, Landstuhl, Germany, for diagnosis of a medical problem. In the course of treatment, hospital employees administered to him a medication not intended for human use. Shortly thereafter Mr. LaBash lapsed into a coma from which he never emerged; he died some months later at a stateside Veterans' Hospital. It is clear from a review of the record that Mr. LaBash's injury and subsequent death resulted from medical malpractice by military medical personnel. The only relief he received for his injuries was in the form of free medical care and limited compensation, as provided by the Veterans' Benefits Act, under Title 38 of the United States Code. His claim pursuant to the Military Claims Act, 10 U.S.C. §§ 2731-2737, was denied by the Secretary of the Army.
2
Mr. LaBash and his parents initiated this action seeking to recover damages, under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, and the Military Claims Act, 10 U.S.C. §§ 2731-2737, for the government's negligence in treating Mr. LaBash.1 On the government's motion, the trial court dismissed the entire action for want of subject matter jurisdiction. We now are asked to review the propriety of that dismissal.
3
It is well settled that the United States may not be sued without its consent. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). The Federal Tort Claims Act waives United States' sovereign immunity in actions arising out of tortious conduct by governmental employees. However, the scope of the government's waiver is limited by exceptions contained in the Act itself and by judicial interpretation and application of the Act.
4
Prior decisions of this court and of the United States Supreme Court clearly establish that the Federal Tort Claims Act does not provide a basis for jurisdiction over the instant action. The doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), holds that a serviceman injured as a result of activity incident to his service may not sue the United States for compensation under the Federal Tort Claims Act. The Feres doctrine is based in part on the perceived deleterious effects of service-related suits on military discipline and the express provision by Congress of another remedy through the Veterans' Benefits Act, which provides compensation for medical care and a limited income allowance to those injured while in the military, regardless of whether the government is at fault. This court consistently has followed the Feres doctrine. See, e.g., Carter v. City of Cheyenne, 649 F.2d 827 (10th Cir. 1981); Harten v. Coons, 502 F.2d 1363 (10th Cir. 1974), cert. denied, 420 U.S. 963, 95 S.Ct. 1354, 43 L.Ed.2d 441 (1976); Barr v. Brezina Construction Co., 464 F.2d 1141 (10th Cir. 1972).2 There is no question that Mr. LaBash's injury occurred incident to his military service and, accordingly, that his claim against the United States based on negligence is governed by the Feres doctrine. The holding of this court in Harten v. Coons, 502 F.2d 1363 (10th Cir. 1974), which involved a claim of medical malpractice by military medical personnel on facts identical in all pertinent respects to those of the instant case, is dispositive of any claim to the contrary.3 In Harten the court stated that
5
(w)hether a serviceman's injury arises out of activity 'incident to service' depends on whether it stems from an official military relationship between the negligent person and the serviceman. In other words, it depends on the claimant's 'status' at the time of the injury. (citation omitted)
6
Thus, if a claimant is on leave, or on inactive status at the time of the injury, or if the injury is not the product of a military relationship, suit under the Act may be allowed.
7
On the other hand, when a serviceman on active duty sustains an injury stemming from the military relationship, courts consistently have denied recovery under the Act. (notes omitted)
8
502 F.2d at 1365. At the time of injury, Mr. LaBash was on active duty and a military relationship existed between him and the military medical personnel responsible for his injury. Accordingly, the injury was suffered in activity "incident to his service," and his claim under the Federal Tort Claims Act is barred by the Feres doctrine.4
9
The Secretary of the Army denied Mr. LaBash's claim for relief under the Military Claims Act, 10 U.S.C. §§ 2731-2737. The trial court concluded that the Military Claims Act affords no relief for a claim of this kind. Although we agree with the trial court's conclusion, we have determined that 10 U.S.C. § 2735, in the absence of a cognizable constitutional claim, expressly precludes review of the Secretary's decision to deny the claim by the district or appellate court. As pertinent here, § 2735 provides that "(n)otwithstanding any other provision of law, the settlement of a claim under (the Military Claims Act) is final and conclusive." Section 2731 defines "settle" to mean "consider, ascertain, adjust, determine, and dispose of a claim, whether by full or partial allowance or by disallowance." It is clear then that the Secretary's denial of this claim was a "settlement," as defined by the statute, and that the statute contemplates no further review of the Secretary's decision.
10
The Administrative Procedure Act (APA), 5 U.S.C. §§ 551-59, 701-06, does not provide a basis for reviewing the Secretary's decision. The Supreme Court in Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 985, 51 L.Ed.2d 192 (1977), held that § 702, which states that a person wronged by agency action is entitled to judicial review, does not afford an implied grant of subject matter jurisdiction permitting federal judicial review of agency action. Moreover, § 701(a)(1) expressly provides that the right of judicial review set forth in § 702 is not applicable to the extent that another statute precludes judicial review. Section 2735 precludes judicial review of claims denied under the Military Claims Act, and therefore, notwithstanding its review provisions, the APA does not provide a basis for federal court jurisdiction to review the Secretary of the Army's final denial of Mr. LaBash's claim.5
11
There also is no basis for federal question subject matter jurisdiction under 28 U.S.C. § 1331. The Court in Califano v. Sanders noted that jurisdiction conferred on federal courts to review agency action by § 1331 is subject to any "preclusion of review statutes created or retained by Congress." 430 U.S. at 105, 97 S.Ct. at 984. As we have noted, § 2735 is just such a statute.
12
Finally, we find no merit in plaintiffs' contention that the Due Process Clause of the Fifth Amendment to the United States Constitution requires review of the Secretary's decision to deny Mr. LaBash's claim. Plaintiffs do not specify in what way Mr. LaBash's constitutional rights have been violated, but rather suggest that lack of access to federal district court for review of the Secretary's decision is per se a violation of due process. We do not agree. Congress has chosen to limit the extent of the United States' waiver of sovereign immunity by restricting a serviceman to the specific remedies specified in the Veterans' Benefit Act. See Henninger v. United States, 473 F.2d 814 (9th Cir.), cert. denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51 (1973); Thomason v. Sanchez, 398 F.Supp. 500 (D.N.J.1975), aff'd, 539 F.2d 955 (3d Cir. 1976), cert. denied, 429 U.S. 1072, 97 S.Ct. 809, 50 L.Ed.2d 790 (1977); Towry v. United States, 459 F.Supp. 101 (E.D.La.1978), aff'd, 620 F.2d 568 (5th Cir. 1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981). Inasmuch as the Secretary followed the prescribed statutory procedure, plaintiffs' constitutional claim must fail. Plaintiffs have not complained that the Secretary failed to comply with statutory process, and indeed, his compliance is clear from the record.
13
In conclusion, we hold that the United States has not waived its sovereign immunity to suit on plaintiffs' claim under the Federal Tort Claims Act. Although many courts have expressed reservations about the continuing validity of the broad Feres doctrine, only the United States Supreme Court can overrule or modify Feres. See, e.g., Hunt v. United States, 636 F.2d 580, 589 (D.C.Cir.1980) ("(T)he Feres doctrine clearly lives, although its theoretical bases remain subject to serious doubt."); Thomason v. Sanchez, 539 F.2d 955, 960 (3rd Cir. 1976); Veillette v. United States, 615 F.2d 505, 506 (9th Cir. 1980) ("reluctantly" affirming dismissal under the Feres doctrine). Therefore, once again we are constrained to follow the Feres doctrine, notwithstanding its harsh result.6
14
We also hold that neither the trial court nor this court has jurisdiction to review the Secretary's settlement of a claim under the Military Claims Act, absent a sufficiently pleaded allegation that a cognizable constitutional right has been violated.7
15
Accordingly, plaintiffs are confined to the remedy provided by Congress in the Veterans' Benefits Act.
16
AFFIRMED.
1
Frank LaBash, twenty years old and an only child, died during the pendency of this suit. His father, George LaBash, is serving as guardian and next friend for his son. In addition, Mr. LaBash's parents are seeking damages on their own behalf
2
One of the cases comprising the Feres trilogy arose in this circuit and involved medical malpractice by military medical personnel. Griggs v. United States, 178 F.2d 1 (10th Cir. 1949), rev'd sub nom. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950)
3
Moreover, two of the cases comprising the Feres trilogy involved medical malpractice by military medical personnel: Griggs v. United States, 178 F.2d 1 (10th Cir. 1949), and Jefferson v. United States, 178 F.2d 518 (4th Cir. 1949)
4
See Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), and United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), in which the Court found that an injury did not occur incident to service. In Brooks, two servicemen were on leave when struck by an Army truck on a public highway. In Brown, a discharged veteran received negligent treatment after his discharge for an injury received while on active duty
In the instant case, the trial court relied chiefly on 28 U.S.C. § 2680(k) in holding that there was no jurisdiction under the Federal Tort Claims Act (FTCA). This subsection excludes FTCA recovery for "any claim arising in a foreign country." Plaintiffs dispute the trial court's finding that the claim arose in a foreign country. Since we find a clear absence of jurisdiction under the FTCA, in accordance with the Feres doctrine, resolution of this dispute is not material to disposition of the claim.
5
We are aware that at least one court has held that § 2735 does not preclude judicial review of agency construction and application of law, but only makes the Secretary's settlement of a Military Claims Act claim final with respect to administrative review. Welch v. United States, 446 F.Supp. 75 (D.Conn.1978). The United States Supreme Court, in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), indicated that, while there is a presumption that final agency action is subject to judicial review, courts should restrict access to judicial review as intended by Congress, when this legislative intent is shown by "clear and convincing evidence." 387 U.S. at 140-41, 87 S.Ct. at 1510-11. In our view, § 2735 provides "clear and convincing evidence" of Congress' intent. Accord, Towry v. United States, 459 F.Supp. 101 (E.D.La.1978), aff'd, 620 F.2d 568 (5th Cir. 1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981)
6
In recent cases, the Third Circuit, en banc, in an action involving injury to a serviceman incident to his service, rejected a constitutional intentional tort cause of action, based on the policy concerns underlying the Feres doctrine, viz., the effect of such suits on military discipline and Congress' express provision of another remedy. Jaffee v. United States, 663 F.2d 1226 (3d Cir. 1981); the Ninth Circuit in Monaco v. United States, 661 F.2d 129 (9th Cir. 1981), held that the Feres doctrine precluded a claim based on post-service occurrence of an injury (cancer) caused by an in-service act (exposure to radiation), but, in Broudy v. United States, 661 F.2d 125 (9th Cir. 1981), held that a claim that the government, in an independent, post-service, negligent act, failed to warn the serviceman of possible injury (cancer) or to monitor for possible injury arising from an in-service act (exposure to radiation), was not precluded by the Feres doctrine. The court based its holding on the United States Supreme Court's 1954 decision in United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), that a claim arising from a post-service act of negligence was not barred under Feres
7
Even were we to find jurisdiction to review plaintiffs' claim based on the Military Claims Act, we would hold it not cognizable under the express provisions of the Act. Section 2733(b)(3) of the Military Claims Act provides:
(b) a claim may be allowed under subsection (a) only if-
(3) it is not for personal injury or death of such a member (of the Army, Navy, Air Force, Marine Corps or Coast Guard) or civilian officer or employee whose injury or death is incident to his service. (Emphasis added).
Although there is little case law construing the incident to service exclusion of the MCA, the Supreme Court in Feres discussed the Military Claims Act, in dictum, and implied that the standard for determining what constituted activity incident to service was the same under the Military Claims Act as under the Federal Tort Claims Act. 340 U.S. at 144, 71 S.Ct. at 158. (The "incident to service" exclusion in the current MCA is the same as that in the then-extant Military Personnel Claims Act, 31 U.S.C. § 223b.) On the strength of the Feres dictum, at least one federal court has expressly so held, Welch v. United States, 446 F.Supp. 75 (D.Conn.1978), and we would agree. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/530557/ | 887 F.2d 492
UNITED STATES of America, Plaintiff-Appellee,v.Grover C. JONES, Jr., Defendant-Appellant.
No. 87-5126.
United States Court of Appeals,Fourth Circuit.
Argued July 28, 1989.Decided Oct. 17, 1989.Rehearing and Rehearing In Banc Denied Nov. 15, 1989.
Dennis William Dohnal (Bremner, Baber & Janus, Richmond, Va., on brief) for defendant-appellant.
John P. Rowley, III, Asst. U.S. Atty., Fairfax, Va. (Michael W. Carey, U.S. Atty., Nancy C. Hill, Asst. U.S. Atty., Charleston, W.Va., on brief), for plaintiff-appellee.
Before RUSSELL, WIDENER, and HALL, Circuit Judges.
HALL, Circuit Judge:
1
Grover C. Jones, Jr. appeals from his conviction on five counts of mail fraud in violation of 18 U.S.C. Secs. 1341, 2. He challenges his conviction on several grounds. After a thorough review of the record, we find those grounds without merit and affirm.
I.
2
Jones was arrested on charges of mail fraud on October 17, 1984. The same day he was committed by a magistrate to the Federal Correctional Institution in Butner, North Carolina for an evaluation to determine his mental competency. On November 20, 1984, he was indicted with three other individuals on five counts of mail fraud. A superseding indictment was returned on December 14, 1984 on the same charges against the same individuals, including Jones. Jones remained at Butner until December 21, 1984, when he was released on bond.
3
He subsequently moved to dismiss the indictment. The district court granted the motion to dismiss finding that Jones' rights under the Speedy Trial Act, 18 U.S.C. Secs. 3161 et seq., had been violated. The court found that only thirty of the sixty-six days Jones spent at Butner for psychiatric evaluation were excludable under section 3161(h)(1)(A) of the Act.1 Consequently, the original trial date of February 20, 1985 exceeded the seventy day limit of the Act by twenty-six days. Although the district court granted the motion to dismiss, its dismissal of the indictment was without prejudice.
4
The government appealed from the court's dismissal order, but on June 25, 1985, a grand jury returned a new indictment against Jones, charging the same offenses as those charged in the two previous indictments and the government withdrew its appeal.2 Jones moved to dismiss the 1985 indictment on various grounds including error in dismissing the previous indictment without prejudice. The district court denied the motion and the case proceeded to trial.
5
The charges which led to Jones' indictment stemmed from a fire that occurred in Matoaka, West Virginia on October 29, 1981. The government presented evidence at trial that Jones, Richard Lewis, John Whitlow, and his son, Joseph Whitlow, devised a scheme to defraud Aetna Casualty and Surety Company, the insurer of a building owned by Lewis, by burning the building and submitting a false claim to the insurance company for the resulting damage. The scheme began in the fall of 1981 when Jones approached Lewis, who was having business and financial problems, and suggested burning the building to collect the insurance proceeds. Lewis agreed and agreed to pay Jones $10,000 from the insurance funds. Jones arranged for the Whitlows to burn the building. He paid them $1,500 to commit the arson. The Whitlows were arrested as they were leaving the burning building and were tried on arson charges in West Virginia state court. Lewis filed a claim with the insurance company for damage to the building due to the fire. The company retained counsel to investigate the fire and the claim was eventually denied. The facts surrounding the charges against Jones came to light when the Whitlows agreed to cooperate with authorities during the course of the state prosecution. The correspondence between Lewis and the insurance company formed the basis for the mail fraud charges.3
6
A jury convicted Jones on all five counts of mail fraud. He was sentenced to consecutive terms of five years imprisonment on each of the first three counts and concurrent suspended terms of five years on counts four and five. He was also fined $5,000 and placed on five years probation. Jones appeals.
II.
7
The appellant's principal contention on appeal is that the district court failed to comply with the Speedy Trial Act when it dismissed the December 1984 indictment without prejudice. The Act provides that in determining whether to dismiss a case with or without prejudice
8
the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.
9
18 U.S.C. Sec. 3162(a)(2). The district court in this case addressed the "facts and circumstances" leading to the dismissal in its original order but did not address the "seriousness of the offense" or the "impact of a reprosecution." In a subsequent order, however, entered after the appellant moved to dismiss the 1985 indictment on the ground that the court failed to address all three statutory factors in its dismissal order, the same court stated that it "did mentally consider" all the factors outlined in 18 U.S.C. Sec. 3162(a)(2) during the process of dismissing the indictment. The court found that appellant was not prejudiced by the omission of a written analysis of the two factors that were not committed to writing.
10
The decision to dismiss for noncompliance with the Speedy Trial Act with or without prejudice is within the discretion of the trial court. United States v. Taylor, 487 U.S. 326, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988). United States v. Brainer, 691 F.2d 691 (4th Cir.1982). That discretion, however, is not unlimited, the Act mandating dismissal of an indictment upon "violation of precise time limits, and specifying criteria to consider in deciding whether to bar reprosecution." 108 S.Ct. at 2423. In Taylor the Supreme Court ruled that a district court's dismissal with prejudice under section 3162(a)(2) was an abuse of discretion where the court failed to set out relevant factual findings and to clearly articulate its application of the statutory factors to the facts of the case. Jones does not argue that the district court abused its discretion in dismissing his indictment without prejudice, but argues that Taylor automatically entitles him to a remand for the court to address the two statutory factors it previously failed to address. We do not read Taylor quite so broadly.
11
In Taylor the Court found it significant that Congress had included clear and specific factors for a district court to consider in deciding whether to bar reprosecution, i.e., whether to dismiss an indictment with or without prejudice. The Court found that because the factors were listed in the statute, the statute required that those factors be applied to each case.
12
In the Speedy Trial Act ... Congress specifically and clearly instructed that courts "shall consider, among others, each of the following factors," Sec. 3162(a)(2) (emphasis added), and thereby put in place meaningful standards to guide appellate review ... Where, as here, Congress has declared that a decision will be governed by consideration of particular factors, a district court must carefully consider those factors as applied to the particular case and, whatever its decision, clearly articulate their effect in order to permit meaningful appellate review.
13
Id. at 2419. The appellant relies on this language to support his claim that he is entitled to a remand for consideration of the factors in the statute. Under the circumstances of this case, we do not believe that a remand is required.
14
In Taylor the Supreme Court did not reverse simply because the district court failed to address one or more of the statutory factors. Although the Court emphasized the importance of a district court articulating its reasons for its choice of remedy and addressing the factors set out by Congress, it reversed because, after analyzing the district court's decision in the framework of the Act and in light of the record, it found that the court had abused its discretion with regard to the merits of the speedy trial claim. "The District Court failed to consider all the factors relevant to the choice of a remedy under the Act. What factors it did rely on were unsupported by factual findings or evidence in the record." Id. at 2423.
15
During oral argument of this case, appellant referred us to United States v. White, 864 F.2d 660 (9th Cir.1988), where the court relied on Taylor in reversing a conviction because the district court failed to make specific factual findings and to discuss the statutory factors in support of its decision to dismiss without prejudice under section 3162(a)(2). In White, the court remanded the case to the district court for analysis and articulation of the application of the statutory factors to the facts of that case.
16
Jones urges us to follow the Ninth Circuit and remand his case for analysis of the statutory factors. In White the district court made no specific factual findings in support of its decision to dismiss without prejudice and the record contained no discussion of the statutory factors. The linchpin of the reviewing court's decision to reverse was that it was unable to find an adequate basis in the record for the district court's decision. We do not believe the case before us mandates the same result.
17
Though we certainly do not minimize the importance of the Court's holding in Taylor with regard to articulation of the statutory factors, where the record amply supports the district court's decision, we do not believe Taylor requires automatic reversal. Instead, we choose to apply the abuse of discretion standard recognized in Taylor to the facts of this case, and in doing so, acknowledge that we must "undertake more substantive scrutiny" than would otherwise be the case, "to ensure that the judgment is supported in terms of the factors identified in the statute." 108 S.Ct. at 2420. Unlike White, the record here is sufficient for us to make a determination of whether the district court's decision to dismiss without prejudice was an abuse of discretion. After carefully reviewing the record we conclude that the district court did not abuse its discretion and that to remand the case, as the appellant requests, would not only be unnecessary, but would be pointless.
18
The first factor to be considered under the statute is the seriousness of the crime. In this case, we recognize that the crime charged is a very serious one. Where this is true, the sanction of dismissal with prejudice should ordinarily be imposed only for serious delay. United States v. Carreon, 626 F.2d 528 (7th Cir.1980). Second, although the original trial date was 126 days after the indictment, thirty of those days were excludable for a determination of appellant's mental competency. Thus, the trial date was scheduled twenty-six days outside of the Act. However, as we previously pointed out in footnote one of this opinion, the statute providing for competency examination after arrest and before trial was amended only days before appellant's arrest and under the previous statute there would have been no violation of the Speedy Trial Act. It appears that the magistrate simply applied the wrong statute. With regard to the third factor, i.e., the impact of a reprosecution on the administration of justice and on the administration of the Speedy Trial Act, there is no evidence that a delay in the trial date was for the government to obtain a tactical advantage, that the delay was purposeful or that the appellant was prejudiced by the delay. See United States v. Simmons, 786 F.2d 479 (2d Cir.1986). Under the circumstances, where the delay was not intentional, was not overly long, and there is no evidence of prejudice to the appellant, we find that the district court did not abuse its discretion in dismissing the indictment without prejudice. Even though the district court failed to give a written analysis of the statutory factors as it should have done, that failure was harmless in view of the fact that the record amply supports the decision.
19
Accordingly, the judgment of the district court is affirmed.4
20
AFFIRMED.
1
Prior to October 12, 1984, 18 U.S.C. Sec. 4244 permitted commitment for competency examination after arrest and before trial for "such reasonable period as the court may determine." The statute was amended on October 12, 1984, five days before Jones was arrested, by 18 U.S.C. Sec. 4247(b) to allow commitment for "a reasonable period, but not to exceed thirty days...." When he committed Jones to Butner, the magistrate did not limit the commitment period to a specific period of time, apparently operating under the old statute
2
Jones did not appeal from the court's dismissal order. Had he done so, this Court would have lacked jurisdiction to hear the appeal. See United States v. Kelley, 849 F.2d 1395 (11th Cir.1988); United States v. Reale, 834 F.2d 281 (2d Cir.1987); United States v. Bratcher, 833 F.2d 69 (6th Cir.1987) (all holding that a criminal defendant may not immediately appeal when an indictment is dismissed without prejudice for a Speedy Trial Act violation). Cf. United States v. Lanham, 631 F.2d 356 (4th Cir.1980) (holding that dismissal without prejudice is not immediately reviewable)
3
18 U.S.C. Sec. 1341 makes it a crime to "devise any scheme or artifice to defraud, ... [and] for the purpose of executing such scheme or artifice ... place in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or take or receive therefrom, any such matter or thing, or knowingly cause to be delivered by mail according to the direction thereon, ... any such matter or thing."
4
Jones also argues that the district court erred in: (1) its ruling regarding an alleged plea agreement; and (2) in allowing evidence of similar acts under Fed.R.Evid. 404(b). Also, he argues that the evidence on counts two, four, and five was not sufficient to sustain his conviction. We have reviewed these contentions and find them to be without merit | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/8304509/ | Me. Justice Cbeson
delivered the opinion of the Court.
*574This opinion involves two appeals perfected by the employer of the appellees from the Law Division of the Law and Equity Court of Anderson County. The trial judge determined that appellees were suffering from the occupational disease of pneumoconiosis or silicosis which rendered them permanently and totally disabled within the purview of the Workmen’s Compensation Law, and that this disease arose out of and in the course of appel-lee ’s employment with appellant.
It was also further determined that appellee Phillips was entitled to recover certain material expenses from appellant in the amount of $63.50.
In this opinion the parties will be designated by their adversary status in the trial court; that is, Elmer J. Brown and Charlie Phillips, as petitioners, and Consolidation Coal Company, as defendant.
Each of the petitioners filed his petition seeking compensation. The material allegations of each petition are identical. The substance of both petitions is that, prior to March 31, 1970, defendant operated a coal mine near Devonia, Tennessee; that petitioners were employed by defendant and worked in the mine at Devonia; that while performing their duties petitioners were exposed to and forced to breathe air which contained great concentrations of dust, silica particles and other deleterious materials; that petitioners continued working in this atmosphere until March 31, 1970, when defendant ceased to operate the mine at Devonia; that after being examined by a physician on April 17, 1970, petitioner Brown learned for the first time that he was suffering from the disease of silicosis; that petitioner Phillips learned on June 17, 1970, that he was suffering from the *575disease of silicosis, after being examined by Dr. William Swann; that this malady was brought about by working in dust laden air; and that petitioners are permanently and totally disabled within the meaning of the Workmen’s Compensation Law and justly entitled to relief.
Defendant filed its answer to each petition. In each answer, defendant admits that petitioner was employed by defendant, and had worked in the coal mine for a number of years. Defendant denied that petitioners were exposed to silica dust while working in its mine and that petitioners were totally and permanently disabled. Defendant further avers that if petitioners are suffering from silicosis, then petitioners knew, or should have known, that they were suffering from this disease more than one year prior to commencement of their suits against defendant. Defendant denies that petitioners contracted silicosis from working in the coal mine at Devonia.
The evidence presented at the hearings on the two petitions may be summarized as follows:
Petitioners have spent their entire economic lives working in coal mines, and neither of the petitioners has had the benefit of much formal education. Petitioner Brown has worked in the coal mining industry for forty-eight years and has an eighth-grade education. On the other hand, petitioner Phillips has spent twenty-seven years in the coal mines, and has a third-grade education. Mr. Brown has worked for defendant for seventeen years while Mr. Phillips has been in the employ of defendant at Devonia mine for fifteen years.
Both petitioners testified that they experienced extreme difficulty in breathing and that their breathing has *576been severely strained for the past one or two years. Petitioners stated that they were unaware of what caused the shortness of breath until they visited physicians after the mine closed on March 31, 1970. Petitioner Brown stated that he thought that his breathing difficulties were caused by “heart trouble” since his father and one of his brothers had died of heart disease.
On April 17, 1970, Mr. Brown was examined by Dr. William Rogers. He learned for the first time that he had a great accumulation of rock and coal dust in his lungs. Petitioner Brown testified that he was told by Dr. Rogers that this condition was incurable and would continue to become more acute. Mr. Brown further testified that his breathing has become progressively more strained and difficult since he was examined by Dr. Rogers.
Mr. Phillips was examined by Dr. William Swann on Juno 17, 1970. After the examination was completed, Mr. Phillips likewise was informed that he had contracted silicosis. Petitioner Phillips further testified that lie has experienced more difficulty in breathing since ho was originally examined on June 17, 1970.
At the hearing on their respective cases, each petitioner stated that he was not able To perform any type of work. Petitioner Brown testified that he had tried to mow his lawn and run the vacuum cleaner for his wife but that he could not perform these simple tasks since his breathing was impaired. Mr. Phillips stated that he had tried “to make a garden” but he could not finish this task since he could not breathe a sufficient quantity of air.
*577At the hearings below petitioners’ wives, Josephine Brown and Edith Phillips, also testified. Their testimony corroborated the testimony of petitioners, in every respect.
At the hearing on Mr. Brown’s petition, the deposition of Dr. Bogers was introduced into evidence. Dr. Rogers stated that he found Mr. Brown’s physical condition to be as follows:
“He had rather marked nodulation in his lung fields, all through both lung fields, some small rounded nodules maybe a millimeter in diameter, and other nodules that would be as large as three or four millimeters in diameter, some of them somewhat irregular. This was certainly compatible with coal workers pneumoconiosis or silicosis, and I put this in either stage two, if you are talking about silicosis, or the more modern term of category two. I felt he had very definite coal workers disease and more than just a small amount.”
Dr. Rogers further said that the condition described above is permanent and that it may get worse.
At the hearing on Mr. Phillips’ petition, the deposition of Dr. William Swann was received into evidence. Dr. Swann stated that after examining Mr. Phillips, he found that petitioner had contracted silicosis. After petitioner Phillips’ disease was diagnosed by Dr. Swann, Dr. Rogers examined him. In his deposition, which was also introduced into evidence, Dr. Rogers stated that Mr. Phillips had contracted silicosis and that this condition would be permanent.
From each adverse judgment below defendant has seasonably perfected an appeal-in-error to this Court,*578Defendant assigns three errors in the judgment rendered for petitioner Brown. The substance of these assignments are: (1) that the trial court erred in adjudging petitioner Brown permanently disabled since this finding is not supported by expert medical evidence; (2) the finding of fact that petitioner is totally disabled is inconclusive since the trial judge disregarded material evidence in the record that Air. Brown was not totally disabled; (3) petitioner’s right to compensation is barred by T.C.A. sec. 50-1108 since he did not commence his suit until more than one year after he knew that he had contracted the disease.
Defendant has also assigned three errors to the judgment below rendered for petitioner Phillips. The substance of these assignments are: (1) that the trial court erred in adjudging petitioner Phillips permanently disabled since this finding is not supported by expert medical evidence; (2) the finding of fact that petitioner is totally disabled is inconclusive since the trial judge disregarded material evidence in the record that Air. Phillips was not totally disabled; (3) the trial court erred in allowing medical expenses for treatment by a physician not designated by defendant.
We will proceed to consider and discuss together the first assignments to the judgments below, then we will consider the second assignments of error to judgments since this will facilitate our determination of the instant case. Finally, the third assignment of error to each judgment will be considered separately since these assignments raise two distinct issues.
At this juncture, it must be pointed out that the scope of review of facts in workmen’s compensation cases is limited by the material evidence rule. T-he findings of *579fact in the court below will not be disturbed on appeal if supported by material evidence. Travelers Insurance Company v. Googe (1965) 217 Tenn. 272, 397 S.W.2d 368.
In its first assignment to each of the judgments rendered in favor of petitioners, defendant assails the finding of the trial judge that petitioners were permanently disabled since there is no medical evidence in the record to support this finding. Defendant relies on our earlier case of Minton v. Leonard (1967) 219 Tenn. 642, 412 S.W.2d 886. In Minton v. Leonard we reversed the trial court because its finding that the injured workman was permanently disabled was not supported by any material evidence. The records in the cases at Bar show beyond any shadow of doubt that Dr. Bogers and Dr. Swann stated that the disease that afflicts petitioners is permanent. The finding of the trial judge is supported by material evidence.
Defendant asserts in the second assignments to each of the judgments below that the finding by the trial court that petitioners were totally disabled is inconclusive since the trial judge disregarded material evidence to the contraiy. Defendant contends that there was competent medical evidence in the record that petitioners were not totally disabled.
This contention of defendant is without merit. In Federated Mutual Implement & Hardware Insurance Company v. Cameron (1967) 220 Tenn. 636, 422 S.W.2d 427, we pointed out that there are differences in the meaning of disability in a medical and legal sense. We said:
“This Court recognizes that there are differences between the medical and the legal meaning of disability *580under the Workmen’s Compensation statutes. Chief Justice Burnett, in Lunsford v. A. C. Lawrence Leather Co. (1949) 189 Tenn 293, 225 S.W.2d 66, and the late Justice White, in McKenzie v. Campbell & Dann Mfg. Co. (1962) 209 Tenn. 475, 354 S.W.2d 440, have ahly delineated the variance. The measures of disability in a medical sense, are substantially more narrow than those contemplated by the Workmen’s Compensation statutes. In determining what may constitute permanent total disability, the concepts embodied in Workmen’s Compensation take into account many pertinent factors, including skill, education, training, duration and job opportunity for the disabled. ”
The records in the instant case reflect that the trial judge was guided by the criteria discussed in the Federated Mutual case in determining that petitioners were totally disabled. This finding is supported by material evidence, and we will not disturb it.
In reference to the judgment recovered by petitioner Brown in the court below, defendant assigns as error the failure of the trial judge to rule that the suit was barred by T.C.A. sec. 50-1108. The pertinent part of T.C.A. sec. 50-1108 provides:
“Limitations. — The right to compensation for occupational disease shall be forever barred unless suit therefor is commenced within one (1) year after the beginning of the incapacity for work resulting from an occupational disease.”
In Tennessee Products & Chemical Corporation v. Reeves (1967) 220 Tenn. 148, 415 S.W.2d 118, we discussed the statutory provision quoted above. We said:
*581“It results before the statute of limitations in occupational disease cases begins to run there must be: First, an incapacity for work; Second, either aetual or constructive knowledge and occupational disease is the cause of the incapacity for work. In relating the incapacity for work to the disease an employee is required to exercise reasonable care and diligence; and if he does not he could be charged with constructive notice. ’ ’
There is not one iota of evidence that petitioner Brown ever had any knowledge that his incapacity was caused by the occupational disease of silicosis until he was examined on April 17, 1970, by Dr. Rogers, nor is there any evidence that petitioner failed to use reasonable diligence to ascertain that he was afflicted with an occupational disease. Mr. Brown’s suit which was commenced on April 28, 1970, was instituted within the period of the statute of limitations.
Finally, defendant contends that the trial judge erred in allowing petitioner Phillips to recover medical expenses in the amount of $63.50. These expenses arose out of the tests and examination by Dr. Swann on June 17, 1970. This was prior to the time petitioner notified defendant that he had contracted silicosis and brought suit. Defendant contends that it is not liable for these medical expenses since they were incurred in treatment of petitioner by a physician not designated by defendant.
T.C.A. sec. 50-1004 provides that the employer shall furnish
“. . . free of charge to the employee such medical and surgical treatment, medicine, medical and surgical supplies, crutches, artificial members, and other ap*582paratus, such, nursing services as ordered by the attending physician and hospitalization, including such dental work made reasonably necessary by accident as herein defined, as may be reasonably required . . . . The injured employee shall accept the same; provided, that the employer shall designate a group of three (3) or more physicians or surgeons not associated together in practice if available in that community from which the injured employee shall have the privilege of selecting the operating surgeon or the attending physician;
In Consolidation Coal Company v. Pride (1970) 224 Tenn. 188, 452 S.W.2d 349, we held that an employee could not recover medical expenses for treatment of an occupational disease from a physician not designated by his employer after he became aware that he had contracted the disease. After the employee learns that he is afflicted with an occupational disease, he is “under a duty to consult with his employer . . . before incurring additional medical expenses.”
However, in the case of Charnes v. Burk (1959) 205 Tenn. 371, 326 S.W.2d 657, we allowed an employee to recover medical expenses incurred in the diagnosis of his disease which arose prior to notice of claim for compensation and institution of suit. The medical expenses in Charnes v. Burk were incident to the employee’s ascertaining for the first time that he had contracted an occupational disease. This is exactly the same situation that we have before us in petitioner Phillips’ case. The trial judge did not err by awarding petitioner his medical expenses incurred in the diagnosis of his condition.
*583All assignments of error in the cases at bar are overruled and the judgments of the court below affirmed. Costs of the two appeals are taxed to defendant.
Dyer, Chief Justice, Humphreys and McCanless, Justices, and Jenkins, Special Justice, concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/537707/ | 897 F.2d 1128
31 ERC 1201, 58 USLW 2612, 20 Envtl.L. Rep. 20,788
ATLANTIC STATES LEGAL FOUNDATION, INC., Plaintiff-Appellant,v.TYSON FOODS, INC., Defendant-Appellee.
No. 89-7232.
United States Court of Appeals,Eleventh Circuit.
April 5, 1990.
David H. Pope, Eric E. Huber, Carr, Tabb & Pope, Atlanta, Ga., and Clyde E. Riley, Trimmer & Associates, P.C., Birmingham, Ala., for plaintiff-appellant.
Nancy K. Stoner, U.S. Dept. of Justice, Washington, D.C., amicus curiae.
H. Thomas Wells, Jr., Alfred F. Smith, Jr., Maynard, Cooper, Frierson & Gale, Birmingham, Ala., and Michael H. Mashburn, Mashburn & Taylor, Fayetteville, Ariz., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before KRAVITCH and JOHNSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.
KRAVITCH, Circuit Judge:
1
This case arises out of violations by Tyson Foods, Inc. ("Tyson"), between May of 1986 and February of 1988, of the limitations on discharges of pollutants from its poultry processing plant in Blountsville, Alabama, as set out in its National Pollution Discharge Elimination System ("NPDES") permits. Plaintiff-appellant, the Atlantic States Legal Foundation, Inc. ("ASLF"), appeals from the district court's entry of summary judgment in favor of Tyson on the grounds that the court erred in dismissing the suit as moot and in refusing to award penalties. The district court held that the Supreme Court's decision in Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) required it to dismiss as moot a citizen suit seeking relief for violations which, although occurring before and after filing of suit, had ceased at the time of defendant's motion for summary judgment. Alternatively, the court held that its equitable powers allowed it to deny relief in the form of civil penalties where the defendants had made a good faith effort at compliance. Because we find that the district court erred in dismissing the suit and refusing to award penalties, we reverse and remand.
I.
2
In May of 1986, Tyson acquired several poultry processing plants in Alabama when it bought Lane Processing, Inc. out of bankruptcy. Lane owned Spring Valley Foods ("Spring Valley"), which operated a processing plant in Blountsville, Alabama. Spring Valley discharged various pollutants into the Locust Fork of the Warrior River in Alabama by way of Posey Creek and Graves Creek. These discharges were regulated by section 402 of the Federal Water Pollution Control Act (hereinafter "the Clean Water Act"), 33 U.S.C. Sec. 1342, which authorizes the administrator of the EPA ("Administrator") to issue NPDES permits allowing the discharge of pollutants into navigable waters in accordance with specified conditions. Under section 402(b) of the Act, a state may establish and administer its own permit program. If that program conforms to federal guidelines and is approved by the Administrator, the issuance of federal permits is suspended. In the instant case, Spring Valley's discharge of pollutants was regulated by a permit issued by the Alabama Department of Environmental Management ("ADEM") in accordance with the state's federally approved NPDES program.1
3
Section 308 of the Clean Water Act also requires plant operators to maintain and file Discharge Monitoring Reports ("DMRs") with appropriate authorities which reflect the terms of their NPDES permits and the amount of actual discharges. The DMRs for the Blountsville plant were filed with the ADEM.
4
The DMRs filed by Spring Valley prior to Tyson's acquisition of the plant demonstrate that Spring Valley had committed continuous and daily violations of its NPDES permit. John Reid, an employee of Tyson, stated in an affidavit that at the time Tyson acquired Spring Valley, the water treatment system was "both inadequate and in a poor state of repair."After acquiring Spring Valley, Tyson did not shut down the plant in order to upgrade its water treatment system, but continued the plant's operation. Indeed, one Tyson employee stated that Tyson increased its volume of production by adding a second shift of workers.2 Tyson did, however, begin taking steps towards improving the system in order to bring it into compliance with the Clean Water Act. By January of 1987, eight months after acquisition, it had completed a "Final Design Summary of Waste Water Treatment Facilities."
5
In April of 1987, ASLF, a membership organization devoted to environmental and clean water issues, sent to Tyson and appropriate government agencies, a sixty-day notice letter as required by section 505(b) of the Clean Water Act, 33 U.S.C. Sec. 1365(b), stating its intention to commence a citizen suit under the Clean Water Act.3 The purpose of giving notice to an alleged violator "is to give it an opportunity to bring itself into compliance with the Act and thus likewise render unnecessary a citizen suit." Gwaltney, 484 U.S. at 60, 108 S.Ct. at 382-83.4 As Tyson's permit violations continued, ASLF filed a complaint against Tyson on August 7, 1987, seeking injunctive relief and civil penalties payable to the United States Treasury,5 as well as attorney's fees and costs.
6
On September 2, 1987, Tyson responded with a motion to dismiss for lack of standing and a motion to stay discovery on the merits until the standing issue was resolved. Before ASLF responded to the motion, the district court granted Tyson's motion to stay discovery and excused Tyson from answering ASLF's complaint or responding to its discovery requests. Tyson was allowed to conduct discovery of ASLF and its members.
7
In December of 1987, the Supreme Court decided Gwaltney of Smithfield v. Chesapeake Bay Foundation, 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), in which it interpreted the jurisdictional requirements of the Clean Water Act's citizen suit provisions. ASLF filed an amended complaint to conform to the Gwaltney requirements for invoking the jurisdiction of the court.6 On March 4, 1988, the district court issued an order in which it found that ASLF had standing to maintain an action against Tyson. Atlantic States Legal Foundation, Inc. v. Tyson Foods, Inc., 682 F.Supp. 1186 (N.D.Ala.1988).
8
In the same order, the court, citing to Gwaltney, decided sua sponte to stay the proceedings "until such time as the effectiveness of the upgraded wastewater facility at Tyson's Blountsville plant can be evaluated." 682 F.Supp. at 1190. The court reasoned that "[w]hen the pollution has ceased, the action is moot and it is doubtful whether civil penalties may be recovered in such a case." Id. The court noted that the affidavit of Tyson's plant manager stated that Tyson already had spent $2.5 million upgrading the wastewater facility at the plant and opined that "when fully completed, the upgraded system should eliminate violations of Tyson's permit limits at that plant." Id. The court concluded that "it appears likely that [the complaint] will be rendered moot when that upgraded system is fully operational." Id. Tyson was excused from responding to ASLF's complaint until thirty days after the stay was lifted.
9
In May of 1988, Tyson filed a "Suggestion of Mootness" as to ASLF's complaint, stating that its wastewater treatment facility, which had been placed in initial operation on December 17, 1987, had become fully operational in mid-February of 1988 and that it had not exceeded its NPDES permit limitations for any pollutant since that time. On July 29, 1988, pursuant to ASLF's request, the district court lifted the stay of proceedings entered March 4, 1988 and the stay of discovery entered in September of 1987.7
10
In November of 1988, both sides filed motions for summary judgment. At the time the motions were filed, it was clear that Tyson had violated its permit limits for twenty-one months: from May of 1986, when it took over plant operations from Spring Valley, until mid-February of 1988, when its newly constructed wastewater treatment facility became fully operational.8 The violations were self-reported in DMRs filed by Tyson as required by statute.
11
ASLF filed its complaint in August of 1987. Thus, the violations occurred for fifteen months preceding ASLF's filing of the complaint and for six months afterwards. According to ASLF, Tyson had 57 daily and 16 monthly pre-complaint violations and 34 daily and 8 monthly post-complaint violations.9 Thus, at the time of the summary judgment motion, ASLF sought civil penalties for a total of 91 daily and 24 monthly violations.
12
The district court ruled on the cross motions for summary judgment in March of 1989, approximately 19 months after ASLF had filed its complaint. At that time, Tyson had been in compliance for a little over one year. The court granted summary judgment in favor of Tyson and denied ASLF's motion for summary judgment.
II.
13
The question before us is whether the district court erred as a matter of law in holding that ASLF's claim for civil penalties became moot once Tyson came into compliance and injunctive relief was no longer appropriate. In addition, we must rule on the district court's alternative holding that even if the suit was not moot, the court, based on its equitable powers, would refuse to award penalties because of the efforts of the defendant to comply and the plaintiff's lack of due diligence in investigation. We address this alternative holding in Part III below.
14
The district court's holding that ASLF's suit was rendered moot by Tyson's compliance was based largely on its reading of the Supreme Court's holding in Gwaltney. It is important to note, however, that Gwaltney dealt primarily with the question of jurisdiction and not mootness. Indeed, the Gwaltney court's discussion of the application of the mootness doctrine to citizen suits occurs in the context of its discussion of jurisdiction. Thus, there is no explicit discussion of the relationship between mootness and civil penalties. Although we are concerned here only with the question of mootness, a review of the holding of Gwaltney should help clarify its application to the instant case.
A. Jurisdiction
15
In Gwaltney, the Supreme Court faced the question of whether section 505 of the Clean Water Act "confers federal jurisdiction over citizen suits for wholly past violations." 484 U.S. at 52, 108 S.Ct. at 378. That section states that in the absence of federal or state enforcement, private citizens may commence civil actions against any person "alleged to be in violation of" the conditions of their NPDES permit.
16
Gwaltney, like the present case, involved a citizen suit filed in response to a company's repeated violations of its NPDES permit when discharging pollutants from its meat-packing plant into a river. Two environmental groups sent notice to Gwaltney in February of 1984 and filed a complaint against Gwaltney in June of 1984 seeking injunctive relief as well as civil penalties. Records indicated that Gwaltney's last recorded violation had occurred in May of 1984, one month before the complaint was filed.
17
The district court did not grant injunctive relief, but imposed civil penalties on Gwaltney. 611 F.Supp. 1542 (E.D.Va.1985). The court of appeals affirmed. 791 F.2d 304 (4th Cir.1986). In imposing penalties, the courts held that the citizen suit provision of the Clean Water Act authorized civil penalties for wholly past violations.10
18
The Supreme Court, after examining the language and structure of the statute and comparing citizen suits with enforcement actions brought by the Administrator, reversed the lower courts. It held that for purposes of federal court jurisdiction, citizen plaintiffs must "allege a state of either continuous or intermittent violation--that is, a reasonable likelihood that a past polluter will continue to pollute in the future." 484 U.S. at 57, 108 S.Ct. at 381. The Court noted that section 505 of the Clean Water Act authorizes citizens to seek both injunctive relief and the imposition of civil penalties under section 309 of the Act, 33 U.S.C. Sec. 1319(d). It held, however, that "citizens, unlike the Administrator, may seek civil penalties only in a suit brought to enjoin or otherwise abate an ongoing violation." Id. at 59, 108 S.Ct. at 382.
19
The Supreme Court stressed that citizen-plaintiffs need not prove their allegations of ongoing noncompliance before jurisdiction attaches under section 505. Instead, a good faith allegation of violations that continued at the time suit was filed is sufficient for jurisdictional purposes. Id. at 64, 108 S.Ct. at 385. It thus remanded the case in order for the lower courts to determine whether the citizens groups' allegations of continuing violations were made in good faith.
B. Mootness
20
In Gwaltney, the discussion of mootness occurs in the context of the Supreme Court's reassurance that its construction of the threshold requirements for jurisdiction would not affect principles of mootness. We quote the passage in full:
21
Petitioner [Gwaltney] also worries that our construction of Sec. 505 would permit citizen-plaintiffs, if their allegations of ongoing noncompliance become false at some later point in the litigation because the defendant begins to comply with the Act, to continue nonetheless to press their suit to conclusion. According to the petitioner, such a result would contravene both the prospective purpose of the citizen suit provisions and the "case or controversy" requirement of Article III. Longstanding principles of mootness, however, prevent the maintenance of suit when " 'there is no reasonable expectation that the wrong will be repeated.' " United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953) (quoting United States v. Aluminum Co. of America, 148 F.2d 416, 448 (CA2 1945)). In seeking to have a case dismissed as moot, however, the defendant's burden "is a heavy one." 345 U.S. at 633, at 897. The defendant must demonstrate that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Phosphate Export Assn., Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968) (emphasis added). Mootness doctrine thus protects defendants from the maintenance of suit under the Clean Air Act based solely on violations wholly unconnected to any present or future wrongdoing, while it also protects plaintiffs from defendants who seek to evade sanction by predictable "protestations of repentance and reform." United States v. Oregon State Medical Society, 343 U.S. 326, 333, 72 S.Ct. 690, 696, 96 L.Ed. 978 (1952).
22
484 U.S. at 66, 108 S.Ct. at 386 (footnote omitted).
23
The meaning of this passage is ambiguous. Its apparent purpose is to assuage the petitioner's fears regarding the ramifications of the Court's holding that a mere allegation of ongoing violations will suffice to invoke a district court's jurisdiction over a section 505 suit. Thus, the Court may simply be saying that if jurisdiction is granted on the basis of the plaintiff's allegations of an ongoing violation, the suit may be dismissed as moot if it turns out later that there was no basis for jurisdiction--i.e., that violations were not in fact ongoing at the time of suit.
24
On the other hand, the wording of the passage suggests that the Court may be referring to post-complaint compliance. Even assuming that this is the case, however, the Court appears to be only addressing the mooting of injunctive relief.11 Thus, the passage does not make clear whether the plaintiff's request for civil penalties is mooted as soon as the defendant's compliance moots the plaintiff's prayer for injunctive relief. It leaves open the question of whether, in a citizen suit, civil penalties may be assessed against the defendant when there clearly were ongoing violations and thus grounds for injunctive relief at the time suit was filed.
III.
25
In the instant case, the district court's holding that the case was moot within the meaning of Gwaltney was based on two premises. First, in deciding whether there were ongoing violations, the district court focused on the presence or absence of violations at the time that it ruled on the parties' motions for summary judgment and not at the time the complaint was filed. Second, the district court held that once the injunctive portion of the case becomes moot, the civil penalties portion of the case must be dismissed as well. Given these two premises, the district court held that ASLF's complaint was moot because the pollution had ceased and there was no danger of future or intermittent pollution; therefore, neither injunctive relief nor civil penalties were available to the plaintiffs. Under the district court's reading of Gwaltney, the civil penalties provisions of a citizen suit becomes moot whenever a defendant begins to comply with the Clean Water Act.
26
We disagree with the district court's reading of Gwaltney. Specifically, we find that for purposes of assessing a plaintiff's allegations of ongoing violations, the court must always look to the date the complaint was filed. If on and after that date, the defendants continued to violate their NPDES permit, then the plaintiffs may request both injunctive relief and civil penalties.12 This is consistent with the Gwaltney
27
At the time ASLF initially brought this suit, it requested an injunction and civil penalties based on good faith allegations of ongoing violations. Its complaint thus fulfilled the jurisdictional requirements of the Supreme Court's decision in Gwaltney. ASLF's claim for injunctive relief has since been mooted by Tyson's compliance, beginning in February of 1988, with the requirements of its permit. As this compliance is directly related to Tyson's new facility for wastewater treatment, and as this facility can be expected to operate in the future, we find that "the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968).13
28
As we have stated, if the parties are able to make a valid request for injunctive relief at the time the complaint is filed, then they may continue to maintain a suit for civil penalties, even when injunctive relief is no longer appropriate. However, the showing necessary to maintain a suit for civil penalties must go beyond mere allegations. Plaintiffs must be able to prove that non-compliance was ongoing at the time they filed suit in order to be able to later maintain an action for civil penalties. The DMRs filed by Tyson for the months of May 1986 to February 1988 conclusively establish the existence of ongoing violations. Thus, ASLF has established liability under the Clean Water Act and is entitled to seek civil penalties for Tyson's non-compliance with its NPDES permit.
29
The Fourth Circuit's recent holding on remand in Gwaltney supports our reading of the Supreme Court's discussion of mootness. Following the Supreme Court's remand, the Fourth Circuit discussed the question of mootness for the first time after the district court had awarded civil penalties and defendant Gwaltney again appealed to the Fourth Circuit. In examining the question of mootness, the Fourth Circuit wrote that:
30
In our view, the penalty factor keeps the controversy alive between plaintiffs and defendants in a citizen suit, even though the defendant has come into compliance and even though the ultimate judicial remedy is the imposition of civil penalties assessed for past acts of pollution.
31
Chesapeake Bay Foundation v. Gwaltney of Smithfield, 890 F.2d 690, 696 (4th Cir.1989). The court further held that:
32
Under the Clean Water Act, civil penalties attach as of the date a permit violation occurs. Liability is fixed by the happening of an event (discharge of effluent with an excessive burden of pollution) that occurred in the past. Thus, the initiation of Sec. 1319 actions by the government can be based on wholly past violations, so that a suit seeking penalties is intrinsically incapable of being rendered moot by the polluter's corrective actions....
33
A similar rationale governs our consideration of putative mootness arguably brought on by corrective action after a Sec. 1365 citizen suit has been initiated. When the Supreme Court concluded in its Gwaltney decision that Sec. 1365 permits citizens' actions against polluters while there are ongoing violations, the Court effectively approved the assessment of penalties based on past violations (the only possible basis for assessing a penalty). Assuming, then, proof of an ongoing violation, a citizen action, like a government action, cannot become moot once there is an assessment of civil penalties, so long as the penalties are for past violations that were part of or which contiguously preceded the ongoing violations.
34
Id. at 696-97. Although the Gwaltney court did not state so explicitly, it is clear from the opinion that the term "ongoing violations" refers to the time the suit was filed and not the time of trial.14 Thus, the Fourth Circuit also has concluded that for purposes of mootness, the relevant question is whether there was a basis for injunctive relief at the inception of the suit, and not when a jury or the court decides the merits of the suit.15
35
Our holding finds further support in Public Interest Research Group v. Carter-Wallace, Inc., 684 F.Supp. 115 (D.N.J.1988). In Carter-Wallace, the district court, in discussing the relationship between injunctive relief and civil penalties, stated that:
36
"While the Gwaltney court did indeed stress the prospective nature of citizen suits, that prospective nature was stressed only as a limitation on the jurisdictional basis of those suits. When a citizen suit is properly commenced, as it was here, Gwaltney does not limit the relief which Sec. 1319(d) affords the citizen group to only present and prospective penalties.
37
Id. at 119. The court opined that because the question of injunctive relief was no longer at issue in Gwaltney, the Supreme Court would have remanded only if pre-complaint violations could properly be the subject of civil penalties in a civil suit. Id.
IV.
38
Our holding is further bolstered by the policies underlying the citizen suit provision of the Clean Water Act and the difficulties that would result if we were to decide the question of mootness of civil penalties by focusing on a date other than the date the complaint was filed.
39
As the United States points out in its amicus curiae brief, citizen suits are an important supplement to government enforcement of the Clean Water Act, given that the government has only limited resources to bring its own enforcement actions. Courts have noted that "the judicial relief of civil penalties, even if payable only to the United States Department of the Treasury, is causally connected to a citizen-plaintiff's injury. Such penalties can be an important deterrence against future violations." Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109, 1113 (4th Cir.1988). If post-suit compliance results in a mooting of the suit for civil penalties, then citizens will have less incentive to bring suit since they know that the case may be deemed moot and dismissed before judgment. The potential for a citizen suit also will become a less effective deterrent to violators, since they know that they may be able to avoid paying any penalties by post-complaint compliance.
40
Perhaps the most dangerous result of the district court's holding is that it encourages violators to delay litigation as long as possible, knowing that they will thereby escape liability even for post-complaint violations, so long as violations have ceased at the time the suit comes to trial or is decided on summary judgment. Under such a holding, dischargers could intentionally violate the Clean Water Act until they are sued and then obtain a stay while continuing their violations until they eventually are in compliance with the law. At this point, the case would be dismissed and they would have escaped all penalties. The district court's understanding of mootness reads the civil penalties provision out of the Clean Water Act. Further, under the district court's opinion, whether or not a suit is mooted may depend on when the district court happens to set the case down for trial or rule on summary judgment motions.
41
In this regard, the history of the present litigation is instructive. The complaint was filed in August of 1987. One month later, the court stayed discovery. Meanwhile, Tyson continued to violate its permit limitations for the next five months, until early February. In March, the court stayed the proceedings again, this time in order to allow Tyson more time to upgrade its facilities. Finally, the court lifted the stay in July of 1988, approximately one year after the suit was filed. In March of 1989, nine months later, the court granted summary judgment in favor of Tyson. Given the stays imposed by the court, it was impossible for the plaintiffs to have the merits of their suit decided while the violations were ongoing. Indeed, the second stay was imposed for the precise purpose of giving Tyson time to come into full compliance. We cannot believe that Gwaltney allows a district court to determine the outcome of citizen suit litigation by staying the proceedings. Here, the district court's actions served to assist the defendant in having the case dismissed as moot.16
V.
42
Having decided that Tyson's claim for civil penalties is not moot, we must now rule on the district court's alternate holding that even if the case is not moot, the court nevertheless would abstain from imposing any penalties pursuant to its equitable powers. To rule on this holding, we turn to the penalty provisions of the Clean Water Act.
43
A. Determination of Penalties Under the Clean Water Act
44
In deciding upon the penalty to be assessed against a defendant who has violated its NPDES permit, the point of departure for the district court should be the maximum fines for such violations permitted by the Clean Water Act. Although the amount of the maximum fine is stated at 33 U.S.C. Sec. 1319(d), the language of that section as originally written and as amended is not a model of clarity. Indeed, it leaves several questions regarding the calculation of fines unresolved.
45
Although it would be possible for the district court to resolve these questions on remand, we note that the questions, which involve statutory interpretation, are legal and not factual in nature. Thus, given the lack of Eleventh Circuit law in the area, we set forth our interpretation of the controlling statute in order to provide the court with guidance on remand.
46
Until February 4, 1987, 33 U.S.C. Sec. 1319(d) stated that:
47
Any person who violates sections 1311, 1312, 1316, 1317, 1318, 1328, or 1345 of this title, or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by the Administrator, or by a State, or in a permit issued under section 1344 of this title by a State ... shall be subject to a civil penalty not to exceed $10,000 per day of such violation.
48
(emphasis added). The Clean Water Act was amended by the passage of the Water Quality Act of 1987, Pub.L. No. 100-4, 101 Stat. 7 (1987). The amendment to section 1319(d), effective February 4, 1987, changed the italicized language to state that a violator "shall be subject to a civil penalty not to exceed $25,000 per day for each violation." As Tyson's permit violations occurred both before and after the amendment, maximum penalties must be assessed in accordance with both the pre- and post-amendment language of the statutes.
49
1. Maximum penalty per day where multiple violations occur on a single day
50
In interpreting the language of section 1319(d), courts have come to different conclusions as to whether the pre-amendment Clean Water Act limits a permittee's liability to $10,000 per day even if a permittee has violated discharge limitations for several pollutants on the same day. The district court's initial decision in Gwaltney includes a lengthy discussion of this question. That court, following the decision in United States v. Detrex Chemical Industries, Inc., 393 F.Supp. 735 (N.D.Ohio 1975) held that "Section 1319(d) authorizes a maximum of $10,000 per day in civil penalties for violations that are enumerated therein, even where the defendant has violated discharge limitations for several substances during the same day." 611 F.Supp. 1542, 1555 (E.D.Va.1985). The Gwaltney court noted that the statute is ambiguous, but felt that a construction that capped liability at $10,000 per day "accurately reflect[ed] the intent of Congress" and would provide "a substantial deterrent against violations by even the largest corporations where more than a few days of violation are involved." Id. In United States v. Amoco Oil Co., 580 F.Supp. 1042, 1047 n. 1 (W.D.Mo.1984), the district judge, in dicta, construed the language of section 1319(d) to allow for separate penalties for violations of the daily limit for two or more different pollutants, and in Student P.I.R.G. of New Jersey, Inc. v. Monsanto Co., CIV.A. No. 83-2040 (D.N.J. March 24, 1988) (1988 WL 156691), the court reached the same conclusion.17 The EPA has taken a similar position, stating in its internal document entitled "Clean Water Act Penalty Policy For Civil Settlement Negotiations" ("Penalty Policy") that "violations of different parameters at the same outfall are to be counted separately."18
51
We agree with the district court in Gwaltney that the statutory language of section 1319(d) as originally written is ambiguous and find the varying interpretations given to that language equally plausible. In amending the statute, however, Congress specified that the penalties were not to exceed "$25,000 per day for each violation" (emphasis added). This language, applicable to violations occurring after February 4, 1987, is, we find, capable of only a single reasonable interpretation: the daily maximum penalty applies separately to each violation of an express limitation.19 Certainly then, for violations occurring after February 4, 1987, there is no daily cap of $25,000. Instead, each excessive discharge of a pollutant on a given day will subject the polluter to a $25,000 maximum fine.
52
We further find that the slight change in wording in the 1987 amendment points to the proper interpretation of the statute as originally written. The Conference Report accompanying the amendment makes clear that under the Senate bill, section 309 of the Act 33 U.S.C. Sec. 1319 was amended in part "to increase the civil judicial penalty limit from $10,000 to $25,000 per violation, [and] to clarify that each distinct violation is subject to a separate daily penalty assessment of up to $25,000...." H.R.Rep. No. 99-1004, 99th Cong., 2d Sess. 132 (emphasis added).
53
Congress' indication that it intended by its amendment simply to "clarify" the language in the statute as previously written convinces us to follow the Amoco and Monsanto courts' reading of the pre-amendment language and to find that Congress intended the fines to attach to each violation of an effluent limitation separately.
54
2. Calculation of the penalty for violation of a monthly average
55
Another difficulty that courts have faced is the proper way to calculate the penalty for a violation of a monthly average. For each "effluent characteristic" the NPDES permit lists both a "daily maximum discharge limitation" and a "daily average discharge limitation." The "daily maximum" is defined by the permit as the highest value of a sample result obtained during a single day. The "daily average" is defined as the arithmetic mean value of all sample results for a particular pollutant obtained during a calendar month. Typically, the daily average discharge limitation for the month is much lower than the daily maximum, reflecting the fact that harm may be done in the aggregate even when the defendant stays within the maximum limitations for each day.
56
The language of the statute does not make clear whether the penalty for a monthly violation20 should consist of a fine for each day of that month or of a single fine of $10,000 (or $25,000). In Gwaltney, the Fourth Circuit agreed with the district court's holding that a violation of a monthly average should be deemed to involve a violation of each of the days of that month. 791 F.2d 304 (4th Cir.1986). The court reasoned that:
57
While the statute does not address directly the matter of monthly average limitations, it does speak in terms of penalties per day of violation, rather than penalties per violation. This language strongly suggests that where a violation is defined in terms of a time period longer than a day, the maximum penalty assessable for that violation should be defined in terms of the number of days in that time period.
58
Id. at 314 (emphasis in original). Thus, under the Gwaltney court's reading of the pre-amendment statute, violating a monthly limitation in a month with thirty days would subject a polluter to a maximum penalty of $300,000 per pollutant. Under the statute as amended, a polluter would be subject to a maximum penalty of $750,000 for that month. The EPA agrees in its Penalty Policy that "violation of a monthly average effluent limitation should be counted as 30 violations." But see, Monsanto, CIV.A. No. 83-2040, 1988 WL 156691 (holding that a violation of the daily average should not be applied to every day that month, but should only be counted as a single violation).
59
We find the reasoning of the Fourth Circuit persuasive and consistent with the language of section 1319(d). Although the maximum penalty for a monthly violation may seem high, we note, as did the Gwaltney court, that section 1319(d) only serves to set a maximum penalty. In choosing the correct penalty to be awarded, the district court may take into account the reasons why the daily average limitation was violated in a particular month. For instance, one polluter may violate its daily average because it discharges just below the limit of the daily maximum every day of the month.21 Another polluter may violate the daily average because it has an excessive discharge on a single day. It may be appropriate for the district court to assess higher penalties for the polluter engaging in high discharges on a daily basis than for the polluter who violates the monthly limitation because of a single discharge.
60
3. The interaction of daily and monthly violations
61
A final question that must be resolved is whether the imposition of penalties for a monthly violation forecloses penalties for daily violations within that month. Based on its holding that $10,000 was an absolute maximum per day regardless of the number of violations, the district court in Gwaltney held that no penalties for violations of the daily maximum should be imposed for months in which the polluter violated the monthly average. 611 F.Supp. at 1555.
62
As noted above, we do not read the pre- or post-amendment language to impose an absolute ceiling on the amount of penalties that may be imposed on a single day. However, we find that because discharge of a single pollutant may be the cause of both daily and monthly violations, fining the violator twice may result in imposing two fines for the same illegal act. We decline to interpret the statute to create this result. Thus, if a polluter is guilty of violating the daily average discharge limitation of pollutant A, and also violates the daily maximum limitation of only pollutant A, then the maximum fine for discharge of pollutant A would be $10,000 (or $25,000) times the number of days in the month. If, however, the polluter also violates the daily maximum of pollutant B, one would add each of those daily violations to the fine for the monthly violation of pollutant A.22
63
B. The District Court's Refusal to Award Penalties
64
The district court, after noting that it sits as a court of equity that may exercise judicial discretion in all cases, held that "it would hardly be fair and just to impose civil penalties upon Tyson when in fact it has at all times herein acted in good faith." Slip op. at 9.
65
Tyson argues that the Supreme Court has approved the exercise of discretion by district courts to balance the equities in deciding penalties under the Clean Air Act. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). In Romero-Barcelo, plaintiffs brought suit against the Navy for discharge of ordnance in alongshore waters. The Supreme Court affirmed the district court's use of discretion in declining to enjoin naval operations pending compliance with the Clean Water Act where the Court found great harm to the Navy and little harm to the environment. We find that the holding of Romero-Barcelo has little bearing in the instant case, as it speaks to the district court's discretion to refuse to issue an injunction and not to the question of penalties.
66
In the case of civil penalties, a district court's discretion is constrained by Congress' enumeration of factors to be considered when assessing such a penalty. Under the 1987 amendments to the Clean Water Act, Congress stated that:
67
In determining the amount of a civil penalty the court shall consider the seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require.
68
33 U.S.C. Sec. 1319(d) (emphasis added). Congress' use of the words "shall consider" suggests that in arriving at a dollar figure for penalties, the court is to take each listed factor into account as well as any additional factors the court feels have bearing on the question of penalties. The legislative history also notes that Congress intended to "expressly require the courts to consider [these factors]." H.R.Rep. No. 99-1004 at 132. See also, Tull v. United States, 481 U.S. 412, 422 n. 8, 107 S.Ct. 1831, 1838 n. 8, 95 L.Ed.2d 365 (1987).
69
From a reading of the district court's opinion in the instant case, it appears that the court focused solely on the good faith of the defendant in determining that the plaintiffs were entitled to no award of civil penalties. The court concluded that "[i]t would simply be inequitable and unconscionable to impose civil penalties against Tyson when it has displayed the utmost good faith." In support of its finding of good faith, the court noted that upon acquiring the plant from Spring Valley, Tyson immediately began building a state-of-the-art wastewater treatment system. It also noted that Tyson expended over $2.5 million to correct the past violations of its predecessor and that it did so without having been ordered to comply by any court or administrative agency.
70
There is no evidence that in determining penalty amounts the court examined the economic benefit to the violator or the seriousness of the violations. Insuring that violators do not reap economic benefit by failing to comply with the statutory mandate is of key importance if the penalties are to successfully to deter violations. Although there is little evidence in the record on the question of economic benefit, testimony from the deposition of Mark Waller, the former plant manager at the Blountsville facility, indicates that Tyson may have saved over $400,000 in operation and maintenance expenses by operating without utilizing the technology and employees necessary to comply with its permit.
71
In Tull v. United States, 481 U.S. 412, 422-25, 107 S.Ct. 1831, 1838-39, the Supreme Court made clear that economic gain and restoration of the status quo is not the only basis on which penalties should be awarded under the Clean Water Act. In addition, the penalties are designed to punish violators for their non-compliance and to serve the goal of retribution. The Tull Court, citing the EPA Penalty Policy, stated that retribution can be based on "the seriousness of the violations, the number of prior violations, and the lack of good-faith efforts to comply with the relevant requirements." Id. at 423, 107 S.Ct. at 1838. Here, there is ample evidence that Tyson engaged in repeated violations which continued well after the complaint was filed.
72
In its order, the district court also stressed that ASLF filed suit against Tyson well after construction of the facility had begun and without investigating the status of the facility. It found that ASLF's attempts to gather information on which it based its complaint indicated a lack of diligence. While the statute allows the court to consider "other matters as justice may require," we have difficulty understanding how the due diligence of the citizen-plaintiffs fits into the calculus of penalties. Inclusion of this factor is particularly troubling when the court prevented the plaintiffs from gathering information by imposing a stay of discovery on the merits for nearly two years after the complaint was filed. On remand, therefore, the district court's perception of the efforts of ASLF to secure information should play no role in its calculation of the appropriate fine.
73
The district court concluded that "Congress could not have intended for the Clean Water Act to be used as an instrument to generate fines from parties which have made a bona fide effort to bring their operations into compliance with the Act, especially if they did so before a complaint was filed." We disagree. There was one simple and straightforward way for Tyson to avoid paying civil penalties for violations of the Clean Water Act: After purchasing the plant, Tyson could have ceased operations until it was able to discharge pollutants without violating the requirements of its NPDES permit. Tyson chose not to do this and it must now bear the consequences of that decision.
74
ASLF claims that under the statute, pre-complaint violations in this case involve a maximum penalty of over $14 million and post-complaint penalties involve maximum penalties in excess of $9 million. Without passing judgment on the correctness of these assessments, we note that section 309(d) of the Clean Water Act states that "[a]ny person who violates ... any permit condition or limitation ... shall be subject to a civil penalty...." This language makes clear that once a violation has been established, some form of penalty is required. In Stoddard v. Western Carolina Regional Sewer Authority, 784 F.2d 1200, 1208 (4th Cir.1986) the court stated that "[c]learly, a fine must be imposed when the violations have been as pervasive as those perpetrated by the [defendant] during the extended period from 1978 to 1983. We hold that the district court committed an error of law by failing to assess civil penalties in some amount." We agree with the Stoddard court. Civil penalties are to be assessed against Tyson as a matter of law. While the amount of penalty to be levied is discretionary with the district court, its determination, based solely on the good faith efforts of Tyson to comply with the law, that no penalty was appropriate was and would be an abuse of discretion.
75
Upon remand, the district court should first determine the maximum fine for which Tyson may be held liable. If it chooses not to impose the maximum, it must reduce the fine in accordance with the factors spelled out in section 1319(d), clearly indicating the weight it gives to each of the factors in the statute and the factual findings that support its conclusions. While the court may find the EPA's Penalty Policy helpful in determining the appropriate fines, the court's primary focus should be on the statutory language of section 1319(d).23
VI.
76
Section 1365(d) of 33 U.S.C., as amended on February 4, 1987, states that:
77
The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate.
78
As the district court ruled against ASLF on the merits, it did not discuss whether ASLF would be entitled to an award of costs and attorney fees. However, in its earlier opinion on the question of standing, the court stated that it felt:
79
compelled to note that an award of attorney's fees under section 1365(d) may well prove to [sic] inappropriate. ASLF will have great difficulty in establishing itself as a prevailing or substantially prevailing party, for it appears on the present record that Tyson had undertaken to make the changes in its Blountsville plant prior to the filing of the instant action.
80
682 F.Supp. at 1190. Although the language of the statute makes clear that an award of fees is not mandatory, we note that on remand ASLF should be considered a prevailing party despite the fact that Tyson may have taken certain actions towards compliance before the filing of the instant suit. ASLF prevailed in that it was able to show that Tyson was liable for civil penalties for violations of the Clean Water Act. Civil penalties are an integral part of the enforcement scheme of that Act. As the Fourth Circuit noted in Stoddard:
81
The [plaintiffs] have pursued and obtained remedies under the Act in the manner provided for by section 1365, and their actions will tend to ensure compliance with the Act in the very manner contemplated by Congress in enacting this provision. Therefore, the landowners have served the public interest by insisting that the Clean Water Act be adequately enforced.
82
784 F.2d at 1209 (citations omitted). The award of fees is within the discretion of the district court; however, the sound exercise of that discretion will not allow the court to deny fees and costs absent good cause. In a case like the instant one, where a citizens group has succeeded on the merits, we cannot conceive of any grounds that would justify a denial of fees and costs.
83
In Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292 (11th Cir.1988), this court stated that "[t]he court's order on attorney's fees must allow meaningful review--the district court must articulate the decisions it made, give principled reasons for those decisions, and show its calculation. If the court disallows hours, it must explain which hours are disallowed and show why an award of these hours would be improper." Id. at 1304. That same decision clearly spells out the Eleventh Circuit's understanding of the analysis required under recent Supreme Court decisions for determining proper attorney's fee awards. Id. at 1299-1304. We thus refer the district court to Norman as a guide to the proper analysis of attorney's fees in this case. In addition, the parties should be given full opportunity to brief questions relating to an appropriate fee award.
CONCLUSION
84
As the evidence of Tyson's violations of its NPDES permits is uncontroverted, and the court's ability to impose civil penalties survives the mooting of injunctive relief, we reverse the district court's entry of summary judgment in favor of Tyson and direct the court to enter summary judgment on the question of liability in favor of ASLF. We remand to the district court for the limited purpose of calculating penalties based on Tyson's violations of its NPDES permit from the time it began operating the plant until it came into compliance in February of 1988 and for the purpose of calculating reasonable attorney's fees.
85
In calculating penalties, the district court shall consider and explain its finding on each of the factors enumerated in 33 U.S.C. Sec. 1319(d). The court shall receive additional evidence from both parties on all factors as necessary, including but not limited to the exact number of daily and monthly violations for which Tyson is responsible, the speediness with which Tyson complied with the Clean Water Act, expenditures undertaken by Tyson to comply with the Act, and Tyson's increased economic gain from non-compliance. We also direct the court to grant ASLF's request for attorney's fees and costs, keeping in mind that ASLF is to be considered a "prevailing party" within the meaning of the Clean Water Act. The court is directed to make the above determinations as set forth in this limited remand within 120 days from the issuance of this opinion.
86
REVERSED and REMANDED.
1
The permit in effect through November 1987 regulated the following pollutants among others: BOD5 (Biochemical Oxygen Demand--5 day), TSS (Total Suspended Solids), FEC (fecal coliform), and O & G (oil and grease). As of December 1987, NH3N (Ammonia Nitrogen) and TKN (Total Kjeldahl Nitrogen) have also been regulated
2
Michael Terry, the current wastewater treatment manager at Tyson, stated that the number of chickens processed per day approximately doubled after Tyson's acquisition of the plant. However, Mark Waller, former plant manager of the facility, stated that the increase in shifts did not increase total production as measured in weekly production of finished pounds
3
ASLF informed Tyson that its lawsuit would allege that Tyson had violated and continued to violate the effluent standards or limitations under the Clean Water Act by not complying with its NPDES permit. In its notice letter, ASLF pointed to alleged violations of permit limitations on BOD5, TSS, FEC, and O & G
4
The purpose of giving notice to federal and state authorities is to allow them to commence their own enforcement actions. If an enforcement action is commenced by either the State or the Administrator within the 60 day period, the citizen suit is barred. 33 U.S.C. Sec. 1365(b)(1)(B)
5
Penalties paid as a result of a Sec. 1365 citizen suit do not go to the plaintiff who instituted the suit, but rather are paid into the United States Treasury. This is because citizen plaintiffs who bring actions under Sec. 1365 are suing as private attorneys general seeking enforcement of a federal law. See Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 53, 108 S.Ct. 376, 379, 98 L.Ed.2d 306 (1987); Sierra Club, Inc. v. Electronic Controls Design, Inc., 703 F.Supp. 875 (D.Or.1989); Public Interest Research Group of New Jersey, Inc. v. Struthers-Dunn, Inc., Civ.A. No. 87-1773 (D.N.J. Aug. 16, 1988) (1988 WL 147639)
6
Gwaltney held that in order to invoke jurisdiction under Sec. 505 of the Clean Water Act, a plaintiff need only allege "a state of either continuous or intermittent violation--that is, a reasonable likelihood that a past polluter will continue to pollute in the future." 484 U.S. at 57, 108 S.Ct. at 381. The district court found that ASLF's amended complaint was adequate to invoke jurisdiction under Gwaltney. 682 F.Supp. at 1190
7
On July 7, 1988, the United States was granted leave to participate as amicus curiae and filed a brief in district court opposing dismissal. The United States has also filed an amicus curiae brief before this court
8
ASLF does not appear to argue that Tyson should be held responsible for the permit violations of Spring Valley
9
The NPDES permit issued to Tyson provides daily maximum and monthly average limitations on the maximum amount or concentration of the pollutants discharged by the plant. For discussion of the difference between daily and monthly violations, see Part V.A.2 below
10
Gwaltney argued unsuccessfully before the district court and court of appeals that the Fourth Circuit should adopt the analysis of the Fifth Circuit in Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392, 395 (5th Cir.1985) which held that "a complaint brought under [Sec. 505] must allege a violation occurring at the time the complaint is filed."
11
All cases cited to by the Court involved prayers for injunctive relief under various antitrust laws. Thus, the discussion of mootness in these cases did not focus on damages
12
Plaintiffs may also request injunctive relief and penalties if they show a "continuing likelihood of a recurrence in intermittent or sporadic violations." Gwaltney, 844 F.2d 170, 172 (4th Cir.1988)
13
The United States argues amicus curiae that ASLF's claim for injunctive relief is not moot because as long as Tyson continues to discharge wastewater from its Blountsville plant there remains the possibility that it may discharge pollutants in violation of its NPDES permit. We reject the government's suggestion that Tyson should only escape the imposition of an injunction if it ceases discharges altogether. The law does not require a defendant to show that there is no conceivable chance that a future violation will occur, but only that "there is no reasonable expectation that the wrong will be repeated." United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953)
14
For example, the court refers to the district court's finding that "Gwaltney was guilty of an ongoing violation at the time suit was filed." 890 F.2d at 697
15
A concentration on the time the complaint was filed is evident throughout the opinions construing the Supreme Court's decision in Gwaltney. See Gwaltney, 844 F.2d at 172 (important question for district court to consider is whether the risk of defendant's continued violation had been completely eradicated when citizen-plaintiffs filed suit). Likewise, when the court in Sierra Club v. Union Oil Company of California noted that the Fourth Circuit "linked proof of ongoing violations to the Supreme Court's discussion of mootness in Gwaltney " it obviously understood "ongoing violations" as referring to the defendant's conduct at the time the citizen-plaintiffs filed suit. 853 F.2d 667, 671 (9th Cir.1988). In Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109 (4th Cir.1988), the court also assumed that proof of violations at the time the complaint was filed was sufficient basis for relief under Gwaltney. The court stated that "[b]ecause we conclude that Simkins' violations continued past the date Sierra Club filed its complaint, we do not reach the issue of whether they were intermittent or episodic violations which did not cease to be continuous within the meaning of Gwaltney." Id. at 1115
16
Because we find that the court erred in holding that ASLF's request for civil penalties was moot, we do not rule on the question of whether the district court abused its discretion in staying proceedings to allow Tyson to come into compliance with the Clean Water Act
17
The Monsanto court stated that:
Each violation of any express limitation in the permit may, of course, be treated as a separate violation for the purposes of assessing a penalty. Thus, if on a particular day, based on samples tested, a computation was made that established an excessive TSS discharge and an excessive oil and grease discharge, a penalty of up to $10,000 could be imposed on each of the excessive discharges, or a total of $20,000 for that day.
CIV. A. No. 83-2040, 1988 WL 156691.
18
For a discussion of the EPA's Penalty Policy see note 23 below
19
In addition, the amended statute also states: "For purposes of this subsection, a single operational upset which leads to simultaneous violations of more than one pollutant parameter shall be treated as a single violation." 33 U.S.C. Sec. 1319(d). The necessity of spelling out this exception implies that the rule is to treat violations of different pollutant parameters as distinct violations
"Upset" is a term of art referring to an exceptional incident and does not include noncompliance due to improperly designed or inadequate treatment facilities. 40 C.F.R. Sec. 122.41(n)(1) (1988).
20
For purposes of discussion, a violation of the daily average will be referred to as a "monthly violation" to differentiate it from a "daily violation" which refers to a violation of a daily maximum
21
As the amount of discharge allowed under the daily average limitations is in general substantially less than the daily maximum limitations, frequent discharges close to the daily maximum would probably result in a violation of a monthly limitation
22
In addition, if a polluter violates the monthly average for both pollutant A and pollutant B, there is no bar to a maximum fine of $10,000 (or of $25,000) times the number of days in the month for discharge of each pollutant
23
In the 1970's, the EPA developed a "Penalty Policy for Civil Settlement Negotiations" containing a fairly involved "calculation methodology" for determining settlement penalties. It appears that Congress took note of the factors listed in the policy when it amended 33 U.S.C. Sec. 1319(d) to require courts to take account of certain specified factors when determining civil penalty awards
Before the February 1987 amendment, some courts relied on the methodology of the Penalty Policy in determining appropriate penalties. See, e.g. Gwaltney, 611 F.Supp. at 1556 (finding EPA penalty policy "a helpful analytical framework for arriving at a civil penalty, particularly given the lack of congressional guidance."). More recently, courts have either used the penalty policy as an additional resource in calculating penalties, see PIRG v. Powell Duffryn Terminals, Inc., 720 F.Supp. 1158, 1166 (D.N.J.1989) (in applying statutory penalty factors set forth in the Clean Water Act, court will consider the EPA's Penalty Policy) or have decided not to rely on the policy. See Monsanto, Civ.A No. 83-2040, 1988 WL 156691 (finding EPA methodology for settlement of civil penalties inapplicable to judicial determination of penalties after trial); Proffitt v. Lower Bucks County Joint Municipal Authority, CIV.A. No. 86-7220 (E.D.Pa. May 12, 1988) (1988 WL 48552) (declining to base findings regarding penalty on EPA policy). | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1540326/ | 379 Pa. Super. 602 (1988)
550 A.2d 1011
COMMONWEALTH of Pennsylvania, Appellant,
v.
Kenneth W. GREEN.
Supreme Court of Pennsylvania.
Argued September 14, 1988.
Filed November 28, 1988.
*603 Richard W. Webb, District Attorney, Palmerton, for Com., appellant.
George T. Dydynsky, Palmerton, for appellee.
Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
DEL SOLE, Judge:
Appellant, Commonwealth, takes this appeal seeking to have reversed a trial court order which granted Appellee's Motion for New Trial upon finding that his counsel was "entangled in a conflict of interest." Trial Court Opinion at 1. Finding that the Commonwealth has failed to present any claim meriting the relief requested, we affirm the trial court order.
The underlying controversy centers upon the fact that Appellee, who was charged with crimes arising from the burglary of a local club, was represented by a member of the Public Defender's Office of Carbon County. Appellant's two co-defendant's were also represented by members of the Carbon County Public Defender's Office. Prior to the commencement of Appellee's trial, co-defendant Trego pled guilty and co-defendant Neyer was acquitted of charges relating to the burglary. During his trial, Appellant *604 denied any involvement or knowledge concerning the burglary; however, Trego, testifying for the Commonwealth, stated that Appellant participated in the planning and commission of the burglary. When Appellant voiced his concern about a possible conflict of interest post-trial, the trial court reviewed his claim and awarded him a new trial.
The trial court's decision to grant Appellee's Motion for New Trial was based upon a case which it found to be "factually identical, in all pertinent respects," Commonwealth v. Evans, 306 Pa.Super. 25, 451 A.2d 1373 (1982). Trial Court Opinion at 6. In Evans three co-defendants were each represented by different members of the Beaver County Public Defender's Office. The Evans court found that since there existed dual representation and since one of the co-defendants testified against the appellant, who denied any involvement in the robbery, a conflict of interest existed requiring the award of a new trial. The court concluded that under either the "actual harm" standard utilized in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980) or under the less stringent "potential harm" standard delineated in Commonwealth v. Breaker, 456 Pa. 341, 318 A.2d 354 (1974), the appellant was entitled to a new trial. Commonwealth v. Evans, supra, 306 Pa.Superior Ct. at 32 n. 1, 451 A.2d at 1376 n. 1.
The Commonwealth argued before the trial court that the Public Defender's Office of Carbon County should not be considered one law firm and, in the alternative, regardless of whether there was dual representation, Appellee was required to show that "actual" as opposed to "potential" harm existed. The Commonwealth claimed that the distinction between requiring proof of actual as opposed to potential for harm in dual representation cases was dependent upon whether the defendant raised the issue pre-trial or post-trial. It was submitted that where the issue is not raised pre-trial, as in this case, actual harm must have occurred to warrant relief. The Commonwealth contrasted the procedural posture of Cuyler v. Sullivan, supra, which *605 required actual harm to be shown when the issue was raised post-trial, with Pennsylvania cases where the potential for harm standard was applied. See: Commonwealth v. Pinhas, 496 Pa. 210, 436 A.2d 618 (1981); In the Interest of Saladin, 359 Pa.Super. 326, 518 A.2d 1258 (1986). In considering the Commonwealth's arguments the trial court ruled that the independent nature of the members of the Carbon County Public Defender's office did not alter it's status as a single law firm. It further found, citing Commonwealth v. Evans, supra, that regardless which standard was applied, both potential and actual harm could be found in this case since the Public Defender's Office represented co-defendants whose versions of the incident were at odds.
In the present appeal, the Commonwealth submits that no actual harm occurred in this case. However, the Commonwealth does not argue, as it did before the trial court, that the actual harm, as opposed to the possible harm standard should be applied to the facts of this case. Instead, as stated by the Commonwealth: "The key question to be answered, however, is whether or not co-defendants were represented by members of the same `law firm.'" Appellant's Brief at 8. In support of this single claim, the Commonwealth details the workings of the Carbon County Public Defender's office. It indicates that its members work independently and do not share facilities, staff or files. They each maintain a private office and utilize their own private secretarial help. The County is billed for reimbursement. The Commonwealth contrasts this practice with that found in Philadelphia County where, it submits, all the characteristics of a law firm are present including shared expenses, facilities, office staff and a common interest in the outcome of cases. The distinctions between the operations of the Philadelphia and Carbon County Public Defenders' Office, the Commonwealth argues, is justification for not applying the Supreme Court decision in Commonwealth v. Westbrook, 484 Pa. 534, 400 A.2d 160 (1979).
The Supreme Court in Westbrook cited to an earlier case in which it held "members of the public defender's office *606 would be considered members of the `same firm' for purposes of presenting a claim of ineffective assistance of trial counsel". Id., 484 Pa. at 539, 400 A.2d 162 (citing to Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974)). Finding that the Public Defender's Association of Philadelphia constituted a law firm, the court held that two members of the same firm are prohibited from representing multiple clients with inconsistent defenses. Id. The Supreme Court did not undertake an examination of the workings of the particular Public Defender's office at issue in Westbrook or Via. And the holding of Westbrook was applied in Commonwealth v. Evans, supra to a situation involving the Public Defender's Office of Beaver County.
After examining Appellant's claim in view of the applicable cases we agree with the trial court that "Westbrook and its progeny provide us with no authority to undertake a distinct inquiry into the structure of any particular Public Defender's Office to determine whether or not it is truly a `law firm' for conflicts of interest analysis." Trial Court Opinion at 7. We find support for the trial court's conclusion that the Public Defender's Office of Carbon County is, by its very nature, a law firm; accordingly, we affirm its order awarding Appellee a new trial.
ORDER AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/719635/ | 85 F.3d 1251
UNITED STATES of America, Plaintiff-Appellee,v.Stephen L. SHLATER, Defendant-Appellant.
No. 95-1964.
United States Court of Appeals,Seventh Circuit.
Argued Jan. 11, 1996.Decided June 5, 1996.
David H. Miller, Andrew Baker (argued), Office of the U.S. Atty., Fort Wayne, IN, for plaintiff-appellee.
Harold W. Myers, Wyss, McNellis, Riebenack & Myers, Fort Wayne, IN, Kenneth M. Waterman (argued), Fort Wayne, IN, for defendant-appellant.
Before ESCHBACH, COFFEY and EVANS, Circuit Judges.
COFFEY, Circuit Judge.
1
On December 15, 1993, a federal grand jury indicted Stephen L. Shlater for extortion, in violation of 18 U.S.C. § 1951. Shlater entered a plea of not guilty and was found guilty of the crime charged before a jury. On April 13, 1995, the district court sentenced Shlater to 48 months' imprisonment to be followed by three years of supervised release and 150 hours of community service. The court also imposed a $50 special assessment fee and mandated mental health counseling. Shlater appeals his conviction and sentence. We AFFIRM.
I. BACKGROUND
2
On November 20, 1993, employees at Scott's Food Store in the Pine Valley Shopping Mall of Fort Wayne, Indiana received a typewritten extortion note. The note contained a threat to detonate explosive devices planted at other Scott's stores unless $150,000 was delivered to the extortionists.1 The note instructed that two employees of Scott's Food Stores must bring $150,000 to a local gas station at 9 PM that evening and wait at a designated pay phone there for further instructions. The employees notified the Allen County Police Department. The store was evacuated and several managers and employees were placed in protective custody at a nearby hotel.
3
An undercover police team (consisting of a male and female officer, Nicholas Litwinko and Michele Waldron, posing as the store manager and female employee required by the note) arrived at the gas station in an unmarked van at 9 PM, the time specified in the note, and waited at the designated pay phone. A third officer, Brian Gore, hid covertly in the van. The officers carried a duffel bag stuffed with Scott's coupons to represent the money. The undercover officers received a call at the pay phone; the caller instructed them to proceed to another pay phone where they would find a written note. The officers followed the caller's instructions and found the note, directing them to another note located in a local state park, which led them in turn to a secluded lane in the woods where they were supposed to drop off the money.
4
Officer Waldron dropped off the duffel bag at the specified location, while Officer Gore slipped out of the vehicle and concealed himself nearby. Waldron and Litwinko drove off in the van; thirty seconds later an individual dressed in army fatigues and a face mask emerged from the woods and picked up the duffel bag. Announcing that he was a police officer, Officer Gore stepped forward from his hiding place and confronted the individual who immediately dropped the bag and raised his hands in the air and said: "Don't hurt me. They're making me do this."
5
Officer Gore instructed the individual, who turned out to be Stephen Shlater, the defendant, to lie prone on the ground. Shlater complied. As Officer Gore handcuffed him, the defendant repeatedly stated that "they're making me do this." Shlater then explained to Officer Gore that a letter in the dresser drawer of his bedroom could prove his innocence and invited the officer to search his home and find it. Officer Gore called his depot for back-up units, and they arrived shortly thereafter.
6
The officers took Shlater in custody and conveyed him to the local police station. From this point on, all interactions between the police and Shlater were recorded on videotape.2 The police removed Shlater's handcuffs and confirmed his identification and home address. Before asking Shlater any questions regarding the events of the evening, Officer Roy Stevens inquired of Shlater whether he understood English and was literate. The officer then explained to Shlater his constitutional rights, including the right to remain silent and the right to have a lawyer present while being interviewed or to terminate the interview at any time. Shlater read over a form describing these rights and signed it, expressing that he understood his rights. At this time, Shlater stated that he wished to consult with an attorney before answering any further questions. The officers stopped interrogating Shlater about the events of the evening.
7
The officers then reminded Shlater of his previous requests of Officer Gore, inviting the police to search his home and find the exculpatory note. At that point, the defendant immediately told the officers, "That's no problem whatsoever," but warned the officers to take care of his dog that was locked in the garage. However, before allowing Shlater to consent to the search, Officer Stevens made sure that Shlater understood his constitutional rights. He explained to Shlater that the police could not search his home without a search warrant unless Shlater consented to the search. He also explained to Shlater that he had the right to refuse to consent to the search and had the right to consult with an attorney before granting the officers consent to search. Shlater stated that he understood his rights and voluntarily consented to the search of his home, repeating that "I don't have any problem with searching it." Shlater also signed a written form, confirming that his consent was freely given and authorizing the police to remove any items of evidence that the officers deemed relevant to the investigation. Furthermore, while at the police station, Shlater asked the officers to unplug his coffee pot which he had accidently left on that evening, further reflecting Shlater's voluntary consent (or even encouragement) to the search.
8
Shlater willingly accompanied the police officers to his home where they conducted a search of his dwelling in his presence. At no time did the defendant object to the officers' presence or to the search. The officers took a number of items from the house, including a typewriter, the coercive letter the defendant told them he had received, and a crumpled draft of a note similar to that found at Scott's Food Stores that evening.3
9
On December 15, 1994, a federal grand jury indicted Shlater for extortion in violation of 18 U.S.C. § 1951. On December 21, Shlater's attorney filed a motion for judicial determination of the defendant's mental competency to stand trial, pursuant to 18 U.S.C. § 4241. The district court granted the motion and deferred Shlater's arraignment pending the results of a psychiatric examination. Dr. Jay Fawver, a local psychiatrist, performed the examination and submitted a sealed report to the court. After a hearing in March 1994, the district court determined that Shlater was mentally competent to stand trial. Shlater was then arraigned and filed a plea of not guilty, informing the court and the government that he intended to rely upon the defense of insanity.
10
The government filed a motion for a pre-trial psychiatric examination pursuant to 18 U.S.C. § 4242, which was granted by the district court. In September 1994, Shlater was transferred to Federal Correctional Institution at Butner, North Carolina for evaluation by federal psychiatrists. In October 1994, Shlater filed a motion to suppress the evidence found at Shlater's home. After an evidentiary hearing in December 1994, the district court denied Shlater's suppression motion, ruling that Shlater had voluntarily consented to the search of his home. A jury trial commenced in January of 1995.
11
At trial, Shlater entered a plea of not guilty by reason of insanity.4 To that end, Shlater's father and brother testified that Shlater had acted strangely at Thanksgiving three weeks before the extortion incident, appearing preoccupied and talking to himself. Dr. Larry M. Davis, a psychiatrist, testified on behalf of Shlater as an expert witness under Federal Rule of Evidence 702. Dr. Davis stated that in his opinion Shlater, on the date of the extortion, was suffering from a "severe" delusional disorder that affected his ability to distinguish right from wrong.
12
Shlater also sought to admit the testimony of a second psychiatrist, Dr. Fawver.5 The trial court held a hearing outside the presence of the jury to determine the admissibility of Dr. Fawver's testimony. During the hearing, Dr. Fawver testified that Shlater suffered from a "mild to moderate" delusional disorder and had some paranoid personality traits. Dr. Fawver went on to state that Shlater "very much understood what he was doing at the time was wrong, so by definition he wasn't insane as I understand it as a psychiatrist." The trial judge excluded Dr. Fawver's testimony on the grounds that it was immaterial to Shlater's defense of insanity because the statutory definition of insanity required a "severe" mental condition that affects the individual's capacity to distinguish right from wrong; Dr. Fawver, however, testified that the defendant suffered only a mild to moderate mental disorder and was capable of distinguishing right from wrong.
13
Edward Landis, a clinical psychologist, testified for the government.6 Landis examined Shlater at the Federal Correctional Institution in Butner, North Carolina. Landis stated that in his belief, Shlater did not suffer from a psychological illness or delusional disorder. Dr. Ralph Newman, staff psychiatrist at the Federal Correctional Institution, also testified that he personally evaluated Shlater and determined that Shlater was not suffering from a mental disorder.
14
The jury rejected the defendant's plea of not guilty by reason of insanity and found him guilty as charged.
II. DISCUSSION
A. Seizure of the Letter
15
Shlater argues that the district court erred in denying his motion to suppress the evidence discovered by the police in his home. According to Shlater, the police obtained his consent to search after he had affirmatively requested an attorney pursuant to his Fifth Amendment rights under Miranda. The district court, relying on the videotape as well as the testimony of the officers at the scene, ruled that Shlater's consent to the search of his home was voluntarily and freely given and did not violate any of Shlater's constitutional rights.
16
"Consent searches are valid only if the consent was freely and voluntarily given. The question of whether a consent was voluntary, as opposed to the product of duress or coercion, is a question of fact from the totality of the circumstances." United States v. Duran, 957 F.2d 499, 502 (7th Cir.1992). "We will not reverse a district court's finding on this issue unless clearly erroneous." Id.
17
In Miranda v. Arizona, the Supreme Court held that before the police can initiate custodial interrogation of a defendant, they must advise the defendant of certain rights, including but not limited to the right to remain silent and the right to counsel. Once an accused asks to be represented by counsel he "is not subject to further interrogation by the authorities until counsel has been made available to him...." Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981) (emphasis added). However, Miranda only applies to the "custodial interrogation" of a defendant. In Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980), the Supreme Court defined "interrogation" to include "any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect."
18
Shlater argues that the police request to search was reasonably likely to elicit an incriminating response because the police believed incriminating evidence could be found at Shlater's home. We disagree. First, the defendant told the police at the time of his apprehension that he had been coerced by others and that a letter in his dresser drawer at home would exonerate him. Brian Gore, the arresting officer, testified that Shlater repeated to him several times at the scene of his arrest that "they made me do it" and told him of the specific location where the evidence of the "others" could be found. Second and more importantly, we have held that a consent to search is not an interrogation within the meaning of Miranda. United States v. Saadeh, 61 F.3d 510, 515 (7th Cir.1995); see also United States v. Smith, 3 F.3d 1088, 1098 (7th Cir.1993) ("We have held that a consent to search is not a self-incriminating statement, and therefore, a request to search does not amount to interrogation. This view comports with the view taken by every court of appeals to have addressed the issue."). Thus we hold that the consent to search was not a custodial interrogation triggering the previously invoked Miranda right to counsel.
19
Shlater accompanied the police to his home and at no time did he make any objection to the search. Indeed, it is clear from the videotape that the defendant specifically understood that he had a right to consult counsel concerning the search of his home, but he waived that right (both orally and in writing) and consented to the search. Even though Shlater stated that he wished to have counsel present for any interrogation regarding the specific events of the evening, the law provides that a request for counsel during the interrogation does not apply to the subsequent request for a consent to search. United States v. LaGrone, 43 F.3d 332, 336 (7th Cir.1994) ("[t]he Supreme Court has held that a defendant's invocation of his right to counsel for one purpose is not automatically an invocation of his right to counsel for other purposes.") (citing McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)). Having had his right to counsel concerning the search of his home explained to him, the record makes clear that the defendant waived that right and encouraged the police to search his home. See United States v. Baker, 78 F.3d 1241, 1245 (7th Cir.1996) (noting that a consent to search is voluntary and constitutional even where a defendant is not told of his right to counsel).
B. Exclusion of Psychiatrist's Testimony
20
The defendant contends that the district court abused its discretion in excluding the testimony of Dr. Fawver. According to Shlater, Dr. Fawver's proffered testimony that the defendant Shlater suffered from a mild to moderate delusional disorder was relevant to the issue of the defendant's insanity.
21
Rule 702 of the Federal Rules of Evidence provides, with emphasis added:
22
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
23
However, not all expert testimony is admissible; the evidence must be relevant to a fact in issue, and the district court retains the discretion to make that determination. United States v. Sinclair, 74 F.3d 753, 758 (7th Cir.1996); United States v. Anderson, 61 F.3d 1290, 1297 (7th Cir.1995). This rule applies to the relevance of expert testimony concerning a defendant's sanity. United States v. Davis, 772 F.2d 1339, 1344 (7th Cir.1985).
24
"An appellate reversal of a decision to limit an expert's testimony requires more than bare arguments that the expert is qualified and his testimony is relevant. Indeed the abuse of discretion standard requires the challenging party to show that 'no reasonable person would have agreed with the district court['s ruling].' " Matter of Sheridan, 57 F.3d 627, 635 (7th Cir.1995) (quoting Holmes v. Elgin, Joliet & Eastern R. Co., 18 F.3d 1393, 1397 (7th Cir.1994)).
25
We have described the issue of insanity as follows:
26
Insanity, for our purposes, is a legal term. We do not ask whether [the defendant] is insane by psychiatric or psychological standards. Rather we ask only whether [the defendant] has established insanity as defined by the Legal Insanity Defense Reform Act (the "Act"). 18 U.S.C. § 17. Under that Act, [the defendant] can establish the affirmative defense of legal insanity only if he proves two facts by clear and convincing evidence. 18 U.S.C. § 17. First, [the defendant] must prove that he suffered from a severe mental disease or defect. Proof that he had a mental disorder is not enough. The Act requires that the mental disorder be severe. United States v. Salava, 978 F.2d 320, 322 (7th Cir.1992). Second, if [the defendant] proves this first element, the Act requires that he prove that his severe mental disorder rendered him unable at the time of the crime to appreciate the nature and quality or the wrongfulness of his acts. Id.
27
United States v. Reed, 997 F.2d 332, 334 (7th Cir.1993).
28
In Shlater's case, the fact in issue was whether the defendant, at the time of the extortion incident, suffered from a severe mental disorder that affected his ability to distinguish right from wrong. Dr. Fawver testified that Shlater suffered a mild to moderate personality disorder. The district court excluded the testimony because the federal statute and caselaw defining insanity require that a defendant suffer from a "severe" mental disorder. The court concluded that it "would not permit a medical opinion ... that didn't fall within the parameters of the statute." Although Dr. Fawver's testimony that Shlater suffered a mild to moderate mental disorder was relevant in a general sense to the defendant's mental state, the Legal Insanity Defense Reform Act is clear that the defense of insanity requires that the defendant suffer a "severe" mental disorder. See Reed, 997 F.2d at 334. Had Dr. Fawver testified, his testimony would have served to confuse the jury as to the requisite mental state of severe mental disorder required under the federal statute for criminal insanity. The trial judge did allow the defendant to present a psychiatrist, Dr. Davis, who testified that Shlater had a severe mental disorder; thus, the trial judge did not clearly abuse his discretion in excluding the testimony of Dr. Fawver.
C. Sentencing
29
The district court calculated Shlater's guideline imprisonment range to be 41 to 51 months. The judge sentenced Shlater to 48 months' imprisonment. Shlater now argues that the sentencing court erred in failing to depart downwards from the guideline range to account for Shlater's exemplary military and employment record.
30
We have held that under guidelines section 5H1.6, "a district court may depart from an applicable guidelines range once it finds that a defendant's family ties and responsibilities or community ties are so unusual that they may be characterized as extraordinary." United States v. Canoy, 38 F.3d 893, 906 (7th Cir.1994). A major in the Indiana National Guard Reserves, Shlater argues that his twenty-five year military record and twenty-eight year employment record are extraordinary, warranting departure.
31
By statutory command our review of sentencing is limited to cases in which a sentence was (1) "imposed in violation of law," (2) "imposed as a result of an incorrect application of the sentencing guidelines," (3) "outside the applicable guideline range," or (4) "unreasonable." 18 U.S.C. § 3742(e), (f); United States v. Prevatte, 66 F.3d 840, 843 (7th Cir.1995). As a consequence, "we lack jurisdiction to review a district court's discretionary rejection of a downward departure from a sentence within the applicable guideline range." United States v. Yahne, 64 F.3d 1091, 1094 (7th Cir.1995). See United States v. Blackwell, 49 F.3d 1232, 1241 (7th Cir.1995); United States v. Burrows, 48 F.3d 1011, 1019 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 2632, 132 L.Ed.2d 872 (1995). "However, if the district court's denial of a downward departure is based on a conclusion that it lacked authority to depart, that decision is a legal conclusion over which we have appellate jurisdiction." Yahne, 64 F.3d at 1094 (citing Canoy, 38 F.3d at 903).
32
In Shlater's case, his sentence was within the applicable guideline range. Thus, we are without jurisdiction to review Shlater's sentence. See United States v. Solis, 923 F.2d 548, 551 (7th Cir.1991).
III. CONCLUSION
33
The conviction and sentence of Stephen Shlater are
34
AFFIRMED.
1
The note, in its entirety, reads:
Scotts,
Three explosive devices have been located at various locations of your employees or relatives of your upper management. These are not necessarily employees from this store. We picked different stores in your operational area. We want 150,000 in 50's, 20's, and 10's. You will have the manager of this store and one of his female employees deliver the money to us in a large gym bag. They need to be at the Speedway gas station, located at Dupont and I-69 by 9:00 pm tonite. They will wait at the outside phone for further instructions. Now, we have photographed your employees, so no tricks. They will be observed during different points of the delivery. We insure that no harm will come to them as long as instructions are followed. Make sure that they have a flashlight so that they can find materials along the way. Now, Mr. Wright, we hope that you understand that any attempts by you to prevent the payment, will result in certain loss of life. This is not a threat, its [sic] a promise. Just simply follow instructions, and we guarantee no one will be hurt. We have also prepared statements to the news media, in case you decide to do something stupid. We are very well armed in case of intervention by the authorities. Please understand that we will detonate, and use you as a future example if we have to. After the money is delivered we will remove the explosive devices, if no attempts are made to obstruct us. Remember have your people wait at the phone until we contact them. Make sure they do not have any communication devices in [the] vehicle.
2
A copy of the videotape is part of the record on appeal
3
An FBI laboratory determined that the typewriter used to type the extortion note delivered to Scott's was identical to the typewriter used to type the threatening letter allegedly received by Shlater. Shlater's allegedly threatening letter provides:
Mr. Shlater, We need you to collect something for us. You will do what we request or we will cause harm to your son's family on Thaxton Street. Be at the public phone located at Marathon Station at Dupont and Leo Road at 6:00 p.m. tonite. We will give you your instructions at that time. Do anything stupid and you put your family in great danger.
4
Title 18 U.S.C. § 17(a) provides, with emphasis added:
It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.
5
Dr. Fawver was originally appointed by the district court to examine Shlater in order to determine whether he was mentally competent to stand trial
6
For purposes of the insanity defense, the defendant's mental condition may be evaluated by either psychiatric or psychological examination. See 18 U.S.C. § 4242(a) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2694696/ | [Cite as Rosenshine v. Med. College Hosp., 2012-Ohio-6366.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
DAWN ROSENSHINE, Exec.
Plaintiff
v.
MEDICAL COLLEGE HOSPITALS
Defendant
Case No. 1998-04701
Magistrate Holly True Shaver
DECISION OF THE MAGISTRATE
{¶ 1} On June 26, 2012, the Tenth District Court of Appeals issued a decision
that reversed this court’s prior judgment in favor of defendant, rendered judgment in
favor of plaintiff as to the issue of liability, and remanded the matter to this court for
further proceedings on the issue of damages. On November 1, 2012, this court heard
oral argument and accepted additional evidence with regard to the issue of damages.
{¶ 2} On May 30, 1995, Theresa Dougherty was admitted to defendant’s hospital
for a cardiac catheterization.1 One of the procedures that Theresa underwent during
that visit was a chest x-ray to exclude the possibility of myocardial infarction. The x-ray
was taken and a report was prepared by a radiologist, who noted a “right upper lung
mass, measuring 2.5 centimeters.” On June 2, 1995, Theresa was discharged from
defendant’s hospital, but the discharge summary did not refer to the x-ray, and no one
informed Theresa of the results. In November 1996, Theresa was diagnosed with
1
Plaintiff’s decedent, Theresa Dougherty, shall be referred to as Theresa throughout this decision.
Plaintiff, Dawn Rosenshine, is Theresa’s daughter and the executor of Theresa’s estate.
Case No. 1998-04701 -2- DECISION
cancer in both of her lungs, which had spread to her brain and was inoperable. Theresa
died on November 3, 1997.
{¶ 3} In its decision, the Tenth District Court of Appeals held that it was against
the manifest weight of the evidence for this court to conclude that the failure to diagnose
the mass in Theresa’s right lung was not the proximate cause of her death. In so
holding, the Court of Appeals found most persuasive Dr. Robert J. Steele’s opinion that
Theresa’s “prognosis in May 1995, had she been diagnosed and treated, was 70
percent survival * * *.” Rosenshine v. Medical College Hosps., 10th Dist. No. 11AP-374,
2012-Ohio-2864, ¶ 18. Accordingly, the court makes the following determination.
{¶ 4} Plaintiff’s claims sound in survivorship and wrongful death on behalf of the
heirs and next of kin of Theresa. Pursuant to R.C. 2125.02(A)(2), the court “may award
the reasonable funeral and burial expenses incurred as a result of the wrongful death.”
Plaintiff’s Exhibits 5 and 6 show that plaintiff incurred funeral and burial expenses for
Theresa in the amounts of $6,254.38 and $4,464.19, respectively, for a total of
$10,718.57, which shall be awarded. The parties agree that aside from the funeral and
burial expenses, there is no claim for economic damages in this matter.
{¶ 5} Theresa was born on March 3, 1939, and was 57 years old when she died.
Theresa is survived by her three adult children, Dawn Rosenshine, Robert Dougherty,
Jr., and Vincent Dougherty, and Vincent’s daughter, Alyssa, who was Theresa’s only
grandchild at the time of her death. Theresa’s children provided individual written
statements regarding how their mother’s death has affected them, and Dawn’s
deposition was submitted as well. (Plaintiff’s Exhibits 2-4, 21.)
{¶ 6} Dawn testified that Theresa was diagnosed with lung cancer two weeks
after Robert Dougherty, Sr. (Theresa’s husband) died of colon cancer in November
1996. Even though Theresa’s cancer was inoperable when she was made aware of its
diagnosis, Theresa chose to undergo radiation therapy with the hope that it would
extend her life. After she concluded radiation treatments in Ohio, Theresa went to live
Case No. 1998-04701 -3- DECISION
in New York City with Dawn and Dawn’s husband. Theresa died in Dawn’s home,
under hospice care. The evidence shows that Theresa was not informed of the
presence of a tumor in her lung for approximately one year, and for approximately
another year, Theresa lived with the knowledge that her medical treatment had been
delayed, resulting in inoperable cancer that had spread to her brain. According to
Dawn, Theresa initiated this lawsuit because she was very upset that she was not
informed about the tumor when it was first detected on the x-ray, and she did not want
the same result to happen to another patient. Theresa urged Dawn to pursue the claim
as executor.
{¶ 7} Dawn testified that her mother was in considerable pain during the last few
months of her life, and that she was prescribed morphine, along with other pain
medication from the summer of 1997 until her death. Dawn sought counseling services
from her rabbi and a priest, and she attended a support group to cope with the grief she
sustained as a result of her mother’s death.
{¶ 8} Robert Dougherty, Jr., was living in Connecticut when Theresa’s cancer
was diagnosed and he visited her frequently during the time that she lived in New York
City. Vincent was living in Ohio when Theresa was diagnosed with cancer. Prior to her
diagnosis, both Theresa and her husband had been primary care givers to Vincent’s
daughter Alyssa, who was born in December 1990. From birth, Alyssa lived in two
places: with Theresa and her husband approximately four days per week, and with her
other grandmother for the other three days. However, in October 1996, Alyssa went to
live with her other grandmother because Theresa was caring for her dying husband.
Thereafter, Alyssa continued to visit Theresa but did not return to live with her. At the
time of Theresa’s death, Dawn, Robert Jr., and Vincent were all adult children, and
Alyssa was almost 7 years old.
{¶ 9} Defendant argues that Theresa suffered from multiple health problems
aside from the undiagnosed tumor, which would have significantly shortened her life
Case No. 1998-04701 -4- DECISION
expectancy. Specifically, Theresa had a history of cardiac problems and was a life-long
cigarette smoker. Defendant also seeks a determination from this court that Theresa
was comparatively negligent in that she began to smoke cigarettes when she was 13
years old and continued to smoke until her death, despite being aware of the risk of
death from smoking. The court finds that inasmuch as the Court of Appeals rendered
judgment in favor of plaintiff without consideration of defendant’s comparative
negligence argument, this court is confined to the issue of damages.2 However,
Theresa’s state of health is a factor that this court shall consider in awarding damages.
Pursuant to R.C. 2125.02(A)(3)(b)(i), the “court may consider all factors existing at the
time of the decedent’s death that are relevant to a determination of the damages
suffered by reason of the wrongful death.” For example, “it is proper to take into
consideration such factors, varying in individual cases, as the victim’s life expectancy,
character, health, habits, talents, prospects, * * * needs of and contributions to [her
beneficiaries] and current returns on investments.” Sutfin v. Burton, 91 Ohio App. 177,
193, (8th Dist. No.1951) citing 16 American Jurisprudence, 127, 160, “Death,” Sections
190 to 242.
{¶ 10} The parties have submitted the depositions of Joel Kahn, M.D., Elloise
Gard, M.D., and Robert Steele M.D., to be considered regarding Theresa’s estimated
life expectancy. Elloise Gard, M.D., board-certified in internal medicine, first treated
Theresa in December 1994. With regard to Theresa’s family medical history, Dr. Gard
testified that Theresa’s mother had breast cancer, Theresa’s father suffered a heart
attack at age 48, and two of Theresa’s sisters died of cancer. Theresa smoked one
pack of cigarettes per day for approximately 40 years. Dr. Gard advised Theresa to
stop smoking because smoking is known both to worsen heart disease and to cause
2
The court notes that defendant raised the issue of the comparative negligence of smoking in its
March 29, 2010 trial brief.
Case No. 1998-04701 -5- DECISION
cancer. Dr. Gard was also concerned about Theresa’s cholesterol level because it was
high for a person with known heart disease.
{¶ 11} Joel Kahn, M.D., a cardiologist, testified that at the age of 46, Theresa was
diagnosed with severe heart disease that required a triple bypass surgery that was
performed in 1985. Ten years later, Theresa was diagnosed with progressive angina.
The catheterization that she was admitted to defendant’s hospital for in May 1995
showed that she had lost one of her three bypass grafts. Based solely upon Theresa’s
cardiology issues, Dr. Kahn opined that her life expectancy would not exceed 10 years
past the date of her May 30, 1995 hospitalization. Dr. Kahn noted that a normal life
expectancy for a 56-year old woman would be an additional 20 to 25 years.
{¶ 12} Robert Steele M.D., board-certified in internal medicine and medical
oncology, opined that in May 1995, the lesion in Theresa’s right lung was a stage one
cancer, but that the nodes were negative and that there was no metastatic disease at
that time. Dr. Steele opined that when x-rays were taken of Theresa’s lungs in 1996,
she had cancerous tumors in both lungs and in her brain. Dr. Steele opined that the 2.5
centimeter mass in her right lung was most likely a different type of cancer from the
lesion in her left lung, and that it was more likely than not that Theresa suffered from
multiple, primary cancers rather than having suffered metastasis of the cancer in the
right lung to the left lung.
{¶ 13} Dr. Steele testified that if the cancer in Theresa’s right lung had been
timely diagnosed, she would have undergone a wedge resection of her right lung, and
she probably would not have undergone chemotherapy or radiation at that time. Dr.
Steele further testified that in 1996, Theresa would have most likely undergone a
second similar surgery to remove the cancer from her left lung.
{¶ 14} In the survival action, plaintiff seeks compensation for Theresa’s conscious
pain and suffering prior to her death. A survival action brought to recover for a
decedent’s own injuries before her death is independent from a wrongful death action
Case No. 1998-04701 -6- DECISION
seeking damages for the injuries that the decedent’s beneficiaries suffer as a result of
the death, even though the same nominal party prosecutes both actions. Peters v.
Columbus Steel Castings Co., 115 Ohio St.3d 134, 2007-Ohio-4787, ¶ 7.
{¶ 15} Defendant argues that even if the tumor in Theresa’s right lung had been
disclosed to her timely, she would have undergone a wedge resection of her right lung,
a painful procedure. However, Dr. Steele testified that if Theresa had undergone a
wedge resection of her right lung in June 1995, she may not have had to undergo
radiation therapy at that time. The court finds that Theresa endured pain and suffering
as a result of radiation therapy in 1996, and that her pain and suffering should not be
lessened despite the fact that she did not also undergo a wedge resection. The court
finds that Theresa suffered conscious pain and suffering as a result of the delayed
diagnosis of her cancer: specifically, Theresa sustained physical pain and suffering as a
result of undergoing radiation therapy, and severe mental anguish as a result of
knowing that her diagnosis of cancer in her right lung was delayed for approximately
one year. Based upon the conscious pain and suffering and severe mental anguish that
Theresa sustained prior to her death, $100,000 is recommended for the survivorship
claim.
{¶ 16} Turning to the damages associated with the wrongful death claim, the
applicable provisions of R.C. 2125.02(B) state that “[c]ompensatory damages may be
awarded in a civil action for wrongful death and may include damages for the following:
{¶ 17} “* * *
{¶ 18} “(3) Loss of the society of the decedent, including loss of companionship,
consortium, care, assistance, protection, advice, guidance, counsel, instruction, training,
and education, suffered by the surviving spouse, dependent children, parents, or next of
kin of the decedent;
{¶ 19} “ * * *
Case No. 1998-04701 -7- DECISION
{¶ 20} “(5) The mental anguish incurred by the surviving spouse, dependent
children, parents, or next of kin of the decedent.”
{¶ 21} Based upon the evidence submitted with regard to Theresa’s family history
of cancer and heart disease, and her own significant heart disease, the court finds
persuasive Dr. Kahn’s opinion that based solely upon Theresa’s cardiac issues, her life
expectancy would have been no more than ten years past May 1995. In addition, in
light of Dr. Steele’s testimony, the court finds that it is more likely than not that the
secondary cancer that was present in Theresa’s left lung in 1996 would have also
adversely affected her life expectancy.
{¶ 22} Pursuant to R.C. 2125.02(A)(2), the court “may award damages authorized
by division (B) of this section, as it determines are proportioned to the injury and loss
resulting to the beneficiaries described in division (A)(1) of this section by reason of the
wrongful death.” R.C. 2125.01(A)(1) states that “a civil action for wrongful death shall
be brought in the name of the personal representative of the decedent for the exclusive
benefit of the surviving spouse, the children, and the parents of the decedent, all of
whom are rebuttably presumed to have suffered damages by reason of the wrongful
death, and for the exclusive benefit of the other next of kin of the decedent.” Pursuant
to R.C. 2125.02, other next of kin, such as grandchildren, although not presumed to
have sustained damages, may recover damages for mental anguish and loss of society
upon proper proof thereof, even though there is a surviving parent, spouse, or children.
Senig v. Nationwide Mutual Insurance Co., 76 Ohio App.3d 565, 574 (10th Dist.1992).
{¶ 23} Based upon the evidence presented, the court finds that Alyssa had a
close relationship with her grandmother, Theresa, as Theresa was a primary care giver
to her throughout most of her early childhood. Therefore, the court finds that plaintiff
has proven by a preponderance of the evidence, that Alyssa should recover damages
as a result of Theresa’s wrongful death. Based upon the specific facts of this case,
considering both Theresa’s close relationship with her children and Theresa’s level of
Case No. 1998-04701 -8- DECISION
involvement in raising her granddaughter Alyssa, balanced against her shortened life
expectancy independent of defendant’s negligence, the court recommends awards of
non-economic damages for loss of society and mental anguish as follows: to plaintiff
Dawn Rosenshine, $30,000; to Robert Dougherty, Jr., $30,000; to Vincent Dougherty,
$30,000; and to Alyssa Dougherty, $10,000.
{¶ 24} In summary, judgment is recommended in the amount of $210,743.57,
which includes the $25 filing fee.
{¶ 25} R.C. 3345.40(B)(2) provides that any award against a state university or
college shall be reduced by the amount of “benefits” a plaintiff receives or is entitled to
receive “for injuries or loss allegedly incurred from a policy or policies of insurance or
any other source * * *.” It is undisputed that plaintiff received a settlement of $25,000 as
a result of litigation in the connected action, and $20,000 from a life insurance policy.
Defendant argues that any award of damages should be reduced by both of these
amounts. (Exhibits D and C to Defendant’s Trial Brief.) However, the Tenth District
Court of Appeals has determined that the word “benefits,” as it appears in R.C.
3345.40(B)(2), refers to “‘financial assistance received in time of sickness, disability,
unemployment, etc., either from insurance or public programs, such as social security.’”
See Aubry v. Univ. of Toledo Med. Ctr., 10th Dist. No. 11AP-509, 2012-Ohio-1313, ¶
22, quoting Black’s Law Dictionary 158 (6th Ed. 1990). In the instant case, inasmuch as
plaintiff’s settlement in the connected action does not constitute a benefit under the
definition set forth in Aubry, the court concludes that the statute does not operate to
reduce plaintiff’s award by the amount of that settlement. Likewise, R.C. 3345.40(B)(2)
further states: “Nothing in this division affects or shall be construed to limit the rights of a
beneficiary under a life insurance policy or the rights of sureties under fidelity or surety
bonds.” Therefore, the court concludes that the plain language of R.C. 3345.40(B)(2)
prohibits this court from reducing plaintiff’s award by the amount of life insurance
proceeds that plaintiff received. Thus, the court finds that neither the settlement
Case No. 1998-04701 -9- DECISION
proceeds nor the life insurance proceeds constitute “benefits” to be deducted from
plaintiff’s award of damages.
{¶ 26} The Lucas County Probate Court apportioned the settlement proceeds
from the connected action equally among Theresa’s adult children. (Exhibit D to
Defendant’s Trial Brief.) However, inasmuch as the court has found that plaintiff has
proven that Alyssa is entitled to a claim of damages, this matter must be returned to the
probate court for an equitable distribution of damages to the beneficiaries according to
their respective injury or loss. Accordingly, it is recommended that final judgment shall
be entered in favor of plaintiff after the probate court has adjusted the share that each
beneficiary is to receive.
{¶ 27} A party may file written objections to the magistrate’s decision within 14
days of the filing of the decision, whether or not the court has adopted the decision
during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
objections, any other party may also file objections not later than ten days after the first
objections are filed. A party shall not assign as error on appeal the court’s adoption of
any factual finding or legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely
and specifically objects to that factual finding or legal conclusion within 14 days of the
filing of the decision, as required by Civ.R. 53(D)(3)(b).
_____________________________________
HOLLY TRUE SHAVER
Magistrate
cc:
Anne B. Strait Mark F. Vitou
Assistant Attorney General 111 West Dudley
150 East Gay Street, 18th Floor Maumee, Ohio 43537-2140
Columbus, Ohio 43215-3130
Case No. 1998-04701 - 10 - DECISION
002
Filed December 21, 2012
To S.C. Reporter March 22, 2013 and August 22, 2013 | 01-03-2023 | 08-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/995441/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BARRIE M. PETERSON,
Plaintiff-Appellant,
v.
No. 97-1680
ATLANTIC FUNDING CORPORATION;
SUPERIOR FINANCIAL SERVICES,
INCORPORATED,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-96-1476-A)
Argued: May 5, 1998
Decided: June 29, 1998
Before NIEMEYER and WILLIAMS, Circuit Judges, and
HOWARD, United States District Judge for the
Eastern District of North Carolina, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: James Thomas Bacon, ALLRED, BACON, HALFHILL,
LANDAU & YOUNG, P.C., Fairfax, Virginia, for Appellant. James
Robert Schroll, BEAN, KINNEY & KORMAN, P.C., Arlington, Vir-
ginia, for Appellee Atlantic Funding; Janis Orfe, THE LAW
OFFICES OF JANIS ORFE, P.C., Fairfax, Virginia, for Appellee
Superior Financial. ON BRIEF: C. Erik Gustafson, BEAN, KINNEY
& KORMAN, P.C., Arlington, Virginia, for Appellee Atlantic Fund-
ing.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant, Barrie M. Peterson, individually, and Barrie M. Peter-
son, as Trustee [hereinafter collectively referred to as "Peterson"],
appeal the district court's grant of summary judgment in favor of
appellees. The district court found, as a matter of law, that no enforce-
able settlement agreement existed between Peterson, Atlantic Funding
Corp. ("Atlantic") and Superior Financial Services, Inc. ("Superior").
We review a district court's grant of summary judgment de novo.
See Higgins v. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th
Cir. 1988). Summary judgment is appropriate when there exists no
genuine issue of material fact and the moving party is entitled to judg-
ment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986). The district court must evalu-
ate the evidence in the light most favorable to the non-movant and
draw all reasonable inferences in that party's favor. See United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962). Finding no error, we
affirm the district court's entry of summary judgment.
On November 7, 1996, Peterson and Dominion Federal Savings
and Loan Association executed a promissory note (the"note") in the
principal amount of $1 million. The loan was secured by a second
deed of trust on a certain parcel of real property, which consisted pre-
dominately of a twenty-two unit office complex known as the Domin-
ion Professional Center ("DPC"). Signet Bank was the first lienholder
on the DPC.
2
Dominion was subsequently taken over by the Resolution Trust
Corporation ("RTC"). On August 8, 1991, RTC initiated an action
against Peterson based upon non-payment of the note. On November
15, 1991, Peterson signed a consent to judgment in the sum of
$1,217,201.96, which was reduced to a judgment by the district court.
Shortly thereafter, Signet Bank foreclosed on its first deed of trust
secured by the DPC. Signet Bank's foreclosure extinguished RTC's
second deed of trust on the building.
In order to protect its interest in the loan, RTC, acting through its
agent, Gemini Asset Managers, Inc. ("Gemini"), purportedly entered
into an agreement with Peterson whereby Peterson agreed to purchase
all of RTC's rights, title and interest in the loan documents and judg-
ment for $250,000, of which $50,000 would be paid down and the
remaining balance paid in ten monthly installments of $20,000. The
parties' discussions were subsequently memorialized in a written set-
tlement agreement (the "agreement"), which indicated the agreement
was binding on the parties and their successors. This agreement was
signed by Peterson and forwarded to Gemini. Importantly, however,
the agreement was never signed by RTC or an authorized agent.
Eighteen months later, RTC sold its rights under the loan to Supe-
rior, who subsequently assigned its rights to Atlantic. Atlantic
attempted to collect on the $1.2 million judgment, and Peterson insti-
tuted this suit. Peterson contends he entered into a binding settlement
agreement with RTC and that appellees, as successors-in-interest to
RTC, are bound by the agreement's provisions. In granting summary
judgment to appellees, the district court found that because the agree-
ment was never signed nor adopted by RTC, no contractual obligation
arose from the agreement. Therefore, appellees were not bound by its
terms.
Although the parties raise numerous arguments in support of their
respective positions, the determinative issue before the court is
whether a binding contract ever existed between RTC, its successors,
and Peterson. The record demonstrates that numerous conversations
and drafts of proposed agreements passed between Peterson and RTC
in 1992 and 1993, through RTC's agent, Gemini. However, a final,
binding contract between Peterson and RTC or its assigns never
resulted from those discussions and correspondence. Because RTC
3
never signed the complicated settlement agreement, neither RTC nor
its assigns may be held accountable to its terms.
When parties to a contract contemplate that their agreement will be
reduced to a writing, the courts refuse to enforce the contract in the
absence of a writing signed by the party to be charged. Most recently,
this court reaffirmed that principle in a case, ironically, involving
Peterson. In Peterson v. Cooley, No. 97-1764, 1998 WL 185281 (4th
Cir. Apr. 21, 1998), the court affirmed the district court's determina-
tion that no contractual relationship existed between Peterson and
Central Fidelity, a Virginia bank. Peterson argued that Central Fidel-
ity made an oral offer to him to purchase certain notes from the bank
for a $4.2 million payment plus a $200,000 deficiency note. Peterson
contended a contractual relationship was created when he accepted
the offer in a signed letter.
This court disagreed with Peterson's contention that the letter con-
stituted an acceptance absent an agreement signed by all parties. The
court noted that a "transaction of this size and complexity is normally
embodied in a written contract." Id. at *5. Central Fidelity mailed
Peterson a twenty-nine page settlement agreement, but Peterson never
signed the agreement. Moreover, this court found that in failing to
sign the document, "the Petersons themselves chose not to create a
binding contractual relationship." Id.
This case presents a similarly deficient attempt by Peterson to
create a contractual relationship where none exists. The putative set-
tlement agreement consisted of eight single-spaced typed pages and
involved a $1.2 million judgment. Both Peterson and RTC were rep-
resented by counsel who had to review the agreement prior to its exe-
cution. The agreement had been returned to Peterson to make certain
revisions with a proviso that once the revisions were made, the agree-
ment would be forwarded to RTC "for execution." J.A. p. 139. How-
ever, the record is bereft of evidence that RTC received the revised
agreement signed by Peterson or ever executed the agreement.
It is apparent to the court that in an agreement of this size and com-
plexity, the parties clearly contemplated that their agreement would
be reduced to a final writing. All of the written correspondence
between the parties looked to a final, signed agreement. By letter
4
dated May 12, 1992, Gemini, through counsel, indicated that RTC
was "prepared to enter into an agreement" regarding its judgment
against Peterson. J.A. p. 104. By letter dated June 10, 1993, Peter-
son's attorney recognized that the agreement was to be forwarded to
RTC "for execution" and that when the executed originals were
returned to Gemini, Peterson would deliver the initial payment of
$50,000. J.A. p. 66. This correspondence evidences an intent that nei-
ther party would be bound, and no obligations triggered, until both
Peterson and RTC signed the written settlement agreement. Peterson
now argues that a binding settlement agreement was created when he
mailed his signed copy of the revised settlement agreement to RTC.
However, had Peterson genuinely believed at that time that such a
deal was solidified, he would have mailed RTC his first payment as
required in the agreement.
Peterson bears the burden of proving that an enforceable contract
existed with RTC. However, Peterson's argument consists of little
more than an impermissible attempt to shift the burden to the appel-
lees to prove a negative, i.e., the non-existence of the agreement.
Because Peterson has not demonstrated that a contractual relationship
ever arose between himself and RTC, the district court correctly con-
cluded that appellees were entitled to summary judgment. The court
has considered Peterson's remaining claims for relief and finds them
to be without merit.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED
5 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/998952/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4090
MICHAEL LEROY DARITY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-95-132)
Submitted: May 11, 1999
Decided: June 17, 1999
Before WILKINS, LUTTIG, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Jake Arbes, Atlanta, Georgia, for Appellant. Mark T. Calloway,
United States Attorney, Brian Lee Whisler, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Michael Leroy Darity was convicted, following a jury trial, of con-
spiracy to manufacture and distribute cocaine base, in violation of 21
U.S.C.A. § 846 (West 1981 & Supp. 1998). He was sentenced to 384
months of imprisonment, to be followed by five years of supervised
release. Darity appeals his conviction and sentence, and we affirm.
I.
On December 6, 1995, Darity was charged in the first count of a
two-count indictment with conspiracy to manufacture and distribute
cocaine base. The conspiracy was alleged to have operated in Bun-
combe County, North Carolina, beginning on or about February 1,
1992, and ending on or about December 31, 1994.
Following his indictment, Darity eluded arrest for sixteen months.
His good fortune ran out on April 11, 1997. A day earlier, an
acquaintance named Chris Stepp had approached Darity and offered
him a "couple of hundred dollars" to accompany Stepp on "a run" to
Atlanta. Darity knew his way around Atlanta, and he had no money,
so he agreed. Stepp later picked Darity up, and the two drove to
Atlanta in a car Stepp had rented. Upon arriving, they immediately
went to some apartments, where Stepp purchased nine ounces of
cocaine for $6500. They spent the night in an Atlanta hotel.
The next morning, the pair was traveling northeastward on Inter-
state 85 in Anderson County, South Carolina. Darity was driving. A
county deputy sheriff using radar determined that the car was exceed-
ing the speed limit. The deputy, Matt Durham, pulled the car over. He
walked up to the driver's side and asked Darity to step out of the car
and to provide the car's registration and his driver's license. Durham
saw that there was a passenger. He looked at the license given him
by Darity. It bore the name "Marcus Terrell Ross," and Durham could
tell immediately that Darity was not the man pictured on the license.
Darity explained that the car was rented, and he did not have the
rental papers.
2
Durham could see that Darity was nervous, and he asked where
Darity and his passenger had been. Darity replied that they had been
to an all-night party in Atlanta. It was then only 10:20 in the morning,
and Durham thought it unusual that all-night revelers would have
traveled such a distance from Atlanta by that time.
Notwithstanding his suspicions of wrongdoing, Durham decided
that, for his own safety, he should not pursue the investigation any
further alone. He wrote a warning ticket and gave it to Darity,
explaining that he was not being charged and had no court date, but
that he must slow down.
As fate would have it, Durham turned back toward his patrol car
to see another officer from the sheriff's department arrive. This offi-
cer had a dog trained to detect illegal drugs with him.
With his fears for his own safety somewhat abated, Durham
decided to ask a few more questions. He turned back to the car. He
asked both Darity and Stepp whether there were drugs or illegal items
in the car; each denied that there were. He then asked for consent to
search the car. Darity replied that the car was not his, and Stepp
refused to consent.
The other officer had by then walked up to the car. Durham asked
him to bring the dog up and to take a walk around the car. The dog
gave a full alert in the trunk area. The officers opened the trunk and
found the cocaine, and, upon searching the rest of the vehicle, they
found $1500 in cash under a seat. Darity and Stepp were arrested.
Both men were later questioned. When confronted with his lack of
resemblance to the person pictured on "his" driver's license, Darity
gave his true name and stated that he was wanted by the FBI. The two
gave consistent stories, i.e. the cocaine deal was Stepp's, and Darity
had ridden along because he needed money and knew Atlanta better
than did Stepp.
In advance of trial on the charged conspiracy, the government
served notice of its intent to offer evidence of Darity's arrest and sub-
sequent statements under Fed. R. Evid. 404(b). Darity countered with
3
a motion to suppress the evidence. The district court held an evidenti-
ary hearing on the legality of the search and ruled that the search was
reasonable and also that the evidence was properly admissible under
Rule 404(b).
Though Darity's case was assigned to the Asheville Division of the
Western District of North Carolina, the trial was scheduled for the
Bryson City Division because the Asheville courthouse was being
renovated and no courtroom was available that could accommodate
a criminal jury trial. Darity moved for a change of venue to the Ashe-
ville or Statesville Division, offering to agree to a continuance until
the Asheville courthouse renovations were finished. Darity sought the
change because, given the demographic makeup of the three divi-
sions, it was more likely that one or more blacks might serve on the
jury in Asheville or Statesville. The district court denied the change
of venue, and no blacks served on the jury.
The trial took three days. The government presented numerous
cooperating coconspirators who detailed Darity's participation in and
leadership of the conspiracy. Darity's defense was an outright denial
of involvement, a denial allegedly corroborated by evidence that he
had little money during the period. He was convicted.
Darity moved for a new trial. He attached the affidavit of a juror.
The affidavit stated that two jurors had held out against conviction for
two and one-half hours. At that point, the foreman, who was a retired
lawyer, related that he had once advised a guilty client to hide the pro-
ceeds of his crimes and never use them and that, as a result, the client
was acquitted. The point of this story, of course, was that Darity's
lack of wealth did not mean he was innocent. The two reluctant jurors
were convinced, and the jury reached a verdict. The district court held
that the affidavit did not reveal extraneous prejudicial information
upon which the court was empowered to inquire under Fed. R. Evid.
606(b), and it denied the motion for a new trial.
Darity was later sentenced to 384 months of imprisonment. He now
appeals.
II.
Darity alleges numerous errors. First, he contends that the district
court erred in denying him a new trial based on the jury's consider-
4
ation of "extraneous prejudicial information." Disposition of a motion
for new trial is committed to the discretion of the district court, and
we review only for abuse of that discretion. United States v. Cheek,
94 F.3d 136, 140 (4th Cir. 1996).
Fed. R. Evid. 606(b) precludes inquiry into the validity of a jury
verdict, with very limited exceptions:
Upon an inquiry into the validity of a verdict or indictment,
a juror may not testify as to any matter or statement occur-
ring during the course of the jury's deliberations or to the
effect of anything upon that or any other juror's mind or
emotions as influencing the juror to assent to or dissent from
the verdict or indictment or concerning the juror's mental
processes in connection therewith, except that a juror may
testify on the question whether extraneous prejudicial infor-
mation was improperly brought to the jury's attention or
whether any outside influence was improperly brought to
bear upon any juror. Nor may a juror's affidavit or evidence
of any statement by the juror concerning a matter about
which the juror would be precluded from testifying be
received for these purposes.
Darity contends that the foreman's story about his client is "extra-
neous prejudicial information" that is excepted from the general rule.
We disagree.
As the district court recognized, "extraneous prejudicial informa-
tion" means information about the specific case that the jury has
acquired outside of the judicial process. See Hard v. Burlington
Northern R.R., 870 F.2d 1454, 1460-62 (9th Cir. 1989); United States
ex rel. Owen v. McMann, 435 F.2d 813, 818 (2nd Cir. 1970). Inas-
much as the foreman did not profess or relate any extrajudicial knowl-
edge of Darity's financial condition, his story does not fall within the
Rule 606(b) exception and hence provides no basis to disturb the ver-
dict.
III.
Next, Darity asserts that the district court should have suppressed
or excluded evidence of and resulting from his 1997 arrest.
5
First of all, we doubt that Darity even has standing to challenge the
legality of the search. An unauthorized driver of a rental car has no
"legitimate expectation of privacy" in the car's contents. United States
v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994). Darity specifically dis-
claimed any interest in the car when Durham asked his permission to
search it. Nevertheless, because the evidence at the suppression hear-
ing left it unclear whether Darity was an authorized driver of the car,
the district court assumed that he did have standing. We will do like-
wise, as the reasonableness of the search is manifest.
Durham observed Darity speeding and stopped him. Darity was
nervous and gave an odd explanation of the purpose of his travel.
Most significantly, he provided a fake, or at best someone else's, driv-
er's license. The last circumstance alone may have justified Darity's
arrest for violation of S.C. Code. Ann. § 56-1-510 (Law. Co-op. 1991
& Supp. 1998). Surely it was reasonable for the officers to briefly
detain the car for a sniff by the trained dog.
Darity argues, however, that Durham's announced, subjective
intent to let him go on his way precluded basing the continued stop
and dog sniff on anything the officer knew before then. We disagree.
The constitutional reasonableness of a traffic stop is judged by objec-
tive, not subjective, factors. Whren v. United States, 517 U.S. 806,
811-13 (1996). If a search or seizure is objectively reasonable, it is
valid, even if the officer has some ulterior subjective motive for it.
This case is even one more step removed from Whren, because here
the officer's subjective motive--fear for his own safety--counseled
him not to act upon his reasonable suspicions. That the arrival of his
backup caused Durham to overcome his fear is no basis to suppress
the evidence.
IV.
Darity next contends that, even if it was lawfully obtained, the evi-
dence was inadmissible. We take an inclusive view of Rule 404(b).
Probative evidence of other "crimes, wrongs, or acts" is "generally
admissible except when it is offered to prove `the character of a per-
son in order to show action in conformity therewith.'" United States
v. Queen, 132 F.3d 991, 994 (4th Cir. 1997) (emphasis added), cert.
denied, 118 S. Ct. 1572 (1998). We review the admission of such evi-
6
dence for abuse of discretion. Id. at 995. The rule lists several proper
evidentiary purposes other than the forbidden one, including among
others intent, knowledge, and lack of mistake; however, the inclusive
nature of the rule renders the list non-exhaustive. United States v.
Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988).
We need not stray from the list today. The government's case con-
sisted of the testimony of numerous cooperating witnesses, and Dari-
ty's defense was, in the district court's words, a flat denial "that he
had [any] involvement in the drug trade whatsoever. This defense
suggested, essentially, that Darity lacked any knowledge of the drug
trade and its participants." In this context, his arrest while carrying
cocaine surely suggested that he had such knowledge. Even more tell-
ing was the statement that Darity gave to investigators following his
arrest. As we mentioned earlier, Darity explained that Stepp had pro-
posed that they "make a run" to Atlanta, that he knew Stepp meant
a "drug run," and that Stepp wanted him along because he knew the
area in Atlanta. Evidence of knowledge of the drug trade could hardly
be better tailored to that purpose. Moreover, the relatively minor role
Darity played in the drug run--which was corroborated by Stepp's
statement--lessened any danger of unfair prejudice. Finally, the dis-
trict court gave an appropriate limiting instruction. The court did not
abuse its discretion.
V.
Yet another alleged error is the denial of Darity's motion for
change of venue. Such motions are committed to the discretion of the
district court, and we find no abuse of discretion here.
There is no general constitutional right to trial in a certain division
of a federal district court. United States v. Florence, 456 F.2d 46, 50
(4th Cir. 1972). Though the legal basis for his argument is murky,
Darity appears to be arguing that, because of the racial makeup of the
general population in the division in which he was tried, he was
denied equal protection. This argument is unavailing.
The proportion of blacks in the Bryson City Division is smaller
than in Statesville or Asheville. However, Darity has failed to allege,
much less prove, that blacks are systemically excluded from grand or
7
petit jury duty in that Division, or that they were purposefully
excluded from his jury in particular. Of course, holding trial in Bry-
son City necessarily made the inclusion of blacks on his jury mathe-
matically less likely, but such statistical "impacts" do not in and of
themselves establish violations of equal protection. Only where the
governmental decisionmaker--here, the district judge--acts for the
purpose of exploiting an adverse impact on an identifiable group is
equal protection implicated. See Personnel Adm'r of Massachusetts v.
Feeney, 442 U.S. 256, 279 (1979). Darity does not suggest that the
district court had such ill intent.
VI.
Without objection, numerous cooperating witnesses testified
against Darity. He now asserts that the district court erred by permit-
ting the testimony, because the plea agreements violated the federal
anti-gratuity statute, 18 U.S.C.A. § 201(c)(2) (West 1969 & Supp.
1999). Because of the lack of a timely objection, we review only for
plain error. United States v. Olano, 507 U.S. 725 (1993).
The first and most basic characteristic of a plain error is its
plainness--unless the error is "obvious, or, at a minimum, clear under
current law," an appellate court may not take note of it. United States
v. Castner, 50 F.3d 1267, 1277 (4th Cir. 1995).
Darity's trial was held in July 1997. We are aware of no precedent
supporting his argument that existed at that time. The parties cite two
subsequent cases that did adopt that view, but neither remains good
law. See United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998),
vacated and superseded, 165 F.3d 1297 (10th Cir. 1999) (en banc),
petition for cert. filed, (Mar. 31, 1999) (No. 98-8758); United States
v. Lowery, 15 F. Supp. 2d 1348 (S.D. Fla. 1998), reversed, 166 F.3d
1119 (11th Cir. 1999). It follows that the supposed error was neither
"clear" nor "obvious" under current law in July 1997.
VII.
Finally, Darity assails two of the district court's rulings at sentenc-
ing. He contends that the district court ran afoul of Fed. R. Crim. P.
8
32(c)(1) by failing to make adequate findings as to the contested facts,
which involved the quantity of drugs for which Darity was responsi-
ble and his role in the offense. This contention has no merit. The dis-
trict court relied on its own recollection of the trial testimony, as well
as the live testimony of a government investigator, and held that the
facts as stated in the presentence report were correct. Because we
"can discern the factual bases of the district court's sentencing rul-
ings," United States v. Walker, 29 F.3d 908, 911 (4th Cir. 1994), Rule
32(c)(1) is satisfied. To the extent Darity may be attacking those rul-
ings on the merits, we hold that they are not clearly erroneous.
The judgment of the district court is affirmed. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and oral argument would
not aid the decisional process.
AFFIRMED
9 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454120/ | 251 P.3d 456 (2010)
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Jeffrey BROSH, Defendant-Appellant.
No. 09CA0342.
Colorado Court of Appeals, Div. VI.
May 27, 2010.
Certiorari Dismissed September 13, 2010.
*457 John W. Suthers, Attorney General, Rhonda L. White, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
McClintock & McClintock, P.C., Theodore P. McClintock, Elizabeth A. McClintock, Colorado Springs, Colorado, for Defendant-Appellant.
Opinion by Judge LOEB.
Defendant, Jeffrey Brosh, appeals the district court's order designating him a sexually violent predator (SVP). We affirm.
I. Factual Background and Procedural History
Defendant was charged with multiple counts related to incidents during which he provided the twelve-year-old victim with alcohol and sexually assaulted him. The following facts are taken from the presentence report and associated documents and from the affidavit in support of the arrest warrant in this case.
Defendant was the victim's neighbor, and the crimes were discovered after the victim's father retrieved his son from defendant's house one evening. The victim had gone to defendant's house to watch movies with defendant's seven-year-old son and another friend. Defendant had asked if the victim could spend the night, but his parents said no and asked defendant to send the victim home. About an hour later, when his son had not returned home, the victim's father went to defendant's house and found the victim intoxicated. Defendant was also intoxicated. The victim told his father that defendant had given him alcohol. He also told his father that, two days before, defendant had given him alcohol and performed oral sex on him.
*458 The victim's father took him to the hospital. At the hospital, the examining nurse discovered a "small tear" in the victim's rectum; the victim told her defendant had "put his finger in his rectum."
The victim also spoke with a police officer at the hospital. He told the officer that he had first gone to visit defendant's son two days before. When he got to the house, defendant was outside and told the victim there was a drink in the freezer inside the house. The victim said he knew the drink had alcohol in it but it tasted like cranberry juice. Inside the house, defendant's son was naked and chased the victim around. The victim said he got drunk enough that he dropped the glass and spilled the drink on his clothes, which defendant said he would wash. Defendant told the victim to take a shower and, while in the shower, defendant's son and defendant both got in with him. They went into defendant's room, and defendant told the victim to lie on the bed and then "put his mouth somewhere where [the victim] didn't think was right." The victim told the officer that defendant then did the same thing to his son, who was also on the bed.
The victim told the officer that when he went to defendant's house the next time, the drink defendant gave him was three times stronger. He threw up and heard defendant say, "I'm going to jail, I'm going to jail." The victim said he fell to the floor and, about an hour later, saw his father outside and walked home with his father.
The victim also spoke to an investigative specialist. The victim told the investigator that the first time he was at defendant's house, defendant gave him vodka mixed with cranberry juice. He told the investigator defendant had him on the bed on his hands and knees and stuck his finger in the victim's rectum and sucked on his penis. He told him defendant also had his son suck on the victim's penis and lick his "butt" while defendant watched, all three of them naked at the time.
The victim told the investigator that the next time he went to defendant's house, to watch a movie with his son, defendant mixed him a drink of vodka and cranberry juice in the kitchen and told him he was going to teach him twenty things that would make him feel good. Defendant then told him to take off his underwear. The victim did so and returned to the kitchen where he and defendant both drank the drinks defendant mixed. He told the investigator defendant came over to him, unzipped his pants, and sucked on his penis. The victim then went to the bathroom and threw up. The victim told the investigator that, before his father came to get him, defendant gave him a cough drop to hide the smell of alcohol on his breath.
When defendant's son talked to the investigator, he said that his best friend, the victim, drank some Kool-Aid at his house and got sick. He said defendant told him the victim got food poisoning. Defendant's son denied showering with his dad and the victim and said defendant and the victim took separate showers. During the interview, he also told the investigator that he, defendant, and the victim had a secret but would not reveal it. When asked again what the victim was drinking, he said defendant had given the victim some cranberry juice that accidentally had vodka in it.
When an officer contacted defendant at his home, defendant confirmed the victim had been at his house on those two days. When confronted with allegations that he had provided alcohol to the victim and had touched him sexually, defendant denied the allegations. Defendant said he had left his own vodka and cranberry juice drink in the kitchen and, when he was not looking, the victim drank almost all of it and threw up in the bathroom. Defendant also denied showering with his son and the victim. He told the officer he did not call the victim's parents when the victim got sick from the drink because he was embarrassed.
Defendant pleaded guilty to sexual assault on a child by one in a position of trust in exchange for dismissal of all other charges. The district court sentenced defendant to an indeterminate term of four years to life in the Department of Corrections.
At a hearing on the SVP determination, defendant argued he should not be classified an SVP under section 18-3-414.5, C.R.S. *459 2009. He contended that the Sexual Offender Risk Scale (SORS) under which he was evaluated and scored did not meet the statutory criteria for an SVP designation. Specifically, he argued that the score on the SORS evaluation for likelihood to complete treatment or be arrested for a violent crime does not satisfy the statutory requirement that the defendant is likely to commit an offense as set forth in section 18-3-414.5(1)(a)(IV), C.R.S.2009. He also contended that the evidence presented through the SORS evaluation was insufficient to establish two of the criteria for an SVP designation: that he promoted the relationship with the victim primarily for sexual victimization, as required by section 18-3-414.5(1)(a)(III), C.R.S.2009, and that he is likely to commit another of the listed sex offenses under circumstances in which the victim is a stranger or person with whom he establishes or promotes a relationship primarily for sexual victimization, as required by section 18-3-414.5(1)(a)(IV). The district court rejected these contentions and issued a written order with detailed findings of fact, designating defendant an SVP. Defendant appeals that order.
II. Section 18-3-414.5
Section 18-3-414.5(2), C.R.S.2009, provides that, when a defendant is convicted of sexual assault on a child by one in a position of trust or other listed sexual offenses, the probation department shall complete the SVP risk assessment (subject to exceptions that do not apply in this case). Based on the results of the assessment, the court shall make specific findings of fact and enter an order concerning whether the defendant is an SVP. Id.
As defined by section 18-3-414.5(1)(a), C.R.S.2009, an SVP is an offender
(I) Who is eighteen years of age or older as of the date the offense is committed. . .;
(II) Who has been convicted . . . of one of the following offenses, or of an attempt, solicitation, or conspiracy to commit one of the following offenses . . .:
(A) Sexual assault . . . or sexual assault in the first degree . . .;
(B) Sexual assault in the second degree. . .;
(C) Unlawful sexual contact . . . or sexual assault in the third degree . . .;
(D) Sexual assault on a child . . .; or
(E) Sexual assault on a child by one in a position of trust . . .;
(III) Whose victim was a stranger to the offender or a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization; and
(IV) Who, based upon the results of a risk assessment screening instrument . . . is likely to subsequently commit one or more of the offenses specified in subparagraph (II) of this paragraph (a) under the circumstances described in subparagraph (III) of this paragraph (a).
III. SORS Meets the Requirements of Section 18-3-414.5
Defendant contends that the SORS does not meet the statutory requirement for a "risk assessment screening instrument" under section 18-3-414.5(1)(a)(IV). Specifically, he contends that the SORS does not determine whether a defendant is likely to reoffend by committing any of the specifically enumerated offenses under the specified circumstances, but only determines whether the defendant is likely to succeed in treatment and supervision. We disagree.
When interpreting a statute, our primary duty is to give effect to the intent of the legislature, looking first to the plain language of the statute. See People v. Tixier, 207 P.3d 844, 847 (Colo.App.2008); see also People v. Banks, 9 P.3d 1125, 1128 (Colo. 2000) (plainness or ambiguity of statutory language is determined by reference to language itself, specific context in which it is used, and broader context of statute as a whole). We read the statute as a whole to give consistent, harmonious, and sensible effect to all of its parts, presuming that the legislature intended the statute as a whole to be effective. Tixier, 207 P.3d at 847. Further, we avoid statutory constructions that are at odds with the legislative scheme. Id.
The General Assembly recognized the necessity of, among other things, providing for *460 the comprehensive evaluation of sex offenders subject to the supervision of the criminal justice system and created a program that standardizes such evaluation. § 16-11.7-101, C.R.S.2009. As part of that program, the General Assembly created the Sex Offender Management Board (SOMB). § 16-11.7-103(1), C.R.S.2009. The SOMB, among other things, is required to "consult on, approve, and revise as necessary" the risk assessment screening instrument developed by the division of criminal justice to "assist the sentencing court in determining the likelihood that an offender would commit one or more of the offenses specified in section 18-3-414.5(1)(a)(II), C.R.S. [2009], under the circumstances described in section 18-3-414.5(1)(a)(III), C.R.S. [2009]." § 16-11.7-103(4)(c.5), C.R.S.2009. In carrying out its duty related to the assessment screening instrument, the SOMB must consider "sex offender risk assessment research." Id.
With these directives, the SOMB assisted the division of criminal justice in developing the Sexually Violent Predator Assessment Screening Instrument that includes the SORS. Among the research specifically considered by the SOMB, and discussed in the SOMB Handbook: Sexually Violent Predator Assessment Screening Instrument (handbook) that is referenced in the SORS, is that which demonstrates the appropriateness of using failure to succeed in treatment and supervision as a predictor of recidivism by sex offenders. See Handbook: Sexually Violent Predator Assessment Screening Instrument 45, 52-53 (Jan. 2008), available at http://dcj.state.co.us/ors/pdf/docs/FINAL-1-30-2008-SVP% 20Handbook.pdf.
The handbook discusses the research related to risk assessment of sex offenders; the accuracy of the SORS and the tendency for "sexual crimes," as compared to "violent crimes," to be underreported or not result in arrest; and it describes the risk of arrest for violent crimes as a "reasonable proxy" in measuring recidivism of sex offenders. Id. at 59-60, 62. The handbook also discusses the development and reliability of the SORS checklist. Id. at 41, 51-52.
Mindful of these considerations and the legislative scheme, we conclude that the SOMB satisfied the objectives and criteria set forth in section 16-11.7-103(4)(c.5) for developing the assessment screening instrument. See Tixier, 207 P.3d at 847. Thus, we reject defendant's contention that the SORS fails to assess the likelihood to reoffend as required by section 18-3-414.5(1)(a)(IV).
IV. The Evidence Supports Defendant's SVP Designation
Defendant also contends the evidence does not support his designation as an SVP. Again, we disagree.
When reviewing mixed questions of law and fact, such as an SVP designation, we defer to the trial court's factual findings, but we review de novo its conclusions of law. People v. Cook, 197 P.3d 269, 280 (Colo.App. 2008). Absent clear error, we will not disturb a district court's findings of fact in an SVP determination. See Tixier, 207 P.3d at 849 (under clear error standard, findings of historical fact will only be overturned if they are not supported by competent evidence).
Section 18-3-414.5(2) requires trial courts to make specific findings of fact regarding whether a defendant is an SVP. The statute also requires that the probation department coordinate with a psychological evaluator to complete an SVP risk assessment and that the judicial findings be based on the results of that assessment. § 18-3-414.5(2); see People v. Tuffo, 209 P.3d 1226, 1231 (Colo.App.2009).
The SVP statute is protective, not punitive, and the facts underlying an SVP determination need not be proved to a jury beyond a reasonable doubt. Tuffo, 209 P.3d at 1231; People v. Rowland, 207 P.3d 890, 892-95 (Colo.App.2009). Courts may rely on uncontroverted facts in a presentence report and, even when a defendant challenges facts in the report, the prosecutor is not required to prove those facts with the quality of evidence required at a trial on the criminal charges themselves. Tuffo, 209 P.3d at 1231; People v. Buerge, 240 P.3d 363, 369 (Colo. App.2009) (a trial court may make its SVP findings based solely on the presentence investigation report and the assessment screening instrument). However, the limits *461 of due process require that an SVP designation, as with other sentencing determinations, be based on "`reliable evidence, not speculation or unfounded allegations.'" Tuffo, 209 P.3d at 1231 (quoting United States v. England, 555 F.3d 616, 622 (7th Cir.2009)). Proof by a preponderance of the evidence of facts relied upon in sentencing determinations generally satisfies due process considerations. Tuffo, 209 P.3d at 1231.
Here, the prosecution presented defendant's presentence report and SORS evaluation as support for his designation as an SVP. At two hearings on the matter, defendant contested the scores he received, the subjective nature of the scoring, and the use of an SOMB checklist in the evaluation. Specifically, he contested the determinations based on the SORS that he met the third criterion, that he promoted the relationship for sexual victimization, and the fourth criterion, that he is likely to reoffend under similar circumstances, as necessary for an SVP designation. See § 18-3-414.5(1)(a)(IV). He argued that his responses to the questions in the evaluation, including the absence of any self-reported deviant sexual behaviors, did not support the scores he received.
However, the absence of self-reported deviancy and denial of certain behaviors were countered by other determinations made by the trained evaluator. The evaluation presented to the district court included the evaluator's references to defendant's denial of the crime committed and suggestion that the victim was a willing participant; determinations that defendant demonstrates an "overly positive self-presentation," a "high likelihood of invalid responses," and "resistance to admitting personal shortcomings"; and midrange scores of defendant for the "inability to respond truthfully," dishonesty, lack of motivation for treatment, and classification as a "manipulator."
After receiving proposed findings of fact from both parties, the district court adopted the evaluator's findings and found that defendant met the criteria for an SVP. Specifically, as pertinent here, the court found that, as required by section 18-3-414.5(1)(a)(III), defendant promoted an existing relationship primarily for the purpose of sexual victimization. In that regard the court found, with record support:
Defendant [p]romoted this relationship by taking steps to change the focus of the relationship to facilitate the commission of a sexual assault specifically by drugging the victim. The Defendant encouraged the relationship with the victim by inviting the victim over to his house to play with the defendant's step child on several occasions. The Defendant requested that the victim have [a] sleep over at his residence on one occasion. The Defendant provided alcohol to the minor victim on two of those occasions. The victim was sexually assaulted by the Defendant on both occasions after the Defendant had provided alcohol to the victim.
The Defendant engaged in contact with the victim that was progressively more sexually intrusive. The Defendant's conduct progress[ed] from sexual touching to fellatio to digital penetration of the victim's anus.
Based on defendant's scores on the SORS evaluation and record support of defendant's history with alcohol, the court also found that the sexual offense here took place when defendant was drinking; that the public is at risk when defendant drinks; and that defendant is incapable of abstaining from alcohol. Thus, the court further found that defendant is "likely to commit one or more of the offenses specified in" section 18-3-414.5(1)(a)(II), "under the circumstances described in" section 18-3-414.5(1)(a)(III).
Moreover, in reaching its conclusion that defendant is an SVP, the court recognized the discretion of the evaluator in scoring, but deferred to the evaluator's expertise. It is within the court's prerogative to choose between inconsistent evaluations, and we perceive no clear error where the court deferred to the expertise of the sole evaluator and accepted the scores set forth in the evaluation. See Tuffo, 209 P.3d at 1231; Tixier, 207 P.3d at 849. Further, the trial court's findings based on the risk assessment of defendant and following the court's independent review of the file in this case (including the entire presentence report and affidavit in support of defendant's arrest) were adequate. *462 See Tuffo, 209 P.3d at 1231; Tixier, 207 P.3d at 849.
The order is affirmed.
Judge GRAHAM and Judge MILLER concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1540434/ | 213 B.R. 207 (1997)
In re Harrison HOBBS and Deborah Hobbs, Debtors.
Peter C. FESSENDEN, Esq., Trustee, Plaintiff,
v.
David IRELAND, Jr., d/b/a Penobscot Paralegal Services, Defendant.
Bankruptcy No. 96-10649, Adversary No. 96-1058.
United States Bankruptcy Court, D. Maine.
September 19, 1997.
*208 Peter C. Fessenden, Chapter 13 Trustee, Brunswick, ME, for plaintiff.
Gary J. Norton, Norton & Weeks, Bangor, ME, for defendant.
MEMORANDUM OF DECISION
JAMES B. HAINES, Jr., Bankruptcy Judge.
This adversary proceeding was brought by Peter C. Fessenden, Esq., Harrison and Deborah Hobbs's former chapter 13 trustee, against David Ireland, Jr., d/b/a Penobscot Paralegal Services, for violations of Bankruptcy Code § 110 in connection with Ireland's preparation of their Chapter 13 petition and related documents.[1]
Fessenden asks that Ireland be fined under §§ 110(b), (c), and (f); that I order Ireland to disgorge fees under § 110(h)(2); that I certify violations of § 110(i) to the district court (with a recommendation that damages *209 be awarded); and that I enjoin Ireland from preparing Chapter 13 petitions and award fees and costs under § 110(j). Because I find that Ireland violated each of the subsections cited, I will grant substantially all of the relief requested and certify my finding that Ireland violated § 110(i) to the district court.
FACTS
1. Chapter 1.
In early 1996, Harrison and Deborah Hobbs hired Ireland to collect accounts receivable for their struggling automobile repair business. He collected roughly $1,000.00, retaining approximately $250.00 as his fee. But the Hobbs's business was failing, and in the spring Mr. Hobbs traveled to Florida to find new work. By April, strained financial circumstances led the Hobbs to consider filing bankruptcy. They arranged to meet Ireland to discuss that eventuality.
In the course of an initial, one-hour meeting in their home, the Hobbs told Ireland they were moving to Florida, but that they needed debt relief and wanted to protect interests in their house, their cars, and in Mr. Hobbs's tools. Ireland told the Hobbs that he had "done hundreds of bankruptcy cases," and conveyed the impression that "he knew what he was doing" with a Chapter 13 filing.[2] He explained their options under Chapters 7 and 13, advising them that under Chapter 7 "they would give up everything and start with a clean slate," and that under Chapter 13 they could keep their things.[3] The Hobbs hired Ireland because "he charged less than an attorney would."
The following Monday, Mrs. Hobbs went to Ireland's office and informed him that she and her husband had decided to file a Chapter 13 petition. She paid his $300.00 fee. There were no further consultations. Thereafter, Mrs. Hobbs saw Ireland only to drop off records, bills, account numbers, et cetera.
2. Chapter 13.
On June 19, 1996, the Hobbs met Ireland and signed their typed petition, without schedules and statements. Ireland gave Mrs. Hobbs three copies. She drove to the bankruptcy court clerk's office and filed for relief that day.
On June 25, 1996, the Hobbs met Ireland at state district court, where they were to attend a domestic relations hearing. At this time they signed their Chapter 13 plan, schedules and statements.[4] Consistent with their announced intentions, immediately after signing the documents and attending the state court hearing, they departed Maine for Florida.
Most of the documents that the Hobbs signed on June 25, 1996, together with Ireland's "Certification and Signature of Non-Attorney Bankruptcy Petition Preparer," signed on June 24, 1996, were filed on July 8, 1996.[5] Inexplicably, the Hobbs's schedules were filed separately on July 9, 1996.[6] Ireland has never filed a sworn disclosure of compensation for the Hobbs case.[7]
Mr. and Mrs. Hobbs returned to Maine for their § 341 meeting on August 2, 1996. *210 There, in consultation with Fessenden, they determined that their plan, which called for monthly payments of $1,464.84, was not feasible.[8]
Mrs. Hobbs returned to Ireland's office on August 5, 1996, and told him the plan needed reworking. She spent ten to fifteen minutes there. Ireland agreed to draft a new plan and said he would call Mrs. Hobbs when he was done. When she did not hear back from Ireland within the next few days, she called him to inform him she would be returning to Florida. Ireland told Mrs. Hobbs he would revise the plan and send it to her in Florida.
Mr. and Mrs. Hobbs eventually received the amended plan, signed it, and returned it to Ireland in the envelope he provided. Although Fessenden, as trustee, received a copy of it, the amended plan was never filed with the court.
On August 26, 1996, Fessenden filed "Trustee's Omnibus Motion Pursuant to 11 U.S.C. § 110." That motion was superseded by this adversary action, filed September 23, 1996.[9]
On February 13, 1997, pursuant to Fessenden's motion, I dismissed the Hobbs's Chapter 13 bankruptcy for failure to make payments required under their proposed plan.[10]
Mr. and Mrs. Hobbs, now residing in Florida, have consulted bankruptcy counsel there and anticipate filing a Chapter 7 petition there shortly.
DISCUSSION
1. Genesis of Section 110.
Section 110 was enacted in 1994 "to protect consumers from abuses by non-lawyer petition preparers." Consumer Seven Corp. v. United States Trustee (In re Fraga), 210 B.R. 812, 818-19 (B.A.P. 9th Cir1997). Although criticized by some non-lawyers as "a thinly-veiled attempt to protect the professional domain of lawyers and to exclude non-lawyers from making a living in the bankruptcy arena," § 110 is "primarily . . . a consumer protection measure unrelated to the practice of law." United States Trustee v. PLA People's Law-Arizona, Inc. (In re Green), 197 B.R. 878, 879 (Bankr.D.Ariz. 1996); see also Marshall v. Bourque (In re Hartman), 208 B.R. 768, 776 (Bankr.D.Mass. 1997) (recognizing § 110 as "a consumer protection measure to deter and provide remedies for perceived abuses and the unauthorized practice of law by an increasingly large number of non-lawyers who were advising and assisting debtors in filing bankruptcy petitions."); In re Rausch, 197 B.R. 109, 116 (Bankr.D.Nev.1996) (citing legislative history of § 110(c)); Ross v. Smith (In re Gavin), 181 B.R. 814, 820-21 (Bankr.E.D.Pa.1995) (reviewing tools available to bankruptcy courts in monitoring assistance provided debtors by non-lawyers prior to enactment of § 110, concluding § 110 was enacted to provide supplemental remedies).[11]
Under the Code, bankruptcy courts act to protect debtors from negligence or abuse by all who assist them, lawyers as well as non-lawyers. See, e.g., 11 U.S.C. § 329 (requiring attorney to file a statement of compensation for court review); Fed. R. Bankr.P. 2016(b) (requiring disclosure to trustee of § 329 compensation statement); In re Beesley, 212 B.R. 4 (Bankr.D.Me.1997) (ordering *211 attorney to disgorge fees and pay debtors's fees and costs pursuant to § 329 and Rule 1016(b)); In re Larsen, 190 B.R. 713, 718 (Bankr.D.Me.1996) (denying lawyer's compensation and ordering fee disgorgement because of noncompliance with § 329 and Rule 1016(b)).
Section 110 addresses a very real concern. Although lawyers are subject to competency requirements and character assessments before they may practice law, petition preparers are presently subject to no regulation or licensing procedures. In addition, attorneys can be disbarred, suspended or otherwise sanctioned if they fail to obey the ethical rules promulgated by the Maine Supreme Judicial Court and adopted by the U.S. District Court of Maine.[12] When a lawyer's conduct breaches the professional standard of care and damage results, the common law provides relief. See generally In re Rausch, 197 B.R. at 119 (finding § 110's distinction between attorneys and petition preparers rational because attorneys are subject to malpractice actions, rules of ethics, disciplinary proceedings, continuing legal education requirements, and are responsible for the conduct of their employees).[13] In the bankruptcy context, § 110 fills the breach by providing statutorily-defined regulation of non-attorneys whose work significantly affects debtors and the business of this court. E.g., In re Gavin, 181 B.R. at 820-21.
2. Section 110's Application.
a. Section 110(a)
Section 110 applies only to "bankruptcy petition preparers." Section 110(a)(1) defines a bankruptcy petition preparer as "a person, other than an attorney or an employee of an attorney, who prepares for compensation a document for filing" in a bankruptcy case. § 110(a)(1); see e.g., In re Fish, 210 B.R. 603, 606 (Bankr.D.Colo.1997) (finding respondent was subject to § 110 as he accepted $190.00 for preparing debtors' petition); United States Trustee v. Womack (In re Paskel), 201 B.R. 511, 515-16 (Bankr. E.D.Ark.1996) (noting that even if preparer took money for preparing petition only to benefit charity, section would apply); cf. In re Herrera, 194 B.R. 178, 190-91 (Bankr. N.D.Ill.1996) (holding § 110 not applicable without evidence that husband was paid for signing wife's name on motion).
Ireland accepted $300.00 for preparing the Hobbs's petition, schedules, and related documents. He is a bankruptcy petition preparer within the meaning of § 110.
b. Section 110(b)
Section 110(b) states:
(b) (1) A bankruptcy petition preparer who prepares a document for filing shall sign the document and print on the document the preparer's name and address.
(2) A bankruptcy petition preparer who fails to comply with paragraph (1) may be fined not more than $500 for each such failure unless the failure is due to reasonable cause.
Fessenden asserts Ireland prepared five separate documents for filing on the Hobbs's behalf and that, under § 110(b), he was required to sign and print his name and address on each. In his view, the Hobbs's petition, their plan, their schedules, their statement of financial affairs, and their certification of creditor matrix is each a separate "document for filing" under § 110(b)(1). Ireland's name, address, and signature appear on none of those documents.
Ireland acknowledges his failure to sign the documents. However, he contends that his July 8, 1996, filing of Official Form 19: "Certification and Signature of Non-Attorney Bankruptcy Petition Preparer," satisfied § 110(b) for the "entire proceeding." Alternatively, he argues that he had "reasonable cause" for § 110(b)(1) noncompliance and *212 should not be fined because before this case he had consistently filed only Form 19 in Chapter 7 cases in this district and because he had informally consulted with the local Chapter 7 trustee regarding that practice. I reject both contentions.
The statute defines "document for filing" 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." § 110(a)(2). Although bankruptcy courts that have considered the matter are not in complete agreement, the clear majority has concluded that the petition and each of the various schedules and statements required of debtors are separate documents for purposes of § 110. See In re Hartman, 208 B.R. at 77677 (petition, schedules, statement of affairs, statement of intention, and verification of creditor matrix); In re Paskel, 201 B.R. at 516 (petition, schedules, and statements of financial affairs); In re Rausch, 197 B.R. at 120, 120 n. 14 (schedules, statement of financial affairs, and statement of intention); see also In re Jackson, 205 B.R. 344, 345 (Bankr.S.D.Fla.1997) (response to motion for relief from stay and motions to avoid lien); Bohman v. Independent Savings Plan Co. (In re Bohman), 202 B.R. 179, 179 (Bankr.S.D.Fla.1996) (dischargeability complaint).[14]
One court disagrees. In re Brokenbrough, 197 B.R. 839 (Bankr.S.D.Ohio 1996), held that it would be "over-reaching" to hold that the schedules and statement of affairs were separate documents under § 110(b). Id. at 834-44. In Brokenbrough all the documents were filed together (attached to the petition) and were filestamped and docketed as one document. Id. The petition preparer had completed Form 19 and had attached it to the petition. Id. at 843. Finally, the court observed that not all of the documents before it contained their own signature lines. Id. at 844.
Another court has viewed the matter similarly, if not identically. In In re Burdick, 191 B.R. 529 (Bankr.N.D.N.Y.1996), the court remarked that "[t]echnically, the statute could be construed to require that the preparer's name, address, signature and social security number be included not only on the petition, but also the schedules and statement of financial affairs filed on behalf of each debtor." Id. at 536 n. 5 (declining a potential aggregate fine of $22,500.00 for § 110 violation in three cases). It held, however, that "in the situation where the schedules and statements are included with the petition at the time of filing, . . . for purposes of Code § 110 a single document has been filed." Id.
I hold that the petition, plan, schedules, statement of financial affairs, and certification of creditor matrix prepared by Ireland for Mr. and Mrs. Hobbs is each a separate "document for filing," requiring Ireland's signature, name, and address.[15]
Requiring petition preparers to sign each separate form recognizes the reality that a debtor's petition, schedules, statement of affairs, and other required documents are not always filed together, or necessarily even filed. See, e.g., 11 U.S.C. § 521(1) (documents to be filed by debtors unless otherwise ordered by the court); § 521(2)(A) (statement of intention to be filed within thirty days of petition or by § 341 meeting, whichever is earlier); Fed. R. Bankr.P. 1007(c) (schedules and statements may be filed up to *213 fifteen days after the petition). In the case at bar the documents were filed on three separate days.[16]
Ireland's contention that filing Form 19 by itself on July 8, 1996, satisfied § 110(b)(1) is simply wrong. Form 19 is intended as an accompaniment for documents which do not have official forms bearing an incorporated prepared's certification and signature section
[Form 19] or adaptations of [Form 19] have been incorporated into the official forms of the voluntary petition, the schedules, the statement of financial affairs, and other official forms that typically would be prepared for a debtor by a bankruptcy petition preparer. [Form 19] is to be used in connection with any other document that a bankruptcy petition preparer prepares for filing by a debtor in a bankruptcy case.
Official Bankruptcy Form 19 advisory committee note to 1995 amendments (emphasis added). In any event, Ireland's Form 19 (filed weeks after the petition was filed and a day before the schedules were filed) with only its general reference to "this document" was so vague as to render it meaningless.[17]
The fact that, in other cases, the Chapter 7 trustee has acquiesced in Ireland's use of Official Form 19, rather than the required, separate document certifications, makes no difference. Communications between that trustee and Ireland and that trustee's decision not to insist that Ireland comply fully with § 110(b) did not immunize Ireland from Fessenden's action or excuse his noncompliance in this case.[18] They bind neither Fessenden nor this court.[19]
Thus, Ireland committed five violations of § 110(b). The maximum fine for each is $500.00, but Fessenden asks that a fine of $150.00 per violation be imposed. Although I *214 accept none of the excuses Ireland proffers, in view of the cumulative fines that other violations will bring, I will set the fine at the level the plaintiff requests.
c. Section 110(c)
Section 110(c) provides:
(1) A bankruptcy petition preparer who prepares a document for filing shall place on the document, after the preparer's signature, an identifying number that identifies individuals who prepared the document.
(2) For purposes of this section, the identifying number of a bankruptcy petition preparer shall be the Social Security account number of each individual who prepared the document or assisted in its preparation.
(3) A bankruptcy petition preparer who fails to comply with paragraph (1) may be fined not more than $500 for each such failure unless the failure is due to reasonable cause.
Ireland failed to place his social security number on the documents he prepared for filing. He raises no challenge to the statute's application. I see no reason to distinguish between Ireland's failure to comply with § 110(b)(1) and § 110(c)(1). See In re Rausch, 197 B.R. at 120 (interpreting "document for filing" as having the same meaning in subsections (b) and (c)). Again, although I could fine Ireland $500.00 for each of five violations, I will set the fine at $150.00 per violation as Fessenden requests.
d. Section 110(d)
Section 110(d) provides:
(1) A bankruptcy petition preparer shall, not later than the time at which a document for filing is presented for the debtor's signature, furnish to the debtor a copy of the document.
(2) A bankruptcy petition preparer who fails to comply with paragraph (1) may be fined not more than $500 for each such failure unless the failure is due to reasonable cause.
Fessenden asks that I fine Ireland for violating § 110(d)(1) because Ireland "did not deny that he failed to provide a copy of the petition to the debtors at the time the documents were presented to them for their signatures." Mrs. Hobbs testified that her June 19, 1996 meeting with Ireland, he gave her three copies of the petition, all three of which were to be filed with the court that day. See D. Me. LBR 1002-2(a)(1) (requiring debtors to file an original and three copies of "any petition . . . schedules and statements"). At their subsequent meeting on June 25, 1996, Ireland did provide the Hobbs with their own copies of the schedules and statements.
Because the petition, statements, and schedules are separate documents, I agree that Ireland violated § 110(d)(1), but I will not impose fines for the violations. The complaint does not allege a § 110(d) violation, it is not clear that the issue was tried by consent, and, in any event, the plaintiff has not moved to amend the pleadings to conform with the evidence. See Fed. R. Bankr.P. 7015(b) (providing for amendment of pleadings to conform to the evidence when issues not pleaded are tried, but stating that failure to so amend does not affect the trial result)
e. Section 110(f)
Section 110(f) provides:
(1) A bankruptcy petition preparer shall not use the word "legal" or any similar term in any advertisements, or advertise under any category that includes the word "legal" or any similar term.
(2) A bankruptcy petition preparer shall be fined not more than $500 for each violation of paragraph (1).
Ireland testified that he had done business and advertised under the name "Penobscot Paralegal Services" since "day 1." He advertises under that name in local newspapers and in the telephone directory's yellow pages. His yellow pages advertisement appears under the heading "Legal Document Preparation Svce."
I have no trouble concluding that by advertising in the yellow pages under "Legal Document Preparation Svce" Ireland has violated § 110(f)(1)'s prohibition against advertising *215 "under any category that includes the word `legal.'" Walton v. Levinson (In re Schweitzer), 196 B.R. 620, 624 (Bankr. M.D.Fla.1996) (petition preparer fined for advertising in local newspaper under category "Legal Services"); see also In re Chamberland, 190 B.R. 972, 975, 977 (Bankr. M.D.Fla.1996) (petition preparer advertised under section in paper for legal services). I will fine Ireland $500.00 (more than the $200.00 fine Fessenden seeks) for his unlawful yellow pages listing. This is a particularly flagrant violation; Ireland made no attempt to ascertain or obey the law.
Ireland's use of the term "paralegal" in each of his advertisements constitutes a separate violation the § 110(f)(1) prohibition against "including the word `legal' or `any similar term' in any advertisement." Burdick, 191 B.R. at 535 (quoting § 110(f)(1)). I conclude this is so because, in view of § 110's purpose, "paralegal" and "legal" are "similar terms" under subsection (f).
Section 110 is a consumer protection measure. Although there is no legislative history specific to subsection (f), it is clear that in enacting § 110 Congress was concerned with debtors who may be "ignorant of their rights both inside and outside the bankruptcy system." 140 Cong. Rec. H10752, H10770 (1994) (section-by-section description inserted into the record of house debates on the Bankruptcy Reform Act of 1994). Thus, § 110(f) is appropriately viewed as a measure meant to ensure that debtors understand exactly what they will and will not receive from bankruptcy petition preparers. Petition preparer advertising must keep well clear of any suggestion that the preparer will be offering legal services or insights.
The prefix "para" is defined as "beside," "closely resembling the true form," and "associated in a subsidiary or accessory capacity." Webster's Third New International Dictionary 1634 (1976). The definition of "Paralegal" includes "of, relating to, or being a paraprofessional who assists a lawyer." Id. at 76a. See also Black's Law Dictionary 1111 (6th ed. 1990) ("A person with legal skills, but who is not an attorney, and who works under the supervision of a lawyer in performing various tasks relating to the practice of law or who is otherwise authorized by law to use those legal skills."). Ireland works independently, unaffiliated with and unsupervised by any member of the bar. Advertising himself and his business as providing "paralegal services" implies such an association or, at least, promotes Ireland's "legal skills" when, in reality, he can lawfully provide none. See Me.Rev.Stat. Ann. Tit. 4, § 807(1) (West Supp.1996) (unless admitted to the bar "[n]o person may practice law or profess to practice law within the State or before its courts, or demand or receive remuneration for those service rendered in this State"). Thus, because the term "paralegal" fosters consumer confusion of the character Congress intended to eliminate, it is properly considered a "similar term" to "legal" under § 110(f)(1). Because Ireland advertised using the term, and, again, because this is a serious (and repeated) violation, I will impose a second $500.00 fine under § 110(f)(2).[20]
f. Section 110(h)
Section 110(h) states:
(1) Within 10 days after the date of the filing of a petition, a bankruptcy petition preparer shall file a declaration under penalty of perjury disclosing any fee received from or on behalf of the debtor within 12 months immediately prior to the filing of the case, and any unpaid fee charged to the debtor.
(2) The court shall disallow and order the immediate turnover to the bankruptcy trustee of any fee referred to in paragraph (1) found to be in excess of the value of services rendered for the documents prepared. An individual debtor may exempt *216 any funds so recovered under section 522(b).
(3) The debtor, the trustee, a creditor, or the United States trustee may file a motion for an order under paragraph (2).
(4) A bankruptcy petition preparer shall be fined not more than $500 for each failure to comply with a court order to turn over funds within 30 days of service of such order.
Although the debtors' Statement of Financial Affairs disclosed the fee paid to Ireland, Ireland ignored his separate, statutory obligation to file a sworn disclosure of fees paid to him by or on behalf of the debtors in the twelve months preceding bankruptcy. Time and again, this court has emphasized in commenting on attorneys' disclosure requirements that full and candid disclosure is "essential." In re Saturley, 131 B.R. 509, 516 (Bankr.D.Me.1991).[21] Courts passing on the issue have strictly enforced § 110(a)(1)'s fee disclosure mandate for non-attorney petition preparers. See In re Fraga, 210 B.R. at 818 (full disgorgement proper where payments to petition preparer listed on debtor's statement of financial affairs but no separate disclosure filed; full $500 fine would also have been appropriate had bankruptcy court imposed it); In re Fish, 210 B.R. at 607 (following show cause hearing and determination that preparer failed to file § 110(h) declaration, preparer given 30 days from date of order to so file or face full disgorgement and fine).
My inclination to require Ireland to disgorge all undisclosed fees is strengthened when I consider what he actually did "for" (more accurately "to") the debtors here. The documents he prepared were slipshod and sloppy. The forms he furnished were out of date. The debtors' schedules and statements omitted significant information, such as exemption claims for the assets (i.e., home, car, tools) they had filed for Chapter 13 to protect. To make matters worse, the schedules and statements were not filed within fifteen days of the petition. See Fed. R. Bankr.P. 1007(c). The debtors obtained no extension of time within which to file them and no leave to file them late. Thus, the very efficacy of those filings is open to question. See Petit v. Fessenden (In re Petit), 80 F.3d 29, 32 (1st Cir.1996) (finding that debtor could not proceed with arguments on appeal because debtor had not "met the first indispensable precondition to a valid claim of exemptions: a timely claim of exemptions") (emphasis original).
I will, therefore, order that Ireland disgorge not only the $300.00 that he charged in connection with bankruptcy forms preparation, but also the $250.00 in pre-bankruptcy compensation that § 110(b)(1) required him to disclose.
Section 110(h)(2) states that if disgorgement is ordered, the funds are to be turned over to the "bankruptcy trustee," but that individual debtors may "exempt any funds so recovered under section 522(b)." § 110(h)(2). The Hobbs's Chapter 13 case was dismissed on February 13, 1997, but Mrs. Hobbs testified that she and her husband had retained bankruptcy counsel in Florida and intended to file a Chapter 7 petition there. Because I am uncertain whether that has been done, I will order Ireland to turn the $550.00 directly over to Mr. and Mrs. Hobbs, subject to the requirement that they disclose the receipt of funds to the trustee in any bankruptcy case that may be pending and that they hold the funds for thirty days after informing such trustee.[22]
*217 g. Section 110(i)
Section 110(i) provides:
(1) If a bankruptcy case or related proceeding is dismissed because of the failure to file bankruptcy papers, including papers specified in section 521(1) of this title, the negligence or intentional disregard of this title or the Federal Rules of Bankruptcy Procedure by a bankruptcy petition preparer, or if a bankruptcy petition preparer violates this section or commits any fraudulent, unfair, or deceptive act, the bankruptcy court shall certify that fact to the district court, and the district court, on motion of the debtor, the trustee, or a creditor and after a hearing, shall order the bankruptcy petition preparer to pay to the debtor
(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 for the preparer's services; and
(C) reasonable attorneys fees and costs in moving for damages under this subsection.
(2) If the trustee or creditor moves for damages on behalf of the debtor under this subsection, the bankruptcy petition preparer shall be ordered to pay the movant the additional amount of $1,000 plus reasonable attorneys' fees and costs incurred.
Fessenden argues that in his dealings with Mr. and Mrs. Hobbs Ireland violated § 110 and engaged in "fraudulent, unfair, or deceptive" acts, and asks that I certify such findings to the district court so that it may award damages. Although § 110(i)'s full content is less than clear,[23] I have no *218 trouble concluding that Ireland's conduct fell well within the scope of its prohibitions.
To begin, without repeating the preceding discussions chapter and verse, Ireland violated § 110 in many ways, many times. Thus, he violated "this section" within the meaning of § 110(h)(1). See In re Gavin, 181 B.R. at 824 (noting that violations of several § 110 subsections are "more than sufficient to trigger the § 110(i) penalties").[24] Moreover, in holding himself out as a "paralegal" experienced in dealing with Chapter 13 matters, Ireland blatantly misled the Hobbs. To the extent one may permissibly hold himself or herself out to the public as a "paralegal," some qualification by way of education or experience is necessary or else the representation is misleading. Ireland had not completed any formal paralegal training course and, having left such a program at a local business college, merely set up his "practice" and began "doing bankruptcies." He had no experience with Chapter 13 before this case.
In working with the Hobbs, Ireland also plainly engaged in the unauthorized practice of law. He explained to them the differences between Chapters 7 and 13 as related to their circumstances. It appears that Ireland assisted the Hobbs in selecting exemptions.[25] He drafted the Hobbs's original and amended Chapter 13 plans, exercises that require relating operative Code provisions to the debtors' assets and financial circumstances. And while providing plans that had no realistic chances for successful completion, he advised Mr. and Mrs. Hobbs to stop making mortgage and car payments, thereby hastening defaults and their loss of assets.[26]
Moreover, Ireland's delays in preparing documents for filing (a circumstance that might not qualify as "fraudulent, unfair, or deceptive" absent his representations of expertise) resulted in the Hobbs's potential loss of exemption and other rights and in the necessity that they pay counsel to attend creditor-initiated proceedings in state court that they sought to avoid by their bankruptcy filing.[27]
I will, therefore, certify to the district court that Ireland engaged in "fraudulent, unfair, or deceptive" acts in dealing with Mr. and Mrs. Hobbs. Thus, the trustee may seek a damages award in the district court under §§ 110(i)(1) and(2).[28]
*219 (h) Section 110(j)
Section 110(j) provides:
(1) A debtor for whom a bankruptcy petition preparer has prepared a document for filing, the trustee, a creditor, or the United States trustee in the district in which the bankruptcy petition preparer resides, has conducted business, or the United States trustee in any other district in which the debtor resides may bring a civil action to enjoin a bankruptcy petition preparer from engaging in any conduct in violation of this section or from further acting as a bankruptcy petition preparer.
(2)(A) In an action under paragraph (1), if the court finds that
(i) a bankruptcy petition preparer has
(I) engaged in conduct in violation of this section or of any provision of this title a violation of which subjects a person to criminal penalty;
(II) misrepresented the preparer's experience or education as a bankruptcy petition preparer; or
(III) engaged in any other fraudulent, unfair, or deceptive conduct; and
(ii) injunctive relief is appropriate to prevent the recurrence of such conduct,
the court may enjoin the bankruptcy petition preparer from engaging in such conduct.
(B) If the court finds that a bankruptcy petition preparer has continually engaged in conduct described in subclause (I), (II), or (III) 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, or has not paid a penalty imposed under this section, the court may enjoin the person from acting as a bankruptcy petition preparer.
(3) The court shall award to a debtor, trustee, or creditor that brings a successful action under this subsection reasonable attorney's fees and costs of the action, to be paid by the bankruptcy petition preparer.
There is no need to repeat what has been said before. Ireland has been shown by a preponderance of evidence to have engaged in the unauthorized practice of law. See In re Chamberland, 190 B.R. at 978 (certifying § 110 record to state bar for investigation of unauthorized practice of law); cf. United States Trustee v. Tank (In re Stacy), 193 B.R. 31, 38-40 (Bankr.D.Or.1996) (finding on the evidence that preparer engaged in the unauthorized practice of law and, on that basis, issuing an injunction narrowly circumscribing permissible assistance to debtors). See also In re Campanella, 207 B.R. 435, 444-50 (Bankr.E.D.Pa.1997) (providing lengthy discussion concerning whether a preparer utilizing bankruptcy instructional kits was engaged in the unauthorized practice of law). Such conduct is criminal. See Me. Rev.Stat.Ann. tit. 4, § 807(2) (West Supp.1996) (providing that the unauthorized practice of law is a Class E crime); see also Board of Overseers of the Bar v. MacKerron, 581 A.2d 424, 425 (Me.1990) (discussing unauthorized practice by disbarred attorney). In addition, Ireland misrepresented his experience and engaged in unfair and deceptive conduct vis-a-vis Mr. and Mrs. Hobbs.
The trustee asks that I enjoin Ireland from preparing Chapter 13 petitions and related documents and that, until he ceases using the term "paralegal" in his business and the word "legal" in his advertising, he be enjoined from acting as a petition preparer in this district. Both requests will be granted. To refuse such relief would enable Ireland to continue with ongoing violations of § 110(f) by permitting him to carry on as a petition advertising under the "legal document preparation services" heading in the phone book's *220 yellow pages, and "practicing" in an area in which his incompetence is demonstrated.[29]
Having prevailed in the action for injunctive relief, Fessenden is entitled to his reasonable fees and costs. He seeks $4,162.50 in fees and $456.43 in costs. I find the request reasonable and will award it.[30]
CONCLUSION
For the reasons set forth above, a separate order will issue:
(a) Fining Ireland a total of $750.00 for five violations of § 110(b)(1);
(b) Fining Ireland a total of $750.00 for five violations of § 110(c)(1);
(c) Fining Ireland a total of $1,000.00 for two violations of § 110(f);
(d) Ordering Ireland to disgorge $550.00 in undeclared compensation pursuant to § 110(h)(2) and § 105(a);
(e) Certifying violations of § 110(i)(1) to the district court, with a recommended damages award;
(f) Enjoining Ireland under § 110(j) from preparing Chapter 13 petitions and related documents in this district and enjoining him from operating as a bankruptcy petition preparer so long as he continues to advertise in violation of § 110(f)(1);
(g) Awarding Fessenden fees in the amount of $4162.50 and costs in the amount of $456.43 under § 110(j)(3).
NOTES
[1] This memorandum sets forth my findings of fact and conclusions of law in accordance with Fed. R. Bankr.P. 7052 and Fed.R.Civ.P. 52. Unless otherwise indicated, all citations to statutory sections are to the Bankruptcy Reform Act of 1978 ("Bankruptcy Code" or "Code"), as amended, 11 U.S.C. § 101 et seq.
This is a core matter over which this court has jurisdiction pursuant to 28 U.S.C. §§ 1334, 157(a), (b)(1), and (b)(2)(A).
[2] Ireland testified that he said little more than that he had helped file "several" bankruptcy cases. I credit Mrs. Hobbs's version.
[3] Ireland provided this advice, apparently based on his own "expertise." He did not discuss the advantages or disadvantages of filing a petition in Maine just before moving to Florida. He did not suggest that the debtors consult an attorney. Only much later, after the petition was filed, did Mr. and Mrs. Hobbs review and sign a "Notice to Individual Consumer Debtors," explaining differences among Chapters 7, 11, 12 and 13.
[4] It was at this meeting that the Hobbs reviewed and signed the Notice to individual Consumer Debtors referred to supra note 3.
[5] Ireland filed his certification on Official Form 19, a single-page document that simply stated: "I certify that I am a bankruptcy petition preparer as defined in 11 U.S.C. § 110, that I prepared this document for compensation, and that I provided the debtor with a copy of this document." (emphasis supplied.)
[6] Ireland testified that he did not recall what he did with the documents that Mr. and Mrs. Hobbs signed on June 25, 1996. Mrs. Hobbs testified that Ireland gave her copies for her own records, but that Ireland said he would file them.
[7] Ireland's fee is disclosed in the debtors' response to question 9 on their Statement of Financial Affairs ("Payments related to debt counseling or bankruptcy").
[8] After moving to Florida, the Hobbs monthly income (before expenses) was only $1,619.00.
[9] Fessenden filed an adversary complaint when he determined that some of the relief he sought required initiation of a "civil action." See, e.g., § 110(j).
[10] The dismissal order expressly reserved jurisdiction over this adversary proceeding.
[11] As indicated in the course of § 110's congressional consideration:
Bankruptcy petition preparers not employed or supervised by any attorney have proliferated across the county. While it is permissible for a petition preparer to provide services solely limited to typing, far too many of them also attempt to provide legal advice and legal services to debtors. These preparers often lack the necessary legal training and ethics regulation to provide such services in an adequate and appropriate manner. These services may take unfair advantage of persons who are ignorant of their rights both inside and outside the bankruptcy system.
140 Cong. Rec. H10752, H10770 (1994) (section-by-section description inserted into the record during debates on the Bankruptcy Reform Act of 1994).
[12] See U.S. District Court for the District of Maine Local Rule 83.3; D. Me. LBR 9029-3.
[13] Even under circumstances where professional malpractice insurance is absent or ineffective, clients of Maine lawyers may obtain some measure of relief under the recently-established Lawyers' Fund for Client Protection. See Lawyers' Fund for Client Protection Rule 1 (1997) (reimbursing clients for "losses caused by the dishonest conduct of lawyers admitted and licensed to practice law in the courts of this State occurring in the course of lawyer-client or fiduciary relationship between the lawyer and the claimant.").
[14] The Ninth Circuit Bankruptcy Appellate Panel is the only appellate court to have been presented with a § 110(b) issue. In re Fraga, 210 B.R. 812. The panel upheld the bankruptcy court's $1,000.00 fine, a sum that included a $500.00 fine for the preparer's failure to sign the petition in accordance with § 110(b)(1) and a $500.00 levy for failure to provide the preparer's identifying number as required by § 110(c)(1). Id. at 818.
[15] As In re Rausch and In re Hartman recognized, when the Official Forms for the petition, schedules, and statement of financial affairs were recently amended to add a petition preparer signature line, the Advisory Committee considered each to be a "`document for filing' that may be prepared by a `bankruptcy petition preparer.'" Official Bankruptcy Form 7 advisory committee's note to 1995 amendments. See Fed. R. Bankr.P. 9009 ("The Official Forms prescribed by the Judicial Conference of the United States shall be observed and used with alterations as may be appropriate."). Moreover, each of these Official Forms also contains a case caption, implicitly recognizing its functional severability.
[16] I suppose that a petition preparer could comply with the statute while shunning the safe harbor the forms provide, but I need not decide today whether to embrace Burdick's holding. Assuming a preparer could satisfy § 110(b)(1) by ensuring that, at the same time as documents are filed, a single declaration listing specifically each document prepared is filed, Ireland came nowhere near such compliance here. His certification, referring only to Ireland's preparation of "this document" was filed well after the petition and apart from the schedules.
I do note that, because the debtor(s), and not the preparer, control the timing of the bankruptcy filing, e.g., §§ 110(e)(1) and (g)(1), depending on the Burdick procedure to comply with § 110(b)(1) would be risky at best.
[17] The absence of an official form with a petition preparer signature line for either the Chapter 13 plan or the certification of creditor matrix is consistent with my determination. All that has been said with regard to the other documents prepared by Ireland applies to the plan and creditor matrix certification. Each is, practically and functionally, a "separate document" in the bankruptcy case and should be considered so under § 110(a)(2). Indeed, as the passage quoted above makes clear, Form 19 was expressly designed to accompany such documents.
[18] Chapter 7 trustee Gary Growe first contacted Ireland regarding Ireland's failure to observe § 110's requirements in December 1995. In his letter Growe informed Ireland of his failure to comply, urged Ireland to review § 110, and finished by stating that he "anticipate[d] full compliance in the future." (Def.Ex. D.) Attached to the letter was Official Form 19, which Growe testified he expected would be used by Ireland. Growe also testified he did not recall whether he told Ireland that Official Form 19 was all that was necessary. It was not reasonable for Ireland, who as a bankruptcy petition preparer holds himself out as a person familiar with the bankruptcy process, to rely on Growe's representations as a determination of § 110 compliance. Any helpful hints Growe may have offered Ireland were merely that. It was not legal advice, and it was certainly not a representation from the court.
Attached to Growe's December 1995 letter was the advisory committee note for Form 19. That note, quoted above, alerted Ireland to Form 19's limited function to accompany documents for which forms including preparer signature lines have not been promulgated.
[19] Ireland's view that his dealings with one Chapter 7 trustee provided him with an effective "seal of approval" is but one of many examples of how Ireland misperceives law and process. His fundamental claim is that he was unaware that the statute required more of him than he did.
"[I]gnorance of [§ 110], even if true, would not be reasonable cause to vitiate the imposition of fines." In re Murray, 194 B.R. 651, 658 (Bankr. D.Ariz.1996). A bankruptcy petition preparer can lawfully offer nothing to a debtor aside from typing service and, I suppose, a rudimentary familiarity with process and forms. It is a telling admission when one disclaims knowledge of the basic requirements imposed on him by the process of which he claims salable expertise.
[20] It is an open question whether Ireland is subject to a fine of up to $500 for each edition of each newspaper containing the offending language. See United States Trustee v. Tank (In re Stacy), 193 B.R. 31, 36 (Bankr.D.Or.1996) (fining petition preparer $5,000.00 for advertising under name "Legal Alternatives" once a week for 62 weeks). However, it is a question I decline to answer today, as a fine for two violations of § 110(f)(2) (one for the yellow pages ad and one for newspaper advertising), coupled with injunctive relief, discussed infra, should suffice to convince Ireland to conform his practices to the law.
[21] Rule 2016(b)'s disclosure requirement for debtors' counsel is the statutory analogue to § 110(h)(1)'s requirement for non-attorney petition preparers. This court has enforced counsel's disclosure duties firmly and consistently. See, e.g., In re Beesley, 212 B.R. at 7 (ordering disgorgement of bankruptcy attorney fees and payment of attorney fees debtor incurred in pursuing disgorgement against attorney who double billed her clients in complete disregard of the Rule 2016(b) statement); In re Larsen, 190 B.R. at 717-18; (disallowing attorney's compensation for failure to file a Rule 2016(b) disclosure and for other inadequacies concerning fee application); In re Saturley 131 B.R. at 516-17 (denying all compensation to debtor's attorney because of "disturbing deficiencies" in the Rule 2016(b) disclosure).
[22] By his account, Ireland spent between eight and nine hours organizing the debtors' materials and completing the petition and schedules. Under these circumstances, where there has been a serious disclosure default and where Ireland's efforts actually harmed the debtors, I need not address the reasonableness of the time Ireland expended or his hourly rate. See cf. Law Offices of Nicholas A. Franke v. Tiffany (In re Lewis), 113 F.3d 1040, 1045 (9th Cir.1997) (attorney's disregard of provisions requiring fee disclosure warranted denial of all compensation, without inquiry into whether fees were reasonable or excessive).
[23] Because § 110 is relatively new, case law interpreting subsection (i) is sparse. That which exists generally focuses on egregious conduct plainly qualifying as "fraudulent, unfair, or deceptive." See In re Fish, 210 B.R. at 608 (finding "unfair, fraudulent and deceptive" preparer's use of: multiple aliases, a later closed mail-drop-box, multiple addresses with no forwarding provided, a later disconnected, non-forwarded phone number, a caller identification device to avoid contact with former clients, client filing fees for own purposes, fabricated excuses concerning nonpayment of filing fees, a cash only payment plan, and an "`equity skimming' scheme"); In re Brokenbrough, 197 B.R. at 845 (finding enough evidence of "fraudulent, unfair or deceptive conduct" in preparer's violation of other § 110 prohibitions); In re Schweitzer, 196 B.R. at 624 (finding to be "fraudulent, unfair or deceptive" preparer's payment of filing fee with an unrelated client's money and false representation to client that court date was set on cases yet to be filed); In re Murray, 194 B.R. 651, 659 (Bankr. D.Ariz 1996) (finding "unfair and deceptive" preparer's use of an inaccurate and misleading brochure "to lure individuals to his office"); In re Burdick, 191 B.R. at 537-38 (finding "unfair and deceptive" preparer's subornation of debtor perjury, manipulation of debtors to file false statement regarding preparer's provision of services, and provision to debtors of false docket numbers for submission to creditors); In re Cordero, 185 B.R. 882, 886 (Bankr.M.D.Fla.1995) (finding "deceptive practices" in preparer's intentional circumvention of other § 110 requirements, including misrepresentation of fees on Statement of Financial Affairs, failure to sign and provide social security numbers on documents, collecting filing fees from clients, and omitting to file the requisite fee disclosure); In re Gavin, 181 B.R. at 824 ( finding fraudulent, unfair, and deceptive preparer's use of "`legal aid services'" name, hiring and holding out of unqualified staff as a "`paralegal assistant,'" and use of non-attorneys who appear to debtors to be attorneys and who provided slow and inadequate services); cf. In re Paskel;, 201 B.R. at 519-20 (finding "unfair and deceptive practices" violating § 110(j) in preparer's representation to debtor that he was an attorney, signing the schedules and petition without debtor's knowledge or consent, and preparation of petition and schedules without debtor's participation); In re Stacy, 193 B.R. at 37 (finding "fraudulent, unfair and deceptive conduct" violating § 110(j) as preparer mislead debtors by false assurances, made alterations in documents without consent, represented on second petition that debtor had not filed in the last six years when preparer had prepared a first petition for debtor within that time frame, and fabricated information on schedules). But see In re Chamberland, 190 B.R. at 978 (finding "no competent evidence" of fraud, negligence or overreaching in preparer's violations of §§ 110(b)(1), (c)(1) and (f)(1))). It is likely that, when considering conduct at the margins of the subsection's prohibitions, case law interpreting and applying the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1), will be instructive. See 2 Lawrence P. King, ed., Collier on Bankruptcy ¶ 110.10[1] (15th ed rev. 1996 & Supp.).
[24] The drafters of § 110 plainly appreciated and employed the terms "section" and "subsection" to mean § 110 and its alphabetically-denominated sub-parts. See § 110(a) (definitions applicable to "this section"); § 110(i)(2) (referring to fees and costs incurred in moving for damages under "this subsection.")
[25] Ireland testified that he generally gives clients information about exemptions at the same time that he provides information about relief available under various chapters of the Code. In this case, the debtors received and signed the document explaining the differences among chapters on June 25, 1996, the same day they signed their schedules which included their exemption claims. See discussions supra at note 3. Moreover, although Mrs. Hobbs testified that she had told Ireland of the need to "protect" certain assets, she "had no idea" about exemptions or as to why "that stuff was listed" as exempt.
[26] The trustee does not seek damages based on the debtors' loss of their house in Maine because it was worth less than the encumbrances on it. He does seek damages on account of their loss of their van because, absent Ireland's advice to stop making payments, the Hobbs could have maintained them and kept the van, by plan payment or reaffirmation whether or not they successfully completed a Chapter 13 plan.
[27] Ireland was aware of the Hobbs's upcoming court date on a creditor collection action and of their desire to truncate those proceedings by filing a bankruptcy petition, but he prepared the petition too late to stay the creditor's attachment hearing.
[28] I will not fix the damages here. See In re Fish, 210 B.R. at 608-09 (making itemized "recommendations for entry of damages" in certifying § 110(i) violations to district court); In re Murray, 194 B.R. at 659; In re Burdick, 191 B.R. at 538 (certifying § 110(i) facts to the district court without fixing damages).
Section 110(i) directs me to certify to the district court only the fact of the preparer's violative conduct. Because § 110(i) requires the party seeking damages to move for them in the district court and because the district court may award damages only after a hearing, I expect that the damages will be the subject of the district court's fact finding. Nevertheless, to streamline the process and to avoid unnecessary remand, I find that Ireland's conduct damaged the Hobbs and recommend to the district court that the following damages be awarded: Mrs. Hobbs's airfare to return to Maine for trial $206.00; long distance telephone charges $8.02; counsel fees for creditor's state court proceedings $40.00; value of five months' use of debtors' van that was repossessed as a consequence of Ireland's advice to cease making payments $1,645.00. To those sums I would add either the Chapter 13 filing fee ($175.00) and the Hobbs's airfare to the § 341 meeting in Maine ($475.00) or the retainer they have paid to Florida bankruptcy counsel ($700.00) and, if paid prior to the district court damages hearing, the Florida bankruptcy filing fee ($175.00). I also recommend that the district court award Fessenden $1,000.00 under § 110(i)(2) plus such reasonable costs and fees as he incurs in prosecuting a damages motion there.
[29] In a separate, Chapter 7 case, In re Read, Ch. 7 Case No. 96-10929, the United State Trustee initiated a motion seeking relief against Ireland under § 110. That matter was resolved by consent decree, the content and force of which is unaltered by the order(s) I will enter in this case.
[30] Ireland does not take exception to the reasonableness of Fessenden's fees and costs. In addition, I have reviewed his supporting affidavit, Trustee's Exhibit 13, and the appended itemization. It is complete, well-detailed, and clearly reasonable. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1540436/ | 213 B.R. 866 (1997)
In re Elizabeth WOOD and Richard D. Wood, Debtors.
AT & T UNIVERSAL CARD SERVICES CORP., Plaintiff,
v.
Elizabeth WOOD, Defendant.
Bankruptcy No. LA 96-44837-KM, Adversary No. AD 97-01126.
United States Bankruptcy Court, C.D. California.
October 10, 1997.
*867 Edmund J. Sherman, Law Office of Robert S. Lampl, Woodland Hills, CA.
Ronald L. Brownson, Upland, CA.
OPINION AFTER COURT TRIAL OF ADVERSARY PROCEEDING
KATHLEEN P. MARCH, Bankruptcy Judge.
1. INTRODUCTION:
This is a § 523(a)(2) nondischargeability adversary proceeding which raises some novel issues. Debtor Elizabeth A. Wood ("Debtor") filed a Chapter 7 bankruptcy on October 22, 1996. Plaintiff credit card company AT & T Universal Card Services Corp. ("Plaintiff") timely filed a 11 U.S.C. § 523(a)(2) adversary proceeding against Debtor, seeking to hold $7,818.66 of credit card charges made on the credit card issued to Debtor by Plaintiff nondischargeable in Debtor's chapter 7 case. That credit card had been issued to Debtor by Plaintiff on July 20, 1993, pursuant to a credit card agreement where Debtor represented that Debtor would pay charges incurred on the card per the terms of the card agreement.
The charges at issue total $7,818.66. These charges are for cash advances taken on the card between October 13, 1995 and November 30, 1995, totaling $6830, plus accrued interest and charges as of date of filing of the bankruptcy. The card's credit limit was $6900. Only $413.00 of payments was made on the card after these charges were made. The card was in good standing until these charges were made and left unpaid. A previous balance owed on the card of about $6400 had been paid down to $0 in June 1995.
This adversary proceeding was tried to the Court. Trial was held and completed on September 19, 1997. The court received in evidence those facts stipulated to in the joint pretrial conference order as undisputed, heard the testimony of Debtor, and received in evidence and reviewed certain documentary evidence. Admissibility of the documentary evidence was stipulated to by both sides.
The novel issues raised by this adversary proceeding arise from the following facts: Debtor, without Plaintiff's knowledge and without Plaintiff's consent, allowed debtor's sister, Catlin Crest ("Debtor's Sister") to "use" Debtor's credit card number to take the $6830 of cash advances here at issue. Debtor allowed Debtor's Sister to take a cash advance of $2000 so that Debtor's Sister could use the $2000 to pay two months of past due rent owed on Sister's business premises. Debtor allowed Debtor's Sister to take additional cash advances totaling $4830 to buy inventory to sell in Sister's business. After these charges were made, neither Debtor nor Debtor's Sister made any payments on any of these amounts, except for paying $413.00.
In the joint pretrial conference order governing trial of this adversary proceeding, and in her testimony at trial, Debtor stipulated that Debtor had no intention or ability to herself pay back any of these cash advances. Debtor (the sole witness called at trial by either side), testified that neither she nor her husband (not a signatory on the card and not a defendant in this adversary proceeding) had the ability to pay these charges back to Plaintiff. She further testified that she understood *868 that she was legally liable to pay all charges made on the card, pursuant to the terms of her credit card agreement with Plaintiff, because she was the signatory and contracting party on the card.
Debtor testified that she was counting on her Sister to pay back the cash advances to Plaintiff, and testified that Debtor expected that Debtor's Sister would be able to do so from selling the inventory of Sister's business over the 1996 Christmas retail season.
The uncontroverted evidence at trial relating to the financial circumstances of Debtor's Sister, at the time the charges in issue were made and thereafter, was that Debtor's Sister was unemployed, was raising 4 children alone, was living on AFDC (Aid to Families With Dependant Children) payments (a form of welfare), and was only sporadically receiving about $150 a month from one of her several ex-husbands as child support. The Sister's business, which was described as a metaphysical bookstore/tattoo parlor/smoking paraphernalia shop, had only recently been started, and was already behind on its rent. However, the Debtor, Debtor's Sister, and a third person had previously operated a similar business, which Debtor and Debtor's Sister had sold to the third person in mid 1995, so both Debtor and Debtor's Sister had some experience with the type of business in question. Debtor's Sister had no credit cards of her own, but instead was using Debtor's credit to pay the rent/purchase inventory for Debtor's Sister's business. From all of these facts the Court inferred that Debtor's Sister was not creditworthy herself as a credit risk.
2. ISSUES PRESENTED:
The ultimate legal issue presented by this adversary proceeding is whether the $7,818.66 of credit card charges in issue are properly held nondischargeable in this bankruptcy under 11 U.S.C. § 523(a)(2)(A), because the Debtor was reckless in representing (through her credit card agreement) that Debtor would repay each of the charges in issue pursuant to the terms of Debtor's credit card agreement with Plaintiff.
The two defenses to this claim of recklessness in representing intent to repay are what are novel:
(1) Debtor argues that, though Debtor personally had no ability or intent to repay the charges, Debtor was not reckless in representing that Debtor would repay these charges, because Debtor expected that Debtor's Sister would repay these charges to Plaintiff per the terms of Debtor's credit card agreement with Plaintiff, and
(2) Debtor further argues that Debtor did not receive ". . . money, property, services, or an extension, renewal, or refinancing of credit . . . obtained by . . . a false representation . . ." as required by 11 U.S.C. § 523(a)(2)(A), because it was Debtor's Sister, not Debtor, who received the cash advances.
3. HOLDING:
After trial, the Court rendered judgment in favor of Plaintiff AT & T Universal Card Service, Inc. and against Debtor Elizabeth A. Wood, holding the $7,818.66 of credit card charges made on the credit card issued to Debtor by Plaintiff nondischargeable in Debtor's Chapter 7 case pursuant to 11 USC § 523(a)(2)(A), based on the fact that Debtor was reckless in representing, through her credit card agreement with Plaintiff, that Debtor would repay the charges in issue pursuant to the terms of that credit card agreement.
4. ANALYSIS:
a. Recklessness in Representing Intent to Repay Charges Made is Sufficient to Support Nondischargeability
The law is settled in this Circuit that recklessness by a Debtor in representing that a Debtor will repay credit card charges pursuant to the terms of the credit card agreement is sufficient to support holding unpaid charges nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A). In re Anastas, 94 F.3d 1280, 1286 (9th Cir.1996). Reckless disregard for the truth of a representation satisfies the element that the debtor has made an *869 intentionally false representation in obtaining credit. Id.
b. Debtor's First Defense is In Error
i. Debtor's Sister Had No Objective Ability to Repay Charges, and Debtor Could Not Reasonably Believe Debtor's Sister Could Repay the Charges, Given the Dismal Financial Circumstances of Debtor's Sister
Debtor's first defense raises the question of whether Debtor was reckless in representing, through her credit card agreement, that Debtor would repay the charges in issue, when Debtor had no present ability or intent to herself repay the charges, but expected that Debtor's Sister would repay the charges. This defense is in error for two reasons.
First, on the uncontroverted evidence presented in this case, Debtor's Sister had no objective ability to repay the charges in question. As noted supra, Debtor's Sister was living on AFDC with 4 children, and working in a start up business that was already behind on its rent and lacked capital to buy inventory. Debtor's Sister was not creditworthy herself, as shown by the fact that Debtor's Sister had no credit cards of her own, but instead was living on AFDC and using Debtor's credit.
In light of these circumstances, Debtor could not have reasonably believed that Debtor's Sister would repay the charges in question. Consequently, it was reckless for Debtor to count on Debtor's Sister to repay the charges at issue. Further, the Court, having assessed the credibility of Debtor at trial, disbelieved Debtor's claim that Debtor expected Debtor's Sister would repay the charges at issue.
(1) As a Matter of Law, It is Reckless to Rely on a Third Party to Repay Charges Made, Where the Third Party Has No Legal Obligation to Do So
However, there is an even more basic reason why this defense must fail, regardless of whether or not Debtor's Sister had the objective ability to repay the charges. This Court finds that Debtor's counting on Debtor's Sister to repay constituted a recklessness representation by Debtor that the charges on Debtor's card would be repaid by Debtor's Sister, as a matter of law, because Debtor's Sister did not have any contractual or other relationship with Plaintiff credit card company obligating Debtor's Sister to repay the charges.
Thus, even if one were to assume (contrary to all of the evidence in this case), that Debtor's Sister had the financial ability to pay the charges in question per the terms of the card agreement, Debtor's Sister had no obligation to do so. Debtor's sister was not a co-obligor on the card, nor a guarantor on the card. She had no contractual or other relationship whatsoever with Plaintiff. Though this appears to be an issue of first impression, this Court holds that it is reckless representation of ability to repay, as a matter of law, for a Debtor who lacks ability to himself/herself/itself repay charges, to count on a third person to repay those credit card charges, where the third person would only be acting as a "volunteer" in repaying the charges, without having any legal obligation to repay the charges in issue. After all, a volunteer can change his/her/its mind on whim about repaying. A third person with no legal obligation to repay may well decide not to repay, even if the third person has the resources to do so. Unlike a co-obligor or guarantor, such a "volunteer" cannot be compelled to pay if the "volunteer" decides not to.
c. Debtor's Second Defense is In Error
i. As a Matter of Contract Law, Debtor Took the Cash Advances, Not Debtor's Sister
Debtor's second defense her argument that Debtor did not receive any benefit from use of the card, because Debtor's Sister received and used the cash advances in issue is also in error as a matter of law. First, as a matter of contract law, it was Debtor, not Debtor's Sister who took the cash advances in issue. These advances were charged on Debtor's credit card, with Debtor's authorization. Thus, legally speaking, the charges were made by Debtor. *870 Debtor's Sister can be viewed as acting as Debtor's agent in taking the cash advances in question. See CAL.CIVIL CODE § 2330 (West 1996) (an agent represents his principal for all purposes within the scope of his actual or ostensible authority, and all the rights and liabilities which would accrue to the agent from transactions within such limit, if they had been entered into on his own account, accrue to the principal); 3 WITKIN, SUMMARY OF CALIFORNIA LAW (9th ed. 1987) Neg. Inst. § 100, p. 348 (if an authorized agent signs the instrument with the principal's name alone, this is effective to bind the principal on the instrument). Contractually speaking, Debtor took the cash advances and then lent or made a gift of the funds to Debtor's Sister. See 3 AM.JUR.2D, Agency § 261 (1987) (where an agent acts on behalf of a disclosed principal, and commits acts in the principal's name, such acts and contracts, within the scope of the agent's authority, are generally considered acts and contracts of the principal and are binding on the principal). Thus, Debtor is squarely within the express language of § 523(a)(2) quoted supra, Debtor ". . . received money, property, services, or an extension, renewal, or refinancing of credit . . . obtained by . . . a false representation . . ."
ii. Even if Debtor's Sister is Viewed as Taking the Cash Advances, Debtor Made a Gift of Those Cash Advances to Her Sister, and Making a Gift is a "Benefit" Debtor Received
However, even if Debtor's Sister were viewed as having made the cash advances in issue, then Debtor made a gift to her sister of those cash advances, because Debtor, not her Sister, was the party who was contractually obligated to repay the amounts taken. Debtor's making a gift constitutes Debtor receiving a benefit (the ability to make the gift) as the term "benefit" is used in § 523(a)(2). See In re Ashley, 903 F.2d 599, 604 (9th Cir.1990) (holding that it is not necessary that the property actually be gained for the direct benefit of the debtor, an indirect benefit to debtor constitutes "obtaining property" within the meaning of section 523(a)(2)(A)).
iii. Result Debtor Contends for Would Eviscerate § 523(a)(2)
The reading of § 523(a)(2) that Debtor contends for would completely eviscerate that section, as well as ignoring the express language of the section, and ignoring contract law. For example, Debtor's reading would allow two people (they could be total strangers) to exchange their credit cards. Each would then take cash advances/charge goods on the other's cards until all the cards were charged up to the credit limit (or beyond if possible), and would pocket all the money and goods so obtained. Each person would then file bankruptcy, and would be able to discharge all of the charges so run up, because the other person (not the debtor), received the monies/goods obtained by using the cards, so the debtor did not receive a benefit from the use of the debtor's own cards.
5. CONCLUSION
Judgment on this adversary proceeding, for Plaintiff and against Debtor, has been signed by the Court this date as a separate document. This Opinion constitutes this Court's Findings of Fact and Conclusions of Law on this adversary proceeding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/995486/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4787
DANNY MITCHELL WATTS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-96-135-A)
Argued: May 4, 1998
Decided: July 8, 1998
Before WILKINSON, Chief Judge, WILKINS, Circuit Judge,
and BLAKE, United States District Judge for the
District of Maryland, sitting by designation.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Martin Gregory Bahl, FEDERAL PUBLIC DEFEND-
ER'S OFFICE, Baltimore, Maryland, for Appellant. Wainscott
Walker Putney, Special Assistant United States Attorney, UNITED
STATES ATTORNEY'S OFFICE, Alexandria, Virginia, for Appel-
lee. ON BRIEF: James K. Bredar, Federal Public Defender, Beth M.
Farber, Chief Assistant Federal Public Defender, Baltimore, Mary-
land, for Appellant. Helen F. Fahey, United States Attorney, David G.
Barger, Assistant United States Attorney, UNITED STATES
ATTORNEY'S OFFICE, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Danny Mitchell Watts appeals his convictions for attempting to
evade or defeat tax, see 26 U.S.C.A. § 7201 (West 1989); making or
subscribing a false return, see 26 U.S.C.A.§ 7206(1) (West 1989);
bank fraud, see 18 U.S.C. § 1344 (1988, Supp. I 1990, & Supp. II
1991); and bankruptcy fraud, see 18 U.S.C.§ 152(3) (1994). With
respect to his convictions, Watts maintains that the district court
abused its discretion in denying his motion for a continuance and
committed plain error in failing to instruct the jury that in order to
convict Watts of bankruptcy fraud it was required to find that Watts'
false statements were material to the bankruptcy proceeding. Watts
also challenges an order of the court directing him to pay restitution
to GMAC, asserting that the order was improper because GMAC was
not a "victim" as that term is defined by a provision of the Victim and
Witness Protection Act (VWPA) of 1982. See 18 U.S.C. § 3663(a)(1),
(2) (Supp. IV 1993). For the reasons that follow, we affirm Watts'
convictions but vacate the restitution order and remand for further
proceedings.
I.
The conduct underlying Watts' convictions may be stated briefly.
In 1990, Watts filed federal income tax returns for the 1989 tax year
on behalf of himself and a limited partnership. On both returns, Watts
failed to report income derived from a sale of real property owned by
2
the partnership. Additionally, Watts did not include profits from the
sale of a business on his personal return. Between 1989 and 1991,
Watts applied for and obtained loans from four different banks, sub-
mitting false tax returns in support of the applications. Watts later
defaulted on one of the loans. Subsequently, Watts filed a petition for
bankruptcy relief on which he falsely stated that he had earned no
income during 1989 and 1990.
II.
Watts first contends that the district court erred in denying his
motion for a continuance. Watts was arraigned on April 22, 1996, at
which time counsel was appointed and a trial date of June 19 was set.
The district court thereafter determined that Watts was not eligible for
court-appointed counsel and directed Watts to retain an attorney.
Retained counsel was substituted on May 15. On May 24, Watts
moved for a continuance, asserting that five weeks did not provide
sufficient preparation time. The court denied the motion.
We review the denial of a motion for continuance only to deter-
mine whether the district court abused its discretion. See United
States v. LaRouche, 896 F.2d 815, 823 (4th Cir. 1990). In light of the
broad authority of the district court to control its docket, we will not
find an abuse of discretion unless the denial of a motion for continu-
ance indicates "an unreasoning and arbitrary insistence upon expedi-
tiousness in the face of a justifiable request for delay." Morris v.
Slappy, 461 U.S. 1, 11-12 (1983) (internal quotation marks omitted).
Reversal is not required unless the defendant was prejudiced by the
denial. See United States v. Colon, 975 F.2d 128, 130 (4th Cir. 1992).
We conclude that the district court did not abuse its discretion in
denying the motion for continuance. Watts primarily argues that the
five weeks between the substitution of retained counsel and the sched-
uled trial date did not provide adequate time to prepare, particularly
in view of the amount of time spent by the Government investigating
Watts and preparing its case against him. We disagree. Although
Watts faced several charges, his defense to each charge--that he had
committed the acts alleged, but had not done so willfully--was rela-
tively simple to prepare and present. Additionally, Watts has pointed
to no prejudice arising from the denial of the motion for continuance
3
other than a generalized assertion that counsel did not have time to
review thoroughly all of the documents provided by the Government
during discovery. Such vague allegations are not adequate to satisfy
the prejudice requirement. See LaRouche, 896 F.2d at 825 (observing
that "[m]ore than a general allegation of`we were not prepared' is
necessary to demonstrate prejudice").
III.
Watts next maintains that the district court erred in failing to
instruct the jury that materiality is an element of bankruptcy fraud
under 18 U.S.C. § 152(3). That statute prohibits "knowingly and
fraudulently mak[ing] a false declaration, certificate, verification, or
statement under penalty of perjury ... in or in relation to any case
under title 11." 18 U.S.C. § 152(3). Although § 152(3) does not by its
terms require that the false statement be material, Watts points to sev-
eral decisions from other circuits that have interpreted the provision
to include a materiality requirement. See, e.g. , United States v. Ellis,
50 F.3d 419, 422 (7th Cir. 1995); United States v. Lindholm, 24 F.3d
1078, 1082-83 (9th Cir. 1994); United States v. Yagow, 953 F.2d 427,
432-33 & n.2 (8th Cir. 1992). The Government argues that the contin-
uing validity of these decisions is questionable in view of the recent
decision of the Supreme Court in United States v. Wells, 117 S. Ct.
921, 926-31 (1997) (declining to read a materiality requirement into
18 U.S.C.A. § 1014 (West Supp. 1998)).
Although Watts offered a proposed instruction on materiality, he
failed to object to the instructions as given by the district court. See
Fed. R. Crim. P. 30 (providing that "[n]o party may assign as error
any portion of the charge or omission therefrom unless that party
objects thereto before the jury retires to consider its verdict"). Accord-
ingly, our review is for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). In order to establish our
authority to notice an error not preserved by a timely objection, Watts
must show that an error occurred, that the error was plain, and that
the error affected his substantial rights. See Olano, 507 U.S. at 732;
United States v. Cedelle, 89 F.3d 181, 184 (4th Cir. 1996). Even if
Watts can satisfy these requirements, correction of the error remains
within our sound discretion, which we "should not exercise ... unless
the error `seriously affect[s] the fairness, integrity or public reputation
4
of judicial proceedings.'" Olano, 507 U.S. at 732 (second alteration
in original) (quoting United States v. Young, 470 U.S. 1, 15 (1985));
see United States v. David, 83 F.3d 638, 641 (4th Cir. 1996).
For purposes of this appeal only, we assume, without deciding, that
the failure of the district court to instruct the jury that materiality is
an element of a violation of § 152(3) was error and that the error was
plain. Further, based on this assumption, because the jury never made
the required finding, Watts' substantial rights necessarily were
affected. See David, 83 F.3d at 647.
Nevertheless, we decline to exercise our discretion to notice any
error. Our discretion is appropriately exercised only when failure to
do so would result in a miscarriage of justice, such as when the defen-
dant is actually innocent or the error "seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings." Id. (internal
quotation marks omitted) (alteration in original)."Central to this
inquiry is a determination of whether, based on the record in its
entirety, the proceedings against the accused resulted in a fair and
reliable determination of guilt." Cedelle, 89 F.3d at 186.1 Here, there
can be no question that the false statement made by Watts in the
course of his bankruptcy proceeding--that he had earned no income
during 1989 and 1990--was material. Indeed, Watts acknowledged as
much during oral argument, maintaining only that the jury should
have been allowed to decide the question for itself. Accordingly, we
decline to reverse his conviction.
IV.
Finally, Watts maintains that the district court improperly ordered
him to pay restitution to GMAC. GMAC suffered a loss of over
$700,000 after Watts defaulted on a loan he obtained by submitting
false tax returns.2 Although Watts' conduct in obtaining this loan did
_________________________________________________________________
1 We are not here presented with circumstances in which an error may
warrant the exercise of our discretion to notice plain error "even though
the record demonstrates that the defendant is guilty." Cedelle, 89 F.3d at
186 n.4.
2 Watts obtained the loan from Franklin Mortgage Capital Corporation;
GMAC subsequently purchased the loan.
5
not form the basis of any count of conviction, the district court never-
theless determined that GMAC was a victim within the meaning of
the VWPA. Because Watts failed to object to the restitution order dur-
ing his sentencing hearing, our review is for plain error. See United
States v. Castner, 50 F.3d 1267, 1277 (4th Cir. 1995).
Under the VWPA, the district court may order a defendant to pay
"restitution to any victim" of an offense of conviction. 18 U.S.C.
§ 3663(a)(1); see United States v. Blake , 81 F.3d 498, 506 (4th Cir.
1996) (observing that the authority of a district court to order restitu-
tion is limited to the terms of the VWPA). In 1991, when Watts com-
mitted the acts on which the court based its order to pay restitution
to GMAC, the statutory definition of the term "victim" included "any
person directly harmed by the defendant's criminal conduct in the
course of [a] scheme, conspiracy, or pattern" of criminal activity that
is an element of the offense of conviction. 18 U.S.C. § 3663(a)(2). As
we explained in Blake,
[The VWPA] does not authorize a district court to order res-
titution to all individuals harmed by a defendant's criminal
conduct. For a person to be considered a victim under
§ 3663, the act that harms the individual must be either con-
duct underlying an element of the offense of conviction, or
an act taken in furtherance of a scheme, conspiracy, or pat-
tern of criminal activity that is specifically included as an
element of the offense of conviction. But, if the harm to the
person does not result from conduct underlying an element
of the offense of conviction, or conduct that is part of a pat-
tern of criminal activity that is an element of the offense of
conviction, the district court may not order the defendant to
pay restitution to that individual.
Blake, 81 F.3d at 506 (citations omitted).
GMAC is not a victim under this standard. Watts' conduct in sub-
mitting false tax documents in order to obtain the loan from GMAC
did not underlie any element of any of the offenses of conviction, nor
were his actions taken in furtherance of any scheme, conspiracy, or
pattern of criminal activity that was an element of any of the offenses
of conviction. The district court therefore erred in ordering Watts to
6
pay restitution to GMAC. Moreover, the error was plain in light of the
clear language of § 3663(a)(2) and our presentencing decision in
Blake. And, because the VWPA provided the only authority for an
order of restitution in this case, the error necessarily affected Watts'
substantial rights. Finally, we conclude that the circumstance pre-
sented here--an order of restitution that exceeded the authority of the
district court--warrants the exercise of our discretion to notice plain
error. Accordingly, we vacate the restitution order and remand for
reconsideration by the district court.
V.
In sum, we conclude that the district court did not abuse its discre-
tion in denying Watts' motion for a continuance. And, assuming that
the court committed plain error in refusing to instruct the jury that
materiality is an element of bankruptcy fraud under 18 U.S.C.
§ 152(3), we decline to exercise our discretion to notice the error.
Accordingly, we affirm Watts' convictions. Finally, because the dis-
trict court improperly ordered Watts to pay restitution to GMAC, we
vacate the restitution order and remand for further proceedings.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
7 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/995604/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4460
ANGELA BETH MORTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-96-131)
Submitted: July 7, 1998
Decided: July 22, 1998
Before NIEMEYER, LUTTIG, and WILLIAMS,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
James M. Cagle, Charleston, West Virginia, for Appellant. Rebecca
A. Betts, United States Attorney, Stephen W. Haynie, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Angela Beth Morton appeals from her conviction for aiding and
abetting the possession with intent to distribute cocaine base (crack).
On appeal, she argues that the evidence was insufficient to support
her conviction and that the district court erred by refusing to instruct
the jury regarding duress. For the reasons that follow, we affirm.
Morton alleges that there was insufficient evidence of possession.
We disagree. The facts reveal that Morton, a nurse employed by a
West Virginia correctional institution, agreed to supply crack cocaine
to an inmate in exchange for Valium. The inmate, who was cooperat-
ing with the authorities, gave Morton's phone number to an under-
cover officer who contacted Morton. In two subsequent telephone
conversations on August 6 and 7, 1996, the officer and Morton nego-
tiated the terms of a drug deal in which Morton would receive a cer-
tain amount of Valium in exchange for delivering some crack cocaine
to the prison. Morton traveled to the arranged delivery site with her
husband driving their vehicle. While Morton and her husband
remained seated in the vehicle, the undercover officer spoke with
them for approximately five minutes and then showed and gave the
Valium and crack to Morton. Minutes later when the officers identi-
fied themselves, the drugs were found in between the front seats.
Reviewing the evidence in the light most favorable to the prosecution
as we are required, we find the element of possession is supported by
substantial evidence and thus the jury's verdict must be sustained. See
Glasser v. United States, 315 U.S. 60, 80 (1942).
Next, Morton claims that the district court erred in refusing her
requested jury instruction on the defense of duress. The refusal to give
a proffered instruction is reviewed for an abuse of discretion. See
United States v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992). Duress
is an affirmative defense and presents a question of law as to whether
the proffered evidence makes out the defense. See United States v.
Sarno, 24 F.3d 618, 621 (4th Cir. 1994). In order to establish a claim
of duress, the defendant must show that: (1) she acted under an
immediate threat of serious bodily injury; (2) she had a well-
grounded belief that the threat would be carried out; and (3) she had
2
no reasonable opportunity to avoid violating the law and the threat-
ened harm. See United States v. King, 879 F.2d 137, 138-39 (4th Cir.
1989). A defendant has the burden of establishing sufficient evidence
of the defense to warrant its submission of the claim to the jury. See
id.
Morton argues that the inmate involved coerced her into delivering
drugs. She testified at trial that he threatened her and her family,
grabbed her by the hair and tried to sexually assault her during two
encounters on August 6, 1996, at the penitentiary's infirmary. We
find no error by the district court. First, Morton's interactions with the
inmate occurred on August 6 two days prior to the drug delivery on
August 8. Morton did not go to work on August 7 or August 8. Fur-
ther, taped conversations between Morton and the undercover officer
reveal that she picked the time and place for the delivery and declined
the officer's offer to complete the transaction on August 7, because
she had scheduled a tattoo appointment. We find Morton had time to
avoid any coercion or duress the inmate may have created,* see id.,
and therefore the trial court did not err in refusing to instruct the jury
on the defense of duress. See Sarno, 24 F.3d at 621.
Finally, the district court did issue instructions to the jury on bat-
tered woman's syndrome and entrapment, with regard to the conduct
of Morton's husband and the undercover officer involved. To the
extent Morton raises the issue, we find that she has failed to establish
that the actions of her husband or the police amounted to duress.
Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
_________________________________________________________________
*After being arrested, Morton admitted that she wanted the Valium
badly enough to smuggle crack cocaine into the penitentiary, as
requested by the inmate.
3 | 01-03-2023 | 07-04-2013 |
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